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Publications of the
Carnegie Endowment for International Peace

Division of International Law
Washington

THE
CLASSICS OF INTERNATIONAL LAW

EDITED BY
JAMES BROWN SCOTT

President of the Insutute of International Law
President of the American Institute of International Law

DE JURE BELLI AG PACIS
LIBRI TRES

Bry Huco GROTIuS

Vou. I. A Photographic Reproduction of the Edition of 1646, with
a Portrait of Grotius.

Vo.t. II. A Translation of the Text, by Francis W. Kelsey, with
the collaboration of Arthur E. R. Boak, Henry A.
Sanders, Jesse S. Reeves, and Herbert F. Wright, with

an Introduction by James Brown Scott.

This volume withVolume I constitutes
No. 3 of ‘The Classtcs of Interna-
tonal Law’. 4 list of the numbers
already publisher ts given at the end
of this volume.

DE JURE BELLI AC PACIS
LIBRI TRES

BY
HUGO GROTIUS

VOLUME TWO

THE TRANSLATION
BOOK I

By Francis W. KEtLsEy

WITH THE COLLABORATION OF
ARTHUR E. R. BOAK, HENRY A. SANDERS,
JESSE S. REEVES anp HERBERT F. WRIGHT

AND AN INTRODUCTION BY
JAMES BROWN SCOTT

OXFORD: AT THE CLARENDON PRESS
LONDON: HUMPHREY MILFORD

1925

Prinied wn England
Ait the OxForD UNIVERSITY PRESS
By John Johnson
Printer to the University

CONTENTS

[Introduction . . ‘ : . : ‘ . ‘ . . ix

Translators’ Prefatory Note . . . ‘ . . . . xiv

Translation of the 1646 Edition of the De Jure Belli ac Pacis Libri Tres :
Dedication . . . . . . . . . 3
Prolegomena . . . . . . . . . 9
Book I . . . . . . . . . - 31
Book II. . . . . . . . . . 167
Book III. . . . . . . . . . 597
Appendix . . . . . . . . . . 863

Translation of Commentatio in Epistolam Pauli Apostoli ad Philemonem
in the 1646 Edition of the De Jure Belli ac Pacis . . . . 865

List of Editions and Translations of the De Jure Belli ac Pacis. . 877
Indexes . . . . . . . . . . . . 887

INTRODUCTION:

Huic pe Groot, whom we know and venerate under the latinized
name of Hugo Grotius, is not a man with one book to his credit; but
lawyers of all parts of the world are celebrating the three hundredth
anniversary of one work of his, De Fure Belt ac Pacts Libri Tres.

It appeared, it would seem, some time in the month of March
1625.

For many years it was looked upon as a tour de force, as an extra-
ordinary achievement for a politician in exile and a humanist to his
finger-tips to have turned off within the space of a few months a
treatise on a dry and admittedly technical subject, whose principles
were ill-defined and, where known, were treated with scant respect.

His preparation for the work was not obvious. It is true that
a pamphlet on the freedom of the seas had been published anony-
mously some sixteen years before, and it was known to those who took
an interest in the matter that Grotius was its author; the connexion,
however, between the Mare Liberum of 1609 and the masterpiece of
1625 was not evident. It was a far cry from a pamphlet maintaining a
special interest, to a general treatise setting forth the rights and duties
of nations inwar and in peace. ‘The knowing ones would have us believe
that he began the composition of the great work in 1623, upon a sugges-
tion of the famous Frenchman, Nicholas Peiresc, ‘ the Maecenas of his
Century and the Ornament of Provence’, and a letter from Grotius
himself, dated January 11, 1624, is invoked in support of Peiresc’s inter-
vention. Writing to his patron from Paris, Grotius said :

Tam not idle, but am continuing the work on the Law of Nations (De Jure Gentium),

and if it proves to be such as to deserve readers, posterity will have something which it
will owe to you, who summoned me to this labour by your assistance and encouragement,

Tt may well be, indeed, that Grotius was moved to compose the
law of nations because of the encouragement which he received from
Peiresc, but he would have been unable to please his patron by the
production of a manuscript within two years on such a subject without
elaborate preparation extending through a long period of years. ‘The
suggestion that Grotius should write something for publication may
have come from Peiresc, but that it should be a treatise on the law of
nations doubtless came from Grotius.

So matters stood until 1868, when another and an earlier manu-

1 Translated from ‘La Genése du Traité du Droit de la Guerre et de la Paix’ in Revue de Droit
internaitonal et de Législation comparéé, 1925, pp. 481-527.

x Introduction

script of Grotius was published at The Hague, not due this time to
a literary patron, such as Peiresc, but to the Dutch East India Com-
pany, which had availed itself, it would appear, of Grotius’s services
as counsel in a case in which it was deeply interested. It was a
moderate-sized octavo volume under the title of De fure Praedae
Commentarius. At once the relation between the booklet of 1609
and the book on the law of nations of 1625 became evident.

The tractate on the freedom of the seas was only the twelfth
chapter of the manuscript On the Law of Prize, and the three books
On the Law of War and Peace were the revision of the Commentary
on the Law of Prize expanded by its author to apply to a world at war.
We are no longer face to face with a professional brief in which law
is pressed into the service of a client, but we are confronted with
a treatise whose purpose was to bring the actions of this world at war
into harmony with principles of justice and the practice of Christian
peoples. The three books were the work of a lawyer, as was the
Commentarius ; they were likewise the work of a humanist, or, better
still, of a humanitarian in whom the head and the heart co-operated.

The first public intimation of the existence of the Commentarius
was contained in a catalogue of manuscript books which were stated
to have once belonged to Grotius, and which, in 1864, Mr. Martinus
Nijhoff, a bookseller of The Hague, was about to dispose of at
public sale.

Grotius himself seems never to have mentioned the manuscript
in his other books or in many letters, according to Professor Hamaker’s
introduction prefixed to the text of the Commentarius, which he
edited and Nijhoff. published in 1868. The manuscript was purchased
by the University of Leyden, in which seat of learning Grotius had
been a student and of which he 1s certainly one of the most illustrious
graduates. It was found to be, as claimed, in the handwriting of
Grotius. The Mare Liberum was known to be his, and it was now
found, barring slight modifications to fit it for independent publica-
tion, to have formed the twelfth chapter of the Commentartus.

We have Grotius’s own account, in his Annales et Historiae. de
Rebus Belgicis ab Obitu Philippr Regis usque ad Inductas Anni 1609,
of the facts which led to the composition of the Commentary :

The King of Jora also (this is a Kingdome in the region of Malacca), daring to rip
up old injuries against the Portugueses, incited Jacob Hemskerck, then having with him
two Holland Ships, to set upon a Carrack of an immense magnitude that lay in the

Streights between Malacca, a Portugal colony, and Sumatra ; which he accordingly did,
the said King being both the author and witness of the Victory. The Hollander’, con-

1 This work was written by Grotius in 1612, but was published for the first time in 1657, some
thirteen years after the death of the illustrious author. The above quotation is taken from the English
translation published at London in 1665 under the title De Rebus Belgicts : or, The Annals and History
of the Low-Counirey-Warrs, Book XI, pp. 731-2.

Introduction Xi

tented with the booty, which was very great, spared the lives of all the persons in it, (being
near seven hundred of all sexes and ages), although there yet appeared many fresh examples
of Portugal cruelty... . Thus wealth being gotten from the publick Enemy, and great
damage done to the King and Portuguese, great advantage was gotten with honour by
the Hollanders both in private and publick. Yet some were found in this industrious and
gain-seeking Nation, who would refuse part thereof as not convenient or fitting, being by
force of Warre, taken from Merchants and, as it many times happens, such as least
deserve it....

And from this time, a new Warre as it were arising in the East, the Indian Company
began to be esteemed a great part of the Commonwealth, for that not onely a part of all
booty came to the publick Treasury, but also the common Enemy was exhausted at the
charge of private citizens, that daily made spoil of him, and made him be at infinite
expences in his defence."

According to this passage, it is evident that there is question:
(1) of a capture made by Dutch vessels against the Portuguese ;
(2) of a prize case; and (3) of the scruples of certain Dutchmen to
take a share of the booty coming to them under the law of prize.

The year in which the capture took place was 1602, and many
competent persons believe that Grotius was retained by the Dutch
Kast India Company to justify the capture of the Portuguese galleon.

The reasons which induced Grottus to write his Commentary are
disclosed in a Defense of the Freedom of ‘the Sea against Welwod.

It was not published during his life, but the manuscript was found
together with the Commentary on the Law of Prize, to which the
Defense is related. And it is Grotius himself who explains to us, what
he withheld from his contemporaries, the circumstances surrounding
the composition of the Commentary.

Some years ago when I saw that the commerce with India which is called East was
of great importance for the security of the Fatherland, and it was apparent that this
commerce could not be sufficiently maintained without arms, in view of the Portuguese
obstructing it through violence and trickery, I gave my attention to arousing the spirit
of our countrymen to safeguarding bravely what had been so felicitously begun, since there
had been put before my eyes the justice and equity of the case itself, the source from which
in my opinion originated the confidence in law which has been handed down to us by
the ancients. Therefore all of the rights of war and prize and the history of those deeds
of savagery and cruelty which the Portuguese had perpetrated against our countrymen

and many other things relevant thereto, I had detailed in a sufficiently complete Com-
mentary which up to the present I have refrained from publishing,”

It is to be supposed that Grotius prepared the Commentary either
in his own professional interest in the case before the Prize Com-
mission, or in order to satisfy the curiosity of the Dutch and foreigners
interested in this cause célebre, or even at the request of the East India
Company, which was largely interested in the affair in a financial way.
The Commentary appears to have been written in the winter of

1 Ibid., p. 734-
2 Translated from the original as quoted in Professor Hamaker’s preface to Hugonts Grotu de
Jure Praedae Commentarius (1868), pp. 1x-x.

Xi Introduction

1604-5, and Grotius himself stated, according to Professor Hamaker,
that he ‘neither changed nor added anything in the text after
November 1608, at which time he ordered Chapter XII to be
published separately ’.*

In any case, it is this Company, to which Grotius had rendered
professional services, which is responsible for the publication in 1609
of that chapter of the Commentary dealing with the Freedom of

the Seas.
This is the reason according to the Defense against Welwod :

But when, a short time thereafter, some hope was extended by the Spaniards for
peace or truce with our country, but any unjust condition was demanded by them, namely,
that we refrain from commerce with the Indies, a part of that Commentary, in which
it was shown that this demand rested neither upon law nor upon any probable colour of
law, I determined to publish separately under the title of Mare Liberum, with the intention
and hope that I might add courage to our countrymen not to withdraw a tittle from their
manifest right and might find out whether it were possible to induce the Spaniards to
treat the case a little more leniently after it had been deprived not only of its strongest
arguments but of the authority of their people, both of which considerations were not

without success.?

We do not know why Grotius refrained from publishing the
complete text of the Commentary. ‘It is probable’, according to
Rolin-Jaequemyns, ‘that the stringent scruples of some members
of the Company disappeared of themselves in less time than was
needed for the author to get out his learned argument.’

We do know, however, both the circumstances surrounding the
composition of the De Fure Belli ac Pacis and the motive which
determined Grotius to make it public in 1625. He takes us into his
confidence in the twenty-eighth section of the Prolegomena or intro-
duction which he prefixed to the treatise, saying :

Fully convinced, . . . that there is a common law among nations, which is valid alike
for war and in war, I have had many and weighty reasons for undertaking to write upon
this subject.

And he continues with a passage hardly less applicable to-day
than it was in the stirring times during which he spent his exile in Paris.

Throughout the Christian world I observed a lack of restraint in relation to war,
such as even barbarous races should be ashamed of; I observed that men rush to arms
for slight causes, or no cause at all, and that when arms have once been taken up there is

1 The opinion of Fruin and Hamaker is not shared, it seems, by Kosters, himself a Dutch savant,
who finds it hard to believe that there could be already found in the Commentary of Grotius, written
in 1604 and revised for the last time in 1608, ‘ the same distinction between the two kinds of Law of
Nations that seven years later was to be revealed at Coimbra by the venerable Spanish Jesuit, Suarez,
Tractatus de legrbus ac Deo legislatore, and to become a decisive element in the development of the Law
of Nations’. See Les Fondements du Drott des Gens, a masterly contribution to the general theory
of the Law of Nations, by J. Kosters, Judge of the Supreme Court of the Netherlands, former
Professor of the Law Faculty of Groningen, in Brbizotheca Vissertana, vol. iv (Leyden, 1925), p. 41-

* * The composition of the Commentary (1604~5) referred to by Grotius in the passage cited above.

° Translated from the onginal as quoted in Professor Hamaker’s preface to Hugonis Grots de
Jure Praedae Commentarius (1868), pp. ix-x.

Introduction Xili

no longer any respect for law, divine or human ; it is as if, in accordance with a general
decree, frenzy had openly been let loose for the committing of all crimes.

In the thirtieth section Grotius takes his readers still further
into his confidence. ‘ At the same time,’ he said, ‘ through devotion
to study in private life I have wished—as the only course now open
to me, undeservedly forced out from my native land, which had been
graced by so many of my labours—to contribute somewhat to the
philosophy of the law, which previously, in public service, I practised
with the utmost degree of probity of which I was capable.’ This is
the reason which he gave to show his preparation for the work in
question. It is followed by another, not untinged with ambition.
‘ Many heretofore have proposed to give to this subject a well-ordered
presentation ’, a statement followed with the laconic observation that
‘no one has succeeded’.

The impelling purpose was to show that there was a law in time
of war and, by so doing, to contribute not only to its observance, but
also to the philosophy of law. Lawyer by profession and having
practised his profession, as he himself informs us, ‘ with the utmost
degree of probity ’, he was intellectually qualified for the task. In the
Commentary on the Law of Prize he had at hand the materials for his
undertaking. But the Commentary was only the skeleton ; it was the
privilege and the immense service of Grotius, still in his early manhood,
to make of it a thing of flesh and blood.

Rolin-Jaequemyns? thus compares the De Fure Praedae of
1604-5 with the De Fure Bells ac Pacis of 1625:

The first work has all the qualities and all the defects of youth except ignorance.
We know how precocious Grotius was. The De Sure Praedae teems with erudition,
classical, theological, philosophical, and juristic. This erudition, however, does not
prevent a warm and brilliant style, rapidity of thought, nor even a certain striving for
striking expressions. The defect is that throughout the work Grotius is an ardent advocate
rather than an impartial judge. He has not reached that sublime severity which experience
later gave him. He loves positive and paradoxical assertions (the very title, De Fure

Praedae, has an air of defiance), and he has no idea of those famous zemperamenta, which,
in his great treatise, were to represent the progressive and humanitarian element of
law. ...

That is to say, the work of his youth has not the full ripeness nor masterly character
of the author’s masterpiece. None the less it is a remarkable work which alone would have
sufficed to place Grotius beside Victoria, Ayala and Gentili.?

It is to be noted that M. Rolin-Jaequemyns mentions in this
passage the great predecessors of Grotius whose works had been

1 In a review of Hamaker’s edition of Grotius’s De Jure Praedae in Revue de Droitt nternational et de
Législation comparée, vol. vu (1875), p- 696. .

2 Ibid., p. 695. We know that Grotius, like Victoria, although a layman, was a theologian to his
finger-tips ; that he was interested in war and its conduct, though not an officer in the army as was
Ayala ; if not a professor, as was Gentilis, he was even more learned, and as an advocate he was accus-
tomed to regard even theoretical questions from the practical point of view.

1569-27 b

XIV Introduction

published before the composition of the Commentary. If we add
the Tractatus de Legibus ac Deo Legtslatore of Suarez which appeared
in 1612, we have four of the names honoured by posterity as the
founders of international law. By adding that of Grotius, who
terminated the first period and is the point of departure for the next,
we have five, of whom two, Gentilis and Grotius, were Protestants.

There are some who are prone to forget that there were great
men before these two masters. Enough time has passed, it would seem,
since the Reformation to be just to their predecessors, and especially
should we be mindful of this in this tercentenary of the publication
of the treatise of Grotius, who himself did not forget it.

International law existed before the publication of the first
systematic treatise which Grotius has had the great honour of trans-
mitting to posterity. Thomas Aquinas specialized in natural law.
Victoria the Spaniard distinguished jus naturale and jus inter gentes,
which Suarez had treated in a masterly passage and with final authority.
Ayala, to whom Grotius referred in the Prolegomena, is also a Spaniard,
and we may say that the work of this great Spanish trinity, not to
mention many other Spanish notables of that epoch, would perhaps
have enabled another than Grotius to combine their work systemati-
cally and to make of it the basis of his treatise.

The primary foundation of the system of the law of nations is
the Roman law, the universal law, upon which was based the canon
law, as universal as the Church from which it emanates.

The theologians and philosophers of the Middle Ages fused
together these two systems of law, and it is quite natural that the
faithful of the Church universal laid down the foundations of that
universal law which is the law of nations. If we recall that Gentilis
was Italian, we may say that international law is of Latin origin, as
well as of Catholic origin.

In any case, as we are told very plainly by a compatriot of Grotius,
Dr. Kosters, in his admirable Fondements du Drott des Gens, who
prefers the tree of science to inanimate foundations, ‘ we have come
to the fullness of time; a hand is stretched to gather the ripened fruit’.

Tt was the hand of a Hollander.

*
*

In 1604 a case was tried at Amsterdam which for many reasons
remains a cause célébre. It appealed to the imagination of Europe, and
It seemed to furnish indirectly the opportunity for composing the
first systematic treatise on the law of nations.

It is thought that Hugo Grotius represented the Great United
Company of the East Indies in the proceedings before the Prize Court.

* In Bibliotheca Vissertana, vol. iv (Leyden, 1925), p. 32.

Introduction XV

The documents which could establish the fact no longer exist, having
been destroyed in the last century by a fire which burnt the buildings
of the Ministry of the Navy where they were preserved. We do
know, however, that he had very close relations with the Company
and that he represented it before the States General in 1606.

In the interval he composed the De ‘Fure Praedae Commentarius,
which was based on official documents and was a written brief or
argument on behalf of the Company in its capture of the Portuguese
galleon in the waters of the East Indies, from which the Portuguese
sought to exclude the Dutch.

We also know that upon the request of the Company he detached
the twelfth chapter of the Commentary to publish it separately in
1609 under the title of Mare Liberum, in order to defend the interests
of the Company and to influence favourably the negotiations then
in progress between Spain and Holland for peace on reciprocally
acceptable bases.

The opinion of the Dutch savant, M. Robert Fruin, formerly
Professor of Dutch History at the University of Leyden,’ who has
examined all the existing documents relating to the capture of the
Portuguese vessel, the prize procedure before the Dutch Admiralty
in 1604, and the relations of Grotius with the Company, is that it was
indeed he who represented the Company before the Prize Commission
and defended its interests to the world at large. Professor Fruin is
firmly convinced that the Commentary is only a development of the
professional arguments which Grotius found effective before the
Prize Court. Hence it follows that the great treatise On the Law of
War and Peace, justly considered as the first systematic treatise on
international law, is the result of the professional labours of a Dutch
advocate versed in international law and away from his practice: one
who, as we now know, kept his Commentary with him and enlarged it
by adding the parts concerning peace, in order to treat of war and
peace for the first time in a systematic form acceptable to the nations.

Thus it is that the arguments of Grotius have made their way
from the Prize Commission throughout the world, and that even in

1 Een Onusigegeven Werk van Hugo de Groot, in his Verspreide Geschriften, vol. iii, pp. 367-445.
The text of this remarkable work appeared for the first time in 1868 ; an appendix was added in 1874.

An English translation entitled An Unpublished Work of Hugo Grottus’s appears in Bibliotheca
Vissertana, vol. v (Leyden, 1925), pp. 1-100.

Professor Hamaker, in the Preface to his edition of the De Jure Praedae, is in agreement with
Professor Fruin. Likewise the study of Professor Fruin forms the basis of the present article, the text
of which may be considered in large part a résumé of that excellent monograph.

The writer of the present article, nevertheless, asked two Ministers of Foreign Affairs of the Nether-
lands to have the archives of their country examined in a last effort to find, if that were still possible,
official documents concerning the prize case. They stated that there was nothing more to be had.
In the absence of original documents, Dr. Fruin’s essay therefore has unusual value. It is almost our
only source, and the one which is destined to become a classic, concerning that episode in the life of
Grotius.

b2

XV1 Introduction

our own days they influence foreign offices as they formerly convinced
the Dutch magistrates,

Without the fire which destroyed the arsenal and with it the
original documents, it would not be necessary to cite secondary proofs ;
but we cannot be content with a simple statement when the practical
origin of the first treatise on international law is in question.

The victorious Heemskerck arrived with his prize at Amsterdam
in the summer of 1604. The cargo of the captured vessel was of
a kind and value to appeal not only to the Dutch but to foreigners.
The articles were of two kinds, one of them perishable. For this
reason it was impossible to await the end of the case before offering
them for sale. The Dutch are above all reasonable people, and are
reputed to possess commercial traits which are lacking in others.
Professor Fruin tells us that it was desired to take advantage of the
approaching fair at Frankfort to sell the perishable goods, and we may
also recall that Grotius himself later worked in haste in order to get
the first copies of his treatise on sale at the Frankfort Fair.

The States-General of Holland, by a resolution of July 29, 1604,
authorized the public sale, ‘ notwithstanding that no judgment has
declared the property good prize,’ and this sale was fixed for August 15
and the days following.

As Fruin has it, relying on the declarations of Grotius himself,
‘an incredible multitude had come from all the countries of Europe,
especially from the Hanseatic towns and the imperial cities of Swabia.’
Thanks to this commercial instinct which characterized the Dutch
of that time, the prospective purchasers were divided into two classes :
those from Amsterdam who were given six months’ credit, and
foreigners who paid cash.

The hearing continued during the sale, and on September 9, 1604,
the carak with its entire cargo was declared good prize. After the
judgement another sale took place, on September 21, and this second
sale was more widely advertized abroad than the first. Only merchants
took the perishable goods ; but the great of this world took an interest
in the distribution of the durable property. Henry IV, through the
agency of his ambassador, took some. On October 4, 1604, the French
Ambassador, M. de Buzenval, wrote to M. Villeroy, the King’s
Minister, who was not above accepting some of the produce: ‘I
caused our case to be put as honourably as I could, in keeping with the
dignity of Their Majesties, in behalf of that which was found therein
to be the most worth while,’ and with reason, for had not the great
Henry called the little Grotius ‘ the miracle of Holland’, and is it not
customary to pay compliments.

Nor were the Ambassador and M. Villeroy the only signatories
to accept the merchandise ; the colleagues of the Minister Villeroy,

Inivoduction XVI

the Sieurs Sillery and Rosny, better known as the Duc de Sully,
appropriated their part of the prize.

It seems that France was the first to present itself, but that other
nations also came forward. For example, the King of England and
Scotland, the famous James Stuart, accepted a portion, although he
was at that very time in the midst of negotiations for a treaty of peace
with Spain, which was at war with Holland. Nor is the Margrave of
Anspach to be forgotten who, by a happy chance, found himself in
Holland. But the Dutchman knew his business. The beneficiaries
of the prize affixed their seals to the Admiralty award, which was, on
their part, a recognition both of the justice of the award and of the
right of Holland to make war on independent nations and to capture
their vessels.

This case appealed not only to the imagination of the great.
There was at The Hague, according to Professor Fruin, a young
advocate who sought glory as the lords sought profit. It was Grotius,
who at that time was only twenty-one years old, but had for four years
practised the profession of law and had already attracted attention at
the bar. Nevertheless he was not satisfied. He envied the lot of his
friend Heinsius, Professor at the University of Leyden, although he
was but three years older than the young Grotius who found himself
condemned to waste his time with the trials of others.

In a letter of June 21, 1603, exactly a year before the arrival of
the prize and the case it occasioned, the young advocate wrote
harshly of his profession. Cases, he said, required a great deal of time
and trouble; they inconvenienced those who loved to study, like
these two serious young men, and besides, they brought neither
gratitude nor glory. Grotius was sure that the labours of an advocate
were not worth the candle.

He admitted that he had made progress at the bar, thanks to
several cases which turned out well, and the poor young man was
worrying because each day he had less and less time. That is to say,
he was making such progress at the bar that he did not have enough
time at his disposal to devote to classical studies. As very often
happens, he succeeded despite his regrets.? '

Exactly four years from the date of this doleful letter, Grotius
was appointed Fiscal Advocate, that is to say, Attorney-General, of

1 Regarding the value of the experience which Grotius had had at the bar, Professor Fruin ‘.. . His
activity as advocate was not lost to junsprudence. A man like de Groot could not occupy himself with
any branch of knowledge without shedding light on it... . Trained in the school of antiquity, used to
logical method, and himself of an excellently systematic turn, he already mentally classified the
subject-matter which in the dungeon of Loevestei he was to expose in such a masterly manner in his
Introduction to Dutch Jurtsprudence. In later years he prided himself on having been the first to make
known to the Dutch bar that junsprudence, “ that knowledge of things divine and human, that art of
the equitable and the good, whose leaders are reason and the revelation of God, whose companions are all
the sciences’, in all 1ts extent and its excellence’ (09. ctt., pp. 38-9).

XVII Introduction

Holland, and by his Introduction to Dutch Furisprudence, written later,
in prison, when he had but few books at his disposal, he so clearly
demonstrated his mastery of the knowledge of the law of his country,
that this book, still justly celebrated in Holland, is even now the basis
of jurisprudence in South Africa, colonized, as we know, by his
compatriots. After prolonged research and a profound analysis
of the cases and the labours of Grotius in connexion with them,
Professor Fruin is of the opinion that he was certainly the advocate
of the victorious claimant in the prize case of 1604. There is a most
interesting passage in his masterly essay* on the unpublished work of
Grotius called the Commentary, in which Fruin says :

We may imagine how happy a man like him must have felt as often as a case cropped
up in his practice that could not be decided according to the common routine, but had
to be settled in conformity with the higher principles of law. With joy he then consulted.
his favourite authors, the Roman lawyers and their worthy rivals of later times, the
philosophers and even the theologians, and he meditated on what he had read and used it,
but as the material which only in his hands became fit for the purpose proposed. Such
a question of law now presented itself when the admiral of the East India Company
captured the Portuguese ship. An ordinary practising lawyer was not able to answer it
fundamentally fully. The laws of war and the law of nations had to be applied, and what
barrister had ever heard of those laws? Most of them did not even know from what
sources they sprang. De Groot, who was not twenty-one years old, was among all his
colleagues probably the only one who knew how to tackle such a case, whence he had to
borrow the principles of law which must guide him in deciding. If my conjecture is
correct, and the Company entrusted the conduct of the lawsuit to him, they could not
have been more fortunate in their choice.

The learned professor thinks that it would not have been neces-
sary to prove Grotius’s connexion with the case by indirect means,
if the documents concerning it had not been burned in a fire. Not
only were the files of the advocates who pleaded the case destroyed,
but the award itself did not survive the disaster. Nevertheless the
case was so celebrated that the Germans, who have a keen eye for
international affairs, were interested in 1t to such an extent that they
procured the documents, including the award. From this award,
preserved by their care, the contentions of the victors are known to us
and they are the same as those discussed by Grotius in his Commentary.
It may be, as Professor Fruin says, that their similarity can be
explained by the simple fact that Grotius knew the award, but he
adds * that Grotius
was not the man to merely repeat what others had demonstrated before him. I am more
inclined to surmise that he served the company in its lawsuit as a barrister, and that he

himself was the drafter or one of the drafters of the written demands about which the
sentence was pronounced.

If the great Dutch historian is right, the ambition of Grotius was

1 OD. Cit., P. 39s 2 Op. ctl, Ps 25.

Introduction X1X

satishied. He had already found in this celebrated case the glory
which more modest clients failed to bring. Grotius was, however,
very difficult to satisfy. He had insatiable ambition ; he wished to
achieve distinction as a statesman, and he tried to rival the great
ministers of his time. He composed verses, especially in Latin, as
was then the mode. He was a theologian, and was so eager to unite
the sects to the Church universal that even in our day it is disputed
whether he was Protestant or Catholic at heart. We may be sure
that he made use of the celebrated case from a literary point of view,
just as he put to profit his literary taste and even his religious senti-
ments. The interests of the Company were in accord with the
ambitions of the advocate to connect his name for ever with an
international incident. The Dutch merchants had decided to send
their vessels to the East Indies. The first vessel to journey to the
promised land returned with more experience than profit, but it
brought the welcome news of the feebleness of the Portuguese.
Therefore the merchants of Holland zealously organized the Com-
panies for the great adventure. As competition would injure them,
they were combined into one great East India Company. To make
money was agreeable enough, but to make war was a very different
matter ; it was over costly. They were obliged to be armed to
defend themselves against the Portuguese ; they were obliged to be
armed still more in order to capture them. And it was exactly at
this point, as often happens elsewhere, that moral scruples cropped up.

Among the Protestants composing the great Company, there
were some Mennonites and members of other peace-loving bodies
whom it is customary to style Anabaptists. It cannot be doubted
that their members were sincere in their opposition to war, but it
seems to be human nature to protest more strongly when the pocket-
book is affected. The expenses necessary to arm ships diminished by
just so much the profits of trade, which requires an atmosphere of
peace in order to bear fruit.

At the outset merchant vessels were authorized to defend them-
selves against attack. Later the States-~General authorized the
Company to make captures. This was privateering. Now the capture
which gave rise to the case which has been described was made before
the authorization given by the States-General to engage in hostilities.
The judgement of the Prize Commission in favour of the Company
justified the capture of the ship. The Anabaptists were shocked, as
they were opposed to the use of force, and the authorization given by
the States-General determined them to withdraw from a Company
which evidently would not hesitate, either in its own interest or in
that of the State, to wage war against the Portuguese in the East
Indies. This could not be helped. If it was desired that the trade

XX Introduction

be continued, what was to be done? The chief among the Ana-
baptists set the example. He sold his stock, withdrew from the
Company, of which he was a director, and attempted to gain profit
from a peaceable trade in the same countries.

As there had been some thought of organizing an East India
Company in France under the patronage of the same Henry IV, who,
as we already have seen, had a liking for oriental gifts, one Peter
Lijntgens, the director in question, saw in this a double protection :
the Dutch Company would have the better of the Portuguese, if
they had any idea of attacking the Dutch enterprise ; and his Com-
pany, being organized in France, would be able, so he hoped, to trade
peacably in oriental waters, since France was at peace with Portugal
and its suzerain Spain.

But the Dutch were prudent. Oldenbarneveldt, at that time
Grand Pensionary of the Netherlands, intervened, it seems, in an
underhand way, and Henry IV died in 1610 without the Company
being organized. Thereafter there was no reason for establishing
the French Company, for on April the gth of the preceding year,
through the good offices of France, a’ truce of twelve years had been
signed between the Netherlands and Spain, and of course Portugal,
recognizing the right of the Dutch in the coveted waters, a truce
which was transformed at length into formal peace. But at the time
of the judgement the future could not be foreseen, and the United
Company of Holland wished to be protected in every way against
the unknown.

Here again we find Grotius.

Engaged in the prize case, he set himself immediately after the
judgement to write a defence of the Company, which he finished in the
spring of 1605. ‘This is the Commentary én the Law of Prize, written
in the interest if not at the direct suggestion of the Company. He
wrote it rapidly, for two years had not elapsed between the arrival
of the prize in the Dutch roadstead and the termination of the
Commentary. ‘There was exactly the same period of time between the
beginning and the finishing of the Law of War and of Peace, and for
the same reason. For the preparation of the Commentary, it seems
that he had his memoranda made as advocate, the judgement rendered
by the Prize Commission, and the documents of the Company. For
the composition of his masterpiece a score of years later, he had at
his disposal the Commentary, and, as Professor Fruin points out, the
argumentative part alone of the Commentary furnished him half of
the famous treatise. To justify the Company and pacify the Ana-
baptists it was necessary to prove that war was not opposed to the
Christian religion, and that it was permitted to Christians to make
what was called a ‘just war’. Besides it was necessary to prove that

Inivoduciion Xxl

a private company could make private war in its own defence before
it had been converted into a public war. This was the double task of
Grotius ; he succeeded so well and to his own satisfaction that he has
likewise justified private war as well as public war in his great treatise.
We are permitted to think, therefore, that the advocate of 1604 was
practising his profession when he addressed himself some eighteen
years afterwards to the composition of the elaborate treatise.

We are obliged to conjecture why Grotius did not publish the
Commentary, as he himself gives no reason. There may have been
several reasons. One might be that after all, since the Anabaptists
had been unable to create a great French Company owing to the
intervention of the Dutch authorities, it was not necessary to ‘ con-
vince’ them, for they had not succeeded in creating competition.
Another reason might be that the business of the Company was
prospering and that the losses did not materialize which had been
anticipated. Business and profits continued. The capture of the
Portuguese ships was a patriotic work and public opinion approved it.

Professor Fruin thinks that there was something in the character
of the Dutch impelling them to attend to their business and to keep
silence. He points out a passage of a letter from Grotius to his
brother, written later: ‘I am curious to know whether the Dutch
will defend themselves in silence while keeping what they have
acquired, or whether they will try to justify themselves.’ ‘This
passage is laconically commented upon by his fellow-countryman
Fruin. It was more simple to do what was possible than to prove
what was permissible. ‘T’o use the diplomatic phrase, ‘ we bow before
the accomplished fact.’

But the Company had not finished with Grotius, although it
was decided not to publish his Commentary. ‘The Anabaptists were
silent, but they still had influence. There was under negotiation
a treaty of peace with the enemy, and Spain did not wish to recognize
in the Dutch the right of navigation and commerce in the oriental
waters. The Company feared that public opinion would prefer to
sacrifice the individual interest of the Company rather than give
up peace.

Their rights were defended in published pamphlets, and again
recourse was had to Grotius. The Company asked him in a letter
of November 4, 1608, to detach Chapter XII of his Commentary, and,
after making the changes necessary for its separate publication, to
give it to the public. The young advocate, who had then retired from
the bar and was Attorney-General of Holland, was persuaded to do so.
He worked rapidly in order that the chapter, now christened Mare
Liberum, might make its appearance in time. It seems probable that
it was published in the month of March 1609. His great treatise made

XXil Introduction

Its first appearance likewise in the month of March, sixteen years
later. Grotius asserts that this little work, which did not bear his
name on its first appearance, confirmed public opinion and influenced
the Spaniards to renounce their illegal claims. And perhaps Grotius
knew better than his critics, who are of the contrary opinion. In any
event, a part of the Commentary was published. Grotius knew very
well, although the world at large did not suspect until the publication
of the Commentary on the Law of Prize in 1868, the connexion between
the Mare Liberum and the Commentary, and that between the Com-
mentary and its amplification which is called the Law of War and Peace
of 1625. It may well be that the publication of a fragment of the
Commentary created in Grotius a desire to publish it in its entirety. But
in its existing state that was impossible. The war with Spain had
terminated, and the denunciation of the Portuguese was better suited to
a pleading than to a scientific work. The first, or theoretical part, of
the Commentary remained intact. The third part concerning the liberty
of commerce on the high seas had been published, and the second or
historical part could not be made use of as it was. The anonymous
author therefore waited for a more propitious moment, although the
Company on September 16, 1612, had under consideration : ‘ whether
it would not be well to have revised, for the honour and glory of the
Company and of the country, the history of the trade with the East
Indies by the Fiscal Advocate Grotius or some other expert; and
have this history printed at an opportune time.’

Professor Fruin thinks that Grotius was behind this resolution,
and indeed that it was he who had suggested it. The Company post-
poned its decision because of the need of more information concerning
the East Indies. Grotius was, it would seem, too much occupied with
public duties to undertake this work. He had become the associate
of the Grand Pensionary Oldenbarneveldt. Three years after the
proposed history, he himself became the first magistrate of Rotterdam,
and the necessary time was wanting. Moreover, even if his profes-
sional occupations had left him time to do so, he no longer had
the inclination. The great quarrel between the Arminianists, as the
liberal Calvinists were called after the name of their chief, and the
Gomarists, or uncompromising Calvinists, had broken out.

Oldenbarneveldt and Grotius belonged to the moderate party.
The public took the side of the conservatives, accepting unreservedly
the doctrine of predestination, and Prince Maurice the Stadtholder
attached himself to the popular party, finding there a good pretext
for getting control of the Government and getting rid of Oldenbarne-
veldt and his followers, the Barneveldt who had aided his father
William, Prince of Orange, and who had completed the work of the
great silent statesman by securing the recognition of the independence

Introduction XX

of his country. Oldenbarneveldt was brought before a picked com-
mission, condemned to death, and executed on May 13,1619. Grotius,
then the understudy of the great statesman, was likewise brought
before this illegal commission and sentenced to what they were
pleased to consider a living death: perpetual detention in the fortress
of Loevestein. This took place on May the 18th. Through the intelli-
gence and heroism of his wife, Grotius escaped on March 22, 1621,
reached France, and there began and finished the composition of the
three books On the Law of War and Peace.

In the month of November 1622 he was beginning to gather
some books ‘ ad aliquid de jure commentandum’, and as Professor Fruin
aptly says, this alzguid was nothing else than the plan of his master-
plece. He set himself seriously to work in April of the following year,
and two years later the first systematic treatise on the law of nations
was finished. Up to the publication of the Commentary in 1868 it
could not be satisfactorily explained how Grotius had been able to
write within a couple of years a systematic treatise On the Law of War
and Peace. As a very young man he was considered a prodigy ; but
he would have better deserved that reputation if he had been able
to begin and complete this great volume, while in exile far from his
books, in the space of two years. The discovery of the manuscript
of the Commentary and its publication in 1868 explain the miracle.
We now know that Grotius devoted himself professionally in a great
degree to international law during a certain number of years. His
correspondence shows that, even after he withdrew from the bar and
had given up the practice of his profession, he meditated upon the
subject-matter of the Commentary, and if Professor Fruin is right,
Grotius always had in mind the revision of the theoretical part of
the Commentary and of publishing it separately, as in the case of
Chapter XII, under the title of Mare Liberum, although the original
would need to be modified and greatly enlarged.

In support of this opinion, Professor Fruin states that Grotius
dealt in the same way with a book of his youth which he did not wish
to publish as it stood, and which, by reason of the necessities of his
profession, he had not had time to put into a more suitable shape.’

There is not lacking evidence that Grotius always had in mind
aliquid concerning the law of nature and of nations, and perhaps
concerning international law. In this connexion Professor C. van
Vollenhoven takes the place of guide, instead of Professor Fruin, in
the admirable series of observations which he made in 1924 On the

1 ‘ About the same time, it seems, he acted likewise in connection with another product of his
youth, which he had kept in his desk for years and probably had not even finished, the often quoted
companson of commonwealths: Parallelon Rerum Publicarum libri tres. ... The famous Antquitas
Reipublicae Batavae, which saw the light in 16r0, is nothing but a separate and possibly a somewhat
altered edition of the second book of these Parallela’ (Fruin, op. czt., p. 46).

XX1V Introduction

Genesis of De Fure Belli ac Pacts in a communication to the Royal
Academy of Sciences of the Netherlands, and which he had the happy
idea of publishing in a separate reprint.’

In a letter of 1614 to his younger brother William, who was
taking up the study of law, written from Rotterdam where Grotius
was himself Pensionary, the elder begged the younger to read carefully
and to note in the margin passages concerning the natural law and the
law of nations.

The following year Grotius wrote, still from Rotterdam, to his
great friend du Maurier, then Ambassador of France to the Nether-
lands, a letter giving advice as to studies in law and especially the law
of nations.

At the same time he wrote again to his brother giving him certain
outlines on the subject of natural law and the law of nations, and in
the autumn of the same year he wrote him still again on the same
subject. The following year, that is in 1616, the last year of his
brother’s course as a student at the University of Leyden, he wrote
again and mentioned anew, among other subjects, civil law and the
law of nations. ‘The Loevestein incident took place in 1619, and it
would have put an end to such considerations had Grotius been an
ordinary man. Happily for the world, he was not an ordinary man.
We know from a letter written from Paris in 1623, still to his brother
William, that he managed to procure in prison and to read the De Fure
Bells and the Advocatio Hispanica of Gentilis.

Even before undertaking the composition of the great book he
occupied himself with public law, as we gather from a letter to the
brother of that noble woman who preserved him for us and for
International law.

It has already been remarked that Grotius wrote in prison the
Introduction to Dutch Furisprudence. He was thus obliged again to
consider natural law in its relation to the civil law of a country, his
own.” As has already been suggested, it was appropriate that he
should complete his studies in law by the application of natural law
to nations, especially if we think of the Commentary, the first part of
which treats precisely of this law. In doing this he gave to the world
a treatise of the law of nations, which Professor Fruin assures us had
always been his intention.

We should nevertheless consider the foundation of the opinion
current before the publication of the Commentary, that it was Peiresc

* Amsterdam, 1924. See pp. 1~5 for the views of van Vollenhoven, and pp. 15-19 for the corre-
spondence of Grotius ; pp. 19-20 for two letters of Grotius to Peiresc and the letter of Perresc himself
regarding the De Jure Bell: and the De Jure Gentzum.

* See The Introduction to Dutch Jurisprudence of Hugo Grotius, now first rendered into English
by Charles Herbert (London, 1845), Book I, chap. i, sect. v, vi, vii, x ; chap. ii, sect. 1, 1v, v vi vill
1X, X, X1, Xi, xui, xiv.

Introduction XXV

who suggested to Grotius the composition of the famous treatise
On the Law of War and Peace, the French Maecenas of his time, ‘ one
of the glories of Aix-en-Provence’ called by Bayle ‘ procurator of the
Republic of Letters ’, the friend of Malherbe, of Rubens, of Saumaise,
of Galileo, of Gassendi. .. between the times when he collected medals,
pictures, antique statues, gathered together one of the finest libraries
of books and manuscripts, and corresponded with every one then
considered by the world to be savants and men of letters.1 Two
letters of Grotius are brought to the support of this opinion, but they
are not of great value when considered in connexion with the Com-
mentary, whose existence was not suspected for two and a half cen-
turies, and placed against the letters which preceded them.

The first of these letters is dated January 11, 1624: ‘I am con-
tinuing the work on the law of nations ; and if it proves to be such as
to deserve readers, posterity will have something which it will owe to
you, who summoned me to this labour by your assistance and
encouragement.’

It may be remarked that Grotius had not finished his treatise at
this date. When he had ended it, he sent to the noble gentleman a
copy of the book on war and peace, excusing himself for not sending
him ‘ Carmina’ as the poet would say, and availing himself of the
occasion to say that it was thanks to Peiresc that he had written the
book. Compliments were the order of the day in the seventeenth
century.

In the absence of the correspondence, still unpublished, between
the Maecenas and his ‘ poet’ from the years 1621 to 1625, it is the
part of prudence not to express any opinion on its contents.

In the meantime there is a letter from Peiresc, dated July 16,
1624, and addressed to another friend of Grotius, which explains the
relations between them :

I am greatly rejoiced to learn that Grotius has finished his treatise De Fure Belli.
This will be a great step toward the greater work De Fure Gentium which he promised,
and which consists more in that than in anything else. I beg you to remember me to
him and have him make clear that point, namely whether it is included therein, or whether
he will undertake the rest.

Several observations of a technical nature are necessary in order
properly to understand the import of this letter. In November 1622
Grotius commenced to procure books for his great undertaking, but
it was not until April of the following year that he got to work,
apparently after having obtained elsewhere the books of Ayala and
Gentilis he had requested of his brother. According to what he
himself told Peiresc, he worked slowly at first. But in the month

1 Emile Hennot, in Le Temps, September 1, 1925.

XXV1 Introduction

of June 1624 he had made so much-progress that his nephew, who
lived with him, was already helping him with the copying. The task
was almost finished. Peiresc said that Grotius had finished his treatise
De Fure Belli in the month of July. Grotius had written to his father,
on March 31, 1623, when he was revising his notes, that he intended
to give his attention ad juris opus aliquod, and he thought first of
De Fure Belli. It is quite possible that Peiresc knew better than the
critics the nature of the work.

In any event he evidently considered as we do that war formed
the nucleus of such a work, and that Grotius intended to make of it
a treatise on the law of nations, adding what was necessary to the part
concerning the law of war.

It may be admitted that the part concerning peace is, so to speak,
interpolated in the text, and that it has more the air of an intruder
than of an integral part of a project completely conceived in advance.
It appears reasonable to believe that Grotius perfected the part which
concerns war, which was before his eyes, and which was, according to
him, the raison @’étre of the treatise.

Peiresc could easily have encouraged Grotius without having
suggested the subject to him, and indeed without even knowing just
how much progress he had made at a given time."

A savant like Professor Fruin insists upon the resemblance, with
regard to subject-matter, between the part devoted to war, the most
important of the treatise, and the first part of the Commentary. As
Grotius had the text of the Commentary before his eyes, it is natural
that he should enlarge it for inclusion in the new project. It remained
for him only to add the sections lacking in the Commentary, forming
almost all the second book of the treatise.

If Grotius had the manuscript of the Commentary before him
when he commenced the revision of what was to become an indepen-
dent work, it is evident that he worked rapidly after going over the
Commentary to enlarge and add to it, in order to make of it a fairly
complete treatise on the law of nations in a period of two years.

To be convinced of the use Grotius made of the work of his youth,
it is only necessary to compare the Commentary on the Law of Prize
with the treatise on international law. Professor Fruin himself made
this comparison in such a way that he may be imitated but never

1 This is the opinion which Professor van Vollenhoven develops in his pamphlet On the Genesis
of De Juve Belli ac Pacts (Grotius, 1625) (Amsterdam, 1924), pp. 4~5: ‘The true appreciation of
Peiresc’s share seems to be given in 1806 by Luden, Grotius’s German biographer (Hugo Grotius nach
seinen Schicksalen und Schriften dargestellt, 1806, p. 190): ‘‘ and the encouragement of the celebrated
Peiresc only advanced his decision to submit to the world the result of his researches.” Hély, in 1875,
also assigns to Peiresc the role of a supporter and promoter only of what sprang from Grotius’s own
ideas and impressions (Eiude sur le drott de la guerre de Grotius, 1875, p. 19): ‘‘ The intervention of the
Councillor of Aix was not wanted at all. The fruit would have ripened without any fostering by other
people (sans culture étrangére).”’’

Introduction XXVI1i

surpassed. It would be better to cite him and to give a résumé of the
analysis which he has made of the relationship of these two books to
each other, an analysis which has become an authority and which will,
no doubt, remain a classic.

Professor Fruin states that Grotius ‘ found nothing essential’ to
modify in his Commentary when, after a lapse of twenty years, ‘ he
undertook to transform his legal arguments into a manual on inter-
national law’. And the professor adds that Grotius could utilize in
the treatise everything found in the Commentary. He seems perfectly
convinced of this, and in support of his statement, ‘I have compared
the two carefully’, he says," ‘and noted the corresponding passages
in the margin of my copy.’ It is to be regretted that we cannot have
this precious copy before our eyes. Unhappily we have not, and in
any event we do not share his opinion when he says that ‘ it would be
too tedious and take too long to enumerate them all’.

But we have the summary of his conclusions: ‘ It may suffice to
assure the reader that nearly all that occurs in the Dogmatica has been
incorporated in the Fus belli ac pacts. All the juridical quotations,
all the passages cited from classical authors of antiquity, and with
which the Jus Praedae 1s ornamented, have been transferred to the
Fus belli” However, this does not mean that they are textually cited.”

In making use of the same ideas, Grotius gives them another form ;
however, they sometimes are copied word for word. And,a thing
even more important, ‘ the legal system of both, which is the essential
part, is identical.’ Fruin ® gives the following proof :

The fundamental notion that waging war is a legal way of claiming under circumstances
in which there is no court of law to pronounce sentence, and that therefore there are
as many and just the same causes of war (fontes belli) as of legal claims—this notion is
common to both books and also all that is inferred from it, especially this important
consequence: that war may also be waged to punish injustice.

But this is not all. Fruin goes so far as to:affirm that the only
difference to be found between the Commentary and the treatise can
be explained by the fact that the author of the latter work was older
and had more experience than when he wrote the former, and that
the older we are the more we reflect before making a pronouncement,
and the less we are sure of ourselves. This is the case with the ‘Fus

1 Op. ct, p. 58.
4 Here is a striking example cited by Fruin (0. c#t., p. 58):

De Jure Praedae, pp. 148, 149: ‘quod dixi De Jure Bell, I, III, chap. vii, § 19: ‘quod
aliis interdum quam militi praedam aut pecuniam = dixi aliis interdum extra milites praedum aut
ex ea redactam concedisolere, id fermeita contigit | pecuniam e praeda redactam concedi solere, id
ut his qui tributum ad bellum contulerant, tan- ferme ita contigit ut his qui tributum ad bellum
tumdem redderetur. Quin et Iudos e manibiis contulerant, tantundem redderetur. Ludos quo-
instructos sub Regibus annotes.’ que ex manubuis interdum instructos notes.’

Such accurate correspondence, however, is only very rarely found.
3 Ob. cit., pp. 58-9.

XXVIL1 Introduction

Belli. The tone is less assured, and in the treatise are to be found
more exceptions to the rule. Of this Fruin gives examples. The
doctrine of freedom of commerce is the same in both books, but to
use the very words of Fruin :

What was passed over in the older is noticed in the later, namely that there is a difference
between the ocean and the sea, between larger and smaller seas, and it is conceded that,
as regards the latter, the freedom of trade and fishery may be limited by treaties and

custom.

It may be added that the young Grotius, like the Romans, extended
natural law to beasts as well as to men, but that the Grotius of the
treatise excluded therefrom ‘ inferior beings’.

Moreover, the difference between the two works may be explained
by their object. The Commentary was an argument to justify the
right of commerce with the Indies and the resort to hostilities incident
to its enjoyment. The treatise, on the contrary, was written in the
interest of justice and of peace, which 1s its ripened fruit.

It is often said that the radical of to-day is the conservative of
to-morrow. In his case the transition was perhaps not so rapid, but
it is certain that Grotius in exile was more conservative than the
Grotius'of 1604, who doubtless expected important positions under the
Government, but had not yet obtained them.

In other words, in the work of his youth he was more a partisan
of liberty, but after filling posts which he lost by an unjust process,
and enduring an arbitrary imprisonment and an unjustified exile, he
became more a partisan of established order. In our days he would

ethaps be considered reactionary, but it is probable that his preference
for established government, for kings and princes, caused his system to
be more readily accepted.

In this regard there 1s a marked difference between the two books.
There is still another which is fundamental and largely responsible
for the permanent influence of the treatise. The Commentary was
a defence of war and an encouragement to hostilities on the part
of a great commercial company ; the treatise, on the contrary, was,
if we may accept the declaration of Grotius, a reasoned protest
against war.

It may be considered that such modifications influenced his
opinions regarding law, but the system of the Commentary as such
remains intact, because both of them form an impersonal juridical
system.

To the support of his thesis of 1604, Grotius invoked his prede-
cessors. To sustain that of 1625, he appealed to the same authorities.
The materials which had entered into the construction of his systematic
edifice were before him. In 1604 he made use of them with the
enthusiasm of youth; in 1625 he was the master architect. The

Introduction XX1X

expressions differ, and there are numerous details in the treatise
which are missing in the Commentary. "The basis is the same and it
endures, and his successors, following in this his own example, made
use of Grotius’s materials for the construction of their own systems.

This is, according to the learned historian Fruin, the literary
history of the masterpiece of Grotius. Better than any one he has
collected the facts and demonstrated the relationship between the
two works, of which he seems to prefer the first.

A good historian, he contents himself with showing how things
happened in accordance with the scientific formula of our day. The
literary origin is doubtless very interesting and would justify the
profound research of the compatriot of Grotius.

Valuable in themselves and for the literature of international law,
Professor Fruin’s investigations are of fundamental importance to
practical international law, to those who see in the very existence of
nations the necessity for a law to regulate their mutual relations, a law
similar to if not identical with domestic law, and in its principles
overleaping national boundaries, but undergoing change in order to
be adapted to the international society which law now controls,
thanks to Grotius, his predecessors and successors.

Professor Fruin’s essay on An Unpublished Work of Grotius also
explains why the dissertations of his predecessors remained, so to
speak, in the background. ‘They meditated in the cloister, taught in
the universities, published systems. Their works have had an indirect
rather than a direct influence, because they did not spring from
international needs. The Commentary of Grotius, on the contrary,
was born of actual practice. The argument of the advocate had
triumphed before the Prize Commission. The Commentary on a
celebrated case has become more than the basis of the first systematic
treatise on international law, the object of which was practical from
a triple point of view. It sought to make clear that there was a law
in time of war to control the actions of belligerents as well as to settle
in a friendly way in time of peace the relations between nations, a text
in which men of affairs could read of the questions most often arising,
the principles according to which they should be decided, the reasons
applicable to a greater or less degree to new problems, and upon which
nations as well as individuals, and even more than they, should always
rely in good faith, in time of war as in time of peace. These are the
words with which Grotius ends his treatise and which Christian
Powers should keep to heart.

To sum up in a word, the first systematic treatise had its birth
in a court of justice ; its principles are developed like the principles
of law; they are studied in the universities of the world; they are
applied in the chancelleries,'in municipal courts of justice, and in our

1569-27

XXX Introduction

day an international court of justice has been established to apply them
to disputes between States in the royal residence of the country of
which Grotius was and remains one of its chiefest glories.

In the month of March 1625 there was put on sale for the first
time a volume which justly has remained celebrated.

It was an international event even in its smallest details. The
volume consists of three parts—De Fure Belli ac Pacis Libri Tres—
which together form the first treatise of the law of nations.

This work, whose international influence has been so great, was
international from its origin. The professional opinion given by its
author in 1604 in a case of capture between Holland and Portugal,
was enlarged to embrace peace as well as war, both of which thence-
forth come under the principles of law.

The work of a Dutchman, the treatise was worked out in France,
written in Latin, the international language of the day, printed in
Paris, which was already a cosmopolitan centre, and exposed for sale
at the fair of Frankfort, a free city of that Confederation of Germanic
Nations which was the Holy Roman Empire.

Grotius lived at a time when the principle of authority no longer
existed, A Dutchman, he emphatically rejected the direct or indirect
authority of the universal empire which we may call the temporal
authority of past centuries. A Protestant, he rejected the direct or
indirect authority of the Universal Church, that is to say religious
authority. He sought earnestly to supplant the old principles of
authority by a new principle, and he found the latter in the natural
law which may be described as the laic and universal authority. It
was based upon fundamental conceptions, and for that reason
universal ones.

The essential elements of his system are as follows. Man is an
animal, but a social animal. It is the theory of Aristotle. Men
associate together and unite in society, and each society, however
small or large, has need of laws for its preservation. Even brigands
have need of justice, as Aristotle remarks. The law must be just.

But man, while an animal, is an intelligent being ; whence it
results that the law must derive its needs from men living in society.
Law is as universal as society ; it conforms to the social nature of man
and to the general needs of society. There is a primitive law such as
that whereby property exists in common. But natural law, to use the
expression of Grotius, can be developed and perfected so as to satisfy
new conditions, and this gives rise to the division of things hitherto
held in common and to the origin of private property. But this
development came about, for the most, part, in the prehistoric period
of humanity.

As man is an intelligent animal, his law is the product of his

Introduction XXX1

primitive intelligence. But man is also a reasonable animal, and law,
even primitive law, has developed under the control of reason. The
instinct of sociability is its origin ; preservation of society is its pur-
pose ; justice is the means and the necessary condition for realizing
this purpose ; reason, the supreme judge of application and even of
intelligence.

For Grotius, the natural law is a rigid system, though susceptible
of modifications.

But man even in society is, as regards his fellows, in a state of
nature. It is necessary to progress beyond it, and it happens in this
way according to Grotius. As a political animal, he is organized into
a body politic. He forms a group with his fellows and from this group
there results a political community, whether small or large. Men
associate together, we may say, involuntarily, because sociability is an
instinct ; they organize groups by agreement, because man is inde-
pendent and in forming a group each member engages to maintain
the group. The result is a political contract, the famous social con-
tract. It is a principle of natural law to conform to the obligations of
the contract, in default of which there is a sanction. We thus find
ourselves face to face with the Grotian state, whether it be small or
large. If the state emigrates, that is to say, leaves its territorial
domain, exists, it persists, because the state is the people organized by
the social contract. The form of the government makes no difference.
The community is sovereign. The people may very well keep the
sovereignty in its hands and exercise it directly by magistrates of its
choice, responsible to it; or the people may yield the sovereignty by
contract to some particular person. In this way a personal sovereign
appears, the prince or the king. But it is a question of domestic
organization, for the state is sovereign from the constitutional point
of view.

According to primitive natural law, men were equal and free, as
having no superior. States, as such, are, according to this same
natural law, free and equal, as having no superior. But, no more than
individuals, can they live in isolation; they are not sufficient unto
themselves ; for their preservation they are impelled to associate.
They are like individuals in the state of nature and the natural law
applies to them as well as to individuals. But this primitive law may
be perfected. How? By contract between the states. The natural
law which imposes itself and the law between the states which is
created by custom, consent, or contract. The promise of states, like
that of an individual, gives rise to an obligation and contractual law,
just as natural law, executes itself. Thus we have the law of nations.

In this way we have, according to Grotius, two great systems of
law: domestic law and the law between states. The first, the law

c2

XXX11 Introduction

proper of the state, is obligatory within; the second, the external
law or law between states, is obligatory between the states. Each of
the two systems can be executed, either within or without, by suitable
means and appropriate agents.

But natural law is in conformity with the divine law, although it
exists of itself and without revelation; and justice exists, without
reference to revelation. God himself cannot change justice, for what
is just remains so regardless of its origin; but as God is just and the
source of all justice, law, when it is revealed to us by God, is just,
and it is to be supposed that He approves human justice, which is in
agreement with divine justice. Thus it is that law, being separated
from ethics, becomes laic but remains obligatory, as if it were of
divine origin.

These are the principles of authority which Grotius sought to
establish and upon which rest both national and international law.
We may discuss the processes ; we cannot reject the result, and this
result is a system of law of nations founded upon domestic law with
modifications suitable to make it applicable to the relations between
equal and independent states.

Louis XIV could well say, ‘I am the State,’ with the approval
of his French subjects. He could not say even with their approval,
‘Tam the community of nations.’

This should be clearly stated. As Grotius was of the opinion
that there was a law which controlled the actions of Governments in
time of war, and that there was a law which regulated the actions
of individuals as well as Governments in time of peace, he was forced
to state, from the technical point of view, the meaning which he
ascribed to the expression ‘right’ in the sense of justice, a moral
quality which attaches to the person and authorizes him to possess
as his own such and such an object. When the moral quality is
perfect, the right 1s called a faculty. In the contrary case it is called
an aptitude.

A perfect right may be maintained even by force, because he
who possesses the faculty has the right to act; but with regard to
aptitude, he does not possess the right to act. However, he possesses
the capacity to receive the right according to his merit or his worth,
from which the right results, and at this moment the right ceases to
be imperfect and becomes perfect.

In other words, the aptitude becomes a faculty. The difference
from the legal point of view is that whoever possesses the faculty can
protect it by all the means of procedure recognized by the state, and
especially by proceedings in a court of justice.

he right creates a duty; the violation of duty, an obligation,
and to fulfil this obligation there exist organs of the state. There is

Introduction XXXill

this right with the sanction of the state. The faculty is the right
in the strict and technical sense with which Grotius cites as an
example the power, either over oneself or over others, ownership
which is the faculty of exacting that which is due. There are two
sorts of faculties. The first is ordinary. It is the right which a person
has to require something from another, a right which exists even
among individuals who are not united in society. The other is an
extraordinary or superior right which belongs to the community
against the persons and property of those who compose it.’

To employ the technical expressions used by Grotius, the faculty
or the perfect right is the object of expletive justice executed or
enforced by courts of justice due to the existence of a perfect right.
The aptitude is the object of attributive justice—the distributive
justice of Aristotle which attributes or distributes rights to persons,
such as liberalities, clemency, inheritances, &c.

Right is therefore synonymous with law or statute, to make use
of the exact language of Grotius:

as a rule of moral actions imposing obligation to what is right. . . for counsels and instruc-
tions of every sort, which enjoin what is honourable indeed but do not impose an
obligation, do not come under the term statute or law.

Whatever conforms to this right is just. To adopt the expression
of Aristotle, there is natural law and voluntary law, a classification
which Grotius considered the best, and these terms are used in the
strict and technical sense of the words as creating an obligation which
can be enforced and not as a counsel which may be followed or not.

Natural law is the rule of right reason which teaches us that an
act is just in so far as it conforms to natural reason, and morally just
or unjust and consequently forbidden or commended by God himself
as the Author of nature. This natural law does not change. God
Himself cannot change the scheme of things so that two and two do
not make four.

The law in conformity with intelligence and the reason of man
cannot be modified. To do so, it would be necessary to change
human nature, which would be equivalent to overthrowing at once
both the law and its object. But if we admit that natural law cannot
be modified, it does not follow that the possessor of right under the
law cannot renounce the consequences of the law. For example,
a particular creditor can release the debtor from payment of his debt ;
the law exists, but renunciation is made only of the execution of the

1 For the analysis of the Grotian system see the paragraphs which Westlake devotes to the work
of Grotius in his Chapters on International Law (Cambridge, 1894), pp. 36-51 of Collected Papers of
John Westlake on Public International Law (Cambridge, 1914). This study of the English savant has
been translated into French by Nys in his Eudes sur les principes du Drott international (Brussels and

Paris, 1895), pp. 40-56.

XXXIV | Introduction

obligation. The renunciation can be made general and we have the
action of creditors who renounce payment from the bankrupt or who
insist upon only a part of that which is due them. In the same way
those who possess property can modify the conditions of tenancy
according to the circumstances of the case. oo

The community, acting in the interest of the whole, as the
individual does for his own account, can, in.a general way, renounce
by law payment of debts after a fixed period of time. It may even
be prescribed that a proprietor loses his right of ownership, after
occupation of his property by one who has no right to it, or what
amounts to the same thing, that the right to this property is acquired
by continued possession during a certain period. The community,
applying always its superior right, can decree a general law which
would release all bankrupt debtors. _ a 7 |

It is equally possible to change, by the intervention of the com-
munity, the relations which exist between the proprietor and his
tenant, by modifying the condition of tenancy. It is possible as well
to reimburse the individual for losses sustained in the interest of the
community and, to use a well-known example, it is possible to impose
on the members of the community a tax equivalent to a confiscation,
in the interest of society. 7 re _

If these acts are in the interest of society, they are just ; if not,
they are termed unjust. Society is organized. in the interest of
individuals. Law finds.its origin in the necessity of self-preservation.
The law must conform to the exigencies of society composed of
intelligent beings and under the control of right reason. Who must
be the judge of it? Society. = = © oe

_. The natural law is proved a priort by showing the conformity of

an act with the right, and a@ posteriori by its general employment,
which demands a common cause or the existence of a law, and Grotius
cites the admirable statement of Tertullian to this effect, that a general
acceptance or acceptance by a great number is tradition rather than
error. Oo _ a.
- Voluntary law finds its origin in the will of free and intelligent
individuals. ‘The principal branch of human.law is the civil law, or
that of a state, which is the body of free persons who are associated
under the protection of law for their well-being.. More extensive
than civil-law is what is called the law of peoples or of nations, or,
as we now prefer to call it, international law, which derives its obliga-
tory force from the will of all the nations or of a considerable number
of them. As with the civil law, it is proved by continued usage and
the testimony of those who are accustomed to its study and usage.
It is, as St. Chrysostom says, ‘the creation of time and custom’.
Arbitrariness is discarded in the relations either among individuals

‘Introduction /XXXV

before their union in a society, or in the society which composes
a state, or even in that larger community of nations which it is
attempted to organize.

Thus it is recognized, to use the language of Grotius himself, that
in such things it is meet for the nature of man, within the limitations of human intelli-
gence, to follow the direction of a well-tempered judgement, being neither led astray by
fear or the allurement of immediate pleasure, nor carried away by rash impulse, . |

To this exercise of judgement belongs moreover the rational allotment to each man,
or to each social group, of those things which are properly theirs... .”

And there is a further “passage of Grotius which i 1s “worthy of note
because applicable to every society, be it great or small, to a state
within itself or to the community of states : |

This maintenance of the social order . . . is the source of law properly so-called. To this
spheré of law belong the abstaining from that which is another’s, the restoration to another
of anything of his which we may have, together with any gain which we may have received

from it ; the obligation to fulfil promises, the making good of a loss incurred through our
fault, and the inflicting of penalties upon men according to their deserts.

The violation of these rights or the refusal to carry out the duties
resulting from them gives rise to courts where suits may be brought
to protect them and a government established to enforce them if
necessary—a process in a state where the members, either by contract
or by tacit consent, are united in a society and have. created. Tegal
remedies for the protection of their rights. .

In a society organized upon solid. bases the individual ; is. con-
sidered to have renounced his right to redress in person the violation
of his rights; the community is superior to him and has power over
him. In such a state of affairs there: are as many suits as there are
violations. of law. But states, despite centuries of effort, remain, one
may say, isolated. They have no superior who can impose recourse
to justice between nations to redress the violation .of their. rights.
Nevertheless it remains true that there. can be as many. controversies
as there are rights and as many suits as there are rights, but. each
state, having no superior, is obliged or authorized to conduct its own
suits. Within a state it is a legal process on account of the juridical
organization. Between states it is a process of force, to the extent
that right. precedes force between the states of the community, of
nations, as between the individuals of.a single state... _

‘The contents of the second book of the treatise of Grotius } is very
surprising, because it. discusses questions relating to domestic law.
The reason is simple, if Grotius’s point of view is accepted and when |
it is remembered that he endeavoured to explain in his treatise’ ‘ the
law. of nature, the law. of nations and the principles of public law” )
or whatever concerns the public government of 4 state. © 9° |

The violation of a principle of national law can give rise to. a suit |

XXXV1 Introduction

and as Grotius assures us in the very first words of his book, imme-
diately after the Prolegomena, that

Controversies among those who are not held together by.a common bond of municipal
law are related either to times of war or to times of peace. Such controversies may arise
among those who have not yet united to form a nation, and those who belong to different

nations, ... |
And it is said in the very first article : |
War, however, is undertaken in order to secure peace, and there is no controversy

which may not give rise to war. In undertaking to treat the law of war, therefore, it will
be in order to treat such controversies, of any and every kind, as are likely to arise.

Thus, according to his conception, Grotius felt obliged to treat
of those matters which could give rise to controversies, since each
violation could be the ground of a suit: ‘the sources from which
wars arise are as numerous as those from which lawsuits spring ; for
where judicial settlement fails, war begins.’ ,

These legitimate causes—we need not consider vain pretexts—
are, according to most authors, three in number: ‘ Defense, recovery
of what belongs to us, and punishment.? Thus war begins a suit
between nations and as litigation within a state cannot be begun
without giving him who has caused the injury the opportunity to
avoid being brought to justice, so war, which replaces the process of
domestic law, should not be resorted to, if the nation violating the
law proposes, as it should do, to submit the question to arbitration
or any other pacific settlement. Co |
_ Ifthe immediate and ostensible object of Grotius was to subject
the conduct of war to the rules of law, his other and less apparent
purpose was to preserve uninterrupted the peace resulting from war.

In short, the principle of authority exists within the state and,
although individuals are equal before the law, the law is superior to
them and applies to the legal controversies arising between them.
But in the absence of a formal engagement, each state remains the
equal of every other. Therefore there is no superior among them,
and as the law of nations is not self-executory. Therefore each state
executes its own right against the state violating it, whence it results
that controversies between nations can be regulated. by force. This
is war, but according to.Grotius it ought not to be undertaken ‘ except
for the enforcement of rights’. It should be carried on ‘ only within
the bounds of law and good faith’; ‘ but in order that wars may be
justified, they must be carried on with not less scrupulousness than
judicial processes are wont to be’, © |

It is quite evident. that according to Grotius. war occurs only for
the want of an organization among states similar to that existing
among individuals, whereby the superior will of the state is imposed
upon its members, who by their free consent engage to bow before

Introduction XXXVI

smammeamamen oT

the law of their own creation. But while awaiting the final victory of
law, there are, he tells us, three means of avoiding war, in consequence
of which ‘ a great many sufferings usually fall upon even innocent
persons ’.

The three methods which were of a kind to prevent in the
future recourse to arms are : first, conferences ; secondly, arbitration ;
and thirdly, lot. He mentions the latter method only in passing,
but it is evident that he would prefer an accidental peace without
bloodshed to an uncertain peace at the price of war.

For the friendly conference between the parties, he invokes the
authority of his friend Cicero ‘ since there are two ways of settling
a difference, the one by argument, the other by force. The former is
characteristic’, it-1s still Cicero speaking, ‘of man, the latter of
brutes’. And still according to Cicero, ‘ We should have recourse’, he

‘tells us, ‘ to the second only when it is not permitted to use the first’

The second is arbitration, that is to say, a compromise at the
hands of arbitrators for those who have not common judges. Grotius
again invokes the authority of antiquity. This time it is Thucydides
who holds ‘it is not lawful to proceed against one who offers arbitra-
tion, just as against a wrongdoer ’.

In a note to the text, Grotius gives approbation to the reply of
the Gepidae to the Lombards: ‘ We are ready to settle our differ-
ences by recourse to an arbitration ; it is wicked violently to assail
those who are willing to abide by the decision of a tribunal.”

The good Christian that he was, Grotius seeks to reinforce his
arguments for the employment of ‘arbitration by examples drawn from
the Holy Scriptures: oo , -

Christian Kings and states are bound to pursue this method of avoiding wars. - Forif
certain arbiters were established both by Jews and by Christians, in order that the sen-
tences of strange judges might be avoided by those of the true faith and this was prescribed
by Paul, how much more should this be done to avoid a far greater disadvantage, that
is, war ?

_” This is the application which Grotias wished t to make of the
‘doctrine of the Gospel to the circumstances of his own time, which
unhappily remain those of our own : | | -

_ It would be advantageous, indeed in a degree necessary, to hold certain conferences of
Christian powers, where those who have no interest at stake may settle the disputes of .

others, and where in fact, steps may be taken to compel parties to accept peace on fair
terms.)

1 There are writers in the international field who claim that Grotius: borrowed the idea of inter-
national conferences just mentioned in the text from the Nouveau Cynée, the work of the'Frenchman,
Emeric Crucée, which appeared i in Paris in 1623 and was reprinted in 1624, one year before the publica-
tion of Grotius’s masterpiece. In this connexion see the analysis of van Vollenhoven, i in his On the
Genesis of De Jure Belli ac Pacis (Grotius, 1625), PP. 5 5-12, |

The opinion of this Dutch savant is that the ‘ desire to advocate conferences to avoid war was’, "
as he puts it, ‘in the air’, and if it is necessary to furnish an authority for Grotius it is rather the work 7

XXXVI | Inivoduction

It is to be noticed that the difference must be arranged through
disinterested parties, or rather by parties interested, for all powers
are or should be interested in the preservation of peace as well as the
powers in controversy, who, being present at the assembly, can state
and defend their point of view to the others. Grotius does not enter
into details and does not suggest the terms of an arrangement ; but
apparently he thought that the powers in dispute could be constrained
to accept the judgement of the conference. One naturally wonders
if the preponderance of material power can impose the arrangement
and make it accepted. Only the future can tell. ee

The system of international conference has been tried and has
produced excellent results. To content ourselves with recent ex-
amples, the two Peace Conferences held at The Hague may be cited,
and also the series of conferences of the American Republics. ‘They
are all a homage to the wisdom and foresight of Grotius.

- Unfortunately, it happens only too often that a conference has
been called at the end of a war to determine the conditions of peace.
But nations might and should confer before the war, inasmuch as they
are later obliged to do so. Should they come.together before the war,
it is reasonable to suppose that there-would not be so many after-war
conferences. a Be

- Tt is easy to see that Grotius'was an. advocate versed in active
practice and a jurist to such an extent that he identified causes of
action that. might arise between individuals within a state with those
that might happen in the international relations between states. He
was not an advocate in the prize case for nothing, and, in this con-
troversy between states before a Prize Commission, he pointed out
the dawn .of-:a system of organization among states which would
substitute a court for war, legal: procedure for an act of hostility, and
the decision of a judge for the arbitrament of force. SO

We cannot say that Grotius would not have thought of the
relations between nations from the legal point of view if he had not
been an advocate; but because of his legal training we see how
natural it was for him to seek to apply to all nations the method of
settlement through a process which could terminate the controversy
‘between two states. For him this method was judicial procedure. ©
. He has laid down the principles of law which the wisdom of nations
should complete. ‘The advocate can play a beneficent role in the
betterment of the world. |

But: Grotius was not a pacifist, either within or without the
state. As an ‘advocate he was peace-loving, preferring the solution of
_ of Luis Molina, a member of the Society of Jesus, who published his De Justitia at Jure in 1614, in
which a suggestion is found that might have served as an inspiration to Grotius. For the text of this
passage see van Vollenhoven, o>. ¢1z., p. 24, Appendix E.. | Fe _ be,

Introduction XXX1X

every difference by the application of the rules of law. He even said
that the great Richelieu hated him ‘ for the sole reason that I loved
peace ’, and in an intimate letter to his brother, dated May 4, 1641:
‘But if Christian princes listened to my warnings, there would be
no more’ war among them ; they. would prefer to abandon some of
their right or to choose upright arbitrators.’

It is difficult to put a value on the direct influence of Grotius ; ;
it is impossible to trace his indirect influence. There is an example :
of the latter which deserves to be recalled.

There was a young man whose name was John Jay, a descendant
of an American Huguenot family which, in order to escape the perse-
cution following the revocation of the Edict of Nantes, took refuge
in the New World.

Born in the English colony of New York i in 1745, he studied at
King’s College, now become the great Columbia University. On
graduating at the head of his class he delivered, as is the custom in the
United States, a’ formal address, and he chose for his subject: ‘ The
Advantages of Peace’... As he was destined for the bar, his teacher,
one of the most eminent lawyers of the time, advised him to devote
himself to the reading of the treatise. of Grotius as the best intro-
duction to the study and, eventually, to the practice of law. He
spent a full year on the work, |
He became successively Chief Justice of the Supreme Court of
New York, President of the Congress of the Colonies in revolt, and
one of the Commissioners to negotiate at Paris. the Treaty of Peace
with the mother country. After his return to the United States
he became Secretary for Foreign Affairs of the Confederation and in
1785 he recommended the Congress for the first time, in a report
which shows the influence of Grotius, to settle, by a mixed commis-
sion, boundary questions between Great Britain and his own country,
so far as they were not susceptible of arrangement through diplomatic
channels. Congress did not, follow up this step. Later, as Chief
Justice of the Supreme Court of the United States and Secretary of
State ad interim until the return of Jefferson from Paris to take that
post, he advised the first President of the United States, General
George Washington, to submit his report again to the Senate that
the differences between the two countries might be adjusted by
a mixed commission. President Washington added to the report a
statement to the effect that the differences of the United States with
all the nations of the world should be settled i in an amicable way.

~The Senate did not act. |

' As envoy on special mission to Great. Britain, with which the |
situation was then very serious, John Jay concluded on November
19, 1794, the treaty which appropriately bears his name and which |

xl Introduction

submitted to mixed commissions the controversies between the two
contracting parties. 7 |
_ The success of the Commission organized under Article 7 of the
treaty manifested anew the importance of arbitration for the pacific
settlement of the bitterest disputes. In this way arbitration was again
introduced, not only in Great Britain, but also in the modern world.
May the youth of 1925 devote themselves to the study of the
treatise of Grotius, and among. them be found another John Jay.
The great Mirabeau, who maintained that law is the sovereign
of the world and Mars the tyrant, said to the ‘ Batavians ’ on the eve
of the French revolution that Grotius was the eternal honour of their
nation and that ‘the work of his which should forever preserve his
memory, even when it shall have become entirely. useless, is his book
on peace and war, the first treatise ever made to reduce to a system
the most beautiful and most useful of all sciences’, = |
‘This is why we have a law of nations; this it why we shall have
some day peace between nations ; these are the services that Grotiu
rendered to humanity above even the nations.. _ : |
The world of Grotius was small: it consisted of Europe, the
country of Christianity, to the west of the frontier of Poland, and of
Europe which confronted the Ottoman Empire, the home of Islam
ready to profit by the internal religious strife of Christianity. The
Indies were already visited and conquests made;. and America,
beyond the Atlantic, was visited for the purpose of planting colonies.
... The world of our day is large, but Europe still remains its intel-
lectual centre, and it is still France which holds the mandate of
modern civilization ;, America is composed of twenty-one independent
republics and a vast.country which has its own government in the
bosom of the British Empire ; Asia is becoming conscious of its exis-
tence ;. Africa is emerging and Australia reveals itself a continent.
_ All is changed. . ae |
_.The nations are co-operating in the common task of civilization
and they are submitting their individual wills to the rules of one law
of nations. Hugo Grotius, a Dutchman exiled from his own country,
has become a citizen of the world.and an international legislator,
and from The Hague he causes judgement to be passed on the nations
through the Permanent Court of International Justice. |

_, The treatise on the law of nations is living evidence of the fact
that Grotius was a jurist of profound achievements ; and we know
from his earlier life and from. the history of his country that he was
a lawyer in active’ practice and of great repute. The historian
Motley says in his Life and Death of ‘Fobn.of Barneveld, who in his

Introduction xli

old age leaned heavily upon Grotius, that, ‘ At the age of seventeen
he was already an advocate in full practice before the supreme tri-
bunals of The Hague, and when twenty-three years old he was
selected by Prince Maurice from a list of three candidates for the
Important post of Fiscal or Attorney General of Holland.’ } |

But he was not only Attorney-General, he was the Pensionary,
that is Chief Magistrate of Rotterdam, and member of the States of
Holland and of the States-General. We know that he was interested,
and to his detriment, in the religious conflicts of the time ; so that
we have to deal with a lawyer of standing and in active practice, and
the official legal adviser of the Province of Holland. As the Chief
Magistrate of Rotterdam and as member of the States of Holland,
he was deeply immersed in matters of state and in the partisan
politics of the day.

Without dwelling upon his religious activity, the author of the
Commentary and of the treatise on international law was, therefore,
lawyer, statesman, and theologian; and the treatise on the law of
nations is the résult of his eminence in each of these walks of life.
We are dealing with a practical man who, himself, was dealing with
a practical subject which had been the cause of profound study and
reflection on his part, and the outcome of professional activity. The
treatise has held the attention of the world because of these qualities
and of these qualifications ; it is not a theoretical disquisition, although
it is full of theory; it is not a philosophical dissertation, for Grotius
was rather a logician than a philosopher ; it was the amplification of
a professional brief in the light of many years’ experience after the
case was ended. His contemporaries looked upon him as a man of
affairs and as an international lawyer; and Sweden, at that time
sharing with France the domination of the world, appointed him its
Ambassador at the Court of France during the Thirty Years’ War
because of his experience in international law and with international
relations. Indeed, that he wished to be looked upon as a man of
affairs clearly appears in his’ epitaph, which. he wrote himself with his
own hand :

Grotius hic: Hugo est: batavus, captivus et - exsul,
: ‘Legatus regni, Suecia magna, tui.

The immense influence of the treatise of Grotius is doubtless
due to the practical experience which he had had asa lawyer and as
a man of affairs before its final composition.” | | a

1 Vol..ii (New York, 1902), pp. 403-4.

2 Jn the critical biography which W. S. M. Knight has published, in this year of the tercentenary
of the publication of Grotius’s masterpiece, there is a passage expressing in a different and perhaps
‘better way the reason for the pre-eminence of Grotius and the influence of his work: ‘He made of
- Justice the foundation clearly and succinctly such of his system. e. + His detailed. examination of public

xlii Introduction

The writings of the learned on questions of international law are
entitled to respect ; the writings of the learned who have had experi-
ence.are followed by nations. ‘The contentions of nations are fought
out in the chancelleries of the world. "The claim of a nation is trans-
mitted to the Ministry of Foreign Affairs, where it is examined in
the light of its origin and according to the interest of the country.
A principle of law is opposed to defeat the claim by the country against
which it is brought.. Better than principle is the practice of one or
other nation in dispute, and stronger still are the precedents of many
nations, which are likewise the permanent evidence of agreement
‘upon conflicting views. It is the process of the law court on a larger
scale where principle is opposed to principle, and precedent to
precedent. The court is enlightened by the argument of contending
counsel ; in full knowledge of the cause at issue and of the principles
of law advanced as applicable it decides. A judgement is a precedent
because it. has been carefully considered and argued; on the other
hand, a judgement rendered without argument is treated with scant
respect; and judges are wont from the bench to inform counsel who
cite such a judgement as an authority, that it was decided without
the benefit of argument. 9 |

Conceived in the practice of law, born in the law court, and
matured in the study, the treatise on the law of nations has prevailed
and still prevails, because of this extraordinary combination of theory
and practice in. the exposition of ‘a subject in which nations are and
must be interested, if their relations are to be decided by principles
and their practical application, 9

~ Tt is rare that.any man born of woman has a title.to continued
remembrance ; .it is still rarer that he has more than one title; and
certainly there can be few in the annals of history who have more
‘varied and more permanent claims to remembrance than Grotius,
who in his youth was ‘called the ‘ Miracle of Holland.’,* and who has
justified that title before posterity. = =
- Great as are these.titles, he is held in grateful remembrance for
what many have called an incident in a busy life, but which we know
was his very life, his work on the law of nations, which, written at
various times, culminated in the three books on the law of war and
peace. CT
“Tf it is immortality to live in the lives of others, how sure must
the immortality be of him who lived not merely in the lives of those
with whom he came into contact when he was still a thing of flesh
and private law easily recalled to men’s minds the inevitableness of Justice as both root and essence of
that law. Then, almost unconsciously, they are moved on to international law, the law of war and of
peace, as toa development of a similarly constituted law.’ | The Life and Works of Hugo Grottus (London,

(1925)y Pe 210.7 : | oo
+ Bynkershoek calls Grotius:é Méyas in‘his De Dominio Marts, p-: 374.

Introduction xii

and blood, but who survives in the lives of subsequent centuries,
and whose life has influenced nations and bids fair to control their
actions for a period to which we can assign no definite bounds?

His book has become the law of nations of which it was the first
systematic exposition, if, indeed, he is not the father of the system.
Sir James Mackintosh,’ a man of large and varied learning, impres-
sionable and subject to emotion, has said, and truly, of the work of
Grotius, that it ‘is perhaps the most complete that the world has yet
owed, at so early a stage in the progress of any science, to the genius
and learning of one man’. And the judicious Hallam, who was not
prone to exaggeration, and whose views are not coloured by enthu-
siasm, as he was a man of cold and discriminating judgement, may
be considered as pronouncing the judgement of mankind upon
Grotius and his services to international law when he says :

The book may be considered as nearly original, in its general platform, as any work
of man in an advanced stage of civilization and learning can be. It is more so, perhaps,
than those of Montesquieu and Smith. No one had before gone to the foundations of

international law so as to raise a complete and consistent superstructure ; few had handled
even separate parts, or laid down any satisfactory rules concerning it.?

Expressed differently, the views of Mackintosh and Hallam are to
the effect that if everything which Grotius had written, or spoken,
. should pass away, leaving us only the three books On the Law of War
and Peace, he would, indeed, have justified his existence.

It would be exaggeration, but it would be pardonable exag-
geration, to say that his life and his works would alone give to his
country a claim to remembrance, if the waters of oblivion should
threaten it. | |

Perhaps the best comment upon his life and influence is that,
although he gave war first place in the rights and duties of nations,
any man writing to-day would give peace that predominance ; in
other words, the whole standard of thought has been changed, peace
being in conception, and bound to be in fact, the normal state of
things in any system of law; whereas war is at best an abnormal
condition and as such opposed to a settlement of disputes according
to any system of law which is itself derived from justice.

| James Brown Scott.
Tue Hacuz, | |
August 5, 1925,

1 A Discourse on the Study of the Law of Nature and Nations (London, 1835), pp. 20-1...
2 Henry Hallam, Introduction to the Literature of Europe (fourth edition, London, 1847), vol. ii,
P+ 545+ a Oo a | | Oo

TRANSLATORS’ PREFATORY NOTE

Tux invitation to prepare an English translation of the De Fure
Belt ac Pacts by Hugo Grotius was extended to Mr. Kelsey by
Mr. Scott, of the Carnegie Endowment for International Peace, in
June 1918. At that time the opinion was quite general that the
World War would probably last for two years longer; and it was
thought that if the translation could be made ready before the
peace negotiations should begin, the publication would be _ par-
ticularly opportune. ‘T’he invitation was accepted with the condition
that the work might be divided, in order to facilitate progress.

The preparation of the manuscript was well under way when
the Armistice came, and during the subsequent peace negotiations
the undertaking was allowed to lag. Then, too, near the close of
1919, Mr. Kelsey was obliged to go abroad on a scientific mission
which involved an absence of two years from the United States.
Hence the delay in publication, which has now become opportune
by reason of the tercentenary of the first publication of the De
Fure Belli ac Pacis in 1625.

The translation, however, was made from the text of the edition
published in Amsterdam in 1646, because this embodied the last
revision of the author. In making the final draft for the printer,
the translators have consulted the other editions published in the
lifetime of Grotius and have had the advantage of consulting also the
new edition of the text by P. C. Molhuysen, which was published in
Leyden in 1919.

Of the translation it is necessary ‘only to say that the aim has
been to express the thought as Grotius might have expressed it if
he had been writing in English rather than. Latin. ‘The previous
translations into English, French, and German have been utilized ;
the one that has been found most useful is that by P. Pradier-F odéré,
to which an acknowledgement of special obligation is due.

In the division of the work, Mr. Kelsey is responsible for the
translation to the end of Book I and for the final form of the remainder
of the translation, also for the translation of the Commentary on the
Epistle of Paul to Philemon ; Mr. Sanders made the first draft of the
translation for Book II, chapters 1-20, and Book III, chapters 18-25 ; .
Mr. Boak made the first draft of the translation for Book II, chapters
21-6, and Book ITT, chapters I-17. Mr. Reeves revised the entire

. 1569-27 B

xlvi Translators’ Prefatory Note

manuscript with special reference to the choice of the legal terms and
phrases which would most clearly express the concepts of Grotius for
readers of English to-day. Mr. Wright has collaborated in the work
by reading the entire manuscript, by verifying the references in which
the treatise abounds, and by correcting the proofs and preparing
the indexes. Part-of the manuscript was read also by Mr. H. E.
Yntema, and preliminary work on the Index of Authors was done by
James E. Dunlap. oo |
- In the notes as well as the text the titles of many works cited by
Grotius in the Latin form are translated into English. While this
ig contrary to current practice, it was thought that not a few readers
who are unfamiliar with the works themselves would welcome such
translations as suggesting the character of the treatises to which
Grotius referred. In the Index of Authors Cited, at the end of this
volume, the English form of the title is in all cases followed by the
Latin form which Grotius used. SO |
A General Index to the translation appears at the end of this
volume. a _
The translators regret that the scope of the undertaking did
hot permit the addition of foot-notes which should aim to throw
light on Grotius’s use of his sources, and thus to contribute to a better
understanding of his method of work and point of view. Full refer-
ences to the authors and works cited by Grotius will in most cases
be found in the foot-notes in the edition. of ‘the text by Molhuysen ;.
there still remain some references which thus far it has not. been
possible to verify. In this translation corrections of references given
by Grotius, and additional references supplied by the translators,
are set off by brackets. References to the Vulgate have been added
where this differs from the Authorized Version. ee
"The figures in heavy brackets inserted in the text and foot-notes
indicate the beginnings of pages of the edition of 1646, which is
photographically reproduced in Volume I. |
“A few other additions by the translators have been inserted in
brackets. a ae
" ae | ~~ Tue ‘TRANSLATORS.
Universtry or Micuican, Bn |
March 18, 1925.,

[The Title-Page of the Edition of 1646]

HUGO GROTIUS
ON
THE LAW OF WAR AND PEACE
THREE BOOKS

Wherein are set forth the law of nature and of nations
Also the principles of public law

NEW EDITION

With the annotations of the author

Now much enlarged in consequence of his last revision
before his death

Whereto have been added also Notes on

THE EPISTLE OF PAUL TO PHILEMON

a Aral

ee

AMSTERDAM
JOHAN BLAEU
1646

[ui] | HUGO GROTIUS
TO THE MOST CHRISTIAN KING OF FRANCE
AND NAVARRE

LOUIS XIII

Most eminent of Kings: This work presumes to inscribe your
revered name in dedication because of confidence not in itself; nor
in its author, but in its theme. For it has been written on behalf
of justice, a virtue in so distinguishing a manner yours that in con-
sequence, both from your own merits.and from the general recognition
of mankind, you have received a surname truly worthy of so great
a king; you are now everywhere known by the name of Just no less
than that of Louis. To the generals of ancient Rome titles drawn
from the names of conquered peoples, from Crete,. Numidia, Africa,
Asia, and other lands, seemed the height of glory; but how much
more glorious is your title, by which you are designated as an enemy
everywhere, and vanquisher always, not of a nation, or of a person,
but of that which is unjust !

The kings of Egypt thought it a great thing if men could say
of them that one was devoted to his father, another to his mother,
still another to his brothers. But of how slight moment are such
particulars in‘the case of your title, which in its scope embraces not
only such traits but all else that can be conceived as beautiful and
virtuous! You are Just, when-you honour the memory of your
father, a king great beyond characterization, by following in his
footsteps ; [iv] Just, when you train your brother in all possible
ways, but in no way more effectively than by your own example ;
Just, when you arrange marriages of the utmost distinction for your
sisters ;. Just, when you call back to life laws that are on the verge
of burial, and with all your strength set yourself against the trend
of an age which is rushing headlong to destruction ; Just, but at the
same time merciful, when from subjects, whom a lack of knowledge
of your goodness has turned aside from the path of duty, you take
away nothing except the opportunity to do wrong, and when you
offer no violence to souls that hold views different from your own
in matters of religion ; ; Just, and at the same time compassionate,
when by the exercise of your authority you lighten the burdens of
| oppressed peoples and of downcast princes, and do not suffer too

much to be left to Fortune. > |

4 Dedication

Such extraordinary kindness, characteristic of you, and as like
to that of God as the limitations of human nature permit, constrains
me as an individual and on my own behalf to offer to you thanks
even in this public dedication. For just as the heavenly bodies not
only flood the vast expanses of the universe but suffer their force to
descend to each living thing, so you, a most beneficent star upon the
earth, not content to lift up princes and to succour peoples, willed .
to become a protection and solace also to me, who had been badly
treated in my native country.

In order to complete the sum of virtues comprised in justice,
to your acts of a public nature we must add the blamelessness and
purity of your private life, which are worthy to be admired not
alone by men but even by the spirits of heaven. For how many of
the common run of mankind, how many even of [v] those who
have cut themselves off from the world, are found to be as free from
all faults as you are, though you occupy a station in life which is
beset on all sides with innumerable enticements to wrongdoing!
How great a thing it is in the midst of affairs, among the crowd, at
the Court, surrounded by men who set examples of wrongdoing
in so many different ways, to attain to that uprightness of
character which to others, even in seclusion, comes with difficulty,
and often not at all! This truly is to deserve not only the name
of Just but even, while you are still living, that of Saint, which the
unanimous agreement of good men conferred after death upon your
ancestors Charlemagne and Louis?; this is to be in very truth Most
Christian, not merely by a right inhering in your lineage but by
a right inhering in yourself. | oe oe
But while no aspect of justice is foreign to you, that nevertheless
with which the matter of this work is concerned—the principles
underlying war and peace—is in a peculiar sense your province
because you are a king, and further, because you are King of France.
Vast is this realm of yours, which stretches from sea to sea, across
so many prosperous lands so great in extent ; but you possess a king-
dom greater than this, in that you do not covet kingdoms belonging
to others. . It is worthy of your devotion to duty, worthy of your
exalted estate, not to attempt to despoil any one of his rights by force
of arms, not to disturb ancient boundaries; but in war to continue
the work of peace, and not to commence war save with the desire
to end it at the earliest possible moment. | | |
How noble it will be, how glorious, how joyful to your con-
science, when God shall some day summon you to His kingdom,
which alone is better than yours, to be able with boldness [vi] to

| _ [The reference is to Louis LX, who died near Tunis in 1270, while engaged in a Crusade, and
was canonized in 1297; see Appendix, pages 863-4.] 7 Ss

Dedtcation 5

say: ‘ This sword I received from Thee for the defence of justice,
this I give back to Thee guilty of no blood rashly shed, stainless
and innocent.’ Hence it will come to pass that the rules which we
now seek to draw from books will in the future be drawn from your
acts as from a complete and perfect exemplification.

This will be a very great achievement. Yet the peoples of
Christian lands are so bold as to ask of you something further, that,
with the extinction of warfare everywhere, through your initiative
peace may come again, not only to the nations but also to the churches,
and that our time may learn to subject itself to the discipline of that
age 1 which all we who are Christians acknowledge in true and sincere
faith to have been Christian. Our hearts, wearied with strifes, are
encouraged to such a hope by the friendship lately entered into
between you and the King of Great Britain, who is most wise and
singularly devoted to that holy peace; a friendship cemented by
the most auspicious marriage of your sister.” Hard the task is by
reason of partisan passions, fired by hatreds which blaze more fiercely
day by day; but no task except one fraught with difficulty, except
one that all others have given up in despair, is meet for so great
kings.

May the God of Peace, the God of Justice, O just king, O peace-
making king, heap upon your Majesty, which is nearest unto His
own, not only all other blessings but with them also the distinction
of having accomplished this task. MDCXXV.

1 [The period of the Early Church, before there was a division into sects.]
2 [In December 1624 Richelieu arranged a treaty of marriage between Henrietta Maria, sister of

Louis XIII, and Charles, son of James I of England. James died in March 1625. In the following.
June Henrietta came to England and was married to Charles I.

PROLEGOMENA
TO THE THREE BOOKS
ON THE LAW OF WAR AND PEACE

PROLEGOMENA [vii]

I. T'HE municipal law of Rome and of other states has been
treated by many, who have undertaken to elucidate it by means of
commentaries or to reduce it to a convenient digest. That body
of law, however, which is concerned with the mutual relations among
states or rulers of states, whether derived from nature, or established
by divine ordinances, or having its origin in custom and tacit agree-
ment, few have touched upon. Up to the present time no one has
treated it in a comprehensive and systematic manner ; yet the welfare
of mankind demands that this task be accomplished.

2. Cicero justly characterized as of surpassing worth a knowledge
of treaties of alliance, conventions, and understandings of peoples,
kings and foreign nations; a knowledge, in short, of the whole law
of war and peace. And to this knowledge Euripides gives the pre-
ference over an understanding of things divine and human; for he
represents Theoclymenus as being thus addressed :

For you, who know the fate of men and gods,
What is, what shall be, shameful would it be
To know not what is just.

3. Such a work is all the more necessary because in our day,
as in former times, there is no lack of men who view this branch of
law with contempt as having no reality outside of an empty name.
On the lips of men quite generally is the saying of Euphemus, which
Thucydides quotes,’ that in the case of a king or imperial city nothing
is unjust which is expedient. Of like implication is the statement
that for those whom fortune favours might makes right, and that
the administration of a state cannot be carried on without injustice.

Furthermore, the controversies which arise between peoples or
kings generally have Mars as their arbiter. ‘That war is irreconcilable
with all law is a view held not alone by the ignorant populace ;
expressions are often let slip by well-informed and thoughtful men
which lend countenance to such a view. Nothing is more common
than the assertion of antagonism between law and arms. ‘Thus
Ennius says :

Not on grounds of right is battle joined,

But rather with the sword do men
Seek to enforce their claims,

1 [xix] The words are in Book VI [VI. lxxxv]. The same thought is found in Book V [V- lxxxix],
where the Athenians, who at the time of speaking were very powerful, thus address the Melians:
* According to human standards those arrangements are accounted just which are settled when the
necessity on both sides is equal; as for the rest, the more powerful do all they can, the. miore weak
endure.’ ' |

9

[For Bal-
bus, vi.
15]

[Helena,
928 f ]

[In Gel-
lius, xx
r0.]

[Art of
Poetry,
122.]

[Lucan, I
225.]

[Plutarch,
Fort of
Alex.,
3305]
[Apoth ,
202D;
Marius,
Xxxvill=
421 £.]

[An An-
swer to
the Jews,
vil |

[Terence
Eunuch,
I.1. 16 ff]

Io On the Law of War and Peace

Horace, too, describes the savage temper of Achilles in this wise :
Laws, he declares, were not for him ordained ;
By dint of arms he claims all for himself
Another poet depicts another military leader as commencing war
with the words :
Here peace and violated laws I leave behind.

Antigonus when advanced in years ridiculed a man who brought to
him a treatise on justice when he was engaged in besieging cities that
did not belong to him. Marius declared that the din of arms made
it impossible for him to hear the voice of the laws.* Even Pompey,
whose expression of countenance was so mild, dared to say: ‘ When
I am in arms, am I to think of laws ?’?

4. Among Christian writers a similar thought finds frequent
expression. A single quotation from Tertullian may serve in place
of many: ‘Deception, harshness, and injustice are the regular
business of battles.’ They who so think will no doubt wish to con-
front us with this passage in Comedy :

[viii] These things uncertain should you, by reason’s aid,
Try to make certain, no more would you gain
Than if you tried by reason to go mad.

5- Since our discussion concerning law will have been under-
taken in vain if there is no Jaw, in order to open the way for a favour-
able reception of our work and at the same time to fortify it against
attacks, this very serious error must be briefly refuted. In order
that we may not be obliged to deal with a crowd of opponents, let
us assign to them a pleader. And whom should we choose in prefer-
ence to Carneades? For he had attained to so perfect a mastery
of the peculiar tenet of his Academy that he was able to devote the
power of his eloquence to the service of falsehood not less readily
than to that of truth.

Carneades, then, having undertaken to hold a brief against
justice, in particular against that phase of justice with which we are
concerned, was able to muster no argument stronger than this, that,
for reasons of expediency, men imposed upon themselves laws,
which vary according to customs, and among the same peoples often
undergo changes as times change; moreover that there is no law of

_ 3 In Plutarch Lysander displaying his sword says [Apothegms, Lysander, iii=190 8]: ‘He who
is master of this is in the best position to discuss questions relating to boundaries between countries.’

P i the same author Caesar declares (Caesar, xxxv=725 B]: ‘The time for arms 1s not the time
or laws.

_ Similarly Seneca, On Benefits, IV. xxxvini [IV. xxxvii]: ‘At times, especially in time of war,
kings make many grants with their eyes shut. One just man cannot satisfy so many passionate desires
of men in arms; no one can at the same time act the part of a good man and good commander.’

2 This view-point of Pompey in relation to the Mamertines Plutarch expresses thus [Pompey, x =
623 D]: ‘ Will you not stop quoting laws to us who are girt with swords?’ Curtius says in Book IX
[IX. iv. 7]: ‘Even to such a degree does war reverse the laws of nature.’

Prolegomena II

nature, because all creatures, men as well as animals, are impelled
by nature toward ends advantageous to themselves; that, conse-
quently, there is no justice, or, if such there be, it is supreme folly,
since one does violence to his own interests if he consults the advantage
of others.

6. What the philosopher here says, and the poet reaffirms in verse,

And just from unjust Nature cannot know,

must not for one moment be admitted. Man is, to be sure, an
animal, but an animal of a superior kind, much farther removed
from all other animals than the different kinds of animals are from
one another; evidence on this point may be found in the many
traits peculiar to the human species. But among the traits
characteristic of man is an impelling desire for society, that is,
for the social life—not of any and every sort, but peaceful, and
organized according to the measure of his intelligence, with those
who are of his own kind; this social trend the Stoics called ‘ sociable-
ness’.1 Stated as a universal truth, therefore, the assertion that
every animal is impelled by nature to seek only its own good cannot
be conceded.

7. Some of the other animals, in fact, do in a way restrain the
appetency for that which is good for themselves alone, to the advan-
tage, now of their offspring, now of other animals of the same species.”

1 Chrysostom, On Romans, Homily XX XI [Homily V, i, on chap. 1, verse 31]: ‘We men have
by nature a kind of fellowship with men; why not, when even wild beasts in their relation to one
another have something similar ?’

See also the same author, On Ephesians, chap. i [Homily I], where he explains that the seeds of
virtue have been implanted in us by nature. The emperor Marcus Aurelius, a philosopher of parts, said
[V. xvi]: ‘It was long ago made clear that we were born for fellowship. Is it not evident that the
lower exist for the sake of the higher, and the higher for one another’s sake ?’

2 There is an old proverb, ‘ Dogs do not eat the flesh of dogs’. Says Juvenal [Sat. xv. 163, 159]:

Tigress with ravening tigress keeps the peace ;
The wild beast spares its spotted kin.

There is a fine passage of Philo, in his commentary on the Fifth Commandment, which he who
will may read in Greek. As it 1s somewhat long, I shall here quote it only once and in Latin [Philo,
On the Ten Commandmenis, xxiii, in English as follows]:

‘Men, be ye at least imitators of dumb brutes. They, trained through kindness, know how to
repay in turn. Dogs defend our homes; they even suffer death for their masters, if danger has
suddenly come upon them. It is said that shepherd dogs go in advance of their flocks, fighting till
death, if need be, that they may protect the shepherds from hurt. Of things disgraceful is not the
most disgraceful this, that in return of kindness man should be outdone by a dog, the gentlest creature
by the most fierce ?

* But if we fail to draw our proper lesson from the things of earth, let us pass to the realm of
winged creatures that make voyage through the air, that from them we may learn our duty. Aged
storks, unable to fly, stay in their nests. Their offspring fly, so to say, over all lands and seas, seeking
sustenance in all places for their parents; these, in consideration of their age, deservedly enjoy quiet,
abundance, even comforts. And the younger storks console themselves for the irksomeness of their
voyaging [xx] with the consciousness of their discharge of filial duty and the expectation of similar
treatment on the part of their offspring, when they too have grown old. Thus they pay back, at the
time when needed, the debt they owe, returning what they have received; for from others they can-
not obtain sustenance either at the beginning of life, when they are small, or, when they have become
old, at life’s end. From no other teacher than nature herself have they learned to care for the aged,
just as they themselves were cared for when they were young.

‘Should not they who do not take care of their parents have reason to hide themselves for very

[Horace,
Satwes, I.
ui 1r3.]

[Consola-
110n,
608 D.]

12 On the Law of War and Peace

This aspect of their behaviour has its origin, we believe, in some
extrinsic intelligent principle, because with regard to other actions,
which involve no more difficulty than those referred to, a like degree
of intelligence is not manifest in them. The same thing must be
said of children. In children, even before their training has begun,
some disposition to do good to others appears, as Plutarch sagely
observed; thus sympathy for others comes out spontaneously at
that age. The mature man in fact has knowledge which prompts
him to similar actions under similar conditions,’ together with an
impelling desire for society, for the gratification of which he alone
among animals possesses a special instrument, speech. He has also
been endowed with the faculty of knowing and of acting in accordance
with general principles. Whatever accords with that faculty is not
common to all animals, but peculiar to the nature of man.

8. This maintenance of the social order,? which we have roughly
sketched, and which is consonant with human intelligence, is the
source of law properly so called. To this sphere of law belong the
abstaining from that which is another’s,* the restoration to another
of anything of his which we may have, together with any gain which

shame when they hear this—they that neglect those whom alone, or above all others, they ought to
help, especially when by so doing they are not really called upon to give, but merely to return what
they owe? Children have as their own nothing to which their parents do not possess a prior claim ;
their parents have either given them what they have, or have furnished to them the means of
acquisition.’

In regard to the extraordinary care of doves for their young, see Porphyry, On Absiaining from
Animal Food, Book III; concerning the regard of the parrot-fish and lizard-fish for their kind, see
Cassiodorus, [Variae,] XT. xl.

1 Marcus Aurelius, Book IX [ITX. xli]: ‘Man was born to benefit others’; also [ITX. ix]: ‘It
would be easier to find a thing of earth out of relation with the earth than a human being wholly
cut off from human kind’. The same author in Book X [X. ii]: ‘That which has the use of reason
necessarily also craves civic life.’

Nicetas of Chonae [On Isaac Angelus, III. ix]: ‘ Nature has ingrained in us, and implanted in
our souls, a feeling for our kin.’ Add what Augustine says, On Christian Doctrine, III. xiv.

* Seneca, On Benefits, Book IV, chap. xviii: * That the warm feeling of a kindly heart is in
itself desirable you may know from this, that ingratitude 1s something which in itself men ought to
flee from, since nothing so dismembers and destroys the harmonious union of the human race as
does this fault. Upon what other resource, pray tell, can we rely for safety, than mutual aid through
reciprocal services? This alone it is, this interchange of kindnesses, which makes our life well
equipped, and well fortified against sudden attacks.

* Imagine ourselves as isolated individuals, what are we? The prey, the victims of brute beasts—
blood most cheap, and easiest to ravage; for to all other animals strength sufficient for their own
protection has been given. The beasts that are born to wander and to pass segregate lives are
provided with weapons; man is girt round about with weakness. Him no strength of claws or teeth
makes formidable to others. To man [deity] gave two resources, reason and society; exposed as
he was to danger from all other creatures, these resources rendered him the most powerful of all.
Thus he who in isolation could not be the equal of any creature, 1s become the master of the world.

‘It was society which gave to man dominion over all other living creatures; man, born for the
land, society transferred to a sovereignty of a different nature, bidding him exercise dominion
over the sea also. Society has checked the violence of disease, has provided succour for old age,
has given comfort against sorrows. It makes us brave because it can be invoked against Fortune.
Take this away and you will destroy the sense of oneness in the human race, by which life is sustained.
It is, in fact, taken away, if you shall cause that an ungrateful heart is not to be avoided on its own
account.’

8 Porphyry, On Abstaining from Animal Food, Book III [III. xxvi]: ‘ Justice consists in the
abstaining from what belongs to others, and in doing no harm to those who do no harm.’

Prolegomena _ 13

we may have received from it; the obligation to fulfil promises,
the making good of a loss incurred through our fault, and the inflicting
of penalties upon men according to their. deserts.
_ _ 9. From this signification of the word law there has flowed another
and more extended meaning. Since over other animals man has the
advantage of possessing not only a strong bent towards social life,
of which we have spoken, but also a power of discrimination which
enables him to [ix] decide what things are agreeable or harmful
(as to both things present and things to come), and what can. lead to
either alternative: in such things it is meet for the nature of man,
within the limitations of human intelligence, to follow the direction
of a well-tempered judgement, being neither led astray by fear or
the allurement of immediate pleasure, nor carried away by rash impulse.
Whatever is clearly at variance with such judgement is understood
to be contrary also to the law of nature; that is, to the nature of man,
to. To this exercise of judgement belongs moreover the rational
allotment? to each man, or to each social group, of those things
which are properly theirs, in such a way as to give the preference now
to him who is more wise over the less wise, now to a kinsman rather
than to a. stranger, now to a poor man rather than to a man of means,
as. the conduct of each or the nature of the thing suggests. Long
ago the view came to be held by many, that this discriminating
allotment is a part of law, properly and strictly so called ; nevertheless
law, properly defined, has a far different nature, because its essence
lies in leaving to another that which belongs to him, or in fulfilling
our obligations to him. 7
11. What we have been saying would have a. “degree of validity
even if we should concede that which cannot be conceded without
the utmost wickedness, that there is no God, or that the affairs of
men are of no.concern to Him. The very opposite of this view has
been implanted i in us partly by reason, partly by unbroken tradition,
and confirmed by many proofs as well as by miracles attested by. all
‘ages. Hence it follows that we must without exception render
obedience to: God as our Creator, to Whom we owe all that we are
nd have; especially since, in manifold ways, He has shown Himself
supremely good and supremely powerful, so that to those who. obey
Him He-is able to give supremely great. rewards, even rewards that.
are eternal, since He Himself is eternal. ° We. ought, moreover, to
believe that He has willed to give rewards, and all the more should
we cherish sucha belief if He has so promised in plain words; that
He has done this, we Christians believe, convinced. by. the indubitable
assurance of, testimonies. | OO a

aibros ézeats this subject in his first book:On Duties {I. xxx].

Dig. 1.1. 3.

14 On the Law of War and Peace

12. Herein, then, is another source of law besides the source in
nature, that is, the free will of God,? to which beyond all cavil our
reason tells us we must render obedience. But the law of nature of
which we have spoken, comprising alike that which relates to the
social life of man and that which is so called in a larger sense, pro-
ceeding as it does from the essential traits implanted in man, can
nevertheless rightly be attributed to God,? because of His having
willed that such traits exist in us. In this sense, too, Chrysippus
and the Stoics used to say that the origin of law should be sought
in no other source than Jupiter himself; and from the name Jupiter °
the Latin word for law (ius) was probably derived.

13. There is an additional consideration in that, by means of the
laws which He has given, God has made those fundamental traits
more manifest, even to those who possess feebler reasoning powers ;
and He has forbidden us to yield to impulses drawing us in opposite
directions—affecting now our own interest, now the interest of
others—in an effort to control more effectively our more violent
impulses and to restrain them within proper limits.

14. But sacred history, besides enjoining rules of conduct, in
no slight degree reinforces man’s inclination towards sociableness
by teaching that all men are sprung from the same first parents. In
this sense we can rightly affirm also that which Florentinus asserted
from another point of view, that a blood-relationship has been
established among us by nature; consequently it is wrong for a man
to set a snare for a fellow-man. Among mankind generally one’s
parents are as it were divinities,* and to them is owed an obedience
which, if not unlimited, is nevertheless of an altogether special kind.

15. Again, since it is a rule of the law of nature to abide by
pacts (for it was necessary that among men there be some method
of obligating themselves one to another, and no other natural method
can be imagined), out of this source the bodies of municipal law
have arisen. For those who had associated themselves with some

1 [xxi] Hence, in the judgement of Marcus Aurelius, Book IX [IX.1]: ‘He who commits injustice
is guilty of impiety.’

9 Chrysostom, On First Corinthians, xi. 3 [Homily XXVI, iii]: ‘When I say nature I mean
God, for He is the creator of nature.’ Chrysippus in his third book On the Gods [Plutarch, On the
Contradtcitons of the Sioics, ix = Morals, 1035 C]: ‘No other beginning or origin of justice can be
found than in Jupiter and common nature; from that source must the beginning be traced when men
undertake to treat of good and evil.’

5 Unless perhaps it would be more true to say that the Latin word for ‘ right’, tus, is derived,
by process of cutting down, from the word for ‘ command’, sussum, forming tus, genitive tusts, just
as the word for ‘bone’, os, was shortened from ossum; tusts afterwards becoming turis, as Papuirit
was formed from Papzsiz, in regard to which see Cicero, Letters, Book IX. xxi [Ad Fam. IX. xx1. 2].

“ Hierocles, in his commentary on the Golden Verse [rather How parents should be treated, quoted
by Stobaeus, Anthology, tit. xxix. 53], calls parents ‘ gods upon earth’; Philo, On the Ten Command-
ments [chap. xxiii], ‘ Visible gods, who imitate the Unbegotten God in giving life’. Next after the
relationship between God and man comes the relationship between parent and child; Jerome, Letters,
xcii [cxvil, 2]. Parents are the likenesses of gods; Plato, Laws, Book XI [XI. 11]. Honour is due
to parents as to gods; Aristotle, Nzcomachean Ethics, Book IX, chap. ii.

Prolegomena | | 15

group, or had subjected themselves to a man or to men, [x] had.
either expressly promised, or from the nature of the transaction must
be understood impliedly to have promised, that they would conform to
that which should have been determined, in the one case by the majority,
in the other by those upon whom authority had been conferred.

16. What is said, therefore, in accordance with the view not
only of Carneades but also of others, that

Expediency is, as it were, the mother
Of what is just and fair,) |

is not true, if we wish to speak accurately. For the very nature of
man, which even if we had no lack of anything would lead us into
the mutual relations of society, is the mother of the law of nature.
But the mother of municipal law is that obligation which arises from
mutual consent; and since this obligation derives its force from the
law of nature, nature may be considered, so to say, the great-grand-
mother of municipal law.

‘The law of nature nevertheless has the - reinforcement of expe-
diency; for the Author of nature willed that as individuals we should
be weak, and should lack many things needed in order to live pro-
perly, to the end that we might be the more constrained to cultivate
the social life. But expediency afforded an opportunity also for.
municipal law, since that kind of association of which we. have spoken, :
and subjection to authority, have their roots in expediency. From
this it follows that those who prescribe laws for others in so doing
are accustomed to have, or ought to have, some advantage in view. .

- 17, But just as the laws of each state have in view the advan-
tage of that state, so by mutual consent it has become possible that
certain laws should originate as between all states, ora great many
states ; and it is apparent that the laws thus originating had in view.
the advantage, not of particular states, but of the great society of
states. And this is what is called the law of nations, whenever we
distinguish that term from the law of nature.

This division of law Carneades passed over altogether.. For he
divided all law into the law of nature and the law of particular
countries. Nevertheless if undertaking to treat of the body of law:
which is maintained between states—for he added a statement in
regard to war and things acquired by means of war—he would surely
have been obliged to make mention of this law.

18. Wrongly, moreover, does Carneades ridicule justice as folly. 7

od In regard to this passage » Acron, or some other ancient. interpreter of Horace [Sat le ii. ‘o8]: ”
‘ The poet is writing in opposition to the teachings of the Stoics.. He wishes to show ‘that justice does.
not have its origin in nature but is born of expediency.’ “For, “the. "opposite, view ‘see. Augustine: S
argument, On Christian Docirine, Book IIT, schap. XIV. ae .

156927 ¢c

(Horace,
Sattres,
T. ui. 1r1.]

[Republic,
II. 1;
Gorgias,
EXXvii.]

(Plutarch,
Solon, xv.]

Gorgias,
lxxx ]

16 On the Law of War and Peace

For since, by his own admission, the national who in his own country
obeys its laws is not foolish, even though, out of regard for that law,
he may be obliged to forgo certain things advantageous for himself,
so that nation is not foolish which does not press its own advantage
to the point of disregarding the laws common to nations. ‘The
reason in either case is the same. For just as the national, who
violates the law of his country in order to obtain an immediate
advantage,’ breaks down that by which the advantages of himself and
his posterity are for all future time assured, so the state which trans-
gresses the laws of nature and of nations cuts away also the bulwarks
which safeguard its own future peace. Even if no advantage were:
to be contemplated from the keeping of the law, it would be a mark
of wisdom, not of folly, to allow ourselves to be drawn towards that
to which we feel that our nature leads.

19. Wherefore, in general, it is by no means true that

You must confess that laws were framed
From fear of the unjust,?

a thought which in Plato some one explains thus, that laws were
invented from fear of receiving injury, and that men are constrained
by a kind of force to cultivate justice. For that relates only to the
institutions and laws which have been devised to facilitate the enforce-
ment of right; as when many persons in themselves weak, in order
that they might not be overwhelmed by the more powerful, leagued
themselves together to establish tribunals and by combined force
to maintain these, that as a united whole they might prevail against,
those with whom as individuals they could not cope.

And in this sense we may readily admit also the truth of the
saying that right is that which is acceptable to the stronger; so that
we may understand that law fails of its outward effect unless it has
a sanction behind it. In this way Solon accomplished very great
results, as he himself used to declare,

[xi] By joining force and law together,
Under a like bond.

20. Nevertheless law, even though without a sanction, is not
entirely void of effect. For justice brings peace of conscience, while
injustice causes torments and anguish, such as Plato describes, in the
breast of tyrants. Justice is approved, and injustice condemned, by

1 This comparison Marcus Aurelius pertinently uses in Book IX [IX. xxiii]; ‘ Every act of thine
that has no relation, direct or indirect, to the common interest, rends thy life and does not suffer it
to be one; such an act is not less productive of disintegration than he is who creates a dissension
among a people.’ The same author, Book XI [XI. vii]: ‘A man cut off from a single fellow-man
cannot but be considered as out of fellowship with the whole human race.’ In effect, as the same
Antoninus says [VI. liy]: ‘ What is advantageous to the swarm is advantageous to the bee,’

4 As Ovid says [Metamorphoses, VIII. 59]:

Strong is the cause when arms the cause maintain.

Prolegomena 17

the common agreement of good men. But, most important of all,
in God injustice finds an enemy, justice a protector. He reserves His
judgements for the life after this, yet in such a way that He often
causes their effects to become manifest even in this life, as history
teaches by numerous examples.

21. Many hold, in fact, that the standard of justice which they

insist upon in the case of individuals within the state is inapplicable’

to a nation or the ruler of a nation. The reason for the error lies in
this, first of all, that in respect to law they have in view nothing
except the advantage which accrues from it, such advantage being
apparent in the case of citizens who, taken singly, are powerless to
protect themselves. But great states, since they seem to contain in
themselves all things required for the adequate protection of life,
seem not to have need of that virtue which looks toward the outside,
and is called justice.

22. But, not to repeat what I have said, that law is not founded.

on expediency alone, there is no state so powerful that it may not
some time need the help of others outside itself, either for purposes
of trade, or even to ward off the forces of many foreign nations
united against it. In consequence we see that even the most powerful

peoples and sovereigns seek alliances, which are quite devoid of’

significance according to the point of view of those who confine law
within the boundaries of states. Most true is the saying, that all
things are uncertain the moment men depart from law.

23. If no association of men can be maintained without law, as
Aristotle showed by his remarkable illustration drawn from brigands,?
surely also that association which binds together the human race,
or binds many nations together, has need of law; this was perceived
by him who said that shameful deeds ought not to be committed
even for the sake of one’s country. Aristotle takes sharply to task?

1 Chrysostom, On Ephesians, chap. iv [Homily IX, iii]: ‘ But how does it happen, some one
will say, that brigands live on terms of peace? And when? Tell me, I pray. This happens, in
fact, when they are not acting as brigands; for if, in dividing up their loot, they did not observe
the precepts of justice and make an equitable apportionment, you would see them engaged in strifes
and battles among themselves.’

Plutarch [Pyrrhus, ix=388 a] quotes the saying of Pyrrhus, that he would leave his kingdom
to that one of his children who should have the sharpest [xxii] sword, declaring that this has the
same implication as the verse of Euripides in the Phoenician Maidens [line 68]:

That they with gory steel the house divide.

He adds, moreover, the noble sentiment: ‘So inimical to the social order, and ruthless, is the
determination to possess more than is one’s own!’

Cicero, Letters, XI. xvi [dd Fam. IX. xvi. 3]: ‘ All things ‘are uncertain when one departs from
law.’ Polybius, Book IV [IV. xxix. 4]: ‘ This aboveall other causes breaks up the private organiza-
tions of criminals and thieves, that they cease to deal fairly with one another; in fine, that good
faith among them has perished.’ ' ‘

4 Plutarch, Agesilaus [xxxvii=617D]: ‘In their conception of honour the Lacedaemonians
assign the first place to the advantage of their country; they neither know nor learn any other kind
of right than that which they thmk-will advance the interests of Sparta.’

In regard to the same Lacedaemonians the Athenians declared, in Thucydides, Book V [V. cv]:
‘In relations with one another and according to their conception of civil rights they are most strict

C2

[Stobaeus,
x. 50 |

[Cicero,
On Duties,
I xlv.
159.]
[Poltites,
VII. ii.]

[X=p. 132
BC.]

[On the
Affairs

an the
Chersonese,
Vii 29.]

18 On the Law of War and Peace

those who, while unwilling to allow any one to exercise authority
over themselves except in accordance with law, yet are quite indifferent
as to whether foreigners are treated according to law or not.

24. That same Pompey, whom I just now quoted for the opposite
view, corrected the statement which a king of Sparta had made, that
that state is the most fortunate whose boundaries are fixed by spear
and sword ; he declared that that state is truly fortunate which has
justice for its boundary line. On this point he might have invoked
the authority of another king of Sparta, who gave the preference to
justice over bravery in war, using this argument, that bravery ought
to be directed by a kind of justice, but if all men were just they
would have no need for bravery in war.

Bravery itself the Stoics defined as virtue fighting on behalf of
equity. Themistius in his address to Valens argues with eloquence that
kings who measure up to the rule of wisdom make account not only
of the nation which has been committed to them, but of the whole
human race, and that they are, as he himself says, not ‘friends of the
Macedonians’ alone, or ‘ friends of the Romans ’,* but ‘ friends of man-
kind’. The name of Minos* became odious to future ages for no
other reason than this, that he limited his fair-dealing to the boundaries
of his realm.

25. Least of all should that be admitted which some people
imagine, that in war all laws are in abeyance. On the contrary war
ought not to be undertaken except for the enforcement of rights ;
when once undertaken, it should be carried on only within the
bounds of law and good faith. Demosthenes well said that war is
directed against those who cannot be held in check by judicial
processes. For judgements are efficacious against those who feel
that they are too weak to resist; against those who are equally
strong, or think that they are, wars [xii] are undertaken. But in
order that wars may be justified, they must be carried on with not
less scrupulousness than judicial processes are wont to be.

26. Let the laws be silent, then, in the midst of arms, but only
the laws of the State, those that the courts are concerned with, that

in their practice of virtue. But with respect to others, though many considerations bearing upon
the subject might be brought forward, he will state the fact m a word who will say that in their view
what is agreeable is honourable, what is advantageous is just.’

1 Hearing that the king of the Persians was called great, Agesilaus remarked: ‘ Wherein is he
greater than I, if he is not more just?’ The saying is quoted by Plutarch [Apophthegms, Agesilaus,
Ixili = Morals, 213 c].

2 Marcus Aurelius exceedingly well remarks [VI.xliv]: ‘As Antoninus, my city and country are
Rome; as a man, the world.’ Porphyry, On Abstaining from Animal Food, Book III pt. XXVIi] :
“He who is guided by reason keeps himself blameless in relation to his fellow-citizens, likewise also
in relation to strangers and men in general; the more submissive to reason, the more godhke a
man is.’

® In regard to Minos there is a verse of an ancient poet:

Under the yoke of Minos all the island groaned.

On this point see Cyril, Against Julian, Book VI.

Prolegomena 19g

are adapted only to a state of peace; not those other laws, which
are of perpetual validity and suited to all times. It was exceedingly
well said by Dio of Prusa, that between enemies written laws, that
is, laws of particular states, are not in force, but that unwritten
laws* are in force, that is, those which nature prescribes, or the
agreement of nations has established. ‘This is set forth by that ancient
formula of the Romans, ‘I think that those things ought to be
sought by means of a war that is blameless and righteous.’

The ancient Romans, as Varro noted, were slow in under-
taking war, and permitted themselves no licence in that matter,
because they held the view that a war ought not to be waged except
when free from reproach. Camillus said that wars should be carried
on justly no less than bravely; Scipio Africanus, that the Roman
people commenced and ended wars justly. In another passage you
may read: ‘ War has its laws no less than peace.’ Still another
writer admires Fabricius as a great man who maintained his probity
in war—a thing most difficult—and believed that even in relation
to an enemy there is such a thing as wrongdoing.

27. The historians in many a passage reveal how great in war
is the influence of the consciousness that one has justice on his side ; ?
they often attribute victory chiefly to this cause. Hence the proverbs,
that a soldier’s strength is broken or increased by his cause; that he
who has taken up arms unjustly rarely comes back in safety; that

1 Thus King Alphonse, being asked whether he owed a greater debt to books or to arms, said
that from books he had learned both the practice and laws of arms. Plutarch [Camillus, x=134 B] :
‘Among good men certain laws even of war are recognized, and a victory ought not to be striven
for in such a way as not to spurn an advantage arising from wicked and impious actions.’

2 Pompey well says in Appian [Civil Wars, II. vii. al ‘ We ought to trust in the gods and in
the cause of a war which has been undertaken with the honourable and just [xxiii] purpose of
defending the institutions of our country.’ In the same author Cassius [Cie Wars, IV. xi. 97]: ‘In
wars the greatest hope lies in the justice of the cause.’ Josephus, Antiquities of the Jews, Book XV
[XV. v. 3]: ‘God is with those who have right on their side.’

Procopius has a number of passages of similar import. One is in the speech of Belisarius, after
he had started on his expedition to Africa [Vandalic War, I. xii. 21]: ‘ Bravery is not going to give
the victory, unless it has justice as a fellow-soldier.’ Another is in the speech of the same general
before the battle not far from Carthage [I. xii. 19]. A third is in the address of the Lombards
to the Herulians, where the following words, as corrected by me, are found [Gothic War, II. xiv]:
‘We call to witness God, the slightest manifestation of whose power is equal to all human strength.
He, as may well be believed, making account of the causes of war, will give to each side the
outcome of battle which each deserves. This saying was soon afterward confirmed by a wonderful
occurrence.

In the same author Totila thus addresses the Goths [Gothie War, ITI. viii]: ‘ It cannot, it cannot
happen, I say, that they who resort to violence and injustice can win renown in fighting; but as the
life of each is, such the fortune of war that falls to his lot.’ Soon after the taking of Rome Totila
made another speech bearing on the same point [Gothte War, III. xxi].

Agathias, Book II [Histories, II. i]: ‘Injustice and forgetfulness of God are to be shunned
always, and are harmful, above all, in war and in time of battle.’ This statement he elsewhere proves
by the notable illustrations of Darius, Xerxes, and the Athenians in Sicily [H¢stories, II. x]. See also
the speech of Crispinus to the people of Aquileia, in Herodian, Book VIII [Héstories, VIII. iti. 5, 6].

In Thucydides, Book VII [VII. xviii], we find the Lacedaemonians reckoning the disasters which
they had suffered in Pylus and elsewhere as due to themselves, because they had refused a settlement
by arbitration which had been offered them. But as afterward the Athenians, having committed
many wicked deeds, refused arbitration, a hope of greater success in their operations revived in the
Lacedaemonians.

[Ovations,
lxxv1 ]

{Livy, I.
XXxil. 12 ]

[In Non-
ius, XII.]

[Livy,

Vi. XXVil.
6; KXXX.
XV1. 9.]
[V. xxvii.
6.]
[Seneca,
Letters,
cxx. 6.]

{ Johann
Wild]

20 On the Law of War and Peace

hope is the comrade of a good cause; and others of the same
purport.

No one ought to be disturbed, furthermore, by the successful
outcome of unjust enterprises. For it is enough that the fairness of
the cause exerts a certain influence, even a strong influence upon
actions, although the effect of that influence, as happens in human
affairs, is often nullified by the interference of other causes. Even
for winning friendships, of which for many reasons nations as well as
individuals have need, a reputation for having undertaken war not
rashly nor unjustly, and of having waged it in a manner above
reproach, is exceedingly efficacious. No one readily allies himself
with those in whom he believes that there is only a slight regard for
law, for the right, and for good faith.

28. Fully convinced, by the considerations which I have ad-
vanced, that there is a common law among nations, which is valid
alike for war and in war, I have had many and weighty reasons for
undertaking to write upon this subject. Throughout the Christian

world I observed a lack of restraint in relation to war, such as even

barbarous races should be ashamed of; I observed that men rush to
arms for slight causes, or no cause at all, and that when arms have
once been taken up there is no longer any respect for law, divine or
human ; it is as if, in accordance with a general decree, frenzy had

openly been let loose for the committing of all crimes.

29. Confronted with such utter ruthlessness many men, who
are the very furthest from being bad men, have come to the point

‘of forbidding all use of arms to the Christian,’ whose rule of conduct

above everything else comprises the duty of loving all men. To this
opinion sometimes John Ferus and my fellow-countryman Erasmus
seem to incline, men who have the utmost devotion to peace in both
Church and State; but their purpose, as I take it, is, when things
have gone in one direction, to force them in the opposite direction,
as we are accustomed to do, that they may come back to a true middle
ground, But the very effort of pressing too hard in the opposite

direction is often so far from being helpful that it does harm, because

in such arguments the detection of what is extreme is easy, and
results in weakening the influence of other statements which are well
within the bounds of truth. For both extremes therefore a remedy
must be found, that men may not believe either that nothing is
allowable, or that everything is.

30. At the same time through devotion to study in private life
I have wished—as the only course now open to me, undeservedly

1 Tertullian, On the Resurrection of the Flesh [chap. xvi]: ‘The sword which has become blood-
stained honourably in war, and has thus been employed in man-killing of a better sort.’

Prolegomena : QI

forced out from my native land, which had been graced by so many
of my labours—to contribute somewhat to the philosophy of the law,
‘which previously, in public service, I practised with the utmost degree
of probity of which I was capable. [xiii] Many heretofore have
purposed to give to this subject a well-ordered presentation ; no one
‘has succeeded. And in fact such a result cannot be accomplished
-unless—a point which ‘until now has not been sufficiently kept ‘in
-view-—those elements which come from positive law are properly
‘separated from those which arise from nature. For the principles
‘of the law of nature, since they are always the ‘same, can easily be
‘brought into a systematic form; but the elements of positive law,
Since they often undergo change and are different in different places,
-are outside the domain of systematic ‘treatment, just as other notions
of particular things are. ee So 7
- - 31. If now these who have ‘consecrated themselves to true
justice should undertake to treat the parts of the-natural and un-
-changeable: philosophy of law, after having removed all that has its
origin in the free will of man; if one, for example, should treat
legislation, another taxation, another the administration -of justice,
another the determination of motives, another the proving of facts,
.then by assembling all these parts a body of jurisprudence could be
made up. | . | oO SO
32, What procedure we think should be followed we have shown
by deed rather than by words in this work, which treats by far the
noblest part of jurisprudence. - a
~ 33, In-the first book, having by way of introduction spoken of
the origin of law, we have examined the general question, whether
there is any such thing as a just war; then, in order to determine
-the differences between public war and private war, we found it
‘necessary to explain the nature of sovereignty—what nations, what.
‘kings possess complete sovereignty; who ‘possess sovereignty only in
‘part, who with right of alienation, who otherwise; then it was
neceésary to speak also concerning the duty of subjects to their
superiors, ©
-. ..34, The second book, having for its object to set-forth all the
-causes from which war can arise, undertakes to explain fully what
things are held in common, what may be owned in severalty ; what
rights persons have over persons, what obligation arises from owner-
ship; what is -the rule governing royal ‘successions; ‘what right is
established by a ‘pact or a contract; what is the force of treaties ‘of
alliance ;- what of an oath private or public, and how it is ‘necessary
to interpret these ;- what is due-in reparation for damage done ;
in what the inviolability of ambassadors consists; what law controls
the burial of the dead, and what ‘is the nature of punishments.

22 On the Law of War and Peace

35. The third book has for its subject, first, what is permissible
in war. Having distinguished that which is done with impunity, or
even that which among foreign peoples is defended as lawful, from
that which actually is free from fault, it proceeds to the different
kinds of peace, and all compacts relating to war.

36. The undertaking seemed to me all the more worth while
because, as I have said, no one has dealt with the subject-matter as
a whole, and those who have treated portions of it have done so in
a way to leave much to the labours of others. Of the ancient philo-
sophers nothing in this field remains; either of the Greeks, among
whom Aristotle had composed a book with the title Rights of War,
or—what was especially to be desired—of those who gave their
allegiance to the young Christianity. Even the books of the ancient
Romans on fetial law have transmitted to us nothing of them-
selves except the title. ‘Those who have made collections of the
cases which are called ‘cases of conscience’ have merely written
chapters on war, promises, oaths, and reprisals, just as on other
subjects.

37. I have seen also special books on the law of war, some by
theologians, as Franciscus de Victoria, Henry of Gorkum, William
Matthaei ;? others by doctors of law, as John Lupus, Franciscus Arias,
Giovanni da Legnano, Martinus Laudensis. All of these, however, have
said next to nothing upon a most fertile subject ; most of them have
done their work without system, and in such a way as to intermingle
and utterly confuse what belongs to the law of nature, to divine law,
to the law of nations, to civil law, and to the body of law which
is found in the canons.

38. What all these writers especially lacked, the illumination of
history, the very learned [xiv] aur undertook to supply in some
chapters of his Semestria, but in a manner limited by the scope of his
own work, and only through the citation of authorities. The same
thing was attempted on a larger scale, and by referring a great number
of examples to some general statements, by Balthazar Ayala; and
still more fully, by Alberico Gentili. Knowing that others can
derive profit from Gentili’s painstaking, as I acknowledge that I have,
I leave it to his readers to pass judgement on the shortcomings of
his work as regards method of exposition, arrangement of matter,
delimitation of inquiries, and distinctions between the various kinds
of law. This only I shall say, that in treating controversial questions
it is his frequent practice to base his conclusions on a few examples,
which are not in all cases worthy of approval, or even to follow the
opinions of modern jurists, formulated in arguments of which not

1 To these add the work of Joannes de Carthagena, published at Rome in 1609.

Pyrolegomena 23

a few were accommodated to the special interests of clients, not to
the nature of that which is equitable and upright.

The causes which determine the characterization of a war as
lawful or unlawful Ayala did not touch upon. Gentili outlined certain
general classes, in the manner which seemed to him best; but he
did not so much as refer to many topics which have come up in
notable and frequent controversies.

39. We have taken all pains that nothing of this sort escape us ;
and we have also indicated the sources from which conclusions are
drawn, whence it would be an easy matter to verify them, even
if any point has been omitted by us. It remains to explain briefly
with what helps, and with what care, I have attacked this task.

First of all, I have made it my concern to refer the proofs of
things touching the law of nature to certain fundamental conceptions
which are beyond question, so that no one can deny them without
doing violence to himself. For the principles of that law, if only
you pay strict heed to them, are in themselves manifest and clear,
almost as evident as are those things which we perceive by the external
senses; and the senses do not err if the organs of perception are
properly formed and if the other conditions requisite to perception
are present. Thus in his Phoenician Maidens Euripides represents
Polynices, whose cause he makes out to have been manifestly just,
as speaking thus :

Mother, these words, that I have uttered, are not

Inwrapped with indirection, but, firmly based

On rules of justice and of good, are plain

Alike to simple and to wise.!
The poet adds immediately a judgement of the chorus, made up of
women, and barbarian women at that, approving these words.

40. In order to prove the existence of this law of nature, I have,
furthermore, availed myself of the testimony of philosophers,’
historians, poets, finally also of orators. Not that confidence is to
be reposed in them without discrimination; for they were accus-
tomed to serve the interests of their sect, their subject, or their cause.
But when many at different times, and in different places, affirm the
same thing as certain, that ought to be referred to a universal cause ;
and this cause, in the lines of inquiry which we are following, must
be either a correct conclusion drawn from the principles of nature,

1 The same Euripides represents Hermione as saying to Andromache [Andromache, 243] :

Not under laws barbaric do men live
In this our city ;

and Andromache as answering [ibid., 244]:
What there is base, here too not blameless is.

4 Why should not one avail himself of the testimony of the philosophers, when Alexander Severus
constantly read Cicero On the Commonwealth and On Duties? [Lampridius, Alexander Severus, xxx. 2.]

[494-6.]

24 On the Law of War and Peace

or common consent. The former points to the law of nature; the
latter, to the law of nations. ,

The distinction between these kinds of law is not to be drawn
from the testimonies themselves (for writers everywhere confuse
the terms law of nature and law of nations), but from the character
of the matter. For whatever cannot be deduced from certain prin-
ciples by a sure process of reasoning, and yet is clearly observed
everywhere, must have its origin in the free will of man.

41. These two kinds of law, therefore, I have always particularly
sought to distinguish from each other and from municipal law.
Furthermore, in the law of nations I have distinguished between that
which is truly and in all respects law, and that which produces merely
a kind of outward effect simulating that primitive law, as, for example,
the prohibition to resist by force, or even the duty of defence in any
place by public force, in order to secure some advantage, or for [xv]
the avoidance of serious disadvantages. How necessary it is, in many
cases, to observe this distinction, will become apparent in the course
of our work.

With not less pains we have separated those things which are
strictly and properly legal, out of which the obligation of restitution
arises, from those things which are called legal because any other
classification of them conflicts with some other stated rule of right
reason. In regard to this distinction of law we shave already said
something above.

42. Among the philosophers Aristotle deservedly holds the
foremost place, whether you take into account his order of treatment,
or the subtlety of his distinctions, or the weight of his reasons.
Would that this pre-eminence had not, for some centuries back,
been turned into a tyranny, so that Truth, to whom Aristotle devoted
faithful service, was by no instrumentality more repressed than by
Aristotle’s name !

For my part, both here and elsewhere I avail myself of the
liberty of the early Christians, who had sworn allegiance to the sect
of no one of the philosophers, not because they were in agreement
with those who said that nothing can be known—than which nothing
is more foolish—but because they thought that there was no philo-
sophic sect whose vision had compassed all truth, and none which
had not perceived some aspect of truth. Thus they believed that
to gather up into a whole the truth which was scattered among the
different philosophers? and dispersed among the sects, was in reality
to establish a body of teaching truly Christian.

? The words are those of Lactantius, Divine Insistutes, Book VI, chap. ix [VII. vii. 4]
Justin, First Apology [Second Apology, chap. xiii]: ‘Not because the teachings of Plato are
altogether different from the teachings of Chnst, but because they do not completely harmonize,

Prolegomena 25

43. Among other things—to mention in passing a point not
foreign to my subject—it seems to me that not without reason some
of the Platonists and early Christians 1 departed from the teachings
of Aristotle in this, that he considered the very nature of virtue as
a mean in passions and actions. That principle, once adopted, led
him to unite distinct virtues, as generosity and frugality, into one;
to assign to truth extremes between which, on any fair premiss,
there is no possible co-ordination, boastfulness, and dissimulation ;
and to apply the designation of vice to certain things which either
do not exist, or are not in themselves vices, such as contempt for
pleasure and for honours, and freedom from anger against men.

44. That this basic principle, when broadly stated, is unsound,
becomes clear even from the case of justice. For, being unable to
find in passions and acts resulting therefrom the too much and the
too little opposed to that virtue, Aristotle sought each extreme in
the things themselves with which justice is concerned. Now in the
first place this is simply to leap from one class of things over into
another class, a fault which he rightly censures in others; then, for
a person to accept less than belongs to him may in fact under unusual
conditions constitute a fault, in view of that which, according to the
circumstances, he owes to himself and to those dependent on him ;
but in any case the act cannot be at variance with justice, the essence
of which lies in abstaining from that which belongs to another.

By equally faulty reasoning Aristotle tries to make out that
adultery committed in a burst of passion, or a murder due to anger,
is not properly an injustice. Whereas nevertheless injustice has no
other essential quality than the unlawful seizure of that which
belongs to another; and it does not matter whether injustice arises
from avarice, from lust, from anger, or from ill-advised compassion ;
or from an overmastering desire to achieve eminence, out of which
instances of the gravest injustice constantly arise. For to disparage
such incitements, with the sole purpose in view that human society
may not receive injury, is in truth the concern of justice.

45. To return to the point whence J started, the truth is that

as the teachings of others do not [xxiv] —for example, those of the Stoics, the poets, and the writers
of history. For each one of these spoke rightly in part, in accordance with the reason which had
been implanted in him, perceiving what was consistent therewith.’

Tertullian [On the Soul, xx]: ‘Seneca often on our side’; but the same writer also warms us
[An Answer to the Jews, ix] that the entire body of spiritual teachings was to be found in no man
save Christ alone.

Augustine, Letters, ccli [xci. 3: ‘The rules of conduct which Cicero and other philosophers
recommend are being taught and learned in the churches that are increasing all over the world.’
On this point, if time is available, consult the same Augustine in regard to the Platonists, who, he
says, with changes in regard to a few matters can be Christians; Letters, lvi [cxviul. 21]; Om the
True Religion, chap, ili, and Confessions, Book VII, chap. ix, and Book VIII, chap. i.

1 Lactantius treats this subject at length in the Institutes, VI. xv, xvi, xvii. Says Cassiodorus
[Peter of Blois, On Friendshep, chap. Quod affectus sine consensu non multum prosit vel obsti]: *It is
advantageous or harmful to be moved not by feelings, but in accordance with feelings.’

[IV. ix
14.]

[Divine
Institutes,
VI. xvi. 7.]

26 On the Law of War and Peace

some virtues do tend to keep passions under control; but that is not
because such control is a proper and essential characteristic of every
virtue. Rather it is because right reason, which virtue everywhere
follows, in some things prescribes the pursuing of a middle course,’
in others stimulates to the utmost degree. We cannot, for example,
worship God too much; for superstition errs not by [xvi]
worshipping God too much, but by worshipping in a perverse way.
Neither can we too much seek after the blessings that shall abide
for ever, nor fear too much the everlasting evils, nor have too great
hatred for sin.

With truth therefore was it said by Aulus Gellius, that there
are some things of which the extent is limited by no boundaries—
the greater, the more ample they are, the more excellent. Lactantius,
having discussed the passions at great length, says :

‘The method of wisdom consists in controlling not the passions,
but their causes, since they are stirred from without. And putting
a check upon the passions themselves ought not to be the chief
concern, because they may be feeble in the greatest crime, and very
violent without leading to crime.’

Our purpose is to make much account of Aristotle, but reserving
in regard to him the same liberty which he, in his devotion to truth,
allowed himself with respect to his teachers.

46. History in relation to our subject is useful in two ways:
it supplies both illustrations and judgements. The illustrations have
greater weight in proportion as they are taken from better times and
better peoples; thus we have preferred ancient examples, Greek
and Roman, to the rest. And judgements are not to be slighted,
especially when they are in agreement with one another; for by
such statements the existence of the law of nature, as we have said,
is in a measure proved, and by no other means, in fact, is it possible
to establish the law of nations.

47. The views of poets and of orators do not have so great
weight ; and we make frequent use of them not so much for the
purpose of gaining acceptance by that means for our argument, as
of adding, from their words, some embellishment to that which we
wished to say.

48. I frequently appeal to the authority of the books which
men inspired by God have either written or approved, nevertheless

7 Agathias, Book V, in a speech of Belisarius [Hzstortes, V. xviii]: ‘Of the emotions of the soul
those ought in every case to be seized in which there is found, pure and unmixed, an impulse in
harmony with the requirements of duty and worthy to be chosen. Those emotions, however, which
have a trend and inclination toward evil, are not to be utilized in all cases, but only so far as they
contribute to our advantage. That good judgement is a blessing pure and unmixed no one would
deny. In anger the element of energy is praiseworthy, but what exceeds the proper limit is to be
avoided, as involving disadvantage.’

Prolegomena 27

with a distinction between the Old Testament and the New. There
are some who urge that the Old Testament sets forth the law of
nature. Without doubt they are in error, for many of its rules come
from the free will of God. And yet this is never in conflict with
the true law of nature; and up to this point the Old Testament can
be used as a source of the law of nature, provided we carefully dis-
tinguish between the law of God, which God sometimes executes
through men, and the law of men in their relations with one another.

This error we have, so far as possible, avoided, and also another
opposed to it, which supposes that after the coming of the New
Testament the Old Testament in this respect was no longer of use.
We believe the contrary, partly for the reasons which we have already
given, partly because the character of the New Testament is such
that in its teachings respecting the moral virtues it enjoins the same
as the Old Testament or even enjoins greater precepts. In this way
we see that the early Christian writers used the witnesses of the
Old Testament.

49. The Hebrew writers,* moreover, most of all those who have
thoroughly understood the speech and customs of their people, are
able to contribute not a little to our understanding of the thought
of the books which belong to the Old Testament.

50. The New Testament I use in order to explain—and this
cannot be learned from any other source—what is permissible to
Christians. This, however—contrary to the practice of most men—
I have distinguished from the law of nature, considering it as certain
that in that most holy law a greater degree of moral perfection is
enjoined upon us than the law of nature, alone and by itself, would
require. And nevertheless I have not omitted to note the things
that are recommended to us rather than enjoined, that we may know
that, while the turning aside from what has been enjoined is wrong
and involves the risk of punishment, a striving for the highest
excellence implies a noble purpose and will not fail of its reward.

51. The authentic synodical canons are collections embodying
the general principles of divine law as applied to cases which come
up; they either show what the divine law enjoins, or urge us to
that which God would fain persuade. And this truly is the mission
of the Christian Church, to transmit those things which were trans-
mitted to it by God, and [xvii] in the way in which they were
transmitted.

Furthermore customs which were current, or were considered
praiseworthy, among the early Christians and those who rose to the
measure of so great a name, deservedly have the force of canons.

1 This was perceived by Cassian [Cassiodorus] as shown by his Insitute of Holy Writ [Preface].

28 On the Law of War and Peace

Next after these comes the authority of those who, each in his
own time, have been distinguished among Christians for their piety
and learning, and have not been charged with any serious error ;
for what these declare with great positiveness, and as if definitely
ascertained, ought to have no slight weight for the interpretation of
passages in Holy Writ which seem obscure. Their authority is the
greater the more there are of them in agreement, and as we approach
nearer to the times of pristine purity, when neither desire for domina-
tion nor any conspiracy of interests had as yet been able to corrupt
the primitive truth.

52. The Schoolmen, who succeeded these writers, often show
how strong they are in natural ability. But their lot was cast in an
unhappy age, which was ignorant of the liberal arts; wherefore it 1s
less to be wondered at if among many things worthy of praise there
are also some things which we should receive with indulgence.
Nevertheless when the Schoolmen agree on a point of morals, it
rarely happens that they are wrong, since they are especially keen
in seeing what may be open to criticism in the statements of others.
And yet in the very ardour of their defence of themselves against
opposing views, they furnish a praiseworthy example of moderation ;.
they contend with one another by means of arguments—not, in
accordance with the practice which has lately begun to disgrace the
calling of letters, with personal abuse, base offspring of a spirit lacking
self-mastery. :

53. Of those who profess knowledge of the Roman law there.
are three classes.

The first consists of those whose work appears in the Pandects,
the Codes of Theodosius and Justinian, and the Imperial Constitutions
called Novellae.

To the second class belong the successors of Irnerius, that is
Accursius, Bartolus, and so many other names of those who long
ruled the bar.

The third class comprises those who have combined the study
of classical literature with that of law.

To the first class I attribute great weight. For they frequently
give the very: best reasons in order to establish what belongs to the.
law of nature, and they often furnish evidence in favour of this
law and of the law of nations. Nevertheless they, no less than the
others, often confuse these terms, frequently calling that the law of
nations which is only the law of certain peoples, and that, too, not
as’ established by assent, but perchance taken over through imitation
of others or by pure accident. But those provisions which really
belong to the law of nations they often treat, without distinction or
discrimination, along with those. which belong to the Roman law,

Prolegomena 29

as may be seen by reference to the title On Captives and Postliminy,
We have therefore endeavoured to distinguish these two types from
each other.

54. The second class, paying no heed to the divine law or to
ancient history, sought to adjust all controversies of kings and peoples
by application of the laws of the Romans, with occasional use of the
canons. But in the case of these men also the unfortunate condition
of their times was frequently a handicap which prevented their
complete understanding of those laws, though, for the rest, they
were skilful enough in tracing out the nature of that which is fair
and good. ‘The result is that while they are often very successful in:
establishing the basis of law, they are at the same time bad inter-:
preters of existing law. But they are to be listened to with the
utmost attention when they bear witness to the existence of the
usage which constitutes the law of nations in our day.

55. The masters of the third class, who confine themselves
within the limits of the Roman law and deal either not at all, or only
slightly, with the common law of nations, are of hardly any use in
relation to our subject. They combine the subtlety of the Schoolmen
with a knowledge of laws and of canons; and in fact two of them, the
Spaniards Covarruvias and Vazquez, did not refrain from treating.
the controversies of peoples and kings,. the latter with great freedom,
the former with more restraint and not without precision of judge-
ment.

[xviii] The French have tried rather to introduce history into
their study of laws. Among them Bodin and Hotman have gained
a great name, the former by an extensive treatise, the latter by
separate questions; their statements and lines of reasoning will
frequently supply us with material in searching out the truth.

56. In my work as a whole I have, above all else, aimed at three
things: to make the reasons for my conclusions as evident as possible;
to set forth in a definite order the matters which needed to be treated ;.
and to distinguish clearly between things which seemed to be the
same and were not.

57. I have refrained from discussing topics which belong to
another subject, such as those that teach what may be advantageous
in practice. For such topics have their own special field, that of
politics, which Aristotle rightly treats by itself, without introducing
extraneous matter into it. Bodin, on the contrary, mixed up politics
with the body of law with which we are concerned. In some places
nevertheless I have made mention of that which is expedient, but
only in passing, and in order to distinguish it more clearly from what

is lawful.
58. If any one thinks that I have had in view any controversies

30 On the Law of War and Peace

of our own times, either those that have arisen or those which can be
foreseen as likely to arise, he will do me an injustice. With all truth-
fulness I aver that, just as mathematicians treat their figures as
abstracted from bodies, so in treating law I have withdrawn my
mind from every particular fact.

59. As regards manner of expression, I wished not to disgust
the reader, whose interests I continually had in mind, by adding
prolixity of words to the multiplicity of matters needing to be treated.
I have therefore followed, so far as I could, a mode of speaking at
the same time concise and suitable for exposition, in order that those
who deal with public affairs may have, as it were, in a single view
both the kinds of controversies which are wont to arise and the
principles by reference to which they may be decided. These points
being known, it will be ‘easy to adapt one’s argument to the matter
at issue, and expand it at one’s pleasure.

60. I have now and then quoted the very words of ancient
writers, where they seemed to carry weight or to have unusual charm
of expression. ‘This I have occasionally done even in the case of
Greek writers, but as a rule only when the passage was brief, or such
that I dared not hope that I could bring out the beauty of it in
a Latin version. Nevertheless in all cases I have added a Latin
translation for the convenience of those who have not learned Greek.1

61. I beg and adjure all those into whose hands this work shall
come, that they assume towards me the same liberty which I have
assumed in passing upon the opinions and writings of others. They
who shall find me in error will not be more quick to advise me than
I to avail myself of their advice.

And now if anything has here been said by me inconsistent with
piety, with good morals, with Holy Writ, with the concord of the
Christian Church, or with any aspect of truth, let it be as if unsaid.

1 [The English translation, of course, follows Grotius’ Latin version, which sometimes differs from
the original Greek.]

[1]
HUGO GROTIUS

ON

THE LAW OF WAR AND PEACE

BOOK I

CHAPTER I

WHAT IS WAR? WHAT IS LAW?

I.—Scope of the treatise

CoNTROVERSIES among those who are not held together by a
common bond of municipal law are related either to times of war or to
times of peace. Such controversies may arise among those who have
not yet united to form a nation, and those who belong to different
nations, both private persons and kings; also those who have the
same body of rights that kings have, whether members of a ruling
aristocracy, or free peoples.

War, however, is undertaken in order to secure peace, and there
is no controversy which may not give rise to war. In undertaking
to treat the law of war, therefore, it will be in order to treat such
controversies, of any and every kind, as are likely to arise. War itself
will finally conduct us to peace as its ultimate goal.

Il.—Definition of war, and origin of the word

1. As we set out to treat the law of war, then, we ought to see
what is war, which we are treating, and what is the law which forms
the subject of our investigation.

Cicero defined war as a contending by force. A usage has
gained currency, however, which designates by the word not a
contest but a condition;? thus war is the condition of those con-
tending by force, viewed simply as such. This general definition
includes all the classes of wars which it will hereafter be necessary
to discuss. For I do not exclude private war, since in fact it is
more ancient than public war and has, incontestably, the same nature
as public war; wherefore both should be designated by one and the
same term.

2. The origin of the word, moreover, is not inconsistent with
this use. For bellum, ‘war’, comes from the old word duellum, as

1 [10] Philo, On Specal Laws, II [III. xv]: ‘Not alone are they considered enemies who are
actually engaged in fighting on land or sea, but those also are to be viewed as such who bring up
appliances of war before harbours or walls, even if they are not yet commencing to fight.’

Servius in his comment On the Aenetd, Book I [Book I, line 545],

Nor mightier in war and arms than he,
remarks: ‘‘‘ War’’ (bellum) contains also the idea of ‘‘ plan and purpose’’ (consilium) ; the word
‘‘ arms’? (arma) refers only to actual hostilities.’ The same commentator in a note to Book VIII
[tine 547]: ‘“‘ War” (bellum) extends over the whole period in which any preparation necessary for
ghting is being made, or in which fighting is carned on; the word “battle” (proelium) is used of
actual engagements.’

D2 33

[On
Duties,
I xi. 34]

On Duiies,

III (III v.

21].

Digest,
I. 1. 3.

On Anger,
Book II
xxxii [II.
xxxi 9].

34 On the Law of War and Peace [Book I

bonus, ‘good’, from an earlier duonus, and bis, ‘twice’, from duis. The
word duellum, again, bears to duo, ‘two’, a relation in sense similar
to that which we have in mind when we call peace ‘ union’. In like
manner the Greeks derived their word for ‘war’ (méAeuos) from
a word meaning ‘ multitude’; [2] the ancients also took a word
for ‘faction’ (Avy) from the idea of dissolution in it, just as the
dissolution of the body suggested d¥y, ‘ anguish’.

3. And usage does not reject this broader meaning of the word.
If, to be sure, the term ‘ war’ is at times limited to public war, that
implies no objection to our view, since it is perfectly certain that the
name of a genus is often applied in a particular way to a species,
especially a species that is more prominent.

I do not include justice in my definition because this very
question forms a part of our investigation, whether there can be
a just war, and what kind of a war is just; and a subject which 1s
under investigation ought to be distinguished from the object towards
which the investigation is directed.

II.—Law is considered as a rule of action, and divided into rectortal
law and equatorial law

1. In giving to our treatise the title ‘ The Law of War’, we
mean first of all, as already stated, to inquire whether any war can
be just, and then, what is just in war. For law in our use of the
term here means nothing else than what is just, and that, too, rather
in a negative than in an affirmative sense, that being lawful which
is not unjust.

Now that is unjust which is in conflict with the nature of society
of beings endowed with reason. Thus Cicero declares that to take
away from another in order to gain an advantage for oneself is con-
trary to nature; and in proof he adduces the argument that, if this
should happen, human society and the common good would of
necessity be destroyed. Florentinus shows that it is wrong for a man
to set a snare for a fellow man, because nature has established a kind
of blood-relationship among us. ‘ Just as all the members of the
body agree with one another,’ says Seneca, ‘ because the preservation
of each conduces to the welfare of the whole, so men refrain from
injuring one another because we are born for community of life.
For society can exist in safety only through the mutual love and
protection of the parts of which it is composed.’ 2

1 The same Seneca, Letters, xlviin [xlvuil. 31: ‘This fellowship ought carefully and scrupulously
to be cultivated ; for it mingles us all with all men, and brings the conviction that there is a bond
of right common to the human race.’ /

_ an this point reference may be made to Chrysostom, On First Corinthians, xi. 1 [Homily XXV,
lil-iy. /

Chap. I] What 1s War? What ts Law ? 35

2. Moreover, just as there is one form of social relationship
without inequality, as that between brothers, or citizens, or friends,
or allies ; another with inequality—the ‘ paramount’ type, in the view
of Aristotle—as that between father and children, master and slave,
king and subjects, God and men?; so there is one type of that
which is lawful applying to those who live on an equality, and another
type applying to him who rules and him who is ruled, in their relative
positions. The latter type, if I mistake not, we shall properly call
rectorial law; the former, equatorial law.

IV.—A body of rights 1n respect to quality is divided into faculties
and aptitudes

There is another meaning of law viewed as a body of rights,
different from the one just defined but growing out of it, which has
reference to the person. In this sense a right becomes a moral
quality of a person, making it possible to have or to do something
lawfully.

Such a right attaches to a person, even if sometimes it may
follow a thing, as in the case of servitudes over lands, which are
called real rights, in contrast with other rights purely personal ;
not because such rights do not also attach to a person, but because
they do not attach to any other person than the one who is entitled
to a certain thing.

When the moral quality is perfect we call it facultas, ‘faculty’ ;
when it is not perfect, aptttudo, ‘aptitude’. ‘To the former, in
the range of natural things, ‘act’ corresponds; to the latter,
‘ potency ’.

V.—Faculties, or legal rights strictly so called, are divided into powers,
property rights, and contractual rights

A legal right (facultas) is called by the jurists the right to one’s
own (suum) ; after this we shall call it a legal right properly or strictly
so called.

Under it are included power, now over oneself, which is called
freedom,’ now over others, as that of the father (patria potestas) and
that of the master over slaves; ownership,* either absolute, or less
than absolute, as usufruct and the right of pledge; and contractual

1 Thus grammarians distinguish between a construction involving agreement and a construction
involving subordination.

2 On this relationship see Philo on the words ‘Noah awoke’ (Genesis, ix. 24; Philo, On
Sobriety, x].

Plutarch has also some remarks in his Numa [iv = 62].

3 The Roman jurists very properly define liberty as a ‘ legal right’ (Yacultas).

4 Right’ is used to designate ‘ ownership’ of something, according to the Scholiast on Horace
[Zprst. Tl. nu. 174; Sat. II. it. 217).

[Necom
Ethics,
VIII
vu.)

N1co-
machean
Ethics, V

[vi].

36 On the Law of War and Peace [Book I

tights, to which on the opposite side contractual obligations corre-
spond.

VI.—Another division of legal rights, into private and public

Legal rights, again, are of two kinds: private, which are con-
cerned with the interest of individuals, and public which are superior
to private rights, since they are exercised by the community over
its members, and the property of its members, for the sake of the
common good.

Thus the power of the king has under it both the power of the
father and that of the master; thus, again, for the common good
the king has a right of property over the possessions of individuals
greater than that of the individual owners; thus [3] each
citizen is under a greater pecuniary obligation to the state, for the
meeting of public needs, than to a private creditor.

VII.—What is an apittude ?

Aptitude is called by Aristotle dg/a, that is, ‘ worthiness ’.?

Michael of Ephesus renders the idea of fairness, which according
to him should come next to worthiness, as ‘ that which fits to’ some-
thing and ‘ that which is fitting ’, that is ‘ that which is suitable’.

VITI.—On expletive justice and attributive justice ; that these are not
properly distinguished by geometrical and arithmetical proportion,
and that the latier 1s not concerned with public property, the former
with private property

1. Legal rights are the concern of expletive justice (zustziza
expletrix), which is entitled to the name of justice properly or strictly
so called. This is called ‘contractual’ justice by Aristotle, with too
narrow a use of the term; for though the possessor of something

1 Philo, On Noah’s Planiing [chap. xii]: ‘Surely silver, gold and the other treasures which are
guarded by subjects, belong to those who rule rather than to those who possess them.’ Pliny,
Panegyric [xxvil. 4]: ‘He, to whom belongs whatever all possess, has himself as much as all possess ’ ;
later he adds [chap. 1], ‘ Would Caesar see anything which was not his own?’ Add John of
Salisbury, Policraticus, Book V, chap. i.

* Cicero, On Duites, I [I. xvii. 58]: ‘If, however, a contrast and comparison of some sort should
be made, in order to see who has the strongest moral claims upon us, first and foremost would come
our country and our parents, whose services have placed us under the deepest obligation; next, our
children and entire household, who look to us alone and can have no other recourse; lastly, the
relatives with whom we are on good terms, who in most cases have also a common interest with us.
In consequence, the support of life on the matemal side is due to those whom I have mentioned,
above all others; but intimacy of relations.in life and in living, counsel, conversation, words of
encouragement and words of consolation, sometimes even reproofs, thrive best in friendship.’

See what will be said below in Book II, chap. vii, 9 and ro.

Seneca, On Benefits, Book IV, chap. xi, when he is treating of wills: ‘We try to find those who
are most worthy, in order that we may leave our property to them’; consult the passage itself.

Add Augustine, On Christian Doctrine, Book 1, chaps. xxviii and xxix.

Chap. I] What 1s War? What is Law? 37

belonging to me may give it back to me, that does not result ‘from
a contract’, and nevertheless the act falls within the purview of this
type of justice; and so the same philosopher has more aptly termed
it ‘restorative’ justice.

Aptitudes are the concern of attributive justice (iustitia attri-
butrix). ‘This Aristotle called ‘ distributive’ justice. It is associated
with those virtues which have as their purpose to do good to
others, as generosity, compassion, and foresight in matters of
government.

2. Aristotle says also that expletive justice is expressed by a
simple proportion, which he calls ‘ arithmetical’; attributive justice,
by a proportion involving comparison, which he calls ‘ geometrical’,
this having the name of a proportion only among mathematicians.?
Such proportions are often applicable, but not always so; and in
fact expletive justice differs essentially from attributive justice not
in a relation expressed by such a proportion but in the matter with
which it is concerned, as we have already said. Thus a partnership
agreement is carried out according to a proportion based on com-
parison ; and if only one person can be found who is fitted for a public
position, the award will be made to him on the basis of a simple
proportion only.

3. Not more true, again, is that which some say, that attributive
justice is concerned with public property, while expletive justice is
concerned with private property. On the contrary, if a man wishes
to give a legacy from property belonging to him, he acts in conformity
with attributive justice ; and the state which pays back, from public
funds, what a citizen has advanced for the public interest, is dis-
charging the function of expletive justice.

This distinction was correctly observed by the teacher of Cyrus.
For when Cyrus had given to the smaller boy a smaller tunic although
it belonged to another, and on the other hand had given a larger
tunic to the larger boy, his teacher thus instructed him :

That would have been a proper course to pursue in case a referee had been appointed
to decide what would be suitable for each; but when the question to be settled was,
to which boy the tunic belonged, then only one point was to be considered, which boy
was more justly entitled to it?-whether the object should belong to him who had violently
taken it away, or to him who had made it or purchased it.

, 4 [rz] This is called by Cassiodorus [On Dialectic, p. 408, edition of 1589], a comparison in respect
to mode of being. Of this proportion, which attributive justice 1s wont to use, there is a not inappro-
priate description in Homer [Jizad, XIV. 382]:

Excellent things to the excellent gave he, mean to the vulgar.

2 See the same Xenophon, Training of Cyrus, Book II [II. u. 18]. The law given through
Moses has a similar bearing: ‘Neither shalt thou favour a poor man in his cause’; Exodus, xxiti.3 ;
Leviticus, xix. 15. It is, m fact, necessary, as Philo says [Om the Judge, iv], ‘to separate the case
itself entirely from consideration of the parties thereto.’

[Xeno-
phon,
Traming
of Cyrus,
I. 11. 17 J

[Nacom,
Ethics,
V. x.]

38 On the Law of War and Peace [Book I

[X.—Law ts defined as a rule, and divided into the law of nature and
volitional law

1. There is a third meaning of the word law, which has the
same force as statute 1 whenever this word is taken in the broadest
sense as a rule of moral actions imposing obligation to what is right.
We have need of an obligation; for counsels and instructions of
every sort, which enjoin what is honourable indeed but do not
impose an obligation, do not come under the term statute or law.
Permission, again, is not, strictly speaking, an operation of law, but
a negation of operation, except in so far as it obligates another not
to put any hindrance in the way of him to whom permission 1s given.
We said, moreover, ‘imposing obligation to what is right’, not
merely to what is lawful, because law in our use of the term here stands
related to the matter not only of justice, as we have set it forth, but
also of other virtues.2, Nevertheless that which, in accordance with
this law, is right, in a broader sense is called just.

2. The best division of law thus conceived is found in Aristotle,
that is, into natural law and volitional law, to which he applies the
term statutory, with a rather strict use of the word statute; some-
times he calls it established law.

The same distinction is to be found among the Jews who,
when they expressed themselves with exactness called the law of
nature, ‘commandments’,® and established law [4] ‘statutes’.
These terms the Greek-speaking Jews are accustomed to translate as
* duties? and ‘ commands’.

X.—Definition of the law of nature, division, and distinction from
things which are not properly so called

1. The law of nature is a dictate of right reason,* which points
out that an act, according as it is or is not in conformity with rational
nature, has in it a quality of moral baseness or moral necessity ; and

1 With this meaning Horace said [Satires, I. iii. 121]:

You must confess that laws were framed
From fear of the unjust.

Elsewhere he says [.4rt of Poetry, 122]:
Let him deny that laws were made for him,

where the Scholiast has the comment: ‘ Let him be a despiser of laws.’

2 An example is to be found in a law of Zeleucus [Aehan, Various History, II. xxxvi], which
imposed a penalty on a man who should have drunk wine against the order of a doctor.

3 So Mammonides, Gusde of the Perplexed, Book III, chap. xxvi.

* Philo, That Every Virtuous Man is Free [chap. vii]: ‘ Now the law that deceives not is right
reason ; and this law is not mortal as devised by this or that mortal, not lifeless as wnt on leaves of
paper or on columns that are without life, but incorruptible, since it has been imprinted by immortal
nature on an immortal intelligence.’

Tertulhan, On the Soldzer’s Chaplet [chap. vi]: ‘ You will ask then, for a law of God, and this you
have, common throughout the world, written on nature’s tablets.’ Marcus Aurelius, Book II

Chap. I] What is War? What ts Law? 39

that, in consequence, such an act is either forbidden or enjoined
by the author of nature, God.

2. The acts in regard to which such a dictate exists are, in
themselves, either obligatory or not permissible, and so it is under-
stood that necessarily they are enjoined or forbidden by God. In
this characteristic the law of nature differs not only from human law,
but also from volitional divine law; for volitional divine law does
not enjoin or forbid those things which in themselves and by their
own nature are obligatory or not permissible, but by forbidding
things it makes them unlawful, and by commanding things it makes
them obligatory.

3. For the understanding of the law of nature, again, we must
note that certain things are said to be according to this law not in
a proper sense but—as the Schoolmen love to say—by reduction,
the law of nature not being in conflict with them ; just as we said
above that things are called just which are free from injustice.
Sometimes, also, by misuse of the term, things which reason declares
are honourable, or better than their opposites, are said to be according
to the law of nature, although not obligatory.

4. It is necessary to understand, further, that the law of nature
deals not only with things which are outside the domain of the
human will, but with many things also which result from an act
of the human will. Thus ownership, such as now obtains, was
introduced by the will of man; but, once introduced, the law of
nature points out that it is wrong for me, against your will, to take
away that which is subject to your ownership. Wherefore Paul the
jurist said that theft is prohibited by the law of nature*; Ulpian,
that it is by nature base; and Euripides declares that it is displeasing
to God, in these verses of the Helena:

For God himselt hates violence; he wishes
That not by rapine but by honest toil

We riches gain. Let wealth be scorned that not
By right has come. Common to men the air is,
And also earth, on which ’tis meet that each

[II. xvi]: ‘The end for beings endowed with reason is to follow the law and rule of that most
ancient city and state.’

Add the passage of Cicero, On the Commonwealth, III, which Lactantius quotes, [Divine ane
VI. vii. There are some excellent observations which Chrysostom makes, On the Statues, [Homilies
XU, XIII. And the remarks of Thomas Aquinas, Secunda Secundae, lvii. 2, and of Duns Scotus,
[On the Sentences, III, Dist. 37, are by no means to be slighted.

1 After the law which relates to acknowledging and worshipping the Deity, says Julian [Ovatton
VII, 209 c, D. Cf. translation by Wright, vol. i, pp. 85-6]: ‘There is a second law which in its very
nature is sacred and divine. This law bids men always and everywhere to hold aloof from the property
of others, and does not grant permission for them to go contrary to it either in word or in deed or in
the secret thoughts of the mind.’

Cicero, On Duties, Book III [III. x. 42], following Chrysippus : ‘So in life it is not unfair for
each to try to get for himself what contributes to his advantage ; but to take what belongs to another
is not nght.’

Digest,
XLVILI.
il. I.
Digest, L-
XV1 42
[903 ff.]

[NV icom.
Ethics,
II wu]

[I. vii. 16 ]

40 On the Law of War and Peace [Book I

His home make large, if he his hands restrain
From things of others, and from violence.

5. The law of nature, again, is unchangeable—even in the sense
that it cannot be changed by God. Measureless as is the power of
God, nevertheless it can be said that there are certain things over
which that power does not extend; for things of which this is said
are spoken only, having no sense corresponding with reality and
being mutually contradictory. Just as even God, then, cannot
cause that two times two should not make four, so He cannot cause
that that which is intrinsically evil be not evil.

This is what Aristotle means when he says: ‘Some things are
thought of as bad the moment they are named.’ For just as the
being of things, from the time that they begin to exist, and in the
manner in which they exist, is not dependent on anything else, so
also the properties, which of necessity characterize that being; such
a property is the badness of certain acts, when judged by the standard
of a nature endowed with sound reason. Thus God Himself suffers
Himself to be judged according to this standard, as may be seen by
referring to Genesis, xviii. 25; Isaiah, v. 3; Ezekiel, xviii. 25;
Jeremiah, ii. 9; Micah, vi. 2; Romans, ti. 6, iii. 6.

6. Sometimes nevertheless it happens that in the acts in regard
to which the law of nature has ordained something, an appearance
of change deceives the unwary, although in fact the law of nature,
being unchangeable, undergoes no change; but the thing, in regard
to which the law of nature has ordained, undergoes change. For
example, if a creditor gives a receipt for that which I owe him, I am
no longer bound to pay him, not because the law of nature has
ceased [5] to enjoin upon me that I must pay what I owe, but
because that which I was owing has ceased to be owed. Thus Arrian
in Epictetus reasons correctly when he says: ‘To constitute an
indebtedness it is not enough that a loan has been made; the obliga-
tion must remain as yet unsatisfied.’ So if God should command
that any one be slain, or that the property of any one be carried off,
homicide or theft—words connoting moral wrong—will not become
permissible ; it will not be a case of homicide or theft, because the
deed is done by authority of the Supreme Lord of life and pro-
perty.

7. Furthermore, some things belong to the law of nature not
through a simple relation but as a result of a particular combination
of circumstances. Thus the use of things in common was in accord-
ance with the law of nature so long as ownership by individuals was
not introduced; and the right to use force in obtaining one’s own
existed before laws were promulgated.

Chap. I] What is War? What is Law ? 4I

XI.—That the instinct common to other animals, or that peculiar to
man, does not constitute another kind of law

1. The distinction, which appears in the books of Roman law,
between an unchangeable law common to animals and man, which
the Roman legal writers call the law of nature in a more restricted
sense, and a law peculiar to man, which they frequently call the law
of nations, is of hardly any value. For, strictly speaking, only a being
that applies general principles is capable of law, as Hesiod rightly

observed :
For law to man by most high Jove was given;
The fish, the wild beasts and the winged birds
On one another feed, for right no place
Among them has. Justice he gave to man,
The gift most excellent.

‘We do not speak of justice in the case of horses or lions,’ says
Cicero in the first book of his treatise On Duties. Plutarch in his
Life of Cato the Elder remarks: ‘We have been so constituted that
we avail ourselves of law and justice only in respect to men.’ Says
Lactantius, in his fifth book: ‘In all animals, which are devoid of
reason, we see that there is a nature which looks out for itself. For
they do harm to others in order to secure advantage for themselves,
since they do not know that to do harm is evil. But man, because he
has a knowledge of good and evil, refrains from doing harm to another,
even with disadvantage to himself.’

Polybius, having recounted the beginnings of organized society,
when men had first come together, adds that if any one should have
done harm to his parents or benefactors, it could not possibly have
happened that the rest would not be incensed at his conduct, and

adds the reason: ‘ For since the race of men differs from the other’

animals in this, that it is endowed with intelligence and reason,
it is quite unbelievable that an act so contrary to their nature
would have been passed over by men, as by other animals, without

1 Juvenal, Saizres, xv [lines 143 ff.]:

We alone have as our portion gained
A reverential mind; we things divine
May apprehend, we fitted are to know
Life’s arts, and practise them. [12] From heaven's height
A heaven-born sympathy we drew, and this
The grovelling and earth-gazing creatures lack.
To them, when new the world, its Maker gave
Life only, but to us a soul as well,
That mutual kindly feelmg might us prompt
To seek and render aid, and peoples form
From scattered dwellers.

Chrysostom, On Romans, vii [viii= Homily XIV, v] declares : ‘ Even in the case of creatures which lack
reason and perception men ought not to deviate from the consideration of what is just and unjust.’
2 An example is found in the case of Ham (Genesis, x [1x]. 22), where the punishment follows.

[Works
and Days,
276 ff.]

[1 xvi.
50 ]

[v==p. 339
A]

[.V xvil
30 ]

Book VI
[VI. vi 4].

[Works
and Days,

763 £]

[Sextus
Empiricus,
A ganst
the Ma-
thematr
cians,

vii. 134.]

42 On the Law of War and Peace [Book I

notice; such a deed must have attracted attention and have given
offence.’ 7

2. If, however, a sense of justice is sometimes attributed to
brute creatures,” that is done without proper grounds, in consequence
of observing in them a shadow or trace of reason.? But whether an
act, in regard to which the law of nature has pronounced, is common
to us and other animals, as the rearing of offspring, or peculiar to us,
as the worship of God, has no bearing whatever on the nature of
the law.

XII.—In what way the existence of the law of nature 1s proved

1. In two ways men are wont to prove that something is
according to the law of nature, from that which is antecedent and
from that which is consequent. Of the two lines of proof [6] the
former is more subtle, the latter more familiar.

Proof a priort consists in demonstrating the necessary agreement
or disagreement of anything with a rational and social nature;
proof a posteriori, in concluding, if not with absolute assurance, at
least with every probability, that that is according to the law of
nature which is believed to be such among all nations, or among all
those that are more advanced in civilization. For an effect that is
universal demands a universal cause; and the cause of such an
opinion can hardly be anything else than the feeling which is called
the common sense of mankind.

2. Hesiod has a saying which has been quoted by many:

Not wholly void of truth the opinion is
Which many peoples hold.

‘Those things which appear true to men generally are worthy of
credence,’ * Heraclitus used to say, judging that common acceptance

+ Chrysostom, On the Statues, XIII [Homily XIII, iii]: ‘We are so constituted by nature that
we feel indignation along with those who have been badly treated. Whence in fact we become incensed
at men who inflict wrongs, even though the wrong in no way affects us.’

The Schohiast on Horace, Satires, I. 1 [line 97]: ‘Feeling and mind experience one sort of
indignation when we hear that a murder has been committed, another when we hear of a theft.’

2 A kind of foreshadowing of justice the Elder Pliny notes in elephants, Book VIII, chap. v
[Natural Htsiory, VIII. iv. 9].

The same author, Book X [X. lxxiv. 208], relates that there was a female asp which itself killed
its own snakelet because this had caused the death of the son of the man who took care of it.

® Seneca, On Anger, Book V, chap. iii [I. ini. 4, 6], said that brutes are devoid of anger, but that
they have an impulse in place of anger. ‘Mute creatures’, he declares, ‘are without the feelings
of men; but they have certain impulses similar to the impulses of men.’ Thus in brutes, said
Origen, Against Celsus [IV. xcii=p. 225], there are not faults but the appearance of faults, ‘ just
as if a lion could get angry’. So the Peripatetics in Porphyry, On Abstatning from Animal Food,
Book IIT [TII. xxii=p. 300].

* Aristotle, Nicomachean Ethics, X. 1: ‘ What seems to all to be so, this we say is so; and he
who wishes to take away this belief will himself say things in no respect more worthy of belief.’
Seneca [Lefters, XI. u. 31=lxxxi. 31]: ‘ Amidst so great difference of opinions, all men with one
voice, as the saying is, will declare to you that gratitude is due to those who do kindnesses.’ Quintilian

Chap. I] What 1s War? What is Law? 43

is the best criterion of truth. Says Aristotle: ‘ The strongest proof
is, if all men agree upon what we say’; Cicero, ‘ The agreement of
all nations upon a matter ought to be considered a law of nature’ ;
Seneca, ‘The proof of truth is the fact that all hold the same view
upon something’; and Quintilian, ‘We consider those things
certain upon which there is agreement in the common opinion
of men.’

Not without reason did I speak of the nations ‘ more advanced
in civilization’; for, as Porphyry rightly observes, ‘Some nations
have become savage and unhuman,’ and from them it is by no means
necessary that fair judges draw a conclusion unfavourable to human
nature.’ Andronicus of Rhodes says: ‘ Among men endowed with
a right and sound mind there is an unchangeable law, which is called
the law of nature. And if men having sick or distorted mentalities
think otherwise, that has no bearing on the matter. For he who
says that honey is sweet does not lie, just because to sick people it
may seem otherwise.’

Consistent with these expressions is a remark of Plutarch, in his
Life of Pompey: * By nature no man either is or has been a wild and
unsociable animal; but man becomes brutelike when, contrary to
nature, he cultivates the habit of doing wrong. By adopting different
habits, however, and making a change of place and of life, he returns
again to a state of gentleness.’ Aristotle presents this characterization
of man in the light of the qualities peculiar to him: ‘ Man is an
animal gentle by nature.’ ?

[Institutes of Oratory, I. vi. 45]: ‘The common usage of educated men I shall call custom in speech,
just as in life we call the common practice of good men custom.’ ;

Josephus, Antzquates of the Jews, Book XVI [XVI. vi. 8]: ‘ There is no nation which throughout
maintains the same customs ; in many instances customs differ very greatly in different towns. But
the nght is equally advantageous for all men, and as useful to barbarians as to Greeks. To nght, at
any rate, the laws of our nation pay the greatest heed, and so, if we but strictly observe them, they
render us well disposed and friendly to all men. Such are the characteristics which it is fair to demand
from the laws; and others ought not to think, on account of differences in institutions, that our laws,
being foreign, are repugnant to them, but they ought rather to see whether these are adjusted to
3 standard of virtue and upright conduct. For virtue and upright conduct [13] concern all men
in common, and are of themselves sufficient to safeguard the life of men.’ ;

Tertullian, Prescriplion against Heretics [chap. xxviu]: ‘That which among many is found to
be one, is an offshoot not of error but of tradition.’

1 Justin, Dialogue with Trypho [chap. xciii=697 A]: ‘ With the exception of those who, possessed
by unclean spirits, and corrupted through perverse training, bad practices and unjust laws, have lost
the ideas derived from nature.’ Says Philo, That Every Virtuous Man 1s Free (chap. vii]: ‘ Rightly
then may one marvel that so dense darkness has been shed about them that they do not perceive
the true characteristics of things, clear as these are.’ Chrysostom, in the sermon That Christ is God
[xi]: ‘Take not thy judgement of things from those whose soul is corrupt.’

2 The same thing is said by Chrysostom, On the Statues, Homily XI [XI, iv]. The thought
is more fully set forth by Philo, On the Ten Commandments [chap. xxv]: ‘Man, who was to be the
most gentle of animals, nature made sociable and desirous of companionship, summoning him to live
a harmonious hfe in society ; and she gave to him speech also which would unite men by adapting
their natures one to the other and leading them to a concord of feeling.’ The same philosopher in his
treatise On the Indestruchbtltty of the World [vii=p. 495 E]: ‘ The gentlest of animals is man, because
nature has given to him the gift of speech, by which the most unrestramed passions are soothed as by
enchantment.’

[Eudem
Ethics,

I vi.]
Tusculan
Disputa-
tions, I

[I xi. 30]
[Seneca, ]
Letters,
CXVI11
[cxvii 6].
[Inst Or.,
V x i2]
[On Ab-
staining,
IV, xx1 ]
[On Nee.
Ethacs,

V. x)

[XxXVIL==
Pp 633 D.]

Topics,
V.11.

Polvizes,
I. v.

[ Book ITT,
vii and ix. ]

[Oratons,
Ixxvi=
Pp. 648.]

44 On the Law of War and Peace [Book I

In another passage he says: ‘In order to find what is natural
we must look among those things which according to nature are in
a sound condition, not among those that are corrupt.’

XIII.—Division of volitional law into human and divine

We have said that another kind of law is volitional law, which

has its origin in the will.
Volitional law is either human or divine.

XIV.—Human law is divided into municipal law, law narrower in
scope than municipal law, and law broader in scope than municipal
law, which is the law of nations; explanation thereof, and how

proved

1. We begin with human law, because that is familiar to the
greater number. Human law, then, is either municipal law, or
broader in scope than municipal law, or more restricted than municipal
law.

Municipal law is that which emanates from the civil power.
The civil power is that which bears sway over the state. The state is
a complete association of free men, joined together for the enjoyment
of rights and for their common interest.

The law which is narrower in scope than municipal law, and
[7] does not come from the civil power, although subject to it,
is of varied character. It comprises the commands of a father, of
a master, and all other commands of a similar character.

The law which is broader in scope than municipal law is the law
of nations; that is the law which has received its obligatory force
from the will of all nations, or of many nations.t_ JI added ‘ of many
nations’ for the reason that, outside of the sphere of the law of
nature, which is also frequently called the law of nations, there is
hardly any law common to all nations. Not infrequently, in fact,
in one part of the world there is a law of nations which is not such
elsewhere, as we shall at the proper time set forth in connexion with
captivity and postliminy.

2. ‘The proof for the law of nations is similar to that for
unwritten municipal law; it is found in unbroken custom and the
testimony of those who are skilled in it. The law of nations, in fact,
as Dio Chrysostom well observes, ‘ is the creation of time and custom.’
And for the study of it the illustrious writers of history are of the
greatest value to us.

4 Vazquez, Controversiae, II. liv. 4.

Chap. I] What is War? What is Law? A5

XV.—Divine law is divided into universal divine law and divine law
peculiar to a single people

1. What volitional divine law is we may well understand from
the meaning of the words. It is, of course, that law which has its
origin in the divine will; and by this origin it is distinguished from
the law of nature, which also, as we have said, may be called divine.

In the consideration of volitional divine law that is applicable
which Anaxarchus * rather vaguely expressed, that God does not will
a thing because it is lawful, but that a thing is lawful—that is
obligatory—because God willed it.

2. [his law, moreover, was given either to the human race,
or to a single people. To the human race we find that the law was
thrice given by God: immediately after the creation of man, a second
time in the renewal of human kind after the Flood, lastly in the more
exalted renewal through Christ.

These three bodies of divine law are beyond doubt binding upon
all men, so far as they have become adequately known to men.

XV1I.—That those not of ‘fewish birth have never been bound by the

Hebraic law

1. Among all peoples there is one to which God vouchsafed
to give laws in a special manner; that is the Jewish people, which
Moses thus addresses (Deuteronomy, iv. 7): ‘* For what great nation
is there, that hath a God so nigh unto them, as Jehovah our God is
whensoever we call upon Him? And what great nation is there,
that hath statutes and ordinances so righteous as all this law, which
I set before you this day ?’

Similar are the words of the psalmist (Psalms, cxlvii) :

He showeth his word unto Jacob,

His statutes and his ordinances unto Israel.

He hath not dealt so with any nation ;

As for his ordinances, they have not known them.

2. Nor should we doubt that those of the Jews are in error
(among them Trypho, in his discussion with Justin) who think that
even foreigners, if they wish to be saved, must pass under the yoke
of the Hebraic law. An ordinance, in fact, is not binding upon those
to whom it has not been given. But in the case under consideration
the ordinance itself declares to whom it was given, in the words:
‘Hear, O Israel,’ ? and everywhere the covenant is spoken of as
made with the Jews, and they themselves are said to be chosen as

1 The passage is in Plutarch’s Alexander [li=p. 695 A]. .
4 Moses Maimonides held the same opinion, and supported it by Deuteronomy, xXxxul. 4.

[Pro-
legomena,
12.]

fxvu. 4.]

46 On the Law of War and Peace [Book I

the peculiar people of God. The truth of this was recognized by
Maimonides, who proves it by the passage in Deuteronomy, xxxill. 4.

3. Among the Jews, moreover, there always dwelt some men of
foreign birth, ‘devout men and that fear God,’ such as the Syro-
Phoenician woman (Matthew, xv. 22), Cornelius (Acts, x. 2), and
‘the devout Greeks’ (Acts, xviii. 4). In Hebrew we find ‘the
pious ones of the Gentiles’, as we read in the title of the Talmud
concerning the King.! Such is he who in the law is called ‘ foreigner’,
literally ‘son of strangeness’ (Leviticus, xxil. 25); also “stranger or
sojourner’ (Leviticus, xxv. 47), where the Chaldean has ‘ uncircum-
cised inhabitant ’.?

These, as the Jewish teachers themselves declare, were bound to
observe the laws that had been given to Adam and Noah, to abstain
from idols, from blood, and from the other things which will be
mentioned below in their proper place; but they were not bound
to observe also the laws which were peculiar to the Israelites. And
so, while the Israelites were not permitted to eat the flesh of a creature
which had died a natural death, [8] nevertheless this was allowed
to foreigners who were living among them (Deuteronomy, xiv. 21).
There were exceptions only in the case of certain laws in which it
was expressly stated that sojourners should be bound by them no
less than natives.

4. Again, strangers who came from outside, and were not
subject to Jewish institutions, were permitted to worship God in the
temple at Jerusalem, and to offer sacrifices; they must stand never-
theless in a place separate and apart ® from that where the Israelites
stood (z Kings, Vulgate, 3 Kings, vit. 41; 2 Maccabees, ii. 35;
Fobn, xii. 20; Acts, vill. 27). And Elisha did not point out to
Naaman the Syrian,* nor Jonah to the people of Nineveh, nor Daniel

1 Also the title On the Sanhedrin, chap. xi.

2 Reference is made to such an ‘ uncircumcised sojourner’ also in Exodus, xi. 45. From him the
proselyte, that is the circumcised stranger, is distinguished, as shown by comparison with a passage
in Numbers, ix. 14. Of these pious uncircumcised persons Maimonides has much to say in his book
On Idolairy, chap. x, 6. Also in his commentary Zo Misnajoth, and frequently elsewhere, he says
that those pious persons from among the Gentiles will be sharers in the blessings of time to come.

Chrysostom, On Romans, chap. u [Homily V, 1i1, on verse ro]: ‘What Jew does he mean, and of
what Greeks is he discoursing ? Of those who were before the coming of Christ; for his argument
has not yet been brought down to the times of grace.’ Then, ‘ By Greeks he here means not those
that worshipped idols but those that feared God, that obeyed the law of nature, that strictly kept all
observances which make for piety, save only the Jewish observances.’ Examples he finds in Mel-
chizedek, Job, the Ninevites, Cornelius ; later he adds [Homily VI, 1v, on verse 29]: ‘ And again he is
speaking of a Greek, not as a worshipper of idols, but god-fearing, virtuous, and free from the obser-
vances of the law.’ To the same effect [14] he explains the words ‘to them that are without law as
without law’ [On First Corinthians, Homily XXII, ili, on verse 21]; and On the Statues, Homily XII
[XII, v]: ‘The Greek whom he names here is not devoted to idols, but a worshipper of the one
God ; nevertheless one who is not bound by the constraint of Jewish observances, as, for example,
the keeping of the Sabbath day, circumcision, and various punfications; yet one who meanwhile
manifests devotion to wisdom and piety in all things.’

* See Josephus, where the history of Solomon’s temple is treated [Josephus, The Jewish War,
V. v. 63 Antiquities of the Jews, VIII. iv. 3].

“ Hilary expressed the same opmion, On Maithew, xii.

Chap. I] What 1s War? What is Law? 47

to Nebuchadnezzar, nor the other prophets to the Tyrians, the
Moabites, or the Egyptians to whom they wrote, that it was necessary
for them to receive the law of Moses.

5. What I have said of the law of Moses as a whole, I wish to
consider as said also with reference to circumcision, which was as it
were the introduction to the law. There is only this difference, that
the Israelites alone were bound by the law of Moses, while the whole
posterity of Abraham was held subject to the law of circumcision ;
in consequence, we read in the historical writings of both Jews and
Greeks that the Idumaeans adopted circumcision under compulsion
of the Israelites. Wherefore we may well believe that the peoples
which, besides the Israelites, practised circumcision (there are several
of them, mentioned by Herodotus, Strabo, Philo, Justin, Origen,
Clement of Alexandria, Epiphanius, and Jerome*) were descended
from Ishmael, or from Esau, or from the descendants of Keturah.?

6. For the rest, in all cases the principle stated by Paul (Romans,
li. 14) was applicable :

‘When Gentiles that have not the law do by nature’ ® (that
is in accordance with the usages that flowed from the primitive
source, unless one prefers to refer “ nature’ to what precedes, in order
to contrast the Gentiles with the Jews, into whom from birth the
law was inculcated) ‘ the things of the law, these, not having the law,
are the law unto themselves, in that they show the work of the law
written in their hearts, their conscience bearing witness therewith,
and their thoughts one with another accusing or else excusing them.’

And in the same connexion (verse 26) there is another statement :
‘Tf the uncircumcision’ (that is a man who has not been circumcised)
‘keep the ordinances of the law, shall not his uncircumcision be
reckoned for circumcision ?’ With reason, therefore, in the history
by Josephus, the Jew Ananias instructed Izates of Adiabene (‘Tacitus
calls him Ezates), that even without circumcision God can be rightly
worshipped and propitiated.*

In regard to the fact that many foreigners were circumcised,
and through circumcision made themselves subject to the law (as

1 Theodoret may be added. ‘

2 From them apparently were descended those of the Ethiopians whom Herodotus [II. civ]
reckons among the circumcised. Epiphanius [On the Twelve Stones] calls them Homeritae.

3 ‘ By. the reasonings of nature,’ says Chrysostom [On Romans, Homily V, v, on chap. i. 14]. After-
ward he adds, ‘ For this reason they are to be admired, because they had no need of a law’; also
[ibid., on verse 16]: ‘In place of the law conscience and the use of reason suffice.’

Tertullian, An Answer to the Jews [chap. ii] says: ‘ Before the law of Moses, writ upon tablets of
stone, I maintain that there was an unwritten law, which was understood by nature, and was kept by
the fathers.’ Not far from this is the thought of Isocrates [Areopagiticus, xvi = 148 A]: ‘ Those
who wish to have a good commonwealth ought not to fill their colonnades with inscnbed decrees but
to carry in their hearts a regard for what 1s just.’ ;

‘ Trypho himself, relaxmg his uncompromising attitude, speaks thus to Justin [Justin, Dialogue
with Trypho, vili = 493 Al: ‘Tf you had continued in that kind of philosophy, some hope of a better
state would have been left to you.’

1569°27 E

Antiugut-
tres of

the Jews,
XX ii. 4].
[ Annals,
XII xiv]

48 On the Law of War and Peace [Book I

Paul explains, Galatians, v. 3), they did this in part that they might
acquire the right of citizenship, for proselytes, whom the Jews
called foreigners of righteousness, had the same rights as the
Israelites (Numbers, xv. 15); in part that they might become sharers
of the promises? which were not common to the human race but
peculiar to the Jewish people. Nevertheless I should not deny that
in the following centuries a perverse opinion was embraced by some,
to the effect that there was no salvation outside the pale of Judaism.

7. From this we conclude that we are bound by no part of the
Hebraic law, so far as this is law of a special kind. For, outside of the
law of nature, the binding force of law comes from the will of him
who makes the law; and it is not possible to discover, from any
indication, that God willed that others than Israelites should be
bound by that law. There is, then, no need of proof that in respect
to ourselves this law has been abrogated ; for a law cannot be abro-
gated in respect to those on whom it has never been binding. But
for the Israelites its binding force was abrogated in respect to rituals,
at least, the moment the law of the Gospel began to be promulgated,
as was clearly revealed to the chief of the Apostles (Acts, x. 15).
It was abrogated also in regard to other things, after the Jewish
people, though the fall and [9] devastation of their city, which
was destroyed without hope of restoration, ceased to be a nation.

8. What we, who are not of Jewish birth, gained from the
coming of Christ, was not that we should not be bound by the laws
of Moses, but that, having previously had only an obscure hope
resting on the goodness of God, we are now upheld by a covenant
expressed in plain words. We are therefore able to unite ourselves
with the Jews, sons of the Patriarchs, in one church, since their law,
by which as by a barrier they were held apart from us, has been done
away with (EZphestans, ii. 14).

XVIL—What arguments Christians may draw from the Hebraic law,
and in what way

1. Since the law given through the agency of Moses cannot
impose direct obligation upon us, as we have already shown, let us see
whether it may be useful to us in any other way, not only in this
inquiry regarding the law of war but in other similar inquiries. To
know this is, in fact, on many accounts important.

2. First, then, the Hebraic law shows that that which is enjoined

1 Justin, Dialogue with Trypho [cxxiii = 761 a]: ‘The proselyte who has been circumcised and
has joined himself with the people is on a plane with the native-bom [Israelite].’
_ 7 For “a reason they were admitted to a participation in the feast of the Passover [cf. Exodus,
xii. 19, 47, 48].

Chap. I] | What is War? What is Law? | 49

by it is not contrary to the law of nature. For since the law of
nature, as we have previously said, is perpetual and unchangeable,
nothing contrary to that law could be enjoined by God, who is never
unjust. Further, the law of Moses is called ‘ pure’ and ‘ right’
(Psalms, xix. 8; Vulgate, xviii. 8), and the Apostle Paul calls it
‘holy ’, ‘just’, and ‘ good’ (Romans, ‘vii. 12). |

J am speaking of the ordinances of the law; for in regard to the
things which it permits a closer distinction must be made. Now
permission which is accorded by a law—we are not concerned here
with a permission which involves fact merely, signifying the removal
of an impediment—is either complete, which authorizes the doing
of something with the fullest possible liberty, or incomplete, which
only grants freedom from punishment among men, with the right
of non-interference by another. From permission of the former
kind, not less than from a command, it follows that that with which
the law deals is not contrary to the law of nature. With permission
of the second sort the case is different.1 But inference from the law
of Moses to the law of nature is rarely in order, for the reason that,
when the words which express the permission are equivocal, it is
more fitting for us to determine by the law of nature of which kind
the permission is rather than to proceed by argument from the
character of the permission to the law of nature.

3. Akin to this first observation is a second, that to those who
among Christians have the sovereign power it is now permitted to
make laws having the same purport as the laws which were given by
the agency of Moses; exception being made of those laws whose
entire content belonged to the time when Christ was still expected
and the Gospel was not yet revealed, and of laws in relation to which
Christ ordained the contrary, either in general or in particular.
Outside of these three cases no reason can be thought of why that
which was ordained by the law of Moses should now be outside the
range of things which are permissible. |

_ 4, A third observation should be added. All that was enjoined
by the law of Moses with reference to those virtues which Christ
requires of His disciples, is just as much, or even in a greater degree,
to be required of Christians now.? The basis of this observation is
to be found in the fact that the virtues required of Christians, as.
humility, long-suffering, and love, are required in a higher degree *

1 See Chrysostom, On Romans, end of chap. vii [Homily XIII, iv]. . :

2 Tertullian, On Modesty [chap. vi]: ‘ Liberty in Christ has done no wrong to innocence. There
remains in its entirety the law of piety, truth, steadfastness, chastity, justice, mercy, kindliness,
modesty.’ | | | |

8 Chrysostom, On Virginity, xciv [lexxiv]: ‘Now a greater degree of virtue ought to be dis-
played ... because the grace of the Spirit has now been abundantly shed abroad, and bécause the ~
coming of Christ is a great gift.’ The same father presents similar expressions in the homily, Thai

50 On the Law of War and Peace [Book I

than was the case under the Hebraic law; that, too, with good
reason, because the heavenly promises are set forth in the Gospel
much more clearly.

Hence the old law compared with that of the Gospel is said to
have been neither ‘ perfect ’ nor ‘ faultless? (Hebrews, vii. 19 ; viii. 7),
and Christ is said to be ‘the end of the law’ (Romams, x. 4); also,
the law is spoken of as a ‘ tutor to lead us to Christ ’ (Galatzans, 111. 25).
Thus the ancient law of the Sabbath and that of tithes* show that
Christians are bound to set apart not less than a seventh of their
time for divine worship, and not less than a tenth of their income
for the support of those who minister in the sacred offices, or to
similar pious uses.

Faults are the Result of Neglect [= On the Devil as Tempter, Homuly III, wn]; also, On Fasteng, III;
and On Romans, the passages dealing with vi. 14 [Homily XT] and vii. 5 [Homily XIT; see also on
verse 6].

Add Irenaeus, [Against Heresies] Book IV, chap. xxvi. The writer of the Synopsis of Holy
Scriptures [xlvil] which is found in the works [15] of Athanasius, treating the fifth chapter of Matthew,
says: ‘Christ here renders the “‘ precepts of the law more strict”’.’

+ Thus Irenaeus [Against Heresies], Book IV, chap. xxxiv, makes application of this law in
respect to Christians ; so does Chrysostom also, On First Corinthtans, end of the last chapter [Homily
XLII, 1v to verse 9], and On Ephesians, ii. 10 [Homily IV, iv, on verse ro].

CHAPTER II
WHETHER IT IS EVER LAWFUL TO WAGE WAR

I.—That war is not in conflict with the law of nature is proved by several
considerations

I. Havinc seen what the sources of law are, let us come to
the first and most general question, which is this: whether any war
is lawful, or whether it is ever permissible to war. This question, as also
the others which will follow, must first be taken up from the point
of view of the law of nature.

Marcus Tullius Cicero, both in the third book of his treatise
On Ends and in other places, following Stoic writings learnedly
argues that there are certain first principles of nature—‘ first according
to nature’, as the Greeks phrased it—and certain other principles
which are later manifest but which are to have the preference over
those first principles. He calls first principles of nature those in
accordance with which every animal from the moment of its birth
has regard for itself and is impelled to preserve itself, to have zealous
consideration for its own condition and for those things which
tend to preserve it, and also shrinks from destruction and things
which appear likely to cause destruction. Hence also it happens,
he says, that there is no one who, if the choice were presented to him,
would not prefer to have all the parts of his body in proper order
and whole rather than dwarfed or deformed; and that it is one’s
first duty to keep oneself in the condition which nature gave to him,
then to hold to those things which are in conformity with nature
and reject those things that are contrary thereto.

2. But after these things have received due consideration
[Cicero continues], there follows a notion of the conformity of things
with reason,! which is superior to the body. Now this conformity,
in which moral goodness becomes the paramount object, ought to be
accounted of higher import than the things to which alone instinct
first directed itself, because the first principles of nature commend
us to right reason, and right reason ought to be more dear to us
than those things through whose instrumentality we have been
brought to it.?

1 Seneca, Letters, cxxiv [XX. vii. 11]: ‘ Just asin every case a nature, unless brought to its highest
perfection, does not manifest its type of good, so the good of man is not found in man unless reason

has been perfected in him.’ ; ;
2 Seneca, Letters, lxxvi [TX. v. 8]: ‘ That to which each creature is born, and on account of which

§1

[IIT. v.
17]

Gellius,
[A ttsc

Nights, ]
XII v.

[Traming
of Cyrus,
II iiz. 9 |
[Ovid,
Halieutica,
7-9]

52 On the Law of War and Peace [Book I

Since this is true and without other demonstration would easily
receive the assent of all who are endowed with sound judgement,
it follows that in investigating the law of nature it is necessary first
to see what is consistent with those fundamental principles of nature,
and then to come to that which, though of later origin, is nevertheless
more worthy—that which ought not only to be grasped, if 1t appear,
but to be sought out by every effort.

3. According to the diversity of the matter, that which we
call moral goodness at times consists of a point, so to speak, so that
if you depart from it even the least possible distance you turn aside
in the direction of wrong-doing; at times it has a wider range, so
that an act may be praiseworthy if performed, yet if it be omitted
altogether or performed in some other way no blame would attach,
the distinction being generally without an intermediate stage, like
the transition from being to not-being. [16] Between things
opposed in a different way, however, as white and black, a mean may
be found either by effecting a combination of the two or by finding
an intermediate between them.

It is with this latter class of actions that both divine and human
laws are wont to concern themselves, in order that those acts which
were in themselves merely praiseworthy might become also obligatory.
But we said above, in discussing the law of nature, that the question
is this, whether an act can be performed without injustice; and
injustice is understood to be that which is utterly repugnant to
a rational and social nature.

4. In the first principles of nature there is nothing which is
opposed to war; rather, all points are in its favour. The end and
aim of war being the preservation of life and limb, and the keeping
or acquiring of things useful to life, war is in perfect accord with
those first principles of nature. If in order to achieve these ends
it is necessary to use force, no inconsistency with the first principles
of nature is involved, since nature has given to each animal strength
sufficient for self-defence and self-assistance. ‘ All kinds of animals’,
says Xenophon, ‘ understand some mode of fighting, and they have
learned this from no other source than nature.’ In the fragment
of the Piscation we read:

To all has it been given
To recognize a foe, likewise to know

it is esteemed, is the best thing in it. What is the best thing in aman? Reason.’ See also Letters,
exxi [XX. iv] and cxxvuii [apparently cxxiv, cited in the previous note, is meant].
Juvenal, Satives, xv [lines 106-8] :
Zeno’s rules to us
Give better guidance; for their teaching is
That not all things, but only certain things
We may do to save life.

Chap. IT] Whether tt is ever Lawful to wage War 53

Their safeguards each its own, and power and use
Each of its weapon.

Horace had said :

With tooth the wolf, with horn the bull attacks;
And why, unless by inner feeling guided ?

Lucretius presents the thought more fully:

Each creature feels the strength which it can use.
Felt by the calf his horns are, ere they stand
Upon his forehead; and with them he butts
Angrily, and, threatening, forward thrusts.1

The same idea is thus expressed by Galen: ‘ We see that each
animal uses for its protection that in which it is strongest. For the
calf whose horns have not yet sprouted threatens with that part,
and the colt kicks before its hoofs are hard, and the puppy tries to
bite when its teeth are not yet strong.’ Galen also remarks (On the
Use of Parts, 1) that man is an animal born for peace and war.
Weapons, to be sure, are not born with him, but he has hands suited
for fashioning and handling weapons; and we see that babies of
their own accord, and without being taught by any one, use their
hands in place of weapons.? So Aristotle, too (Ox the Parts of Animals,
IV. 10), says that in the case of man the hand has the place of spear,
sword, and all other weapons, because he is able to take and hold
everything with the hand.

5. Right reason, moreover, and the nature of society, which
must be studied in the second place and are of even greater impor-
tance, do not prohibit all use of force, but only that use of force
which is in conflict with society, that is which attempts to take away
the rights of another. For society has in view this object, that
through community of resource and effort each individual be safe-
guarded in the possession of what belongs to him.

137] Martial [Zpigrams, III. lviii. 11]:
The calf with head unhorned is keen to fight.

Porphyry, On Abstaining from Animal Food, Book III [III. ix]: ‘Each animal knows in what
part it is weak, in what part strong ; the former it shields, the latter it makes use of. The panther uses
its teeth, the lion its claws and teeth, the horse its hoof, and the ox its horns.’

Chrysostom, On the Statues, XI [Homily XI, iv]: ‘ The animals, devoid of reason, have their
weapons in the body itself ; thus the ox has horns, the wild boar tusks, the lion claws. To me, on the
contrary, God has not furnished weapons in the organization of my body, but outside the body, showing
by this very fact that man is a gentle animal, and that I do not at all times have need of such weapons.
Often, in fact, I lay my missile aside, sometimes I take it up again. Weapons, therefore, he caused
to be separate and apart from my nature, in order that I might be more free and unfettered, and might
not be compelled always to carry them.’ The latter part of the quotation accords well with the passage
of Galen quoted in the text.

® Cassiodorus, On the Soul [ix]: ‘ And since the body of man is able to defend itself neither with
hom nor with tusk nor by means of flight’ (as the other animals do), ‘ there were granted to him a power-
ful chest and arms; to the end that with the hand he might ward off attempted injury and protect
himself by presenting his body—so to speak—as a kind of shield.’

[Satires,
II. i. 52 f.]

[V. 1033
ff.]

On Duives,
IIT [III.
v. 22].

[On
Dutves,
I, x1. 34.]

Letters,
XIT. 1
(XII.

li x].
Digest,
XLIII,.
XVi.I 27.

[Art of
Love,
III, 492 ]

On the Law of War and Peace [Book I

It is easy to understand that this consideration would hold even
if private ownership (as we now call it) had not been introduced ;
for life, limbs, and liberty would in that case be the possessions
belonging to each, and no attack could be made upon these by
another without injustice. Under such conditions the first one
taking possession would have the right to use things not claimed and
to consume them up to the limit of his needs, and any one depriving
him of that right [17] would commit an unjust act. But now
that private ownership has by law or usage assumed a definite form,
the matter is much easier to understand. I shall express the thought
in the words of Cicero:

54

Just as, in case each member of the body should have a feeling of its own, so that
it might think that it could gain in vigour by drawing to itself the vigour of the nearest
member, the whole body would of necessity be weakened and utterly perish, so, 1f every
one of us should seize upon the possessions of others for himself and carry off from each
whatever he could, for his own gain, human society and the community of life would of
necessity be absolutely destroyed. For, since nature does not oppose, it has been granted
that each prefer that whatever contributes to the advantage of life be acquired for himself
rather than for another ; but nature does not allow us to increase our means of subsistence,
our resources, and our riches, from the spoil of others.

6. It is not, then, contrary to the nature of society to look out
for oneself and advance one’s own interests, provided the rights of
others are not infringed; and consequently the use of force which
does not violate the rights of others is not unjust. This thought also
Cicero has presented : ‘ Since there are two ways of settling a differ-
ence, the one by argument, the other by force, and since the former
is characteristic of man, the latter of brutes, we should have recourse
to the second only when it is not permitted to use the first.’ ‘ What
can be done’, says the same writer in another passage, ‘ against force
without force ?’

In Ulpian we read: ‘Cassius writes that it is permissible to
repel force by force, and this right is bestowed by nature. From this
moreover it appears, he says, that it is permissible to repel arms by
means of arms.’ Ovid had said:

The laws permit arms ’gainst armed men to bear.

I].—That war is not in conflict with the law of nature is proved from
history

1. Our statement that not all war is in conflict with the law
of nature is more fully proved from sacred history. For Abraham
with his servants and allies had taken up arms and had won the
victory over the four kings who had sacked Sodom ; and God approved
the deed through his priest Melchizedek. Thus in fact Melchizedek
addressed him (Genesis, xiv. 20): ‘ Praise be to God Most High,

Chap. IT] Whether tt is ever Lawful to wage War 55

who has delivered thine enemies into thine hand.’ But Abraham
had taken up arms, as is evident from the narrative, without a special
command of God; in accordance with the law of nature, therefore,
did he act, a man not only most holy but also most wise—so recognized
even by the testimony of foreigners, Berosus and Orpheus.

I shall not appeal to the history of the seven peoples whom God
delivered to the Israelites to be destroyed; for in that case there
was a special command to execute a judgement of God upon peoples
guilty of the greatest crimes. These wars therefore in holy writ are
properly called the wars of God, since they were undertaken by the
command of God, not at the discretion of men. Having a more
direct bearing on our subject is the war in which the Jews, under the
leadership of Moses and Joshua, by arms repelled the Amalekites who
were attacking them (Exodus, xvii). This act, which God had not
commanded in advance, He approved afterward.

2. But further, God laid down for His own people general and
perpetual laws in regard to the mode of carrying on war (Deuteronomy,
XxX. IO, 15), showing by this very act that a war can be just even
without having been specifically commanded by Him. For in these
passages He plainly distinguishes the case of the seven peoples from
that of other peoples; and since in the same passages He presents no
ordinance dealing with the just causes for undertaking war, by this
very fact He shows that these are clearly enough known from nature.
A just cause of war, for example, is the defence of territory, in the
war of Jephthah against the Ammonites (Fudges, xi); another is
the maltreatment of envoys, in the war of David against the same
people (2 Samuel, x).

In the same connexion we should note what the inspired writer
to the Hebrews says, that Gideon, Barak, Samson, Jephthah, David,
Samuel, and others ‘ through faith subdued kingdoms, waxed valiant
in fight, turned to flight the armies of the aliens’ (Hebrews, x1. 33,
34). In this passage, as the context makes plain, he includes in the
term ‘faith’ the conviction that [18] what is done is pleasing
to God. So also a wise woman says that David ‘ fights the battles
of God ’ (z Samuel, xxv. 28), that is, battles that are righteous and just.

II.—T hat war ts not in conflict with the law of nature is proved from
general agreement

1. Our thesis is proved also by the general agreement of all
nations, and especially among the wise. Well known is the passage
of Cicero in regard to force used in the defence of life, in which he
bears witness to nature herself :

There is this law which is not written, but born with us; which we have not learned,

[Josephus
Anhqui-
ties of the
Jews, I.
Vil. 25
Clement of
Alexan-
dna, Sivo-
mata, V.
x. 124]

For Mtlo
fiv. Io].

[For Mzlo,
Xi 30.]

Digest,
[X.1i 4
Dzg., I. 1.
3

Jewish
War, III.
xxv [III.
viii. 5].

Dig. TX. i.
I. §§ 3, II.

Add
Exodus,
xx. 28.

[Natural
History,
VII. pr.]

56 On the Law of War and Peace

have not received, have not read, but which we have caught up, have sucked in, yes have
wrung out from nature herself; a law regarding which we have not been instructed,
but in accord with which we have been made; to which we have not been trained,
but with which we are imbued—the law that if our life has been placed in jeopardy
by any snare, or violence, or weapons either of brigands or of enemies, every possible
means of securing safety is morally right.

[Book I

The same writer in another passage adds:

This law reason has enjoined upon the learned, necessity upon barbarians, custom
upon nations, and nature herself upon wild beasts, that always, with whatever means of
defence they possess, they ward off all violence from body, from head, from life itself.

The jurist Gaius says: ‘Natural reason permits defence of
oneself against danger’; the jurist Florentinus, ‘ In accordance with
this law it comes about that whatever each may have done in defence
of his person he is thought to have done lawfully.’ ‘ For there is’,
says Josephus, ‘that law of nature which applies in the case of all
creatures, that they wish to live; and therein lies the reason why we
consider those as enemies who clearly wish to rob us of life.’

2. So obvious is the fairness of this principle that even among
brutes which, as we have said, have not the substance of legal rights
but only a shadowy appearance of them, we may distinguish between
the use of force which attempts an injury and that which wards it off.
For Ulpian, having said that an animal devoid of sense, that is, of
the use of reason,? is incapable of doing what is legally wrong, never-
theless immediately adds that when rams or bulls have fought, and
one has killed the other, on the authority of Quintus Mucius a dis-
tinction ought to be made. If the animal which started the fight
should be killed, an action would not lie; but if the animal which
had not started the fight should be killed, an action would lie. A passage
of Pliny will serve to throw light on what has been said :

The fierceness of lions does not manifest itself in attacks upon lions, the bites of
serpents are not directed to serpents; but if violence is attempted there is no creature
which does not manifest anger, which does not possess a spirit impatient of injury and
will not show a ready liveliness in defending itself if you do it harm.

1 Seneca [Letters, XX. iv. 18]: ‘The surest means of defence in the case of each is nearest at
hand; to each the protection of itself has been committed.’ Quintilian, [Insittutes of Oratory,]
VII. in [VII. ii. 2]: ‘First, in every sort of case there must be a defence, because by nature our own
safety is more important to us than the destruction of an adversary.’

Well does Sophocles say in the Tvachinian Women [lines 278, 279] :

For openly had he himself defended,
God would have pardoned him his combat just.

See also the Law of the Visigoths, Book VI, title i, chap. 6 [VI. iv. 6; ed. Zeumer, p. 267],

2 In like manner, Seneca speaks of wild beasts [On Benefits, I. iil. 5]: ‘Far as they are from the
understanding and appraisal of a benefit, yet persistent repetition of kindnesses completely masters
them.’ See the whole passage, On Benefits, Book I, chap. iu, and compare our quotation from Philo
in the Prolegomena [note 2, p. 11].

Chap. IT] Whether it 1s ever Lawful to wage War 57

IV.—Proof ts adduced that war is not in conflict with the law of nations

I. It is sufficiently well established, therefore, that not all wars
are at variance with the law of nature; and this may also be said to
be true of the law of nations.

2. That wars, moreover, are not condemned by the volitional
law of nations, histories, and the laws and customs of all peoples fully
teach us. Rather, Hermogenianus said that wars were introduced
by the law of nations ;* but I think that this statement ought to be
understood as having a meaning slightly different from that ordinarily
given to it, namely, that a definite formality in the conduct of war
was introduced by the law of nations, and that particular effects
follow wars waged in accordance with such formality under the law
of nations. Hence arises the distinction, which we shall have to
make use of later, between a war which, according to the law of
nations, is formally declared and is called legal, that is a complete
war; and a war not formally declared, which nevertheless does not
on that account cease to be a legal war, that is according to law.
For as regards other wars, provided the cause be just, the law of
nations does not indeed lend them support, but it does not oppose
them, as will be explained more fully later. ‘It has been established
by the law of nations,’ says Livy, ‘ that arms are to be warded off by
arms.’ And Florentinus declares that the law of nations authorizes
us to ward off violence and injury in order to protect our body.

V.—Proof ts adduced that war was not in conflict with the divine
volitional law before the time of the Gospel, and objections are
answered

1. A greater difficulty presents itself in connexion with the
divine volitional law. Let no one at this point raise the objection
that the law of nature is unchangeable, and that in consequence
nothing can be established by God which is contrary to it. For this
holds true in respect to those things which the law of nature [19]
forbids or enjoins, but not in respect to the things which by the law
of nature are permissible only. ‘Things of the latter class, since they
do not properly belong to the sphere of the law of nature but are
outside that sphere, can be both forbidden and enjoined.

2. First, therefore, as against war some are accustomed to
bring forward the law given to Noah and his posterity, in which
God thus speaks (Gemests, ix. 5, 6):

1 The writer of the Lives of Famous Men says in Themsstocles [Nepos, Themistocles, vii. 4]: ‘ He
declared that the Athenians in accordance with his advice—as they were permitted to do by the
common law of nations—surrounded with walls the gods of their state, their city, and their homes, in
order that they might be able the more easily to defend these against the enemy.’

Dig 1.1.5.

[Book
III i.)

Book
ALITI
[XLIT.
xl. rz].
Dig. I.1 3.

[Coniro-
verstes,
X. pr. 5.]

[Laws, IX,

viil.]

[Orestes,
512 ff.)

58 On the Law of War and Peace [Book I

And surely your blood, the blood of your lives, will I require ; from every beast will
I require it; and at the hand of man, even at the hand of every man’s brother, will
I require the life of man, Whoso sheddeth man’s blood, by man shall his blood be shed :
for in the image of God made He man.

The first part of this passage, then, in which the requiring of
blood is mentioned, they understand as altogether general; and they
suppose that the second part, about the shedding of blood in turn,
is in the nature of a menace, not an expression of approval. Neither
interpretation is to me convincing. For the prohibition in regard to
the shedding of blood has nowider application than the commandment,
‘Thou shalt not kill’; but this commandment, it is clear, has not
proved to be an obstacle either to capital punishment or to wars. The
latter rule of law then, as well as the former, had in view not so much
the ordaining of something new as the declaration and repetition of
a rule of the law of nature which had been effaced by degenerate
usage. Hence these words are to be taken in a sense which conveys
the idea of a moral fault, just as by the word homicide we under-
stand not the slaying of a man in general, but a premeditated murder
of an innocent man. What follows in regard to the shedding of blood
in turn seems to me to contain not a statement of a bare fact, but
a provision of law.

I explain the matter thus. According to nature it 1s not
unfair that each suffer to the full extent of the evil he has committed,
2 accordance with the principle which is called the law of Radaman-
thus : 3

If each shall suffer all that he has done,
It will be fair and right.

Seneca the father phrased the idea thus: ‘ By a most just recompense
of suffering each through his own punishment undergoes what he
devised for another.’ In accordance with the view-point of this
natural equity Cain, conscious of parricide, had said (Genesis, iv. 14) :
‘Whosoever findeth me shall slay me.’

{n those first times, however, either on account of the scarcity
of men or because criminals were few in number and so there was
less need of an example, that which seemed to be permitted by
nature God repressed by a command; He desired that contact and
intercourse with a murderer be avoided, but that life be not taken
from him. A similar regulation Plato established among his laws ;
that such was the practise formerly in vogue in Greece Euripides
informs us in these verses :

a The law of Radamanthus is stated by Apollodorus, in Book II [Apollodorus, Library, II. iv. 9]:
The law of Radamanthus: if a man has avenged himself on one who first attempted to injure him,
let him go unpunished.’

Chap. IT] Whether it ts ever Lawful to wage War 59

How well the prescient age of our forebears
Decreed, that whoso murder had committed
Should far from way and sight of men depart,
By flight, not death, his dreadful crime atone!

To the same point the following passage of Thucydides relates :
‘It is believable that in antiquity penalties were light } even for great
crimes; but as these in the course of time came to be viewed with
contempt, recourse was had to the death penalty.” ‘ Until now,’
says Lactantius, ‘it seemed in fact wicked to inflict the punishment
of death upon criminals who, no matter how bad, are nevertheless
men.’

4. Upon the one striking example was based a conclusion [20]
in regard to the divine will, and this passed over into a law. Thus
Lamech, having committed a similar crime,? in the light of that
example promised himself exemption from punishment (Genests,
Iv. 24).

5. But since already before the Flood, in the period of the
giants, a general orgy of murders had prevailed, in the renewal of
the human race after the Flood God judged that severer measures
must be taken, in order that the same custom might not become
fixed; and having done away with the mildness of the former age,
He Himself permitted that the man who had killed a murderer?
should be innocent—a measure which nature declared was not
unfair. Afterward, when courts were established, for very weighty
reasons this permission was restricted to judges alone. Nevertheless,
a trace of the older custom remained in the right of the next of kin
of a murdered man; this right was recognized even after the law
of Moses, as will be more fully discussed later.

6. In favour of our interpretation we have the great authority
of Abraham who, being not ignorant of the law given to Noah, took
up arms against the four kings, obviously in the belief that his action
was not in conflict with that law. In like manner also Moses ordered
that the Amalekites, who were attacking the people, be resisted by
force of arms; he made use, as we see, of the law of nature, for it

1 [38] Servius, On the Aeneid, Book I [Book I, line 136], explains Iwetis, ‘you shall atone for’,
by persolvetts, ‘ you shall pay for’, and says: “The expression arose from the use of money ; among the
ancients all penalties were in terms of money.’ Also on Book II [Book II, line 229], explaining ex-
pendere, ‘to expiate’ [literally ‘to weigh out’]: ‘The word is taken from the use of money; for among
our ancestors it is established that penalties were in terms of money, even when, on account of the
rudeness of the age, money was still weighed out ; in consequence the word was applied to the death
penalty.’ On Book VI [Book VI, line 21], explaining ‘ to pay’ [literally ‘ to weigh’, in the phrase ‘to
pay the penalty’ (pendere poenas)|: ‘The word was taken from condemnation to a penalty in money.’

Pliny, Natural Htstory, Book VII, chap. lvi [VII. Ivi. 200], relates that the first sentence of death
was pronounced in the Areopagus.

2 Or rather, if he had committed a similar crime ; for this is the meaning of the words recorded by
Moses [Genests, iv. 24]. . _

3 Josephus [Antzqusties of the Jews, I. ili. 8]: ‘ I enjoin upon you that your hands be kept free from
the shedding of men’s blood ; and if a man shall have committed murder, let him be punished.’

Book III
[xlv]

Book II
fix. 23].

60 On the Law of War and Peace [Book I

does not appear that God had been specifically consulted in regard
to this act (Exodus, xvii. 9). Furthermore, it is clear that capital
punishment was already applied not only to murderers but also to
other criminals, and not merely among foreign peoples but among
the favoured recipients of the holy teaching (Gemests, xxxviil. 24).

7. Beyond doubt interpretation of the divine will, with the
help of natural reason, had proceeded from like to like, so that it
seemed not unfair to apply to others who were guilty of exceptional
crimes the penalty which had been appointed for the murderer.
For there are certain things which are rated of equal value with life,
as reputation, maidenly chastity, and conjugal fidelity; and things
without which life cannot be safe, such as respect for the governing
power which maintains the social order. Those who attack these
things seem no better than murderers.

8. In this connexion belongs the ancient tradition which is
found among the Jews, that several laws were given by God to the
sons of Noah, of which not all were recorded by Moses, because
it was sufficient for his purpose that these were afterwards included
in the particular law of the Jews. ‘Thus it is evident that there
was an old law against incestuous marriages (Leviticus, xviii), although
this was not mentioned by Moses in the proper place. Among the
ordinances which God gave to the sons of Noah they say that the
following also had a place, that not only murder but also adultery,
incest, and robbery with violence should be punished with death.
This is confirmed by the words of Job (xxxi. I1).

9. Now the law which was given through the agency of Moses
justifies the inflicting of capital punishment by reasons which carry
not less weight among other peoples than with the Jewish people ;
examples are to be found in Leviticus, xviii. 24, 25, 27, 28; Psalms,
ci. 5; and Proverbs, xx. 8. Of murder it is specifically said that no
expiation can be made for the land except by shedding the blood
of the murderer (Numbers, xxxv. 31, 33). Besides, it is absurd to
think that on the one hand the Jewish people were allowed to protect
their moral code and the safety both of the state and of individuals
by means of capital punishment and to defend themselves by war,
and that, on the other hand, the same course of action was not at the
same time permissible to other kings and nations, while, nevertheless,
those kings or nations were never warned by the prophets, as they
were frequently warned in regard to other sins, that the use of
capital punishment and wars of every kind were viewed with dis-
approval by God.

to. Who, on the contrary, would not believe that, since the
law of Moses with reference to judgements embodied a faithful
expression of the divine will, the nations would have acted rightly

Chap. IT] Whether tt 1s ever Lawful to wage War 61

and fittingly in taking this as a model for themselves? It is believable
that at any rate the Greeks, the Attic Greeks in particular, did this ;
[21] thence it came about that there is so great similarity between
the ancient Attic law, together with the part of the Roman law of
the Twelve Tables derived from it, and the Hebraic laws. These
considerations seem sufficient to make it plain that the law given to
Noah did not have the meaning attributed to it by those who on
the strength of it oppose all wars.

VI.—Preliminary considerations bearing upon the question whether war
is in conflect with the law of the Gospel

1. The arguments against war which are drawn from the
Gospel have greater plausibility. In examining them I shall not
assume, as many do, that in the Gospel outside of the ordinances
relating to belief and to the sacraments there is nothing which does
not belong to the law of nature; for I do not think that this is true,
at least in the sense in which most people take it.

2. I willingly recognize the fact that in the Gospel nothing
is enjoined upon us which does not have the quality of natural moral
goodness; but I do not see why I should grant that we are not
bound by the laws of Christ beyond the limit of obligation imposed
by the law of nature of and by itself. It is amazing to see how those
who think differently labour in the effort to prove that things which
are forbidden by the Gospel are not permissible by the law of nature,
as concubinage, divorce,* and polygamy. These things in fact are
of such a nature that reason itself declares that it is morally better
to abstain from them, but they are not such that wickedness would
be manifest in them without divine law. Again, who would say that
we are bound by the law of nature to do that which the law of Christ
enjoins, that we expose ourselves to the danger of death for others
(z Fobn, iii. 16)? Pertinent is the saying of Justin: ‘ To live according
to nature is the problem of him who has not yet become a believer.’ ?

3. I shall not even follow those who make another by no
means slight assumption, that Christ, in delivering the precepts which
are found in the fifth chapter of Matthew and immediately thereafter,
was speaking only as an expounder of the law given through the
agency of Moses. Of an altogether different import are the words
so often repeated: ‘ Ye have heard that it was said to them of old
time—but I say unto you.’ The contrast here, as in the Syriac and
other versions, shows that the meaning is, ‘ to them of old time,’ not

1 To this point the passage of Jerome relates [To Oceanus, Letiers, lxxvn. 3]: “ Different are the
laws of Caesar and the laws of Christ ; Papinian enjoins one thing, our Paul another.’

2 The quotation from Justin is in the letter To Zena [ii]; and the same thought is found
in Origen, in those extracts which are known as Philocalia [chap. ix].

(xx. 13 ]
[Lev ,
XXIV. 21 |

[xx 14]

[Ev , XVL1,

16 |

[vu. 16 ]

62 On the Law of War and Peace [Book I

‘by them of old time’; so ‘to you’, not ‘by you’. Now ‘ they ot
old time’ were none other than those who were living in the time
of Moses. For the things which are declared to have been said
‘to them of old time’ are not utterances of men learned in the law
but of Moses, either word for word, or in substance. These utter-

ances are :
Thou shalt not kill (Exodus, xx. 30) ;
Whoso hath killed a man shall be held in judgement (Leviticus, xxi. 21; Numbers,

XxxV. 16, 17, 30) 3
Thou shalt not commit adultery (Exodus, xx. 30) ;
Whoso putteth away his wife, let him give to her a bill of divorcement (Deuteronomy,

EXiv. 1);
Thou shalt not swear falsely, but thou shalt render unto the Lord that which thou

hast sworn (Exodus, xx. 7; Numbers, xxx. 2) ;
An eye for an eye, a tooth for a tooth—supply ‘it may be permitted to demand in

judgement’ (Leviticus, xxiv. 20; Deuteronomy, xix. 21) ; .

Thou shalt love thy neighbour (that is, an Israelite; Levitscus, xix. 18), and shalt
hate thine enemy (for example, the seven peoples, with whom the Israelites are forbidden
to have friendship and to whom they are to show no mercy; Exodus, xxxiv. 11; Deutero-
nomy, vii. 1. To these the Amalekites are to be added, against whom the Jews are
bidden to wage implacable war ; Exodus, xxvii. 19; Deuteronomy, xxv. 19).

4. For the understanding of the words of Christ, however, we
must once for all observe that the law given through the agency of
Moses may be considered in two ways. First, it may be viewed
in relation to that which it has in common with other laws custom-
arily established by men, in so far, surely, as it restrains the graver
crimes by the fear of visible punishments (Hebrews, ii. 2) and by this
means holds the Jewish people in a state of civil society; from this
point of view it is called ‘ the law of a carnal commandment’ (Hebrews,
vil. 13), and law ‘of works’ (Romans, iii. 27). Or, in the second
place, the Mosaic law may be viewed in relation to that which is
peculiar to divine law, in so far, at any rate, as it demands purity of
soul and certain ‘actions which can be omitted without a temporal
penalty; from this point of view it is called [22] ‘spiritual law’
(Romans, vii. 14), ‘restoring the soul’ (Psalms, xix. 9; Vulgate
Xvlii. 9). The scribes and the Pharisees, contenting themselves with
the first point of view, paid small heed to the second, which is more
important, and did not impress it upon the people; the truth of
this statement can be shown not only from our books but also from
Josephus and the learned men of the Jews.

5. Even in relation to the second point of view, however, it is
important to know that the virtues required of Christians were also
either commended to the Jews, or enjoined upon them; but they.

1 That the hatred of these peoples was permitted by the law is remarked by the distinguished
Abrabanel, in his comment On Deuteronomy, xxi. 21.

Chap. IT] Whether it is ever Lawful to wage Way 63

were not enjoined upon the Jews with the same emphasis and with
so great breadth of application as upon Christians. In both respects
moreover Christ sets His teachings over against those of the old
time; whence it is clear that His words do not embody a mere
interpretation. Recognition of this fact is important not merely
with reference to the point now under consideration, but many
others as well, that we may not make use of the authority of the
Hebraic law to a greater extent than is just.

VII.—Arguments drawn from Holy Writ on bebalf of the negative view,
that war is not in conflict with the law of the Gospel

1. Passing by the arguments, then, which seem to us untenable,
the first and weightiest evidence by which we prove that the right
to war was not completely annulled by the law of Christ, shall be

that passage of Paul in 1 Timothy (ii. 1-3) :

I exhort, therefore, first of all that supplications, prayers, intercessions, thanks-
givings be made for all men; for kings and all that are in high place; that we may lead
a tranquil and quiet life in all godliness and gravity.2 This is good and acceptable in the
sight of God our Saviour, who would have all men to be saved, and come to the knowledge

of the truth.

In this passage we are taught three things: that it is acceptable
to God that kings become Christians; also that, having become
Christians, they remain kings (the thought was thus expressed by
Justin Martyr: ‘For this we pray, that kings and princes along
with their royal power may possess a sound mind’; and in the book
entitled Constitutions of Clement the Church prays for ‘Christian
authorities’, that is, for Christian magistrates 3); finally, that this
also is acceptable to God, that Christian kings enable other Christians

to lead a tranquil life.

1 For some comments bearing upon this topic see the notes to the end of the first chapter [p. 49,
note 3]. Especially fine is this passage of Chrysostom, On Virginity, chap. xliv:

Formerly, so high a degree of virtue had not been demanded of us, but it was permitted to
exact vengeance of him who inflicted an injury, to return abuse for abuse, and to devote oneself to
amassing riches ; to swear an oath free from guile, to take an eye for an eye, and to hate an enemy.
Nay, more, it had not been forbidden to live luxuriously, or to give way to anger, or to cast out one
wife and take another. And not even this only, but the law permitted a man to have two wives
at the same time, and both in this and in other matters there was large latitude in those times.
But after the coming of Christ the way of life was made much more narrow.

In the same treatise, chap. Ixxxiii: ‘The degree of virtue exacted from them was not the same as
from us.’ The same writer in the sermon That the Son is Equal to the Father, which is in vol. VI
[Against the Anomoeans, Homily, X, iv], says that in the Gospel ‘there is both a strengthening of the
Cormmandments and an increase in their number’.

2 Seneca, Letters, xxii [TX. ii], says that those who are devoted to philosophy are falsely thought
to be despisers of public officials and kings. ‘On the contrary’, he declares [IX. ii. 1}, ‘none are
better disposed toward them, and not without good reason ; for to none do those that govern contribute
more than to those to whom it is permitted to enjoy undisturbed quiet.’ The letter is well worth
reading, and therein is also the following [IX. ii. s]: ‘The benefits of this peace, which contributes
to the advantage of all, accrue more abundantly to those who make good use of It.’

2 [39] Unless you prefer to interpret this as ‘ the end of the Christian life’.

1569°27 F

[A pology,
I, xvui.]

Contra
Cres.
Gram., ITI
[lt 56].

Letters, |
(claxxv.
19], To
Boniface.

64 On the Law of War and Peace [Book I

2. But how shall the ruler do this? Paul explains elsewhere
(Romans, xiii. 4): ‘For he is a minister of God to thee for good.
But if thou do that which is evil, be afraid, for He beareth not the
sword in vain. For he is a minister of God, an avenger for wrath
to him that doeth evil.’ By the right of the sword through a figure
of speech every form of compulsion 1s understood, as also sometimes
in the writings of the jurists; but in such a way, nevertheless, that
the right to impose the extreme penalty, that is the actual use of the
sword, is not excluded.

The second Psalm serves to throw not a little light upon this
passage; for although it had its true application in the person of
David, nevertheless it is more fully and more completely applicable
to Christ, as we may learn from Acts (iv. 25; xili. 33) and Hebrews
(v. 5). This Psalm exhorts all kings to receive the Son of God with
reverence; that is, that as kings they show themselves also His
ministers, as St. Augustine rightly explains.

The words of Augustine on this point I quote: ‘In this way
kings serve God in the capacity of kings if, just as 1s divinely enjoined
upon them, in their kingdoms they ordain good and prohibit evil,
not only in respect to matters which relate to human society but also
matters that concern the divine religion.” In another passage he
says: ‘In what way, then, do kings serve the Lord in fear, except
by prohibiting and punishing with religious severity the things that
are done contrary to the commandments of the Lord? For it is one
thing to serve the Lord as man, another to serve Him as king.’
‘Kings’, he says, a little further on, ‘serve the Lord in the capacity
of kings when in serving Him they do those things which they cannot
do except as kings.’

3. A second argument is furnished to us by that very passage
[23] of which we have quoted a portion (Romans, xi), wherein
the highest power, such as that of the king, is said to be from God,
and is called an ordinance of God. From this follows the interence
that obedience should be rendered to it, and respect paid to it—
oa too, whole-heartedly—and that he who resists it is resisting

od.

If by the word ‘ ordinance’ a thing should be understood which
God merely does not will to prevent, as the attitude of God is with
reference to wicked actions, there would follow no obligation to pay
respect or to render obedience, least of all, whole-heartedly ; and the
Apostle in proclaiming and in magnifying this power so earnestly
would be saying nothing which would not be appropriate to acts of
brigandage and thievery. It follows, therefore, that this power is
understood to have been ordained by the approval of the will of
God; hence the inference, since God does not will that which is

Chap. IT] Whether it 1s ever Lawful to wage War 65

contrary to Himself, that this power is not in conflict with the will
of God revealed through the Gospel and binding upon all men.

4. The force of this argument, furthermore, is not weakened
by the objection that those who were in authority at the time when
Paul wrote were strangers to the Christian faith. For, in the first
place, the statement is not unreservedly true, since Sergius Paulus,
propraetor of Cyprus, had long before professed Christ (Acts, xiii.
12); not to speak of the ancient tradition in regard to the king of
Edessa,* which to some extent may be tinged with falsehood, yet
seems to have had its origin in truth. Then, again, the question is
not whether the individuals were unrighteous but whether the func-
tion exercised by them was in itself unrighteous. ‘That it was not,
we maintain, was declared by the Apostle when, speaking even of his
own time, he said that this function was ordained of God, and there-
fore should be honoured even in the inmost feelings of the soul,
which in a proper sense are subject to God alone. Consequently both
Nero, and King Agrippa, whom Paul so earnestly urges to embrace
the Christian religion (Acts, xxvi), could have subjected themselves
to Christ and have retained in the latter case a royal, in the former
an imperial power, the maintenance of which without the right of
the sword and of arms is inconceivable. Just as the sacrifices in the
olden time were sacred according to the law even though offered by
wicked priests, so sovereign power is a righteous thing even though it
is held by a wicked man.?

5. A third argument is drawn from the words of John the
Baptist. When he was earnestly asked by Jewish soldiers (from
Josephus and other writers it is perfectly clear that many thousands
of this race were in the military service of the Romans) what they
must do to escape the wrath of God, he did not bid them withdraw
from military service, as he must have done if such was the will of God,
but to abstain from extortions and deceit, and to be content with
their wages (Luke, lil. 14). .

In regard to these words of the Baptist, which clearly enough
imply an approval of military service, many make answer that what
the Baptist enjoined differs so greatly from the precepts of Christ
that it was quite possible for the Baptist to teach one thing, and
Christ another. The validity of this objection I cannot admit. The
gist of the doctrine which John and Christ brought to men they set
forth with the same introductory plea: ‘ Repent, for the kingdom
of heaven is at hand’ (Matthew, 11. 2; 1v. 17). Christ himself said

1 Edessa isin Osrhoene. The name of Abgar is frequent in those regions. It appears on coins, in
Tacitus and Appian ; in Dio Cassius, not only the writings first published but also in the later excerpts,
and in Capitolinus.

2 This point is well developed by Chrysostom in his comment on this subject, On Romans [xiti.
3-4 = Homily XXIII, iy].

F 2

1 77]

66 On the Law of War and Peace [Book I

that the kingdom of heaven (that is, the new law, for the Jews have
the custom of calling the law by the name of the kingdom) com-
menced to be taken by violence from the days of the Baptist (Matthew,
xi. 12). It is said that John preached the baptism of repentance
for the remission of sins (Mark, i. 4); the Apostles did the same,
it is said, in the name of Christ (Acts, ii. 38). John demands fruits
worthy of repentance, and threatens destruction to those who do
not bring forth such fruits (Matthew, iii. 8 and 10). He demands
works of love beyond [24] the law (Luke, iii 11). It is said that
the law lasted until John, that is, that a more perfect doctrine began
with him (Matthew, xi. 13). And the beginning of the Gospel is
traced to John (Mark, i.1; Luke, i. 77). John himself by this title
is reckoned greater than the prophets (Matthew, xi.9; Luke, vii. 26),
since he was sent to give a knowledge of salvation to the people (Luke,
ii. 77), to announce the Gospel (Luke, ili. 18).

Nowhere, in fact, does John distinguish Jesus from himself by
the difference in their teachings, although the things which were
taught by John in a more general and vague way, as rudiments, were
clearly set forth by Christ, the true Light. The difference which John
recognized between them lay rather in this, that Jesus was the
promised Messiah (4cts, xix. 4; Fobn, i. 29), the king of the Heavenly
Kingdom, who would give the power of the Holy Spirit to them that
believe on him (Matthew, iti. 11; Mark, i. 8; Luke, ii. 16).

6. The fourth argument, which seems to me to have no slight
weight, is this. If the right to inflict capital punishment and to
defend citizens by arms against brigands and robbers should be
taken away, there would follow a riot of crimes and a deluge, so to
speak, of evils, since even now, with regularly constituted courts in
operation, the force of evil is with difficulty restrained. Wherefore
if it had been the purpose of Christ to bring about such a state of
affairs as had never been heard of, beyond doubt with the most
direct and explicit words he would have laid down the rules that no
one should pass a sentence of death, and that no one should bear
arms. We nowhere read that he did this; for the statements which
are brought forward to that effect are either exceedingly general, or
obscure. But fairness itself and common sense teach not only that
general statements should be limited, and ambiguous expressions
favourably interpreted, but even that in a degree there may be
a departure from the strict signification and ordinary use of words,
in order to avoid an interpretation which would involve extremely
grave consequences.

_ * Chrysostom in his homily To the Believing Father [x]: ‘ For the restraint of criminals do courts
exist, and Jaws, and punishments, and so many kinds of penalties.’

Chap. II] Whether 1 1s ever Lawful to wage War 67

7. Fifth, by no argument can it be shown that the law of
Moses relating to judgements ceased to be in force before the city
of Jerusalem was destroyed, and with it alike the form of the Jewish
state and the hope of its re-establishment. For neither in the law
of Moses is any term set for this law, nor do Christ or the Apostles
ever speak of the abolition of it, except in so far as this may seem
to be included in the destruction of the state, as we have said. On
the contrary Paul says that the high priest was appointed in order
that he might render judgement according to the law of Moses
(Acts, xxiv. 3). Christ himself in words introductory to his teachings
says that he came not to destroy the law but to fulfil (Matthew,
v. I7).

What bearing this has on the part of the law relating to rituals
is not obscure; for shadowy outlines are filled out when the perfect
form of the thing is shown. But in what way can this be true of the
laws relating to judgements, if Christ, as some think, by his coming
did away with them? If, however, the obligation of the law remained
so long as the Jewish state continued to exist, it follows that Jews,
even when converted to Christianity, if they were summoned before
a magistrate could not escape service, and that they were bound to
judge not otherwise than as Moses had commanded.

8. Weighing all the arguments deliberately I do not find even
the most trivial consideration which could have influenced any
upright man, who heard those words of Christ as they were spoken,
to form a different opinion. I recognize the fact that before the
time of Christ some things were permitted, as a matter of external
freedom from punishment or even of purity of mind—we have
neither need nor leisure to deal with those details more fully here—
which Christ did not permit to those who followed his doctrine ;
as, for example, [25] to put away a wife for any sort of offence
whatsoever, and to exact vengeance in court from him who had
inflicted an injury. But while between the teachings of Christ and
those permissions there is indeed a difference, there is no conflict.
For the man who keeps his wife, or who renounces his right as an
individual to exact vengeance, does nothing contrary to the law;
he does in fact what the law above all desires. Far different, on the
other hand, is the case of the judge whom the law does not permit,
but commands, to punish the murderer with death; if he fails in
this duty, he will himself become guilty before God. If Christ
forbids the judge to punish the murderer with death, he enjoins what
is absolutely contrary to the law, he destroys the law.

The sixth argument shall be drawn from the example of
Cornelius, the Centurion. He received the Holy Spirit, an infallible
sign of justification, from Christ, and was baptized a Christian by

[xx11. 3 |

68 On the Law of War and Peace [Book I

the Apostle Peter; nevertheless we do not read that he gave up
his military service, or was advised by Peter that he was obliged to
give it up.

Some may answer that, when Cornelius received instruction
from Peter in the Christian religion we must suppose that he was at
the same time instructed in regard to the abandonment of military
life. These would have an argument if it were certain and beyond
cavil that any prohibition of military service is to be found among
the teachings of Christ. Such a prohibition in plain words nowhere
appears ; but surely in case Christ wished to lay down a rule opposed
to current usage, it was necessary that something be said on the
subject, at any rate in this connexion, where it was specially required,
in order that the age to come might not be ignorant of the rules
controlling its duty. And it is not the practice of Luke, when the
quality of persons required some particular change in manner of life,
to pass this by without mention, as may be seen in the nineteenth
chapter of Acts (verse 19) and elsewhere.

10. The seventh argument, similar to the preceding, is taken
from the case of Sergius Paulus, of whom we have already made
mention. For in the record of his conversion there is no indication
that he gave up his office, or was instructed to give it up. What is
not mentioned when, as we have said, it would be of the utmost
importance that mention be made, ought to be considered as not
having happened.

11. The eighth argument is that Paul the Apostle, understanding
that there was a plot + of the Jews against him, desired that this be
reported to the tribune ; and when the tribune had given him soldiers,
under whose protection on his journey he would be safe against all
violence, he raised no objection. He did not admonish the tribune,
or the soldiers, that the repelling of force by force was not pleasing
to God. And yet this was the Paul who himself never let slip any
opportunity to point out one’s duty, or wished that such opportunity
be let slip by others (2 Timothy, iv. 2).

12, The ninth argument lies in this, that the proper end
of a thing that is honourable and obligatory cannot be otherwise
than honourable and obligatory. The payment of taxes is honourable
—it is even an ordinance binding conscience, as the Apostle Paul

1 The passage relating to Paulis cited as authority by the Council of Africa [chap. xciti]: ‘ Against
the fury of these we are able to utilize the means of protection which are customary and not inconsistent
with Scripture, since the Apostle Paul, as is known to the faithful from the Acts of the Apostles, also
foiled a plot of zealots with the help of the military,’

The same passage is often referred to by Augustine, as in Letters, | [clxxxv. 28], To Bontface;
in Letters, chy [xlvii. 5], To Publscola, in which this appears: ‘And if the wicked men had fallen upon
the arms of the soldiers, in the shedding of their blood Paul would not have regarded himself as
guilty of crime’; also in Letters, clxiv [Ixxxvii. 8, To Emeritus]: ‘Paul arranged to have an
escort even of armed men given to him.’

Chap. IT] Whether it 1s ever Lawful to wage War 69

explains; but the purpose of taxation is to provide the public
administration with funds upon which it may draw in order to
protect good men and check evil-doers (Romans, xiii. 3, 4, 6). Quite
to the point Tacitus remarks: ‘The peace of the nations cannot be
had without arms, nor arms without pay, nor pay without taxes.’
Similar is the observation of Augustine: ‘We pay taxes in order
cat pay may be provided for the soldiery, for the necessaries of
ife.’

13. The tenth argument is furnished by the passage in Acts
(xxv. 11) in which Paul thus speaks: ‘If I have wronged any one,
and have committed anything worthy of death, I refuse not to die.’ }
Paul held the view, as I infer from this statement, that even after
the publishing abroad of the law of the Gospel, there were certain
crimes for which justice permitted, or even demanded, punishment
by death. This is also the teaching of Peter (z Peter, 11. 19, 20).
If at that time it had been the will of God that capital punishment
be abstained from, Paul might, to be sure, have cleared himself,
but it was his duty not to leave in men’s minds the belief that it was
[26] then not less permissible than previously to punish criminals
with death.

Now when it is once proved that the inflicting of capital punish-
ment could be lawfully retained after the coming of Christ, it is,
I think, proved at the same time that in some cases war is lawfully
waged, as, for example, against criminals gathered in a great number
and armed, who must be conquered in battle in order that they may
be brought to trial. For while the strength of criminals and their
boldness in resistance may be taken into account in prudent delibera-
tion, the force of the law is not thereby diminished.

14. The eleventh? argument is based on the fact that the law
of Christ did away with the law of Moses only in respect to the
separation of the Gentiles from the Jews (Kphestans, ii. 14). But
it by no means did away with the things which are honourable by
nature and by the common agreement of the more civilized Gentiles ;
rather it included them in the general teaching of all that is honourable
and virtuous (Philippians, iv. 8; 1 Corinthians, xi. 13, 14). Now in

1 So also Acts, xxvui. 18: ‘ because there was no cause of death in me.’ Justin, in his Second
Apology [I. xvi], says: ‘Moreover we desire that those who do not live in consistency with those
teachings, and are Christians only in name, receive punishment, and at your hands.’

ihe the editions of 1625, 1631, and 1632 this is the twelfth argument, and the eleventh runs
as follows:

The eleventh argument is that in the prophecy of the Apocalypse certain wars of the nghteous
are foretold, with manifest approval (Rev. xvii. 6 and elsewhere).

This paragraph is omitted in the editions of 1642 and 1646, probably because struck out by the
author. Yet the omission may have been due originally to haplography in composition, on account
of the relative positions of the words Undecomum and Duodecimum in a page of the edition of 1631 or

1632 used as printer's copy.]

Histories,
IV [ixxiv].

A gatnst
Faustus,
AXIT,
Ixxiv.

70 On the Law of War and Peace [Book I

truth the punishment of crimes, and the use of arms which prevent
wrongdoing, are by nature considered praiseworthy and are referred
to the virtues of justice and beneficence.

Here in passing it is worth while to note an error on the part
of those who maintain that the right of the Israelites to wage war
came merely from the fact that God had given them the land of
Canaan. This is, to be sure, a just cause, but not the only one. For
before those times under the guidance of reason, righteous men
carried on wars; and afterwards the Israelites themselves waged
wars on account of other causes, as David did, because of the affront
offered to his envoys. For the possessions which each has by human
law are not less his than if God had given them to him; this right,
moreover, is not taken away by the Gospel.

Vill —Answering of the arguments from Holy Writ on behalf of the
afirmative view, that war 1s in conflict with the law of the
Gospel

1. Let us now see by what considerations the contrary opinion
is supported, in order that the serious-minded appraiser may be able
the more easily to decide which of the two views has the weight of
argument in its favour.

First of all it is customary to bring forward the prophecy of
Isaiah,’ who says that it will come to pass that the people will beat
their swords into mattocks and their spears into pruning-hooks ;
‘and nation shall not lift up sword against nation, neither shall they
learn war any more’ (Isaiah, ii. 4). But this prophecy, as many
others, may be taken in a conditional sense. With such an interpre-
tation undoubtedly we are to understand that such will be the state
of affairs if all peoples receive and fulfil the law of Christ ;? to this
end God will not suffer that there be any lack of assistance on His
part. It is moreover certain that if all men were Christians, and were

1 This prophecy is interpreted by Chrysostom with reference to the peace which came to the
world through the beneficent agency of the Roman Empire ; in his homily That Christ is God [vi] he says:

Tt was foretold, in fact, not only that this religion would be steadfast, immovable, and unshaken,
but that with it peace would come to the world, that in the different states the rule of arstocracies,
yes even of kings, would cease, and that there would be one rule over all men: of that empire the
greater part would enjoy peace, a condition opposite to that which previously existed. Formerly,
in fact, even craftsmen and orators put on arms and stood in line of battle. But after the coming
of Christ that custom fell into disuse and the practices of war were restricted to a limited class of
individuals.

Precisely the same thought you find in Eusebius’s Preparation, Book I, chap. x [I. iv. 5].

* For of the Chnstians Justin says [First Apology, xxxix], ‘We do not fight against enemies. This
is hke what Philo says about the Essenes, in his treatise That Every Veriuous Man is Free (chap. xii} :
‘Among them you would find no maker of javelins or arrows, of sword or helmet or coat of mail or
shield, no one to fashion either arms or engines of war.’

Similar is the comment of Chrysostom, On First Corinthuans, xii. 3 [Homily XXXII, vj; ‘If
there were among men such love as there ought to be, there would be no capital punishments.’

Chap. IT] Whether 1t 1s ever Lawful to wage War a1

living the Christian life, there would be no wars. This thought
Arnobius expresses as follows :

If all who consider themselves men, on the ground not of bodily shape but of the
possession of reason, would be willing for a little while to lend ear to His wholesome
and pacific dictates, and would not, swollen with pride and arrogance, entrust themselves
to the guidance of their passions rather than of His admonitions, the whole world, having
long ago turned its iron to milder uses, would be living in the most delightful tranquillity,
and through mutual confidence in inviolable treaties would be united in a beneficent
concord.

Lactantius speaks on this wise:

What will happen if all men shall agree to live in perfect accord? This surely can
happen, if men would only cast aside their destructive and impious fury and be willing
to be innocent and just.

Or, again, the prophecy can be understood literally. If it is
interpreted in this way, the facts show that it has not yet been ful-
filled, but that the fulfilment of it, like the general conversion of the
Jews, is to be expected. But in whichever way you interpret the
prophecy, no inference can be drawn from it against the justice of
wars, so long as there are men who do not suffer those that love peace
to enjoy peace, but do violence to them.

2. Several arguments are ordinarily taken from the fifth chapter
of Matthew. In order to form a proper judgement in regard to
them it is necessary to recall what we said a little before, that if it
had been Christ’s purpose absolutely to do away with capital punish-
ment and the right to carry on war, he would have expressed this
purpose with words as plain and explicit as possible, on account of the
importance of the ruling, [27] and its newness. All the more would
he have been led to do this for the reason that no Jew could think
otherwise than that the laws of Moses relating to judicial proceedings
and public administration must retain their validity in respect to all
Jews so long as their state endured. With this general observation
in mind, let us discuss the bearing of the several passages in order.

3. The contrary view, then, in the second place fortifies itself
with these words: ‘ Ye have heard that it hath been said, an eye
for an eye and a tooth for a tooth; but I say unto you, Resist not
him that is evil’ (in Hebrew, ‘ the wicked man,’ which the Greeks
translate ‘him that doeth a wrong’, Exodus, ii. 13); ‘ but whoso-
ever shall smite thee on thy right cheek, turn to him the other also.’
From this some infer that no injury ought to be warded off, or made
the subject of a demand for requital, whether as a public or as a
private matter. And yet, that is not the meaning of the words.
Christ is here addressing not the magistrates, but those who are

1 [40] As also Luke, in the address of Stephen [Acis, vii. 27]: ‘ He that did his neighbour wrong.’

[A ganst
the Hea-
then, I.
v1 |

[Divine
Institutes,
I, XV.
16.]

[Matthew,
v. 38.]

[Matthew,
V 4I.]

Philostra-
tus, II xv
[Life of
Apollo-
nuus, LI.
XXX1X].

Dig. IV.
vii. 4. I.

I. xlv [I1.
xlv].

(Matthew,
Vv. 4%.]

72 On the Law of War and Peace [Book I

assailed ; and he is not treating of injuries in general, but of a specific
sort of injury, such as a slap on the cheek; for the latter part of the
statement restricts the generality of the earlier part. .

4. Similarly in the precept which follows, ‘And if any man
would go to law with thee, and take away thy coat, let him have
thy cloak also’,! not every appeal to a judge or arbitrator is for-
bidden. Such at any rate is the interpretation of Paul, who does
not prohibit all lawsuits (x Corinthians, vi. 4), but does forbid
Christians to sue one another in pagan court-rooms. In this he follows
the example of the Jews, among whom the maxim was current that
‘He who refers matters of the Israelites to strangers dishonours the
name of God’. Now Christ, in order to train us in forbearance,
wishes us not to go to law about things easy to replace, as a coat,
or a cloak in addition to the coat if need be; but though our legal
rights be absolutely perfect, he wishes us to abstain from enforcing
them.

Apollonius of Tyana used to say that it was unworthy of a
philosopher ‘ to engage in a lawsuit about a small sum of money .
‘The praetor’, says Ulpian, ‘does not disapprove the act of him
who considered it worth the while to deprive himself of property
that he might not have to engage too frequently in lawsuits in
regard to it. This attitude of restraint, on the part of a man
who has an aversion to lawsuits, is not to be criticized.’ What
Ulpian here mentions as approved by good men, Christ enjoins,
selecting the matter of his teachings from the most honourable and
universally approved examples.

From this, however, you would not rightly infer that it would
be wrong even for a parent or guardian in case of necessity to defend
before a judge that which involved the means of subsistence of
children or of wards. For a coat and a cloak are one thing; entire
means of subsistence is quite another. In the Constitutions of Clement
it is said of the Christian, if he has a lawsuit, ‘ Let him try to settle it,
even if thereby he be compelled to suffer some loss.’ Here also that
is applicable which is customarily said of things moral, that they do
not consist in a point, but have a certain latitude.

5. In like manner, in what follows, ‘And whosoever shall

1 The idea is thus expressed by Cyprian, On Patience [chap. xvi], ‘That you are not to try to get
back what belongs to you after it has been taken from you.’ Irenaeus, Book IV, chap. xxvii |[Agaznst
Heresies, IV. xii. 3): ‘“To him that taketh away thy coat, give thy cloak also”; but let us not
grieve, as those unwilling to be defrauded, but let us rejoice as those who have given willingly. “ And
if anyone,’’ He says, “shall compel thee to go a mile, go with him twain,” in order that thou mayst
not follow like a slave, but as a free man go before him.’

Even Libanius, who had read the Gospels, in his oration On the Custody of Men under
Accusation, praises those who do not go to law about a coat or a cloak. Jerome, Agazinsi
Pelagius, Dialogue I [I. xxix]: ‘The Gospel teaches that to him who wishes to contend with
us through judicial procedure, and by means of lawsuits and altercations wrest a coat from us, a cloak
also should be given.’

Chap. IT] Whether it 1s ever Lawful to wage War 73

compel thee to go one mile, go with him two,’ our Lord did not
speak of a hundred miles, a journey which would take a man too far
from his business, but of one mile, and, if need be, of two, involving
an amount of walking which would seem like nothing at all. The
meaning, therefore, is that in matters which are not likely to incon-
venience us very much we ought not to insist upon our rights, but
to give up even more than is demanded, in order that our patience
and kindness may become manifest to all.}

6. There follow the words: ‘Give to him that asketh thee,?
and from him that would borrow of thee turn not thou away.’ If
you should put this into practice without limitation, nothing could
be more harsh. He who does not take care of those of his own house
‘is worse than an unbeliever ’, says Paul (rz Timothy, v. 8). Let us
then follow the same Paul, a most excellent interpreter of the law laid
down by the Master. In urging the Corinthians [28] to exercise
a spirit of liberality toward those that were in Jerusalem he says:
‘ Not that others may be eased and ye distressed, but that by equaliza-
tion your abundance may be a supply for their want ’ ® (2 Corinthians,
Vill. 13); that is—adopting the words of Livy in respect to a not
dissimilar case—that from the superabundance of your resources you
minister to the necessities of others. The same point of view appears
also in Xenophon’s Cyrus: ‘ Whatever I see that I have beyond my
needs I use to supply the wants of my friends.’ A similar principle
of equalization we may apply to the interpretation of the precept
which we have just quoted.

7. Just as the Hebraic law favoured freedom of divorce in
order that it might mitigate the harsh treatment of wives by their
husbands, so also in order to restrain private vengeance, to which
that nation was specially prone, it had conferred upon an injured
person the right to exact retaliation from the wrongdoer, not,
however, by his own hand, but before the judge. This rule the law
of the Twelve Tables also followed: ‘If a man breaks a limb of
another, let there be like injury in turn.’ But Christ, who enjoined

1 Justin, in his Second Apology [I. xvi]: ‘ What He said has this in view, that toward all men we
are to be patient, ready to render service, and altogether devoid of anger.’

4 Justin, in the same Apology [I. xv]: ‘ With reference to the duty of shanng what we have with
the needy, and that we might not do anything in order to gain glory thereby, He said this, “ ‘To everyone
that asketh give,” etc.’ In another passage [I. xiv]: ‘ sharing what we have with everyone in need.’

Cyprian, Testemonzes, Book III, chap.i: ‘Alms are to be denied to none.’ Also, in the same
passage : ‘Give to everyone that asketh thee, and from him who would borrow from thee, turn not
away.

’ Seneca, On Benefits, Book II [II. xv. 1]: ‘I shall give to the needy, but in such a way that
I myself may not be in want.’ .

Chrysostom, in his note to the verse of Corinthians quoted [On Second Corinthians, vill. 12 =
Homily XVII, i]: ‘God demands according to a man’s power, “ according as he hath, not according as
he hath not.’ That this may be rightly understood, the following is added [to verse 13]: “He
praises, indeed, those’ (that is among the Thessalonians) ‘ who had done beyond their power, but he
does not force these’ (the Achaeans are meant) ‘ to do the same thing.’

[Matthew,
v 42]

[VI. xv.
9.]

[Trawuming
of Cyrus,
VIIT. 11.
22.]

[v x.]

[x. x ]

[Nonuus,
De Dvaff.
Verb |

[Ibid ]

[A gaunst
Merdias,
XxXi. 72 |

[x. 2]

{Publilius
Syrus,
Sent ,
645 J

1. 6.]

(IIT.
KXxi |

74 On the Law of War and Peace [Book I

a greater degree of forbearance, so far from expressing approval of
the demanding of vengeance by a man who is already the victim of
an injury, wishes that some injuries be not even warded off, either
by violence or by judicial procedure. But what sort of injuries?
Such, we see, as are bearable—not that such action is not also praise-
worthy in the case of more dreadful injuries, but that Christ is
satisfied with forbearance of a more restricted scope. So he took for
illustration a slap on the cheek; this does not endanger life, or
mutilate the person, but merely indicates a kind of contempt for us,
which makes us not a whit the worse. Seneca, in his treatise On the
Steadfasiness of the Wise Man, distinguishes injury from insult :

‘The former’, Seneca says, ‘is in its nature more serious; the
latter is of less import, and serious only for the thin-skinned, who
are not hurt by it, only offended. So great is the feebleness and
emptiness of men’s minds that some think nothing more bitter.
Thus you may find a slave who would rather be cut with a scourge
than have his ears boxed.’ In another passage the same philosopher
remarks: ‘Insult is a lesser injury, which we can complain of rather than
take into court. The laws have not thought it worthy of penalty.’

In Pacuvius a character says: ‘ Easily I suffer wrong if it is free
from insult.’ And in Caecilius another remarks :

Misery I can endure if only free from injury ;
And injury as well, except when insult adds indignity.

Demosthenes has a similar thought : ‘ For freemen it is not so dread-
ful a thing to be scourged, dreadful though that is, as it is to be lashed
with insult.’ The same Seneca, of whom I have spoken, a little farther
on says that the pain arising from insult is a mental disturbance
produced by a sense of humiliation as the mind contracts on account
of a deed or word reflecting dishonour.

8. Under such conditions, then, Christ enjoins forbearance.
And that no one may urge as an objection that hackneyed maxim,
‘By enduring a long-standing wrong you invite a new one,’ he adds
that it is better to suffer even a second injury ? than to repel the first,
because, of course, we receive no harm from it except that which
exists in foolish imagining. ‘’7To turn the cheek to another’ in
Hebrew idiom means ‘to suffer patiently’, as is clear from Isaiah
(xxx. 6) and Feremiah (iti. 3); the phrase ‘ to expose one’s face to
insults ’ * Tacitus used in the third book of his Histories.

1 See Chrysostom, in the passage already quoted.

2 Chrysostom, On Romans, chap. vii [Homily XII, 1x]: ‘ This is a glorious victory, to give to the
offender more than he wishes, and by generous exercise of one’s own patience even to pass beyond
the bounds of his wicked desires.’

® Chrysostom, On the Statues, Homily I [Homily IT, viii]: ‘ An insult is felt or comes to naught,
not by the intention of him who offers it but by the disposition of those who bear it.’

4 ‘To present one’s face’ is found with the same meaning in the Adelphz of Terence [215=II. ii. 7].

Chap. IT] Whether it 1s ever Lawful to wage War 75

9. The third argument is wont to be taken from the passage
which follows in Matthew: ‘ Ye have heard that it was said, Thou
shalt love thy neighbour and hate thine enemy ; but I say unto you,
love your enemies, bless them that curse you, pray for them that
despitefully use you and persecute you.’ For there are men who
think that with such love and well-doing toward enemies and them
that despitefully use us, both capital punishment and wars are
irreconcilable.

The argument, however, is easily refuted if [29] we take into
consideration the precise provision of the Hebraic law. It was
enjoined upon the Jews to love their neighbour, that is a Jew;?
that the word ‘neighbour’ is to be taken in this sense is evident
from a comparison of the seventeenth verse of the nineteenth
chapter of Leviticus, with the eighteenth verse of the same chapter.
But magistrates were none the less commanded to put to death
murderers and others guilty of heinous crimes; the eleven tribes
none the less attacked the tribe of Benjamin in a just war on account
of a monstrous crime (fudges, xxi); none the less did David, who
‘fought the battles of the Lord ’, undertake to wrest from Ishbosheth
by arms, and rightly, the kingdom which had been promised to him.

Io. Let us concede, then, a broader signification of the word
‘neighbour ’, to include all men—for all men have now been received
into a common dispensation, there are no peoples doomed by God
to destruction—nevertheless that will be permitted with respect to
all men which was then permitted with respect to the Israelites ;
they were bidden to love one another, just as now all men are. And
if you wish to believe also that a greater degree of love is commanded
in the law of the Gospel, let this too be granted, provided also the
fact is recognized that love is not due to all in the same degree,” but
that a greater love is due to a father than to a stranger. In like
manner also, in accordance with the law of a well-ordered love, the
good of an innocent person should receive consideration before the
good of one who is guilty, and the public good before that of
the individual.

Now it is in the love of innocent men that both capital punish-
ment and just wars have their origin. Reference may be made to
the moral sentiment expressed in Proverbs (xxiv. 11). The teachings

1 The proselyte was on a level with the Jew; and the laws in regard to not harming one another
were extended also to the uncircumcized inhabitants who were discussed in chap. I above, § 16. So the
Talmudists.

2 Tertullian, Against Marcion, [41] IV [IV. xvi]: ‘The second step in charity is toward
strangers ; the first step is toward one’s neighbours.’ Jerome, Against Pelagzus, Dialogue I [I. xxx]:
‘It has been enjoined upon me, to love my enemies and to pray for them that persecute me. It is not
just, is it, to love them as I love my neighbours, and my kindred, so that there would be no distinction
between a rival and an intimate associate ?’

[v 43.]

[XX J

76 On the Law of War and Peace [Book I

of Christ in regard to loving and helping men ought, therefore, to be
carried into effect unless a greater and more just love stand in the
way. Familiar is the old saying: ‘It is as much a cruelty to spare
all as to spare none.’ *

11. There is the further consideration that we are bidden to
love our enemies by the example of God, who ‘ maketh his sun to
rise upon the unjust’. But the same God inflicts punishments upon
some wicked men even in this life, and will inflict most severe punish-
ments hereafter. The same argument meets also the difficulty
presented by the injunctions laid upon Christians in regard to mercy,
which are usually brought to bear upon this point. For God is called
gracious, merciful, and long-suffering (Fonah, iv.2; Exodus, xxxiv. 6).
But the sacred writings in various places describe His wrath against
them that set themselves against Him,? that is, His will to punish
them (Numbers, xiv. 18; Romans, ii. 8). And of this anger the
magistrate has been appointed minister (Romans, xiii. 4). Moses is
commended for his extraordinary mercifulness; yet he inflicted
punishments on the guilty, even capital punishments. The mercy
and long-suffering of Christ we are everywhere bidden to imitate ;
yet it is Christ who inflicts the severest punishments upon the dis-
obedient Jews® (Matthew, xxii. 7), and will condemn the wicked
according to their deserts in the Day of Judgement. The mercifulness
of the Master was imitated by the Apostles, who nevertheless used
the power, which had been given them by God,‘ for the punishment
of wrongdoers (z Corinthians, iv. 21 and v. 5; 1 Timothy, i. 20).

12. A fourth passage presented in opposition is in Romans
(xii. 17):

‘Render to no man evil for evil. Take thought for things
honourable in the sight of all men. If it be possible, as much as in
you lieth, live in peace with all men. Avenge not yourselves,®

1 The words are those of Seneca, On Clemency, Book I. chap.ii. Chrysostom, On First Corinthians,
iii. 12 ff., treating of human punishments [Homily IX, n]: ‘And men do such things not in cruelty
but in kindness.’ Augustine (Letters, cliti. 17, To Macedonius]: ‘ Just as sometimes there is a mercy
that inflicts punishment, so there is also a cruelty that spares.’

The emperors Valentinian, Theodosius, and Arcadius, in the third law On the defenders of cites,
in the Theodostan Code (Cod. Theod., I. xxix. 3]: ‘Let there be done away with all forms of protection
which, by favouring the guilty and affording aid to criminals, have hastened the increase of crimes.’

Totilas in Procopius, Gothic War, II [III. viit]: ‘To do wrong, and to prevent the punishment
of those who do wrong, I consider as on the same plane.’ See also what is said in Book II, xxi. 2.

4 On this point see Cyril, Against Julian, Book V.

8 Add the references: Matthew, xxi. 44; Luke, xix. 12, 14, 27.

Chrysostom, On Romans, chap. xiv [Homily XXV, v, on verse 13], having described the evils that
fell upon the inhabitants of Jerusalem, exclaims: ‘That it was Christ who did these things, hear him
declaring, now by means of parables, now clearly and explicitly.’ He uses similar expressions in his
second oration Agaznst the Jews.

‘ Chrysostom, On First Corinthians, iv. 21 [Homily XIV, ii, on verse a1]: ‘Shall I kill, shall I
maim ? ... For as there is a spirit of gentleness, so also there is a spirit of severity.’

See also Augustine, On the Sermon of Our Lord on the Mount, Book I, and others cited by
Gratian, Decretum, II. xxiii. 8.

* The Vulgate has in this place defendentes, ‘defending’. This expression is often taken by the

Chap. IT] Whether it is ever Lawful to wage War 77

beloved, but give place unto the wrath of God, for it is written,
Vengeance belongeth unto me, I will recompense, saith the Lord.
But if thine enemy hunger, feed him; if he thirst, give him to
drink; for in so doing thou shalt heap coals of fire on his head. Be
not overcome of evil but overcome evil with good.’

Here also the same answer may be made as in the case of the
preceding passage. For at the very time when it was said by God,
‘Vengeance is mine, I will repay,’ both.the penalty of capital punish-
ment was being imposed and laws had been written for the conduct
of wars. Moreover it is ordered that kindness be shown to enemies,
belonging, of course, to the same nation (Exodus, xxiii. 4, 5); but
this nevertheless, as we have said, put no [30] obstacle in the way
either of capital punishment or of lawful wars, even against the
Israelites themselves. Wherefore not even now ought the same
words, or similar teachings, even though given a broader application,
to be violently forced into such a meaning.

Such an interpretation is the less tenable for the reason that
the chapter divisions of the Biblical writings were not made by the
Apostles, nor in their time, but much later, in order to break up the
text and make the citation of passages easier. Hence it has come
about that the words at the beginning of chapter xti, ‘ Let every
soul be in subjection to the higher powers,’ and those that follow,
are to be taken with the teachings which forbid the exacting of
vengeance.

13. Now in this part of his exposition Paul says that the public
authorities are the ministers of God and His avengers for wrath
against evil-doers, that is, for the punishment of evil-doers. In
this way with perfect clearness he distinguishes between vengeance

Christian writers, however, to express the idea of vengeance. Tertullian, On Patsence [chap. x]: ‘If
now you defend yourself too feebly, you will be mad; if too vigorously, you will have to take the
consequences. What have I to do with vengeance, the measure of which I have not the power to
regulate, on account of my inability to endure pain ?’

The same writer, Against Marcion, II (II. xviii]: ‘ Now herein there is no suggestion of permission
for the inflicting of mutual injury ; but there is kept in view the complete restraining of violence. To
a people exceedingly obdurate and lacking faith in God, it might seem irksome, or even beyond credence,
to expect from God that vengeance (defensam) which was afterward to be declared by the prophet:
“ Vengeance (defensam) is mine, and I will repay (defendam), saith the Lord.” In the meantime the
committing of wrong was to be checked by the fear of immediate retahation, and the permission to
exact retribution was to be the prevention of provocation, to the end that cunningly devised wicked-
ness thus might come to an end, while through permission of the second, it might be terrified by the
first; and through being deterred by the first, the second might not be committed. And thereby
also in other respects the fear of retaliation is more easily aroused, by reason of the savour of suffering
in it ; nothing is more bitter than yourself to suffer what you have inflicted upon others.’ -

Tertullian, again, On Monogamy (chap. iv]: ‘The flood was provoked by other niquities, always
avenged (defensae), whatsoever they were, nevertheless not “seventy times seven’, the vengeance
that double marriages deserve.’ -

The passage of Paul treated in the text is explained not infelicitously by Augustine, Letters, cliv
[xlvii. 5]: ‘Moreover it has been said, “we are not to resist evil”’ to this end, that vengeance, which
feeds the soul with another’s misfortune, may not give us pleasure.’

See what is said below, IT. xx. 5 and to.

78 On the Law of War and Peace [Book I

in the public interest, which is inflicted by a public authority acting
in place of God, and which is to be traced back to the vengeance
reserved for God; and revenge, which has as its purpose to satisfy
resentment, and which he had forbidden just a little before. For
if you maintain that in the prohibition of revenge is included also the
vengeance which is exacted in the public interest, what would be
more absurd than to add, after saying that capital punishment must
be refrained from, that public authorities have been established by
God, in order that they may inflict punishments in place of God ?

14. A fifth passage, which some make use of, is in 2 Corinthians
(x. 3): ‘For though we walk in the flesh, we do not war according
to the flesh; for the weapons of our warfare are not of the flesh,*
but mighty before God to the casting down of strongholds,’ and what
follows.

This has no bearing on the point under discussion. For the
passages which precede and follow show that by the term ‘ flesh’ in
that connexion Paul understood a weak condition of his body, of
a sort that attracted attention and brought him into contempt. To
this Paul opposed his own weapons, that is, the power given to him
as an Apostle to restrain the refractory, such as he made use of
against Elymas, against the Corinthian guilty of incest, Hymenaeus,
and Alexander. This power, then, he says, is not of the flesh,
that is, weak; on the contrary he declares that it is most mighty.
What has this to do with the right to inflict capital punishment, or to
wage war? Nothing whatever. Because the Church at that time
was without the backing of public authorities, for its protection God
had called forth that supernatural power; that power, again, began
to fail at about the time when Christian emperors came to the support
of the Church, just as the manna failed when the Jewish people
reached fertile lands. .

15. In the sixth place Ephesians (vi. 12) is quoted: ‘ Wherefore
put ye on the whole armour of God, that we may be able to stand
against the wiles of the Devil; for your wrestling is not against flesh
and blood’ (supply ‘only’, as in Hebrew idiom), ‘but against
principalities,’ and what follows. This has reference to the warfare
which Christians are obliged to wage as Christians, not the warfare
which under certain conditions they may be able to wage in common
with other men.

16. In the seventh place a passage of James (iv. 1) is brought
forward :

Whence come wars and whence come fightings among you?
1 Chrysostom on this passage [On Second Corinthians, x. 4~=-Homily XX], ii], by ‘ weapons of

the flesh’ understands [42] ‘wealth, glory, power, eloquence, craftiness, canvassing for votes,
flatteries, hypocrisies ’.

Chap. IT] Whether it 1s ever Lawful to wage War 49

Come they not hence, even of your pleasures that war in your members? Ye lust,
and have not ; ye envy and covet, and cannot obtain; ye fight and wage war, and receive
not, because ye ask not ; ye ask, and receive not, because ye ask amiss, that ye may spend
1t In your own pleasures.

This passage contains nothing of universal application. It says
only that the wars and fightings in which at that time the Jews,
scattered, were wretchedly contending among themselves (a history
of a part of these strifes may be found in Josephus) had their origin
in causes that were not righteous; that such a condition exists even
at the present time we know, and we grieve that it is so.

A couplet of Tibullus contains an implication not unlike that
of the passage of James :

[31] Curse of rich gold this is; and wars were not
When beechen cups beside men’s victuals stood.

In Strabo you may find in several places the comment that peoples
whose food is the simplest live in greatest innocency.* Not far from
this point of view are the lines of Lucan :

O lavish luxury,
Never with modest outlay satisfied ;
Vainglorious craving for those viands rare
Which quest on land and in the sea procures,
And glamour of the sumptuous board: learn ye
Upon how little life can be sustained,
How little nature craves. Not high-born wine,
Put up so long the Consul is forgot,
Restores the sick; from gold and crystal cups
They drink not, but with water pure their life
Comes back. Enough for men the stream and grain
Of Ceres. Oh wretched men, whom wars engage !

To this may be added the statement of Plutarch in the Contra-
dictions of the Stoics: ‘ There is no war among men which does not

1 Thesame thingis said by Philo, Ox the Coniemplatwve L1fe [chap.1i], where he quotes from Homer
this line [Jizad, xii. 6] :
Of men who hive on milk, and needy are,
A race which is most just.

Justin, in regard to the Scythians [Hzséorzes, II. ii. 7]: ‘They do not try to get gold and silver,
as other mortals do.’ A little later he adds [II. ii. ro]: ‘ This restraint of character has also imparted
justice to them, since they desire nothing that belongs to another. Certainly where there is use of
riches, there is also the eager desire for them.’

Gregoras, Book II [II. iv], has a passage of similar import about the Scythians, which is worth
reading.

Taxiles said to Alexander [Plutarch, Alexander, lix.=698 4]: ‘What need is there, Alexander, of
war and fighting between us, if you have come hither with the purpose of taking away from us neither
water nor necessary food ? For these are the only things for which men possessed of reason are obliged
to fight.’

Pertinent in this connexion is the saying of Diogenes [Porphyry, On Abstaining from Animal Food,
I, xlvii]: ‘ Neither thieves nor makers of wars, in fact, se up from among those whose food 1s barley.’

Porphyry, in his second book On Abstawming from Animal Food [XI. xni]: ‘ Whatever 1s easy to
make ready, and is of small cost, tends to perpetual piety, and that too among all men.’

1569:27 G

Antiquities
of the Jews,
XVITI, xin
(XVIII.
ix} and
XIX.

[I. x. 7 £.]

[IV
373 #]

=p.
1049 D.]

[II. in.
I-13 |

(I. xui
44.]

[xxix. 6 ]

[Protvepit-
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80 On the Law of War and Peace [Book I

originate in a fault. One is kindled by an eager desire for pleasures,
another by avarice, another by an overmastering passion for public
office or supreme power.’? Justin, having praised the institutions of
the Scythians, says: ‘If only other mortals would exercise a like self-
restraint, and have the same respect for the property of others! Surely
in that case so many wars would not be following one after the other
through all the ages in all the world, and steel and weapons would
not be carrying off more men than the term of fate as fixed by nature.’
In Cicero we read, in the first book On Ends: ‘ Out of passionate
desires arise hatreds, disagreements, dissensions, strifes, and wars.’
Says Maximus of Tyre: ‘ Now all places are full of wars, For every-
where passionate desires are rife and throughout all lands they arouse
covetousness for the things which belong to others.’ ‘ The body’,
says lamblichus, ‘ and the passionate desires of the body cause wars,
fightings, and dissensions. For wars have their origin in the effort
to obtain possession of things that are useful.’

1 This thought is absolutely true, but men seldom reflect upon it, though it has been set forth in
many admirable statements by the ancients. What harm, then, to fortify it by the sayings of others,
which are not less effective ?

Athenaeus, the philosopher, in Diogenes Laertius [X. xu] :

For evil things you toil, O wretched men !
A lust of gain insatiate drives you on
To strifes and wars.

Fabianus Papirius, in the Controverszes of Seneca the father [II. ix]:

Look you—armies in battle formation, often made up of fellow-citizens and kindred, have
taken their positions ready to fight, and the hills are filled with horsemen on both sides ; forthwith
all the country round is strewn with the bodies of the slain, with a multitude of corpses of the fallen,
or a multitude of despoulers.

Suppose that some one shall raise the question, what cause forced man against man into
wickedness ?_ For the wild beasts do not wage wars on one another; and if they did, the same
actions would not be fitting for man, a creature of peaceful disposition and very near the divine.
What so great anger carries you on, being, as you are, one stock and blood? Or what furies have
goaded you to mutual bloodshed ? What so great evil has been inflicted upon the human race,
either by chance or by fate? Was the slaughter of men worth while that banquets might be
copiously furnished with cups, and ceilings glitter with gold? Great and praiseworthy should be
the inducements which should lead men at such cost to prefer to gaze upon their own table and
decorated panels rather than to look upon the light of day in innocence. Was it necessary to try to
enslave the world in order that nothmg might be denied to the stomach and to lust? Why, pray,
are curser ringing riches in such ways to be sought, if not even for this purpose, to leave them to
one’s children

Philo, On the Ten Commandments [chap. xxviii]: [43] ‘Is the love of money, or of women, or
of glory, or, in fine, of any thing else that gives pleasure, the cause of merely shght and ordinary evils ?
By reason of this love, kindred are estranged from kindred, natural affection being changed into
incurable hate; large and populous countries, furthermore, are laid waste by stnifes between fellow-
citizens ; then, again, both land and sea are filled with disasters constantly recurring through engage-
ments of infantry and naval forces. For those wars of the Greeks and the barbarians, whether among
themselves or of Greeks against barbarians, even though sung and resung in tragedies, have all flowed
from one fountain of passionate desire, whether of riches or glory or pleasure.’

Pliny, Natural History, Book IJ, chap. iii (II. lxm. 154]: ‘Yet we make such use of the too gentle
earth that all the products of her bounty lead to crimes, to slaughter and to war; and we drench her
with our blood, we cover her with unburied bones.’

Jerome, Against Jovinianus, II [IX. xi]: ‘ Diogenes affirms that tyrants and destroyers of cities,
and wars whether against foreign enemies or between fellow-citizens, have their origin not in the
jequirements of simple living on vegetables and fruits, but in a passionate desire for choice meats and

eastings.

Chrysostom, On First Corinthians, xiii. 3 [Homily XXXII. v]: ‘For if all men loved one another,

Chap. IT] Whether it 1s ever Lawful to wage War SI

17. There remains what was said to Peter: ‘ He that smiteth
with the sword shall perish by the sword.’ This relates, however,
not to war in general, but specifically to private war; for Christ in
not allowing a defence of himself to be made, or in neglecting to
defend himself, presents as the reason that his kingdom is not of this
world (‘Fohn, xviii. 36). This will be more appropriately treated in
another connexion.

IX.—T he agreement of the early Christtans in regard to the subject under
discussion 1s examined

1. Whenever question is raised in regard to the interpretation
of a writing, great weight is commonly attributed both to subsequent
usage and to the authority of wise men. This point of view ought
to be maintained also in the interpretation of Holy Writ. For
it is not probable that the churches which had been founded by
the Apostles either suddenly, or in all cases, fell away from those
teachings which, though written down in concise form, the Apostles
had more fully explained by word of mouth or had even introduced
into practice. Now those who oppose wars are wont to bring forward
several sayings of the early Christians in regard to which I have three
things to say.

2. Inthe first place, any inference based upon these sayings repre-
sents nothing more than the private opinion of certain individuals, not
the opinion of the churches publicly expressed. Further, the authors
of the sayings referred to are for the most part men who like to follow
a road different from that of others and to set forth a teaching on some
point in rather a lofty strain. Such are Origen and Tertullian; and
these writers are, in fact, not self-consistent. For Origen says that bees
were given by God [32] as an example to show ‘ how wars, if ever
there should arise a necessity for them, should be waged in a just and
orderly manner among men’; and the same Tertullian, who else-

no man would injure another; far from us would be murders, and strifes, and wars, and seditions,
and lootings, and frauds, and all other evils.’ The same preacher in his sermon To the Beheving Father
[ix], speaking of the mch, says: ‘ Through these come there not seditions, and wars, and strifes, and the
destruction of cities, and kidnapping, and slavery, and captivities, and murder, and innumerable evils
of life P’
Claudian [Against Rufinus, I. 217-19] :

If this were known to men, we should enjoy

The simple hfe. The trumpet-calls to strife

No more would sound, no more the whistling dart

Would fly ; wind would not shatter ships

Nor battering-ram the walls.

Agathias, Histories, Book I [I. i]: ‘ Because the souls of men of their free choice slip into greed
of gain and injustice, they fill all places with wars and tumults.’ .

These fine sayings I shall conclude with one from Polybius [Dionysius of Halicarnassus, V. xii,
quoted by Suidas, Lextcon, under Adrdprea]: ‘A soul that is satisfied with what is necessary needs
no other teacher in order to become wise.’

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]xxx11,]

[De Spec-
tacults,
XIX |

[xix |

(x1 ]

f.]

[Antigur-
ties, XIV.
x 12.]

82 On the Law of War and Peace [Book I

where seems to be less in favour of capital punishment, said: ‘ No
one denies that it is a good thing when the guilty are punished.’ *

In regard to military service Tertullian hesitates. For in his
book On Idolatry he says: ‘’The question is raised whether the
faithful can turn to military service, and whether the military can
be admitted to the faith’; and in this connexion he seems inclined
to a view adverse to military service. But in the book On the Soldier’s
Chaplet, having presented some considerations adverse to military
service, he immediately distinguishes those who were enrolled in
military service before baptism from those who enlisted after they
were baptized. ‘ Evidently’, he says, ‘ the condition of those whom
the faith finds already engaged in military service is altogether
different, as was the condition of those whom John admitted to
baptism, also that of the very faithful centurions, of whom one was
commended by Christ, the other instructed by Peter. Nevertheless,
having received the faith and having been confirmed in it,? either
they must at once abandon the profession of arms, as many have done,
or they must resort to cleverness in every possible way (that is, they
must “take every precaution ”) that no offence be committed against
God.’ He recognized the fact, therefore, that the latter class remained
in military service after baptism; but this they would by no means have
done if they had understood that military service had been forbidden
by Christ—no more than the soothsayers, the magicians, and other
practisers of forbidden arts*® were permitted to remain in the practice of
their art after baptism. In the same book, praising a certain soldier,
and that too a Christian, he says, ‘Oh soldier, glorious before God !’

3. My second observation is that Christians have often dis-
approved or avoided military service on account of the condition
of the times, which hardly permitted them to engage in such service
without committing certain acts in conflict with Christian law. In
the letters of Dolabella to the Ephesians, which are found in Josephus,
we see that the Jews demanded exemption from service on military
expeditions, for the reason that, mingled with foreigners, they would

1 The same Tertullian, On the Soul [chap. xxxiii]: ‘Who would not prefer the justice of the world,
which, as even the Apostle testifies, ‘‘ beareth not the sword in vain,” which partakes of the nature of
religion when it resorts to severity in the defence of human life?’ Also To Scapula [chap. iv], Scapula
being a proconsul: ‘ We who do not fear are not trying to frighten you. But I would that we might
be able to save all men by warming them not to fight against God! You may both discharge the duties
of your office, and remember the claims of humanity, even because you also are under the sword.’

2 The distinction which he here makes in respect to warfaie he elsewhere applies to marriage, both
in the treatise On Monogamy, and m the Exhortaiton to Chastity.

* Tertullian, On Idolairy [v]: ‘They who practise the arts that the discipline of God has not
accepted, are not admitted into the church,’

Augustine, On Faith and Works [xvui. 33]: ‘Courtesans and actors, and all others whose activities
involve public disgrace, [44] are not permitted to approach the sacraments of Christ unless they have
cast off or broken such bonds.’ Foran example in the case of an actor, see Cyprian, Letiers, lxv [lx1] ;
for cases of gladiatorial trainers, procurers, and purveyors of victims, see Tertullian [On Idolatry,
chap. x1] ; the case of a charioteer of the circus is to be found in Augustine [Migne, XLIII. 786 f.].

Chap. IT] Whether it is ever Lawful to wage War 83

not be able properly to keep up the rites of their law, and because
they would be forced to carry arms and make long marches on the
Sabbath day. Josephus further informs us that for the same reasons
Jews requested and obtained exemption from Lucius Lentulus. Else-
where he relates that when the Jews were bidden to leave the city
of Rome some were enrolled in military service, others were punished
because they would not serve on account of respect for the laws of
their forefathers, that is, for the reasons which we have mentioned.

Sometimes there was also a third reason, that they thought they
would have to fight against those of their own people; but from their
point of view ‘to take up arms against those of their own people was
a crime’, especially at a time when men of their own people were
risking their lives in order to keep the law of their forefathers. When-
ever the Jews were able to safeguard themselves against these dis-
advantages, they would engage in military service even under foreign
kings, but ‘ continuing in the practices of their forefathers * and living
in accordance with their statutes’; and this they were accustomed
to stipulate in advance, as we know on the authority of Josephus.

Very similar to these hazards are those which Tertullian urges
against the military service of his day. In the book On Idolatry he
says: ‘Incompatible are the oath of allegiance to God and that to
man, the standard of Christ and the standard of the Devil’; the
reason is that soldiers were bidden to take oath in the name of the
gods of the nations, as Jupiter, Mars, and other divinities. But in
the book On the Soldier’s Chaplet he writes: ‘ Shall he keep guard in
front of temples whose worship he has abjured, and sup in a place
not acceptable to the Apostle, and defend by night those whom in
the daytime he has put to flight by means of exorcisms?’ A little
further on he adds: ‘ How many other things can be descried among
the offences arising from the activities of the camp, which must be
regarded as transgressions ? ’

In the third place we note that the Christians of the earliest
time were fired by so great zeal to attain to the most excellent things
that [33] they often interpreted divine counsels as commands.
‘The Christians’, says Athenagoras, ‘do not avail themselves of
judicial procedure against those who seize their property.’ Salvianus
asserts that we are enjoined by Christ to abandon things which are
the subject of a lawsuit, provided only we get rid of litigation. And
yet that principle, thus broadly stated, is a matter of counsel, and
a concern of the higher life ;? it was not laid down as a command.

1 The words are those of Josephus, Antiquities of the Jews, XI [XI. viii. ‘|;

2 Fourth Council of Carthage [canon xix]: ‘A bishop is not to engage in litigation on behalf of
temporal interests, even when attacked.’ Add Ambrose, Ou Duties, Book II. xxi, and Gregory the
Great, Book II, Ind. xi, Epist. lviii.

[A ntegui-
ties, XIV.
Xx. 13 ]
[XVIII
ii. 5]

(Josephus,
Life, vi.]

[xix.]

[x1.]

[A pology
for the
Christians,
i]

[On the
Govern-
ment of
God, III
vi. 22.]

[Ovations
against
the Greeks,
Xv1 |

[A pology
xlvi J
[Divene
Institutes]
V. XViil
[V. Xv.
12 ]

[Stromatia,
I. XXv1,
XXVi1.|

[Paedago-
gus, II.
x1. 116.]

Chap. zxlix.

84 On the Law of War and Peace [Book I

The case is similar in respect to the taking of an oath, which
most of the early Christians disapprove without making any exception,
although Paul used an oath, on an important occasion. ‘The Christian
in Tatian says: ‘I refuse the office of praetor’; in Tertullian we
read, ‘ The Christian does not aspire to the aedileship.’ In like manner
Lactantius declares that the just man, such as he wishes the Christian
to be, will not engage in war; but at the same time and in the same
way he declares that the just man will not travel on the sea. How
many of the early writers try to dissuade Christians from second
marriages ? All the things recommended are praiseworthy, excellent,
and in a high degree pleasing to God; but they are not exacted of us
by the required observance of any law.

These observations, then, will be adequate to meet the objections
which are urged.

5. In order to establish our case, first, on our side there is no
lack of writers, and very early writers, too, who hold the opinion
that both capital punishment and war, the legitimacy of which
depends on the justification of capital punishment, may be lawfully
resorted to by Christians. For Clement of Alexandria says that the
Christian, if he is summoned to power, as Moses was, will be for his
subjects a living law, and that he will reward the good, inflict punish-
ment onthe bad. And elsewhere, describing the dress of the Christian,
he says that it is seemly for a man to go barefoot, unless perchance
he be in military service. In the Comstztutions* which bear the name
of Clement of Rome we read (Book VII, chap. iii): ‘ Not as though all
putting to death were unlawful, but only that of an innocent person ;
nevertheless, even when justifiable, this has been reserved for magis-
trates alone.’

6. But let us leave the expressions of opinion by individuals
and come to the authoritative public practice of the church, which
ought to be of very great weight. I say, then, that men engaged in
military service have never been refused baptism, or excommunicated
from the Church; nevertheless such action ought to have been taken,
and would have been taken, if military service had been irreconcilable
with the provisions of the New Covenant.

In the Constitutions just quoted (Book VIII, chap. xxxii), the
writer treats of those who in the olden days were from time to time
admitted to baptism, or excluded from it: ‘ Let the soldier who
asks for baptism be taught to abstain from unjust acts and false
accusations, and to be content with his wages. If he obey these
instructions, let him be admitted.’ Tertullian in his Apology, speaking

1 This book seems to have been written at the end of the second century.

Chap. IT] Whether it 1s ever Lawful to wage War 85

in the name of the Christians, says: ‘ We sail with you and we engage
in military service with you.’ A little before he had said: ‘ We are
not of you, and we have filled all places belonging to you, your cities,
islands, fortified posts, towns, places of assembly, even your camps.’
In the same book he had related that in answer to the prayers of
Christian soldiers a rainstorm was sent to the Emperor Marcus
Aurelius? In the Chaplet he says that the soldier who had cast
away his chaplet manifested a more steadfast courage than his
brethren, and shows that the man had many fellow soldiers who were
Christians.

7. Furthermore, there were some soldiers who, having suffered
tortures and death for Christ, received from the Church the same
honour as the other martyrs. Among them are mentioned three
companions of Paul;? Cerialis under Decius, and Marinus under
Valerian; fifty soldier martyrs under Aurelian; Victor, Maurus,
and Valentine, a chief of soldiers, under Maximian, and about the
same time Marcellus the centurion; and Severianus, under Licinius.
In regard to Laurentinus and Ignatius, [34] natives of Africa,
Cyprian writes :

They once served as soldiers in the warfare of this world, but afterward as true and

spiritual soldiers of God they routed the Devil by confessing Christ, and through martyr-
dom won the palms and glorious crowns bestowed by the Lord.

From all this it is clear what opinion the body of Christians
held in regard to military service, even before there were Christian
emperors.

8. It ought not to seem strange if in those times Christians
did not willingly take part in criminal proceedings, since very fre-
quently judgement was to be passed upon Christians themselves.
There is the further consideration that in respect to other matters
also the Roman laws were harsher than accorded with Christian
lenity ; this is evident enough from a single instance, the senatus-
consultum Silanianum.? But after Constantine began to view the
Christian religion with approval and advance its interests, the
infliction of capital punishment did not on that account cease.
Constantine himself, in fact, among other laws promulgated a law
in regard to sewing up parricides in a leather bag, and this law is
extant in the Code, in the title Concerning those who have killed
Parents or Children; although, for the rest, in inflicting punishments
Constantine was exceedingly mild, so that he is criticized by not a few

1 See also Xiphilinus in regard to this incident [Dio Cassius, Roman Htsiory, LXXI. viii].

2 Add a certain soldier baptized by Comelius, of whom Ado makes mention.

3 The harshness of this decree [Digest, XXIX. v. 1, §§ 7, 21] was mitigated by Hadrian the Emperor,
as we read in Spartianus [Hadrzan, xvii]. To the harsh laws of the Romans may be added those
which forbade the admission of the testimony of a slave except under torture [Code of Justiman,
VI. 1. 4].

Chap.
XXXVI,

(Chap. v ]

(1.]

[Letters
XXXIV. 3.]

[Code, IX.
xvii 1.]

[II v.]

[= Augus-
tine, Ser-
mones,
Appendix,
Ixxxu1 ]

I xxvu
[z28].

86 On the Law of War and Peace [Book I

historical writers because of his excessive leniency. Also he had
in his army a great many Christians, as history teaches us, and he
inscribed the name of Christ upon his banner. In consequence the
military oath also was changed into the form which is found in
Vegetius: ‘By God and Christ and the Holy Spirit, and by the
Majesty of the Emperor, which, next after God, ought to be for
mankind the object of love and respect.’

And at that time among so many bishops, of whom a number
had passed through the most cruel sufferings for their religion, we
do not read that there was a single one who by arousing fear of
the wrath of God sought to deter either Constantine from
inflicting the death penalty and engaging in war, or Christians from
military service; this, too, in face of the fact that a great many of
the bishops were very alert guardians of discipline, and not at all
disposed to hold back any suggestion regarding the duty either of
the emperors or of other persons. Such a bishop, in the time of
Theodosius, was Ambrose, who in his seventh discourse speaks as
follows: ‘To serve as a soldier is not an offence, but to serve as
a soldier in order to obtain booty is a sin’; and in his work On Duties
he says, ‘ Bravery, which by means of war defends one’s native
land from barbarians, or at home protects the weak, or safeguards
one’s associates from brigands, is complete justice.’ This argument
seems to me to be of so great force that I do not need to add
anything to it.

10. Nevertheless Iam not unmindful of the fact that frequently
bishops * and Christian people by interposing their supplications have
averted punishments, and death penalties especially; also that the
custom had been introduced that they who had taken refuge in
a church, should not be given up except under a pledge that their
lives would be spared, and that about Easter time * those who were
being kept in prison on account of their crimes should be set free.
But he who will take the pains to weigh all the facts cited, and others
like them, will find that these are the manifestations of Christian
goodness which seizes every opportunity to show mercy, not of

1 Zonaras [Hzstory, XIII. v. 11; speaking of Constantine the Great]: ‘ He would show himself
clement to those who had abandoned a wicked life, saying that a limb which was diseased and decaying
must be cut off, in order not to spread contagion to parts that were healthy, but not a limb that was
either already healed, or in process of healing.’ See also Eusebius [On the Life of Constantine, IV. xxxi].

Just as you find Christians complaining of the leniency of Constantine as too great, so in Saxo
the historian you may find the Danes making complaint about the leniency of their King Harold [History
of Denmark, Book XJ].

? Augustine [Leiters, cliii. 1]: ‘It is the duty of a priest to intercede on behalf of those under
accusation.’ In his letters there are many examples of such goodness.

_ 5 See Chrysostom, On zhe Statues, Homily XVI ; [First] Council of Orleans, chap. iii; Law of the
Visigoths, Book VI, title v, chap. 16, Book IX, title ti, chap. 3 [VI. v. 16, Ifa Murderer flees for Refuge
io a Ch ch sx lil. 3, On the Penalty for dragging a Man away from a Church ; ed. Zeumer].

ode, I. iv. 3.

Chap. IT] Whether it is ever Lawful to wage War 87

a spirit that condemns all judicial proceedings involving the death
penalty. Hence such kindnesses, and even intercessions, were
restricted by various exceptions ' arising from both place and time.

Ir. At this point in opposition to the view advocated by us
some present the twelfth canon of the Council of Nicaea, which
runs as follows :

Those who, having been called by grace,” at first manifested their zeal and faith
and laid off their soldier’s belt, but afterward returned as dogs to their vomit, some even
having given money and offered inducements 1n order to get back into military service—
let them, after having been hearers for three years, remain in penitence for ten years.
In the case of all of them, however, it is needful that the purpose and the manner of
their repentance be kept in view. They who through fear, and tears, and long-suffering,
and good works do show forth a sincere conversion shall, on completing their term as
hearers, [35] be permitted to take part in the prayers, and after that it shall be per-
missible for the bishop to be more kindly disposed toward them. But they that have
acted with indifference, and have thought that the formality of entering a church was
alone sufficient for conversion, are to complete the appointed term without any reduction.

The period of thirteen years clearly enough indicates that we
are here dealing not with a fault that is trivial or open to question
but with a serious and undoubted offence.

12. Now the matter here dealt with is beyond doubt idolatry.®
For the mention of the times of Licinius in the eleventh canon,
which precedes, ought to be considered as silently repeated in this
canon. It often happens that the meaning of canons which follow
depends on the meaning of those which precede; for an example
reference may be made to the eleventh canon of the Council of
Elvira.

Licinius, in fact, in the words of Eusebius, ‘ forced men out of
military service unless they would offer sacrifice to the gods.’* His
example was afterward imitated by Julian, and for that reason
Victricius and others, we read, cast away the soldier’s belt for Christ.
The same thing had been done previously, under Diocletian, by
eleven hundred and four soldiers in Armenia, of whom mention is

1 For these exceptions see Cassiodorus [Variae], XI. xl; also, among other references, Decretals,
III. xhx. 6.
2 Simeon Magister gives an epitome of this canon:

_ Those who seemed to offer resistance when violence was attempted, but who have been van-
quished by impiety and have again entered military service, are to be excluded from communion
for ten years.

, The same meaning of this canon is expressed by Balsamon and Zonaras, and by Ruffinus, Book X,
chap. v1

4 This as the principal crime is called by Tertullian, On Idolatry [chap. 1], ‘the highest offence
chargeable against the world’; and by Cyprian, Lezters, xii [x. r], ‘ the most grave and utmast sin’.

4 Sulpicius Severus [Sacred History, II. xxxiii]: ‘Licinius, because he was contending with
Constantine for the sovereign power, had ordered his soldiers to offer sacrifice ; those who refused he
rejected from muhtary service.’ For the same reason Valentinian, who afterward became emperor,
left the service under Julian. Similar is the fact related by Victor of Utica [Victor Vitensis,
Persecution of the Vandals, II. vu], that under King Huneric many abandoned the calling of arms,
because it had been associated with Arianism.

[Om the
Life of
Constan-
tine, I
liv.]

[Eusebrus,
On the Lafe
of Con-
stantine,
II. xxx1i1.]

88 On the Law of War and Peace [Book I

made in the martyrologies, and in Egypt by Mennas and Hesychius.
Under such conditions in the time of Licinius many cast away their
belts ; among them was Arsacius, who is named among the confessors,
and Auxentius, who afterward became bishop of Mopsuestia.

In consequence, soldiers who, pricked in conscience, had once
cast away their belts, could not return to military service under
Licinius except by adjuring their Christian faith; and since that
step was all the more reprehensible for the reason that their former
act evidenced in them a fuller knowledge of the divine law, such
backsliders are punished more severely even than those dealt with
in the preceding canon, who had renounced Christianity without
running any risk of the loss of life or of property. To interpret the
canon which we have quoted as referring broadly to all military
service is altogether unreasonable. History in fact plainly testifies
that those who had renounced military service under Licinius, and,
in order that they might not do violence to their Christian faith,
had not returned to it while Licinius was in power, received from
Constantine an option, to remain exempt from military service if
they so desired, or to return to military service ; beyond doubt many
chose the latter alternative.

13. Some urge in opposition also the letter of Leo, which says:
‘Tt is contrary to the rules of the Church, after an act of penitence, to
return to secular service of arms.’ But we must know that in the case
of penitents no less than in that of the clergy and ascetics there was
required a mode of life not merely Christian, but of conspicuous holi-
ness, in order that their example might be as effective for correction as
it had previously been for the committing of sin.* Similarly in the
most ancient formulated customs of the Church which, to render them
more acceptable through a more impressive name, were commonly
called the Apostolic Canons, in the eighty-second canon the rule is
laid down: ‘ Let no bishop, priest or deacon devote himself to the
profession of arms, and at the same time remain in the service of Rome
and retain his priestly function. To Caesar belong the things that
are Caesar’s, and unto God the things that are God’s.’? By this very
statement it is made clear that Christians who did not aspire to the
honour of the clerical profession were not forbidden to engage in
military service.

14. It was, furthermore, forbidden to admit to the clerical
profession * those who, after baptism, had taken office as magistrates

__ + Leo, letter xc, To Rusiscus [Leo the Great, Letters, clxvii]: ‘He who asks pardon for things for-
bidden ought [45] also to refram from many things which are permissible.’

In the letter of the bishops to King Louis we read: ‘A man ought to cut himself off from things
permissible in the degree that he remembers that he has done things which were not permissible’ ;
in the Capziularies of Charles the Bald: ‘ Let each seek greater gains through good works in propor-
tion as he has brought greater losses on himself through fault.’

2 Eusebius, Demonstrations, Book I [chap. vim], describes the Christian life as of two types, the

Chap. IT] Whether it 1s ever Lawful to wage War 89

or had assumed military responsibilities, as may be seen in the letters
of Syricius and Innocent, and in the canons of the Council of Toledo.
Candidates for orders, as we know, were chosen not from among
Christians of any and every sort but only from among those who had
presented an example of the most correct life. Again, the obligation
imposed by military service and by some magistracies was permanent ;
but those who were set aside for the sacred office were not to allow
themselves to be distracted by any outside responsibility or [36]
daily task.t. For this reason the sixth canon ordered that no bishop,
priest or deacon should administer secular interests, the eightieth that
they should not become involved in public administration. The
sixth of the African canons ordered that they should not assume
charge of the interests of others,* or the defence of others’ causes.
Consistently with this decree Cyprian * thinks it altogether wrong
for these officers of the Church to be appointed guardians.

15. In support of our view we have the clearly formulated
judgement of the Church in the first Council of Arles, which was
held under Constantine. The third canon of that Council reads
thus: ‘ In regard to those who cast away their arms in time of peace,
it was decreed that they abstain from the communion.’ This has
reference to those who deserted from the army in times when there
was no persecution ; for that is what Christians meant by the term
peace,* as is apparent from Cyprian and others. There is the further
example of the soldiers under Julian, whose progress in Christianity
was so great that they were ready to bear witness to Christ by their
death. Ambrose speaks of them in these words:

The Emperor Julian, although an apostate, nevertheless had Christian soldiers
under him. When he said to them, ‘Go into battle in defence of the state,’ they
were obedient to him; but when he would say to them, ‘ Bear arms against Christians,’
they recognized as their leader the ruler of heaven.

Such spirit long before had been manifested by the Theban

one perfect, the other falling short of perfection. Christians who represent the latter type among other
things ‘ point out to those who are engaged in just warfare what their duty is’.

1 See the canon of the Council of Mainz in Gratian, Decrefals ITI. 1.1.

2 See the letter of Jerome To Nepotzanus [lu].

* In his letter To the Priests, Deacons, and People at Furnt (Letters, xv]. Add the law, Code, I. iii.
51 (52).

% ‘rertullian, On Idolairy [xix] ; ‘ Nay, how even in peace will the Christian render military service ?’
The same writer, On Fitght in Persecutzon [iu]: ‘ What war does our peace have, excepting persecution?’

Cyprian, Letters, x [ix. 3]: ‘ When the first thing is that our mother, the Church, should first have
received peace from the mercy of the Lord’; Letiers, xxii [xxi. 2; letter of Lucian]: ‘Since the
Lord has begun to give peace to the Church’; Leiters, xxxi [xxxi.5; the Roman clergy to
phere ‘That the peace of the Church must be maintained,’ that is, is to be expected; On the
Lapsed [chap. v]: ‘long peace had corrupted the discipline.’

Sulpicius Severus [Sacred History, II. xxxii]: ‘ During the reign of Antoninus Pius the churches
had peace’; later [xxxii. 2], ‘ after an interval of thirty-eight years the Christians had peace’ ; and
in the period of Constantine [xxxiii. 3], ‘ since then we have been enjoying a condition of tranquillity
in peace’ ; also, at the beginning of his History [I. 1.3]: ‘Tormentings of the people of Christ, and
then times of peace.’

[Decre-
tum, II
X1.3 94>
Augus-
tine, Le#-
tévs, CV.

[I. iv. 7.
ro ff]

go On the Law of War and Peace [Book I

legion, which in the reign of Diocletian had received the Christian
religion from Zabdas, thirtieth bishop of Jerusalem, and afterward
gave an example of Christian steadfastness and long-suffering memor-
able for all time. ‘T’o this example we shall refer later.

16. Here it may suffice to quote the utterance of the members
of the Theban legion, which with compact brevity sets forth the
duty of the Christian soldier :

To oppose any foe whatsoever we offer our hands, which we deem it impious to
stain with the blood of the innocent. Our right hands themselves know how to fight
against wicked men and enemies; they do not know how to tear in pieces righteous
men and fellow citizens. We remember that we took up arms on behalf of citizens
rather than against citizens. We have always fought on behalf of justice, on behalf of
loyalty, on behalf of the safety of the innocent; up to the present time this has been
the reward for our dangers. We have fought on behalf of the faith; and how are we
to keep our faith toward you—the words are addressed to the Emperor—if we do not
show forth faith toward God ?

Basil spoke thus of the Christians of the earlier time:

Slayings in war our ancestors did not consider as murder; they considered that
those who fight in defence of virtue and righteousness are absolved.

CHAPTER ITI

DISTINCTION BETWEEN PUBLIC AND PRIVATE WAR; EXPLANATION
OF SOVEREIGNTY

I.—Division of war into public and private

[46] 1. Tue first and most essential division of war is that
into public war, private war, and mixed war.

A public war is that which is waged by him who has lawful
authority to wage it; a private war, that which is waged by one
who has not the lawful authority; and a mixed war is that which
is on one side public, on the other side private. Let us deal first with
private war, as the more ancient.

2. That private wars in some cases may be waged lawfully,
so far as the law of nature is concerned, is, I think, sufficiently clear
from what was said above, when we showed that the use of force to
ward off injury is not in conflict with the law of nature. But possibly
some may think that after public tribunals had been established
private wars were not permissible. For although public tribunals
are the creation not of nature but of man, it is, nevertheless, much
more consistent with moral standards, and more conducive to the
peace of individuals, that a matter be judicially investigated by one
who has no personal interest in it, than that individuals, too often
having only their own interests in view, should seek by their own
hands to obtain that which they consider right; wherefore equity
and reason given to us by nature declare that so praiseworthy an
institution should have the fullest support. Says Paul the jurist,
‘Individuals must not be permitted to do that which the magistrate
can do in the name of the state, in order that there may be no occasion
for raising a greater disturbance.’ ‘The reason’, King ‘Theodoric?
said, ‘ why laws were clothed with a reverential regard, was that
nothing might be done by one’s own hand, nothing on individual
impulse. For what difference is there between tranquil peace and
the hurly-burly of war, if controversies between individuals are
settled by the use of force ?’

The laws term it a use of force ‘ when an individual tries to
enforce his claim to what he thinks is due him without having
recourse to a judge’.

1 See the Zdicz of Theodoric, chaps. x and cxxiv.

Ol

Syl., word
bellum, I,
no. I.

Dig. L.
xvi1. 176,

Cass.,
Variae, IV.
iv [IV. x].

Digest,
IV. i. 13.

Molina,
Disp, 100,
§ dubio
Vero.

[iM acro-

beus, Sa-
turnalra,
I.iv. 19.]

Q2 On the Law of War and Peace [Book I

Il.—T he proposition, that according to the law of nature not all private
war 1s unpermissible since the establishment of courts, 1s defended,
illustrations being added

1, It is surely beyond doubt that the licence which was pre-
valent before the establishment of courts has been greatly restricted.
Nevertheless there are circumstances under which such licence even
now holds good, that is, undoubtedly, where judicial procedure
ceases to be available. For the law which forbids a man to seek to
recover his own otherwise than through judicial process is ordinarily
understood as applicable only where judicial process has been possible.

Now judicial procedure ceases to be available either temporarily
or continuously. It ceases to be available temporarily * when one
cannot wait to refer a matter to a judge without certain danger or
loss. It ceases to be available continuously either in law or in fact:
in law, if one finds himself in places without inhabitants, as on the
sea, in a wilderness, or on vacant islands, or in any other places where
there is no state; in fact, if those who are subject to jurisdiction do not
heed the judge, or if the judge has openly refused to take cognizance.

2. What we said, that even after the establishment of courts
not all private wars were in conflict with the law of nature, can be
supported also from the law which was given to the Jews ; for therein
through the agency of Moses God said (Exodus, xxii. 2): ‘If the
thief be found breaking in, and be smitten so that he dieth, there
shall be no bloodguiltiness for him. If the sun be risen upon him,
there shall be bloodguiltiness for him.’

It seems clear that this ordinance, which makes so careful
a distinction, not only assures impunity but also explains the law of
nature, and that it is not founded upon a special divine mandate, but
grounded in common equity. Hence, we see, other nations also
followed it. Well known is the provision of the T'welve Tables,
undoubtedly taken from the ancient Attic law?: ‘If a theft has
been committed at night, and any one has killed the thief, be it that
the thief was rightly slain.’ Thus by the laws of all peoples known
to us the person who in peril of his life has by means of arms defended
himself against an assailant is adjudged innocent. An agreement so
manifest furnishes in itself the proof that in it there is nothing in
conflict with the law of nature.

1 Servius, On the Aeneid, XI [X, line 419], on the words ‘The fates laid hand upon him’
(Iniecere manum Parcae): ‘They took what was due to them. The poet here used a legal expression,
for there is said to be a “laying on of the hand’ when, without authority from a judge, we lay claim
to a thing that is due to us.’

2 The words of Solon [Demosthenes, Against Timocrates, xxiv. 113 = p. 736]: ‘If any one in the
daytime steal in an amount exceeding fifty drachmas, it shall be right to take him before the Eleven:
but if any one steal at night, even the least thing, it shall be permitted even to kill him,

Add what is said below in the second book, chap. xii [TT. i. 12].

Chap. III] Distinction between Public and Pnvate War 93

Ill.—The proposition is defended that private war 1m some cases 1s
permissible even according to the law of the Gospel, objections
being met

1. In the case of the volitional divine law in its more perfect
form, that is, the law of the Gospel, [47] a greater difficulty
presents itself. I do not doubt that God, Who has over our lives
a more absolute right than we ourselves, might have required of us
so great a degree of forbearance that, as individuals, when confronted
with danger, it would be our duty to allow ourselves to be killed
rather than to kill. But did God purpose to bind us in so extreme
a fashion? That is the point which we are to investigate.

On the affirmative side, two passages are commonly brought
forward to which, in the discussion of the general question, we have
already referred. They are: ‘But I say unto you, Resist not him
that is evil’ (Mathew, v. 39) ; and ‘ Avenge not yourselves, beloved ’
(Romans, xii. 19), where the Latin translation has ‘Defend not
yourselves, beloved’. A third passage is in the words of Christ to
Peter: ‘Put up again thy sword into its sheath; for all they that
take the sword shall perish with the sword.’ In this connexion some
add also the example of Christ, who died for his enemies (Romans,
v. 8, IO).

2. Among the early Christians there was no lack of those who
did not indeed disapprove of public war, but who thought that in
the case of an individual self-defence was forbidden. The passages
of Ambrose favourable to war we quoted above. Familiar to all
are the statements of Augustine, which are even more numerous
and more clear. But the same Ambrose says: ‘And perchance He
said to Peter, who offered him two swords, “‘ It is enough,” as if He
had said that the use of the sword in self-defence was permissible
up to the time of the Gospel ; with the implication that the teaching
of the law stressed equity, while the teaching of the Gospel stressed
truth.’ And in another passage he adds: ‘ The Christian, even if
he fall in the way of an armed brigand, cannot strike in turn one
who strikes him, from fear that, while defending his safety, he mar
his piety.’

‘I find no fault’, says Augustine, ‘with the law which permits
the slaying of such people’ (brigands and others who assault with
violence), ‘ but I do not see how to justify those who put them to
death.’ In another connexion he declares: ‘The idea of killing
men in order not to be killed by them is not acceptable to me, unless,
perchance, in the case of a soldier or of a public functionary acting
not for himself but on behalf of others, in the exercise of' a lawful

[Iu 8
3, 12.]

[ilatthew,
EXV1 52]

[L.i1 9 9]

On Luke,
X [hu].

On Duties,
III. ui
[III. iv].

On Free
Will,

I. v [12].
Letters,
cliv [xlvit.
5], To
Publicola.

Chaps. 43
and 55

{ Letters,
CXCIX. 43].

[Iu 8
6]

[ Jewish
War, II.
Vii. 4 ]

[For Milo,
lV T0.]

94 On the Law of War and Peace [Book I

authority.’ It is plain enough, from Basil’s second letter to Amphi-
lochius, that he held the same view.’

3. The contrary opinion, that no such degree of forbearance
is required, is certainly more common, and also seems to me more
true. For in the Gospel we are bidden to love our neighbour as
ourselves, not above ourselves; further, if a like evil threatens, we
are not forbidden to look out for ourselves in preference to others,’
as we showed above on the authority of Paul when he was explaining
the rule of kindness.

Perhaps some one may press the point and say: ‘ Even if I may
be able to give the preference to my own advantage over the advantage
of my neighbour, this would not hold in the case of unequal advantages;
wherefore I ought rather to give up my life than to suffer that my
assailant fall into eternal damnation.’ But the answer may be made
that in many cases even the man who is attacked has need of time
for repentance, or probably thinks he has; and the assailant also
may have time for repentance before death. Further, from the
point of view of morals it is not clear that that ought to be accounted
a danger into which a man has thrown himself, and from which he
can extricate himself.

Up to the very last some of the Apostles, under the eye of
Christ and with his knowledge, certainly seem to have made their
journeys armed with swords. From Josephus we learn that other
Galileans, when hastening from their country toward Jerusalem,
did the same thing, because the roads were infested with highway-
men; and he has reported a similar practice on the part of the
Essenes, the most inoffensive of men. Thus it came about that when
Christ was saying that the time was at hand when even a garment
should be sold in order to buy a sword (Luke, xxii. 36), the
Apostles at once answered that among their company there were
two swords; and in that [48] company there were none except
Apostles.

What Christ said, then, does not in truth embody a command ;
it is, rather, a proverbial expression, indicating that extremely
serious dangers threatened. This is clearly shown by the contrasting
reference to the earlier time (verse 35), which had been safe and
propitious. Nevertheless the words are such as plainly to suggest
what was customary, and what the Apostles considered per-
missible.

5. Rightly did Cicero declare that ‘It would surely not be

1 Add the canon of the Council of Orleans cited by Gratian, Decretum, II. xui. 2. ult.

2 Cassiodorus, On Frrendship [cf. Peter of Blois, On the Love of God and Neighbour, xi]: ‘ Truly
no one is bound by any commandment, or any reason, to accomplish the safety of his neighbour’s soul
by the loss of his own soul, or the freeing of his neighbour’s body by the destruction of his own body,
save only when the hope of eternal salvation is at stake.’

Chap. IIT] Distinction between Public and Private War 95

permissible to have swords, if it were not in any way permissible to
use them’. Again, the precept ‘Resist not him that is evil’ is not
more general in its application than that which follows, ‘ Give to
every one that asketh thee.’ The latter, nevertheless, is modified
by the restriction, provided that we do not overburden ourselves.
Nothing is added to the precept about giving which restricts its
application, and it is limited by the sense of equity alone; but
the precept about not resisting carries with it an explanation in the
concrete example of a slap. It is, then, to be understood that the
obligation not to offer resistance is absolutely binding upon us only
when the injury which threatens us is either a slap, or something
in the same class. Otherwise it would have been more in accordance
with what is right to say: ‘ Resist not him that doeth injury, but
give up life itself rather than to make use of weapons.’

6. In the words of Paul to the Romans, ‘ Avenge not your-
selves,’ the Greek has the meaning ‘ avenge’, not ‘defend’; so also
Fudith, i. 11, and ii. 1; Luke, xvili. 7, 8, and xxi. 22; 2 Thessa-
lonians, i. 83; xz Peter, ti. 143 Romans, xiti. 4; x Thessalonians, iv. 6.
This is made perfectly plain by the context; for the injunction
‘Render to no man evil for evil’ had preceded, and these words are
applicable only to revenge, not to defence. And in support of his
contention Paul cites the sentence from Deuteronomy: “ Justice is
mine, I will repay,’ where the Hebrew has ‘to me also vengeance’.
Both the proper use of the term in Hebrew shows that vengeance

is meant, and the meaning of the passage does not permit us to .

suppose that defence can be referred to.

7. What was said to Peter does in fact contain a prohibition
of the use of the sword, but not of such use in defence. Peter did
not have need to defend himself; for in regard to his disciples Christ
had already said (Fohn, xviii. 8, 9): ‘Let these go their way, that
the word might be fulfilled which he spake, of those whom thou
hast given me I lost not one.’ And there was no need to defend
Christ, for he did not wish to be defended. So in the narrative of
John Christ adds the reason for the prohibition (John, xviii. 11):
‘’The cup which the Father hath given me, shall I not drink it ?’
And in Matthew he says: ‘How then should the Scriptures be
fulfilled, that thus it must be?’ Peter, then, being impetuous,
was impelled by a desire for revenge, not for defence. Further, he
was taking up arms against those who were coming as representatives
of the public authority ; whether under any circumstances resistance
should be offered to those representing the public authority is
a question by itself, to which we must return later.

Now the sentence which our Lord adds, ‘ All they that have
taken up the sword shall perish by the sword,’ is either a proverb

1569'27 H

[xxxii.35 ]

[xxv1. 54.]

[On Pa-
tence, xv.]

Can, xlv
[lx1v]
Decretals,
V. XXXix.
3 and V.
x1i. 16.

96 On the Law of War and Peace [Book I

taken from common usage, signifying that bloodshed is provoked by
bloodshed, and that in consequence the use of weapons is never free
trom hazard; or, in accordance with the opinion held by Origen,
Theophylactus, Titus, and Euthymius, it means, that we ought not
to forestall God by taking the vengeance which He himself will
sufficiently exact in His own time. Evidently of such import is the
verse in Revelation (xiii. 10): ‘If any man shall kill with the sword,
with the sword must he be killed. Here is the patience and the faith
of the saints.’ In agreement therewith is the comment of Tertullian :
‘An all-sufficing Depositary for our patience is God. If you leave
with Him a wrong, He is the avenger; if suffering, He is the physician ;
if death, He raises from the dead. How great is the privilege of
patience, to have God as her Debtor!’ At the same time, in these
words of Christ [49] there seems to be a prophecy of the punish-
ment which the sword of the Romans was to exact from the blood-
guilty Jews.

8. As for the example of Christ, when we are told that He died
for His enemies the rejoinder may be made that all the acts of Christ
exemplify virtue in fullest measure, that it is praiseworthy to imitate
them, so far as possible, and that such imitation will not fail of its
reward; nevertheless not all His acts are of such a character that
they proceed from a law, or themselves establish a law. For in dying
for His enemies and for the ungodly Christ acted not in obedience
to anv law, but in accordance with a special promise and covenant,
as it were, made with the Father; if He should thus die the Father
promised to Him not only supreme glory but a people that should
endure forever (Isaiah, liti. 10). ‘That in other respects this act is as
it were unique, to which scarcely any parallel can be found, Paul
shows (Romans, v. 7). Christ, furthermore, bids us expose our lives
to danger not for any and every person, but on behalf of them that
share the same profession (z ohn, iii. 16).

9. The opinions which are cited from the Christian writers
seem in part to embody counsel and exhortation to a lofty purpose
rather than a rigid rule; in part they are the personal views of the
writers themselves, and do not reflect opinions shared by the whole
Church. In fact in the most ancient canons, which are called
Apostolic, only he is cut off from the communion who in a quarrel
has killed his opponent with the first blow ‘on account of the
excess of passion’. This opinion Augustine himself, whom we
have quoted for the opposite view, seems to approve (On Exodus,
qu. lxxxiv).

1 Ambrose, On Luke, Book X [chap. lit]: ‘Lord, why dost thou bid me purchase a sword whilst
thou biddest me not to strike ? Why dost thou direct that a sword be carried which thou forbiddest to
have drawn? Unless, perhaps, that defence be in readiness, vengeance not necessary.’

Chap. III] Dustinction between Public and Private War 97

IV.—Division of public war into formal and less formal

1. Public war is either formal, according to the law of nations,
or less formal.

The word ‘formal’ I use here as equivalent to ‘legal’ (custum)
in the sense in which we speak of a legal will (custum testamentum)
as distinguished from codicils, and a legal marriage as distinguished
from the union of slaves (contubernium). ‘This does not mean that
it is not permissible for any one to make codicils who may desire to
do so, or for a slave to have a woman living with him (2 contubernio) ; 1
but it does mean that from the point of view of the civil law the
formal will and the formal marriage have certain peculiar effects.
It is useful to note this distinction; for many, having a wrong
understanding of the word ‘legal’ (zustum) in such a connexion
think that all wars, to which the adjective ‘ legal’? (¢usta) is inapplic-
able, are under condemnation as inconsistent with justice or not
permissible.

In order that a war may be formal, according to the law of
nations, two conditions are requisite: first, that on both sides it be
waged under the authority of the one who holds the sovereign power
in the state; then, that certain formalities be observed, which we
shall discuss later in the proper connexion. Since both conditions are
conjointly requisite, one without the other does not suffice.

2. A less formal public war may lack the formalities referred
to, may be waged against private persons, and on the authority of
any public official. And surely if the matter be viewed without
reference to the laws of particular states, it would seem that every
public official has the right to wage war for the protection of the
people entrusted to his charge, and also in order to maintain his
jurisdiction if assailed by force. But because the whole state is
endangered by war, provision has been made by the laws of almost
every state that war may be waged only under the authority of him
who holds the sovereign power in the state.

Such a provision is to be found in the last book of Plato On
Laws. In the Roman law he is declared guilty of treason who has
waged war, or made a levy, or brought together an army without
the order of the emperor; the Cornelian Law, proposed by Lucius
Cornelius Sulla, had said, ‘ without the order of the people.’ In the
Code of Justinian, there is extant an imperial constitution of Valen-
tinian and Valens bearing on the same point: ‘ No person shall have

1 Among citizens there were certain marriages which were not ‘formal’ (tusia); children not
‘legitimate’ (zustz) according to civil law. Paul, Sententzae, Book II, title xix [II. xix. 6]; Dzgest,
XLVIII. v. 14 (13); so also there is a kind of liberty that is not ‘formal’ (susta). Seneca, On the
Happy Life, chap. xxiv ; Suetonius, Octavius [Octavianus], chap. xl.

H 2

(XII. vii.]
Digest,
ALVIILI.
LV. 3.

(XI. xlvii,
I.]

Vict., De
Lure Belh,
no. 9.
Molina,
Disp , 100,
§ tdem
Viet
Bartolus,
On Dig,
Ti. 5.
Bart., On
Reprt-
sals, 3
principali,
ad secun-

dam,no 6.

Martinus
Laud , De
Bello,

qu. 2.
Livy,
XXXIX
[X XIV.
XXXV1I—
ERXIxX].

Ayala,
De Iure
Belli, I. is,
no 7;
Sylv.,
word
bellum,
no. 2.
Innocent,
in Decre-
tals, IT.
xiil 12,
no. 8;

II xxiv.
29, no. 5.
Panor.,
abid.
Bartolus,
On Dig.,

MLIX., xv.

24,

98 On the Law of War and Peace [Book I

the authority to inaugurate a movement of arms of any sort without
our knowledge and without consulting us.? Here belongs the state-
ment of Augustine:* ‘The order which is according to nature and
adapted to the maintenance of peace among mortals [50] demands
that the authority and the decision in respect to commencing war
reside in those who hold the chief authority.’

3. But as all statements, no matter how general, are to be
interpreted in the light of justice, so also is this law. For in the first
place it cannot be doubted that it is permissible for a public official,
who has proper authority over a district, through his subordinates
to restrain by force a few that are disobedient, whenever there is
no need of larger forces for the purpose, and danger does not threaten
the state.

Again, if the danger is so pressing that time does not permit
consultation with him who has the supreme authority in the state,
in that case also necessity will make an exception. Of such a justifica-
tion Lucius Pinarius, who was in command of the garrison at Enna,
in Sicily, availed himself. Having learned with certainty that the
people of the town were planning to revolt to the Carthaginians,
he had them massacred, and so held possession of Enna. When no
such necessity was present, Franciscus de Victoria presumed to ascribe
to citizens of towns the right to carry on war in order to redress
wrongs which the king had neglected to prosecute; but his view is
deservedly rejected by others.

V.—Whether there may be a public war waged by the authority of
a public official not having sovereign power, and when

1. The jurists, however, are by no means agreed regarding the
circumstances under which minor public officials may have the right
to inaugurate a movement of arms, or whether such a war should be
called a public war. The affirmative view is held by some, the
negative by others.

Truly if we use the word public as including whatever is done
by the authority of an official, there is no doubt that such wars are
public, and consequently those who under conditions of this sort
oppose public officials expose themselves to the punishment awaiting
men that stubbornly resist their superiors. But if the word public
is understood in a higher sense as characterizing that which is done
with due formality, as beyond question this word often is, such wars
are not public, for the reason that both the decision of the sovereign

1 Against Faustus, Book XXII, chap. Ixxiv [Ixxv], cited by Gratian, Decretum, II. xxiii. i. 4.

Among the Hebrews every war which was [not] undertaken by special command of God was
called ‘a war of the powers’.

Chap. III] Dustinctton between Public and Private War 99

power and other conditions are necessary for the fulfilment of the
legal requirements involved. And I am not affected by the con-
sideration that even in disturbances of the kind under consideration
men who resist authority are ordinarily deprived of their property,’
which may even be turned over to the soldiers. For such occurrences
are not so peculiar to formal war that they may not also take place
under other conditions.

2. This situation, moreover, may arise, whereby in an empire
having a wide extent of territory, subordinate authorities may have
a delegated power ® of beginning war. If such a situation does arise,
we are to consider that the war is actually being waged by virtue of
the sovereign authority ; for he who vests another with the right to
do anything is himself regarded as doer of it.

3. A more controverted question is whether, in case such an
authorization has not been given, the presumption that such an
authorization is intended will be sufficient.

The affirmative view ought not, I think, to be conceded. For
it is not enough to consider what under such conditions would be
acceptable to him who holds the sovereign power if he could be
consulted ; the real point to be considered is, what he would wish
to have done without consulting him in a matter admitting delay,
or of doubtful expediency, if a general law covering the case were to
be passed. For although in a particular instance a consideration
influencing the decision of the head of the state may seem, if examined
from a particular point of view, to be inapplicable, yet, generally
speaking, the consideration arising from the desire to avoid danger
does not cease to apply. This general consideration cannot have its
proper weight if every public official takes the decision of such
questions into his own hands.

4. Not without just reason, then, was Gnaeus Manlius accused
by his legionary commanders because he had made war upon the
Galatians without the authorization of the Roman people. For
although there had been legions of Gauls in the army of Antiochus,
nevertheless, after peace had been made with Antiochus, the question,
whether punishment for that offence should be visited upon the
Galatians, was not for Gnaeus Manlius to decide but for the Roman
people.

Cato wished to have Julius Caesar delivered up to the Germans
because he had made war on them; but I believe that he had in
mind not so much the question of right as a desire to free the city

1 To the jurists cited for this point may be added Franciscus Aretinus, Constlsa, xiv, no. 7;
Gail, De Pace Publica, I, chap. ii, no. 20; Cardinal Toschi, Practicae quaestiones, LV, letter B, word
‘bellum’, no. ro. Goeddaeus, Cons. Marp., XXVIII, nos. 202 ff.

4 See the law of the Emperor Frederick, in Conrad, Abbot of Ursperg [Bavaria].

Livy, as
cited
above.

Vict,

no. 29
Cajetan,
On Il. nu,
40, art. I.
Sylv.,
word bel-
lum, pt. I,
no. 2.
Lorca,
Disp. |,
no. 12.

Livy,
XLVIII
[XXXVIII.
xlv ff.],

Livy,
XXXI
[X XI.
xviii. 6].

Appian,
Civil
Wars, IV
fix. 66].

LOO On the Law of War and Peace [Book I

from the fear of a prospective master. The Germans, in fact, [51]
had helped the Gauls, who were enemies of the Roman people, and
consequently they had no reason to complain that a wrong had
been done to them, provided the Roman people had a just cause
for making war on the Gauls. But Caesar ought to have been satisfied
with driving the Germans out of Gaul, the province which had been
assigned to him; he ought not to have carried war against them
into their own territory without first consulting the Roman people,
especially since there was no imminent danger from that source.
The Germans therefore did not have the right to demand that
Caesar be surrendered to them, but the Roman people had the right
to punish him, on grounds clearly similar to those which the Cartha-
ginians set forth in their answer to the Romans:

I consider that the question at issue is not whether Saguntum was attacked in
accordance with a decision of an individual or of the state, but whether it was attacked
rightfully or wrongfully. For the question whether our citizen acted in accordance
with our decision, or his own, is our business, and to us belongs the punishment of a citizen

of ours. The subject of discussion between you and us is merely, whether under our
treaty the attack was permissible.

5- Marcus Tullius Cicero defended the action of Octavius and
of Decimus Brutus in taking up arms against Antony on their own
initiative. And yet, even if it were settled that Antony deserved
to be treated as an enemy, they ought to have waited for the decision
of the senate and the Roman people as to whether it was in the
public interest to overlook the action of Antony or to avenge it;
to come to terms of peace, or rush to arms. No one, in fact, is com-
pelled to avail himself of a right of which the use frequently involves
the risk of loss. Again, even if Antony were adjudged a public
enemy, it was for the senate and the Roman people to decide to
whom they would prefer that the conduct of the war should be
entrusted. ‘Thus, when Cassius requested auxiliary troops of the
Rhodians in accordance with the treaty, they answered that they
would send the forces if the Roman senate should so direct.

6. This ilustration—and there are many others—may serve to
remind us that we are not to receive with approval everything which
authors, no matter how famous, may tell us; they are under the
influence often of their times, often of their feelings, and they fit
‘their measuring-rule to the stone’. Wherefore in these matters
we must make every effort to use a discriminating judgement and
not allow ourselves rashly to seize upon something as a precedent
which can be exculpated rather than praised. In the use of such
a method vicious errors are commonly committed.

7. Since, then, it has been said that a public war ought not to
be waged except by the authority of him who holds the sovereign

Chap. III] Dustinctton between Public and Private War IOI

power, for the understanding both of this subject and of questions
relating to formal war, and consequently for the understanding of
many other questions, it will be necessary to understand what sove-
reignty is, and who hold it. This inquiry is all the more necessary
because learned men of our own age, treating the matter from the
point of view of usage under present conditions rather than from
that of the truth, have added greatly to the complexity of the
subject, which in itself was far from simple.

VI.—In what the civil power consists

1. The moral faculty of governing a state, which is ordinarily
designated by the term civil power, is described by Thucydides as
having three characteristics. He speaks of a state, which truly is
a state, as ‘ having its own laws, courts, and public officials ’.!

Aristotle distinguishes three parts in the government of a state:
deliberation in regard to matters of common interest; the choice
of officials; and the administration of justice. T'o the first he refers
deliberation in regard to war, peace, the making and abrogation of
treaties, and legislation. ‘To this he adds, further, deliberation in
regard to the death penalty, exile, confiscation of property, and
proceedings in cases of extortion, that is, as I interpret the passage,
the administration of justice in criminal cases, since previously in
treating the administration of justice he has dealt with cases involving
the interests of individuals only.

Dionysius of Hlalicarnassus notes three principal functions:
the right to create and appoint to public offices; the right to make
and abrogate laws; and the right of decision regarding war and
peace.” In another passage he adds a fourth, the right to render
judicial decisions; elsewhere, again, he includes also the adminis-
tration of matters pertaining to worship, and the convening of
assemblies of the people.

2. Now if one wishes to make an exact [52] division he will
find it possible easily to include everything relating to civil power
in such a way that there will be nothing omitted and nothing super-
fluous. For he who governs a state governs it in part through his
own agency, in part through others. He governs through his own
agency by devoting his attention either to general interests or to
particular interests. In devoting himself to general interests he

1 The translation ‘taxes’ can also be used; in this sense the Scholiast to Thucydides understood
it. The word abroreA7 has a twofold meaning.

2 [71] Servius, On the Aeneid, I [line 236], comments on the words ‘ with unlimited sway ’ (omnz
dicione) [literally ‘ with every sway’]: ‘more correctly ‘‘ who should hold the sea and the lands with
unlimited sway ”’ than “ the sea and all the lands with their sway ”’ ; purposing to convey the meaning

“‘ all power, peace, laws, war’’.

[V. xvi11.]

Polittcs,
IV. iv
[IV. xiv].

Book IV
[xx].

Book VII
(Ivi].
Book II
[xiv].

[Nicoma-
chean
Ethtes, Vi.
8.]

102 On the Law of War and Peace [Book I

concerns himself with framing and abrogating laws respecting
religious matters (so far as the care of religious matters belongs to
the state) as well as secular. The branch of the science of government
which deals with such matters Aristotle calls architectonic, ‘the
architectural ’.

The particular interests, with which he who governs concerns
himself, are either exclusively public interests, or private interests
which have a relation to public interests. Exclusively public interests
are either actions, as the making of peace, of war, and of treaties ;
or things, such as taxes, and other things of a like nature, wherein
the right of eminent domain, which the state has over citizens and
over the property of citizens for public use, is included. The branch
of the science of government which deals with such matters Aristotle
designates by the general term ‘ political’, that is ‘civil’, and
‘ deliberative ’.

Private interests [as here understood] are controversies between
individuals the termination of which by public authority is important
for the tranquillity of the state. The branch of the science of govern-
ment concerned therewith is called by Aristotle ‘ the judicial’.

The affairs that are administered through others are adminis-
tered either through public officials, or through other responsible
agents, among whom ambassadors are included.

In these things, then, the civil power consists.

VIL—W hat sovereignty 15

1. That power is called sovereign whose actions are not sub-
ject to the legal control of another, so that they cannot be
rendered void by the operation of another human will. When I say
‘of another’, I exclude from consideration him who exercises the
sovereign power, who has the right to change his determinations ;
I exclude also his successor,* who enjoys the same right, and therefore
has the same power, not a different power. Let us, then, see who
is the subject of sovereignty.

The subject of a power is either common or special. Just as the
body is a common, the eye a special subject of the power of sight,
so the state, which we have defined above as a perfect association, is
the common subject of sovereignty.

2. We exclude from consideration, therefore, the peoples who
have passed under the sway of another people, such as the peoples of
the Roman provinces. For such peoples are not in themselves a state,
in the sense in which we are now using the term, but the inferior
members of a great state, just as slaves are members of a household.

1 Cacheranus, Decistones Pedemontanae, cxxxix, no. 6.

Chap. III] Distinction between Public and Private Wary 103

Again, it happens that several peoples may have the same head,
while nevertheless each of them in itself forms a perfect association.
While in the case of the natural body there cannot be one head
belonging to several bodies, this does not hold also in the case of
a moral body. In the case of a moral body the same person, viewed
in different relations, may be the head of several distinct bodies.
A clear proof of this may be found in the fact that on the extinction
of the reigning house, the right of government reverts to each people
separately.

It may also happen that several states are bound together by
a confederation, and form a kind of ‘system’, as Strabo in more than
one passage calls it, while nevertheless the different members do not
cease in each case to retain the status of a perfect state. This fact
was noted by other writers, and by Aristotle also in more than one
passage.

3. It may be granted, then, that the common subject of
sovereignty is the state, understood as we have already indicated.

The special subject is one or more persons, according to the
laws and customs of each nation; ‘the first power’, according to
Galen, in the sixth book of his treatise On the Teachings of Hippocrates
and Plato.

VIII.—The opinion that sovereignty always resides in the people ts
rejected, and arguments are answered

1. At this point first of all the opinion of those must be rejected
who hold that everywhere and without exception sovereignty resides
in the people, [53] so that it is permissible for the people to
restrain and punish kings whenever they make a bad use of their
power. How many evils this opinion has given rise to, and can even
now give rise to if it sinks deep into men’s minds, no wise person fails
to see. We refute it by means of the following arguments.

To every man it is permitted to enslave himself to any one he
pleases for private ownership, as is evident both from the Hebraic
and from the Roman Law. Why, then, would it not be permitted
to a people having legal competence to submit itself to some one
person, or to several persons, in such a way as plainly to transfer to
him the legal right to govern, retaining no vestige of that right for
itself ? And you should not say that such a presumption is not
admissible ; for we are not trying to ascertain what the presumption
should be in case of doubt, but what can legally be done.*

It is idle, too, to bring up the inconveniences which result, or

1 Gail, De Arrestis, chap. vi, 22 ff.

Vict , De
Ture Belh,
no 7.

[LX 11.
7, XIV
iu 2]
Polttees,
II xx [II
uj, IIT 1x

Exodus,
xx1 6.
Instat. T.
1li. 2.
Gell., IT.
vii [II.
Xv}

(Terence,
Self-ior-
mentor,

IT 1 84]

[Lavy, VII,
XXX1. 4 |

(Preface,
vu |

[A enerd,
IV 619 f.]

104 On the Law of War and Peace [Book I

may result, from such a procedure; for no matter what form of
government you may devise, you will never be free from difficulties
and dangers. Says the comedy :

Have this with that, then, if you choose,
Or that with this together lose.+

2. Just as, in fact, there are many ways of living, one being
better than another, and out of so many ways of living each is free
to select that which he prefers, so also a people can select the form
of government which it wishes; and the extent of its legal right in
the matter is not to be measured by the superior excellence of this
or that form of government, in regard to which different men hold
different views, but by its free choice.2

3. In truth it is possible to find not a few causes which may
impel a people wholly to renounce the right to govern itself and to
vest this in another, as, for example, if a people threatened with
destruction cannot induce any one to defend it on any other condition ;
again, if a people pinched by want can in no other way obtain the
supplies needed to sustain life. For if the Campanians, constrained
by necessity, once made themselves subject to the Roman people 3
in the manner indicated by these words: ‘’The people of Campania,
and the city Capua, the lands, the shrines of the gods and all things
of gods and men in our possession we give over, Conscript Fathers,
to your dominion’ ;* and if, according to Appian, some peoples
desiring to make themselves subject to the Roman people were not
even permitted to do so, what is there to prevent any people from
giving itself up, in the same way, to one exceedingly powerful man?
In Virgil we read :

Nor when, by terms of unjust peace compelled,
Fiimself to sovereign power he shall subject.

It may happen, again, that the head of a house possessing great
estates may be unwilling under any other conditions to allow per-
manent residents to come upon his lands ; or that the owner of a great
number of slaves may set them free upon condition that they submit
to his authority and pay him taxes. For these supposed cases we do

* Cicero, On Laws, Book III [III. x. 23]: ‘It is unfair in bringing forward every charge, to pass
by good points, presenting only an enumeration of bad things and a selection of faults’ ; later, ‘ the
good which is sought therein we should not have without the evil.’

* The city of Augsburg petitioned the Emperor Charles V that the decisions of the senate of their
city should not become valid unless they had been approved by the ward officals ; and at the same time
the city Nuremberg asked just the opposite.

* As the Faliscans in Livy, Book V [V. xxvii], the Samnites in Book VIII [IX. xlii]. Thus the
people of Epidamnus [modern Durazzo] abandoned by the people of Corcyra [modern Corfu], gave
themselves over to the Corinthians, in order that they might be protected against the Taulantians and
the exiles; Thucydides, Book I [I. xxv].

* Also the Venetians ; Bembo [History of Venice], Book VI.

Chap. III] Distinction between Public and Private War I05

not lack concrete examples. Of the slaves of the Germans we read
in Tacitus:

Fach controls his own place of habitation, his own household. The master exacts
from him a certain amount of grain, or live stock, or clothing, as from a tenant, and the
slave renders obedience up to the limit of this requirement.

4. Further, as Aristotle said that some men are by nature
slaves, that is, are suited to slavery, so there are some peoples so
constituted that they understand better how to be ruled than to rule.
Such an opinion the Cappadocians seem to have entertained in
regard to themselves ; they preferred life under a king to the freedom
offered them by the Romans, declaring that they could not live
without a king. So Philostratus, in his Life of Apollonius, says that
it is absurd to grant to Thracians, Mysians, and Getans a freedom
in which they do not have pleasure.

5. Some, again, cannot fail to be impressed by the example of
nations which for a number of centuries have lived happily enough
under a form of government clearly monarchical.1 According to
Livy the cities which were under the rule of Eumenes? would not
have been willing to exchange their lot for that of any free city.
Sometimes the condition of a state is such that it seems possible to
assure its safety only through [54] the unrestricted rule of one
man ;* such, in the view of many discerning persons, was the con-
dition of the Roman state in the time of Augustus Caesar.

For these and similar reasons, then, it not only can happen,
but actually does happen, that men make themselves subject to the
rule and power of another, as Cicero also observes, in the second
book of his treatise On Duties.

6. Just as private property can be acquired by means of a war
that is lawful (sustum), according to our use of the term above,
so by the same means public authority, or the right of governing,
can be acquired, quite independently of any other source. What
has been said, again, must not be understood as limited to the main-
tenance of the rule of a monarch, when that is the type of govern-

1 Seneca, On Benefits, Book II, chap. xx, speaking of Brutus.[in relation to Brutus’s participation
in the murder of Caesar]: ‘For my part, although the man was great in other things, in this he seems
to me to have committed a most serious error, and not to have conducted himself in accord with Stoic
doctrine, Either he was afraid of the name of king, although the best condition of a state is under
a just king ; or he hoped that hberty would abide there where the reward both of commanding and of
serving was so great; or he thought that the state could be brought back to its former condition,
although the customs of the early time had disappeared ; and that there would be a just enforcement
of civil right, and proper observance of laws, where he had seen so many thousands of men fighting,
to determine not whether they would serve, but which leader they would serve.’

See also Bizarri, History of Genoa, Book XIV, p. 329.

2 Thus, many came from the free states of Greece to Salamis, on the island of Cyprus, which was
the kingdom of Evagoras, as Isocrates relates [p. 199 B=Evagoras, xxl. st

8 Dion in Philostratus, Book V, chap. xi [Life of Apollonius, V. xxxiv]; ‘I fear that the Romans
subdued by long periods of tyrannical rule, would be unable now to endure a change.’

[Germany,
xXxv.]

[Polttics,
T.u.]

Strabo,
XII

ful. 22].
Justin,
XXXVIII
fui. 8].
Book VI
[VITI. 111].

Book
XLII [v.

3].

fII vi. 22 ]

[I. ii. 4.

Livy, I
[XXXVI

2].

Livy, VII
[xxx1. 6].
Livy,
XXXVI
[XXV
Xxiv].
[XXXVIIT
i11 |

Livy,
XXXIT
[xxxu11].
Strabo,
XIV [u. r].
Diod
XVI [vu].
Paus.,
Lac.,

[III xx.
6}.
Anabasis,
V [v. 3].
Book IV
[i. 9].
Book V
fiv. 9].
[Front.,
On Colo-
nes |
Eltstorves,
[ (ixxviu].

[Book I

106 On the Law of War and Peace

ment concerned ; for the same right and the same course of reasoning
hold good in the case of an aristocracy which governs with the exclu-
sion of the common people. What shall I say of this fact, that no
republic has ever been found to be so democratic that in it there
were not some persons, either very poor people or foreigners, also
women and youths, who were excluded from public deliberations ?

7. Some peoples, moreover, have under their sway other
peoples? as subject to them as if they obeyed kings. Hence the
question: ‘Is the people of Collatia its own master?’ Thus it is
said of the Campanians, after they had given themselves over to the
Romans, that they had become subject to a foreign power; of
Acarnania and Amphilochia, that they were under the jurisdiction
of the Aetolians; of Peraea and Caunus, that they were under the
sway of the Rhodians; and of Pydna, that it was given by Philip
to the people of Olynthus.

When the towns which had been subject to the Spartans were
delivered from Spartan domination, they received the name of
Eleutherolacones, ‘Free Lacedaemonians’. The city Cotyora is
mentioned by Xenophon as having belonged to the people of Sinope.
According to Strabo, Nice, in Italy, was assigned to the people of
Marseilles, and the island of Ischia to the people of Naples. So we
read in Frontinus that the town Calatis was assigned to the colony of
Capua, and Caudium to the colony of Beneventum, with their
territories. Otho gave the Moorish states as a present to the province
of Baetica; the fact is on record in Tacitus. All these territorial
adjustments must be set aside as null and void if we take the position
that the right to govern is always subject to the judgement and will
of those who are governed.

8. That in fact there have been kings who did not derive their
power, even in a general way, from the will of the people, sacred and
secular history alike bear witness. God says, addressing the people

1 Thus the island of Salamis was under the control of the Athenians from the time of Philaeus and
Eurysaces, sons of Ajax, as Plutarch in his Solon [x=83 D] informs us. This Salamis Augustus took
away from the Athenians, as afterward Hadrian took away Cephalenia, as Xiphilinus bears witness
[Dio Cassius, LXTX. xvi].

Atarneus from ancient times belonged to the people of Chios, according to Herodotus, Book I
[T. clx], and the Samians held many towns on the mainland, as Strabo informs us, Book XIV [XIV. xx =
639]. Anactorium belonged in part to the Corinthians, in part to the people of Corfu, as Thucydides
writes in Book I [I. lv].

In respect to peace with the Aetolians in Livy [X XXVIII. xi] this provision is recorded: ‘The
Oeneadae, with their city and country, shall belong to the Acarnanians.’

Phinny relates, Natural History, Book V, chap. xxix, that six towns were granted by Alexander the
Great to Halicarnassus. In Book XXXII], chap. iv, the same wniter says that the island of Lindus
belonged to the Rhodians. You find the same thing said about Caunus m Book XXXV [XXXYV. x].
Cicero also bears witness to this fact in a letter to his brother [Letters to his Brother Quintus, I. i. 11.
§ 33]. To the same Rhodians, because they had helped the Romans against Antiochus, several cities
were given as a present, says Eutropius, Book ITI (IV. 1i] ; these were cities of the Carians and the
Lycians, which were taken away from them again by the senate. Both incidents are of record in the
Selections of Polybius xxxvi and xciii].

Chap. IIT] Distinction between Public and Private War 107

of Israel, ‘ If thou shalt say, I will set a king over me’; and to Samuel
He said: ‘ Show unto them the manner of king that shall reign over
them.’ Hence the anointed king is said to be ‘over the people’,
‘over the Lord’s inheritance’, ‘ over Israel’; and Solomon is said
to be ‘ king over all Israel’. Thus David gives thanks to God because
he has made his people subject to him; and Christ says, ‘ The kings
of the Gentiles have lordship over them.’ Familiar are the lines of
orace:

O’er their own herds the rule of fearsome kings,
O’er kings themselves the rule of Jove abides.

9. Seneca thus describes three types of government: ‘ Some-
times it is the people that we ought to fear; sometimes, if the con-
stitution of the state is such that most of the public business is trans-
acted by the senate, influential men in the state are feared; and
sometimes individuals, upon whom the power of the people, and
over the people, has been conferred.? Such are the men of whom
Plutarch says that ‘ they have supreme power not only in accordance
with the laws but also over the laws’. In Herodotus Otanes thus
characterizes sovereignty in the hands of one person: ‘ To do what-
ever one pleases, without being accountable to anyone.’ Dio of
Prusa defines the power of the king in similar terms: ‘So to rule
as not to be accountable to anyone.’ Pausanias, in his Messenza,
contrasts ‘the power of a king with a power which has to assume
responsibility for its acts’.

10. Aristotle says that there are some kings who are vested
with the same [55] powers that in other cases the nation itself
has, over itself and its possessions. Thus after the Roman emperors
began to make use of a power veritably royal, it was said that to these
the people had transferred all their own authority and power, even
over themselves, as Theophilus explains. Hence that saying of
Marcus Aurelius the philosopher: ‘No one but God alone can be
judge of an emperor.’ :

Of such an emperor Dio says (Book LIII): ‘ He is free, and master
of himself and of the laws, so that he both does what he wishes and
does not do what he does not wish to do.’ Such in ancient times at
Argos, in Greece, was the royal power of the descendants of Inachus;?

1 [72] These are the Anakim mentioned in Deuteronomy, ii. 10. Hence also the goddess called in
Greek Ongka, to whom Cadmus dedicated a temple at Thebes. The Greeks called her Pallas.

Aeschylus says [Supphants, 253] that the descendants of Inachus were Pelasgians, that is ‘ exiles’,
from a Synan word. Also those who first inhabited Lacedaemon were Pelasgians, whence the Spartans
used to say that they were descendants of Abraham, as we find in the history of the Maccabees
[r Maccabees, xii. 21]. ;

Now just as the kings of Argos exercised absolute power, following the practice of the Orient from
which they had come, so also did the kings of Thebes, who were sprung from the Phoenicians. This
+s evident from the words attributed to Creon by Sophocles [Antigone, lines 516 ff., 681, 682] and to
the Theban herald in the Suppliants of Euripides [lines 410, 411].

Deut.,
XV11. 14.

zr Sam,
vu 4 [9].
xr Sam., ix
16, X. I,
XV, I5 2
Sam , Vv. 2.
I Kings,
1V. I.
Psalms,
cxliv. 2.
Luke, xxii.
25.

(Odes, III.
1,51]
Letters,
xiv [7]

Flamin.
[Comp. of
Philop.
and Trtus,
lll=pDp

382 Dj.
(III.

Ixxx |
fiv=

Pp 565.]
(IV. v.
IO, ]

Politics,
III. xiv.

Instit , I.
i. 6.

Siphili-
nus, Life
of M.
Antoninus,
IV(LXXI.
i11]
[xxvui.]

[370-373 ]

[Sup-
plants,
404-407 ]

(Theseus,
xxiv=
p 11.]

Book IV
[VI. 1ii].
Cleom.
[1li=p.
805 E].
Agestl. [1].

[II. x1x.]

Greek
Quest.
[291 F].
Polites,
Til. xu
(IIT. xvi].

Livy,
Book II
[xviii. 8].
Plutarch,
Marcel
(xxiv=

Pp. 312 E]
Dion. Hal,
V [Ixx].

108 On the Law of War and Peace

for in the Argive tragedy of the Suppliants, Aeschylus represents the
people as thus addressing the king:

[Book I

Thou art the city, thou the commonweal,
A sovereign thou not subject to a judge;
Upon thy throne, as on an altar raised,

Thou rulest all things by thy single will.

11. Ina far different way Theseus, himself a king, in Euripides
speaks of the commonwealth of the Athenians :

Not ruled
By one man is our city, but ’tis free.
The people rules, bestowing year by year
Office on this or that in turn.

For Theseus, as Plutarch explains, was only a military leader and
guardian of the laws; in other respects he was on a level with the
mass of citizens.*

In the light of such instances, clearly kings who are subject to
the people are not properly called kings. Thus according to Polybius,
Plutarch, and Cornelius Nepos,? after the time of Lycurgus, and
especially after the office of ephor was created, the kings of the
Lacedaemonians were kings only in name, not in fact. This example
was followed also by other peoples in Greece. Says Pausanias, in the
part of his work relating to Corinth: ‘The Argives who, from time
immemorial, had been devoted to equality and liberty, reduced the
royal power to the extreme limit, with the result that they left to the
sons and successors of Cisus nothing of kingly power except the name.’
Aristotle declares that such kingships do not constitute a distinct
type of government, because in reality they only form a part in
a commonwealth controlled by an aristocracy or by the people.

12. Furthermore, even in the case of peoples who are not
permanently subject to kings we see examples of a kind of temporary
kingship * which is not subject to the people. Such was the power
of the Amymones among the people of Cnidus, and of the dictator
among the Romans in the earliest times, when there was no appeal
to the people. Hence Livy says that an edict of the dictator was
complied with as a divine decree, and that there was no resource

1 Demophon, son of Theseus, in the Children of Hercules, by Euripides [lines 424-5]:

For I rule not as do barbarian kings ;
Just my deeds are, while justly I hold sway.

_ .* The words of Nepos, or of the writer, whoever 1t was, that wrote the Lives of Illustrious Men,
in Agesilaus [chap. , : ‘That they had two kings, in name rather than in respect to governing power’ ;
in another passage |On the Kings, ii]: ‘ Agesilaus, just as the other Spartan kings, was king in name,
not in power.’

® Livius Salinator in his censorship put all tribes except one in the aerarian class, and thus showed
that he exercised a right over the whole people [Livy, XXIX. xxxvii].

Chap. IIT] Distinction between Public and Private Wav 109

except in obedience. Cicero declares that the dictatorship was
invested with royal powers.
13. The arguments which are presented on the other side
[56] it is not hard to meet. For, in the first place, the assertion,
that he who vests some one with authority is superior to him upon
whom the authority is conferred, holds true only of a relationship
the effect of which is continually dependent on the will of the con-
stituent authority ; it does not hold true of a situation brought about
by an act of will, from which a compulsory relationship results, as in
the case of a woman giving authority over herself to a husband,
whom she must ever after obey. To the soldiers who had made him
emperor and were demanding something which did not meet with
his approval, the Emperor Valentinian returned this answer ?:
Soldiers, when you chose me to be your Emperor, it was in your power to choose.
But now that you have chosen me, the decision regarding that which you ask rests with

me, not with you. It belongs to you, as subjects, to obey; to me, to ponder what should
be done.

It is, however, not true, as is assumed, that all kings are clothed
with authority by the people. This can be clearly enough understood
from the illustrations given above, of the head of a house receiving
strangers only under the stipulation of rendering obedience to him,
and that of nations conquered in war.

14. Another argument men take from the saying of the philo-
sophers, that all government was established for the benefit of those
who are governed, not of those who govern; from this they think it
follows that, in view of the worthiness of the end they who are
governed are superior to him who governs.

But it 1s not universally true, that all government was constituted
for the benefit of the governed. For some types of governing in and
of themselves have in view only the advantage of him who governs ;
such is the exercise of power by the master, the advantage of the
slaves being only extrinsic and incidental, just as the earnings of
a physician bear no relation to medicine as the art of healing. Other
types of governing have in view a mutual advantage, as that of marriage.
Thus some imperial governments may have been constituted for the
benefit of kings, as those which have been secured through victory,
and yet are not on that account to be called tyrannical, since the
tyranny, at any rate as the word is now understood, connotes in-
justice. Some, again, may have in view as much the advantage of
him who governs as of those who are governed, as when a people

1 His words are thus reported by Theodoret, Book IV, chap. v [IV. vi]: ‘ It was your act, soldiers,
when there was no emperor, to place in my hands the reins of this governing power. From the moment
that I took them up, 1t became not your responsibility, but mine, to discern what the interest of the
state might require.’

(Philep-
pies, I
13]

Sozom.,
Eccles
Hsit., XVI
[VI. vi]

[I 11. 8.
3 ]

[On
Duties, II
X11 41 |
{I xevi f ]
[Theogony,
83 ff]

Jevem.
XXV 12.

[Hustories,
IV Ixxzv ]

[History
of the

Franks,
V. x1x.]

[On Ab-
staimiung,
IV xiz.]

Book V
[A gatmst

On the Law of War and Peace

powerless to help itself places itself in subjection to a powerful king
for its own protection.

Nevertheless I do not deny that in the case of most states the
benefit of those who are governed is the primary consideration ;
and that this is true which Cicero said after Herodotus, and Herodotus
after Hesiod, that kings received authority in order that men might
enjoy justice. But it does not on that account follow, as our oppon-
ents infer, that the peoples are superior to the kings ; for guardianship
was instituted for the sake of the ward, and yet guardianship includes
both a right and power over the ward. Furthermore there 1s nothing
in the objection, which some may urge, that a guardian, in case he
administers his trust badly, can be removed, and that, therefore, the
same right ought to hold in the case of a king. In the case of a
guardian, who has a superior, such procedure is obviously valid; but
in the case of a government, because the series does not extend to
infinity, it is absolutely necessary to stop with some person, or
assembly, whose sins, because it has no judge superior to it, God
takes into special consideration, as He himself bears witness. He
either metes out punishment for them, if He deems punishment
necessary, or tolerates them, for the chastisement or the testing of
a people.

15. ‘Endure,’ Tacitus very well says, ‘ Endure the luxury or
avarice of those who govern, just as you put up with unfruitfulness
or too heavy rains, and other scourges of nature. There will be
faults so long as there shall be men; but they are not continuous,
and are offset from time to time by better things.’ Marcus Aurelius
said that private persons are judged by the magistrates, magistrates
by the emperor, the emperor by God.* There is a striking passage
of Gregory of Tours, in which, himself a bishop, he thus addresses the
king of the Franks :

ITO [Book I

If anyone of us, O king, wishes to overstep the bounds of justice, he can be chastised
by you; butif you pass beyond them, who shall chastise you? For we speak to you—
if you wish, you hear; but if you do not wish to hear, who [57] shall condemn you,
unless He who has declared that He is justice ?

Among the dogmas of the Essenes, Porphyry relates, was this:
‘The power of governing falls to the lot of no one without the
special care of God.’? Irenaeus very aptly remarks: ‘ Kings, too,

1 Xiphilinus [Dio Cassius, LXXI. in; Marcus Aurelius is quoted]: ‘In regard to those who
exercise the supreme power, only deity can judge.’ Vitiges, the king, in Cassiodorus [Vardae, X. xxxi]
says: ‘ The case of royal power is to be referred to the celestial courts, since this power was sought from
heaven, and to heaven alone 1s indebted for its innocence.’ In the same writer [VI. iv] the king says:
‘We cannot be made subject to others because we have not judges.’

2 Homer [Jizad, II. 197]:

From Jupiter the highest honour springs
Diodorus Siculus, Book I [I. xc], speaking of the Egyptians: ‘ They think, in fact, that it is not without

Chap. IIT] Distinction between Public and Private War III

receive authority at the bidding of Him at whose bidding men are
born; and they are fitted to rule over those who in their time are
tuled by them.’ The same thought appears in the Constitutions
called Clementine: ‘ You will fear the king, knowing that he was
chosen by the Lord.’

16. What we have said is in no degree invalidated by the fact
that we sometimes read of people being punished on account of the
sins of their kings. This happens not because the people did not
punish their king, or did not restrain him, but because it connived
with him in his offences, at least through silence. And yet God,
even without the people, could make use of the supreme power and
authority, which He has over the life and death of individuals, for
the chastisement of the king, for whom it is punishment to be
deprived of his subjects.

[X.—The argument that there 1s always a relation of mutual dependence
between king and people, 15 refuted

1. Some imagine that between king and people there is a relation
of mutual dependence, so that the whole people ought to obey the
king who governs well, while the king who governs badly should be
made subject to the people. If they who hold this opinion should
say that anything which is manifestly wrong should not be done
because the king commanded it, they would be saying what is true
and is acknowledged among all good men; but such a refusal implies
no curtailing of power or any right to exercise authority. Ifit had
been the purpose of any people to divide the sovereign power with
a king (on this point something will need to be said below), surely
such limits ought to have been assigned to the power of each as could
easily be discerned from a difference in places, persons, or affairs.

2. The moral goodness or badness of an action, especially in
matters relating to the state, is not suited to a division into parts ;
such qualities frequently are obscure, and difficult to analyse. In
consequence the utmost confusion would prevail in case the king on
the one side, and the people on the other, under the pretext that an
act is good or bad, should be trying to take cognizance of the same
matter, each by virtue of its power. ‘To introduce so complete
disorder into its affairs has not, so far as I know, occurred to any people.

a kind of divine providence that kings have come to have the highest authority of all men.’

Augustine, On the City of God, Book V [V. xxi]: ‘He who’ gave imperial authority, as is clear
from what precedes, ‘to Vespasian, either father or son, kindliest emperors, gave it also to Domitian,
the most cruel; and, not to note each case, He who gave the imperial authority to Constantine, gave
it to the Apostate Julian.’

Vitiges in Cassiodorus [Variae, X. 31]: ‘ Every promotion, above all, that to the position of king,
must be accounted as a gift of divinity.’ There was a saying of the Emperor Titus [Aurelius Victor,
Epttome, x. to]: ‘ Powers are conferred by Fate.’

1569°27 I

Herestes,
V. XXI1v.

3].

Book VII.
XV1L.

r Kungs,
iv. 16
[xiv 16];
2 Kings,
X.I7
[xvii 7].

(Galltc
War, VII.
1v ]
[Annals,
II. lv1i ]

[Caligula,
XX11.]

(II. evisu ]

(Germany,
xi.]
I [vii. 8).

[Politics,
II. x1.)
[VI. li]
XV. Ixx
[XV. xv].
[Ivi. 12.]
Book XIII
[z. 52].

[Book I

112 On the Law of War and Peace

X.—Cautions are offered for the right understanding of the true opinion:
the first 1s, in regard to the distinguishing of similar words which
differ in meaning
1. Now that the false views have been eliminated, it remains

to offer some cautions which may serve to point out to us the road

leading to a right decision of the question to whom, in each nation,
the sovereign power belongs.

The first caution is, not to allow ourselves to be led astray by the
equivocal meanings of words, or by the external appearance of things.
For instance, in Latin writers the words principatus, ‘ chief authority’,
‘ principate’, and regnum, ‘kingly power’, ‘monarchy’, are ordinarily
used in contrast, as when Caesar says that the father of Vercingetorix
had obtained the chief authority of Gaul but was put to death because
he aspired to the kingship. Similarly, Piso, in Tacitus, says that
Germanicus is son of him who holds the principate among the Romans,
not of a king of the Parthians ; and Suetonius declares that Caligula
came very near transforming the semblance of a principate into a
monarchy. Also in Velleius it is said that Maroboduus aimed to
acquire not the chief authority, which rests on the will of those who
render obedience, but royal power.

2. We see, nevertheless, that these two words are often con-
founded. For the Spartan chiefs, descendants of Hercules, after they
were made subordinate to the ephors, continued to be called kings,
as we just now observed. In ancient Germany there were kings of
whom Tacitus says that they exercised authority through persuasion,
not through the power to command. Of King Evander Livy says that
he ruled more by personal influence than by sovereign power.
Aristotle and Polybius called the suffete of the Carthaginians king, as
Diodorus also does; in like manner Solinus? said that Hanno [58]
was king of the Carthaginians. Of the people of Scepsis in the Troad
Strabo says that after they had taken the Milesians into their state
and had formed a democratic commonwealth, the royal title, and
some degree of distinction also, remained to the descendants of the
ancient kings.

On the other hand, when the Roman emperors had come to
hold absolutely unrestricted powers of government, openly and with-
out subterfuge, they were nevertheless called ‘ men holding the chief
authority ’ (principes). In some free states, also, emblems of royal

1 Thus the author of the Lzfe of Hannibal [Cornelus Nepos, Hannibal, vii]: ‘ Just as at Rome
consuls, so at Carthage two kings were chosen annually, to serve a year.’

[73] To those who are not properly called kings may be added also sons to whom the name of
king has been given by royal fathers while still retaining the royal power. Such a king was that Darius
whom, after judgement had been passed on him, his father Artaxerxes ordered put to death. Plutarch,
Artaxerxes [xxIxX = 1026 C].

Chap. IIT] Distinction between Public and Private War 113

dignity are customarily granted to those in whose hands the chief
authority rests.

4. Again, the assembly of the estates, that is, the meeting of
those who represent the people as divided into classes—those, of
course, of whom Gunther speaks :

The clergy, the nobility, and delegates of towns—

in some states at any rate serves only this purpose, that they form
a greater king’s council; through it the complaints of the people,
which are often passed over without mention in the king’s cabinet,
reach the ear of the king, who is then free to determine what seems
to him best to meet the case. In other states such bodies have the
right to pass in review the acts of the ruler, and even to enact laws
by which the ruler is bound.

5. Many think that the distinction between sovereign power,
and power that is less than sovereign, ought to be made according
to the mode of conferring such power, whether by election or by
succession. ‘They maintain that that alone is sovereign power which
is conferred by succession, that that is not sovereign power which is
conferred by election. But surely this cannot be universally true.
For succession is not a title of power, which gives character to the
power, but a continuation of a power previously existing. The legal
right to govern which was founded by selection in a family is continued
by succession ; in consequence, succession confers only so much power
as was granted by the first act of choice.

Among the Spartans the kingship passed to heirs, even after the
office of ephor was created. To such a kingship, that is to such a
holding of authority, Aristotle makes reference: ‘Some kingships
are conferred by right of descent, others by choice.’ Such in the
heroic age were most kingships in Greece,’ as both this author and
Thucydides observe. Among the Romans, on the contrary, the
sovereign power continued to be conferred by election, even after
all power had been taken away from the senate and the people.

XI.—The second caution, as to distinguishing rights from the manner of
possessing rights

1. The second caution shall be this, that the distinction must
be kept in mind between a thing and the mode of its possession.”
This distinction holds not only for corporeal but also for incorporeal
things. Just asa field is a thing, so rights of way over it for pedestrians,

1 This was noted also by Dionysius of Halicarnassus, Book IT [II. xi] and Book V [V. lxxiv].
2 One who has leisure may consult Charles Dumoulin, Ad Consuetudines Partstenses, ttle I, § ii,

gl. 4, nos. 16, 17.
I 2

[Ligurt-
gus, VIII
577:]

Polthes,
Iil. xiv.

Book I
[xiii].

Procopius,
Vandalic
War,

I fix].
Aimoin,
II xx;
IV, xxxv.

1I4 On the Law of War and Peace [Book I

for cattle, and for use as a road are also things. These three rights,
however, are held by some with full ownership, by others as usufruct,
by others still with power of temporary use. Similarly, the Roman
dictator held the sovereign power by a right limited in time’; but
most kings, both those who are the first to be chosen and those who
succeed them in lawful succession, hold it as a usufruct. Some kings,
however, possess the sovereign power in full right of ownership,
having acquired it in lawful war, or through the submission of a people
which, to avoid greater disaster, subjected itself without any reserva-
tion.

2. Iam unable to agree with those who declare that the dictator
was not the bearer of sovereignty because his power was not perpetual.
For the character of immaterial things is recognized from their effects,
and legal powers which have the same effects ought to be designated
by the same name. Now the dictator during his period of office
performed all acts by virtue of the same legal right * which a king
has who possesses absolute power ; and his acts could not be rendered
null and void by any one. Duration, moreover, does not change the
nature of a thing.

If, as we may grant, question is raised as to the prestige which
is commonly called majesty, there is no doubt that this is to be found
in fuller measure in him to whom the perpetual right has been given
than in him upon whom a temporary right has been conferred; the
manner of holding does effect prestige. [59] I maintain, further,
that the same holds true of him who is made regent of a kingdom
before a king has attained to his majority, or while the king is prevented
from reigning by madness or captivity. Under such conditions regents
are not subject to the people, and their power is not revocable before
a time fixed by law.

3. We must consider as altogether different the case of those
who received a power revocable at any moment, that is resting on
sufferance. Such the kingship of the Vandals in Africa once was,
and that of the Goths in Spain,? where the people deposed their
kings whenever these failed to please them.* Single acts of such
rulers can be annulled by those who conferred upon them their power

1 An example of an emperor chosen for a limited time you will find in Gregoras at the beginning
of Book IV [Gregoras Nicephorus, History, iv. i].

2 To such a degree did this hold true that the people, when it wished to save Fabius Rutilianus,
made supplications on his behalf to the dictator (Livy, VIII. xxix-xxxv].

1 There is a trace of the ancient custom among the Behetrians. See Mariana, Book XVI [XVI.
xvii].

4 This was related of the Herulians by Procopius, Gothic War, Book II [II. xiv, xv]; of the
Langobards by Paul Wamefnd [Paulus Diaconus], Books IV and VI; of the Burgundians by
Ammianus Marcellinus, Book XXVIII [v. 14]; of the Moldavians by Laonicus Chalcocondylas [IT] ;
of the king of Agade, in Africa, by John Leo, Book VII. Of the Norwegians William of Newburgh
[History of England, III. vi] says that he who had killed the king became king over them; similar
statements about the Quadi and the Iazyges you find in the Selectzons from Dio [lviii].

Chap. III] Distinction between Public and Private War 115

subject to revocation; and as the effect is not the same, so the right
is not the same.

XII.—It ts shown that tn some cases the sovereign power ts held absolutely,
that 1s with right of transfer

1. What I have said, that in some cases sovereign power is held
with full proprietary right, that is in patrimony, some learned men
oppose, using the argument that free men cannot be treated as
property. But just as the power of the master is one thing, that of
the king another, so also personal liberty is different from civil liberty,
the liberty of individuals from the liberty of men in the aggregate. The
Stoics said that one form of slavery was ‘ subjection’, and in the Holy
Scriptures subjects are called servants of the king. Just as personal
liberty, then, excludes subjection to a master, so civil liberty excludes
subjection to a king and any other form of control properly so called.

Livy contrasts the two points of view thus: ‘Not having yet
tasted the sweetness of liberty, they were demanding a king.” The
same writer elsewhere says: ‘ It seemed a pity that the Roman people,
so long as it was in subjection under kings, was not beset by war and
by enemies, and that the same people, when it had become free, was
besieged by the Etruscans.’ In still another passage Livy remarks :
‘The Roman people was not under the power of a king, but was free.’
Elsewhere, again, he contrasts nations which were in a condition of
liberty with those that lived under the rule of kings.*

Cicero had said: ‘Either the kings ought not to have been
driven out, or liberty ought to have been given to the people in fact,
not in words.’ After the time of both Cicero and Livy Tacitus said :
‘At the beginning the city of Rome was in the power of kings ;
Lucius Brutus established liberty and the consulship.’ And in another
place he declares: ‘ The liberty of the Germans is a keener foe than
the absolutism of Arsaces.’ Arrian in his account of the peoples of
India refers to ‘kings and free states’. Caecina in Seneca says:
‘There are royal thunderbolts, whose force smites either the spot
where elective assemblies meet or the governmental headquarters
of a free city; the prognostication of such thunderbolts is that the
state is threatened by the rule of a king.’ ?

1 Thucydides [II. xxix]: ‘This Teres, the father of Sitalces, was the first to Increase the dominion
of the Odryses, so that it extended over other kings of Thrace ; for there is also a part of the Thracians
that remains independent.’

Seneca the father in the first Suasorta [v]: ‘In a free city one’s opinion is not to be spoken in the
same way as under the rule of kings.’ Josephus, Anizqutites of the Jews, Book XIII [XIII 1x. 2]: ‘to
kings and free peoples.’ Cicero, Letters, XV. ivy [XV. iv. 3]: ‘the auxiliary forces furnished by the
free peoples and allied kings.’

Pliny, Book VI, chap. xx [Natural History, VI. xx. 74], speaking of the people of India: ‘ These
inhabitants of the mountaims who hold the seashore in a contmuous tract, free and without kings.’

2 For an example of such a portent see Bizarri, History of Genoa, Book XIX [p. 450].

Hotman,
Cont. Lil.,
qu I.

Diog.
Laert.
(VIL.
CXx1i].

xr Sam.,
xxii. 18
[t7]; 2
Sam , X. 2.
I Kags,
iX. 22.
Book I
[xvil. 3].
Book II
(x11. 2].
(II. xv 3]

Book XLV
[xvui1].

On Laws,
ITT [x. 25].

Annals, I

[1].

On the
Customs of
the Ger-
mans
[Xxxvii].
[Indsca,
x1. 9]
[Natural
Questions,
IT. xlix ]

Book XIT
fun. T4].

[Digest,
XLIX
XV 19]

Livy,
AXXVIII
[x1 9]
Livy, V [I.
XXXVI. 2].

Digest,
XXXVI.
i, rg (x8).
I.

Book VIII
[v. x].

z Kings,
wii [ix. rr],

On the Law of War and Peace [Book I

LI6

With similar underlying thought those of the Cilicians who were
not subject to kings were called Free Cilicians. Of Amisus Strabo
says that it was at times free, at times under the rule of kings. In
various places in the Roman laws relating to war and to proceedings
of recovery foreigners are distinguished as under kings or belonging
to free peoples. Here, then, the liberty of a people is concerned, not
that of individuals. Moreover, just as in the case of private servitude,
so also in the case of peoples in subjection, some are said to be not
their own masters, not under their own control. Hence these forms
of expression : ‘ What cities, what territories, what men once belonged
to the Aetolians’; and ‘ Is the people of Collatia its own master ?’

z. Nevertheless, when a people is transferred this is not, strictly
speaking, a transfer of the individuals.but of the perpetual right of
governing them in their totality as a people. Similarly, when a
freedman is allotted to one of the children of a patron, this is not
a transfer of ownership of a free man but the transfer of a right which
is valid over the man.

3. Equally devoid of foundation is the assertion that if a king
has acquired any peoples in war, since he has not acquired them
without blood and sweat of his citizens, they ought in consequence
to be considered as acquired for the citizens rather than for the king.
For it might happen that a king had supported an army from his
private means,* or even from the income of the estate which came to
him as holding the position of chief authority. For a king may have
over such an estate only the right of usufruct, in the same way that
[60] he holds the right of ruling over the people who chose him ;
nevertheless the income is absolutely his own. The case is like that
in the civil law, when the restitution of an inheritance has been
ordered ; the income is not restored, because the income is considered
not as forming a part of the inheritance but as a part, rather, of the
property.

It can happen, then, that a king may have the sovereign power
in his own right * over certain peoples; in such cases, then, he can
transfer it. Strabo says that the island of Cythera, lying over against
Cape Matapan, belonged to Eurycles, a leading man among the
Lacedaemonians, ‘in his individual right.? Thus King Solomon

+ Marcus Aurelius, having draimed the public treasury in the war with the Marcomanni, and
wishing not to impose a new tax on the people, made an auction in Trajan’s Forum and thus disposed
of vessels of gold, crystal and murrine cups, silken and gold-broidered garments of his wife as well as
of ae and many ornaments of precious stones. [Capitolmus, Marcus Antoninus the Philosopher,
Xvii. 4].

? On such grounds Ferdinand claimed for himself a half of the kingdom of Granada, as acquired
from the revenues of Castile for the period of his martiage. This is set forth by Mariana, History of
Spain, Book XXVITI [XXVITI. xin].

* They who went with Baldwin to the East to wage war made the concession that there should be
granted to him a half of the cities, provinces, taxes, and things taken in war.

Chap. IIT] Distinction between Public and Private War 117

gave to Hiram, king of the Phoenicians (Hiromos in Greek, for so he is
named by Philo of Byblos, who translated the history of Sanchonia-
thon), twenty cities. ‘These cities were not among those which be-
longed to the Jewish people; for Cabul—such is the name given to
them—lay outside the Jewish territory (Foshua, xix. 27). They were
a portion of the cities which conquered peoples, enemies of the Jews,
had held up to that time; part of them had been conquered by the
king of Egypt, Solomon’s father-in-law, and given to Solomon as
dowry, part had been vanquished by Solomon himself. That they
were not at that time inhabited by Israelites is indicated by the fact
that Solomon began to colonize them with Jews only after Hiram had
given them back to him.

4. In like manner we read that the sovereignty over Sparta,
which had been captured in war, was given by Hercules’ to T'yndareus
subject to the condition that if Hercules should leave any children,
it should revert to them. Amphipolis was given as dowry to Acamas,
the son of Theseus. In Homer, too, Agamemnon promises that he
will give seven cities to Achilles. The King Anaxagoras presented
two thirds of his kingdom to Melampus.? Of Darius Justin speaks
as follows: ‘ By will he left his kingdom to Artaxerxes; to Cyrus,
the cities of which Cyrus was governor.’ Similarly, we are to believe,
the successors of Alexander,® each for his own part, succeeded to the
full and proprietary right to rule the peoples which had been subject
to the Persians, or themselves acquired sovereignty by right of victory 5
it is not, therefore, to be wondered at if they assumed to themselves
the right of transfer.

174] The same Hercules, having conquered the Dryopes, who lived near Parnassus, presented
them to Apollo, as Servius says On the Aeneid, Book IV [line 146]. Aegimus, king of the Dorians,
took Hercules as an ally in the war against the Lapithae, giving him a part of his kingdom as the price
of the allsance [Apollodorus, Lzbrary, II. vii. 7].

Cychreus, king of Salamis, having no children left his kingdom by will to Teucer. From Eurylion,
king of Phthia, Peleus received a third part of his kingdom as dowry [Apollodorus, of. czt., ITI. xii. x],
These instances Apollodorus has. In Livy, we find in Book I [I. iii]: ‘ Proca bequeathed the kingdom
to Numitor.’

2 See Servius, On Eclogues, VI [line 48].

So in Homer, Iobates gives his daughter to Bellerophon [Zliad, VI. 193]:

And half the kingly honours to him gave.

This is explained by Servius on Virgil [Aeneid, V, line 118]: ‘gave to him his daughter in marriage
with a part of the kingdom.’
Of Peleus Phoenix says [Jitad, IX. 483 f.]:
And many peoples did he give to me

That I the part of Phthia might possess
Which holds the kingdom of the Dolopes.

Lanassa, being wedded to Pyrrhus, king of Epirus, brought to him as dower the city of Corcyra
[modern Corfu], which had been captured by her father Agathocles m war; Plutarch, Pyrrhus
[chap. ix =387 F].

® Ammianus Marcellinus, speaking of Persia in Book XXII (XXIII. vi. 7], not quite in accord
with the truth of history says that by will all the nation was transferred to the power of a single
successor.

x Kings,
ix. 6, 12
[ix 13]

zr Chron.,
VILL 14
[2 Chron.,
Vu 2]

Diod., IV
(xxx111].

(Ilad,
IX, 149.]

Book V
[xi].

Florus,
Book II
[xx]

Epitome of
Lavy, \vii.

[II. xv.
40 ]

[AIV
Xvi |
Epitome of
Lavy, xiii.

118 On the Law of War and Peace [Book I

5. In like manner when King Attalus,* son of Eumenes, had by
will made the Roman people heir to his property, the Roman people
under the designation ‘property’ included also his kingdom. In
regard to this procedure Florus remarks: ‘ After taking possession
of this inheritance, the Roman people held it as a province, not by
right of war or of arms but—as is fairer—by testamentary disposition.’
Afterward, again, when Nicomedes,? king of Bithynia, dying, had
made the Roman people his heir, his kingdom was reduced to the
form of a province. To this Cicero refers, in his second speech Against
Rullus: ‘We have entered upon an inheritance, the kingdom of
Bithynia.’ Similarly a part of north-eastern Africa, the Cyrenaica,’
was left by Apion the king to the same people by will.

6. ‘Tacitus, in the fourteenth book of his Annals, makes mention
of the domains which had once belonged to King Apion * and had

1 Valerius Maximus [V. 11. Externa 3]: ‘ Attalus by the fair terms of a will in gratitude bequeathed
Asia to the Roman people.’ On that matter Sertonus in Plutarch [Sertorzus, xxn1=580 E]: ‘ Since
the Roman people with the most perfect nght held that country.’ .

2 See Appian, Mithridaize Wars [i. 7], and Cwil Wars, Book I [I. xi. x12].

3 In this country were the cities Berenice, Ptolemais, and Cyrene; Eutropius, Book VI[V I. x]:

4 Appian, Mithridatic Wars [xvil. 121]: ‘ Apion, a bastard of the family of the Lagidae, leit
Cyrene by will.” Ammianus Marcellinus, Book XXII (XXII. xvi. 24]: ‘We acquired arid Libya
by the last will of Apion the king ; Cyrene with the other states of Libya Pentapolis we took over
through the generosity of Ptolemy.’ The king of Cyrene was in fact called both Apion and Ptolemy :
see the Epitome of Livy, Book LXX. This same Apion had received the kingdom of Cyrene by
the will of his father, according to Justin, Book XXXIX [XXXIX. v. 2]. Of another Appion,
referred to by Ammianus, who had left arid Libya to the Roman people, mention is made in the
Chronicle of Eusebius, under the year 1952.

Add also that which Procopius relates in Buildings [On the Busldings of Justinian, III. i], that,
by the will of Arsaces the king, Armenia was so divided that the larger part went to his son Arsaces,
the smaller part to Tigranes. From Josephus, Amiquzizes of the Jews, Books XV and XVI, we learn
that Herod, after Augustus granted to him permission to leave his kingdom to whomever of his children
he might choose, changed his will several times.

This custom the Goths and Vandals also had, in respect to those countnes which they held by
right of arms. The Vandal Gizeric disposed of Spain by will ; so Procopius, Vandahe War, I (Htstory
of the Wars, III. vii. 29]. Theoderic gave Lilybaeum, mn Sicily, as dowry for his sister Amalfinda, zd.

III. vil. 13].

Arnone other nations the same practice was in vogue. Aquitaine, which Pippin had acquired in
war, he divided among his children, [75] as Fredegarius, at the end of his Chronzcle, bears witness.
In regard to the leaving of Burgundy by will see Aymoinus [Aimoin, History of the Franks], TIT. lxviii
and Ixxv. The king of Fez left Fez by will to his second son, as we learn from Leo of Africa [Descripizon
of Africa], Book IIT ; in regard to Bougie, see the same author, Book V.

The Sultan Aladdin bequeathed a large number of states to Osman; see Leunclavius, Turkish
History, Book II. The king of Kermian gave to his daughter, who was about to marry Bayezid
[Bayezid I], the cities of Phrygia; see the same Leunclavius, Book V. The kingdom of the Turks in

appadocia Musa divided up among his children ; see Nicetas [Manuel Comnenus], Book III [III. v].
The cities near the Black Sea were granted to Murad by Chuscin Bey ; Leunclavius, Book I. Bayezid
gave to Stephan the cities of Serbia in honour of his wife, who was a sister of Stephan ; id., Book VI.
The Sultan Mohammed left his kingdom by will to Murad; zd., Book XII. Jacob Bey, ruler of
Kermian, made the Sultan Murad heir of his domimion; zd., Book XIV. Mohammed the Turk
[Mohammed I] had thought of leaving the sovereignty to his two sons, that of Europe to Amurad,
that of Asia to Mustafa; the fact is recorded by Chalcocondylas, Book IV. The Emperor Basil
Porphyrogenitus was made heir by David Curopalates to that region which David held in Iberia; this
is related by Zonaras [XVII. vii].

I come to the Christian conquerors in the East. Michael Despota divided Thessaly among his
children ; this on the authority of Gregoras, Book IV [IV. 1x]. The prince of Aetolia left Athens to
the Venetians, and sold Boeotia to Antony; Chalcocondylas, Book IV. Messene, Ithome, and the
maritime part of Arcadia were given by the prince of Arcadia as dowry to his daughter, when she was
married to Thomas, son of the Greek Emperor; id., Book V. Acarnania was divided by the will of

Chap. III] Dustinction between Public and Private War II9

been left to the Roman people with his kingship. ‘ Who does not
know’, says Cicero in his speech On the Agrarian Law, ‘that the
kingdom of Egypt, by the will of the Alexandrian king, has been made
a possession of the Roman people?’ Justin represents Mithridates
as saying in a speech about Paphlagonia that ‘ this country had come
into the possession of his father not by force, not by arms, but by the
acceptance of a will’. Of Orodes, king of the Parthians, the same
author relates that for a long time he was in doubt which of his sons
he should designate to succeed him as king. Polemon, ruler of the
Tibareni and of the adjacent country, made his wife heiress of his
sovereignty ; the same thing had previously been done by Mausolus,
in Caria, although he left brothers surviving him.

XITT.—Jt 15 shown that in some cases the sovereign authority is not held
absolutely

1. In the case of kingships which have been conferred by the
will of the people the presumption is, I grant, that it was not the
will of the people to permit the king to alienate the sovereign power.*
Wherefore we have no reason to criticize Krantz because [61] in
the case of Unguin, who had bequeathed Norway by will, he com-
ments on such procedure as lacking precedent, if we assume that
he had in mind the customs of the Germans, among whom the sove-
reign power is held with no such right. Charlemagne, Louis the
Pious, and other kings after them, even among the Vandals and the
Hungarians, did, as we read, dispose of their kingdoms by will; but such
action had rather the character of a recommendation to the people
than of a transfer in the true sense.2, Of Charlemagne in particular
Ado relates that he wished to have his will confirmed by the Frankish
nobles. We read of a similar instance in Livy. Philip, ling of Mace-

Pmnce Charles among his illegitimate sons, and parts of Aetolia were given to blood-relations ; this on
the authority of Chalcocondylas whom I mentioned [Book V].

In like manner also the kingdoms of Jerusalem and Cyprus were in part bequeathed by will, in
part conveyed by contracts ; in regard to the transfer of Cyprus, see Bembo, Jiahan History [History
of Venice], Book VII, and Paruta [History of Ventce], Book I. The Genoese received as a gift the town
of Castro in Sardinia, and other places, which were subject to Cagliari; Bizarri, On the Pisan War,
Book II. Robert [Robert vi ut gave Durazzo and Avlona to his younger son Bohemund; Anna
Comnena, [Alexiad,] Book V [V. iii}.

Alfonso of Arragon left to his bastard son Ferdinand the kingdom of Naples, as won by conquest
[Mariana, History of Spain, Book XXII, chap. xvii]. In the same kingdom Ferdinand bequeathed
certain cities to his nephew ; Mariana, Book XXX [XXX. xxvii].

1 Vopiscus, Tacitus [chap. vi], says that sovereignty ought not to be left to others as lands and
slaves areleft. Salvianus [Against Avarice, I. xi]: ‘He was not able to convey to the needy by will the
peoples whom he ruled.’ -

2 See the Capitularies of Charles the Bald, chap. xii, Conventus ad Car1stacum. To this head refer
the will of Pelagius, by which he left Spain to Alfonso and Ormisind (Mariana, History of Spat,
Book VII, chap. 1ii], and some facts in relation to Denmark which are noted by Saxo Grammaticus.
It is not, then, to be wondered at, that some wills of rulers have been made of no effect because they
were disapproved by the people, as that of Alfonso of Arragon; see Mariana, Book X [X. xv, xvi].
A similar fate befell the will of Alfonso of Leon, since he had given the preference to his daughters over
his son; the same Mariana, Book XII [XIT. xv].

[II. xvi.
4r ]

XXXVITI
[v_ 4].
XLII [iv.
r4].

Strabo,
XIT fit.
29].
Strabo,
XIII fii
17}.

Danish
ET story,
II iv.

Book I
[XL. lvi].

Justin,
XIII [ti.
4].

120 On the Law of War and Peace [Book I

donia, desiring to keep Perseus from the throne and to make Antigonus,
his brother’s son, king m place of Perseus, visited the cities of
Macedonia in order to recommend Antigonus to the leading men.*

2. When we read that Louis the Pious gave back the city of
Rome to Pope Paschal, this act has no bearing on the case. The
Franks, having received from the Roman people the sovereignty over
the city of Rome, could rightly restore it to the same people; and
he who was at the head of the highest order was representative, as it
were, of this people.

XIV.—lt is shown that in some cases intermediate governmental
authority 1s held absolutely, that is with right of transfer

Up to this point we have tried to show that the sovereignty must
in itself be distinguished from the absolute possession of it. So true
is this distinction that in the majority of cases the sovereignty is not
held absolutely. Furthermore, in many cases intermediate govern-
mental powers are held absolutely. In consequence, marquisates and
earldoms are wont to be sold* and bequeathed by will more easily
than kingdoms.

XV.—The distinction stated is reinforced from the difference in mode of
appointing regents in kingdoms

1. Another proof of this distinction appears in the method of
safeguarding royal power ® when the king is prevented by age or by
disease from performing his functions.

In the case of monarchies which are not patrimonial, the regency
passes into the hands of those to whom it is entrusted by public law,
or, that failing, by the consent of the people.* In the case of patri-
monial monarchies, the regency goes to those whom the father or
near relatives have chosen.® ‘Thus we see that in the case of the
kingship of the Epirotes, which had its origin in the consent of the
people, guardians were appointed by the people for the king
Aribas, who was a minor®; and guardians were appointed by the

* See the similar case in Cassiodorus, Book VIII, letter viii (VIII. iii ff.]. So the agreements of
Sanchez and James of Arragon in regard to reciprocal succession were confirmed by the nobles ;
Mariana, Book XII [XTI. xvi]. The will of Henry of Navarre, by which [76] he made John his
heir, was likewise confirmed; the same Mariana, Book XIII [XIII. xxii]; similarly, the will of
Isabella, queen of Castile; zd., Book XXVIII [xi, xii].

2 For the Principality of Urgel see Mariana, Book XII, chap. xvi.

§ See Cothmann, vol. I, cons. xli, no. rz.

* See Mariana [Book VIII, chap. x] in regard to Alfonso V, king of Leon. But the will of King
John in regard to the regency and administration of the kingdom was disapproved by the nobles ;
Mariana, Book XVIII [XVIIT. xv].

* Ptolemy, king of Egypt, left the Roman people as guardian for his son; Valerius Maximus,
Book VI, chap. vi, r.

® [The remainder of this sentence is repeated in a note in the 1646 edition.]

Chap. IIT] Distinction between Public and Private War iar

nobles of Macedonia for the posthumous son of Alexander the Great.
But in Asia Minor, which had been conquered by war, the king
Eumenes assigned his brother as guardian for his son Attalus. In
like manner the father Hiero, reigning in Sicily, by will designated
those whom he wished as guardians for his son Hieronymus.

2. Whether the king be, at the same time, owner of the domain
in his own right as proprietor, as the king of Egypt was after the time
of Joseph, and the Indian kings * according to Diodorus and Strabo,
or not, such ownership lies outside the realm of sovereignty and in its
essence has no relation to sovereignty. Wherefore it does not consti-
tute a separate type of sovereignty, or a different mode of possessing
sovereign power.

XVI.—It 1s shown that sovereignty 1s not limited even by a promise of
that which lres outside the sphere of the law of nature or of divine law

1. A third comment is, that sovereignty does not cease to be
such even if he who is going to exercise 1t makes promises—even
promises touching matters of government—to his subjects or to God.”
J am not now speaking of the observance of the law of nature and of
divine law, or of the law of nations; observance of these is binding
upon all kings, even though they have made no promise. I am
speaking of certain rules, to which kings would not be bound without
a promise.

That what I say is true becomes clear from the similarity of the
case under consideration to that of the head of a household. If the
head of a household promises that he will do for it something which
affects the government of it, he will not on that account cease to have
full authority over his household, so far as matters of the household
are concerned. A husband, furthermore, is not deprived of the
power conferred on him by marriage because he has promised some-
thing to his wife. .

2. Nevertheless it must be admitted that when such a promise
is made, the sovereign power is in a way limited, [62] whether the
obligation affects only the exercise of the power, or even the power
itself directly. In the former case an act performed contrary to the
promise will be unjust, for the reason that, as we shall show elsewhere,
a true promise confers a legal right upon the promisee; in the latter

1 Diodorus Siculus, Book II [History, II. xl].

2 Trajan devoted his head and his right hand to the wrath of the gods, 1n case he should knowingly
have sworn falsely ; Pliny, Panegyrzc [lxiv. 3]. The Emperor Hadrian swore that he would never
punish a senator excepting in accordance with a decree of the senate [Spartianus, Hadrian, vii]. The
Emperor Anastasius took oath that he would abide by the decrees of the Council of Chalcedon; the
fact is recorded by Zonaras [XIV. ui], Cedrenus and others. The later Greek emperors made oath to
the church; see the same Zonaras, in his account of Michael Rhangabe [Hzstory, XV. xxii], and elsewhere.

For an example also among the Gothic kings see Cassiodorus [Varzae], X. xvi, xvii.

Justin,
LXVII
[xvi 3]
Plut , On
the Love of
Brothers

[489 FI.

Book IJ
(zl)

Book XV
[1. 40].

[On
Monarchy
=p 826

F, Them,

XxXV11=

p 125 Cc]
X [1. 2].
Val Max,
IX v
[Ext 2].

[Trauung
of Cyrus,
VIII v.
27 |

[Dan.] v1.
8, 12, 15.
[xxvhu=
p 125 Cc].
(XVII.
XXXIV |
[Iv]
Book ITI
[v]

Book I
[Ixx}.

122 On the Law of War and Peace [Book I

case, the act will be void on account of lack of power. From this,
nevertheless, it does not follow that the promisor is subject to some
superior ; the nullification of the act in this case results not from the
interposition of a superior power but from the law itself.

3. Among the Persians the king possessed absolute power.
‘He was an autocrat, and accountable to no one,’ as Plutarch says,
and he was worshipped as the image of deity. According to Justin
a change of kings took place only through death. A king it was who
said to the Persian nobles: ‘ In order that I might not seem to follow
only my own counsel, I have brought you together; for the rest,
remember that for you the obligation is greater to obey than to advise.’
The Persian king, nevertheless, on assuming royal power took an oath,
as Xenophon and Diodorus Siculus observed; and it was wrong for
him to change laws! which had been made in accordance with a
certain formality, as we learn from the story of Daniel and Plutarch’s
Themistocles. To this fact Diodorus Siculus bears witness also in
his seventeenth book and, after a long interval, Procopius in the first
book of the Persian War, where there is a remarkable story bearing
on the point.?

Diodorus Siculus relates the same thing of the kings of the
Ethiopians. According to this writer, again, the kings of the Egyptians
who, as other Oriental rulers, incontestably exercised absolute power,
were bound to the observance of many regulations. If they dis-
regarded these, they could not be called to account while living ;
but after death proceedings were brought against them,° and if they
were found guilty the honour of ceremonious burial was denied them.
In like manner the bodies of the Jewish kings * who had reigned badly
were buried outside the place set aside for the kings (2 Chronicles,
xxiv. 25, and xxviii. 27). ‘This was an excellent measure, which
preserved the respect due to the supreme authority and yet, through
fear of a future judgement, restrained kings from violating their

pledges. We learn from Plutarch’s Life of Pyrrhus,® that the kings

1 Josephus, in his account of Vashti [Antsquitzes of the Jews, XI. vi. 2]: ‘ By reason of the law he
could not be reconciled with Vashti.’ Laws of this sort were called laws of the kingdom, as Jacchiades
notes, On Dantzel, li. 13. For the laws of the kingdoms in Spain see Mariana, Book XX, chap. 1.

2 The same historian nevertheless in regard to the fortress of Lethe mentions a law which was
pane by the king, but he does not approve [chap. vi; the story to which reference 1s made is in

ap. v]-

’ ‘The laws enjoin that the bodies of tyrants be unburied and cast outside the borders’ ; Appian,
Czutt Wars, Book III [II. xviii. 134]. The Emperor Andronicus deprived of burial the body of his
wa because Michael had begun to profess the faith of the Latin Church; Gregoras, Book VI

. ii].

4 In regard to the two Jorams, one king of Jerusalem, the other king of Israel, see Josephus,
Book VIII, chaps. ui and v [Anitiquitses of the Jews, IX. v. 3 and vi. 3}; also in regard to Joash,
king of Jerusalem [7bzd., TX. vui. 4].

5 Plutarch’s words are: ‘In the country of the Cassari, which forms a part of Molossia, it was
customary for the kings to offer sacrifices to Jupiter Ares, and to make oath to the Epirotes. The kings
took oath that they would govern in accordance with the laws; the Epirotes, that they would uphold
the government of the king in accordance with the same Jaws’ [Plutarch, Pyrrhus, v. 4 =385 C].

Chap. III] Dustinction between Public and Private War 123

of Epirus also were accustomed to swear that they would reign in
accordance with the laws.

4. What if there should be added the condition that if the king
should violate his pledge he would lose his kingship ?1 Even under
such circumstances the power of the king will not cease to be supreme,
but the mode of possessing it will be restricted by the condition, and
it will resemble the sovereign power limited in time. Of the king
of the Sabaeans Agatharchides related that he was ‘ accountable to no
one’, being possessed of the most absolute power, but that if he should
go outside his palace he could be stoned. This fact was noted also
by Strabo, on the authority of Artemidorus.

Thus a landed estate, which is held in trust in pursuance of
a request, is in fact legally ours not less than if possession were had
in absolute ownership; but it is held on condition that it be not
dissipated. A similar commissary clause is applicable not only in
respect to the renunciation of governmental authority but also in
other contracts. For we see that even some treaties of alliance between
neighbouring states have been entered into with a similar stipulation.”

XVII.—It ts shown that sovereignty 1s sometimes divided into parts,
subjective or potential

1. Inthe fourth place it is to be observed that while sovereignty
is a unity, in itself indivisible, consisting of the parts which we have
enumerated above, and including the highest degree of authority,
which is ‘not accountable to any one’; nevertheless a division ® is
sometimes made into parts designated as ‘ potential ’ (partes potentzales)
and ‘subjective’ (partes subjectivas). ‘Thus, while the sovereignty
of Rome was a unity, yet it often happened that one emperor ad-
ministered the East, another the West, or even three emperors
governed the whole empire in three divisions.

So, again, it may happen that a people, when choosing a king,
may reserve to itself certain powers but may confer the others on the
king absolutely. This does not take place, however, as we have
already shown, when the king obligates himself by certain pro-
mises; it must be understood as taking place only in cases [63]
where either the division of power,* of which we have spoken, is

1 See an example given by Krantz, History of Sweden, Book IX [Vandalica, IX. xxxi].

2 Hither that the subjects should not aid the king if he should violate the agreement, or that they
should not obey him ; see Kromer, Hzstory of Poland, Books XIX and XXI. [77] There is also an
instance given by Lambert von Aschaffenburg, in his account of Henry IV, year 1074.

8 See Zasius, Singularia Responsa, Book II, chap. xxxi.

4 Thus in the time of Probus the senate confirmed the laws made by the emperors, took cognizance
of appeals, appointed proconsuls; and gave lieutenant-generals to the consuls [Vopiscus, Probus,
chap. xiil].

See ‘ho Gail, Observationes, Book IT, 157, no. 7; and Cardinal Mantica, De Tacitts et Ambiguts
Conventionibus, Book X XVII, title v, no. 4.

In Pho-
tius

Book XVI
fiv 19]

124 On the Law of War and Peace [Book I

explicitly provided for, or the people, yet free, enjoins upon the future
king something in the nature of a perpetual command, or an additional
stipulation is made from which it is understood that the king can be
constrained or punished. A command is, in fact, the act of one
having superior authority, at least in respect to that which is com-
manded. To constrain is not, at any rate not in all cases, the function
of a superior—by nature every one has the right to constrain a debtor ;
yet the act of constraining is inconsistent with the position of an
inferior. From the power of constraint, therefore, flows at least
a recognition of parity, and in consequence a division of the supreme
power.
2. Against such a state of divided sovereignty—having, as it
were, two heads—objections in great number are urged by many.
(T. un But, as we have also said above, in matters of government there is
sr] nothing which from every point of view is quite free from disadvan-
tages; and a legal provision is to be judged not by what this or that
man considers best, but by what accords with the will of him with
whom the provision originated.
An ancient example of divided sovereignty is given by Plato in
(ui.v] the third book of the Laws. Since the Heraclids had founded Argos,
Messene, and Sparta, the kings of these states were bound to govern
within the provisions of the laws which had been laid down; so long
as they should do so, the peoples were bound to leave the royal power
in the hands of the kings themselves and their successors, and not to
allow any one to take it away from them. To this end, then, not only
did the peoples bind themselves to their kings, and kings to their
peoples, but also the kings bound themselves to one another, and
peoples to one another. Further, the kings bound themselves to
neighbouring peoples, and peoples to neighbouring kings, and they
promised to render aid, each to the other.

XVIII.—T hat nevertheless 1t 1s wrong to infer that there 1s a division of
sovereignty when kings do not wish certain acts of theirs to have the
force of law unless approved by some assembly

Bohier, 1. They are greatly mistaken, however, who think that a division
ham, ti of sovereignty occurs when kings desire that certain acts of theirs
I. do not have the force of law unless these are approved by a senate or

some other assembly. For acts which are annulled in this way must
be understood as annulled by the exercise of sovereignty on the part
of the king himself, who has taken this way to protect himself in

1 There are numerous examples in the history of the northern peoples. See John Magnus, History
of Sweden, Books XV and XXIX; Krantz, History of Sweden, Book V; see also Pontanus, History
of Denmark, Book VIII.

Chap. III] Distinction between Public and Private War 125

order that a measure granted under false representations might not
be considered a true act of his will. A case in point was the rescript
of King Antiochus the Third to the public officials, directing them
not to obey him in case he should have given any order which was
in conflict with the laws. Another instance is the law of Constantine
that wards or widows should not be compelled to appear in person
for legal proceedings at the emperor’s court, even though a rescript
of the emperor requiring their presence should be presented to them.’

2. The case under consideration, then, resembles a will to
which the clause has been added that no later will would be valid;
for such a clause establishes the presumption that a later will would
not express the real desire of the testator. But just as in the case of
such a testamentary clause, so too the analogous declaration of the
king can be nullified by an explicit order and specific expression of
a later act of will.

XIX.—T hat other examples of wrong inference regarding the division
of sovereignty are found under thts head

At this point I do not follow Polybius, who assigns the Roman
republic to the class of states having a mixed government. In his
time this state, if we fix our attention not on the civil acts but on the
body of law behind the acts, was a pure democracy; for both the
authority of the senate, which he considers as the control of an
aristocracy, and that of the consuls, whom he likens to kings, were
subject to the people.

The same statement in my view is applicable to the observations
of other writers, who, dealing with matters of government, find it
more to their purpose to give their attention to matters of outward
form and daily administration than to the body of law which is the
expression of sovereignty.

XX.—True examples of mixed sovereignty

1. More in point is the generalization of Aristotle, who wrote
that there are certain types of monarchy intermediate between the
full royal power, which he calls absolute monarchy (this is the
same as the ‘complete monarchy’? in the Antigone of Sophocles ;
it is called by Plutarch ‘monarchy governing in its own right ®
and not accountable to any one’, and by Strabo ‘authority absolute

1 Add the law, Code, X. xil. 1.

2 The wnters of tragedy, as we noted im sec. 8 [8. ro], represent the Theban kingship as similar
to the kingships of the Phoenicians, from whom the Theban kings traced their origin.

3 Similarly, Dionysius of Halicarnassus, in regard to the kings of Sparta [Roman Antiquities,
II. xiv]: ‘And in fact the Spartan kings did not possess absolute power.’

Plut , A po-
thegms
[x83 F].

Code, III.
xiv. I.

(VI. ix ff.]

[ Polstcs,
III. xv.]

[1163 ]

[On
Monarchy
=p. 826

F |
[VI. iv. 2.]

[213.]

[Georgics,
IV. 210 ff]

Book
XXXVI
(xvi. 5].

[VII. xiv ]

Histortes,
IV [xvu].

[Germany,
x1]

On the Law of War and Peace [Book I

126

in itself’), and the kingship of the Lacedaemonians, which is merely
a government by leading men.

In my opinion an example of division of sovereign power may be
found in the case of the Jewish kings. That in respect to most matters
these kings [64] ruled with sovereign power, is, | think, beyond cavil.
The people had in fact wished to have a king such as the neighbouring
peoples had;+ but Oriental peoples were ruled in a very arbitrary
way. In the Persians Aeschylus represents Atossa as thus speaking of
the king of the Persians :

Not to the state responsible is he,

Familiar is the passage of Virgil :

Not Egypt and great Lydia, nor tribes
Of Parthians, or Median Hydaspes,
To their king such homage pay.

In Livy we read: ‘ The Syrians and the inhabitants of Asia are races
born for servitude.’ Not unlike this is the remark of Apollonius in
Philostratus: ‘ The Assyrians and the Medes even worship despotism.’
‘ The Asiatics . . . endure despotic government contentedly,’ says Aris-
totle, in the third book of his Polztics, chapter fourteen. In ‘Tacitus we
find Civilis, the Batavian, saying to the Gauls: ‘ Syria and Asia and
the Orient, accustomed to kings, might well remain in slavery’; ”
for in Germany and in Gaul at that time there were kings, but, as the
same Tacitus observed, they held their right to rule on sufferance
and by power of persuasion, not by authority to command.

1 The people thought—to use the words of Josephus [Antiquaties of the Jews, VI. iii. 6]: ‘It was
in no respect absurd, 1f, when their neighbours were under the rule of kings, they themselves should
receive the same form of government.’

2 Cicero, On the Consular Provinces [v. 10]: ‘ Jews and Syrians, nations born for servitude.’
Eunpides in the Helena [line 276] :

Among barbarians all are slaves but one.
The thought was foreshadowed by Aeschylus [Prometheus Bound, 50]:

For no one liveth free, save Jupiter alone.
Similar to this is the expression of Lucan [Pharsalia, IT. 280] :

Caesar alone in all the world
Will now be free.

Sallust (Histories, V. i], in regard to the peoples of the Onent: ‘So inborn in them is veneration
of the name of king’ ; the passage is cited by Servius [On the Georgics, IV, line 211] and Philargyrius
in relation to the passage in the Georgtcs.

Apollonius in regard to Damis, in Philostratus, Book VII [VITI. xv]: ‘Since he is an Assyrian,
and dwells on the Median border, he has no exalted ideas in respect to freedom.’

Julian, writing against the Christians [Cyril, Agaznst Julzan, IV]: ‘Why should I speak to you in
detail either of the Germans, whose hearts are devoted to freedom and impatient of the yoke; or, on the
other hand, of the Syrians and Parthians, who are easily led to endure the hand of a master, and all
the barbarous peoples who live in the East and South, and many other nations that are content to
live under kings who imitate the rule of masters over slaves ?’

Claudian [On the Fourth Consulship of Honorius, lines 306-7] :

[78] We have not committed to you Sabaeans taught to serve,
Nor have we made you master of the Armenian land.

Chap. III] Dustinction between Public and Private War 127

2. ‘The entire Jewish people, as we remarked above also, was
under a king: and Samuel, setting forth the rights of kings, makes it
plain enough that the people had no recourse against acts of injustice
on the part of the king. This conclusion coincides with the inter-
pretation which the early commentators rightly gave to the words
of the Psalm: ‘ Against Thee only have I sinned.’ On these words
Jerome has the comment, ‘ Because he was king, and feared no one
else.’ + The same words are thus explained by Ambrose:

He was a king, he was himself bound by no laws because kings are free from the
shackles of accountability for their wrong-doings For they are not brought by any
laws to face punishment, being secure on account of the possession of supreme power.”
David did not, therefore, sin against men, to whom he was not held accountable.

The same thing may be read in one of the Letters (no. 383) of
Isidore of Pelusium, lately published.*

I see that the Jewish authorities are agreed that lashes were laid
upon the king who sinned against the laws that were extant in writing
in regard to the duty of kings; but in their view such blows were
free from disgrace. "The king, in fact, voluntarily underwent scourging
as a sign of his repentance; andso he was scourged not by a particular
attendant, but by some one whom he had chosen, and he himself fixed
the number of stripes. The kings were so shielded from penalties of
a coercive nature that in their case even the law of excalceation, which
involved disgrace, was not applied. An opinion of the Jew Barnachmon
is found in the sayings of the Rabbis, under the title On Fudges :
‘No creature passes judgement on the king, only God alone the
Blessed.’

3. Although this is true, nevertheless I think that the judicial
cognizance of some matters was taken away from the kings, and re-
mained in the jurisdiction of the sanhedrin, composed of seventy
men, which by divine command was established by Moses and lasted,
with unbroken co-optation, to the time of Herod. Thus both Moses
and David called the judges gods, and their judgements are called the
judgements of God; the judges are further said to render judgement
in place not of men but of God.

Moreover, the things of God are plainly distinguished from the
things of the king, where the things of God, according to the opinion
of the most learned Jews, must be understood as judgements to be
rendered in accordance with the law of God. I do not deny that

1 The same Jerome in his letter To Rusticus On Penitence [Letters, cxxii]: ‘ For he was a king;
he feared no one else, he had no one above him.’

* The younger Arnobuus has similar comments on the same Psalm. Vitiges in Cassiodorus [Variae,
X. xxxi}: ‘The case of royal power is to be referred to the court of heaven, since this power was
sought from heaven, and to heaven alone is indebted for its mnocence.’

3 (Antwerp, 1623.|

1569-27 K

[Psaims, ]
lh. 6.

[Defence
of David,
I. x.]

Exodus,
xxi. 8.
Psaims,
Ixxxli I.
Deut.,i.1£7;
2 Chron.,
xix 6, 8.
z Chron.,
XXV1. 32;
2 Chron.,
xix. II.

jevem ,
XXXVIIL. 5

Josephus,
Ant-
quittes,
XIV. xvii
[XIV ix.

4].
[Anab ,
IV. xi]
[IV. vii.
30 ]

(VI viii.
25.]

Book VIII
fu. 181.

(Germany,
xlii.]

[xi ]

[xliv.]

[195.]

128 On the Law of War and Peace [Book I

the king of Judah on his own cognizance in certain cases passed
sentences of death; in this respect Maimonides considers him as
having the advantage over the king of the ten tribes of Israel. The
fact is established by not a few examples, part in the Holy Scriptures,
part in the writings of the Jews. On the other hand, there were
certain classes of matters the cognizance of which seems not to have
been entrusted to the king, as those relating to a tribe, a high priest
or a prophet.2 [65] A proof of this is in the history of the prophet
Jeremiah. When the princes demanded that he be put to death, the
king answered: ‘ Behold, he is in your hand; for the king is not he
that can do anything against you,’ meaning, of course, in a matter of
this kind.

The king, again, could not deliver from judgement a man who
on any other charge had been accused before the sanhedrin. Thus
Hyrcanus, being unable to hinder the passing of a sentence on Herod,
evaded it by a ruse.

In Macedonia the kings who were descended from Caranus,
as Callisthenes says in Arrian, ‘ obtained the right to govern the
Macedonians not by force, but by law.’ Curtius in his fourth book
declares that ‘ the Macedonians were accustomed to the rule of a king,
but were under the shadow of a liberty greater than that enjoyed by
other nations’. In fact judgements involving sentence of death upon
citizens were not in the jurisdiction of the king. The same Curtius
in his sixth book says: ‘In accordance with an ancient practice
among the Macedonians the army took cognizance of capital crimes.
In time of peace, this responsibility rested with the people. The
power of the kings counted for nothing except by previous authoriza-~
tion.” Further evidence of this mixed sovereignty is found in another
passage of Curtius: ‘In accordance with a custom of their nation
the Macedonians did not allow their king to go hunting on foot, and
without an escort chosen from among the leading men or friends.’

Of the Goths Tacitus says: ‘ They are already governed some-
what more arbitrarily than the other German nations, but not yet
beyond the limit of liberty.’ He had previously described a govern-
mental headship resting upon power of persuasion, not on authority
to command. Afterward he characterizes an absolute kingship in
these words: ‘ One man issues commands; there are no restrictions,
his right to rule does not rest on sufferance.’ Eustathius in a comment
on the sixth book of the Odyssey, where the state of the Phaeacians
is described, says that it is ‘a mixture of kingship and aristocracy ’.”

2 ‘Tt cannot be that a prophet perish out of Jerusalem.’ Luke, mii. 33.

2 Laonicus Chalcocondylas says that of this sort were the kingships of the Pannonians and Angles,
Book II; of Arragon, Book V; and of Navarre, in the same book, where he says that magistrates
were not appointed by the king, nor garrisons imposed, without the consent of the people, and that

Chap. ITI] Distinction between Public and Private War 129

5. A condition somewhat similar I note in the times of the
Roman kings. In that period almost all matters were administered
by the hand of the king. ‘ Romulus’, says Tacitus, ‘ had ruled over
us as he pleased.’ ‘The fact is established’, Pomponius declares,
‘that in our state at the beginning the kings had all the power.’
Nevertheless even at this time Dionysius of Halicarnassus makes out
that there were some matters which were reserved to the people.

If, now, we concede a greater degree of reliability to the Roman
writers, Seneca, basing his opinion upon the books of Cicero On the
Commonwealth, also the pontifical books and Fenestella, averred that
in certain cases there was a right of appeal from the kings to the people.
Soon Servius Tullius, who had been raised to the kingship less by
right than by popular favour, lessened even more the power of the
kingship; in fact, as Tacitus remarks, ‘He sanctioned laws which
even the kings must obey.’ It is, then, not surprising to find in Livy
the statement that the power of the first consuls differed from the
power of the kings chiefly in the fact that it was limited to one
year.

6. Similar was the mixture of democracy and aristocracy at
Rome in an interregnum, and in the earlier part of the period of the
consuls. In some matters—those that were of greater importance—
a measure passed by the people had the force of law only if validated
by the authority of the senate. Later, when the power of the people
had been increased, as Livy and Dionysius observe, this procedure
remained only as an antiquated form, since the senators began to
ratify in advance the uncertain issue of the assemblies of the people.
Still later a trace of the mixed sovereignty remained, as the same
Livy tells ; so long in fact as the power of governing was in the hands

no command was laid upon the people contrary to the customs. That some kings possessed absolute
authonty, while others were subject to the laws, was noted also by the Jew Ben Gerson in his com-
ment on Zz Samuel, vill. 4.

What Pliny writes about Taprobane, [Natural History] Book VI, chap. xiii [VI. xxii. 89-91], is
remarkable :

The king is chosen by the people with reference to age and mildness of disposition, and he must
be without children ; if afterward a child is born to him he must abdicate, that the kingship may not
become hereditary. Thirty ministers are given to him by the people, and a man cannot be condemned
to death except by a vote of the majority. Even under such conditions there is an appeal to the
people ; 70 judges are appointed. If not more than 30—for that number ought to be read here—
vote to free the accused, they have no standing, they are in very deep disgrace.

The dress of the king is that of father Liber [Bacchus] ; the others have the costume of the
Arabs. If a king does any wrong, he is punished with death ; no one puts him to death, but all
avoid him, refusing even to speak with him.

Servius, On the Aeneid, Book IV [line 682 referring to Carthage], on the words ‘ the people and
the fathers*: ‘Some find here an allusion to the three parts of the body politic, the people, the
optimates, and the royal power. Cato in fact says that the political organization of Carthage was

composed of those three parts.’ ;
1 Plutarch, Coriolanus [xxix =227 E]: ‘The people had not the right either to enact a law or to

give any order unless authorized by a previous decree of the senate.’ ;
Chalcocondylas, Book V, notes that in his time there was a similar mixture of sovereignty in the

Genoese republic.
K 2

(IIT.
Xxvi |

[ Digest,
I 1i. 2,

§ 14.]
IV. xx |

Letters, c
[evui. 31].

Annals,
III [xxv1]

[II 1.7]

[I. XVI.
9]

(II. xiv.]
Book VI

[xxxvii.
4].

[Panathe-
nai Ova-
tion, cliil
=p 265

A.]

Justin,
XLITII

[v ro].
Val. Max,
VII. 1 [V.
ii, ext. 4]

[Germany,
xxix |

Book IV
[xi].

Book I
[xxv,
XXXviu].

I30 On the Law of War and Peace [Book I

of the patricians, that is the senate, and a means of relief lay in the
hands of the tribunes, that is the people; the means of relief was, of
course, the right of veto or intercession.

7. In like manner Isocrates makes out that in the time of Solon
the Athenian state was ‘ an aristocracy compounded with democracy ’.

Having laid down these principles, let us discuss certain questions
which frequently come up in connexion with the subject.

XXI.—IJt 15 shown that sovereignty may be vested in him who is bound
by an unequal alliance ; and objections are met

1. The first question is, whether he can possess sovereign
power who [66] is bound by an unequal alliance.

By an unequal alliance I mean here not an alliance entered into
between states of unequal strength, such as that which the Theban
state in the time of Pelopidas had with the king of Persia, and the
Romans at one time with the Massilians, afterward with King Masinissa.
Nor, again, do I have reference to a relation which has a temporary
effect, as in the case of an enemy who is admitted to friendly terms
until he pays the costs of a war, or fulfils some other condition. An
unequal alliance is one which, by the very character of the treaty,
gives to one of the contracting parties a permanent advantage over
the other; when, for example, one party is bound to preserve the
sovereignty and majesty of the other, as in the treaty of the Aetolians
with the Romans—that is, to put forth every effort that its sovereignty
remain secure and its prestige, which is understood by the word
majesty, remain unimpaired. This is what Tacitus called ‘the
feeling of awe for the empire’, explaining what he had in mind as
follows: ‘In respect to place of habitation and territories they
belong on their own bank, in mind and heart they act with us.’
Says Florus, ‘ The other peoples also, who were not under our imperial
authority, felt nevertheless its greatness, and stood in awe of the
Roman people as conqueror of the nations.’

Characterized by a similar inequality are certain rights which
to-day are known as rights of protection, defence, and patronage ;
also, among the Greeks, the right of the mother cities over their
colonies. As Thucydides says, the colonies in respect to legal inde-
pendence were on the same plane as the mother cities, but they were
under obligation ‘ to honour the mother city ’, and to manifest their
feeling by ‘the custotnary signs of respect ’—a deferential attitude,
undoubtedly, and certain outward marks of honour.

2. Ofthe ancient treaty between the Romans, who had obtained
a complete mastery over Alba, and the Latins, who were natives of

Chap. III] Distinction between Public and Private War 131

Alba, Livy says: ‘In that treaty the Roman state had greatly the
advantage.’ Rightly did Andronicus of Rhodes, following Aristotle,
say, that this is characteristic of a relation of friendship between
those who are unequal, that more honour is granted to the stronger,
more help to the one that is weaker.

We know what answer Proculus gave to the question under
consideration. He said that a state is independent which is not
subject to the power of another, even though a stipulation may
have been made in a treaty of alliance that this state shall use its
good offices to maintain the dignity of another state. If, therefore,
a state bound by such a treaty remains independent, if it is not
subject to the power of another, the conclusion follows that it retains
its sovereignty.

The same conclusion, further, must be affirmed in the case of
a king. The case of an independent state and that of a king, who
truly is a king, are in this matter identical. Proculus adds that the
stipulation referred to is made a part of a treaty in order that ‘it
may be understood that one state holds a position of superiority,
not that it may be understood that the other state is not independent.’
This position of superiority we ought to consider as having reference
not to power (for he had just said that the lesser state was not subject
to the power of another), but to influence and prestige. This is
brought out by an apt comparison, in the following words :

Just as we understand (says Proculus) that our clients are free men, even though
they are not our equals in respect to authority, standing and legal status, so it must be

understood that those also are free who are under obligation through their good offices
to maintain our prestige.

3. Clients are under the protection of their patrons; so lesser
states 1 are by treaty placed under the protection of a state which
is superior in prestige. They are ‘under protection, not under
domination ’, as Sulla says in Appian; ‘ under patronage, not under
subjection,’ as Livy expresses it. In the second book of his treatise
On Duties Cicero, characterizing the times when the Romans were
more conscientious, says that with them their allies had protection,
not domination. In harmony with this is the saying of the elder
Scipio Africanus, that ‘The Roman people prefers to bind men to it
through kindness rather than through fear, and to have foreign

2 See Cardinal Toschi, Practscae Conclusiones, 935.

You have an example in the Dilimnites, who, being free and independent, engaged in military
service under the Persians ; Agathias, Book III [III. xvii]. Thus it was the design of Irene to divide
the empire up among the children of her husband in such a way that she should make those who were
born later ‘inferior in standing, yet independent and possessing full authority’.

See Krantz, History of Saxony, Book X [X. iii], in regard to the cities which gave themselves over
to the protection of Austyia.

Herodian, Book V [VII. ii. 1]:
subjects, the latter friends and allies.’

‘Of the Osroeni and Armenians, of whom the former were

I [li. 4].
On Nicom.,
Ethaes,
IX. xvi
{VIITI.
xvuil].

Digest,
XLIX., xv.
7,§

(Digest,
XLIX
xv 7,§1]

[Digest,
XLIX.
xv. 7, §1.]

Mith.
Wars
fix. 62].
Book
XXXII.
(II. visi.
27.]
Livy,
XXXVI
[xlix. 8].

[VIII. v
5.]

fVIXT 1.

end ;
XXXVI
xxvii. 4 ]
fAntiqut-
ites, XVI
1X, 3]

Book XVI
[xlvi]

[Digest,
XLIX
xv 7,§2]

[II zx. 41

funder the
word rect
perairo |

On the Law of War and Peace

132 [Book I

nations joined with it in protecting care and in alliance rather than
subject to it in depressing servitude.’ In harmony also is what
Strabo said of the Lacedaemonians after the Romans [67] came
into Greece: ‘They remained free, contributing nothing except
what was required by the terms of alliance.’

Just as private patronage in the case of individuals does not
take away individual liberty, so patronage in the case of a state does
not take away independence; and independence without sovereignty
is inconceivable. So in Livy you may see that the conditions ‘ to be
under protection ’ and ‘ to be in subjection ’ are contrasted. Accord-
ing to Josephus, Augustus made the threat to Syllaeus, king of the
Arabs, that if he did not refrain from injuring his neighbours, Augustus
would see to it that he should become a subject instead of a friend.
In the condition of subjects, in truth, the kings of Armenia were.
They, as Paetus wrote to Vologeses, were under the domination of
the Romans, and so were kings in name rather than in fact. Such,
at an earlier time, were the kings of Cyprus and other kings who, as
Diodorus says, were ‘subject’ to the kings of Persia.

4. Contradictory, seemingly, to what we have said, is the
statement which Proculus adds: ‘ Citizens of allied states are subject
to legal proceedings among us, and if they are found guilty we punish
them.’

In order that this statement may be understood, it 1s necessary
to know that there are four kinds of controversies which can arise.
First, if subjects of a state or of a king who is under the protection
of another are charged with having violated the treaty of alliance ;
in the second place, if the states or kings themselves are accused of such
violation; thirdly, if allies who are under the protection of the
same state or king have differences among themselves ; fourthly, if
subjects complain that they have suffered wrongs at the hands of
those to whom they are subject.

In the first case, if the offence is evident, the king or state is
bound to punish the offender, or to deliver him up to the party that
suffered the wrong. This holds not only in the case of unequal
alliances, but also in the case of alliances made on equal terms; also,
again, in the case of those who are not bound by any alliance, as we
shall show elsewhere. The king or state furthermore is bound to
see to it that the losses are made good. At Rome this was the business
of the board of recuperators (recuperatores). So Aelius Gallus, as quoted
by Festus: ‘ There is recovery when between the Roman people
and foreign kings, nations and states a law provides in what way
property may be restored and recovered through the agency of the
recuperator, and how men are to proceed for the adjustment of private
interests between themselves.’ However, one ally does not have the

Chap. IIT] Distinction between Public and Private War 133

right directly to seize or punish a subject of another ally. Thus the
Campanian Decius Magius was placed in fetters by Hannibal and
taken to Cyrene, thence deported to Alexandria; he showed that
he had been placed in bonds by Hannibal in violation of the terms of
alliance, and so was released from his chains.

5. In the second case, one ally has the right to compel the other
ally to abide by the terms of the treaty, and also to punish him, in
case he has failed to do so. But this, again, is not limited to unequal
alliances. The same rule of right holds in the case of a treaty on
equal terms. For in order to exact punishment from one who has
committed an offence, it is sufficient that the party inflicting the
punishment be not subject to the offender; but this point will be
treated by us later. In consequence the same practice has arisen also
between kings and states not in alliance.

6. In the third case, in unequal as in equal alliances, con-
troversies are ordinarily referred to a conference of the allies * who
have no interest in the matter under dispute—such, we read, was the
practice among the Greeks, the early Latins, and the Germans ;
—otherwise, either to arbitrators, or even to the leading member of
a confederation as a common arbitrator. The latter alternative is
ordinarily adopted in the case of an unequal alliance, so that con-
troversies are settled by reference to him who has the leading place
in the alliance. Even this method does not disclose an authority
based on sovereign power; for kings often plead before judges
appointed by themselves.

In the last case the allies have no right of intervention.
Thus when Herod on his own initiative submitted charges against
his sons to Augustus, they said to him: ‘ You were able to punish
us yourself in your own right, both as father and as king.’ [68]
When charges were brought against Hannibal at Rome by some of
the Carthaginians, Scipio” declared that the senators ought not to
interfere in a matter which belonged to the Carthaginian state.
This is in harmony with the statement of Aristotle, that an alliance
of states differs from a single state in this, that the allies are charged
with preventing the commission of wrong against any one of them, not
with prevention of wrong-doing among the citizens of an allied state.

8. Another objection is often raised, that in the histories the
word ‘command’ is sometimes used with reference to him who
holds a position of vantage in an alliance, and ‘obey’ with reference
to him who holds the inferior: position. This, however, ought not

1 Such a meeting is called a ‘common court’ in an ancient inscription of isopolity or treaty of
reciprocal rights between the Priansians and the Mieropotamians [Corpus Inscriptionum Graecarum,
I. 2556.58].

2 See Polybius in Selectsons on Embassies, cv.

Livy,
XXIII
{vu—x].

(II. xx. 3.]

Josephus,
XVI. vu. 8
[Antigui-

ties, XVI.
iv. 3].

Val. Max ,
IV. i.

Polstics,
III. ix.

[I. cxx ]

[Panegy-
ric, ClV=
p. 62¢.]

[Ixzx=
p 56£.]

fcav=
p- 62 ¢.]

[ I. xevi,.]

XXXVII
(liv. 25].

Book XV
[xxviti].

134 On the Law of War and Peace [Book I

to disturb us. For we are here concerned either with matters that
relate to the common good of the alliance, or with the particular
interest of him who in the alliance holds the position of vantage.
In respect to matters of common interest, except at the time of a con-
ference of the allies, even when there is an alliance on equal terms,
he who is chosen as head of the alliance—‘ prince of the covenant’
(Daniel, xi. 22)—ordinarily holds the command. Thus Agamemnon
commanded the Greek kings; afterward the Spartans, then the
Athenians, commanded the Greeks. In the address of the Corinthians
in Thucydides we read :

It is fitting that those who have the leading place in an alliance should arrogate

to themselves no privilege in relation to their own interests, but should make themselves
conspicuous above the others through their careful management of the common interests.

Isocrates says that the ancient Athenians held the military
leadership, ‘ assuming the responsibility on behalf of all the allies,
but in such a way as to leave their independence unimpaired’ ;
in another passage, ‘in such a way that they thought their duty was
to administer the command of the war, not to bear sway’; ina third
passage, he adds: ‘ administering their affairs in the spirit of an ally,
not of a master.’

This right of the leading member of an alliance the Romans
expressed by imperare, ‘to command’; the Greeks, with greater
self-constraint, by a word meaning ‘to put in order’, ‘ arrange’.
Thus, according to Thucydides, the Athenians, having received the
direction of the war against the Persians, ‘ arranged’ (so it was said
of those who were sent from Rome to Greece, that they were sent
‘to arrange the affairs of free states ’ 1) ‘ what cities should contribute
money for the war against the barbarian, what cities should contribute
ships’. If this, then, is done by one who is only the leading member
in an alliance, it is not remarkable if the same thing is done by him
who in an unequal alliance has, according to the terms of the treaty,
the position of vantage. Understood in this sense, the right on the
part of the leading ally to hold command, that is hegemony, does
not take away the independence of the others.

Consistent with this point of view is the statement of the
Rhodians in their speech to the Roman senate, as reported by Livy :

In former times the Greeks by their own strength gained also the power to rule.
Now they earnestly desire that the power to rule may remain permanently where it is ;

they count it sufficient to maintain their independence with the help of your arms, since
they are not able to maintain it with their own.

In the same spirit, after the citadel of Cadmus had been retaken
by the Thebans, as Diodorus relates, many states of Greece joined

1 Pliny, Letters, VIII. xxiv.

Chap. III} Distinction between Public and Private War

135

together, ‘ to the end that they might be free, but might avail them-
selves of the military leadership of the Athenians.’ Of the Athenians
themselves in the time of Philip of Macedon Dio of Prusa says that
‘at this time they had lost their position of military leadership and
retained only their independence’. Caesar soon names as allies the
same peoples who, as he tells us, had been under the dominion of
the Suevi.

9. In matters which affect the particular interest of him who
holds the position of vantage in an unequal alliance, requests are
often spoken of as commands, not rightly but in accordance with
the similarity of the effect produced ; in like manner the prayers of
kings are often said to be commands, and sick people are said to give
orders to their physicians. Says Livy (Book XLII): ‘ Before the
time of this consul Gaius Postumius—‘ no one was ever a burden
or source of expense to the allies in any matter; so the public officials
were provided with mules, tents, and all other military equipment, in
order that they might not requisition such material from the allies.’

10. It is, nevertheless, true that in the majority of cases he
who has the position of vantage in a treaty, if he [69] is greatly
superior in respect to power, gradually usurps the sovereignty properly
so called. This is particularly liable to happen if the treaty is per-
petual, and if it contains the right to introduce garrisons into towns,
as the Athenians did, when they allowed appeals to be made to them
by their allies—something that the Spartans had never done. The
rule of the Athenians over the allies in those times [socrates compares
to the rule of a king. With similar provocation the Latins com-
plained that under the shadow of an alliance + with Rome they were
experiencing subjection as slaves. Thus the Aetolians declared that
there now remained to them only a vain appearance and empty name
of liberty ; the Achaeans, afterward, that ‘ What was, in appearance,
an alliance, was already a slavery, dependent on another’s will’.
According to Tacitus, Civilis the Batavian complains of the same
Romans, declaring that his people ‘were no longer regarded as
allies, as formerly, but as bondmen’; and in another passage, that
‘A pitiable servitude is falsely called peace’.

In Livy, too, Eumenes says that the allies of the Rhodians are

1 [79] This is the very thing that Plutarch speaks of in his Lzfe of Aratus [xxxvill =1045 A], ‘to
make of an alliance a bondage under a mild name’ ; Vocula calls it ‘a mild servitude’ in Tacitus,
Histories, TV [TV.lvin]. Festus Rufus [X], speaking of the Rhodians: ‘ At first they enjoyed liberty of
action; afterward, led on by the mildness of the Romans, they gradually became accustomed to render
obedience.’ Those whom Caesar had previously spoken of as having a relation of friendship with
the Aeduans and had called clients, in a later passage [Gallic War, VII. Ixxv] he mentions as being
under the rule of the Aeduans.

Add references, if desired, to Frederick Mindanus, De Processzbus, Book II, chap. xiv, no. 3;
Ziegler, sec. Landsasstt, 86; Gail, Observationes, Book II, 54, no. 6.

See Agathias, Book I [I. ii, iti], where the Goths are warned what in the course of time they are
to expect from the Franks.

[Ovatons,
XX1=> p.
350.]
(Gallic
War, V.
zxxix |

[On Peace,
Xxxvi=

p 182D.]
Hal , Vi
[Livy,
VIII.

1V. 2].
Livy,
XXXIV
[xxui. 7].
[XXXIX,
XXXV1.
r3.]
Hiustorses,
IV [xiv].
(IV. xvu.]

AXXV
[XEX1, 12]
and
XXXVI
[luai. 4].

[IV xiv]

I [xix].

[Caval
Wars, V
vill 75]

136 On the Law of War and Peace [Book I

allies in name only, being in reality subject to the rule of another
and accountable to it. —Tthe Magnesians also declared that Demetrias,
though independent according to appearances, was in reality at the
beck and call of the Romans. Thus Polybius observes that the
people of Thessaly were in appearance independent, but in reality
under the rule of Macedonia.

11. When such things happen, with the result that non-
resistance on the part of the weaker passes over into the right of
ruling on the part of the stronger—there will be opportunity to
discuss this point elsewhere—then either those who had been allies
become subjects, or there is at any rate a division of sovereignty such
as, according to our previous statement, may take place.

XXI].—T hat sovereignty may be held by him who pays tribute

There are some allies who pay a definite amount,” either as
reparation for wrong-doings, or as a contribution to secure pro-
tection; these are ‘allies subject to tribute’, as Thucydides calls
them. Such were the kings of the Jews,® and of the nations near
them after the time of Antony, being ‘under agreement to pay
tribute ’, as Appian says.

I see no reason for doubting that such nations may possess
sovereignty, although the confession of weakness does detract some-
what from their standing.

XXITI.—T hat sovereignty may be held by him who ts bound by feudal law

1. To many the problem of sovereignty in relation to feudal
tenure seems more difficult; it can, however, be easily solved in the
light of what has been said. In discussing this type of contract,
which is peculiar to the Germanic nations and is found only where
the Germans settled, two elements need to be considered, the personal
obligation, and the property right.

2. Ihe personal obligation is the same whether a person by
feudal law possesses the actual right of governing, or anything else

1 Such were the Lazi also in the time of Justinian. See Procopius, Persian War, II [II. xv. 1, 2].

2 The Persians used to receive from Justinian a yearly grant; on this subject see Procopius,
Perstan War, II [II. x. 20-4], and Gothic Wars, IV [IV. xv]. This payment under a mild designation
was called a contribution for protecting the Caspian Gates. The Turks appease the mountain Arabs
with money.

8 Josephus, Book XV [XV. iii. 8]: ‘ Antony declared that it was not right that the king be called
upon to render an account in regard to those things which he had done as a king; that under such
conditions he would in fact not even be a king. It was fair, he said, that those who had conferred
the honour upon him should also permit him to use his authority in the freest possible way.’

Chrysostom, On Alms, ii: ‘ After the affairs of the Jews began to decline...and they were
brought under the authority of the Romans, they neither enjoyed complete liberty as before, nor,
nevertheless, were they altogether in subjection, as at present; but they were honoured with the
title of allies, paying taxes to their kings and from these receiving magistrates. For the rest, in most
matters they used their own laws, so that they themselves punished in accordance with the customs
of the country those of their people who committed offences.’

Chap. IIT] Distinction between Public and Private War 137

even though situated in a different place. Now, as such an obligation
would not deprive an individual of the right of personal liberty,
so it does not deprive a king or a state of sovereignty, which is political
freedom.

This is most clearly seen in the case of free fiefs, which are called
frank-fiefs. These do not consist in any property rights but in
a personal obligation only. Such fiefs are, in fact, only a kind of
unequal alliance, which we have been treating; of the contracting
parties one engages to render service to the other, the other in turn
to furnish defence and protection. Suppose even that the service
of the vassal had been promised against all men in the case of the
fief now called a liege fief (formerly the term had a wider applica-
tion) ; that in no degree lessens his right of sovereign power over his
subjects—not to speak of the fact that in such a promise there is
always an unexpressed condition, provided the war be lawful, which
is to be dealt with later. -

3. So far as the property right is concerned, if one holds by
feudal law, the right of governing may be lost on the extinction of
a family, or even on account of certain crimes. But in the meantime
the power of the vassal does not cease to be sovereign; for, as we
have often said, the object is one thing, the manner of possession
quite another. I see that a number of kings were placed in authority
by the Romans with the stipulation that if the royal family should
become extinct the political power should revert to them ; this fact
was remarked by Strabo, with reference to Paphlagonia and some
other kingdoms.

[7o] XXIV.—Distinction between the right of sovereignty and the
exercise of the right, with examples

In the case of political power not less than in that of private
ownership it is necessary to distinguish between the right and its
exercise, or the first act and the second. For a king who is an infant
possesses political power but is unable to use it. A king, again, may
be insane or a captive; and a king may be in foreign territory and
live in such a way that freedom of action in respect to a dominion
existing elsewhere is not permitted to him.

In all these cases it is necessary to provide guardians, or regents.
And so Demetrius,’ being in the power of Seleucus, and unable to
live with sufficient freedom, forbade that reliance be placed on his
seal or his letters, and desired that the administration in all respects
be carried on as if he were dead.

1 See Baldus, On Digest, pr.; Natta, Consslia, 485.
2 See Plutarch, Demetrius [chap. li=914 Dj.

Book XII
(iii. 41}.

Code, XII.
xl. 5.

[Apology,
Evii.]

CHAPTER IV
WAR OF SUBJECTS AGAINST SUPERIORS

I.—State of the question

[80] 1. War may be waged by private persons against private
persons, as by a traveller against a highwayman; by those who have
sovereign power against those who possess like power, as by David
against the King of the Ammonites; by private persons against those
who have sovereign power, but not over them, as by Abraham against
the King of Babylon and his neighbours; and by those who have
sovereign power against private persons who are either their subjects,
as in the war waged by David against the party of Ishbosheth, or are
not their subjects, as in the war waged by the Romans against the
pirates.

2. The question to be considered here is simply this, whether
it is permissible for either private or official persons to wage war against
those under whose authority they are, whether this authority be
sovereign or subordinate.

First of all, the point is settled beyond controversy, that arms may
be taken up against subordinates by those who are armed with the
authority of the sovereign power. A pertinent case is that of Nehe-
miah who, authorized by an edict of Artaxerxes, waged war on the
petty princes near him. Similarly the Roman emperors granted to
the proprietor of an estate the privilege of driving off the surveyors
who make measurements for a camp. Our question, then, is to deter-
mine what action is permissible against the sovereign power, or against
subordinates acting under the authority of the sovereign power.

3. Among all good men one principle at any rate is established
beyond controversy, that if the authorities issue any order that is
contrary to the law of nature or to the commandments of God, the
order should not be carried out. For when the Apostles said that
obedience should be rendered to God rather than men, they appealed
to an infallible rule of action, which is written in the hearts of all men,
and which you may find in Plato expressed in about as many words.
But if from any such cause, or under other conditions as a result of
caprice on the part of him who holds the sovereign power, unjust

‘treatment be inflicted on us, we ought to endure it rather than resist

by force.
138

Chap. IV] War of Subjects against Superiors 139
Il.—That as a general rule rebellion is not permitted by the law of
nature

I. By nature all men have the right of resisting in order to ward
off injury, as we have said above. But as civil society was instituted
in order to maintain public tranquillity, the state forthwith acquires
over us and our possessions a greater right, to the extent necessary to
accomplish this end. The state, therefore, in the interest of public
peace and order, can limit that common right of resistance. That
such was the purpose of the state we cannot doubt, since it could not
in any other way achieve its end. If, in fact, the right of resistance
should remain without restraint, there will no longer be a state, but
only a non-social horde, such as that of the Cyclopes, among whom—

Each bears rule
O’er wife and offspring.

A mob confused, where none the other heeds.+

Such, too, were the Aborigines, whom Sallust represents as a race of
men rude, without laws, without government, free and unrestrained ;
and such, according to the same author in another passage, were the
Getulians, who were controlled neither by custom nor by the law or
rule [81] of any one.

2. The usage of all states is as I have stated. Augustine says:
‘ There is a general agreement of human society to obey kings.’ Says
Aeschylus :

Full power the king enjoys, responsible to none. .

In the words of Sophocles :

Rulers they are—obedience must be rendered ;
And why not?

A kindred thought is expressed by Euripides :

Crass blundering of them who rule
Must be endured.

To these quotations may be added the words of Tacitus which we
quoted above, in a similar connexion, and also the following: ‘ To the
emperor the gods have given the supreme direction of affairs; to
subjects has been left the honour of rendering obedience.’ Here also
belongs the verse:

Unworthy things must worthy be esteemed,
If the king does them.

1 Valerius [Argonauts, IV. 102-3] has a similar characterization of the Bebrycians:

No bonds of law they heed,
Nor rights that stay and calm men’s minds.

[Homer,
Odyssey,
IX. r14 f.]

Eurip.,
Cyclops
[x20].
[(Catslina-
rian War,
VILi;
Jugurthine

War,
AVITT. 1.]

[Confes-
stons, ITI.
V111.]

[Prome-
theus
Bound,
326.]
[Ajax,
668.]

[Phoent-
Cian
Mardens,
394.]

[Annals,
VI. xiv.]
(I. iii. 8,
15 ]

[Plautus,
Capiives,
200 f J

[Medea,
194.]

[A nirgone,
666 ff }

[Jugur-
thine War,
AXXI,.
XXvVi.]

Digest,
XLIX.
XV1. 13,
§ 4-5;
Rufus,
Leg. Mil,
xv
[Nicoma-
chean
Ethics, V
Vv]

Deut , xvu.

12,

Josh.,i. 28.

I Sam,
WLLL. IT.

Deut., xvii.

14.

Drg. I, i.
II.

On the Law of War and Peace [Book I

140

Here, again, a sentence from Seneca: ‘ The rule of a king, just and
unjust, you must endure.’ ‘The thought was borrowed from Sophocles,
who had said:

You must obey him whom the state has placed
In power, alike in small things and in things
Unyust as well as just.

A sentence of Sallust has the same purport: ‘ I’o do whatever you
wish with impunity, that is to be a king.’ *

3. Hence it comes about that everywhere the majesty, that is,
the prestige, whether of the state or of him who exercises the sovereign
power, is safeguarded by so many laws, so many penalties ; this cannot
be maintained if licence to offer resistance be free to all. If a soldier
has resisted a centurion who wishes to punish him and has laid hold of
the centurion’s staff, he is degraded in rank; if he has purposely broken
the staff, or ‘has laid a hand on the centurion he is punished with
death’. In Aristotle we read, ‘If he who has official authority has
struck any one, he is not to be struck in return.’

JIIl.—That rebellion is not allowable according to Hebraic law

In Hebraic law he was condemned to death who had been dis-
obedient either to the high priest or to one that had been appointed
by God out of the ordinary way as ruler of the people.

If we examine closely the passage in Samuel which deals with the
right of the king, it becomes clear that on the one hand this must not
be understood as setting forth a true right, that is a power to do some-
thing in a manner morally right and just (an altogether different
manner of life is prescribed for the king in the part of the law which
deals with the duty of the king), nor, on the other hand, is a mere
fact indicated; for there is nothing in it peculiar to a king, since
private persons also are wont to do wrongs to private persons. A fact
is set forth, however, which has in a measure a legal effect, that is,
the obligation not to offer resistance.” So it is added, that the people
when oppressed by such wrongs should implore the help of God,
because, in fact, there would be no recourse at the hands of man.
That, therefore, is called a legal right in the sense that the praetor
is said to ‘ enforce a legal right even when he gives an unjust decision’,

1 Applicable here are the words of Mark Antony which we have already quoted above, after
Josephus [p. 136, note 3}.

* Philo, Against Flaccus [chap. x.i, speaking of the Jews]: ‘For when were we suspected of revolt ?
When, in the view of all men, were we thought to be other than peacefully disposed ? And the practices
which we maintain in our daily life: are they not beyond reproach, are they not conducive to the
harmony and well-being of the state ?’

Chap. IV] War of Subjects against Supeniors I4I

IV.—That rebellion is even less allowable according to the law of the
Gospel; proof is presented from Holy Writ

1. In the New Covenant Christ enjoined men ‘ to render unto
Caesar the things that are Caesar’s’. By this he meant that his
followers owed to sovereign powers an obedience joined, if need be,
with long-suffering, not less in degree, if not even greater, than that
which the Jews owed to the Jewish kings. This thought the Apostle
Paul, a most excellent interpreter of Christ, develops more fully.
Describing in detail the duties of subjects, among other things
he says: ‘ He that resisteth the power, withstandeth the ordinance
of God; and they that withstand shall receive to themselves judge-
ment.’ A little farther on he adds: ‘ For he is a minister of God to
thee for good’; afterward, ‘ Wherefore ye must needs be in subjection,
not only because of the wrath, but also for conscience’ sake.’

Under subjection the Apostle includes the necessity of non-
resistance—not the necessity only which arises from fear of a greater
[82] evil but that which flows from our very sense of duty and lays
upon us an obligation not only to men but also to God. He adds two
reasons. ‘The first is that God approved this constituted order of
bearing rule and rendering obedience both in earlier time, under the
Hebraic law, and now under the Gospel ; 1n consequence, we are to
look upon public authorities as if they had been established by God
himself. For the acts to which we have given our authorization we
make our own. ‘The other reason is, that this constituted order
contributes to our good.

2. And yet, an objector may say, there is no advantage in
suffering wrongs. On this point some declare—with more of truth
than of consistency with the Apostle’s meaning, I judge—that even
these wrongs are advantageous to us, because such long-suffering will
not fail of its reward. It seems to me that the Apostle had in view the
universal end which the constituted order had in view; this is, the
maintenance of public tranquillity," in which also that of individuals
is comprised. Truly we cannot doubt that generally we do attain
to this good through the agency of the powers of government; for
no one wishes to bring harm upon himself, and the good fortune of
the ruler consists in the good fortune of his subjects. ‘ May there be
those whom you may rule,”? one of the ancients said. Among the
Jews there is a proverb, ‘If there were no public authority, men

1 Well does Chrysostom [On Romans, xiii. 4=Homily XXIII, ii] remark: ‘ He is co-worker with
thee, he co-operates with thee,’ the emperor, that is, with him who preaches the Gospel. He hews the
surface which you smooth.

2 This saying is ascribed to Sulla by Plutarch [cf. Sulla, xxxi= 472], Florus [Epsiome, II. ix. 25,
or III. xxi], and others, from whom it was taken by Augustine, On the City of God, IIL. xxvii.

Rom , X11
[2-5].

[Parke
A both.,
ili.]

[Historvzes,
IV. lxxiv.]

Dig. I. 1.
6; V. iv.
3, end.
Livy,
XXXIV
(ui. 5].

On
Benefits,
VII.

xv [3].

142 On the Law of War and Peace [Book I

would swallow one another alive.’ The same thought is found in
Chrysostom: ‘If there were no rulers of states, we should be living
a life more wild than the life of wild beasts, not only biting one
another, but devouring one another.’ *

3. If sometimes under the influence of excessive fear or anger
or other passions, rulers are turned aside so that they do not enter the
straight road that leads to tranquillity, this after all must be reckoned
among the things that less frequently happen; and such things, as
Tacitus remarks, are offset by the interposition of better things.
Laws, again, count it sufficient to have in view what generally happens,
as ‘Theophrastus remarked. A saying of Cato bears on the same point :
‘There is no law which is sufficiently well adapted to all cases; this
only is aimed at, that a law be serviceable to the majority, and of
general application.’

Things which happen rather infrequently ought nevertheless to
be brought together under general rules; for although the principle
embodied in a law may in a special case not have a specific application,
yet the principle remains of general scope, and it is right that particular
cases should be determined accordingly. This is better than to live
without a rule, or to suffer the rule to be left to every one’s discretion.
Quite to the point Seneca remarks: ‘It was better that even a well-
grounded excuse be not accepted from a few than that any and every
kind of an excuse be tried by all.’

. At this point we may quote as pertinent those words of
Pericles in Thucydides,? which cannot be too often brought to
mind :

For my part I think that even for the individual citizens it is more advantageous
that the state prosper than that, while their private interests prosper, the state as a whole
should suffer. For though a man may have his private means well invested, nevertheless
if the state perish he must perish with it; but the man who, in a prosperous state, has
been unfortunate, is much more likely, under such a condition, to regain his footing.
Since, then, a state is able to bear the misfortunes of individuals, while the individual is
not able to bear the misfortunes of a state, what reason is there why all should not unite
in taking counsel for the state, and for its protection, and not do as you are doing, you who,
panic stricken as it were, by private losses, are abandoning the safety of the state ?

1 The quotation is from Chrysostom, On the Statues, Homily VI [i], in which this also is found [ii] :
[94] ‘Abolish the courts of justice and you will take all tranquillity out of life.’ Ina later passage:
‘Do not speak to me of those who have abused their official positions, but look at the beauty of the
institution itself, and you will admire the wisdom. of him who was the originator of 1t.’

The same writer On Romans [xiul. 5==Homily XXIII, u]: ‘If you were to do away with magistrates,
all things would perish; in such case cities will not remain, not the fields, not the forum, nor
anything else. All things will be turned upside down, and the weaker will become the prey of the
stronger.’ A similar thought is expressed by the same writer, On Ephestans, v [Homily XX, i].

2 Book II [II. lx]. With this the thought of Ambrose, On Duties, Book ITI [III. iv. 25], accords :
‘The interest of the individual is the same as that of the general body.’ And the following in a legal
statement, in Dzgesi, XVII. il. 65, § 5: ‘Always not that which is to the advantage of one of the
partners but that which is advantageous to the partnership is to be kept in view.’

Add the next to the last section in the Code, VI. li. 14.

Chap. IV] War of Subjects against Supertors 143

‘The same thought is expressed by Livy briefly in these words:
* A state that is in a sound condition easily safeguards the interest of
individuals ; in betraying the general interest you would vainly think
to protect your own.’ Plato had said, in the fourth book of his Laws :
‘It is the common interest which binds a state together, that of
individuals which rends it apart. Wherefore, it is more advantageous,
both for the state and for the individual, that public interests be
cared for in preference to [83] private interests.’

Xenophon presents a slightly different point of view: *‘ He who
in war acts treacherously against his general does so at the peril of
his life.’ The words of lamblichus bear upon the same subject: ‘ The
private interest is not dissociated from the public interest ; rather,
the good of the individual is comprised in the general good. In states,
as in the case of animals and the rest of nature, the welfare of the parts
is dependent upon the welfare of the whole.’

5. Now beyond doubt the most important element in public
affairs is the constituted order of bearing rule and rendering obedience,
regarding which I have spoken. ‘This truly cannot coexist with
individual licence to offer resistance. The point is well set forth in
a fine passage of Dio Cassius :

For my part I think that it is not a proper thing for the ruler of a state to be over-
ridden by his subjects, and that there is no hope of safety if the element whose function
it is to obey strives to rule. Consider what kind of order there would be in a household
if the elders should be scorned by the young. How would the sick recover their health
if they should not obey their physicians in everything ? What safety for those who travel

by ship if the crew should treat with contempt the orders of the helmsmen? By nature
in truth it is for men a necessity, and a means of safety, that some rule and others obey.

6. With Paul let us associate Peter as a companion. Peter’s
words are:

Honour the king.

Servants, be in subjection to your masters with all fear; not only to the good and
gentle, but also to the froward. For this is acceptable, if for conscience toward God a man
endureth griefs, suffering wrongfully. For what glory is it, if, when ye sin, and are
buffeted for it, we shall take it patiently ? But if, when ye do well and suffer for it, ye
shall take it patiently, this is acceptable with God.+

A little farther on Peter confirms this exposition by the example
of Christ. The same thought in the Constitutions of Clement is
expressed in these words: ‘ Let the servant who fears God at the
same time bring goodwill to his master, no matter how ungodly, no
matter how unjust.’

Two comments need to be made. First, the submission which
is spoken of as due to masters, even harsh masters, must be considered
as due also to kings; for what follows is based upon that as a founda-

1 Tertullian, On Repentance [chap. vii]: ‘ Man’s fear is honour to God.’
1569°27 L

XXVI
[xxxv1. 9].

[xu11.]

[Anabasis,
VI.1 29]

{In
Stobaeus,
xlvi. 74.]

[XLI.
XXXL }

I Peter, 11.
r2 [2
17-20].

[IV. xu.]

[Publilius
Syrus, 8 ]

[Aelian,
Var. Hist,
IX.

XXX] |
Book XV
[u11. IO},
XXVITI
[XXxXIV.
I4].
Annals,
XVI [XII.
xi].
Hastorzes,
VI [IV.
vill].

[A gaimst
Eutropius,
IT. 479 £]

[xxxv ]

144

tion, and regards the duty of subjects not less than that of servants.
And in the second place, the submission which is required of us carries
with it the endurance of wrongs, as the saying is in regard to parents :

On the Law of War and Peace [Book I

Your father love if he is just; if not,
Bear with him.+

A young man from Eretria, who for a long time had been fre-
quenting the school of Zeno, was asked what he had learned there ;
he answered, ‘To endure my father’s rage.’ Of Lysimachus Justin
said: ‘ With greatness of soul he bore the insulting treatment of the
king as if it had been that of a father.’ In Livy we read: ‘ Harsh
treatment on the part of our country, as on the part of our parents,
we must assuage by suffering and enduring.’ In Tacitus, again,
‘The caprices of kings are to be endured’; and in another passage,
‘We should pray for good emperors, put up with those we have.’
Among the Persians, in the commendatory words of Claudian :

Howe’er so cruel masters are,
They are obeyed.

V.—That rebellion is not allowable according to the practice of the early
Christians

1. From this law of the Lord the practice of the early Christians,”
[84] which is a most excellent commentary upon the law, did not
depart. Although the administration of the Roman Empire was often
in the hands of extremely bad men, and there was no lack of pretenders
who opposed them under the pretext of rescuing the state, the
Christians never associated themselves with their attempts. In the
Constitutions of Clement the rule is laid down, ‘ It 1s wrong to resist

the authority of a king.’ Says Tertullian in his Apology :

Whence come men like Cassius, and men like Niger, and men like Albinus ? Whence
they who beset a Caesar between the two laurels ? Whence they who practise wrestling
in order to strangle him ? Whence they who in arms burst into the palace, more audacious
than all the men like Sigerius? (this is the distinct reading of the manuscript which is in
the possession of those distinguished young gentlemen the Dupuys) and Parthenius ?

1 Terence, Hecyra [line 301= IIT. i. 21] :

For duty, Parmeno, bids me endure
The hurts my mother causes,

Cicero, For Cluentius [vi. 17]: ‘Men ought not only to maintain silence in regard to wrongs done
to them by their parents, but even to endure such wrongs patiently.’ In regard to this maxim
Chrysostom has some fine remarks, On Second Timothy, and Agaist the Jews, Book V [VIII. vii].

What Epictetus says [Manual, wy and after him Simplicius on the two handles, is pertinent here.

2 To this point canon xvii of the Council of Chalcedon relates, repeated in canon iv of the Trullan
Council; also the Fourth Council of Toledo; Capztulary ii of Charles the Bald, In Villa Colonia; canon v
of the Council of Soissons.

§ Xiphilinus, Domitian [Dio Cassius, LXVII. xv]: ‘Moreover Parthenius, a chamberlain, and

Chap. IV] War of Subjects against Supertors I45

From among the Romans, if I mistake not, that is from among men who are not
Christians.

Tertullian’s allusion to the practice of wrestling refers to the
murder of Commodus, which was accomplished by the hand of
a wrestler acting under the orders of the prefect Aelius Laetus; yet
in point of wickedness hardly any one was worse than this emperor.
Parthenius, whose crime Tertullian likewise abhors, was the man
responsible for the assassination of the extremely bad emperor
Domitian. To these Tertullian compares the pretorian prefect,
Plautianus, who had wished to kill Septimius Severus—truly a blood-
thirsty emperor—in the palace. Arms had been taken up against the
same Septimius Severus, under pretence of devotion to the state, by
Pescennius Niger in Syria, and by Claudius Albinus in Gaul and
Britain. But the action of these men also was displeasing to the
Christians, as Tertullian boasts to Scapula. ‘ We are charged with
treason,’ he says; ‘nevertheless among the followers of Albinus, or
of Niger, or of Cassius, no Christians could ever be found.’ The
followers of Cassius were those who had joined Avidius Cassius, an
excellent man; he took up arms in Syria, alleging as the reason
that he was going to restore the state, which the neglect of Marcus
Aurelius was bringing to ruin.

2. Ambrose believed that wrong would be done not only to
himself but also to his flock and to Christ, by Valentinian, son of
Valentinian ; yet he would not take advantage of an uprising of the
people, who were thoroughly aroused, to offer resistance. ‘ Although
under compulsion’, he says, ‘I know not how to make resistance.’
I shall be able to grieve, to weep, to groan; against arms, soldiers,
even the Goths, my weapons are my tears. Such are the defences of
the clergy ; in no other way ought I to offer resistance, in no other
way can I resist.’ _In another passage he adds: ‘The demand was made
upon me that I calm the people. I made answer that it was my duty
not to arouse the people; that the quieting of the people was in the

hand of God.’
The same Ambrose refused to make use of the troops of Maximus

Sigerius, also one of the chamber attendants, together formed a plot to kill him.’ Martial, Book IV
[Epigrams, IV. lxxviii. 8] :

Your talk is only of Sigerius,

Parthenius, too, and others of that ilk.

The name was wrongly given not only in Tertullian but also in Suetonius [Domzttan, xvii], where
Saturwus appears, and again in [Aurelius] Victor, as he is commonly called, where Casperius [Epiiome,
xii. 8] is read.

, Gratian has inserted these words, Decretum, II. xxiii. 8 [21]. The same Ambrose, Letters,
xxxiii [xx]: ‘Do you wish to cast me into chains? That is my desire ; I shall not shield myself

by means of the crowd round about me.’
Gregory the Great imitated the passage, Letters, Book VII.i: ‘If I had wished to have a part in
the death of the Lombards, to-day the Lombard nation would have neither king, nor dukes, nor counts,

and would be dispersed in the utmost disorder.’
L 2

[To Sca-
pula, 1i |

Against
Auxsen-
tus, V

fii; fol-
lowing

Letters,

xxi].

[Letiers,
xx. 10 |

Theodoret,
Eccl. H1si.,
V. iv.

Against
julian,
I [xevi].

(ixxv ]

Prop.,
Ixxiv.

Averroes,
On
Metaph.,
V.V.L

146 On the Law of War and Peace [Book I

against the emperor, though the emperor was both an Arian and
a persecutor of the church.

In illustration of the same attitude, Gregory Nazianzen declares
that Julian the Apostate, while deliberating upon dreadful plans, was
held back by the tears of Christians; he adds the reason, ‘ because
this was the only resource they had against the persecutor.’ And yet,
the army of Julian was almost altogether made up of Christians. There
is the further fact that the cruelty of Julian, as the same Gregory
observes, not only worked harm to the Christians but brought the
state itself into very great danger. Pertinent is the comment of
Augustine, explaining the words of the Apostle to the Romans:
‘For the welfare of this life it is necessary that we be submissive, not
offering resistance if they (the rulers) wish to take away anything
from us.’

VI.—The view which holds that it 1s permissible for subordinate officials
to rebel against sovereign authority ts refuted, both by argument and

by Holy Writ

1. In our time there are to be met with men who possess
learning, it is true, but being too much under the influence of time
and place have persuaded first themselves (for so I believe), then others,
that what has been said is applicable only to private individuals and
not also to subordinate officials.1 They think that subordinate
officials have the right to offer resistance to wrong-doing on the part
of him who holds the supreme power; further, [85] that these do
wrong if under such conditions they do not offer resistance.

The validity of this opinion ought not to be admitted. Just
as in logic an intermediate species,” from the point of view of the
genus, is a species, but from the point of view of a sub-species is
a genus, so subordinate officials from the point of view of officials of
lower rank are persons vested with public authority, but from the
point of view of those possessing higher authority are private persons.
All governmental authority possessed by public officials is in fact so
subordinated to the sovereign power that whatever they do contrary to
the will of him who holds it is divested of authority and is, accordingly,
to be considered as a private act. The saying of the philosophers is
here in place, that an orderly arrangement is possible only in relation
to a first point.

z. ‘Chey who think otherwise seem to me disposed to bring into
this world such a condition of affairs as existed in heaven, according

+ Peter Martyr, On Judges, chap. iii; Pareus, On Romans, chap. xiii; Junius Brutus; Daneau,
Politict, Book VI; and others.
* [95] ‘Special genus’, according to Seneca, Letfers, lvini (VI. vi. 12].

Chap. IV] War of Subjects against Supertors 147

to the tale the ancients used to tell, before a sovereign power arose ; for
at that time, they said, the lesser gods had not yet submitted to
Jupiter. But the orderly arrangement of which I spoke, and the
principle of subordination,’ are recognized not alone by the common
sense of mankind. From such recognition came the verse:

Subject to a kingship still more powerful
Each kingship is.

Likewise the words of Papinius :

In alternation all is ruled,
And rules in turn.

Also Augustine’s famous statement ?:

Consider the gradations of rank in human relations. If a subordinate official has
given some order, the thing must be done; nevertheless if the proconsul orders the
contrary, it is not to be done. A similar situation arises if the consul issues some
order, and the emperor gives a different order. In such a case you do not treat
official power with disrespect, but you choose to serve the higher authority; the official
of lower rank ought not to be angry if preference is given to the higher.

Of Pilate, Augustine said: ‘’ The power which God had given to
him was such that he was himself also under the power of Caesar.’

Such subordination is proved also by divine authority. The
chief of the Apostles desires that we submit ourselves in one way to
the king, in another to public officials. We are to submit ourselves
to the king as to the supreme authority, that is without any reservation
except in regard to those things which God directly enjoins upon us ;
and He approves the endurance of wrong and does not forbid it.
We are to submit ourselves to public officials as if they had been sent
by the king, that is to those who derive their power from the king.
When Paul desires that ‘every soul be in subjection to the higher

owers ’, he includes also the subordinate public officials.

Among the Jewish people, where there were so many kings who
treated with contempt divine as well as human law, the subordinate
officials, among whom were very many upright and brave men, never
assumed to themselves the right to oppose any force to the kings,
unless they had received a special command from God, whose
right over kings is supreme. On the contrary, Samuel showed
what the duty of the elders was when, in the presence of the

1 Thus in the household first the father, then the mother, then’ the children; after these, the
ordinary servants ; lastly the under-servants.

See Chrysostom, On First Corinthians, xii. 3 [Homily XXXII, vi]. ;

2 Augustine has almost the same words in his On the Words of the Lord, VI [= Sermones de
Sertpturts, lxil. 13].

[Seneca,
Thyestes,
612.]

[Stlvae,
ITT. 112.

49 f]

Decretum,
II. x1. 3.
97

On the
Gospel of
John
[exvi. 5].
I Peter, ii.
r fi. 13 f.].

[Romans,
mil. 1.]

zr Sam., Xv.
30.

[Xiuphil.,
LXVIITI.
XV1.]

[Ixvi. 8 ]

Dio VI
(Xiphil ,
LXXI,
XXxX1u].

[Letters,
iv ]

148 On the Law of War and Peace [Book I

elders and the people, he treated Saul with the customary respect,
although Saul already was reigning badly.

4. And so among the Jews the condition of public worship also
always depended upon the will of the king and the sanhedrin. Since,
after the king, the public officials at the same time with the people
promised that they would be faithful to God, this must be understood
to mean, so far as it would be in the power of each. We have never
read that even the images of false gods, which were standing in public
places, were ever thrown down except by order of the people, when
the state was a free republic, or by that of the kings, when kings were
in power. If sometimes violence was used against kings, the fact is
reported as evidence of the interposition of divine providence which
permitted the deed, not as a mark of approval of the action in the
sight of men.

5. The authors who maintain the opposite view are accustomed
to bring forward the saying of Trajan, when he handed a dagger to
the pretorian prefect: ‘* Use this for me, if I govern rightly; against
me, if I govern badly.’ But the fact must be recognized, [86] as is
manifest from Pliny’s Panegyric, that Trajan made it his particular care
to see to it that nothing suggestive of kingly power should appear, but
that he should act as truly a chief magistrate,’ subject, accordingly,
to the authority of the senate and the people; their decrees the
prefect was bound to carry into effect, even against the chief magistrate
himself. ‘The case of Marcus Aurelius was similar; we read of him
that he was unwilling to touch public funds unless authorized by
a decree of the senate.

VIL—W hat view ts to be taken in case of extreme and tn other respects
unavoidable necessity

1. More serious is the question whether the law of non-resistance
should bind us in case of extreme and imminent peril. Even some
laws of God, although stated in general terms, carry a tacit exception
in case of extreme necessity. Such a limitation was put upon the law
of the Sabbath by learned men in the time of the Maccabees; hence
the well-known saying: ‘ Danger to life breaks the Sabbath.’ In
Synesius, again, a Jew presents this excuse for having violated the law
of the Sabbath: ‘ We were exposed to imminent danger of death.’ ?

This exception was approved by Christ, as also an exception in

1 This course of action Pertinax and Macrinus afterward imitated ; their excellent addresses you
may see in Herodian [Histories, II. iii. s-11 ; IV. xiv. 4-8].

* r Maccabees, ix. 10, 43, and 44: ‘When Bacchides had heard this, he came with a large army
to the banks of the Jordan on the very day of the Sabbath. But Jonathan said to his men: ‘Let
us rise up now, and fight for our lives ; for our situation now is not as it was yesterday and day before
yesterday.

Chap. IV] War of Subjects against Supertors 149

the case of another law, which forbade the eating of shewbread. The
Jewish rabbis, in accordance with an ancient tradition, admit a similar
exception in the case of the law forbidding the use of certain articles
of food, and in some other cases; and rightly so. This does not mean
that God has not the right to oblige us to submit ourselves to certain
death; it does mean that since there are some laws of such a nature,
we are not to believe that they were given with so inflexible an intent.
The same principle holds even more manifestly in the case of human
laws.

2. Ido not deny that even according to human law certain acts
of a moral nature can be ordered which expose one to a sure danger
of death; an example is the order not to leave one’s post.1 We are
not, however, rashly to assume that such was the purpose of him who
laid down the law; and it is apparent that men would not have
received so drastic a law applying to themselves and others except as
constrained by extreme necessity. For laws are formulated by men
and ought to be formulated with an appreciation of human frailty.

Now this law which we are discussing—the law of non-resistance
—seems to draw its validity from the will of those who associate
themselves together in the first place to form a civil society; from
the same source, furthermore, derives the right which passes into the
hands of those who govern. If these men could be asked whether
they purposed to impose upon all persons the obligation to prefer
death rather than under any circumstances to take up arms in order
to ward off the violence of those having superior authority, I do not
know whether they would answer in the affirmative, unless, perhaps,
with this qualification, in case resistance could not be made without
a very great disturbance in the state, and without the destruction of
a great many innocent people. I do not doubt that to human law
also there can be applied what love under such circumstances would
commend.

3. Some one may say that this strict obligation, to suffer death
rather than at any time to ward off any kind of wrong-doing on the
part of those possessing superior authority, has its origin not in human
but in divine law. It must be noted, however, that in the first
instance men joined themselves together to form a civil society not
by command of God, but of their own free will, being influenced by
their experience of the weakness of isolated households against attack.
From this origin the civil power is derived, and so Peter calls this an
ordinance of man. Elsewhere, however, it is also called a divine
ordinance, because God approved an institution which was beneficial

1 See Josephus, where he speaks of the guards of Saul [Antiquities of the Jews, VI. xiii. 9).
Polybius [Suidas, Lexicon, under mpéaripay]: ‘Among the Romans death was the penalty inflicted

upon one who left his post.’

I Peter,
il. 13

Adv, Mo-
aarchom ,
ITT. viii;

VI. xxi,
XX1V.

I Sam,
XX. 2;
XXili. 13.

150 On the Lgw of War and Peace [Book I

to mankind. God is to be thought of as approving a human law,
however, only as human and imposed after the manner of men.

4. Barclay, though a very staunch advocate of kingly authority,
nevertheless comes down to this point, that he concedes to the people,
and to a notable portion of the people, the right of self-defence
against atrocious cruelty, despite the fact that he admits that the
entire people is subject to the king. I readily understand that in
proportion as that which is preserved is of greater importance, the
equity of admitting an exception to the letter of a law is in-
creased. [87] But on the other hand I should hardly dare indis-
criminately to condemn either individuals, or a minority which at
length availed itself of the last resource of necessity in such a way as
meanwhile not to abandon consideration of the common good.

We may illustrate the point from the history of David, who,
with the exception of a few deeds, is represented as having passed
a life in accordance with the laws. Now David had about him first
four hundred armed men, then a considerably larger number; for
what purpose, except to defend himself in case violence should be
attempted ? But at the same time this fact should be noted, that
David did not gather this force until after he had been informed by
Jonathan, and had learned by numerous and sure evidences from
other sources, that Saul was threatening his life. Even then, however,
he did not fall upon cities, nor seize opportunities to fight; but he
sought hiding-places, sometimes in places difficult of access, sometimes
among foreign peoples, and with such scruple that he never did harm
to those of his own nation.

5. Comparable with the conduct of David was that of the
Maccabees. Their taking up of arms some, indeed, seek to justify on
the ground that Antiochus was not their king, but a usurper. ‘This
view I consider untenable. For nowhere in their history do the
Maccabees, and those who had espoused their cause, address Antiochus
with any other title than that of king. And the title was properly
applied, since for a considerable period the Jews had acknowledged
the sovereignty of the Macedonians, and to their right to rule Antio-
chus had succeeded. For the rule of law forbidding that a foreigner
should be set over the people must be understood as relating to
voluntary choice; it has no bearing on that which the people were
forced to do when constrained by the necessity of the times.

Others, again, declare that the Maccabees availed themselves
of the right of a people entitled to self-government. This argument,
however, is as devoid of foundation as the first. For the Jews were
first reduced to subjection by Nebuchadnezzar, by right of conquest ;
and by the same right they rendered obedience to the successors of
the Chaldeans, that is, the Medes and Persians, whose entire empire

Chap. IV] War of Subjects against Supertors I5I

passed under the rule of the Macedonians. Hence Tacitus calls the
Jews ‘the most insignificant part of those who were in subjection
while the East was under the power of the Assyrians, the Medes, and
the Persians’. ‘The Jews obtained no concession whatever from
Alexander and his successors, but came under their absolute power
without any stipulation, just as they had previously been under the
power of Darius. Ii from time to time the Jews were permitted openly
to practise their religious rites and to follow their own laws, their
right to do so was by sufferance, resting on the goodwill of the kings,
not on any legal provision safeguarding their government.

The Maccabees, therefore, had no justification except extreme
and unavoidable danger. This justification held, at any rate, as long
as they kept within the limits of self-defence, so that, following the
example of David, they withdrew into places difficult of access,
seeking safety ; and as long as they did not use arms except when they
were attacked.

6. Meanwhile the caution must be observed that even in such
danger, the person of the king must be spared. Those who think that
David conformed to this rule not from a sense of duty, but from
a higher purpose, are mistaken. For David himself openly said, that
no one who laid hands on the king could be innocent. Undoubtedly
he knew that it was written in the law: ‘ Thou shalt not revile the
gods ’, that is the highest judges, ‘ nor curse a ruler of thy people.’ ?
The special mention of the higher powers in this law indicates that
something noteworthy is enjoined. Wherefore Optatus of Milevis,
speaking of this course of action on the part of David, says: ‘A
memory filled with the commandments of God held him back.’ ®
And into the mouth of David he puts these words: ‘I wished to
vanquish my enemy; but the first duty is to keep the commandments
of God.’

7. Malicious false statements are not permissible even against
a private individual; accordingly, in the case of a king malicious
statements even of what is true must be refrained from, for the
reason that, as the author of the Problems which bear the name of
Aristotle says: ‘ He who reviles the ruler works [88] injury to the

1 Justin, Book XXXVI [XXXVI. ii]: ‘Xerxes, king of the Persians, was the first to conquer
the Jews. Afterward along with the Persians themselves they came under the rule of Alexander the
Great, and they remained a long time in the power of the Macedonians. Having revolted from
Demetrius they sought the friendship of the Romans, and were the first among all the peoples of the
Orient to regain their freedom, since the Romans then easily became generous at the expense of another.’

2 Joab, son of Shimei, in Josephus [Anisqustses of the Jews, VII. xi. 2]: ‘Shall you not die, who
have dared to curse him that God has established on the throne ?’

3 In regard to David, Josephus [VI. xiii. 4]: ‘ But immediately touched with repentance he said
that it was wrong to kill‘his lord’ ; in a later passage [VI. xii. 9]: ‘He said that it was a terrible
crime to slay a king, no matter how wicked; for over the head of one who did such a deed punishment,
at the hands of Him who gave the king, would be suspended.’

Hiustorzes,
I. v [V.
vui].

x Sam.,
XXVi. 9.
Deut., xxii.
8 [Exodus,
XXii. 28].

II [xxv].

Sec, xl
[xxix. 14].

I Sam,
XXIv. 6,

(Thad,
v. 566 f.]

LX. iti 3.]

{xix==
Pp. 804 4.]

152 On the Law of War and Peace [Book I

state.’?+ If, then, harm must not be done to the ruler with speech,
surely much less with the hand. Hence we read, that David was filled
with penitence because he had violently laid hold of the garment of
the king; so profound a sense did he have of the inviolability of the
king’s person! And not without reason. For since the sovereign
power is inevitably exposed to the hatred of many,’ the security of
him who is charged with the exercise of it must be safeguarded in an
altogether exceptional way.

This the Romans determined even in the case of the tribunes
of the people; they enacted that the tribunes should be safe from
seizure, that is inviolable. Among the sayings of the Essenes was this,
that kings are to be regarded as holy; and there is a noteworthy
expression in Homer :

For the shepherd of the people did he fear,?
Lest harm should come to him.

Not without reason, we read in Curtius, do ‘ the nations which
are under the government of kings, revere the name of the king as
that of agod’. Says Artaban,* the Persian: ‘ Of the many good laws
which we have this is the most excellent, that we must reverence and
adore the king, as the image of God who preserves all things.’ ‘ It is
neither right nor permissible ’, says Plutarch in his life of Agis, ‘ to
lay hands on the person of a king.’

8. It is a more difficult question to determine whether, in this
matter, as much is permitted also to Christians as was permitted to
David or to the Maccabees ; for the Master of the Christians, on so
many occasions bidding them to bear the cross, seems to exact a
greater degree of long-suffering. Surely when the higher powers

1 Julian, Mzsopogon [342 B]: ‘ Laws in fact are severe in the interest of rulers, so that he who
has done harm to a ruler has from excess of feeling trampled the laws under foot.’

2 Quintihan, Declamations, 348: ‘This is the situation of all who undertake the government
of a state, that in doing the things which in the highest degree concern the common safety they are
obliged to subject themselves to a kind of unpopulanty.’

See the words of Livia to Augustus on this point, in Xiphilinus, from Dio [Dio Cassius, Roman
History, LV. xv].

3 Well does Chrysostom say, On Furst Timothy [i. 1 = Homily I, i]: ‘ If one kills a sheep, the flock
is made smaller by him ; but if any one has taken the shepherd out of the midst, the whole flock is
scattered by him.’

Seneca, On Clemency, Book I, chap. iii [I. ni. 3-5]: ‘ His [the king’s] sleep men protect by night-
watches ; they press to his sides and surround him in order to defend him; they expose themselves
to the dangers which threaten him. Not without reason is this universal custom on the part of the
peoples and cities, to protect and love their kings, and to sacnfice themselves and all they have when-
ever the safety of the ruler demands it. This 1s not a cheapening of themselves, nor [96] madness,
that so many thousands give themselves to the sword for the sake of one and with many deaths ransom
a. single life, not wnfrequently the life of one who is aged and feeble. Just as the whole body is under
the domination of the mind’—what immediately follows is merely an expanding of the thought—
‘so this vast multitude, which environs the life of one, is ruled by his spirit, is swayed by his reason,
destined to overburden itself and break up into parts unless sustained by his wisdom. Men therefore
devote themselves to their own safety,’ etc.

Add what is said below in IT. i. 9.

‘ In Plutarch, Themsstocles [xxvii= 125 C].

Chap. IV] War of Subjects against Supertors 153

threaten death to Christians on account of their religion, Christ
concedes to them the right to flee—to those, at any rate, whom the
necessary discharge of duty does not bind to a particular place. Beyond
the right to flee, he makes no concession. Peter, in fact, says that in
suffering Christ left to us an example that we should follow; though
he was free from sin, and without guile, ‘when he was reviled he
reviled not again; when he suffered, threatened not, but committed
himself to Him that judgeth righteously.’ He says also that Christians
ought to return thanks to God, and rejoice, if as Christians they suffer

unishment. And we read that the Christian religion waxed strong
chiefly by reason of such long-suffering.

Thus the early Christians, fresh from the teachings of the
Apostles and of Apostolic men, both understood the Christian rules
of conduct better, and lived up to them more fully, than did the men
of later times; wherefore I think that the greatest injustice is done
to them by those who think that their reason for not defending them-
selves, when in certain danger of death, was lack of strength, not
intention. Imprudent, surely, and devoid of shame, would Ter-
tullian have been if, in the presence of the emperors, who could not
be in ignorance of the facts, he had dared with so much assurance
to lie when he said :

If we wished to act as open enemies, and not merely as secret avengers, should we
lack the power of numbers and of forces? Are the Moors, forsooth, and the Marcomans,
and even the Parthians, or all the nations which, in contrast with us, are confined to one
region and hemmed in by their own boundaries—are they more numerous than we, who
are spread over the whole earth? Strangers we are, and yet we have filled all places
belonging to you, your cities, islands, fortified posts, towns, places of assembly, even your
camps; your tribes, town-councils, palace, senate, Forum. Only your temples have we
left to you. What war should we not have been capable of undertaking, and ready to
undertake, even if inferior in forces—we who are so willingly slaughtered—if according
to our doctrine it were not more lawful to suffer ourselves to be killed than to kill?

\

In this matter Cyprian, too, follows his teacher, and openly
affirms: ‘ This is the reason why no one of us offers resistance, when
he is seized, or tries to avenge himself for unjust violence on your part,
albeit our people are numerous and well provided with means; sure
confidence in a future vengeance makes us patient. The innocent yield
to the guilty.’* ‘ For’, says Lactantius, ‘we put our trust [89] in
the majesty of Him who is able to exact vengeance alike for contempt
for Himself and for sufferings and wrongs inflicted on His servants.

1 These words are in the treatise To Demeirtanus [chap. xvii]. Elsewhere (Letters, I. 1) the same
author says: Our opponent ‘ understood that the soldiers of Christ are watchful, that they are sober
and stand armed for battle, that they cannot be conquered, that they can die ; and for this very reason.
they are unconquerable, because they do not fear to die, and they do not fight against those who attack
them, since it is not permitted to them, although innocent, to slay one who is guilty, but they freely
give both their lives and their blood.’

I Peter, 1v.
I2-16.

[4 pology,
XXXVI11.]

To Deme-
EYtANUS
[xvii].

V (xx
Q-I0].

On Joshua,
VI, qu. x

[On Hepia-

teuch, VI.
x]

Letters,
clxvi [cv.
7]

[On
Psalms,
cxxiv. 8.]

City of
God,
XXIT
[vi. r].

[On
John,
XVil1. I0.]

154 On the Law of War and Peace

And so, when we are suffering outrages unspeakable, we do not resist,
even with a word; but we leave vengeance to God.’

This is precisely what Augustine had in mind, when he said:
‘In such circumstances let the just man above all reflect, that only
he for whom it is right to wage war should commence war ; for this
is not right for all men.’ ‘ Whenever the emperors ’, says Augustine
in another passage, ‘hold a mistaken view, in order to protect their
delusion against the truth they establish Jaws through the enforcement
of which the upright are tested and receive the crown.’ In still
another passage he writes: ‘ Peoples should bear with rulers, and
slaves with masters, in such a way that they may sustain themselves
under temporal ills through the exercise of endurance, and hope for
blessings that abide forever.’ Elsewhere, speaking of the example of
earlier Christians, he thus characterizes it :

[Book I

And at that time the city of Christ, although it was still wandering over the earth
and was able to muster armies of so great peoples against impious persecutors, did not fight
for temporal safety, but, rather, refrained from resisting, that it might obtain eternal
safety. Christians were bound, were imprisoned, were beaten, were twisted on the rack,
were tortured with fire, were mangled, were slaughtered, and yet they multiplied. It was
not for them to fight for safety, save only to scorn the safety of this world in comparison
with salvation.

10. The words of Cyril, commenting on the passage in John
about the sword of Peter, are of the same import, and not less note-
worthy.

The Theban legion, as the Acts [of martyrdom] informs us,
consisted of six thousand six hundred and sixty-six soldiers, all of
whom were Christians. When the emperor Maximian, being in the
neighbourhood of Martigny, tried to force his army to offer sacrifice
to false gods, this legion started to march to Agaunum [St. Maurice].
When the emperor sent a messenger thither to order them to come
and sacrifice, the soldiers of the legion refused. Maximian thereupon
ordered that every tenth man be put to death by his aids, who easily
carried out the order, since no one offered resistance.

11. ‘The ranking officer of the legion was Maurice,’ whose name
was afterwards given to the town of Agaunum. On the authority of
Eucherius, bishop of Lyons, we read that at this juncture Maurice
addressed his men as follows :

1 In regard to the honours paid to this martyr among the Swiss, see Guilleman [History of Swiizer-
land, I. xv and II. viii]. :

In an ancient account of the transfer of the relics of Saint Justin to New Corbie we read: ‘ Whence,
in accordance with the trustworthy character of the Chronicles, we conclude that he suffered in that
most cruel and unparalleled persecution, the tenth after the persecution under Nero. This was more
terrible than the preceding persecutions im that it sent to heaven an imposing host of martyrs, among
whom a notable company were the companions of Saint Maurice, and the mirror of innocence.’
vit On the transfer of the relics of Theban martyrs to Brunswick see Krantz, History of Saxony,

Xvi.

Chap. IV] War of Subjects against Supertors 155

How I did fear that some one of you—it is such an easy thing for armed men to do—
under the appearance of self-defence would try to prevent these most blessed funeral
rites! For my part, in order to forbid such an act I was already on the point of following
the example of our Christ, who with a command uttered by his own voice put back into
the sheath the sword that had been drawn out by the Apostle. Thus he teaches us
that the courage which comes from trust in Christ is stronger than all arms, in order
that no one may with mortal hands try to stay a mortal work; nay rather, that each may
complete the work begun, through unfaltering loyalty to his faith.

After the decimation, the emperor gave the same order to the
survivors as before. ‘They all replied :

Caesar, as soldiers we belong to you, and we took up arms in order to defend the
Roman state. We have never deserted in the presence of war, nor evaded the require-
ments of military service, nor incurred the disgrace of punishment for cowardice. We
should always be obedient to your orders also, excepting that, as instructed in the rules
of the Christian life, we must avoid the worship of demons and their altars always polluted
with blood, We have learned that you are determined either to defile us Christians with
sacrilegious acts, or to cow us by decimation. You have no need to spend longer time
searching us out as if we were concealing ourselves: know that we are all Christians.
You will have the bodies of us allin your power ; over our souls, which look only to their
Master, Christ, you will have no power.

12, Then Exsuperius, standard-bearer of the legion, it is said,
addressed it thus :

Most excellent fellow-soldiers, you see that I carry standards of the wars of this world.
But not to such arms do I summon you, not for such wars do I seek to arouse your spirits
and courage. Itis yours to choose a different kind of battle. Not through the use of these
swords can you press forward to the kingdom of heaven.

Then he bade carry this message to the emperor: ‘ Despair,
which is most brave in perils, Emperor, has not armed us against you
Look, we are holding [g0] our weapons, and shall resist not,' because
we prefer to die rather than conquer, and we are more eager to perish
in innocency than to live in guilt.” Afterward he said: ‘We are
throwing away our weapons. Your followers will find our right hands
weaponless, but our hearts armed with the catholic faith.’

13. Thereupon a butchery of the unresisting men followed.
In his account of it Eucherius uses these words: ‘The greatness of
the number did not protect these righteous men from punishment,
though generally when a great number is involved in an infraction
of law punishment is not enforced.’ In an ancient Martyrology the
story is thus told :

And so they were cut down indiscriminately with swords, not uttering a cry of
protest ; they even laid aside their weapons and offered their throats or bared bodies

1 Similar are the words of the Alexandrian Jews addressed to Flaccus [rather, addressed by
Jews of Judaea to Petronius; Philo, On the Embassy to Gatus, chap. xxxii]: ‘ Unarmed we are, as
you see, and yet some bring charges against us as if we were public enemies. Even those members
which nature gave to us for self-defence we have put behind us, where they can do nothing ; we offer
our bodies unprotected and ready to suffer the attack of those who shall wish to kill us.’

t Peter, i.

21.
Matthew,
X 39.
Luke, x11
33 [xvu.

33].

156 On the Law of War and Peace [Book I

to their slayers. They were not stirred by the greatness of their number or by the
movement of their weapons, to defend with steel the justice of their cause. They re-
membered only this, that they were confessing Him who was led to death without uttering
a cry of protest ; as a lamb he opened not his mouth. They, also, as a flock of sheep of
the Lord suffered themselves to be torn in pieces as by wolves rushing upon them.

14. Valens? impiously and cruelly raged against those who, in
accordance with the Holy Scriptures and the tradition of the fathers,
professed the ‘homoousian’ doctrine. Although the number of be-
lievers was very great, they never defended themselves with arms.

15. Surely when long-suffering is enjoined upon us, the example
of Christ, we see, is often brought forward for our imitation, as we
just now heard in the case of the Theban soldiers; and His long-
suffering was prolonged even until death. He who thus loses his life
is declared by Christ truly to have gained it.

We said that resistance cannot rightly be made to those who
hold the sovereign power. There are certain points which we now
ought to bring to the reader’s attention, in order that he may not
consider those guilty of disobeying this law who in reality are not

guilty.

VIII.—Thaz the right to make war may be conceded against him who has
the chief authority among a free people

First, then, if rulers responsible to the people, whether such
power was conferred at the beginning or under a later arrangement,
as at Sparta 2—if such rulers transgress against the laws and the state,
not only can they be resisted by force, but, in case of necessity, they
can be punished with death. An example is the case of Pausanias,
king of the Lacedaemonians. And since the earliest kingships of
Italy were of this character, it is not surprising that, after narrating
the exceedingly dreadful crimes of Mezentius, Virgil adds :

Then all Etruria in just anger rose;
The punishment of death forthwith demand
They for their king.

1 See the excerpts from John of Antioch, published from the manuscript of Nicholas Peiresc,
a man worthy of everlasting memory.

@ Plutarch, Lysander [xxx=p. 450]: ‘The Spartans summoned their king to trial for his life, but
he evaded it and fled to Tegea.’

The same author, Sulla [Comparison of Lysander and Sulla, ti= 476 Cc]: ‘ The Spartans took away
the kingship from some of their kings, on the ground that they were not fitted to be kings, but were
insignificant and of no account.’

In regard to Agis who was condemned unjustly, but nevertheless condemned, see the same Plutarch
[Agis, xix= 803 D-F].

The Mosynoecians punished their king by starvation ; Mela, Book IT [I. xix].

8 And in respect to those who were rising against Mezentius the Etruscan soothsayer said [Virgil,
Aeneid, VITI. 500 f.] :

Whom against the foe
Just resentment urges.

Chap. IV] War of Subjects against Supertors 157

IX.—T haz the right to make war may be conceded against a king who
has abdicated the sovereign power

In the second place, if a king, or any other person, has renounced
his governmental authority, or manifestly has abandoned it, after that
time proceedings of every kin are permissible against him as against
a private person. But he is by no means to be considered as having
renounced a thing who is merely too neglectful of it.

X.—T hat the right to make war may be conceded against a king who
alienates his kingdom, but only so far as to prevent the transfer

In the third place, Barclay holds the opinion that if a king
alienates his kingdom, or places it in subjection to another, the
kingdom is no longer his.

I do not goso far. For an act of this character, if the kingship is

conferred by election or by a law of succession, is null and void, and
acts which are null and void do not have any effect in law. Nearer
the truth, in my opinion, is the view of the jurists in regard to a
usufructuary, to whose position, we have said, that of such a king is
analogous ; by alienating his right to a third person the usufructuary
effects nothing. And the statement that the usufruct reverts to the
owner of the property must be construed in accordance with the
period fixed by law.
' Tf, nevertheless, a king actually does undertake to alienate his
kingdom, or to place it in subjection, I have no doubt that in this case
he can be resisted. For the sovereign power, as we have said, is one
thing, the manner of holding it is another; and a people can oppose
a change in the manner of holding the sovereign power, for the
reason that this is not comprised in the sovereign power itself. With
this you may not ineptly compare a remark of Seneca, in respect to
a case by no means dissimilar: [91] ‘And if aman is bound to render
obedience in all respects to his father, he is not bound to be obedient
to a command through which the father ceases to be a father.’

XI.—T hat the right to make war may be conceded against a king who
openly shows himself the enemy of the whole people

In the fourth place, says the same Barclay, the kingdom is
forfeited if a king sets out with a truly hostile intent to destroy a whole
people.?

1 For a like reason Gracchus ingeniously maintained that he who is tribune of the people ceased
by nght to be such ; his words are worth reading, in Plutarch [Tiberius Gracchus, xv= p. 831 D).

John Major, on the fourth book of the Sentences [of Peter Lombard], says that a people cannot
[97} deprive itself of the power of deposing the prince im the event that he shows a disposition to
destroy it. The principle is readily developed from what is said here.

Book IV.
XVI.

Instit, TI.
iv, § 3.

Digest,
XXITI,.
lii. 66,

Controver-
sies, II. ix
fix. 20].

158 On the Law of War and Peace [Book I

This I grant, for the will to govern and the will to destroy cannot
coexist in the same person. The king, then, who acknowledges that
he is an enemy of the whole people, by that very fact renounces his
kingdom. This, it is evident, can hardly occur in the case of a king
possessed of his right mind, and ruling over a single people. Of course,
if a king rules over several peoples, it can happen that he may wish to
have one people destroyed for the sake of another, in order that he may
colonize the territory thus made vacant.

XII.—T hat the right to make war may be conceded against a king who
has lost his kingdom 1m consequence of a commissory law

Fifthly, if a kingdom be granted under the condition that upon
the commission of felony against the overlord, or the violation of
a clause inserted in the grant of power, that if the king do thus and
so? the subjects are released from all duty of obedience to him, in
such a case also the king reverts to the position of a private person.

XIII.—That the right to make war may be conceded against a king who,
possessing only a part of the sovereign power, seeks to possess himself
of the part that does not belong to him

Sixthly, in case the sovereign power is held in part by the king,
in part by the people or senate,” force can lawfully be used against the
king if he attempts to usurp that part of the sovereign power which
does not belong to him, for the reason that this authority does not
extend so far.

In my opinion this principle holds, even though it has already
been said that the power to make war should be reserved to the
king. For this, it must be understood, refers to external war. For
the rest, whoever possesses a part of the sovereign power must possess
also the right to defend his part; in case such a defence is resorted
to, the king may even lose his part of the sovereign power by right
of war. ;

XIV.—That the right to make war 1s conceded against a king im case
liberty to offer resistance has in certain cases been reserved

Seventhly, if in the conferring of authority it has been stated
that in a particular case the king can be resisted, even though such

1 For the kingdom of Arragon see Mariana [History of Spain], Book VIII.

2 An example you find in the Genoese republic, Bizarri [History of Genoa), Book XVIII [p. 414]; in
Bohemia in the time of Wenceslaus [Dubraw], Htstory, Book X. Add Azor, Moral Institutes, Book X,
chap. viii, and Lambert von Aschaffenburg, in regard to Henry IV.

3 See the examples in De Thou's History, Book CXXXI, in the account of the year 1604, and in
Book CXXXTII, in the account of the year 1605, both in relation to Hungary ; in Meyer [Annals of

Chap. IV] War of Subjects against Superiors 159

an agreement does not involve the retention of a part of the authority,
some natural freedom of action, at any rate, has been reserved and
exempted from the exercise of royal power. For he who alienates
his own right can by agreement limit the right transferred.

XV.—How far obedience should be rendered to a usurper of sovereign
power

1. We have spoken of him who possesses, or has possessed, the
tight of governing. It remains to speak of the usurper of power,
not after he has acquired a right through long possession or contract,
but while the basis of possession remains unlawful. Now while such
a usurper is in possession, the acts of government which he performs
may have a binding force, arising not from a right possessed by him,
for no such right exists, but from the fact that the one to whom the
sovereignty actually belongs, whether people, or king, or senate,
would prefer that measures promulgated by him should meanwhile
have the force of law, in order to avoid the utter confusion which
would result from the subversion of laws and suppression of the
courts.

Cicero disapproved of the laws of Sulla as harsh toward the
children of the proscribed, whom they did not permit to become
candidates for public office. Nevertheless he thought that it was
necessary to live up to them, asserting, as Quintilian informs us,
that the welfare of the state was so bound up with these laws that if
they should be done away with the state itself could not survive. Of
the acts of the same Sulla, Florus says: ‘ Lepidus was making ready
to annul the acts of this great man; and there was good reason for
such procedure, provided only the result could be accomplished
without bringing disaster upon the state.’ A little further on he
adds: ‘ The interest of the state, sick, as it were, and suffering from
injuries, required that it have rest in any way possible, in order
that the wounds might not be torn open by the application of
remedies.’

2. In the case of measures promulgated by the usurper which
are not so essential, and which have as their purpose to establish him
in his unlawful possession, obedience is not to be rendered unless dis-
obedience would involve grave danger. But whether it is permissible
to use violence in overthrowing such a usurper of authority, or even
to put him to death, is the question before us.

Belgium] under the year 1339, on the subject of Brabant and Flanders ; and under the year 1468, in
relation to the treaty between the king of France and Charles of Burgundy. .

Add, in regard to Poland, what Chytraeus has, History of Saxony, Book XXIV; and in relation
to Hungary, Bonfini, [History of Hungary,] Decade IV, Book IX.

1569°27 M

Vict., De
Poiest.
Civ.,

no. 233
Suarez, De
Legibus,
III. x. 9.
Lessius,
De Lust. et
Ture, II.
Xxix,

dub. § [9],
no. 73.

{Insit-
tutes of
Oraitory,]
XI.1. [85].

[III.
XX11i.]

Apology
[iz].

Code, III,

XXV1I1. 2,

[=p 570
D.]

160 On the Law of War and Peace [Book I

XVI.—T hat resistance by force may be used against a usurper by virtue
of a right of war still continuing

In the first place, if the usurper has seized the governmental
power by means of a war that is unlawful and not in accordance with
the law of nations, and no agreement has been entered into afterward,
and no [92] promise has been given to him, but possession is main-
tained by force alone, it would seem that the right to wage war against
him still remains, and whatever is permissible against any enemy is
permissible against him. Just as an enemy, so also a usurper, under
such conditions, can lawfully be put to death by any one, even by an
individual. ‘Against men guilty of treason and against public
enemies ’, says Tertullian, ‘ every man is a soldier.’

Thus also, in the interest of general tranquillity, the right of
enforcing public punishment against deserters from military service
is granted to all.

XVII.—T hat resistance by force may be used against a usurper by virtue
of a pre-extsting law

With Plutarch, who expresses the opinion in his book On Fate
dedicated to Piso, I hold that the same conclusion must be accepted
in the case that prior to the usurpation there was in existence a public
law which conferred upon any man the right to kill a person who
dared to do this or that which falls within its purview; who, for
example, though a private individual, should have surrounded himself
with a bodyguard and should have seized the citadel; who had put
to death a citizen uncondemned, or without lawful judgement; or
who had chosen public officials without regular elections.

Many such laws were in force in the Greek states, and in conse-
quence the killing of tyrants of the sort referred to must have been
thought justifiable. Such, at Athens, was the law of Solon, which
was renewed after the return from the Piraeus; this was directed
against those who should have done away with the popular form of
government, or who, after it had been done away with, should hold
office. Of similar character was the Valerian Law? at Rome, against
any who should assume the duties of a public official without the
authorization of the people. Such, again, was the consular law passed
after the absolute rule of the Decemvirs, forbidding the appointment
of any magistrate whose decisions should be without appeal; the man

1 Plutarch, Publicola [xii= 103 B]: ‘Giving permission without trial to kill him who purposed
‘to tule as a tyrant.’ Later he adds [Comparison of Solon and Publicola,ii= 110 c]: ‘If any one should
attempt to rule as a tyrant, Solon appointed a penalty only after conviction, but Publicola gave
permission to kill him even before a trial.’

Chap. IV] War of Subjects against Superiors 16r

responsible for such an appointment might be lawfully and rightfully
slain.

XVIII.—That resistance by force may be used against a usurper by
virtue of a mandate of one possessing sovereign power

It will likewise be permissible to put a usurper to death in case
the deed is explicitly authorized by the true possessor of sovereign
power, whether king, or senate, or people.

To these we should add also guardians of the children of kings,
such as Jehoiada was in the case of Joash, when he forced Athaliah
from the kingship.

XIX.—Why resistance to a usurper should be limited to the cases
mentioned

1. Outside of the cases which have been considered I cannot
concede that it is permissible for a private citizen either to put down
by force, or to kill, a usurper of sovereign power. For it may happen
that he who holds the sovereign power by right would prefer that the
usurper should be left in possession rather than that the way should
be opened for dangerous and bloody conflicts, such as generally take
place when those who have a strong following among the people, or
friends outside the country, are treated with violence or put to death.
At any rate, it is not certain that the king or the people would wish
that matters should be brought to such extremities, and without their
known approval the use of violence cannot be lawful.

Favonius used to say, ‘ Civil war is a worse evil than unlawful
government.’ ‘To me’, Cicero declared, ‘peace on any terms
between citizens seems more advantageous than civil war.’ Titus
Quintius affirmed that it was better that the tyrant Nabis* be left
in power in Sparta, for the reason that his expulsion could be accom-
plished only with utter ruin of the state, which through the attempt
to retain its liberty would be brought to destruction. Of similar
purport is the thought of Aristophanes, that a lion ought not to be
reared in a city; but if a lion has been so reared, the people must
endure it.

1 This is explained by Plutarch in the life of Titus Quintius [7. Quintus Flamtninus, xiii= 376 E]
as follows: ‘ When he saw that the tyrant could not be destroyed without serious hurt to the other

Spartans.’
P Nor foreign to this subject is what Plutarch relates in his Lycurgus [xx= 52 ], that a certain

Spartan, having read the lines

As tyranny they sought through Mars to quench,

Mars, merciless, before Selinus’ walls

Swept them away,
made answer: ‘The men met a just death; for they ought to have waited till tyranny should burn
itself out.’

2 Chron.,
xxuii,

[Plutarch,
Brutus,
xii
989 A ]
[Philip-
pics, HH.
XV. 37.]
Livy,
XXXIV
[xlx].
[Frogs,
1431 f.]

[Histories,
IV, Ixvu.]

Letters to
Attscus,
IX, iv.

(Lucan, I.
351.]

Appian,
Civil
Wars,

I [vii. 57].

Letters, I
lix. x8].

Jugurthine
War [in.
3].

{xii=
p. 989 A.]

On Duties,
II. ii

(II. xxi.
102].

II. ii, qu.
42, art. 2.

Judges, iri.

15; Ne-
hem., ix.
27.

On the Law of War and Peace

162 [Book I

2. An exceedingly weighty question it surely is, as Tacitus says,
which is preferable, independence or peace; it is an extremely
difficult political problem, Cicero found, to determine ‘ whether,
when one’s country is oppressed by an unlawful exercise of power,
every effort should be put forth to accomplish its abolition, even
if the state should thereby be brought into extreme peril’. Yet
individuals ought not to take it upon themselves to decide a question
which involves the interest of the whole people. That is, then, an
obviously mischievous sentiment :

We are taking away the masters
From a city content to serve them.?

Thus Sulla, being asked why he was attacking his country with arms,
made answer, [93] ‘in order to deliver it from tyrants’.

3. Better advice was given by Plato in his letter to Perdiccas,
as thus expressed in Latin by Cicero: ‘ Your efforts in public affairs
should be carried only so far as shall meet the approval of your fellow
citizens; violence should not be used against either a parent or
native land.’ ‘The same thought is found also in Sallust : ‘ To govern
one’s country or one’s subjects by force, even if you possess the power
and may be correcting abuses, is nevertheless unsuitable, especially
since all sweeping changes involve slaughter, flight, and other incidents
of a hostile nature.’

Not far from this point of view is the remark of Stallius quoted
by Plutarch, in his Life of Brutus: ‘It is not fair that a man who is
prudent and wise should plunge into the midst of dangers and troubles
for the benefit of those who are without scruple and devoid of sense.’
Not inappropriately in the same connexion you may quote the state-
ment of Ambrose :

This also contributes to the increase of good reputation, if you rescue a poor man from
the hands of the mighty, and if you save from death a man who has been condemned, in
so far as such a result can be accomplished without raising a disturbance. We must
beware lest we seem to act for the sake of display rather than pity, and cause more grievous
wounds while we are trying to apply remedies to wounds of less consequence.

Thomas says that the destruction of a government even though
tyrannical is sometimes an act of sedition.

4. ‘The deed of Ehud, which he committed upon Eglon, king
of Moab, ought not to incline us to the opposite view. For the sacred
text plainly bears witness that Ehud was raised up by God Himself
as an avenger, that is to say, under a special command. And in fact
it is not clear that this king of the Moabites did not possess his right
of governing by virtue of an agreement. For in the case of other kings

+ Plutarch in Cato the Elder [xii= 342 ¥], speaking of Antiochus the Great: ‘He made it his
pretext for war to free the Greeks, who had no lack of freedom.’

Chap. IV] War of Subjects against Supertors 163

also, God caused His judgements to be executed by means of chosen
servants, as in the case of Joram by the hand of Jehu.

XX.—When the right of sovereignty is in dispute private persons ought
not to take 1t upon themselves to setile the matter

Above all, in case of a controversy the private individual ought
not to take it upon himself to pass judgement, but should accept the
fact of possession.

Thus Christ bade that tribute be paid to Caesar because the
coin bore Caesar’s image,’ that is because Caesar was in possession

of the governing power.

1 This is the most sure indication of possession ; see Bizarri, History of Genoa, Book XVIII
423].

2 Kings,
1X.

Matthew,
Xx11 20,

Digest,
XVITI.
vl. 7.
Cicero,

On Duties,
IT [v. 16],
following
Panaetius
Doctors,
On Dig.,
XLVII.

in 7.

Code,

XA. i. 5.
Rhetoric to
Alexander,
iia [11].

[98] CHAPTER V

WHO MAY LAWFULLY WAGE WAR

I.—The effictent causes of war are in part those who wage war on their
own account as principals

As in other matters, so also in acts originating in the will, there
are ordinarily three kinds of efficient causes—principal agents, auxiliary
agents, and instruments.

In war the principal efficient cause is generally the person whose
interest is at stake—in private war, the individual; in public war,
the public power, in most cases the sovereign power. Whether war
can be made by one on behalf of others who do not make war on their
own account, we shall see elsewhere. Meanwhile we shall hold to
this principle, that by nature every one is the defender of his own
rights ; that is the reason why hands were given to us.

Il.—The efficient causes of war are in part those who wage war on
another’s account, as auxiliary agents

1. But to render service to another, so far as we can, is not only
permissible, it is also honourable. Those who have written on the
subject of duties rightly say that nothing is more useful to a man than
another man. ‘There are, however, various ties which bind men
together and summon them to mutual aid. Thus those who are
related by kinship unite to assist one another. Neighbours, too, and
those who belong to the same state, call on one another for help ;
hence the cry ‘ Hither, Romans’ and the word ‘ to call the Romans’
(quiritart). Aristotle said that every man ought to take up arms on
his own behalf, if he had suffered wrong, or on behalf of his kindred
or benefactors, or of his associates, in case wrong should have been
suffered by them. It was the teaching of Solon? that those common-
wealths will be the most fortunate in which each citizen views the
wrongs of others as his own.

2. But in default of all other ties, the common bond of human

1 The words are quoted by Plutarch [Solon, xviii= 88D]: ‘ Of cities that is the best to live in, in
which those who have not suffered wrong, not less than those who have, put forth effort to punish them
who attempt to do wrong.’

Pertinent are the words of Plautus, Rudens [III. ii. 12= line 626]:

Wring the neck of injury
Before she reaches you.

164

Chap. V]

nature is sufficiently strong. Devoid of interest to man is nothing
that pertains to man. In the words of Menander?:

Who may lawfully wage War 165

If we our strength should all together join,
Viewing each other’s welfare as our own,

If we should each exact full punishment
From evil-doers for the wrongs they do,
The shameless violence of wicked men
Against the innocent would not prevail ;
Guarded on every hand, and forced to pay
The penalties which their misdeeds deserve,
They soon would cease to be, or few become,

Similar is this saying of Democritus?: ‘’Those who are oppressed
by wrong-doing must be defended to the limit of our strength, and
not neglected; for that is a work of justice and goodness.” The
thought is thus developed by Lactantius :

God, who did not impart wisdom to the other animals, made them more safe from
attack and from danger by natural means of defence. But because He made man naked
and weak, to the end that He might the rather equip him with wisdom, in addition to
other gifts He gave to man this feeling of mutual regard, that man should defend, should
love, should protect man, and should both receive and furnish help against all dangers.

III.—The efficient causes of war are in part those who wage war as
instruments, as servants and subjects

When we use the word ‘ instruments’ in this connexion we do
not mean ‘ weapons’ and similar things ; we mean persons whose acts
of will are dependent on the will of another.

An instrument, as we use the term here, is a son in relation to his
father, viewed as by nature a part, so to speak, of the father; such an
instrument also is a slave in relation to his master, a part, as it were,
in a legal sense. For just as a part is a part of the whole not only in
the same relation that the whole sustains to the part, but also the very
thing which constitutes a part pertains to the whole, so possession
becomes something [99] of the possessor. Says Democritus,’ ‘Use
slaves just as parts of the body, one for one purpose, another for
another.’ What a slave is in the household, a subject is in the state,
an instrument, accordingly, of the ruler.

IV.— By the law of nature no one is enjoined from waging war

There is no doubt that by nature all subjects may be used for
purposes of war; but certain classes are exempted by special enact-

1 [In Stobaeus, xlii1. 30.
2 [In Stobaeus, xlvi. 43.
3 [In Stobaeus, Ixii. 45.]

Bartolus,
On Dig.,
I. i. 3, 7
and 8;
Jason,
same, 29.
Castren ,
On Dig.,
I.1. 1, § 4.
Bartolus,
On Dig.,
XLIX.
XV. 24, 9.

Innocent,
On De-
cretals, IT.
KX1V. 13,
and II
Xl. 12,
no. 16

Panormi-
tanus,
no. x8.

Sylvester,
word
bellum,
qu. 8.
Divine
Instatutes ,
VI. [x. 3].

Code, XI.
xIvii1. 22.
Aristotle,
On Morals
[Nic.
Ethics},
V. x.

Code, IX.
1x. 4.
Sen. I iv.

Thomas,
II ii. 40,
art. 2.
Sylvester,
word Jel-
lum, III.

166 On the Law of War and Peace [Book I

ment, as formerly slaves! at Rome, now men in holy orders? generally.
Nevertheless a special enactment of this kind, as such laws generally,
must be understood as subject to exception in cases of extreme

necessity.

Let these general statements in regard to auxiliary agents and
subjects suffice; for the special questions relating to them will be
treated in the proper connexion.

1 Servius, On the Aeneid, TX [line 544=547].

2 The Levites were in olden times exempt from military service, as Josephus remarked [Antiquities
of the Jews, III. xii. 4]. For the clerics see Nicetas of Chonae, Book V1; Capztularies of Charles
the Bald, In Sparnaco, xxxvui, in Gratian, Decretum, I. v. 5 [TI. 1. 5] and II. xxi 8. Such are the canons ;
but consuJt Anna Comnena [X. vin. 7] to see how much more strictly they were observed by the Greeks

than by the Latins.

END OF BOOK I

[100]

HUGO GROTIUS
ON

THE LAW OF WAR AND PEACE

BOOK II

CHAPTER I
THE CAUSES OF WAR: FIRST, DEFENCE OF SELF AND PROPERTY

I.—W hat causes of war may be called justifiable

1. Ler us proceed to the causes of war—I mean justifiable
causes; for there are also other causes which influence men through
regard for what is expedient and differ from those that influence
men through regard for what is right.

The two kinds of causes Polybius accurately distinguishes from
each other and from beginnings of war,! such as the [wounding of
the] stag was in the war between Aeneas and Turnus. Although the
distinction between these matters is clear, nevertheless the words
applied to them are often confused. For what we call justifiable
causes Livy, in the speech of the Rhodians, called beginnings: ‘ You
certainly are Romans? who claim that your wars are so fortunate
because they are just, and pride yourselves not so much on their
outcome, in that you gain the victory, as upon their beginnings,
because you do not undertake wars without cause.’

In the same sense also Aelian (in Book XII, chapter liii)
speaks of the beginnings of wars, and Diodorus Siculus (Book XIV),
giving an account of the war of the Lacedaemonians against the
Eleans, expresses the same idea by using the words ‘ pretexts’ and
‘ beginnings ’.®

2. These justifiable causes are the special subject of our dis-
cussion. Pertinent thereto is the famous saying of Coriolanus
quoted by Dionysius of Halicarnassus: ‘This, J think, ought to be
your first concern, that you have a cause for war which is free from
reproach and just.’ Similarly Demosthenes says: ‘As the sub-
structures of houses, the framework of ships, and similar things ought

1 [109] Virgil [Aenezd, VII. 40] calls these ‘ the beginnings of battle’ (exordia pugnae).

2 Certainly, hardly any race has remained for so long a time scrupulous in examining into the causes
of war. Thus in Suidas, under the word éuBaive, Polybius says: ‘ The Romans have striven earnestly
for this, that they be not the first to lay violent hands upon their neighbours, but that it should always
be believed that they proceeded against an enemy in order to ward off injuries.’ Dio Cassius, Excerpta
Pewescrana [Diodoms Siculus, p. 314, 316], manifests the same point of view in an excellent comparison
of the Romans with Philip of Macedon and King Antiochus; and again in the Selections on
Embassies he says: ‘The ancients thus did nothing 1n haste, to the end that they might begin their
wars justly.” And again, Excerpta Peiresciana, p. 341 [also Diodorus} the same author says: ‘ The
Romans desire earnestly that the wars which they undertake be just and that they decree nothing of
that sort without cause or rashly.’

® Procopius, Gothic War, ITI [III. xxxiv] calls these ‘just occasions’. See also below, beginning
of chap. xxii of this book.

1569°27 169

N 2

Historves,
Til (vi f.].

[Virgil,
Aeneid,
VII 483.)

XVL
(xxi. 5].

(XIV
xvii].

VIII
[v1i1].

Olynthiacs,
Il. x
[=20~r].

XII (XLI.
XxXxil].

On the
Common-
wealih, III
(xx111. 35].

[On Ends,
IIT, xxu.
75 |
Letters,
xcevi [xcv.
30].

(II. 11 f.]

[VII
vill. 19.]
[xX 21]

Arrian
[Anabasis
of Alexan-
der], VII
fi].

[VIII

ii. 15 ]

On the City
of God, IV.
lV.

On the
False Relt-
gion, I [D¢-
vine Insti-
tutes, I.
Xvi11].

On the City
of God, IV
[XIX. vir].

On the Law of War and Peace [Book II

170

to be most firm, so, in the case of actions, the causes and fundamental
reasons! ought to be in accord with justice and truth.’ Equally
pertinent is the statement of Dio Cassius: [101] ‘We must give
the fullest consideration to justice. With justice on our side, military
prowess warrants good hope; without it, we have nothing sure, even
if the first successes equal our desires.’ Cicero also says, ‘ Those wars
are unjust which have been undertaken without cause’; and in
another passage he criticizes Crassus because Crassus had determined
to cross the Euphrates without any cause? for war.

3. What has been said is no less true of public than of private
wars. Hence the complaint of Seneca:

We try to restrain murders and the killing of individuals. Why are wars and the
crime of slaughtering nations full of glory? Avarice and cruelty know no bounds. In
accordance with decrees of the Senate and orders of the people atrocities are committed,
and actions forbidden to private citizens are commanded in the name of the state.®

Wars that are undertaken by public authority have, it is true,
in some respects a legal effect, as do judicial decisions, which we shall
need to discuss later; but they are not on that account more free
from wrong if they are undertaken without cause. Thus Alexander,
if he commenced war on the Persians and other peoples without cause,
was deservedly called a brigand by the Scythians, according to
Curtius, as also by Seneca *; likewise by Lucan he was styled a robber,
and by the sages of India ‘a man given over to wickedness’, while a
pirate once put Alexander in the same class with himself. Similarly,
Justin tells how two kings of Thrace were deprived of their royal
power by Alexander’s father, Philip, who exemplified the deceit and
wickedness of a brigand. In this connexion belongs the saying of
Augustine: ‘If you take away justice, what are empires if not vast
robberies?’ In full accord with such expressions is the statement
of Lactantius: ‘Ensnared by the appearance of empty glory, men
give to their crimes the name of virtue.’

4. No other just cause for undertaking war can there be except-
ing injury received. ‘ Unfairness of the opposing side occasions just
wars,’ said the same Augustine, using ‘ unfairness’ when he meant

1 So also Julian said ‘excuse’ for war in his oration On the Pratses of Constantius [ii = p. 95 B

an.].

? Appian [Czu1 Wars, II. ui. 18] says that the same Crassus was forbidden by the tribunes ‘ to make
war on the Parthians, who had been found guilty of no wrong-doing’. And Plutarch [Crassus, xvi=
552 E] of the same man: ‘A large party arose which was displeased that any one should go to make
war on men who were not only not guilty of any injustice but were protected by treaty relations.’

5 Also Seneca, On Anger, II. vui [II. ix. 3]: ‘Some actions are considered as glorious which, so
long as they can be restrained, are held to be crimes.’ See other passages from Seneca and Cyprian
cited below, III. iv. 5, near the end.

‘ The citation is from On Benefits, I. xiii [I. xni. 3]. Justin Martyr in his Second Apology [I. xii]
well says: ‘ Rulers who place their own opinions above the truth are just as powerful as robbers in
a desert.” Philo [On the Ten Commandments, xxvi]: ‘Those who commit great thefts, who under
the honourable name of government cover up actions that in reality are nothing else than robberies.’

Chap.I] Lhe Causes of War: Defence of Self and Property 171

‘injury ’, as if he had confused the Greek words for these two concepts.
In the formula used by the Roman fetial are the words, ‘I call
you to witness that that people is unjust and does not do what is right
in making restitution.’

Il.—Fustifiable causes include defence, the obtaining of that which
belongs to us or 15 our due, and the inflicting of punishment

1. It is evident that the sources from which wars arise are as
numerous as those from which lawsuits spring; for where judicial
settlement fails, war begins. Actions, furthermore, lie either for
wrongs not yet committed, or for wrongs already done.

An action lies for a wrong not yet committed in cases where
a guarantee is sought against a threatened wrong, or security against
an anticipated injury, or an interdict of a different sort against the
use of violence. An action for a wrong committed lies where a
reparation for injury, or the punishment of the wrong-doer, is sought.

These two sources of legal obligations were rightly distinguished
by Plato,’ in the ninth book of the Laws. Reparation is concerned
either with what is or has been ours, giving rise to actions involving
property interests, and certain personal actions; or with what 1s
owed to us by contract, or in consequence of a criminal act; or by
operation of law, a category to which must be referred also cases
arising from implied contracts and constructive crimes. Under these
subdivisions the rest of the personal actions fall. An act deserving
punishment opens the way to accusation and public trial.

z. Authorities generally assign to wars three justifiable causes,
defence, recovery of property, and punishment. All three you may
find in Camillus’s declaration with reference to the Gauls: ‘ All
things which it is right to defend, to recover, and to avenge.’ In
this enumeration the obtaining of what is owed to us was omitted,
unless the word ‘ recover’ is used rather freely. But this was not
omitted by Plato when he said that wars are waged not only in case
one is attacked, or despoiled of his possessions, but also if one has been
deceived. In harmony with this is a sentence of Seneca: ‘ Perfectly
fair, and in complete accord with the law of nations, is the maxim,
“Pay what you owe.” The thought was expressed also in the formula
of the fetial: ‘ Things which théy have not given, nor paid, nor
done, which things ought to have been given, to have been done,

1 [rro] [Plato, Laws, IX. vi=862B.] Also before him Homer (Odyssey, XXII. 61 ff.]; for when
the suitors of Penelope wished to pay a fine Ulysses said: ‘ Not if you should restore all my inherited
wealth, which now you hold, and add much more besides, would I refrain from dyeing my hands in
your blood, until you pay the penalty for all your sins as suitors.’ Cassiodorus, Letters, V. xxxv, Says:
‘When we have not insisted on revenge, we should by no means experience loss.’ See also below at
the beginnings of chapters xvi and xx of this book.

Sylv.,
word bel-
lum, I, no.
2.

(Livy,

I. =xx1i.
10.]

Bal., On
Code, III.
XXXIV. 2,
no. 7

Wilh. Mat.,
De Bello
Tusto et Li-
certo [be-
ginning].
Livy, V
[xlix. 3].

Alcibiades
fi. 5].

On Bene-
fits, ITI.
xiv.

Livy, I
[xxx1l.
rr].

[Oration of
Macer,
XV11.]

On Joshua,
VI, qu.

(II. 18.]

Livy, V
[XXxXV 5].

XII [VII.
V1 Ir]

Sylv,,word
bellum,
I, no. 3,
and II.

Bart., On
Dig.1 1 3.
Bal., On
Code, VIII.
iv f.

172 On the Law of War and Peace [Book It

to have been paid’; in the words of Sallust, in his Hzstortes: ‘I
demand restitution in accordance with the law of nations.’

When, however, Augustine said, ‘ Those wars are wont to be
defined as just which avenge wrongs,’* he used the word ‘ avenge’
in a rather general way [102] to mean ‘ exact requital for’. This
is shown by what follows, for therein we find not a logical subdivision
but a citation of examples: ‘ War, then, ought to be undertaken
against that people and state which has either neglected to exact
punishment for wrongs done by its members, or to return what has
been wrongfully taken away.’

3. It was in accordance with this natural principle that a king
of India, according to Diodorus, brought against Semiramis the
charge ‘that she commenced war without having suffered any
wrong’. So also the Romans demanded of the Senones that they
should not attack a people at whose hands they had received no
injury. Aristotle in his Analytics, Book II, chapter 11, says:
‘Tt is customary to make war on those who were the first to
inflict injury.’ Of the Abians, who were Scythians, Curtius says:
‘It was agreed that of barbarians they were the most just; they
refrained from war unless attacked.’ ?

The first cause of a justifiable war, then, is an injury not yet
inflicted, which menaces either person or property.

IIl.—Wear for the defence of life 1s permissible

We said above that if an attack by violence is made on one’s
person, endangering life, and no other way of escape is open, under
such circumstances war is permissible, even though it involve the
slaying of the assailant. As a consequence of the general acceptance
of this principle we showed that in some cases a private war may be
lawful.

This right of self-defence, it should be observed, has its origin
directly, and chiefly, in the fact that nature commits to each his own
protection, not in the injustice or crime of the aggressor. Wherefore,
even if the assailant be blameless, as for instance a soldier acting in
good faith, or one who mistakes me for some one else, or one who is
rendered irresponsible by madness or by sleeplessness—this, we read,

¥

2 Servius, On the Aene:d, IX [ITX. 52], says about the Romans: ‘ When they wished to declare
war, the herald, that is the chief of the fetials, would proceed to the boundaries of the enemy’s
country; and after repeating certain customary formulas he would say, in a loud voice, that he
declared war on account of certain causes, either because they had injured Roman allies, or because
they did not restore stolen cattle or deliver up guilty parties.’

4 Plutarch m his Nicias [xxv = 539 E] says that “Hercules subdued all the world while defending
himself from attack’. Josephus, Anizqutzes of the Jews, XVIT [XVII. ix. 6]: ‘Those who proceed
to do violence to men who have no thought of making a hostile attack force these against their will
to resort to arms in self-defence.’

Chap.1] Ihe Causes of War: Defence of Self and Property 173

has actually happened to some—the right of self-defence is not
thereby taken away; it is enough that I am not under obligation to
suffer what such an assailant attempts, any more than I should be if
attacked by an animal belonging to another.

IV.—Wear in defence of life 1s permissible only against an actual
assatlant

1. It is a disputed question whether innocent persons can be
cut down or trampled upon when by getting in the way they hinder
the defence or flight by which alone death can be averted. That
this is permissible, is maintained even by some theologians. And
certainly, if we look to nature alone, in nature there is much less regard
for society than concern for the preservation of the individual. But
the law of love, especially as set forth in the Gospel, which puts
consideration for others on a level with consideration for ourselves,
clearly does not permit the injuring of the innocent even under such
conditions.

2. It has been well said by Thomas—if he is rightly under-
stood—that if a man in true self-defence kills his assailant the
slaying is not intentional. The reason is not that, if no other means
of safety is at hand, it is not sometimes permissible to do with set
purpose that which will cause the death of the assailant ; it is, rather,
that in such a case the inflicting of death is not the primary intent,
as it is in the case of procedure by process of law, but the only resource
available at the time. Even under such circumstances the person
who is attacked ought to prefer to do anything possible to frighten
away or weaken the assailant, rather than cause his death.

V.—War in defence of life 1s permissible only when the danger ts
immediate and certain, not when it 1s merely assumed

1. The danger, again, must be immediate and imminent in
point of time. I admit, to be sure, that if the assailant seizes weapons
in such a way that his intent to kill is manifest the crime can be
forestalled ; for in morals as in material things a point is not to be
found which does not have a certain breadth. But those who accept
fear of any sort as justifying anticipatory slaying are themselves
greatly deceived, and deceive others. Cicero said truly, in his first
book On Duties, that most wrongs have their origin in fear, since he

1 See an excellent use of this distinction in Agathias, IV [IV. i, ii]. In the eighth book of
Thucydides Wall. I] Phrynichus says that “since he was put in peril of his life by them, he would be
quite excusable in doing both this and anything else rather than to allow himself to be destroyed by
his bitterest foes’.

Batez, On
II. il, ro,
art 10,
dub ult.
Soto, Dis-
putat , IV.
V, art. ro.
Valent.,On
IT, ii, disp.
5, qu. Io,
par. 7.

Card., I,
qu 33-
Petr. Nav.,
IT. ii, no.
147.
Cajetan,
On IT, it,
qu. 2, art.
67.

II. 1i, qu.
64, art. I.

(I. vii. 24.]

[Anab.,
If. v. 5]

[Attic
Nights,
VI.1i1 26
and 31 ]

Quoted by
Quintilian,
V, ‘On Re-
futation’
(Institutes
of Oratory,
V. xi.
2r].

[Frag. 459,
in Gell.,
Vi. 28 ]

I [xliz].

ITI
(Ixxxu].

IIT
{Ixv, rx].

[Instetutes
of Oratory,
VITI.

v. 15]
LV [xvi].

174 On the Law of War and Peace

who plans to do wrong to another fears that, if he does not accom-
plish his purpose, he may himself suffer harm. In Xenophon, Clearchus
says: [103] ‘I have known men who, becoming afraid of one
another, in consequence of calumny or suspicion, and purposing to
inflict injury before receiving injury, have done the most dreadful
wrongs to those who had had no such intention, and had not even
thought of such a thing.’ Cato, in his speech for the Rhodians, asks :
‘ Shall we be the first to do what we say they wished todo?’ There
is a notable expression of the thought in Gellius :

[Book II

When a gladiator is equipped for fighting, the alternatives offered by combat are
these, either to kill, if he shall have made the first decisive stroke, or to fall, if he shall
have failed. But the life of men generally is not hedged about by a necessity so unfair
and so relentless that you are obliged to strike the first blow, and may suffer if you shall
have failed to be first to strike.

In another passage Cicero says, not less rightly: ‘ Who has ever
established this principle, or to whom without the gravest danger
to all men can it be granted, that he shall have the right to kill a man
by whom he says he fears that he himself later may be killed?’ In
this connexion we may quote the well-known verses of Euripides :

If, as you say, your husband wished to take
Your life, wishing were then your part as well,
Until the time should come.

A parallel is found in Thucydides: ‘ The future is still uncertain,
and no one, influenced by that thought, should arouse enmities
which are not future but certain.’ ‘Thucydides, further, in the
passage in which he sets forth the evils arising from the manifestations
of party-spirit in the Greek states, reckons as a fault also this: ‘The
man was praised who had himself been first to commit the evil deed
which another was going to commit.’ ‘ In the effort to guard against
fear,’ says Livy, ‘men cause themselves to be feared,’ and we inflict
upon others the injury which has been warded off from ourselves, as
if it were necessary either to do or to suffer wrong.’ To such men the
query of Vibius Crispus, which Quintilian praised, is applicable :
‘Who has permitted you to harbour so great fear?’ According to
Dio, Livia said that they do not escape disgrace who are first to do
the deed that they fear.

z. Further, if a man is not planning an immediate attack, but
it has been ascertained that he has formed a plot, or is preparing an
ambuscade, or that he is putting poison in our way, or that he is
making ready a false accusation and false evidence, and is corrupting

1 As Caesar, when he was seizing upon the government, kept saying that he was led to that course
by fear of his enemies. There is a fine passage in Appian, Civil Wars, IT [I]. xxi. 150].

Chap.1] Lhe Causes of War: Defence of Self and Property 175

the judicial procedure, I maintain that he cannot lawfully be Killed,
either if the danger can in any other way be avoided, or if it is not
altogether certain that the danger cannot be otherwise avoided.
Generally, in fact, the delay that will intervene affords opportunity
to apply many remedies, to take advantage of many accidental
occurrences ; as the proverb runs, ‘’There’s many a slip *twixt cup
and lip.” ‘There are, it is true, theologians and jurists who would
extend their indulgence somewhat further; but the opinion stated,
which is better and safer, does not lack the support of authorities.

VI.—Defence of limb against injury 1s also justifiable

What shall we say about the danger of injury to a part of the body?

Truly the loss of a limb, especially if it is one of the principal
limbs, is an extremely serious matter, and in a sense comparable to
loss of life; further, we cannot be sure that injury to a part of the
body will not bring danger of death. If, therefore, the injury cannot
be avoided in any other way, I should think that he who is on the
point of inflicting such injury can be rightly slain.

VII. —The defence of chastity 1s in the highest degree justifiable

That the same right to kill should be conceded also in defence
of chastity is hardly open to question; not only the general opinion
of.men, but also the divine law puts chastity on a plane with life.
Thus Paul the jurist said that virtue could properly be defended by
such an act.

We find an example in Cicero? and Quintilian; the case was
that of a tribune of Marius, who was killed by a soldier. In the
histories there are also some examples [104] of men who were slain
by women. The killing of a man under such circumstances is called
by Chariclea, in Heliodorus, ‘a justifiable defence for warding off
a violation of chastity.’

1 Seneca in his first book On Benefits, eleventh chapter [I. xi. 4]: ‘In the next place come those
things, such as liberty, chastity, and sanity, without which we can indeed live, but in such fashion
that death is preferable.’ Paul, Sententiae, V, tit. xxui [V. xxii. 8]: ‘Whoever has killed a robber
attempting his life or any one making an assault on chastity should not be punished; for the one in
defending life, the other in defending chastity, performs a public service.’ Augustine, De Libero Arbtirzo,
I[I. v.12]: ‘ Thelaw gives the right to the traveller to kill a robber, in order that he may not be killed
by him, and to any man or woman to slay an assailant attempting rape, or even after the rape has
been committed, if this be possible.’

2 See also Plutarch, Marius [xiv =413]. Mars also is said to have been acquitted by the judgement
of the gods when he killed the one who was offering violence to his daughter. The tale is told by
Apollodorus, Library, ITI (III. xiv. 2]. Add the remarkable story in the ninth book of Gregory of Tours
[History of the Franks, IX. xvii].

1569°27 0

Banez,
[On IL. 12, ]
64, art 7,
dub 4
Baldus, On
Code, VII
XVI. L7,
and VIII.
iv I

Less , II.
ix, dub. 8.
Soto, V. 1,
art 8,
Card., On
Clem, V.
lv. I.
Covarr,
tbrd., pt 3,
§ I, no. 2.
Sylvester,
word ho-
miciaium,

Ill, qu. 4.

Sent ,V 11
(V. Xxili.
8}.

[For Mvlo,
iv 9.]
Declama-
tions, ili

{I, begin-
ning.]

Soto, [V,]
qu 1
Sylvester,
word bel-
lum, Uy,
no. §

[V. 685 ff ]

Soto, as
above.

Cont. Il-
lust , I.
xvii1 [ro],

176 On the Law of War and Peace [Book II

VIIL.—WNot to take advantage of the right of defence 1s permissible

We said above, that while it is permissible to kill him who is
making ready to kill, yet the man is more worthy of praise who prefers
to be killed rather than to lll.

This principle, however, is by some conceded in such a way
that an exception is made in the case of a person whose life is useful
to many. But I should deem it unsafe to extend this rule, which
is inconsistent with long suffering, so as to include all those whose
lives are necessary for others. And so I should think that the exception
ought to be restricted-to those whose duty it is to ward off violence
from others, such as members of an escort on a journey, who were
hired with that purpose in view, and public rulers, to whom the
verses of Lucan may be applied [translation by Ridley]:

When on thy breath so many nations hang
For life and safety, and so great a world
Calls thee 11s master, to have courted death
Proves want of heart.!

IX.—Defence is sometimes not permissible against a person useful to
the state because at variance with the law of love

1. On the other hand, it may happen that, since the life of
the assailant is useful to many, he cannot be killed without wrong.
And this is true, not only according to divine law, whether of the old
or the new dispensation—this we treated above, when we showed
that the person of a king is sacred—but also by the law of nature.
For the law of nature, in so far as it has the force of a law, holds in
view not only the dictates of expletive justice, as we have called it,
but also actions exemplifying other virtues, such as self-mastery,
bravery, and prudence, as under certain circumstances not merely
honourable, but even obligatory. And to such actions we are con-
strained by regard for others.

z. And Iam not moved to renounce this opinion by Vazquez,
when he says that a ruler who maltreats an innocent man by that
very act ceases to be a ruler. A statement either less true or more
dangerous than that, it would be hard to make. For just as owner-
ship, so the exercise of sovereign power is not lost by wrong-doing,
unless the law so prescribe. But a law in regard to the exercise of
sovereign power containing the provision that it should cease in

1 Curtius, Book X [IX. vi. 8]: ‘ But while you so eagerly expose your life to manifest dangers,
forgetting that you are dragging down into ruin the lives of so many citizens.’

Chap. 1] Ihe Causes of War; Defence of Self and Property 177

consequence of committing a wrong against a private individual
has nowhere been, and in my opinion never will be, framed; for
such a law would lead to the utmost confusion.

The foundation upon which Vazquez bases this and many other
conclusions is, that all exercise of sovereign power has in view the
interest of those who obey, not of those who rule. Even if this should
be true in general, it would not be in point here; for a thing whose
usefulness is impaired only in part does not at once cease to be of use.
His further statement, that the safety of the state is desired by
individuals in their own interest, and in consequence every man
ought to put his individual welfare above that of the whole state, is
lacking in consistency. We do desire, in our own interest, that our
state be safe, yet not merely for our own sake but for the sake of
others as well.

3. False, in fact, and rejected by the more sound philosophers,
is the view of those who think + that friendship has its origin in need
alone; we are drawn to friendship spontaneously, and by our own
nature. Regard for others often warns me, sometimes commands
me, to put the interest of many above my own. Appropriate to this
connexion is a passage of Seneca:

It is not to be wondered at if emperors,” kings, and others charged with the responsi-
bility of public administration, whatever their titles, are loved with a deeper devotion
even than personal relatives. If, in fact, men of sound judgement place public above
private interests, it follows that he also should be more dear who represents the state
personified.

Similar is the thought of Ambrose: ‘Since each one would
count it a greater joy to have warded off destruction from his
country than from himself.’ And again, Seneca, whom I men-
tioned, says: ‘ Callistratus and Rutilius, the former at Athens, the
latter in Rome, were unwilling that their homes be restored to
them at the price of a general disaster; for it was better that two
men suffer a single injustice than that a public calamity be visited
upon all.’

1 [r11] Seneca refutes this harmful opinion in his first book On Benefits, chap. i, and the fourth
book, chap. xvi.

2 Plutarch, at the beginning of Pelopidas [i=278D]: ‘The first work of virtue is to save the
one who saves the rest.’

Cassiodorus, On Friendship [Peter of Blois, On the Love of God and Neighbour]: ‘If the hand by
favour of the eyes has noticed a brandished sword threatening another limb, it grasps the sword
without considering its own danger in the least, and fearing more for the other than for itself.’ And
again: ‘ Therefore those who by their own death save from death their masters act rightly in this, if
they take into consideration rather the safety of their own souls than the freedom of the body of
another. For since conscience dictates to them that they ought to show fidelity to their masters, it
seems also consistent with reason, that they ought to prefer the life of their masters to their own
physical lives.’ Later: ‘And so a man may properly expose his body to death because of regard for
others, and especially for the safety of a great number.’

0 2

On Cle-
mency, I.
1V.

On Duties,
IIT.ui [23].

On Bene-
fits, VI.
XXXViL.

Soto, as
above.
Navarrus,
XV, 00. 3.
Sylvester,
word ho-
micidiwum,
I, qu. §
Lud Lo-
pez, chap.
lx11

[Covarr ]
as above,

§ I.

Navarrus,
XV, NO, 4.
Henr., De
Ivveg., Xl.
Vict., De
Lure Belli,
no. 5.

178 On the Law of War and Peace [Book II

[105] X.—Iz is not permissible for Christians to kill in order to ward
off a blow, or to avotd any indignity of like sort, or to prevent any
escape

1. There are some who think that, if a man Js in imminent danger
of receiving a blow or a similar injury, he has the right to prevent
it by killing his enemy. For my part, if expletive justice only be
considered, I raise no objection. For although death and a blow are
not on the same level, yet the man who makes ready to injure me by
that very act confers on me a right, a sort of actual and unlimited
moral right! against him, in so far as otherwise I cannot ward off
the injury from myself. Furthermore, in such a case regard for
others does not in itself seem to impose on us the obligation to favour
the one who attempts the injury. But the law of the Gospel has
made such action in self-defence altogether unpermissible; for
Christ bids us submit to a blow rather than do harm to an aggressor.
How much more earnestly does He forbid the slaying of an assailant
in order to escape a blow!

This example warns us to beware of the principle laid down by
Covarruvias, that human knowledge, being not ignorant of the law
of nature, does not allow anything to be permitted by natural reason
which would not likewise be permitted by God, who is nature itself.
For God, the creator of nature, is also able to act freely outside the
realm of nature, and has the right to lay down laws for us even
concerning those matters which are by nature left free and undeter-
mined ; even greater is His right to make obligatory what by nature
is honourable, even though not obligatory.

z. Since the will of God is so clearly manifest in the Gospel,
strange it is that there are to be found theologians, and Christian
theologians, too, who think that a man is allowed not only to kill in
order to avoid a blow, but even to recover his honour, as men say,
after receiving a blow, in case the assailant flees. This seems to me
entirely inconsistent with both reason and religion. For honour is
a recognition of superiority; but the man who endures such an
injury shows that in a superior degree he possesses the virtue of long-
suffering, and thus rather increases his honour than diminishes it.
And it does not make any difference if some individuals of faulty
judgement turn this virtue into a vice by applying to it names which
they have made up; for such faulty judgements change neither the

1 Apollodorus, treating of Linus, IT [TI. iv. 9]: ‘When Linus had come to Thebes and had been
made a Theban citizen, he was there struck with a lyre by Hercules and killed. For Hercules was
enraged because Linus had wounded him, and therefore slew Lmus ; and when he was brought to trial
by certain persons on the charge of murder he pleaded in court the law of Rhadamanthus, by which
any person is declared innocent if he has harmed a man who has previously used force against him.’

Chap.I] Lhe Causes of War; Defence of Self and Property 179

thing nor the value of the thing. The truth in this case was perceived
not only by the early Christians but also by the philosophers, who
said, as we have shown elsewhere, that it is characteristic of a small
soul not to be able to bear an insult.

3. From this it is also clear that we ought not to accept with
approval the opinion handed down by most authorities, that slaying
in self-defence is permissible according to divine law (for I do not
dispute the statement that it is permissible by the law of nature), even
if one can escape without danger, because flight, especially in the case
of a nobleman, would be disgraceful. And yet in such an act there
Is no disgrace; there is only a false notion of what is dishonourable,
a notion deserving of contempt on the part of all true seekers after
virtue and wisdom. On this point I am glad to have the support,
among jurists, of Charles Dumoulin.

What I have said about a blow and flight, I wish to consider
as said also about other occurrences which in reality do not in any
degree affect our honour. But what if some one should spread
a report about us, which, if believed, would hurt our standing in
the estimation of good men? There are those who teach that such
a person also can be slain. But this view is wholly erroneous, and
contrary to the law of nature as well ; slaying under such circumstances
is not the proper means to be employed to defend one’s reputation.

XI.—By the law of nature 1t 1s permissible to kill in defence of property

We may now come to injuries that are attempted upon property.

If we have in view expletive justice only, I shall not deny that
in order to preserve property a robber can even be killed, in case of
necessity. For the disparity between property and life is offset by
the favourable position of the innocent party and the odious réle
of the robber, as we have said above. From this it follows, that if
we have in view this right only, a thief fleeing with stolen property
can be felled with a missile, if the property cannot otherwise be
recovered. [106] In his speech against Aristocrates, Demosthenes
exclaims: ‘In the name of the gods is not this a hard and unjust
thing, contrary not only to written laws but also to the law common
to all men, that I am not permitted to use force against the man who,
in the manner of an enemy, seizes and carries off my property ?’

If, furthermore, we leave divine and human law out of account,
regard for others, viewed as a principle of conduct, interposes no
hindrance to such action, unless the stolen property is of extremely
slight value and consequently worthy of no consideration. This
exception is by some rightly added.

Soto, d.1,
art. 8.
Doctors,
On Dg., I.
1. 3 and
Code, VIII.
1V. I.
Vazquez,
XVI1ll, as
above,

no 13, I4
Sylvester,
word bel-
lum, Il,
no. 4.

In Addt-
tions %0

A lexan-
dey'sCons.,
IzgQ.

Petr. Na-

varr., II.
ui, no. 376.

[xxiii, 61.]

[= 874 B.}

Soto, as
above.
Mates1-
lanus, No-
tab., 135.
Jason and
Gom., On
Inst IV.
vl pr
Covarr., as
above, § 1,
no. 10.
Lessius,
dub 11,
no. 68.

Covarr., as
above
Aug cited
in
Decretals,
V xu 3.
Lessius,
ch, 1X, as
above,
dub 11,
no, 66.

[Exod ,
xxii. 2.]

180 On the Law of War and Peace [Book II

XII.—How far defence of property 1s permitted by the law of Moses

1. Let us see what the purport of the Hebraic law is; for in
harmony with the Hebraic law is the ancient law of Solon which
Demosthenes refers to in his speech against Timocrates, and from
which a law of the Twelve Tables! was derived; also an ordinance
proposed by Plato in the ninth book of the Laws.

All the laws mentioned agree in this, that they make a distinction
between a thief who commits a theft by night and one who steals in
the daytime. In regard to the reason for the law, however, there
is doubt. Some think that the only consideration had in view was
this, that at night it is impossible to determine whether the intruder
is a thief or an assassin, and so he can be killed as if he were an assassin.
Others hold that the distinction rests on this point, that at night,
since the thief is unknown, there is less chance of recovering the
property.

In my opinion the framers of the laws had sharply in mind neither
of the considerations suggested. It was their desire, rather, to
establish this principle, that no one should be killed for the sake of
property merely; such a case might arise, for example, if with a
missile I should strike down a thief in flight, in order that by killing
him I might recover the thing stolen. If, however, I myself should
be brought into peril of life, then it should be permissible for me to
ward off danger from myself, even with danger to the life of another ;
and it should not be to my disadvantage that I should expose myself
to danger through the effort to keep possession of what belonged
to me, either by seizing it after it had been taken or by capturing
the thief. In following such a course no accusation could be
brought against me, since I should be engaged in a lawful act,
and since, acting within my right, I should be doing no one an
injustice.

2. The distinction, then, between the act of a thief by night
and by day is founded on this fact, that at night it is difficult to
procure witnesses. If, therefore, a thief is found slain, it is easy
enough to give credence to the man who alleges that he killed the
thief in self-defence, especially if a dangerous weapon is found with
the body. The latter condition is in fact recognized in the Hebraic
law, which speaks of a thief caught ‘in the act of breaking in’; for this
is by some translated ‘while digging through’, but others, perhaps
better, render it ‘with an instrument for digging through’, the

1 We can add the Law of the Visigoths, Book VII, tit. i. 15 [VII. ii. 16] and the Capitularies of
Charlemagne, Book V, chap. exci [V. cccxlin]. According to the law of the Lombards, one who enters
the house-court of another at night can be killed unless he allows himself to be bound.

Chap.1] Lhe Causes of War: Defence of Self and Property 181

Hebrew word being thus explained also in Feremiah (ii. 34) by the
most learned of the Jews.

Iam led to adopt the latter translation by the law of the Twelve
Tables, which forbids the killing of a thief by day, but adds the
exception: unless he defend himself witha weapon. The presumption
against a thief at night is, therefore, that he has defended himself
with a weapon. As weapons, moreover, instruments of iron, clubs,
and stones are understood, as Gaius noted in connexion with this very
law. Ulpian on the contrary maintained that the legal provision that
the man who lulls a thief at night is free from punishment must be
understood to have effect only if he could not spare the life of the thief
without danger to himself, while, of course, defending his property.

3. The presumption therefore, as I said, favours the man who
has killed a thief by night. If, however, there should chance to be
witnesses, through whom it can be established that the man who
killed the thief was not brought into peril of life, in such a case the
presumption will cease to be valid and the slayer will be held on the
charge of murder. The law of the Twelve Tables further required
that the man who had detected a thief, whether by day or by night,
should make the fact known by shouting, undoubtedly that, as we
learn from Gaius, [107] magistrates or neighbours might if possible
hasten to the place in order to give aid and to serve as witnesses.
But because people are more easily brought together by day than by
night, as Ulpian notes in connexion with the passage of Demosthenes
just cited, the one who alleges the endangering of life at night is
more readily believed.

4. There is a similar provision in the Hebraic law,’ which
directs that the word of a maid be taken in regard to rape committed
in the country, but not ina city, because in town she could, and should,
have summoned help by screaming.

To the considerations already presented we may add also this,
that even if conditions in other respects are the same, nevertheless
when things happen at night it is less easy to investigate them and
find out what they are and how serious; wherefore they are more
terrifying. The Hebraic law, then, as well as the Roman, enjoins
upon citizens what regard for others suggests, that they should not
kill a man merely because he is stealing property, but that such an
act of violence becomes permissible only in case the person who has
sought to safeguard his property has himself been exposed to danger.

1 Philo gives a good explanation of this, that the place was suggested as illustrating the more
common occurrence and not because on that alone the decision of a disputed fact must rest. For
as he has shown, in his book On Special Laws [III. xiii], a girl can suffer violence in the city if her
outcry is stifled, and in the country she can consent to debauchery.

Digest,
XLVII. in.
55 (54). 2.
Digest,
XLVIII.
Vil 9.

Dig. IX.
il. 4.

[Deut.,
Xxil. 23 ff]

Soto, as
above,
art. 8.
Less.us,
dub tt,
no. 74.
Sylvester,
word bel-
lum, IT.
no. 3.

De Lib
Arb. I [v

13].

Panorm.,
De
Homicidus,
ii.

Lessius, as
above.

182 On the Law of War and Peace [Book II

Moses Maimonides remarked that for one individual to kill another
is not permissible except to safeguard that of which the loss is
irreparable, life and chastity.

XIII.—W hether, and under what limitations, it 1s permissible, according

to the law of the Gospel, to kill 1n defence of property

1. What, now, shall we say in regard to the law of the Gospel ?
Does it permit the same that the law of Moses permitted? Or
since it is more perfect in other respects than the law of Moses,
does it also in this case demand more from us?

That the law of the Gospel demands more from us, I do not
doubt. For if Christ bids that a tunic and a cloak be given up, and
Paul, that an unjust loss be endured, rather than that recourse be
had to a lawsuit—a contest without bloodshed—how much more
do they wish that things also of greater value be relinquished rather
than that a man, the image of God, sprung from the same blood with
ourselves, should be killed! Wherefore, if a thing belonging to us
can be saved in such a way that there seems to be no danger of causing
death, it may rightly be defended; if not, then the thing should be
given up, unless perchance it is of such a sort that our life and the
life of our family is dependent on it and it cannot be recovered by
process of law, since the thief is unknown, and also that there is some
prospect that recovery will be made without slaughter.

2. Although to-day almost all jurists and theologians teach
that we have a right to kill a man in the defence of our property,
even going beyond the limits within which such an act was permitted
by the law of Moses and the Roman law—as, for instance, if the thief
be making off with what he has stolen—nevertheless we do not doubt
that the opinion which we have just set forth was held by the early
Christians. And upon that matter Augustine, too, had no doubt ;
his words are as follows : ‘ How, in the presence of Divine Providence,
can those be free from sin who have polluted themselves with the
killing of men for the sake of things which ought to be viewed with
contempt ?’

In this matter, undoubtedly, as in many others, discipline has
become relaxed with time,’ and little by little the interpretation of
the law of the Gospel has begun to be adjusted to the customs of the
age. Formerly among the clergy conformity to the ancient practice
was ordinarily kept up ; but finally even the clergy have been released
from censure in this matter.

1 Jerome, in his Life of Malchus [1] : ‘ After the Church began to have Christian rulers, it became
greater in wealth, but weaker in virtue.’ See Decretals, V. xii. 10, and Decreium, I. |. 36.

Chap.1] Ihe Causes of War: Defence of Self and Property 183

XIV.—W hether the civil law, in permitting that life be taken in self-
defence, confers a right, or merely freedom from punishment, is
discussed, with a noting of distinctions

The question is raised by some whether the civil law at any rate,
since it contains the right of life and death, in permitting that a thief
be killed by a private individual, does not at the same time free the
act from all guilt.

In my judgement this ought by no means to be conceded. In
the first place, the law does not have the right of death over all
citizens for any offence whatever, but only for offences so serious that
they deserve death. Altogether worthy of approval is the opinion
of Scotus, that it is not right to condemn any one to death" except
for the crimes which the law of Moses punished with death, or, in
addition, for crimes which, judged by a fair standard, are equally
heinous. For in this so serious matter it seems possible to obtain
a knowledge of the divine will, [108] which alone gives peace of
mind, from no other source than from that law, which does not with
certainty appoint for the thief the penalty of death.

Furthermore, the law ought not to confer, and ordinarily does
not confer, upon private individuals the right to put to death even
those who have deserved death, excepting only in the case of the
most atrocious crimes; otherwise the authority of the courts would
have been constituted in vain. Wherefore, if the law says that a thief
is killed with impunity, we are to consider that it takes away a penalty
but does not also confer a right.

XV.—When a single combat may be permissible

From what we have said it is apparent that two conditions can
arise under which individuals may engage in single combat without
blame.

The first condition is, when an assailant grants to the person
attacked an opportunity to fight, though determined to kill him
without combat in case he does not fight. The second is, if a king
or magistrate matches against each other two criminals deserving
of death; in this case it will indeed be their privilege to grasp at
a hope of safety. The official who has ordered such a combat, how-
ever, would seem not to have discharged his duty properly, since,
if the punishment of one seemed sufficient, it would have been better
to choose by lot which one should die.

1 Against the laws which punish rustics with death for hunting, see Gregory of Tours, [History of
the Franks,] X.x; John of Salisbury, Policrattcus, I.iv ; and Peter of Blois, Letters, 129.

Alb. Gent.,
I, XIV.

Baldus, Or
Digesi, I.
V1l1. 3.

184 On the Law of War and Peace [Book II

XVI.—Concerning defence in public war

What has been said by us up to this point, concerning the right
to defend oneself and one’s possessions, applies chiefly, of course, to
private war’; yet it may be made applicable also to public war, if
the difference in conditions be taken into account.

In private war the right is, so to say, momentary; it ceases as
goon as circumstances permit an approach to a judge. But since
public wars do not arise except where there are no courts, or where
courts cease to function, they are prolonged, and are continually
augmented by the increment of fresh losses and injuries. Besides,
in private war, self-defence is generally the only consideration ; but
public powers have not only the right of self-defence but also the
tight to exact punishment. Hence for them it is permissible to fore-
stall an act of violence which is not immediate, but which is seen to be
threatening from a distance ; not directly—for that, as we have shown,
would work injustice—but indirectly, by inflicting punishment for
a wrong action commenced but not yet carried through. This point
there will be an opportunity to take up later.

XVII.—A public war 1s not admitted to be defensive which has as its
only purpose to weaken the power of a neighbour

Quite untenable is the position, which has been maintained by
some, that according to the law of nations it is right to take up arms

in order to weaken a growing power which, if it become too great,

may be a source of danger.

That this consideration does enter into deliberations regarding
war, I admit, but only on grounds of expediency, not of justice.
Thus if a war be justifiable for other reasons, for this reason also it
might be deemed far-sighted to undertake the war; that is the gist
of the argument which the writers cited on this point present. But
that the possibility of being attacked confers the nght to attack
is abhorrent to every principle of equity. Human life exists under
such. conditions that complete security is never guaranteed to us.
For protection against uncertain fears we must rely on Divine Provi-
dence, and on a wariness free from reproach, not on force.

1 Ammianus Marcellinus, Book XXTII PXXTII. i. 7]: ‘ Since in the case of an attack by a foreign
foe there is one invanable law, to defend our safety in every way, unhindered by the force of custom.’
Alexander Severus said in a speech to his soldiers, Herodian, V [VI. iii. 4]: ‘The one who is the
first to commit unjust acts has no reasonable justification. But he who defends himself from assailants
takes confidence from a clear conscience and hopes for success, because he is not acting unjustly but
defending himself.’

Chap.1] Ihe Causes of War: Defence of Self and Property 185

XVIII.—A public war is not admitted to be defensive on the part of him
who has himself given just cause for war

1. Not less unacceptable is the doctrine of those who hold
that defence is justifiable on the part of those who have deserved
that war be made upon them ; the reason they allege is, that few are
satisfied with exacting vengeance in proportion to the injury suffered.
But fear of an uncertainty cannot confer the right to resort to force ;
hence a man charged with a crime, because he fears that his punish-
ment may be greater than he deserves, does not, on that account,
have the right to resist by force the representatives of public authority
who desire to take him.

2. He who has done injury to another ought first to offer
satisfaction to him whom he has injured, through the arbitrament
of a fair-minded man ; if such an offer of satisfaction is rejected, then
his taking up of arms will be without reproach. Thus Hezekiah did
not abide by the terms of the treaty which his forefathers had made
with the king of Assyria; but being attacked in war he confessed his
fault, and left it to the king to determine [109] what reparation
was due. Having made reparation, afterward he was attacked in
war a second time ; supported now by a clear conscience he withstood
the violence of the enemy, and enjoyed the favour of God. Pontius
the Samnite, after restitution had been made to the Romans and the
instigator of the war had been delivered up, said :

Whatever wrath of the gods has come upon us in consequence of our breaking of
the treaty has been expiated. I am well enough assured that those gods whose pleasure
it was that we be subjected to the necessity of making restitution were not pleased that
the satisfaction offered for violation of the treaty was so scornfully rejected by the Romans.
What more [he adds further on] do I owe to you, Roman, what more to the treaty, what
more to the gods, the judges of the treaty? Whom shall I accept as arbitrator between
your anger and my punishment? I raise objection to no one, whether people or private
person.

Likewise when the Thebans had offered just satisfaction in all re-
spects to the Lacedaemonians, but the Lacedaemonians were insisting
on more, Aristides, in his first speech On Leuctra, said that the justice
of the cause had passed to the other side.

1 [112] See Zonaras [XVII. xi] on the subject of the Prince of Chalep, who had offered peace
and the unpaid tribute to the Roman Emperor Argyropolus. A similar instance concerming the crusaders
is found in Kromer, Book XVII [History of Poland, XVII, p. 393]; see also Philippe de Comines,
Book VII, concerning the Swiss, who had offered satisfaction to Charles of Burgundy for a cart-
load of sheepskins, stolen from merchants.

Alb. Gent.,
I, xin.
Cast.
Delustitia,
V.

2 Kanes,
XVI, 7,
14, and xix.

[Livy, IX.
1, iii, iv,
wii, viii.]

[= p. 93.J

Genesis, 1.
29, 30; ix
2.

XLII

fi. 3].

[III. xx.
67.]

CHAPTER II
OF THINGS WHICH BELONG TO MEN IN COMMON

{.—The division of that which ts our own

Nexr in order among the causes of war is an injury actually
received; and first, an injury to that which belongs to us. Some
things belong to us by a right common to mankind, others by our
individual right.

Let us begin with the right which is common to all men. This
tight holds good directly over a corporeal thing, or over certain
actions. Corporeal things are either free from private ownership, or
are the property of some one. Things not in private ownership are
either such as cannot become subject to private ownership, or such
as can. In order to understand the distinction fully, it will be neces-
sary to know the origin of proprietorship, which jurists call the right
of ownership.

II.—The origin and development of the right of private ownership

I. Soon after the creation of the world, and a second time
after the Flood, God conferred upon the human race a general right
over things of a lower nature. ‘All things’, as Justin says, ‘ were
the common and undivided possession of all men, as if all possessed
a common inheritance.’ In consequence, each man could at once
take whatever he wished for his own needs, and could consume
whatever was capable of being consumed. The enjoyment of this
universal right then served the purpose of private ownership; for
whatever each had thus taken for his own needs another could not
take from him except by an unjust act. This can be understood
from the comparison used by Cicero in his third book On Ends ?:
‘ Although the theatre is a public place, [113] yet it is correct to
say that the seat which a man has taken belongs to him.’

This primitive state might have lasted if men had continued in
great simplicity, or had lived on terms of mutual affection such as
rarely appears. Of these two conditions, one, exemplified in the

1 A trace of this survived in the Saturnalia.
* Seneca, On Benefits, Book VII. xii [VIT. xii. 3]: ‘ The equestrian seats belong to all the Roman
knights ; nevertheless, in those places whichever one I have occupied is mine.’

186

Chap.II] Of Things which belong to Men in Common 187

community of .property ' arising from extreme simplicity, may be
seen among certain tribes in America, which have lived for many
generations in such a condition without inconvenience. The second,
again, exemplified in the community of property arising from affec-
tion, was formerly realized among the Essenes,” afterward among the
first Christians at Jerusalem; at the present time, also, by a goodly
number who live an ascetic life.

Evidence showing the simplicity of the state of the first men ?
who were created is to be found in their nakedness. Among them
there was ignorance of vices rather than knowledge of virtue, as
Trogus says of the Scythians. ‘The most ancient mortals’, says
Tacitus, ‘were yet free from wicked excess of passion, living their
lives without reproach, without crime, and in consequence without
punishment or restraints.’ * In Macrobius is the statement: ‘ Among
mankind at first there was a simplicity having no knowledge of evil,
and hitherto quite devoid of guile.’ This simplicity seems to be called
‘incorruption’® by the Hebrew sage, but ‘simplicity’ by the
Apostle Paul, who opposes to it ‘craftiness ’, that is, crafty cunning.
The only concern of these first men was the worship of God, whose
symbol was the tree of life,* as the ancient Hebrews explain; and
this interpretation is supported by a passage of the Apocalypse. They
lived easily on the fruits which the earth brought forth of its own
accord, without toil.’

1 Horace [Odes, III. xxiv. 9-16]:

The Scythians of the plains thus better live,

Whose wandering carts their homes by custom bear ;
And so the Getae, too, of habits stern,

For whom unmeasured acres bear the grain,

And fruits likewise, to all the tribesmen free.

And no one tills the ground beyond a year;

And for the one whose labours then are done

By equal lot another takes his turn.

2 And from these arose the Pythagoreans; see Porphyry [Lzfe of Pythagoras, xx]; Diogenes
Laertius [VIII. ro]; Gelhus, I. 1x.

® Adam is the type of the human race. See Origen, Against Celsus [VII. xxviii]; also in point
here is what Tertullian says in his book On the Soul [xvi]: ‘What is natural must be believed to be
reasonable, because it has been instilled in the soul from the very beginning by a creator possessed of
reason. For what is there, which God has published by command, and still more which He has given
forth by His own breath, that is not reasonable ? But that which 1s not reasonable must be understood
to be of later origin, as something which has come im at the instigation of the serpent, that is, the
admission of sin; and thereafter it has taken root and grown to maturity in the soul after the likeness
of nature, because it came m immediately at the beginning of nature.’

4 Seneca, on the same subject, Letters, xc [xc. 46]: ‘ Because of ignorance they were innocent.’
Then after speaking of justice, prudence, self-control, and bravery he adds: ‘ Their uncultured life
had certain elements similar to all these virtues.’ Josephus [Amtiqutiies of the Jews, I. 1. 4] says:
‘Having their souls estranged by no care.’

5 So also Paul, Ephesians, vi. 24; he spoke also of ‘incorruptness’, T2tus, U1. 17 [11. 7].

® The higher holiness of the Jewish Rabbis; [123] _ the divine wisdom of Arethas, On Revelation
[xxi1. 2]; on the subject of Paradise see Ecclesiasitcus, xl. 17, and on the four rivers of Paradise the
same book, xxiv. 35 fi.

7 See the excellent passage of Dicaearchus on this subject, quoted by Varro, On Farming, Book
II [I. ii}; and another from the same writer quoted by Porphyry, On Abstaining from Animal
Food, IV [hiJ.

Justin, IT
[it. I5].
rAnnals,
III.

Kxvi 1]

On
Scapio’s
Dream, II
[X. 15].
Wisdom,
lll 24

{t1. 23].
2 Corin-
thians, Xi.

3

Proverbs,
11. 18,
Philo, On
the Crea-
tion of the
World [liv].
Revelation,
Xxll, 2.

On the
Creation
of the
World
[liv].
Ecclesi-
astes, vil.
30 [29].
[=p.92A ]

Genesis, X,

188 On the Law of War and Peace [Book II

2. Men did not, however, continue to live this simple and
innocent life, but turned their thoughts to various kinds of know-
ledge, the symbol for which was the tree of knowledge of good and
evil,! that is, a knowledge of the things of which it is possible to make
at times a good use, at times a bad use. This Philo calls the ‘ middle
understanding’. In regard to it Solomon said: ‘God made man
upright,’ that is, simple, ‘but they have sought out many inven-
tions.’ ‘Men degenerated into craftiness,’ as Philo declares in the
passage cited. Says Dio of Prusa in his sixth Oration: ‘ But to the
men who came after the first the craft and various inventions °
devised for the advantage of life proved not to be very useful; for
men devoted their talents not so much to the cultivation of bravery
and justice as to devising means of enjoyment.’

The most ancient arts, agriculture and grazing, were pursued
by the first brothers, not without some interchange of commodities.
From the difference in pursuits arose rivalry, and even murder; and
at length, since the good were corrupted by contact with the wicked,’
there came the kind of life ascribed to the giants, that is given over
to violence, like the life of those whom the Greeks characterized as
‘men that cultivate justice with the fist’.* After the world had
been cleansed by the Deluge, that brutish life was succeeded by
a passion for pleasure,® to which wine ministered; whence came
also unlawful loves.

3. Harmony, however, was destroyed chiefly by a less ignoble
vice, ambition, of which the symbol was the tower of Babel. Pre-
sently men divided off countries, and possessed them separately.
Afterward, nevertheless, there remained among neighbours a common
ownership, not of flocks to be sure, but of pasture lands, because
the extent of the land was so great, in proportion to the small number
of men, that it sufficed without any inconvenience for the use of
many ;

1 Josephus [Antigueties of the Jews, J.1. 4]: ‘ And this was the tree of keen mentality and under-
standing.’ Telemachus, in Homer [Odyssey, XX. 309]:

All things I know
Both good and bad, nor am a child as heretofore.

To Zeno of Cittium wisdom was the knowledge of things good and evil and indifferent ; the statement
is in Diogenes Laertius [VII. 92]. Plutarch, On Matters of Common Knowledge |xvii=1067 A]:
‘What will be the harm if evil shall be removed and there shall then be no prudence, but we shall
have in the place of it another virtue, which is not the knowledge of good and evil, but of good
alone ?’

2 Seneca, Letiers, xc [xc. 25 ff.], explains this fully; read him, and also Dicaearchus in the
writers already cited.

® Seneca, Natural Questions, III, at the end [III. xxx]: ‘When wild beasts have been likewise
destroyed, whose savage natures men have taken on.’

* Seneca, in the same connexion [Natural Questions, ITI. xxx]: ‘They also will not continue
in innocence, except while they are young.’

5 Seneca, in the same work [Plny, Natural History, XIV. xxii. 142]: ‘A monstrous lust and
forbidden pleasure are the chief fruits of drunkenness.’

Chap.II] Of Things which belong to Men 1n Common 189

The field with bounds to mark, or limits set,
Was not allowed.

Finally, with increase in the number of men as well as of flocks,
lands everywhere began to be divided, not as previously by peoples,
but by families. Wells,* furthermore—a resource particularly neces-
sary in a dry region, one well not sufficing for many— [114] were
appropriated by those who had obtained possession of them. This
is what we are taught in sacred history; and it is quite in accord
with what philosophers and poets, whose testimony we have pre-
sented elsewhere, have said concerning the first state of ownership
in common, and the distribution of property which afterward
followed.

4. From these sources we learn what was the cause on account
of which the primitive common ownership, first of movable objects,
later also of immovable property, was abandoned. The reason was
that men were not content to feed on the spontaneous products of
the earth,? to dwell in caves, to have the body either naked or clothed
with the bark of trees or skins of wild animals, but chose a more
refined mode of life; this gave rise to industry, which some applied
to one thing, others to another.

Moreover, the gathering of the products of the soil into a common
store was hindered first by the remoteness of the places to which men
had made their way, then by the lack of justice and kindness; in
consequence of such a lack the proper fairness in making division
was not observed, either in respect to labour or in the consumption
of the fruits.

5. At the same time we learn how things became subject to
private ownership. This happened not by a mere act of will, for
one could not know what things another wished to have, in order
to abstain from them—and besides several might desire the same
thing—but rather by a kind of agreement, either expressed, as by
a division, or implied, as by occupation.* In fact, as soon as com-
munity ownership was abandoned, and as yet no division had been
made, it is to be supposed 4 that all agreed, that whatever each one

2 On the wells near Oasis, which were the common property of many, see Olympiodorus in Photius
[Lexicon, xxx. 192]. | _

2 Procopius, Gothic War, IT [II. xv], accurately describes for us the manner of life of the Scrithi-
phini, which was of this kind. Add Pliny [Natural History], XTI.i [XII, proem.]; Vitruvius, IT. i.

8 See the passages from the Talmud and the Koran which Selden, the glory of England, has quoted
on this subject in his work on the empire of the sea [Mare Clausum, I. iv].

4 Cicero [On Dunes, I. vii. 21]: ‘ And because from this there has begun to be private ownership
of things that by nature had been common property, each man should keep possession of what has
fallen to him.’ He illustrates the same point by a comparison from Chrysippus drawn from the race-
course [On Duties, III. x. 42], where it is lawful to vanquish the opponent by running, but not by pushing
him from the course.

The Scholiast on Horace, Art of Poeiry [line 128], says: ‘ As an ownerless house or field is common
property, but when occupied it becomes private property.’ Varro, Age Modo [cited by Servius

Virgil,
G2orgtcs,
I [line
126],

Genesis,
xi

Genesis,
XX

Mare Lr-
berum, Xv.

Cicero,
On Duttes,
ITI [v. 22]

Declama-
twons, Xill
[x11 8]

Macro-
bius, Sa-
turnalta,
ITT. x11.

190 On the Law of War and Peace [Book II

had taken possession of should be his property." ‘ It has been granted,’
says Cicero, ‘that each may prefer to acquire for himself, rather
than for another, whatever contributes to the advantage of life;
and in this there is no conflict with nature.’ To this should be
added the sentence of Quintilian: ‘If this is settled, that whatever
has come into a man’s possession is the property of the possessor,
certainly what is rightfully possessed is not taken away without in-
justice.” And when the ancients called Ceres a ‘lawgiver’ and
named her sacred rites the Thesmophoria they implied * that out
of the division of lands a new law had arisen.

IlIl.—That certain things, such as the sea both as a whole and 1n tts
principal divisions, cannot become subject to private ownership,
and why

1. Having laid down these fundamental principles, we say that
the sea, viewed either as a whole or in its principal divisions, cannot
become subject to private ownership. Since, however, such owner-
ship is conceded by some in the case of individuals but not in the
case of nations, we bring forward proof, first on moral grounds.

The cause which led to the abandonment of common ownership
here ceases to be operative. ‘The extent of the ocean is in fact so
great that it suffices for any possible use on the part of all peoples,
for drawing water, for fishing, for sailing. The same thing would
need to be said, too, about the air, if it were capable of any use for
which the use of the land also is not required, as it is for the catching
of birds.* Fowling, therefore, and similar pursuits, are subject to
the law laid down by him who has control over the land.

2. The same conclusion must be reached in regard to the
Syrtes. These are absolutely devoid of cultivable soil; they have
no value except as depositories of sand, the supply of which is
inexhaustible.

There is, furthermore, a natural reason which forbids that the
sea, considered from the point of view mentioned, should become
a private possession. The reason is that occupation takes place only

On the Georgics, II. 168], says: ‘ Formerly the earth was assigned to particular peoples for cultivation,
as Etruria to the Tuscans and Samnium to the Sabellians.’
1 Solon [Frag. XIII. 7-8]:

[124] Riches I wish to have, but those unjustly got
IT do not want.

Cicero, On Duites, I [I. viii. 25]+ ‘Nor m truth should the increase of property be criticised, if harmful
to no one; but injustice must always be avoided.’

2 “After laws had come into being, in consequence of the division of lands’; thus Servius, in
commenting On the Aeneid, Book IV [line 58]: ‘Ceres, giver of laws.’

@ And the nght of habitation. ‘It is necessary to measure the sky as well as the ground,’ says
Pomponuus, Digest, XLITI. xxiv. 21 [§ 2]; add also Digest, XVII. iu. 83.

Chap. II] Of Things which belong to Men in Common 191

in the case of a thing which has definite limits.1 For this reason
Thucydides calls unoccupied land ‘devoid of boundaries’, and
Isocrates characterized the land taken over by the Athenians as
‘having boundaries fixed by us’. Liquids, on the contrary, have
no limits in themselves. ‘ Water’, says Aristotle, ‘is not bounded
by a boundary of its own substance.’ Liquids therefore cannot be
taken possession of unless they are contained in something else; as
being thus contained, lakes and ponds have been taken possession of,
and likewise rivers, because they are restrained by banks. But the
sea is not contained by the land, since it is equal to the land, or
larger; for this reason the ancients said that the land is bounded
by the sea. ‘'The ocean has been thrown about the land as a fetter’
are the words of Apollonius as quoted by Philostratus.

In Gellius, Sulpicius Apollinaris asks, ‘ What can be said to be
on this side of the Ocean, surrounding [115] and encircling, as
it does, all lands from all sides?’ Later he adds: ‘ Since in fact the
Ocean flows about all lands on all sides, nothing is on this side of it;
but since all lands are enclosed by the circuit of its waters, all things
which are confined within its shores are in the midst of it.’ Marcus
Acilius, the consul, in his speech to his soldiers, which is found in
Livy, refers to ‘ the Ocean, which with its embrace fixes the boundary
of the world’. In Seneca’s Suasoriae the ocean is said to be the bond
of the whole world and the bulwark of the earth, while Lucan speaks
of it as ‘ the earth-encircling wave’.

A division of the sea, further, is not to be imagined; for when
the lands were first divided the sea was still for the greater part
unknown. In consequence, no system can be conceived by which
races so widely separated could have come to an agreement regarding
such a division.

3. Those things, therefore, which were common to all men,
and were not divided in the first division, no longer pass into private
ownership through division, but through occupation. And they are
not divided until after they have become subject to private ownership.

IV.—That unoccupied lands become the property of the individuals who
become occupants of them, unless they have been taken over as

a whole by a people

Let us proceed to the things which can be made subject of
private ownership, but have not yet become private property. Of

1 So Horace [Odes, III. xxiv. 12] calls the acres which have no possessor ‘ unmeasured’.
2 This was perceived, in regard to the Ocean, by Iarchas, cited by Philostratus, ITI. xi [Lee of
Apollonius of Tyana, ITI. xxxvu].

1569'27 P

I [exxxx].

Panegyric
[ix 36]
Ow Gener-
alton,
IT.11.

VII. xix
[Life of
Apollonius
of Tyana,
VIII
XXV1].

II. xiii
[XII mu.
20],

[XXXVI
XVI. 15.]
(I. ii.]
[V. 6x9.]

Covarru-
vias, On
Sext, V.
ult 4,
pt, in, $8

Doctors,

On Code, I.

i. I.
Innocent
and
Panorm.-
tanus, On
Decretals,
V. XXXIX.
I.

Covarru-
vias, pas-
sage cited
above.

192 On the Law of War and Peace [Book II

such sort are many places hitherto uncultivated,’ islands in the sea,”
wild animals, fish, and birds.

In this connexion two points must be noted. Possession may be
taken in two ways, either of an undivided whole, or by means of
individual allotments. The first method is ordinarily employed by
a people, or by the ruler of a people; the second, by individuals.
Possession by individual allotments, nevertheless, is more often taken
in consequence of a grant than by free occupation.

If, however, anything which has been occupied as a whole has
not yet been assigned to individual owners, it ought not on that
account to be considered as unoccupied property; for it remains
subject to the ownership of the first occupant, whether a people or
aking. To this class ordinarily rivers, lakes, ponds, forests, and rugged
mountains belong.

V.—That wild animals, fish, and birds belong to the man who has caught
them, unless a law forbids

In regard to wild animals, fish, and birds, this observation needs
to be made, that whoever has control over the lands and waters can
by his order prohibit any person from taking wild animals, fish or
birds, and thereby acquiring them. Such an order is binding even
upon foreigners, the reason being that for the government of a people
it is morally necessary that foreigners who mingle with them even
temporarily—as happens when foreigners enter a country—should
conform to the institutions of that people.

The principle stated is not at variance with what we often read
in the Roman law, that according to the law of nature, or the law of
nations, a man is free to hunt such animals. This holds true, in fact,
so long as municipal law does not intervene; thus the Roman law
left in their primitive condition matters concerning which different
nations have established different usages. When, however, municipal
law has laid down a different rule, the law of nature itself prescribes
that this must be obeyed. For although municipal law cannot enjoin
anything which the law of nature forbids, or forbid what the law of
nature enjoins, it can nevertheless set limits to natural liberty, and
forbid what by nature was permitted; thus, through exercise of the
power which belongs to it, municipal law can by anticipation prevent
an acquisition of ownership which by the law of nature might have
been permitted.

1 See Bembo, History, Book VI [near the beginning].

* As the Echinades, which Alcmaeon took possession of and made his own; Thucydides, II,
at the end [II. cii].

Chap. 11] Of Things which belong to Men in Common 193

V1.—That in case of necessity men have the right to use things which
have become the property of another, and whence this right comes

I. Now let us see whether men in general possess any right
over things which have already become the property of another.

Some perchance may think it strange that this question should
be raised, since the right of private ownership seems completely to
have absorbed the right which had its origin in a state of community
of property. Such, however, is not the case. We must, in fact,
consider what the intention was of those who first introduced in-
dividual ownership ; and we are forced to believe that it was their
intention to depart as little as possible from natural equity. For
as in this sense even written laws are to be interpreted, much more
should such a point of view prevail in the interpretation of usages
which are not held to exact statement by the limitations of a written
form.

2. Hence it follows, first, that in [116] direst need the
primitive right of user revives, as if community of ownership had
remained, since in respect to all human laws—the law of ownership
included—supreme necessity seems to have been excepted.

3. Hence it follows, again, that on a voyage, if provisions fail,
whatever each person has ought to be contributed to the common
stock. Thus, again, if fire has broken out, in order to protect a build-
ing belonging to me I can destroy a building of my neighbour. I can,
furthermore, cut the ropes or nets in which my ship has been caught,*
if it cannot otherwise be freed. None of these rules was introduced
by the civil law, but they have all come into existence through
interpretations of it.

4. Even among the theologians the principle has been accepted
that, if a man under stress of such necessity takes from the property
of another what is necessary to preserve his own life, he does not
commit a theft.

The reason which lies back of this principle is not, as some
allege, that the owner of a thing is bound by the rule of love to give
to him who lacks; it is, rather, that all things seem to have been
distributed to individual owners with a benign reservation in favour
of the primitive right. For if those who made the original distribu-
tion had been asked what they thought about this matter they would
have given the same answer that we do. ‘ Necessity,’ says Seneca
the father, ‘the great resource of human weakness, breaks every

1 Such acts are not to be committed except in connexion with matters of great importance, when
the need is pressing, as Ulpian says, Digest, XLIII. xxiv. 7 [§ 3-4], where he adds the illustration of
destroying a house for the sake of stopping a fire.

PZ

Dig XIV.
i1.2 § 2.
Dvegest,
XLVII.
1X. 3. § 7.
Dig IX
li. 29. § 3.

Thomas
Aquinas,
IT in. 66.
7
Covarru-
vias, On
Seat, V.
ult 4,

pt 1i, § x.
Soto, V,
qu itl, art.
4.

[xii. 28.]

(VI. 1v.
11.]

Lessius,
Book II,
xu, dub.

I2, no. 70.

[Laws,
VIII =
3448 |

[Solon,
XX111 =
9I¢ ]

Anabasis,
V [v. 16].

V xvi (D1-
vine Insta
tutes, V.
XV1L.

27 ff.].

On the Law of War and Peace [Book II

194

law,’ 1 meaning, of course, human law, or law constituted after the
fashion of human law. Cicero in his eleventh Phzilippic averred :
‘Cassius has set out for Syria, a province belonging to another, if
men observed written laws; but since these have been suppressed,
it becomes his province by the law of nature.’ In Curtius we read:
‘In a common disaster each man has whatever falls to his lot.’

VII.—That the right, in case of necessity, to use things belonging to
others, holds when the necessity is in no way avoidable

Admonitions, however, must be kept in mind, that this permis-
sion to use property belonging to another may not be carried beyond
proper limits.

The first is, that every effort should be made to see whether
the necessity can be avoided in any other way, as, for example, by
appealing to a magistrate, or even by trying through entreaties to
obtain the use of the thing from the owner. Plato authorizes the taking
of water from a neighbour’s well only in case one in search of water
has dug on his own land clear to the underlying stratum of chalk.
Solon gives such authorization only in case one has dug on his own
land to a depth of forty cubits; in regard to Solon’s rule Plutarch
adds: ‘He thought to minister to need, not to show indulgence to
laziness.’ In his answer to the people of Sinope Xenophon said:
‘Wherever the right to purchase is not granted to us, whether on
Greek or on barbarian soil, we take what we have need of, not from
lawlessness but from necessity.’

VIII.—Thaz the right, in case of necessity, to use things belonging to
another, holds except when the possessor has equal need

In the second place, this right cannot be conceded if the owner
himself is under an equal necessity; for in like circumstances the
position of the owner gives him the preference. ‘ He is not foolish’,
says Lactantius, ‘ who has not, even for his own safety, pushed a ship-
wrecked man from his plank, or a wounded man from his horse;
for he has kept himself from the inflicting of an injury, which would
be asin; and to avoid such a sin is wisdom.’ Cicero had said, in his

+ ‘Tt defends whatever it has compelled one to do.’ Thus Seneca in Controversies, IV. xxvii
[TX. iv. 5]. He gives examples illustrating this in excerpts from the fourth controversy [IV.1v]: ‘It is
necessity which lightens ships by throwing over cargo ; 1t is necessity which stops fires by destroying
houses ; necessity is the law of the moment.’

Theodore Priscian, an ancient physician, says [Gynaecia, VI. xxi]: ‘It is expedient for pregnant
women, when their lives are in danger, to obtain sure safety often with the loss of a foetus, just as
the cutting off of growing boughs is helpful for trees ; and when overloaded ships are tossed about
by a violent tempest they find their safety only in loss of cargo.’ The first part of this passage
implies the use of the ‘ obstetrical forceps’, an instrument descnbed by Galen and Celsus [VII. xxix] ;
and so the name of the same instrument must be restored in Tertullian, On the Soul [xxv].

Chap.1I] Of Things which belong to Men in Common

195

third book On Duties: ‘Should not the wise man, therefore, if he
is exhausted with hunger, take food away from another man who
is of no account? By no means. For my life is no more precious
to me than the possession of such a spirit that I would not harm
any one for the sake of my own advantage.’ In Curtius we read:
‘The man who will not part with his own has a better case than the
man who demands what belongs to another.’

IX.—T hat there is, further, an obligation to restore the things of another
used in case of necessity, whenever restoration shall be possible

In the third place, restitution of another’s property which has
been used in case of necessity must be made whenever this can
be done.

There are some who hold a different opinion. Their plea is,
that the man who has availed himself of his own right is not bound
to make restitution. But it is nearer the truth to say, that the right
here was not absolute, but was restricted by the burden of making
restitution, where necessity allowed. [117] Sucha right is adequate
to maintain natural equity against any hardship occasioned by private
ownership.

X.—A pplication of this right in the case of wars

From what has been said we can understand how it is permissible
for one who is waging a just war to take possession of a place situated
in a country free from hostilities. Such procedure, of course, implies
these conditions, that there is not an imaginary but a real danger
that the enemy will seize the place and cause irreparable damage ;
further, that nothing be taken except what is necessary for protection,
such as the mere guarding of the place, the legal jurisdiction and
revenues being left to the rightful owner ; and, finally, that possession
be had with the intention of restoring the place as soon as the necessity
has ceased.

‘Henna was retained by an act either culpable, or justified by
necessity,’ says Livy; for whatever departs in the least degree from
necessity is culpable. When the Greeks who were with Xenophon
were in pressing need of ships, on the advice of Xenophon himself
they seized the vessels that were passing by, yet took possession in
such a way that they kept the cargoes unharmed for the owners,
furnished provisions also to the sailors, and paid passage money.

The first right then that, since the establishment of private
ownership, still remains over from the old community of property,
is that which we have called the right of necessity.

(ITI. vi.
29.]

(VII.
1. 33-]

Adrian,
[Quaes-
trones]
Quodh-
betscae, I,
art. 2, col.
3.

Covarru-
vias, as
cited
[On Sext,
V. ult. 4,

pt.i, § 8.)

XXIV
[xxxix. 7].

Anabasts,
VQ. 11

On Duties,
I {xvi.

51 i]

On Bene-
fits, IV
[xxix]

[=703 B]

Drg I.
Vill. 2.

[Art of
Love, ITT,
line 93 f.]

{Metamor-
phoses,
VI. 349.]

[A enend,
VII. 230.]

On the Law of War and Peace [Book II

196

XI.—That men possess the right to use things which have become the
property of another, for a purpose which involves no detriment to
the owner

A second right is that of innocent use.

‘Why,’ says Cicero, ‘when a man can do so without loss to
himself, should he not share with another things that are useful to
the recipient and can be spared without annoyance to the giver ?’
Thus Seneca declares that opportunity to get a light for a fire is not
to be considered a favour. In Plutarch we read the following, in
the seventh book of his Symposiacs: ‘It is not right for us to destroy
food, when we ourselves have more than enough; or to stop up or
conceal a spring, when we have drunk all we wanted ; or to obliterate
the signs which mark the route for ships, or signs on land which have
been useful to us.’

XII.—Hence the right to the use of running water

Thus a river, viewed as a stream, is the property of the people
through whose territory it flows, or of the ruler under whose sway
that people is. It is permissible for the people or king to run a pier
out into it, and to them all things produced in the river belong.
But the same river, viewed as running water, has remained common
property, so that any one may drink or draw water from it.

Who would forbid from lighted torch a light
To take, and guarded hold in hollow sea
The waters vast?

says Ovid. In the same author Latona thus addresses the Lycians :

Why water me deny? Common to all

The use of water is.

There also he calls the waves a public blessing, that is a blessing
common to mankind, using a less appropriate meaning of the word
‘public’. In that sense certain things are said to be public by the
law of nations; and with this meaning Virgil referred to the wave
as open to all men.

XIII.—Hence, also, the right of passage over land and rivers, with
explanation

1. Similarly also lands, rivers, and any part of the sea that has
become subject to the ownership of a people, ought to be open to
those who, for legitimate reasons, have need to cross over them ;

Chap. 11] Of Things which belong to Men in Common

197

as, for instance, if a people has been forced to leave its own territories
and is seeking unoccupied lands, or desires to carry on commerce
with a distant people, or is even seeking to recover by just war what
belongs to it. In such cases the reason is the same as that stated
above; it is altogether possible that ownership was introduced with
the reservation of such a use,’ which is of advantage to the one
people, and involves no detriment to the other. Consequently it
must be held that the originators of private ownership had such
a reservation in view.

2. A noteworthy example we find in the history of Moses.
When he found it necessary to pass through the territories of others,
he offered first to the Idumaeans, then [118] to the Amorites,
these stipulations, that he would follow the king’s highway and would
not turn aside into private possessions; that if he should have need
of anything belonging to them he would pay them a fair price.
When these terms were refused, for that reason he waged a just ®
war against the Amorites. ‘ A passage void of wrong,’ says Augustine,
‘which according to the most equitable law of human society ought
to have been freely granted, was refused.’

3. The Greeks with Clearchus said: ‘ We shall return home,
if no one interferes with us; but if any one does us injury we shall
endeavour, with the help of the gods, to defend ourselves.’

With much the same point of view Agesilaus,? when on his
return from Asia he had reached the Troad, asked whether they
wished him to pass through as a friend or as an enemy. Lysander,*
too, put the question to the Boeotians, whether they wished him to
pass through with spears raised, or lowered. According to Tacitus
the Batavians announced to the inhabitants of Bonna, that ‘ their
march would be void of harm if no one should resist them, but if
arms should be taken up against them they would make a way with
the sword.’

When Cimon was bringing help to the Lacedaemonians, he led
his forces through the Corinthian territory. He was criticized by
the Corinthians for not having first obtained permission of the
state; they declared that one who knocks at the door of another
does not enter without the owner’s permission. ‘ But’, he replied,
‘you did not knock at the doors of the Cleonians and Megarians, but

1 Servius, On the Aeneid, VII [VII, line 229], the words ‘ we seek a harmless shore’: ‘ A shore’,
he says, ‘ the defence of which could harm no one.’

2 ‘Just wars were waged by the sons of Israel against the Amorites,’ says Augustine in the passage
cited. Thus Hercules killed Amyntor, king of Orchomenos, for refusing him passage, as Apollodorus
notes [Library, II. vii. 7]. The Scholiast on Horace’s verses Against Canidia [Epodes, xvii. 8] notes :
‘The Greeks made war on Josephus [Telephus] because he did not allow them to pass through his
terntory.’ See also the Law of the Lombards, Book II, liv. 2.

8 See also Plutarch in his hfe [Agesilaus, xvi= 604 C, D ; Apothegms, 211 C] on this subject.

4 Plutarch, in the life of this same man [Apothegms, Lysander, vil== 229 C; Lysander, xxi = 445 D].

Baldus,
Conslia,
III. 293

Numbers,
XX, XXl.

On
Numbers,
IV, qu. xx
[On Hep-
tateuch,
IV. xliv].
[Anad., II.
1ii, 23.]
Plutarch,
Apothegms
[= 214 Cc].

Historves,
IV. [xx].

Plutarch,
Cimon
[xvii =
489 c].

Tacitus,
Histories,
IV [lxv].

VIII [1it.
33].

{Plutarch,
Demetrius,
xlvi1=
QI2E ]

198 On the Law of War and Peace [Book II

you broke them down, thinking that all places ought to be open to
the stronger.’

The correct view is that which lies between extremes. It holds
that permission to pass ought first * to be demanded; but, if it is
refused, passage can be made by force. So when Agesilaus ® on his
return from Asia demanded from the king of Macedonia permission
to pass, and the latter had said that he would take the matter under
advisement, Agesilaus replied: ‘ Let him take it under advisement ;
in the meantime we shall go across.’

4. Furthermore no one will be justified in raising the objection
that he fears the numbers of those passing through. My right is
not extinguished by your fear ; all the less in this case, for the reason
that there are precautions which can be taken, as, for example, by
arranging that troops be sent across in separate detachments; or,
as the people of Colonia Agrippina proposed to the Germans, without
their arms,* a practice in vogue in ancient times, also in the country
of the Eleans, as Strabo observed. Another precaution is, for the one
who grants the passage to hire suitable garrisons for his own pro-
tection, at the expense of him who makes the passage ; or to see that
hostages are given,‘ following the example of Seleucus, who demanded
hostages of Demetrius in return for the permission to remain within
the limits of his empire.

Thus, again, fear of the ruler, against whom the one requesting
passage is waging a lawful war, cannot be urged as a valid excuse
for refusing passage. Equally inadmissible is it to say that passage
could be had by another route; for any one might say the same
thing, and in that way the right of passage would be altogether done
away with. But it is enough if passage is demanded without evil
intent, by the route which is nearest and most convenient.

1 Aristophanes, Birds [lines 188 f.]:

As when to Delphi journey must be made
The Boeotians for passage first we ask.

Here the Scholiast says: ‘ Only then a right of passage is demanded when an army is being led through.’

The Venetians gave passage to both Germans and French in the struggle for Marano ; Paruta,
[History of Venice,] Book XI. Likewise when the Germans [125] complained about the granting
of passage to their enemies the Venetians showed that such passage could not have been hindered
except by force of arms, and arms they were not accustomed to use except against open enemies;
[Paruta] in the same book.

The Pope also offered a like excuse, according to the same author, Book XII [at the end].

2 On this matter also see Plutarch, in his life [Agestlaus, xvi = 604 E].

® An example 1s found in the Selections on Embassies, xii, and in Bembo, History of Italy, Book
VII [History of Venice (Venice, 1551), p. 104]. See also the notable treaties between Frederick
ier and Isaac Angelus concerning a passage; Nicetas, Isaac Angelus, Book II, passim

iv. 7].
In the German Empire one demanding passage gives bond to make good the damage. See also
Krantz, History of Saxony, Book X, and Mendoza, Belgzca [Commentartes, I. x-xiv].

Caesar was unwilling to grant to the Helvetians a right of way through a province because
he thought that men disposed to evil would not restrain themselves from wrongdoing and depredations ;
Gallte War, I [I. vit].

* You will find an example in Procopius, Persian War, II [TI. xxi. 26].

Chap. II] Of Things which belong to Men in Common 199

If he who wishes to pass is obviously commencing an unlawful
war, or if he is bringing enemies of mine with him,* I can refuse
the passage ; it would be right to meet him on his own ground, and
hinder his passage.

5. Such passage, furthermore, ought to be conceded not only
for persons but also for merchandise. No one, in fact, has the right
to hinder any nation from carrying on commerce with any other
nation at a distance. That such permission be accorded is in the
interest of human society and does not involve loss to any one; if
one fails to realize an anticipated gain, to which he is not entitled,
that ought not to be accounted a real loss. ‘To the evidence which

we have elsewhere cited upon this point, we shall add an excerpt
from Philo: ?

The sea in every part is traversed without danger by merchant vessels, carrying the
commerce which [119] has grown up between nations out of a natural desire to main-
tain a social relationship, while the abundance of some ministers to the need of others.*
For yee has never gained the ascendancy either over the whole world, or over any large
part of it.

Another bit of testimony comes from Plutarch, who speaks of
the sea in the following words: ‘ This element has united and has
rounded out our life, which without it had been savage and without
commercial intercourse ; supplying, as it does, through mutual help
what was lacking, and through the interchange of commodities
fostering a social relationship and friendliness.’

In harmony with this is the statement of Libanius: ‘God did
not bestow all products upon all parts of the earth, but distributed
His gifts over different regions, to the end that men might cultivate
a social relationship because one would have need of the help of

1 This was said by the Franks, who were in Venetia, to Narses, who was bringing Lombards with
him; Gothte War. IV [IV. xxvi]. Other examples of demial of the right to pass you find in Bembo,
History of Italy, Book VII [History of Venice as cited, p. 104]; Paruta, History of Vente, V and VI.

4 In his Embassy to Gatus [vu]. a

3 In Florus, Book III [III. vi]: ‘If you destroy commerce, you sunder the alliance which binds to-
gether the human race.’ Servius, On the Eclogues, IV [line 38]: ‘ Navigation arises from consideration for
merchandise.’ The samecommentator, On the Georgics, I [ine 137]: ‘ He means that men acquired skill
in sailing, and fondness for it, through the necessity of seeking interchange of goods.’ * It was a common
good that the commerce of the sea was unhampered’ [cf. Seneca, On Benefits, I. vii].

Ambrose, in his work on creation [Hexaemeron, III. v. 22]: ‘ The good sea is as 1t were the lodging-
place of the rivers ; the bearer of commerce, by which distant peoples are bound together.’ The thought
was borrowed from Basil, Hexaemeron, iv. Theodoret, On Providence, II [I]. 509], elegantly says: ‘The
sea 1s the open market-place of the world; the islands are stations in the sea.’

I shall add the words of Chrysostom To Stelechtus [On Compunction, v|: “ But how may one worthily
set forth the facility given us for mutual commerce? For that the length of the journey might not
cause hindrance to visits to one another, everywhere in the world God has arranged a shorter way,
the sea, in order that, inhabiting the world as a common home, so to say, we might make frequent visits
to one another, and that every one, sharing his own goods with others, might profitably receive their
surplus in exchange; and that so, possessing only a small part of the earth, each might enjoy its fruits
from every quarter, as if he possessed it all. In fact now, just as at a common table, each of the guests
may pass the food in front of him to one sitting farther away, and receive the things in front of the
others by merely extending his hand.’

[Mare
Laberum,
vii and
x11,]

[Whether
Water or
Fwre ts
More
Useful,
P. 957A-]

[L] 209-
210. |

Tift [vi].

zr Knegs,
x. 28.

[Natural
History, |
AIT, xiv.

[IV. i. 8;
VIII. vi.
20.]

200 On the Law of War and Peace [Book II

another. And so He called commerce into being, that all men might
be able to have common enjoyment of the fruits of earth, no matter
where produced.’ Euripides also in the Suppliants, where he repre-
sents ‘Theseus as speaking, reckons navigation among the things
which human reason has devised for the common good, using these

words :
The sea we traverse, that by interchange
The lack of our own land we may supply.

In Florus are the words: ‘If you destroy commerce, you sunder the
alliance which binds together the human race.’

XIV.—W hether a tax may be imposed upon merchandise passing through
a country

1. But the question is raised, whether merchandise in transit
through a country, transported across the land, or by river, or over
a part of the sea which may be considered as belonging with the land,
can be made subject to taxes by him who holds the sovereign power
in the country.

Surely equity does not permit the imposition of any burdens
that have no relation to the merchandise actually in transit. Similarly,
a capitation tax levied on citizens to help carry the expenses of the
state cannot be collected from foreigners who pass through.

2. If, however, expenses are incurred in furnishing protection
for the merchandise, or other burdens also are increased on account
of it, then a tax may be levied upon the merchandise in order to make
reimbursement, provided that in determining the tax the amount
actually required shall not be exceeded;* for upon this depends
the justice of a tax as well as of tribute.

In accordance with this principle King Solomon received a tax
on horses and on linen thread which passed across the Isthmus of
Suez. Of frankincense Pliny says: ‘It cannot be exported except
through the territory of the Gebanites,? and so a tax is paid to their
king.’ Thus the people of Marseilles were enriched from the canal
which Marius had dug from the Rhone to the sea, ‘ collecting a
tax * from those who went up or down the river by ship,’ as Strabo
says in his fourth book. In the eighth book the same author tells
us that the people of Corinth even from the most ancient times

[126] * See the Law of the Lombards, xxxi. 33 [III. i. 31-2]; likewise the letter of the bishops
to King Louis, which is found in the Cap:tularies of Charles the Bald, chap. xiv [Mon. Germ. Hist.,
Leges, II, vol. II, p. 438].

2 A similar statement is found in Leo of Africa [Description of Africa, Book I], near the beginning.

* Anstophanes, alluding to this subject in the Birds [lines 190 ff.], wishes that the passage through
the air may be obstructed, that the gods may be compelled to pay a tax on the fumes of the burnt-
offerings.

Chap. 11] Of Things which belong to Men in Common 201

collected a tax on merchandise which, in order to avoid the circuitous
voyage around Cape Malea, was carried across the land from sea to
sea. In the same way the Romans received toll for the crossing of
the Rhine. ‘ Toll is paid even for crossing on bridges’, says Seneca.
In respect to the passage of rivers, the books of the jurists are full.

3. However, it frequently happens that the tax imposed is
unfair. ‘The emirs of the Arabs were charged with this abuse by
Strabo, who adds: ‘It is, in fact, difficult, among peoples that are
powerful and wild, to obtain the fixing of a tax that will not be
burdensome to the trader.’

[120] XV.—The right of temporary sojourn

1. To those who pass through a country, by water or by land,
it ought to be permissible to sojourn for a time, for the sake of health,
or for any other good reason; for this also finds place among the
advantages which involve no detriment. So in Virgil, when the
Trojans were forbidden to sojourn in Africa, Ilioneus dared to appeal
to the gods as judges. The Greeks viewed as well founded the com-
plaint of the people of Megara against the Athenians, who forbade
the Megarians to enter their harbours, ‘ contrary to common right,’
as Plutarch says. To the Lacedaemonians no cause for war seemed
more just.

2. A natural consequence of this is that it is permissible to
build a temporary hut, for example on the seashore, even if we
admit that possession of the coast has been taken by a people. For
when Pomponius said that an order of the praetor must be obtained
before one would be allowed to erect any building on a public shore
or in the sea reference was made to permanent structures. To such
the lines of the poet refer :

The fish are conscious that a narrower bound
Is drawn the seas around
By masses huge hurl’d down into the deep.

XVI.—Those who have been driven from their homes have the right to
acquire a permanent residence in another country, in submission to
the government there in authority

Furthermore a permanent residence ought not to be denied to
foreigners who, expelled from their homes, are seeking a refuge,
provided that they submit themselves to the established government

1 Servius comments on this passage [On the Aenezd, I, lines 540 ff.]: ‘ The possession of the shore
belongs to the occupant. Hence they are shown to be cruel who try to keep others from the enjoyment
of the common right.’ According to the statement of the same author [On the Aenerd, I, line 619],
Laomedon was killed by Hercules because he forced Hercules to leave the harbour of Troy.

Tac ,Hist ,
IV [Ixv. 6].
[De Const,
Sap , X1v.]

Choppin,
De Doma-
20, I. 1x
Pereg , De
Jure Fasen,
I.1 22

Angelus,
Cons., 190.
Zabarelia,
Cons., 38.
Firmanus,
in his De
Gabellts.
AVI [1.27]

Victoria,
Relect de
Inds, IT.
no I.

[A enerd,
I. 543-]
Pericles
[XX1X =
168 B].
Diodorus
Sic., XII
[xxx1x].
Thucy-
dides, I
[Ixvii].

[Digest,
XLI. i.
50.]

[Horace,
Odes, III.

i, 33+]

[Virgil,
A ened,
XII. rg2f.]

[Diony-
sius Hal.,]
T [Iviia).

XVIT
ft. rg].

On Duties,
III viz.

Herod.,

I [el] and
IV (cxlv].
Pausan.,
VII (11. 2].
Oroslus,
VIL; Dio-
dorus, V
[lvi11]

IV. vi

[ext. 3].

On the
A ened,
XI [316].

[ =p. 105
C |
Tacitus,
Annals,
XIII [lv].

On the Law of War and Peace [Book II

Z02

and observe any regulations which are necessary in order to avoid
strifes. This fair distinction the divine poet observes when he repre-
sents Aeneas as offering the following terms :

Latinus, as my sire, his arms shall keep,

And as my sire his sovereign sway shall hold

Inviolate.
In the work of the Halicarnassian, Latinus himself says that the
cause of Aeneas is just, if Aeneas had been forced to come to his
country by the lack of an abiding-place.

‘It is characteristic of barbarians to drive away strangers,’ says
Strabo, following Eratosthenes; and in this respect the Spartans
failed to gain approval. In the opinion of Ambrose, also, those who
keep foreigners out of their city are by no means worthy of approval.

In conformity with the principle stated the Aeolians received
the people of Colophon ; the Rhodians, Phorbas and his companions ;
the Carians, the people of Melos; the Lacedaemonians, the Minyae ;
and the Cumaeans, others who came to them. But in regard to the
Minyae, when, after being admitted, they demanded a share in the
government, Herodotus justly says: ‘They were insolent and did
what it was not right to do’; Valerms Maximus declared that they
returned a kindness by an injury.

XVII.—The right of possession over desert places in respect to foreigners,
and how this must be understood

Again, if within the territory of a people there is any deserted
and unproductive soil, this also ought to be granted to foreigners if
they ask for it. Or it is right for foreigners even to take possession
of such ground, for the reason that uncultivated land ought not to
be considered as occupied except in respect to sovereignty, which
remains unimpaired in favour of the original people.

To the Trojans seven hundred * acres of hard, rough land were
given, as Servius notes, by the Latin aborigines. In the seventh
Oration of Dio of Prusa we read: ‘ They who bring under cultiva-
tion an untilled portion of the earth commit no wrong.’

Once the Ansibarii cried out: ‘As the heavens were granted
to the gods, so the lands of earth were granted to the race of mortals,
and all lands that are unoccupied are public property. Nay more,
the barbarians raised their eyes to the sun and the stars and asked
these, as if speaking face to face, whether they wished to look upon
soil unoccupied ; rather might they pour the sea over it against the
monopolisers of the earth!’ However, the Ansibarii made an

1 The statement is derived from Cato, Sisenna, and others of the ancients (Servius, On the Aeneid,
XI, line 316].

Chap. 11] Of Things which belong to Men in Common 203

unfortunate application of these general principles to the case in
hand, for the lands requested were not vacant, but furnished pasturage
for the flocks and herds of the soldiers; and this consideration gave
the Romans a just cause for refusal. With no less justice the Romans
formerly asked the Senonian Gauls, ‘ What right they had to demand
land from the rightful owners, or threaten these with war ??

XVITI.—The right to such acts as human life requires

After the common right which relates to things follows the
common right which relates to [121] acts.

The common right relating to acts is conceded either directly
or by supposition. It is conceded directly in respect to acts indis-
pensable for the obtaining of the things without which life cannot
be comfortably lived. Here in fact the same degree of necessity is
not required as for taking another’s property; for it is not now
a question of what may be done against the will of an owner, but
rather of the mode of acquiring things with the consent of those
to whom they belong; provided only that no obstacle be interposed
by the passing of a law or by conspiracy. Such a hindrance, in fact,
is at variance with the nature of society in relation to those matters
of which I have spoken. This is what Ambrose? calls ‘ to separate
men from relation with their common parent, to refuse fruits freely
produced for all, and to do away with the community of life.’ For
we are here dealing not with things which are superfluous and minis-
trant to pleasures only, but with things which life requires, as food,
clothing, and medicines.

XIX.—The right to such acts as human life requires includes the right
to buy the things that are necessary

We affirm, therefore, that all men have the right to buy such
things at a fair price, unless they are needed by the person from whom
they are sought; thus in times of extreme scarcity * the sale of grain
is forbidden.

Not even in circumstances of so great need, however, can
foreigners, who have once been admitted to a country, be expelled ;

1 Plutarch, in his Pericles [xxix = 168 B], says of the Megarians: ‘They complained that, contrary
to the laws of nations, they were hindered from all trading, and expelled from every port which the
Athenians held.’ On the line of Virgil [Georgzcs, I. 53]: ‘ And what each land may bear, and what it
fails to yield,’ Seneca, Letters, Ixxxvii [20 f.], comments thus: ‘Those products were assigned to different
regions in order that commerce might be necessary for mortals, if they wished to get things from one
another.’ In another passage, Natural Questions, V. xviii, he says: ‘ What of the fact that he has
given to all peoples commerce with one another, and has mingled races separated far from each other ?’

See the complaints of the English against the Spaniards in De Thou, Book LXXI [LXXI. ij],
dealing with the history of the year 1580.

2 Cassiodorus, I, letter xxxiv [Var., I. xvii]: ‘A supply of grain ought first to advantage the
province where it grows.’

Livy, V
[xxxvi.5].

On Duties,
IIT vii

[45].

Covarru-
vias, Var.
Res., III.
xiv. 3.

Molina,
disp 105.
Aegidius
Regius,
De Acit-
bus Super-
naturale-
bus, disp.
31, dub 2,
no 52.
Caesar,
Gallic
War, I
[II. xv].
Strabo,
XVI

fiv. 26].

Livy, I
[ax. 4]

Livy, IV
frit. 4].

City of
God,
II. xvit.

Victoria,
Relec-
tiones [de
Inds], IT,
NO. 2, 3.

On the Law of War and Peace [Book II

204

but Ambrose shows, in the passage already cited, that a common
misfortune must be endured in common.

XX.—The right to such acts as human life requires does not oblige a man
to sell what belongs to bim

But there is not an equally valid right obliging a man to sell
what belongs to him; for every one is free to decide what he will
or will not acquire.

Thus the Belgians formerly did not permit the importation of
wine and other foreign wares. Of the Nabataean Arabs Strabo says :
‘Some goods it is permissible to import,’ but not others.’

XXI.—The right to such acts as human life requires includes the right
to seek marriages in foreign countries ; explanation

1. In this right, of which we have spoken, we think there is
included also liberty to seek and contract marriages among neighbour-
ing peoples ; as, for example, in case a large number of men has been
expelled from one place and has come to another. Although, to be
sure, It 1s not entirely repugnant to human nature for a man to
live without a woman, nevertheless this is repugnant to the nature
of most men. Celibacy is suited only to those who possess superior
endowments.

Men ought not, therefore, to be cut off from the opportunity
to secure wives. In Livy Romulus urges his neighbours ‘ that as
men they should not be reluctant to mingle their blood and race
with men’. In the same author, Canuleius says: ‘ We ask the right
of marriage, which is customarily granted to neighbours and to
foreigners.” In the opinion of Augustine, ‘The victor might by
right of war justly secure marriages which had been unjustly denied.’

2. The civil laws of some peoples, which deny the right of
marriage to foreigners, either support their contention by this con-
sideration, that at the time when the laws were passed there were
no peoples without an abundance of women, or else they do not
treat of marriages of all kinds but only of those which are regular,
that is, marriages which produce certain special effects in civil law.

XXII.—The right to do those things which are permitted without dis-
tinction to foreigners

A common right by supposition relates to the acts which any
people permits without distinction to foreigners; for if under such
circumstances a single people is excluded, a wrong is done to it.

* See Krantz, History of Saxony, Book XI [XI. iii].

Chap. 11] Of Things which belong to Men in Common 205

Thus if foreigners are anywhere permitted to hunt, fish, snare birds,
or gather pearls, to inherit by will, to sell property, and even to
contract marriages in case there is no scarcity of women, such rights
cannot be denied to one people alone, except on account of previous
wrong-doing.

It was for this reason that the rest of the Jews took away the
right of intermarriage from members of the tribe of Benjamin.

XXIII.—Such a right must be understood as applying only to things
permitied as 1t were by the law of nature, not granted as a favour

What we have said about permissible acts must be understood
as applying to acts which have been permitted as deriving from the
force of natural liberty, which have not been annulled by any statute
law; not as applying to acts which have been permitted by favour,
as an exception to the law. In the refusal of a favour there is no
Injustice.

In this way, we believe, it is possible to reconcile [122] what

Molina said, after Franciscus de Victoria, and as if in opposition to
him.

XXIV.—W hether a contract is permissible with a people that it should

sell its crops to those with whom it has made the contract, and not
to others

[ recall that the question has been raised, whether it is per-
missible for a people to make an agreement with another people
to sell to it alone products of a certain kind, which do not grow
elsewhere.

I think that this is allowable, if the people which buys is pre-
pared to sell to others at a fair price. It makes no difference, in fact,
to other nations, from whom they buy what satisfies the demands
of nature. It is lawful, however, for one people to anticipate another
in obtaining a pecuniary advantage, especially if there is a reason;
as, for instance, if the people which has obtained the concession has
taken the other under its protection and on that account is incurring
expense.

Such an arrangement to purchase, made with the intent of which
I have spoken, is not at variance with the law of nature, although in
practice it is sometimes forbidden by municipal law in the public
interest.

Judges,
XX.

Disp 105.

Dig. XLI.
ii. 3. § 21.

CHAPTER III

OF ORIGINAL ACQUISITION OF THINGS, WITH SPECIAL REFERENCE
TO THE SEA AND RIVERS

I.—T hat original acquisition is accomplished through division or through
occupation

[127] From the view-point of individual right a thing becomes
our own through acquisition, either original or derivative.

Formerly, when the human race could assemble, primary
acquisition could take place also through division, as we have said;
now it takes place through occupation only.

Il.—Jn this connexion other modes of acquisition, as the granting of an
incorporeal right, are excluded from consideration

Some one may perchance say that a kind of primary right is
acquired through the granting of a servitude, or the giving of a pledge.
To him who carefully weighs the matter, however, it will become
apparent that under such conditions there is no new right except in
form; for in essence the right was present in the proprietary right
of the owner

Ill.—The forming of a new property from existing materials 1s also
excluded from consideration

To the means through which acquisition may be accomplished
Paul the jurist adds also this—which seems altogether consistent with
nature—‘ that we have caused something to come into existence’.

In nature, however, nothing is produced except from matter
which previously existed. If, then, the material belonged to us, the
ownership of that which is produced will continue, even though
a new form is presented. If the material belonged to no one, in that
case acquisition will be classed under the head of acquisition by occupa-
tion. On the other hand, if the material used was the property of
another, the thing produced naturally does not belong to us alone,
as will become apparent later.

TV.—Occupation 1s twofold, having relation to sovereignty and to owner-
ship ; this distinction 1s explained
1. It is, then, occupation—which since those primitive times
has been, and remains, the only natural and primary mode of acquisi-
tion—with which we are concerned.
206

Chap. IIT] Of Onginal Acquisition of Things 207

Now in respect to that which, in a proper sense, belongs to no
one, there are two possible types of possession, sovereignty and owner-
ship, in so far as ownership is distinguished from sovereignty. The
difference between the two types is thus brought out by Seneca:
‘To kings* belongs the power over all things; to individuals, pro-
prietorship.’ Dio of Prusa makes the distinction clear in this way :
‘The territory belongs to the state, but none the less on that account
does each person in it have his own property.’

Sovereignty is customarily extended over two kinds of subject
matter. ‘The one, primary, consists of persons; this alone is some-
times in itself sufficient, as in the case of an army of men, women,
and children seeking new places of habitation. The other, secondary,
is extended over the place, which is called territory.

2. Although sovereignty and ownership are generally acquired
by a single act, they are nevertheless distinct.2, Consequently owner-
ship passes not only to citizens but also to foreigners, while the
sovereignty remains in the hands of him who previously held it.
Siculus, in his work On the Condition of the Fields, says: ‘ When the
lands assigned to colonies proved to be insufficient, those who were
in charge of the allotment and division assigned to future citizens
lands which they had taken from neighbouring territories. The
jurisdiction over the lands which were assigned nevertheless remained
under the control of those from whose territory they were taken.’

Demosthenes in his speech On Halonnesus calls the lands owned
by residents of a territory ‘ properties’, and those in a foreign terri-
tory ‘ non-resident properties ’.

V.—That the taking possession of movable things can be prevented
by law ,

We said above that in a place over which sovereignty has already
been asserted the right to acquire movable things through occupation
can be prevented by the municipal law.

This right exists, in fact, by permission of the law of nature,
not by a positive provision that such permission should always be

1 On Benefits, VII.iv [VII. iv. 2]. There follows also, v [VII. v. 1]: ‘ The king possesses all things
by sovereignty, individuals by ownership’ ; again, vi [VII. vi. 3]: ‘ The emperor possesses all things ;
the imperial treasury is his private property only.’ Symmachus, Letters, X. liv [lx = 592 D, Migne],
‘You rule all things, but you guard for each man his own.’

Philo, On Noah's Planting [xiii]: ‘Although kings are masters of all things which are under
their sway, even of those things which are the property of individuals, nevertheless they seem actually
to have only that money the expenditure of which they commit to their governors and treasury officials,
from whom. they receive their annual income.’ Pliny the Younger, Panegyric [l. 2]: ‘Nevertheless the
sovereignty of the emperor is greater than his inherited estate.’

2 So you may see in Apollodorus [Lzbrary, ITI. 1x. 1; xv. 1] that the lands, now of Arcadia, now
of Attica, were divided, while ‘all sovereign power’ remained in the hands of one.

1569-27 Q

Ovations,
XZX1

[= 324].

[vii. 42
= 87.]

Galatians,
iv. I.

208 On the Law of War and Peace [Book II

granted ; for no such provision is demanded by the requirements of
human society.

If some one says that there seems to be a law of nations implying
such permission, I shall answer that, although in some parts of the
world this is, or has been, the common usage, nevertheless such
usage does not have the force of an agreement between nations, but
is the expression of a law received by several countries individually,
which can be abrogated by each of them. There are also many
other practices which jurists, when they are dealing with the division
of property and the acquisition of ownership, consider as belonging
to the law of nations.

VI.—On what right the ownership of property by infants and by insane
persons rests

It must be noted, further, that if we have in view the law of
nature alone, ownership [128] is restricted to those who are
possessed of reason. But in the common interest the law of nations
introduced the provision, that both infants and insane persons should
be able to acquire and retain ownership—the human race, as it were,
meanwhile representing them.

Human laws indisputably have it in their province to go further
than nature in regard to many points, but never to go contrary to
nature. Hence this type of ownership, which by common acceptation
of civilized nations has been introduced in favour of infants and those
of similar condition, is limited to the first act, as the Schools say,
and cannot extend to the second act; that is, it covers the right of
proprietorship, but not the right of the owner himself to use what
he owns. For alienation, and other acts similar thereto, by their
very nature presuppose the action of a will controlled by reason,
and in such persons a will subject to reason cannot exist. At this
point you might not inappropriately refer to the statement of the
Apostle Paul, that an heir, although the owner of an ancestral estate,
while he is under age, differs in no respect from the bond-servants,
of course as regards the exercise of the right of ownership.

We commenced above to say something about the sea; this
ought now to be completed.

VII.—T hat rivers can be acquired by occupation

By occupation rivers can be acquired even though neither their
upper nor their lower course is included in the same territory, but
they are connected with water at the upper and the lower end, or
with the sea. It is sufficient that the greater part, that is that the

Chap. IIL] Of Original Acquisition of Things 209

sides, shall be enclosed by banks, and that the river by itself shall

be small in extent in comparison with the land.

VIII.—That a part of the sea can likewise be acquired

In the light of the example just given it would appear that the
sea also can be acquired by him who holds the lands on both sides,
even though it may extend above as a bay, or above and below as
a strait, provided that the part of the sea in question is not so large
that, when compared with the lands on both sides, it does not seem
a part of them.

The same right, further, which is conceded to a single people
or king, appears to be conceded also to two or three, if they have
wished to occupy jointly a sea situated between them; in this way,
in fact, rivers which flow between two peoples have been jointly
occupied, and then divided.

IX.—That formerly in the countries constituting the Roman Empire
such ownership of a part of the sea was not conceded

1. It must be admitted that, in the parts of the world that
were known in connexion with the Roman Empire, from the earliest
times even down to Justinian, it was not permitted by the law of
nations that the sea be acquired by states through occupation, even
in respect to the right to fish. Heed should not be paid to those who
think that when, in the Roman law, the sea is spoken of as common
to all, the meaning is that the sea is the common possession of all
Romans. For in the first place the expressions are so general that
they do not admit of such restriction. The expression in Latin
meaning ‘ the sea is common to all’ is interpreted by Theophilus
in Greek, ‘is common to all men’. Ulpian said that by nature the
sea lies open to all, and so belongs to all just as the air does. Celsus
declared that the use of the sea is common to all men.

The jurists, furthermore, clearly distinguish the public posses-
sions of a people, in which rivers, too, are included, from things that
are common. ‘Thus we read in the Institutes, ‘ By the law of nature
some things are common? to all, some things are public property.
...Common to all by the law of nature are the following: air, running
water, the sea, and, in consequence, the shores of the sea. All rivers
and harbours, however, are public property.’ The statement by
Theophilus is: ‘ Therefore by the law of nature these things are
common to all men, the air, ever-flowing water, the sea’; presently

1 Michael Attaliates [Synopsts, ii]: ‘ Certain things belong to all people, as the air, running water,
the sea, and the shore of the sea.’

Q2

Dig. I,
VIL. 2.
Institutes,
IL. i. x.

Dig. VIII.
iv. 13.
Digest,
XLII.
Vill. 3.

II. 1. 1.

Dig. XLI.

i 1X4.

Digest,
XLITI.
V1. 3.

Dig. XLI.

i. 50.

Digest,
XLIV.
ll. 7.
Digest,
XLVII
x. I4.

On the Law of War and Peace [Book II

210

he adds, ‘ But all rivers and harbours are public possessions, and
these now belong to the Roman people.’

2. Of the shores of the seat Neratius said that they are not
public possessions in the sense that those things are which have
become the possession of a people by inheritance, but as those things
which were at first the gift of nature and have not yet become subject
to the ownership of any one, that is, not even of a people. This
opinion is clearly at variance with what Celsus wrote: ‘I think
that the seashores, over which the Roman people possesses sovereign
power, [129] are the property of the Roman people, but that
the use of the sea is common to all men.’

These opposing views can evidently be reconciled if we say that
Neratius is speaking of the seashore in so far as its use is necessary
for those sailing the sea, or passing by, while Celsus is speaking of it
with reference to possession for a use unlimited in time, as for a per-
manent structure. In the latter case, Pomponius tells us a permit
was wont to be obtained from the praetor, just as a permit was
required for the construction of a building in the sea, that is, in the
part nearest the shore, which is reckoned as belonging to the shore.

X.—That nevertheless the law of nature does not present any obstacle
to such acquisition in respect to a part of the sea which 13, as tt were,

shut in by lands

1, Although what was just said is true, nevertheless it has resulted
from established practice? rather than from natural reason that the
sea was not occupied, or could not lawfully be occupied, in the sense
in which we have spoken. A river also is public property, as we
know, and yet the right to fish in a branch of a river can be acquired
by an individual by occupation. But even concerning the sea Paul
said: ‘If a man does have a right of property in it, he is entitled
to a decree of court protecting him in his possession’; the reason is
that the case affects a private and not a public interest, since the
question at issue concerns a right of user, which is inherent in a private,
not a public matter. Paul’s statement without doubt refers to a small
portion of the sea * which is admitted into a private estate; we have

1 In Selecitons from the Basta, I. 1,13: ‘The shores are under the power of all.’ See also

LITI. vi.
® Such an established practice the English also utilized against the Danes. See the excellent

Camden, Elzzabeth, year 1600.
® Sallust [Catline, xiii]: ‘ Mountains have been overthrown, seas have been built up by many
private persons.’ Horace, Odes, IT. xvui [II. xviii. 20] :
The shores of the sea against Baiae resounding
You are extending ;
and again, Odes, ITI. i [III. i. 33]:
The fishes feel the seas are smaller made
By mighty structures built out in the deep.

Chap. III] Of Original Acquisition of Things 2II

read that such use of the sea was made by Lucullus+ and others.
Of Gaius Sergius Orata, Valerius Maximus says: ‘ He made seas his
individual possessions by shutting up waters in the inlets.’

Afterward, in opposition to the opinions of the earlier jurists,
Leo the Emperor extended the same law to the mpéévpa, that is,
the waters in front of villas, on the Thracian Bosporus,? so that these
waters also could be shut in by certain barriers, which they called éroyés
(bars), and could thus be claimed as private property.

2. Nowifa part of the sea can be added to estates of individuals,
provided, of course, that it is enclosed and is so small that it can be
considered a portion of an estate, and if the law of nature presents
no obstacle to such procedure, why, also, may not a part of the sea
enclosed by shores belong to that people, or to those peoples, to
which the shores belong, provided that part of the sea, when com-
pared in extent with the land of the country, is not larger than an
enclosed inlet of the sea compared with the size of the private estate?
That no objection can be raised on the score that the sea is not
enclosed on all sides, can be understood from the example of the
river and the admission of the sea into a villa.

3. But many things, which were permitted by nature, universal
customary law, by a kind of common understanding, has been able
to prohibit. Consequently, wherever such a law is in force, and has
not, by common consent, been abrogated, a portion of the sea, how-
ever small and almost enclosed by shores, cannot become subject to
the ownership of any people.

Velleius Paterculus [II. xxxiii] speaks of ‘huge masses cast into the sea, and the sea received
within hollowed mountains’. Seneca, Coniroverstes, V.v, has this: ‘The seas are pushed back by the
mighty foundations hurled in.’ Pliny says of the land, [Natural Hzstory,] II. xxxiti [IT. Imi. 157]:
“A way is washed out by waters that we may cause the sea to enter.’

Lampridius in his life of Severus [Alexander Severus, xxv. 10] mentions huge fish-ponds made by
admitting the sea ; Cassiodorus [Vartae], IX. vi: ‘ With how great masses of rock there have the bounds
of the sea been fittingly entered ? How far has the earth been pushed forward into the heart of the
sea?’ Tibullus [TE. in. 45 f.].

And moles shut in the untamed sea, that sluggish fish
Within the threats of winter’s storms may disregard.

Pliny, [Natural History,] Book XXXI, vi, treats of such sea fish-ponds; also Columella, [134]
On Farming, Book VIII, xvi and xvii, where, among other remarks, this is found: ‘ The luxury of the
rich has shut in the very seas and Neptune.’ Ambrose, Hexaemeron, V. x [V. x. 27], and On Naboth,
iit [r1-12], have similar remarks ; also Martial, in several passages [as X. xxx. 10 ff.].

1 Varro [On Farming, III. xvii. 9] says concerning him : ‘ After Lucius Lucullus had cut a channel
through a mountain near Naples and had let the water of the sea into his fish-ponds, so that they
would ebb and flow; he would not yield to Neptune in the matter of fishing’

Plutarch in his life [Lucullus, xxxix = 518 c] says that ‘he placed around his villas ponds of sea-
water and straits full of fish, and built dining-rooms over the sea itself.’

Pliny, IX. liv [Natural History, IX. liv. 170]: ‘ By cutting a channel through a mountain near
Naples Lucullus made a strait and brought in the sea at greater expense than it had cost to build the
villa. And for this reason Pompey the Great used to call him the Xerxes of peace.’

4 See the Novellae of Leo, lvii, cui, ciii, civ; Attaliates, Pragmatica, xcv ; Harmenopulus, Book II,
i, sec. wept mpodvpayv, See also that very able man, Jacques de Cujas, Observations, XIV-i.

Digest,
XLVII. x,
13. § 7.

Digest,
XLI, 111.
45-

212 On the Law of War and Peace [Book II

XI.—Jn what way such possession may be taken, and how long it will last

It must also be noted that if in any place this universal cus-
tomary law in regard to the sea has not been accepted, or has been
abrogated, from the mere fact that a people has taken possession of
the land, the inference would nevertheless not be warranted that it
has obtained possession of the sea also; that, further, an act of the
mind is not sufficient, but that there must be an outward act from
which the taking of possession may be understood.

But if, on the other hand, possession resulting from occupation
is abandoned, the sea again comes under the law of nature, that 1s,
it is restored to common use. ‘This opinion Papinian gave regarding
the right to build on a shore and to fish in a branch of a river.

XII.—That such possession does not give the right to impede innocent
passage

It is certain that one who has occupied a part of the sea cannot
hinder navigation which is without weapons and of innocent intent,
when such a passage cannot be prevented by land, where it is generally
less necessary and more productive of damage.

XIII.—That sovereignty can be acquired over a part of the sea, and in
what way

1. It has, however, been a fairly easy matter to extend sover-
eignty only* over a part of the sea without [130] involving the

1 Philo, speaking of kings [Ox Noah’s Planting, xvi], says: ‘They have added to the lands
also the seas, unlimited in number and immense in size.’ Lycophron [Alexandra, line 1229] mentions
Sceptres over land and sea, and power of kings.
Virgil [Georgics, I, line 31]:
And thee as son-in-law would Tethys buy
With all her waves.

Julius Firmicus [Mathesis, VI. 1]: ‘ Possessing the sovereignty of sea and land.’ Nonnus [Dionysiaca,
XLII, line 474]: ;
And in her power Beroe held the sea.

John Magnus, History of the Archbishops of Upsala, xv, says that the boundary of the kingdom
of Sweden was in the middle of the strait of Oresund. Curtius [IV. iv. 19] says of Tyre; ‘It brought
under its sway not only the neighbouring sea, but all the seas where her ships sailed.’ Hence arose
the proverbial expression ‘Tynan seas’, found in Festus [under the word Tyrza, p. 355, Mueller].

Isocrates [Panathenaic Oration, xvili =p. 243 C] says of the Lacedaemonians and Athenians: ‘It
came 10 pass that each state became the mistress of that land which was adjacent to the sea possessed
by it and held the most of the cities im subjection.’ Demosthenes, in his second Philippic [ix. 47 = 123],
says of the Lacedaemonians: ‘They were holding all the sea and the land.’ The wniter of the lite
of Timotheus [Nepos, Tzmotheus, u]: ‘And because of this act the Lacedaemonians abandoned their
long contest and of their own will yielded the supremacy in sea power to the Athenians.’

The writer of the oration in regard 10 Halonnesus, which is included among the works of Demo-
sthenes [On Halonnesus, vii. 14 = 80], speaking of Philip of Macedon, says: ‘He seeks nothing else
than to be established by us in the possession of the sea and to force a confession from us that without
him we cannot retain even the guardianship of the sea.’

Julian the Emperor said of Alexander [Orations, III. 107 c] that he planned war with this intent,
‘that he might become the lord of all land and sea’. His successor, Antiochus Epiphanes, according

Chap. IIT] Of Onginal Acquisition of Things 213

right of ownership; and I do not think that any hindrance is put
in the way of this by the universal customary law of which I have
spoken. In ancient times the Argives complained to the Athenians
because the Athenians had permitted the Spartans, enemies of the
Argives, to pass through their sea; the Argives alleged a violation
of the treaty, in which it had been provided that neither of the two
peoples should permit the enemies of the other to pass ‘ through
places under its jurisdiction ’.

During the year’s truce in the Peloponnesian war, furthermore,
permission was granted to the people of Megara to sail on ‘ the sea
belonging to their own land and that of their allies’. Similarly,

to Gononides [Josippon, or Joseph ben Gorion: cf. Josephus, Antiquities of the Jews, III. xu], asks:
‘Are not the land and the sea mine?’ Concerning Ptolemy, another of Alexander’s successors,
Theocritus [Jdyls, xvii. 76] says:
And over many lands and over many seas he rules.
[135] Also [Idyls, xvii. 91 f.] :
And all the land and sea,
Deep-sounding rivers, too, are ruled by Ptolemy the king.

But it is time to come to the Romans. According to Livy [XXX. xxx. 26], Hannibal said to the
Elder Scipio: ‘ We Carthaginians, shut in by the shores of Africa, see that you, since the Gods have
so willed, are ruling over the realms outside on land and sea.’ Claudian [On the Consulshtp of Stiltcho,
III, Preface, lines 7-8] says of the Younger Scipio:

When first avenger of his country’s slain
He forced the Spanish ocean under laws,

So the Romans generally call the Inner Sea their own; thus Sallust [Jugurthine War, xvii. 4];
Florus [I. xl. 9] ; Pomponius Mela [I. v. 25], and others. But Dionysius of Halicarnassus [I. iii. 3]
adds still more: ‘ The Roman people rules the whole sea, not only that within the Pillars of Hercules
but also the outside ocean, so far as 1t is sailed upon.’ Dio Cassius [Themistius, Oraitons, xix = 227 B]
says of the same people: ‘ They rule over almost all the land and sea.’ Appian in his Preface [ii],
describing the greatness of the Roman Empire, enumerates under its dominion the Black Sea, the Sea
of Marmora, the Hellespont, and the Aegean, Pamphylian, and Egyptian seas. To Pompey was given
the military command over all the sea that lies within the Pillars of Hercules; thus Plutarch [Pompey,
xxv =631| and Appian [Mzthridatic Wars, xiv. 94].

1 Philo, Against Flaccus [xi]: ‘ And from this the house of the Caesars acquired empire over land
and sea.’

Of Augustus, Ovid [Metamorphoses, XV, line 831] says: * The sea also shall serve him.’

Suetonius [ Augustus, xxii] records an inscription in his honour: ‘ After subdwng the earth and
the sea Augustus closed the gate of Janus Quirinus, since peace had been thrice won on land and sea.’
Speaking of the same Aypgustus he adds [xlix]: ‘He stationed a fleet at Misenum, and another at
Ravenna. for the defence of the Upper and Lower Sea.’

Valerius Maximus says to Tiberius [I, Preface]: ‘ The agreement of men and gods has willed that
the rule over sea and land should belong to you.’ Of the same emperor, Philo [On the Embassy to
Gaius, xxi] says: ‘He embraced in his rule both land and sea’ ; and he states [i1] concerning Gaus,
the successor of Tiberius, that ‘after the death of Tiberius, Gaius received the sovereignty of all land
and sea.’

Josephus [Jewssh War, III. visi. 9] calls Vespasian ‘lord of land and sea.’ Likewise in several
passages Aristides assigns the same right to Antoninus [Orations, ix. 66119]. Procopius [On the
Buildings of Justinian, 1.11. = 398] relates that there were statues of the emperor represented as holding
the earth in his hand, ‘ because land and sea were subject to him’.

In the letters of Louis II the patrician Nicetas is protector of the Adriatic shore [Goldast, Consttiut.
Impernal , 1.118]. Constantine Monomachus is called in history ‘emperor and lord of land and sea’
[Joannes Episcopus Euchaitensis, Versus Iambici, 1224]. The Aegean Sea is reckoned among the
provinces of the Roman Empire [Constantine Porphyrogenitus, On the Provinces, I. xvi]. Procopius,
Gothic War, III [SII. xxxiu], relates that the Franks ruled the sea about Marseilles. Concerning the
rights of the Republic of Venice, see Paruta, Book VII, and his special history of the Uscochi.

To these authorities may be added the modern jurists On Sexi, I. vi. 3; Bartolus, Angelus, Felinus,
On Decretals, V. vi. 17; Baldus, On Digest, I. viii, col. 2; Afflictis, On Peuds, II. lvi; Cacheranus,
[136] Decistones Pedemontanae, clv, no. 4, where following Baldus he says that all the world uses
this law; Alberico Gentil, Advocatio Hispanica, I. viii.

Bossius,
tit. De
Aquis,
no. 36,
citing
Baldus,
Caepoila
etal. See
Code, XI.
Xui. I
Thucy-
dides,
Book VII
[V. lvi].
Thucy-
dides,
Book ITV
[exvill].

[XLII. v.]

[Halteut.
III. 4]

[xxx1lV =
45D ]

[A ened,
I, 236.]

[A ttt
Nuighis,
XxX, vu.]
IV i. 5].
XIT

fuua. rT].

On the Law of War and Peace [Book II

214

Dio Cassius, in his forty-second book, spoke of ‘all the sea which
belongs to the Roman Empire’. Themistius refers to the Roman
Emperor as ‘ holding the land and the sea as subject to himself’.
Oppian thus addresses the Emperor :

For subject to thy law sea’s waters roll.

Dio of Prusa, again, in his second speech to the people of Tarsus,
said that many favours had been bestowed on that state by Augustus,
among them ‘ the jurisdiction over the river Cydnus and the nearest
part of the sea.’ In Virgil we read :

That they in uncontested sway the sea,
The lands, should hold.

Gellius writes of the ‘rivers that flow into the sea, which is
subject to the power of Rome’. Strabo notes that the people of
Marseilles had taken much booty, having conquered in naval battles
‘those who unjustly contended for control of the sea’. ‘The same
author says that Sinope asserted sovereignty over the sea as far as
the Symplegades.

2. It seems clear, moreover, that sovereignty over a part of
the sea is acquired in the same way as sovereignty elsewhere, that is,
as we have said above, through the instrumentality of persons and
of territory. It is gained through the instrumentality of persons if,
for example, a fleet, which is an army afloat, is stationed at some
point of the sea; by means of territory, in so far as those who sail
over the part of the sea along the coast may be constrained from the
land no less than if they should be upon the land itself.

XIV.—That for certain reasons a tax can be laid upon those who sail
upon the sea

It will not, therefore, be contrary to the law of nature or of
nations if he who has taken upon himself the burden of protecting
navigation and of making it safe by night-flares and marks indicating
shoals * shall impose a fair tax on those who sail.

1 The Rhodians formerly collected port duties from the islands, also from Pharos near Alexandria,
as Ammianus Marcellinus, Book XXII [XXII. xvi. ro], testifies. Caesar [Gallsce War, III. vi. 1] says
of the Veneti in Gaul: ‘They collected tribute of almost all who were accustomed to sail in the
same sea, since it was very rough and open and there were few ports, which they themselves held.’

Florus [II. vi. 2] says of the Romans [Carthagimans]: ‘This famous people, after control of the
sea had been taken away and their islands captured, was ashamed to pay the tribute which they had
been accustomed to levy.’

Pliny, VI. xxii [Natural History, VI. xxii. 84], makes mention of Annius Plocamus, who had bought
from the Imperial Treasury the customs duties for the Red Sea; and in the following chapter, treating
of the sea on which one sails to India, he reports: ‘Every year ships with cohorts of bowmen sailed
over it; for pirates were especially troublesome.’

As to the due amount of the tax, see also the excellent discussion in Camden’s Elizabeth, years
1582 and 1602.

Chap. IIT] Of Oniginal Acquisition of Things 215

Such was the toll collected by the Romans for the navigation of
the Red Sea, in order to defray the costs of the maritime force
maintained against the expeditions of pirates. Such, too, was the
‘transit tax’ which the people of Byzantium collected for the naviga-
tion of the Black Sea, which, in earlier times, the Athenians, obtain-
ing possession of Chrysopolis, had collected for the use of the same
sea; to both facts Polybius bears witness. That the same Athenians
formerly collected such a tax for the passage of the Hellespont Demo-
sthenes shows in his speech Against Leptines*; and Procopius in his
Secret History relates that the Roman Emperors levied such a tax
also in his time.

XV.—Of the agreements which forbid a people to sail beyond certain

bounds

I. Examples of treaties are to be met with in which one people
binds itself to another not to sail beyond a certain limit. Thus in
ancient times an agreement was made between the kings who were
in power about the Indian Ocean and the Egyptians, that the latter
should not come into the Indian Ocean with a war-ship, or with
more than one merchant ship. Thus in the time of Cimon ? it was
agreed between the Athenians and the Persians that no armed Persian
ship should sail between the Symplegades and the Swallow Islands ;
after the battle of Salamis, the agreement defined the limits as
between the Symplegades and Phaselis. In the year’s truce of the
[131] Peloponnesian war it was agreed that the Lacedaemonians
should not go to sea with war-ships, and not with other ships of more
than five hundred talents burden.

In the first treaty which, immediately after the expulsion of
the kings,* the Romans made with the Carthaginians, they agreed

1 Herodian in his life of Severus [III. i. 5] mentions the tax levied by Byzantium ; Procopius in both
his public and Secret History [xxv] mentions the ancient tax at the Hellespont, and also the new tax
at the entrance to the Black Sea and at the Strait of Byzantium. Theophanes informs us that the
tax of Byzantium was collected at the Blachernian temple, and the tax of the Hellespont at Abydos.
Agathias, V [V. xii] calls the Abydos tax a ‘ tithe’, that 1s, a tax of one tenth. Irenedimmushed it. The
Emperor Immanuel Comnenus granted to some monasteries ‘ revenues from the sea’, as Balsamon states
on the Council of Chalcedon, can. iv, and Synod VII, can. xii.

2 In the same chapter [Agaznst Leptines, xx. 60 = 475A] he says that after taking Byzantium the
Athenians became the masters of the sea. The Scholiast Ulpian [vol. II (Basle, 1572), p. 134 C] says
that a tax of a tenth was paid there.

8 This is ‘a very notable treaty of peace’, as Plutarch calls it [Czmon, xiu = 4874]. In it this
also was stipulated, that the Persians should keep away from the sea the length of a race-course for
horses, that is, forty stadia; Isocrates also mentions it in the Panathenatc Oration [xx = 244 E].

4 Servius, On the Aeneid, IV [IV, line 628], ‘Shores opposed to shores’, says: ‘ Because it had been
provided in the treaty that neither should the Romans approach the shores of the Carthaginians,
nor the Carthaginians the shores of the Romans.’ Similar was the Roman treaty with Tarentum,
‘that the Romans should not sail beyond the Lacinian promontory’. This is found in the Selections
on Embassies from Appian [=Sammnite History, vii. 1]. Strabo, Book XVII [Xvi i. 19], relates
that foreign ships which sailed to Sardinia or beyond the Pillars of Hercules were sunk by the
Carthaginians.

Pliny,

[Natural
History, |
AIX. 1v.

Strabo,
XVII

fi. 13].
[IV. xliv.]

[xx. 60
= 4754 |
[Xxv.]

Philo-
stratus,
Life of

A pol-
lonws of
Tyana,
JIT.

xi [35].
Plutarch,
Cimon
[x1i1 =
486 f.].
Diodorus,
XI [si].
Arist.,
Panath.
[= 2948].
Thuc., IV
[exvi11].
Polybius
[III. xxu.

4].

Appian,
Illyrian
Wars

fu 9].
Livy,
XXXVIII
[XXXVI11.
9].

Digest,
VIII. iv.
13.

Julius
Fron-
tinus,
[De
Agrovum
Qualitate,
Pp. 38].

On the Law of War and Peace [Book IT

2160

that neither the Romans nor their allies should sail beyond Cape
Bone, except when driven by storm or by the force of an enemy ;
further, that any who might have been forced to pass that limit
should take nothing except necessaries and should leave within five
days. In the second treaty,’ the agreement was that the Romans
should not go for plunder or for trade beyond Cape Bone, Massia,
and Tarseia. In the treaty of peace with the [llyrians it was deter-
mined that the Illyrians were not to sail beyond Lissus with more
than two boats, such boats to be unarmed. In the terms of peace
with Antiochus, it was stipulated that he should not sail this side
of the promontories of Calycadnus and Sarpedon, excepting with
ships which carried tribute, ambassadors, or hostages.

2. Such examples, nevertheless, do not show that occupation is
had of the sea or possession of the right of navigation. Peoples, just
as individuals, can in fact by agreements grant in favour of one con-
cerned not only a right which they possess in their own name but
also a right which they hold in common with all men. When this is
done, the principle must hold which Ulpian stated in a case of this
kind, in which an estate had been sold on the condition that tunny-
fishing should not be carried on to the detriment of the seller;
Ulpian declared that a servitude could not be imposed upon the sea,
but that good faith in the contract demanded that the stipulation
of sale be lived up to; that in consequence the persons of the posses-
sors, and of those succeeding to their right, were bound by the
agreement.

XVI—Whether or not a change in the course of a river involves a change
of territory 15 set forth, with a distinction

I. When a river has changed its course frequently strifes arise
between neighbouring states over the question whether at the same
time the limits of jurisdiction are changed, and whether any additions
made by the river belong to those to whose territories they have
been added.

Disputes of this sort should be settled according to the nature
and mode of acquisition. The surveyors tell us that there are three
kinds of lands: the first, divided and allotted land, which the jurist

1 In this was also the stipulation that the Romans should not land in Africa or Sardinia, except
for the purpose of getting provisions or refitting their ships. After [by error instead of Before] the
third Pumic War the Carthaginian senate was complaimed of, because contrary to the treaty it was
maintaining an army and had naval equipment. The reference is Livy, [Epz/ome,] xlviii and lix [xix].

Similar is the grant obtained by the Sultan of Egypt in a treaty made with the Greeks, that he
should be allowed once a year to send two ships through the Bosporus, as we find in Gregoras,
Book IV [IV. vii. 60 c].

Among earlier examples, the peace with Antiochus contained this provision, that he should not
have more than twelve armed ships; Appian, Syrian Wars [vu 39]. Armed ships are forbidden by
the Venetians [137] to enter the Adnatic Sea, on ground of treaties ; see De Thou, Book LXXX
[LXXX. x], dealing with the year 1584.

Chap. IIT] Of Original Acquisition of Things 217

Florentinus calls delimited, because it has limits set off by artificial
boundaries; the second, land allotted as a whole, or designated by
measure,* as by hundred-acre parcels and by acres; and land having
natural frontiers, which is so called, as Varro says, because it has
boundaries suitable for keeping off enemies, that is, natural boundaries,
as rivers and mountains.” ‘These last are called by Aggenus Urbicus
‘lands under occupation ’, since in most cases they are lands occupied
either because they are vacant, or by right of war.

In the case of the first two kinds of lands, even though a river
changes its course no change of territory is occasioned; and if any-
thing is added by alluvial deposits this will fall under the jurisdiction
of the previous occupants.

2. In the case of lands having natural frontiers, a river by
gradually changing its course * changes the boundary also, and what-
ever the stream adds to either side becomes subject to the jurisdiction
of the state to whose territory it is added; it is in fact believed that *
both states originally took possession of their territories with the
intention that the river lying between should separate them as a
natural boundary. ‘Tacitus said: ‘ From this point the Rhine has
a well-defined channel, which is suitable to serve as a boundary.’ °
In his account of the dispute between the peoples of Segesta and
Selinus Diodorus Siculus remarks: ‘A river serves as boundary
between their territories.’ Xenophon calls such a river simply ‘ the
marker of limits’, that 1s a boundary stream.

3. The ancients relate that the Achelous river was of uncertain
course, now dividing up into channels, now winding about in circuitous
detour (whence it is said to have assumed the form of a bull and
a serpent); and that for a long time it furnished a cause of war to
the Aetolians and Acarnanians regarding the lands bordering upon
it, [132] until Hercules restrained it by dikes. In recognition of
this service Hercules obtained in marriage the daughter of Oeneus,
king of the Aetolians.

XVII.—W hat conclusion is to be reached if the bed of a river has been
completely changed

1. What has been said will be applicable only in case the river
has not changed its bed. For a river, even where it serves as a boun-

1 See an example in Servius, On the Eclogues, TX [TX, lines 7 and 28]. ;

2 Tacitus, On ihe Customs of the Germans [i]: ‘It is separated from the Sarmatians and Dacians
by mutual fear, or by mountains.’ Pliny, Book XXXVI [Natural History, XXXVI. 1. 2], speaking of
the Alps: ‘ We are carrying away what was set up as boundaries to separate nations.’

See Joannes Andrea and others cited by Reinkingk, I. v. i. [I. v.1. 85].

4 An example is the mver Vedasus [Bidassoa], in Mariana, Book XXIX [History of Spain, XXIX.
xxi].

: Spartianus, Hadrian [xit. 6]: ‘In very many places where the barbarians are separated not
by rivers but by boundary lines.’ Constantine Porphyrogenitus, [On the Government of the Empire,]
xlv, calls the river Phasis ovvopoy, that is, forming a boundary.

Dig. XLI.
i. 16.

[p. 45,
Goes.]

On the
Customs
of the
Germans
[xxx].
XII
(ixxxi].
Anabasis,
IV

[vaii. x].

Strabo,
X {i1. ro].

Dig. V. 1.
76,

Digest,
AXLITI.

EX. 3. § 2.

218 On the Law of War and Peace [Book II

dary between countries, is not considered to be merely where the
water is, but where the water flows in a certain channel, and is confined
by certain banks. Wherefore the addition or removal of particles, or
such a change as leaves the former appearance of the stream sub-
stantially unchanged, permits the river to seem the same.

If, however, the appearance of the river as a whole be at the
same time changed, the case will be different. As a river which has
been blocked by a dam in the upper part of its course ceases to
exist, and a new river is formed in the excavated channel into which
its water is conducted, so if a river, abandoning its old course, has
burst through in a different channel,’ it will not be the same as it
was before, but a new river, the former river having ceased to be.
In such a case the boundary of a country would- remain in the middle

_of the channel which had last existed, just as if the river had dried

up. For it must be held that the purpose of the peoples was to
accept the river as a natural boundary between them. If, then, the
river had ceased to exist, in that case each would retain what he had
previously possessed. In like manner, when the channel changes,
the same rule ought to be observed.

2. In cases of doubt, however, sovereign states which border
on a river must be considered as having a boundary set off by a natural
frontier ; nothing, in fact, is more suitable for separating such states
than a boundary which is not easily crossed. It less often happens
that states have boundaries set off by an artificial line of demarcation,
or designated in terms of extent; but such cases arise less frequently
from primary acquisition than from a grant made by another.

XVIII.—T hat sometimes an entire river belongs to a territory

Although, as we have said, in case of doubt the jurisdiction of
two states bordering on the same river extends to the middle of the
stream, nevertheless it might happen, and we see that in some places
it has happened, that the river as a whole belongs to the one state ;
the reason being, of course, that jurisdiction over the opposite bank
began to be exercised at a later time, after the river had already
been occupied, or that the matter had been settled in such a way
by agreement.

XIX.—That things which have been abandoned become the property of
him who takes possession of them, unless a state has acquired a general
right of ownership over them

I. It is not out of place to remark also that primary acquisition
must be conceded as possible in the case of those things which have

7 As the river Bardanus [Vardar], mentioned by Anna Comnena, Book I I. vii].

Chap. IIT] Of Onginal Acquisition of Things 219

had an owner, but have ceased to have one, either because they have
been abandoned, or because there are no longer persons having the
right of ownership over them. Such things have returned to the
condition in which they originally were.

2. The following point, however, must at the same time be
noted, that sometimes primary acquisitions by a state or by the head
of a state have been so made that not only the sovereignty—in which
is included the right of eminent domain, of which I have treated
elsewhere—but also full private ownership was first acquired in
common for the state or its head; and that then a distribution was
made individually to private persons, in such a way, nevertheless, that
their ownership was dependent on that earlier ownership—if not in
the way that the right of a vassal is dependent on the right of his
lord, or the right of the permanent tenant on that of the landowner,
yet in some other way that is less binding ; for there are many forms
of right over property, among which also is the right of one who
administers a bequest for the benefit of some one else.

Says Seneca:* ‘ It is no proof that a thing is not yours, because
you cannot sell it, or use it up, or injure or improve it. For that
also belongs to you which is yours under a definite stipulation.’
Dio of Prusa in his Speech to the Rhodtans said: ‘ There are many
and very different ways in which a thing may be said to belong to
one; sometimes it is not permitted to sell, or to use according to
one’s own desire.’ In Strabo I find the statement: ‘ He was owner
except for the right to sell.’

Tacitus presents among the Germans an example of what we
have been saying: ‘ Lands proportionate to the number of culti-
vators are taken possession of in common, and these they forth-
with divide up among [133] themselves according to individual
standing.’

3. When, therefore, private properties distributed in the manner
just described are dependent on common ownership, if any property
is found to lack an individual owner, it does not belong to the occupant,
but reverts to the community ? or to the higher lord. Even without
such a cause a right similar to this right of the law of nature could
be conferred by a municipal statute, as we have already noted.

1 This passage is found On Benefits, VII. xii; also in the eighth book, chap. xii [the same chap.,
VII. xin]: ‘Certain things belong to certain persons under certain conditions.’

2 Thus you may infer from the second book of the Odyssey near the end [lines 335-6], that the
possessions of the man who died without children reverted to the people ; and so Eustathius explains
the verse of the fifth book of Homer’s Jizad [V. 158]:

The rulers of the city divided up his wealth.

For he says the term used indicates the magistrate who administered the property of those who died

without issue. _ ;
The histories teach us that a somewhat similar custom was in vogue formerly in the kingdom

of Mexico.

[XXX] =
325 D.]

[XIT.

in 34]
On the
Customs
of the
Germans
[xxv].

[II. ii. 5.]

Book II,

li, no. 28,

judges,
x1 26 |

Archt-
damus

fix].

CHAPTER IV

ON ASSUMED ABANDONMENT OF OWNERSHIP AND OCCUPATION
CONSEQUENT THEREON ; AND WHEREIN THIS DIFFERS FROM
OWNERSHIP BY USUCAPTION AND BY PRESCRIPTION

[138] I—Why ownership by usucapiion or by prescription properly

so called does not occur between states or their rulers

A serious difficulty arises at this point in regard to the right of
usucaption. For since this right was introduced by municipal law
(time, in fact, in its own nature has no effective force; nothing is
done by time, though everything is done in time) it has no place,
as Vazquez holds, in the relations between two independent states
or kings, or between an independent state and a king; nor yet
between a king and an individual not subject to him, nor between
two subjects of different kings or states."

This seems to be true except in so far as a thing or an act is
governed by the laws of the land. But if we admit this, a very serious
inconvenience clearly follows, in that contests about kingdoms and
the boundaries of kingdoms never come to an end with lapse of
time. Such a condition, again, not only tends to disturb the minds
of many and to occasion wars, but is also contrary to the common
sense of nations.

Il.—That nevertheless possession of long standing 1s wont to be urged
as a right even between states or rulers

For in the Scriptures, when the king of the Ammonites laid
claim to the lands between the Arnon and the Jabbok, reaching
from the Arabian deserts to the Jordan, Jephtha alleged possession
for three hundred years, and asked him why, during so long a time,
he himself and his ancestors had entered no claim. According to
Isocrates the Lacedaemonians laid it down as a most sure maxim,
accepted among all peoples,” that public, no less than private, posses-
sions are so confirmed by long standing that they cannot be recovered ;
on the basis of this right they sent away those who demanded the
return of Messene. ‘The Greek words may be translated: ‘ All
people consider that both public and private possessions are legally

+ In the laws of the Twelve Tables was this provision [Cicero, On Duties, I. xii. 37]: ‘ A judgment
is permanent against an enemy,’ that is, against a foreigner.

* The Duke of Nevers reasoned thus on behalf of France, according to De Thou, Book LIX
[LIX. iv], year 1574.

220

Chap.IV] Abandonment of Ownership and Occupation 221

valid and inheritable if a long period of possession has inter-
vened.’

The same Isocrates used these words to Philip: ‘Since, the long
lapse of time had rendered the possession fixed and irrevocable.’
Relying on this right the later Philip said to Titus Quinctius that
‘he would set free the cities which he had captured, but he would
not withdraw from those which had been received by him from his
ancestors by lawful and inherited possession.’ Sulpicius, arguing
against Antiochus, showed that he was unjust in claiming the right,
after several centuries, of reducing the Greek peoples in Asia to
slavery because they had formerly been enslaved.

The historians * call the revival of old claims empty talk; Dio-
dorus characterizes such claims as legendary and ancient tales. Cicero
in the second book On Duties says: ‘ But how is it just for the
owner to lose a field that has previously been held for many years,
or even centuries ?’

TII.—The question is decided according to presumptions of human
intent ; and these presumptions are not based on words alone

What shall we say? Actions at law, which are dependent on
intent, cannot indeed be inferred from a mental act alone, unless
that act has been indicated by certain outward signs. For to assign
a legal effect to mere acts of the mind was not consistent with human
nature, which is able to recognize such acts only from outward signs.
And for this reason purely mental acts are not subject to human laws.

Outward signs, however, do not indicate mental acts with
mathematical certainty, but only with probability. For men can
say something different from what they desire and feel, and can
disguise their intentions by their actions. Nevertheless the nature
of human society does not allow that no effect be given to mental
acts which are sufficiently indicated. And so whatever has been
sufficiently indicated is considered as true in respect to him who
has indicated it. ‘Thus, as regards words, at any rate, the difficulty
is solved.

IV.—But such presumptions are based also on acts

1. A thing which is thrown away is understood by the act to
be abandoned, unless [139] the circumstances of the case are such

1 [144] Florus, III, xiii: ‘ Nevertheless by reason of age, as it were by hereditary right, they
held possession of habitations left by their ancestors.’

2 This is what the Greeks, in allusion to Attic history, call ‘the times before Euclid’. Among
other authors, Nicetas in the first book of the life of Alexis, brother of Isaac, used this when treating
of Henry, son of the Emperor Frederick: ‘He was not ashamed to search out things which happened
as it were before Euclid.’

[See Dion.
Hal., On
Isocrates,
1X = 155.]
Livy,

XX XII
[x. 4].
Livy;
XXXV
[xv1. 7 if.].

Tacitus,
Annals, V1
[xxxvii].
[XV.
lxxvui.]

(II.
XXl1. 79.]

Dig XIV
ii 8.
Digest,
XLVII

. 43 § 11.

Deg. II.
XIV. 2.
Digest,
AXIX,
ii. 95.

Digest,
AXLIT 1.

37
Dig I.
X1V. 3.

Digest,
XLVI. tv.
8.

Digest,
XLI. 1.
44.

222, On the Law of War and Peace [Book Il

that we ought to think it was thrown aside for the moment and
with the intention of recovering it later. Thus a debt is considered
discharged by the return of the note.’

‘An inheritance’, says Paul, ‘can be refused not only by words,
but also by act and any expression of intent.’ Thus if any one is the
owner of a thing and knowingly treats with another who has it in
possession, as if with its owner, he is deservedly considered to have
abandoned his right. And there is no reason why this should not be
the case also between kings and independent states.

2. Similarly, a higher officer who permits an inferior to do, or
commands him to do, that which he cannot lawfully do unless he is
freed by law, is understood to have freed him from the law.

The principle under consideration in fact has its origin not in
municipal law but in the law of nature, according to which every
man has the right to abandon his own; and further, in a natural
presumption, in accordance with which one is believed to have
wished that of which he has given sufficient indications. In this
sense we can properly accept the statement of Ulpian, that verbal
release of obligation belongs to the law of nations.

V.—Such presumptions are based also on things not done

1. Under acts, moreover, consistently with moral standards,
failures to act are included, considered with relation to the circum-
stances which ought to be taken into account. Thus he who keeps
silence, when present and cognizant of the facts, seems to give con-
sent. This principle the Hebraic law also recognizes (Numbers, xxx.
5 and 12) unless circumstances show that the person was hindered
from speaking by fear, or by some other condition. ‘Thus a thing
is considered lost if the hope of its recovery? is abandoned. For
example, Ulpian says that hogs carried off by a wolf, and what we
lose in a shipwreck, cease to be ours, not immediately, but when
recovery seems impossible; that is, in cases in which there is no
reason why any one should be expected to retain the thought of
ownership, when no indications of such an intent exist. If persons
had been sent to look for the property, or ‘a reward’ had been offered,
we should have had to judge otherwise.

Thus a person who knows that his property is in the possession
of another, and during a long period makes no claim against the
possessor, unless some other reason is manifest, seems to have pursued
this course with no other thought than because he no longer wished

1 See Digest, IT. xiv. 2.
? The Hebrew jurists call this ‘ despairing of the recovery of a lost object’.

Chap.IV] Abandonment of Ownership and Occupation 223

that object to be considered among his possessions. Ulpian has
elsewhere said this, that after long silence a house seems to be con-
sidered as abandoned by the owner. ‘ Unjustly ’, writes the Emperor
Pius in a rescript, ‘do you demand overdue interest, which the length
of time intervening indicates that you had abandoned, because you
did not think that this ought to be demanded of your debtor—
evidently in order that you might be in greater favour with him.’

2. Very similar to this is what appears in the establishment of
a custom. For a custom also, without regard to the laws of a state
which fix a certain time and manner for its introduction, can be
introduced by a subject people in consequence of the fact that it is
tolerated by the one who holds the sovereignty. But the time within
which a custom receives the effect of law is not definitely fixed, but
arbitrary, to wit, whatever length of time is sufficient to accord with
the implied consent.

3. However, in order that silence may establish the presumption
of abandonment of ownership, two conditions are requisite, that the
silence be that of one who acts with knowledge and of his own tree
will. For the failure to act on the part of one who does not know
is without legal effect ;1 and when another apparent cause for the
action appears the inference of an act of will ceases to be in
point.

VI.—How length of time together with non-possession and silence amounts
to an abandonment of right

That these two conditions, then, may be considered to be
present, is established by other indications, but, in the case of both,
length of time is a paramount consideration.

In the first place it can hardly happen that, with length of time,
property belonging to a man should not come to his notice, since
lapse of time offers many opportunities for such cognizance. Never-
theless in the case of those who are at hand a shorter space of time
suffices to establish this inference than in the case of parties who are
absent, aside from the stipulations of municipal law. Again, fear,
once inspired, is believed to endure for a time, [140] but not
indefinitely, since length of time furnishes many opportunities for
taking counsel against the fear, either by oneself or with the help
of others, and even by leaving the territory of the one feared; in
consequence, at length a complaint may be made concerning infringe-
ment of a right, or, what is better, an appeal may be made to judges
or arbitrators.

1 See Il. xxii. 2 [II. "xxi. 2]; add, if you have leisure, Bartholomaeus Socinus, Consilia, 187,
col. 8; Meischner, Decistones Camerales, IX, no. 113, vol. III.

1569°27 R

Digest,
XKMIX,
11.15, § 22

Digest,
MXIT. i.
17 §1.

Thomas
Aquinas,
I. ui, qu.
97, art. 3
Suarez,
De Legi-
bus, VII.
XV.

Digest,
XLII,

XX. 3. § 4.

Eusta-
thius, On
the Iliad,
I [line
250].

Livy,
XXXIV

[Iviii. ro}.

224 On the Law of War and Peace [Book IT

VII.—Time exceeding the memory of man ordinarily suffices for such
a presumption ; of what sort such time 1s

Because a length of time exceeding the memory of man? is in
its essential character practically infinite, a silence for that length of
time will always seem sufficient to imply abandonment of owner-
ship, unless there are very strong reasons to the contrary.” It has
also been well remarked by the better jurists that time exceeding
the memory of man is not the same as a century, although these
two limits often are not far apart, for the reason that a hundred
years ordinarily constitute the limit of human life.* This period,
again, generally equals three ages, or ‘generations ’, of men.°

This fact was in point in the criticism of Antiochus by the
Romans, when they showed that he was demanding the return of
cities which he himself, his father, and his grandfather had never

occupied.

VIII.—Answer to the objection, that no one ought to be assumed to
abandon bis right

1. The objection may be raised that, since men love them-
selves and their possessions, it ought not to be believed that they
would abandon their own property; and that, in consequence,
negative acts, even through a long space of time, are not sufficient
to warrant the inference which I have mentioned. But again we
ought to think that good should be expected of men; and for that
reason it ought not to be supposed that they have such a disposition
that, out of consideration for a mere perishable thing, they would
wish a fellow man to live in a continual state of sin. Without such
abandonment of ownership, such a result often cannot be avoided.

2. In regard to the exercise of sovereign power, although
generally it is greatly esteemed, we ought to know that the burdens

+ Andreas Knich in his treatise, De Jure Territorit; Reinkingk, Book I, class v, chap. ii, no. 5;
Oldendorp, class III, art. 2.

2 Menochio, Consilia, I, go.

* Balbus, De Praescriptionibus, noted this; also Covarruvias on the same subject; Reinkingk,
Book I, class v, chap. ii, no. 40. On the question of time exceeding memory, see the very learned Favre,
Constlium pro Ducatu Montisferratensi [p. 155].

* This was called ‘Time more than time’ by Justinian in his fifth edict, published in the notes
to the Secret History of Procopius [Nicolaus Alemannus, in Procopit Hist. Arcana, p. 155, 9 = Corp.
Seript. H1st. Byzant., Procopius, ITI, p. 464].

5 For a ‘generation’ is a ‘period of thirty years’, as Porphyry notes in his Homeric Quesitons
[p. 99]. Herodian explained to Severus [III. vi. 10] that an age covers three ‘ generations’.

Philo, On the Embassy to Gadus [xx], remarks that there had been ten kings of Egypt in three
hundred years. Plutarch, Lycurgus [xxix = 58 a], says that there were fourteen kings of Sparta in
five hundred years.

Justinian, Novels, clix [clix. 2], forbids that a case be brought into court because four ‘ generations ’
have already elapsed.

Chap.IV] Abandonment of Ownershib and Occupation 225

are great, and that failure to administer them well renders a man
subject to divine wrath. Just as it would be a wrong thing for two
persons, who claim to be guardians, to go to law at the expense of
the ward in order to determine which of the two should have the
tight of guardianship; or—to use the illustration which Plato has
in connexion with this subject—for the sailors with danger to the
ship to struggle in order to determine which of them would best do
the steering, so those are not always worthy of praise who with the
greatest loss, and often with the bloodshed of innocent people, desire
to decide who is to control the government of that people.

The ancients praise the words of Antiochus, who gave thanks
to the Roman people because, ‘freed from excessive cares of govern-
ment,’ he enjoyed modest boundaries’. Among many wise sayings
of Lucan the following is not least :

With such an onset of new crimes

Seek they to know which one shall rule the city?
It scarce were worth so great a price that either should.

3. It is, then, to the interest of human society that govern-
ments be established on a sure basis and beyond the hazard of dispute ;
and all implications which point in that direction ought to be looked
upon with favour. For if Aratus of Sicyon * thought it a hard thing
that private possessions of fifty years’ standing be taken away, how
much more ought that saying of Augustus to be held in mind, that
‘ He is a good man and a good citizen who does not wish the present
condition of the state changed’; and who, as Alcibiades says in
Thucydides, ‘ will preserve the form of government which he re-
ceived’.

The expression ‘ to maintain the present form of government’,
Isocrates used in the oration Against Callimachus. ‘Thus also Cicero,
in a speech to the people Against Rullus: ‘It is becoming for an
advocate of quiet and harmony to defend the existing condition of
the state’; and Livy says: ‘All the best citizens rejoice in the
present state of government.’

4. Now if those indications, [141] which I have mentioned,
should not be present, nevertheless against the presumption, accord-
ing to which it is believed that each man wishes to keep his own,
the other presumption has greater weight, because it is not credible
that anyone in a long time should give no clear indication of what he
wishes.®

1 Jonathan, son of Saul, seems to have been of this mind [z Samuel, xxiii. 17].

2 Thus Thrasybulus, when peace had been restored at Athens, left all private possessions as they
had been [Nepos, Thrasybulus, iii].

§ Krantz, History of Saxony, XI, nos. ro and 13.

R 2

I [Repudlic
VI. 1v]

Cicero,
For Deto-
tarvus

[x1i1 36].
Val. Max,
XIV. 1
{IV 1 g].-

(II. 60 ff.]

[Cicero,
On
Duttes,
II. xxiu.
81.]

[Macro-
bius, IT
iv. 18 |

[VI.
Ixxxix ]
[xxiii =
383E]
(IIT. ii. 4 3}

XXKV
[xxxiv. 3].

Angelus
de Clava-
slo, Sum-
ma, word
Inventa.

AXXV
[xvt. 8
and 9]

[Livy]
XXXIV

[Ixui. 13].

2.26 On the Law of War and Peace [Book II

IX.—Without such presumption it seems that by universal customary
law ownership 1s transferred by possession exceeding the memory
of man

Perhaps without improbability it can be said that this adjust-
ment is not based on presumption alone, but that, in accordance
with the volitional law of nations,’ the provision was introduced that
possession beyond the limits of memory, not interrupted nor called
in question by appeal to the courts, should absolutely transter owner-
ship. It is in fact credible that the nations agreed in this, since it
was of the greatest importance for the preservation of the common
peace.
Moreover, with justification I used the expression ‘ uninterrupted
possession ’, that is, as Sulpicius says in Livy: ‘ According to a single
lasting tenure of right constantly enjoyed and never interrupted’ ;
the same writer elsewhere spoke of ‘ a lasting possession never called
in question’. For intermittent possession has no effect. ‘This is
illustrated by the reply of the Numidians to the Carthaginians:
‘According to circumstances, now the Carthaginians, now the kings
of Numidia, enjoyed the right, and possession was always in the
hands of the one who was most powerful in arms.’

X.—W hether unborn children can in like manner be deprived of a right

1. At this point another and indeed an exceedingly difficult
question arises, whether those not yet born can tacitly lose their
tight by such an abandonment. If we say that they cannot, the
explanation just given has contributed nothing to the tranquillity of
empires and estates, since most of these are held under such con-
ditions that they ought to pass to the descendants. If we affirm that
they can, it will seem strange that silence can harm those not able
to speak, since in fact they do not exist; or that the act of one party
should entail loss for another.

2. In order to solve this problem, the fact must be recognized
that a person who is not yet born has no rights, just as a thing which
does not exist has no attributes. If then the people, from whose
will the right to rule arises, changes its will, it does no injustice to
those yet unborn, since they have not yet acquired any right. More-
over as a people can change its will openly, so it can be believed to
have changed its will tacitly. If, therefore, the people has changed

1 Gregoras [XI. 1. 5=p. 239, Geneva, 1616] relates that when Phocaea had been given to the
elders of Catana by the Greek emperors the provision was added that the individual successors should
sign a written acknowledgement that they held the property under the right of administrators, ‘ lest
the unobserved lapse of time should extinguish the nght of the emperor’.

Chap.IV] Abandonment of Ownership and Occupation 227

its will, while the right of those who may be expected to come is
not yet in existence \—and besides that very right has been aban-
doned by the parents from whom those may be born who were to
possess the right in their own time—there is nothing to hinder
another from occupying property under these conditions as ownerless.

3. We are treating of the law of nature. For as other fictions
have been introduced by the civil law, so this provision may be
introduced also, that meanwhile the law should defend the persons
of those who do not yet exist,” and should thus hinder anything
from. being seized to their disadvantage. Nevertheless we should not
hastily judge that such is the intent of the laws, because in such cases
private advantage is strongly opposed to public advantage.

Hence also, according to the more generally accepted opinion,
those fiefs, which are not derived from the right of the last possessor
but from the force of the original investiture, can be acquired in
a sufficiently long time. Covarruvias, a jurist of excellent judgement,
has with good reason extended this principle to the rights of the
first-born and to property bequeathed in trust.

4. Nothing in fact makes it impossible that such a provision
should be introduced into the law of a state that a thing, which
cannot be lawfully alienated by a single act, can nevertheless, in order
to avoid uncertainty of ownership, be lost by neglect for a fixed
period of time; and even under such a provision those born later
will have the right of personal action against those guilty of neglect,
or against their heirs.

XI].—Even the right of sovereignty 1s gained by a people or king by
long-standing possession

From what we have said, it is plain that a king can acquire
a right as against a king, and an independent state [142] as against
an independent state, not only by express agreement, but also by
abandonment of ownership and the occupation which follows it or
assumes a new force from it. For the common saying, that ‘ what
is not valid from the beginning cannot become valid from a subse-
quent act’, is subject to the exception, ‘unless a new cause has
intervened capable in itself of producing a right’.

Similarly also the true king of a people may lose his sovereignty
and become subject to the people; and he who in reality is not
a king, but only the foremost citizen, can be made king with absolute

1 There are many examples of such renunciations in history. See in Mariana, Book XIII. xviii,
a notable instance in the case of Louis the Ninth, king of France, renouncing for himself and his children
the right which he could have through his mother Blanche to the kingdom of Castile.

2 This the civil law does in the case of an inheritance for which no heir appears [Dzgest, XLI. 1.

34; XLIII. xxiv. 13. § 5].

On Sexi, V.
ult. 2,

pt. ITI, § 3.
Speculum,
tit de feu ,
§Quoniam ,
vers. 3,
quaeritur.
Chassa-
neus, De
Consuetu-
dine Bur-
gundiae,
De Matns-
mortes, § 6,
vers. Par
an et jour,
no 2.
Cravetta,
De Ant
quitatibus
Tempo-
rum, pt.
IV,

§ Maiena,
no. go.

[T. 111. 6].

Bartolus,
On Dyg.
XLIX,.
XV. 24,
and
XXXIX.
il, I.
Jason,
Consiha,
III. 70,
Alimone
(Cravettal,
De Antiq
Temp , pt
Iv, vers
Materva
asta,no 62
Antonio
Corsetti,
De Excel-
lentua Re-
gia, qu.
104.
Balbus,
De Prae-
sey , 11, pt
5, PI-, q. 2.
Castaldus,
DeImpera-
tore, qu
hii.

Covar-
Tuvias, On
Sext, V.
ult. 4,

pt. 11, $ 9,
end.

On the Law of War and Peace [Book II

228

power,’ and the supreme authority, which was wholly in the power
of either king or people, can be divided between them.

XII.—W hether the civil statutes concerning ownership by usucaption
and by prescription bind the one who holds sovereign power ;
explanation, with distinctions

1. It is also worth while to investigate this question, whether
a law dealing with ownership by usucaption or by prescription, and
established by one who has sovereign power, can apply also to the
right of sovereignty itself, and to the necessary parts of it which
I have explained elsewhere.

Not a few jurists, who treat of sovereignty in accordance with
Roman municipal law, think that such a law does apply. But I think
otherwise.” For in order that any one may be bound by a law, both
power and intent, at least presumed, are requisite in the maker of
the law. No one can bind himself after the manner of a law, that is
after the manner of a superior. Hence it is that the makers of laws
have the right to change their own laws. Still, one can be bound
by his own law, not directly, but by implication ; inasmuch as he is
a member of the community,® he is under an obligation imposed by
natural fairness, which desires that the parts be adjusted in relation
to the whole. Sacred history notes that such an observance was
characteristic of Sau] in the beginning of his reign (z Samuel, xiv. 40).
But here this is not in point, because we are considering the maker
of laws not as a part of the community but as the one in whom the
power of the entire body resides. Weare in fact treating of sovereignty
as such.

Again, the intent is not presumed to have been present, because
the makers of laws are not considered as intending to include them-
selves, except in cases where both the subject-matter and the reason
for the law are universal, as in fixing prices. But sovereignty is not
of like character with other things; rather, in its exalted rank it far
exceeds other things. IJ have not seen any civil statute treating of
prescription which included sovereignty, or could be considered with
probability to have intended to include it.

2. From these considerations it follows that the time defined
by such a statute is not sufficient for acquiring sovereignty or a neces-

1 See Vazquez, Controversiae Iilustres, Book I, xxim. 3. Add in the same work Book II, lxxxii.
8-9 ff. [145] See also Panormitanus, Consilia, I. 82, and Peregrinus, De Jure Fisct, VI. vin. to.

2 Compare Don Garzia Mastrillus, De Magtstratu, Book III, i. 26; Johann Oldendorp, Constlia
Marpurgensia, I. 5, no. 47.

3 See below, IT. xx. 22 [II. xx. 24]; Seneca, Letiers, lxxxv [Ixxxv. 35]: ‘The pilot possesses
a double character ; the one he has in common with all those who embarked on the same ship in which
he himself is the pilot ; the other, the character of pilot, is peculiar to himself.’ This subject is treated
by Claude Seyssel, De Republica Gallica, 1; Chassaneus, Catalogus Gloriae Mundi, V. v; Gaul,
Observationes, Book IT, obs. 55, no. 7; Bodin, De Republica, I. visi; Reinkingk, I. xu [I. v. ix].

Chap.IV] Abandonment of Ownership and Occupation 220

sary part of it, if the natural implications which we mentioned
above are lacking; that so great a length of time is not required if
such implications are present within the time to a sufficient degree ;
and, lastly, a civil statute, which forbids that property be acquired
within a fixed time, does not have anything to do with matters of
sovereignty.

Nevertheless, in a transfer of sovereignty, the people could
express its will as to the manner and time in which the sovereignty
might be lost by failure to exercise it. This expressed will would
undoubtedly have to be followed, and could not be infringed upon
even by a king possessed of sovereign power, because it applies not
to the sovereignty itself but to the manner of holding it. But of this
distinction I have spoken elsewhere.

XIII.—Those rights of sovereignty which can be separated from it, or
shared with others, are gained and lost by right of ownership based
on usucaption or on prescription

Those powers which do not belong to the nature of sovereignty,
and do not have relation to it as essential parts, but can be naturally
separated from it or at least shared with others, are entirely subject
to such statutes of each people as have been passed concerning owner-
ship by usucaption and by prescription. Thus we see that there are
subjects who have acquired by prescription the right [143] to
judge without appeal; yet in such a way that there is always some
sort of appeal from them, as by petition, or by some other means.
For that any one should be beyond the right of appeal is incon-
sistent with the character of a subject, and therefore this right belongs
to sovereignty or to a part of it, and can be acquired in no other way
than by the law of nature, to which sovereignties are subject.

XIV.—Refutation of the opinion alleging that subjects are always
allowed to assert their liberty

1. From this it is apparent to what extent we can accept the
assertion of some,! that it is always permissible for subjects to regain
their liberty, that is, the independence of the people, if they can.
The reason given is that a sovereignty won by force can be over-
thrown by force, while a sovereignty which has arisen from the will
of the people may be repented of, and the will may change.

In truth sovereignties which were at first won by force may
receive lawful confirmation by tacit acceptance; and the will of the
people, either at the very establishment of the sovereignty, or in

1 As Vazquez, in the work already mentioned, Book II, lxxxii. 3.

[I, wt. rr.]

Covar-
ruvias, On
Sext, V.
ult. 2,

pt. 1, § 2,
nos. 12
and 13.

[ Jewish
War, II.
Xvi. 4]

[ Jewish
War, V.

1x, 3]

Xeno-
phon, On
the Tram-
ing of
Cyrus, III
[1. To}.

230 On the Law of War and Peace [Book II

connexion with a later act, may be such as to confer a right which
for the future is not dependent on such will.

According to Josephus, King Agrippa in an address to the Jews,
who were called Zealots from their untimely zeal for the recovery
of liberty, spoke thus :

It is not now the proper time to strive for hberty. Formerly you ought to have
fought not to lose it. For it is a hard thing to run the risk of slavery, and the strife
to avoid it is honourable. But he who revolts, after having been once subdued, must
be called not a lover of liberty but a disobedient slave.

Josephus himself also says to the same Jews:1! ‘It is indeed
honourable to fight for liberty, but that ought to have been done
formerly. But if those who have once been conquered and have
obeyed for a long time shake off the yoke, they act like desperadoes
and not like lovers of liberty.’ This very remark Cyrus once made
to the Armenian king, who, as the excuse for his rebellion, alleged
the desire to recover his lost liberty.

2. For the rest, [ think it not in the least open to doubt that
long indifference, such as I have described above, on the part of a king
may suffice to warrant a people im recovering their freedom, on the
ground of presumed abandonment of sovereign rights.

XV.—W hatever belongs to faculty pure and simple 1s not lost by lapse
of time ; explanation

There are rights which do not involve daily exercise, but an
adjustment once for all when it shall be convenient, as the redeeming
of a pledge by payment.” Also there are rights of free action, to
which the act engaged in is not directly opposed, but is included
therein as a part in the whole; an illustration would be if any one
has had an alliance with one neighbour only during a hundred
years, while nevertheless it was in his power to have alliances with
others also.

These rights are not lost, except in consequence of a prohibition
or restraint, and when obedience has been rendered thereto, with
a sufficient indication of consent. Since this is in accord not only
with municipal law but also with natural reason, it will properly
apply also in the case of men of the highest rank.

: You will find almost the same words in the Count de Blanderat’s speech to the Milanese ; Rade-
vicus, I. xl.
See Paruta, History of Venice, VII.

CHAPTER V

ON THE ORIGINAL ACQUISITION OF RIGHTS OVER PERSONS. HEREIN
ARE TREATED THE RIGHTS OF PARENTS, MARRIAGE, ASSOCIA-
TIONS, AND THE RIGHTS OVER SUBJECTS AND SLAVES

I.— Concerning the rights of parents over children

A RIGHT is acquired not only over things but also over persons.
Such rights have their origin primarily in generation, consent, or
crime.

[146] By generation parents acquire a right over children—
both parents, I mean, the father and the mother. But if there is
variance in the exercise of these rights the right of the father is
given preference* on account of the superiority of sex.

I].—Distinction in respect to the period of infancy, and concerning the
ownership of property by infants

1. Moreover in dealing with children three periods must be
distinguished. The first is that ‘ of imperfect judgement ’, as Aristotle
calls it, while there is lack of ‘ discretion’, as the same author else-

where says. “he second is the period of mature judgement, but while
the son still remains a part of the family of the parents, that is ‘so

long as he has not separated from it’, as Aristotle says. The third is
the period after the son has withdrawn from the family.?

In the first period all the actions of children are under the control
of the parents; for it is fair that he who is not able to rule himself
be ruled by another. Such is the saying of Aeschylus :

The age of infancy, like the dumb brutes,
Requires another’s mind to bring it up.

1 Seneca, Controversies, III. xix [VII. iv. 4]: ‘The first place belongs to the father, the second
to the mother.’ Chrysostom, On First Corinthians, xi. 3 [Homily XXVI.ii]: ‘ Deservedly the woman is
made subject to the man, for equality in rank produces strife’; and On Ephesians, iv [v. 33 = Homily
XX, iv]: ‘ The second power is the woman, but she should not for that reason claim equal rights for
herself (for she 1s subject to the head) ; nor should her husband despise her because she is subject to
him, for she is the body.’ Later he says [Homily XX, vi]: [161] ‘ Hers is the second power, also
possessing rule and much honoured by her consort ; but nevertheless the husband has somewhat more

ower ’
P Augustine, Letters, cxci [cclxti. 11]: ‘A legitimate son is more under the power of the father
than of the mother.’ Gregoras in Book VII [VII. v. 7], where he treats of Andronicus Palaeologus and
Irene: ‘ He added that the father had more power than the mother, and there was no reason why the
wishes of the father concerning the son should not prevail even in preference to the mother’s.’

On the respect due to the mother see the Code, VIII. xlvi (xlvii). 4.

2 In this penod they belong to their parents just as other things which the parents possess, says
Maimonides, Canones Poentienttales, vi. 2.

231

Politics,
I, last
chap.
Nicoma-
chean
Ethics,
IV. iii
[IITI. iv].
Ethics, V.
x.

[Choe-
phorae,
753 £.]

Above,
[II.Jau 6.
On the
Fortune of
Alexander,
II [v= 337
D].

(II. xx. 7.]

232 On the Law of War and Peace [Book II

But naturally no one except the parents can be found to whom such
control may be committed.

2. Nevertheless in this period also a son or a daughter, accord-
ing to universal customary law, is capable of ownership of property,
though the exercise of the right is hindered on account of the imper-
fection of judgement which I have mentioned. As Plutarch says of
children, they have the right ‘ to possess ’ but not ‘touse’. Wherefore
it is not due to natural right that all the possessions of children are
acquired by their parents, but to the laws of certain peoples, which
also in this matter distinguish the father from the mother, sons not
of age from those that are of age, and illegitimate children from
legitimate. But nature ignores these distinctions, except as regards
that supremacy of sex which I have mentioned, in case of conflict
of the parents regarding the exercise of parental rights.

ITI.—Of the period of life in the family beyond infancy

In the second period, when judgement has now matured with
age, no other actions are subject to the rule of parents except those
which in some way are important for the position of the family in
relation to the father or the mother.* It is in fact fair that the part
should conform to the interest of the whole.

In other actions, then, children in that period have ‘power’,
that is, a moral faculty of action; but nevertheless in those acts they
are bound to desire always to please their parents. However, since
this obligation does not arise from the moral faculty, as in the previous
case, but from filial affection, respect, and gratitude, it does not
make void anything done contrary to it, just as the donation of
anything which has been made by the owner contrary to the rules
of economy Is not void.

IV.—Concerning the right of restraining children

In both these periods the right to govern embraces also the
right to chastise, in so far as children must be forced to do their
duty, or must be corrected.

There will elsewhere be an opportunity of discussing what ought
to be thought in regard to severer punishments.

V.— Concerning the right of selling children

Although the paternal authority is so attached to the person
and ‘character’ of the father that it cannot be taken away and-trans-
ferred to another, nevertheless by natural right a father can pledge

1 Thus Maimonides explains the law, which is found in Numbers, xxx. 10 [xxx. 6].

Chap. V] On the Original Acquisition of Rights over Persons 233

his son as security, if the civil law does not prevent, and can even
sell him * if it is necessary and there is available no other means of
supporting him.

his legal provision, which arose from an ancient law of the
Thebans (this Aelian quotes in his second book), seems to have passed
to other peoples also. Further, the Theban law itself seems to have
come from the Phoenicians, and before that from the Jews. Apollonius
in his letter to Domitian relates that the same right prevailed among
the Phrygians. Indeed nature herself is deemed to give the right
to everything without which that cannot be obtained which she
demands.

VI.—Of the period of life beyond infancy and outside of the family
In the third period, [147] though filial affection and respect

are always due, since the cause remains, yet the son is in all things
‘independent’ and his own master.

From this it follows that the acts of kings cannot be said to be
void on this account, because they have parents.

VII.—Distinction between the power of parents by the law of nature
and that by the municipal law

Whatever powers there are beyond those mentioned arise from
volitional law, which is different in different countries.? Thus by
the law which God gave to the Jews the father’s power over a son
or a daughter to annul vows was not perpetual, but lasted only so
long as the children were members of the father’s household. Again,
Roman citizens possessed a special power of the father even over
sons who were the heads of families of their own, so long as they had
not been emancipated. The Romans themselves in fact claimed that
other peoples did not have such power over their children.

In the third book of his Pyrrhoneta, Sextus Empiricus says:

The Roman lawgivers* have ordained that children should be in the power of
their fathers as if slaves, and that the children should not have control of their own
property, but that this should remain in the hands of their parents until the children
should be manumitted, in the same manner as slaves. But such authority other
peoples reject as tyrannical.

1 Jordanes, History of the Goths [xxvi. 135]: ‘Parents in fact do not act otherwise in providi
for the safety of their children ; they think it better to lose freedom than life, while the one who is sold,
to be brought up with compassion rather than to die, is saved.’

I find that such a law was also in force among the Mexicans.

2 Seneca, On Benefits, III. xi: ‘ Because it 1s useful for youth to be governed, we have placed it
as it were under family magistrates.’

3 Otherwise at the age of thirteen the son was capable of incurring obligations, according to the
Hebraic customs; thus they explain the passage cited in Numbers.

4 Philo, On the Embassy to Gaius [v]: ‘For according to the law of the Romans power of every
kind over the son belongs to the father.’

[Var. Hist
IT. vii J
[Exodus,
xxi 7}
[Philostra-
tus, Life of
Apollonius
of Tyana,
VIII vit.
12.]

Numbers,

XXX. 2, 3,

4, 5:
[Kotzi, ]
On the
Precepts of
the Law,
Precepts
Forbid-
ding, 242.

Institutes,
I. ix. 2.

[Pyr , III.
XXiv. 2I1.]

[XXXV11 =
P 199.]

Nicoma-
chean
Ethues,
VIII xi
[ViII. x].

Ebhe-
Stans, V.
23.

234 On the Law of War and Peace [Book II

Simplicius in the commentary on the Manual of Epictetus
Says :

The ancient laws of the Romans, having regard not only to that superiority which
arises from nature, but also to the labours which parents sustain for their children, and
wishing besides that children be without exception subject to their parents, and, as
I believe, trusting also in the natural love of parents, have given to parents the right
of selling their children, if they wish, and of killing them without punishment.

A similar right of the father among the Persians Aristotle indicts
as tyrannical. ‘These laws we report for this reason that we may
distinguish accurately between municipal law and the law of nature.

VIII .—Concerning the right of the husband over the wife

1. Rights which arise over persons from consent come either
from association or from subjection.

The most natural association appears in marriage. However, on
account of the difference in sex the authority is not held in common,
but ‘the husband is the head of the wife’, of course in matters
relating to marriage and in matters relating to the family. The wife,
in fact, becomes a member of the husband’s family, and so the
husband has the right to determine matters of domicile.

If any right beyond these is conceded to husbands, as in Hebraic
law the right to annul vows of the wife, and among some peoples
the right of selling the wife’s property, such a right does not come
from nature but from enactment. This subject requires us to see
what the nature of marriage is.

2. Marriage, then, according to the law of nature we consider
such a cohabitation of a man with a woman that it places the woman
under the eye of the man and under his guardianship. Such a union
it is in fact possible to see even in some kinds of dumb animals. But
in the case of man, as an animate being endowed with reason, there
is added to this the vow by which the woman binds herself to the man.

IX.—W hether dental of divorce and restriction to one woman are necessary
to marriage according to the law of nature or only according to the

law of the Gospel

1. Nature does not seem to require anything more in order to
constitute a marriage, nor indeed does the divine law seem to have
demanded anything further before the spread of the Gospel. For
both men who were holy before the law* had more than one wife,

* Chrysostom, speaking of Sarah [On First Corinthians, xi. 16 = Homily XXVI. vi]: ‘She again
desired to afford to him some consolation for her barrenness, from her maidservant; for at that time
such acts had not been forbidden.’ See the same author, On Frrst Timothy, iii [ = Homily X].

Augustine, On Chrisitan Doctrine, ITI. xii (III. xii. 20]: ‘The custom of having several wives at
the same time was blameless.’ A similar statement is found in III. xviii [III. xvui. 26]; also in III.

Chap. V] On the Original Acquisition of Rights over Persons 235

and in the law? certain precepts are given to those who have more
than one wife ; and the king is enjoined not to have too great a number
of wives nor horses. The Jewish interpreters of the passage last
referred to note that eighteen [148] wives or concubines had been
allowed the king. Also God reminds David that He had given him
many and noble wives.?

2. Furthermore, the method is prescribed for one who wishes
to divorce a wife, and no one is hindered from marrying a divorced
woman except the one who divorced her, and the priest.? Never-
theless this liberty of passing to another husband ought to be so
restricted by the law of nature that confusion of offspring may not
arise. Hence arises that question of pontifical law in Tacitus, ‘ whether
a woman after conception, but before the birth of the child, might
lawfully marry’. Among the Jews it is ordered that three months
intervene between the two marriages.

But the law of Christ has brought marriage between Christians,
as it has other matters, to a higher norm of perfection, in that both
the one who divorces a woman that is not an adulteress, and the one
who marries a divorced woman, are pronounced guilty of adultery.
Further, Paul, the apostle and interpreter of the law, gives not only
to the husband as much right over the person of the wife as was
found also in the state of nature (says Artemidorus: ‘The one
joined to a woman by the laws of marriage has complete mastery of
her person’), but also equal right to the wife in turn over the person
of the husband. Lactantius says: *

Not in fact, as the system of public law says, is the woman alone an adulteress
who takes another husband, and the husband free from the charge of adultery though

xxii [III. xxii. 32]: ‘There are in fact many things which in that time were done in accordance with
duty, which now cannot be done except lustfully.’ Further, On the City of God, XVI. xxxvui: ‘Since,
for the sake of increasing offspring, no law prohibited having several wives.’

1 Josephus, Antiqutites of the Jews, Book XVII. i [XVII, i. 2]: ‘It is an ancestral custom for us
to have several wives at the same time.’

2 Josephus in the same place im his history [Antiquities of the Jews, VII. vii. 3]: ‘Smce God had
given to him wives, whom he could justly and lawfully possess.’ The author of the Peszchta, on Levtitcus,
xvii [fol. xx1v. 1] says: ‘It is very well known that he who says that it is forbidden to have more than
one wife does not know what the law is.’

3 Leviticus, xxi. 7. In the same chapter, verse 14, the widow is added to the divorced woman.
Philo [On Priests, ix] and most modem imterpreters have understood this of the High Pnest on
account of what precedes (verses 10 ff.); but [162] that 1t ought to be understood of any priest is
shown by Ezekiel (Ezekiel, xliv. 22), and Josephus, both in the explanation of this law, as well as
Agatnst Apion, I [I. vii]. This law, then, must be connected with the beginning of the chapter, so that
what is said of the High Priest was inserted parenthetically.

4 Divine Institutes, VI. xxiii [VI. xxiii. 24-9], where also is the following: ‘The wife ought to be
taught by an example of continence that she should live chastely. For it is unfair to demand that which
you cannot yourself furmsh.’ The same thought occurs in Gregory Nazianzen [Orattons, XXXI.
500 C]: ‘ How do you ask, and not give in return ?’

Jerome, To Oceanus (Letters, lxxvii. 3]: ‘Different are the laws of the Caesars and the laws of
Christ, and different are the teachings of Papinian and of our Paul. Among the former free rein is
given to unchastity on the part of the men; and, while violation of freeborn women and adultery
alone are condemned, licence is everywhere permitted with prostitutes and slave girls, as if the rank
of the person, and not the will, constituted the crime. Among us what 1s not permitted to women is
equally unpermissible to men, and the same subjection to the laws is assigned on equal terms.’

Deutero-
nomy,
KX1. 15
Deutero-
nomy,
Xv_u 16,
17

2 Samuel,
x1. 8.

Deutero-
nomy.
XXLV. 4.

[Annals,
I.x.7 ]

Matthew,
V 32;
XIX. 9.

I Corin-
thians,
V1l 4
[Onetro-
critica. |

236 On the Law of War and Peace [Book II

he has several wives; but the divine law joins the two in marriage into a single body
with such equal right that whichever one has broken this union of the body by union
with another is considered guilty of adultery.

3. I know that in regard to both these points the view is held
by many that Christ did not establish a new law, but restored the law
which God the Father had established in the beginning. ‘They seem
to have been brought to this opinion by the words of Christ Himself,
where He recalls that beginning to us. But the reply can be made
that from that first condition, in which God assigned only one woman
to one man, that is sufficiently apparent which 1s best and most
pleasing to God. It follows that this has always been excellent and
praiseworthy. Yet it was not wrong to do otherwise, because where
there is no law there is no transgression of law. ‘There was in fact
no law on that question in those times.

Thus when God said through Adam, or through Moses, that so
strong was the bond of marriage that the husband ought to leave
the family of his parent in order to establish a new family with his
wife, he said almost the same as is said to the daughter of Pharaoh
in the eleventh verse of the forty-fifth Psalm: ‘ Forget also thine
own people and thy father’s house.’ And from the establishment
of this so close friendship it is quite apparent that it is most pleasing
to God? that that union should be perpetual. But it is not thereby

1 This custom was preferred formerly by many of the wise also. Thus Euripides, Andromache
[ines 177 ff.], in the character of Hermione:

For fitting it is not
That one as husband bear rule o’er two wives.
Let him remam content with couch of but one spouse
Who shall desire a house well managed.

Also in a chorus [Andromache, lines 464 ff.]:

Never the stock from rival mothers born,
Nor double marriage couches shall I praise,
[163] For these are seeds of hate and bitter stnfe.
Qne partner only of his trusted couch
The husband ought to know as his alone.
Two rulers do not better govern lands
And cities, than one hand the sceptre holding.
Nay thus is burden upon burden piled
And raging discord rouses citizens
To arms, and sundered now the bonds of union are.
Unhappy contests even the Muses jom
Between two poets, rivals now in song.
And when upon the sea a favouring breeze
Swells all the canvas of the moving craft
The right hand of one steersman at the helm
Is far more worth than strength of twain distraught,
Or goodly company e’en of the wise.
One single power the city should control,
One power should rule the home, if this be true
That in our hearts we long for tranquil peace.

Again, Plautus, Mercator [lines 824-5] :

For with one husband a good wife contented is;
Why, then, should not the man with one wife be content ?

Chap. V] On the Original Acquisition of Rights over Persons 237

proved that God had then commanded? that this bond should not
be broken for any cause whatever. But what God had by the insti-
tution joined, Christ forbade man to sunder, taking most worthy
matter for a new law from that which is best and most acceptable
to God.

4. It is certain that in antiquity most peoples permitted free-
dom of divorce, and marriage with more than one woman. ‘Tacitus
relates that in his time the Germans, almost alone among barbarians,
were content with a single wife for each; and to a similar custom
the histories both of Persia and of India? in various places bear
witness. Among the Egyptians ® the priests alone ordinarily had but
a single wife. Also among the Greeks, on the testimony of Athenaeus,
Cecrops was the first who ‘ assigned one wife only to each husband’.
Nevertheless we learn from the example of Socrates, and of others,
that this rule was not long observed even at Athens.

If, then, any peoples have lived with greater continence, as the
Romans did, who always refrained from plural [149] marriages
and for a long time from divorce, truly they have drawn near to the
state which is best. Hence among the same Romans the marriage
of the wife of the priest of Jupiter was not annulled except by death.
Nevertheless from what has been said it does not follow that all
sinned * who did otherwise before the preaching of the Gospel.

X.—That according to the law of nature alone marriages are not void
by reason of lack of consent of the parents

1. Now let us see what marriages are valid by the law of nature.
In reaching a decision on this matter we ought to remember that
not all acts which are contrary to the law of nature are rendered
invalid by it, as is apparent from the example of the extravagant
gift ; but only those are invalid in which the essential point 1s lacking
to give validity to the act, or in which the fault continues in the result
of the action. The essential principle, both here and in other human
acts, out of which right arises, is that right which we have explained
as a moral capacity for action, joined with a will sufficiently free.
But what freedom of will is sufficient to produce validity of action
will be more conveniently discussed below, where we shall treat of

promises 1n general.

1 So also in a case of polygamy, Ambrose, On Abraham, Book I, iv [I. iv. 23
what God had praised in paradise and his condemnation of the opposite. T
Gratian, Decretum, TI. xxx. 4 [II. xxx. 4. 3]. 5

2 Also the Thracians, concerning whom there are some verses of Menander [Strabo, VII. iit. 4],
and of Euripides in the Andromache [lines 215 ff.]. _

8 See Herodian, Book II [cf. Herodotus, IT. xcii].

« Augustine, Against Faustus, Book XXII, xlvii: ‘So long as it was an established custom It was
not acrime.’ Gratian [Decretum, II. xxxii. 4. 7] cites this also, but under the name of Ambrose.

], distinguishes between
is passage is cited by

On the
Customs
of the
Germans
[xvii].

Diodorus
[Siculus],
I (Ixxx].
[XIIT. i.]
Gellius,
KV. XX.

Brgest,
XXITI

li 25.
Digest,
AXXITI.
il. 16. § 1.

Code, V
iv. 20.

vi, 36.

238 On the Law of War and Peace [Book II

Under the moral right of action, the question here arises con-
cerning the consent of the parents, which certain writers require as
if by the law of nature for the validity of marriage. But in this
they are wrong. For the arguments they offer prove nothing else
than that it is in accord with the duty of children to obtain the
consent of their parents. This I plainly grant, with the proviso that
the wish of the parents be not manifestly unfair. For if children owe
respect to their parents in all things, certainly they owe it especially
in a matter which concerns the whole family, as marriage does. But
from this it does not follow that the son lacks that right which
is characterized as faculty or power to act. For a man who takes
a wife ought to be of mature age, and since he withdraws from the
family, he is not subject to family rule in this matter. Moreover,
the duty of proper respect alone has not the effect of rendering of
no effect an act opposed to it.

2. Moreover, the rule established by the Romans, and some
other peoples, that certain marriages are void because the consent
of the father is lacking, is not derived from the law of nature, but
from the will of the lawgivers. For in the same law the mother,
who is nevertheless naturally entitled to respect from the children,?
does not make the marriage void by withholding consent; and not
even the father of a son freed from parental control has that power.
Besides, if the father himself is under the power of his father, both
the grandfather and the father should give consent to the marriage
of the son. For a daughter the authority of the grandfather
suffices. ‘These distinctions, unknown to the law of nature, show
clearly enough that the practices in question have arisen from the
civil law.

3. In the Scriptures, to be sure, we see that holy men, and in
even more cases women, have followed parental authority in con-
tracting marriage (to women indeed, on account of modesty, it is
especially fitting to act on another’s authority in this matter,? where-
fore also that is in point which we read concerning the marriage of
a maiden in the Furst Epistle to the Corinthians); nevertheless the

1 The will of the grandfather also, if he is a free man, has more weight than that of the father
who 1s a slave (Decreium, II. xxxti. 3)

2 Ambrose, On Abraham, Book I, last chap. [I. ix. 91], says: ‘It is, in fact, not consistent with
maidenly modesty to choose a husband.’ In a manuscript of Gratian this is mserted in the Decretum,
II. xxxit. 2 (II. xxxii. 2. 13].

Donatus, On the Andria [line 742], says: ‘ Absolute control over the marriage of the daughter rests
with the father.’

In Euripides [ Andromache, lines 987-8], Hermione says :

I grant my father full control of marriage,
For that decision is not in my power.

In Musaeus [lines 179-180] Hero says :

[164] The law of wedlock cannot join us twain,
Since mother, father both unwilling are.

Chap. V] On the Orginal Acquisition of Rights over Persons 239

marriage of Esau is not declared void, nor the children illegitimate,
because he had contracted marriage without such authority. Quin-
tilian, having in mind the law of nature in a strict sense, says: * But
if a son is ever allowed against the will of the father to do anything
which in other respects shall not deserve blame, nowhere indeed is
that freedom so necessary as in respect to marriage.’ *

XI.—T hat according to the law of the Gospel marriages with the husband
or wife of another are void

Marriage with a woman who is married to another is undoubtedly
void according to the law of nature, unless the former husband has
divorced her; for up to the time of divorce his right over her con-
tinues; according to the law of Christ, his right continues until
death has severed the bond. The marriage is void for this reason,
that the moral faculty [150] is lacking; this was taken away by
the former marriage, and all the results are faulty. The individual
acts in fact involve an unlawful appropriation of that which belongs
to another.

On the other hand, according to the law of Christ a marriage
with a man already married to another woman is void on account
of the right which Christ gave to a virtuous woman over her husband.

XII.—That according to the law of nature marriages of parents with
children are unlawful and void

I. The marriage of those who are united by blood or by relation-
ships of marriage presents a difficult question, which not infrequently
gives rise to heated discussions. For if one tries to assign definite
natural causes why such marriages are unlawful—just as they are
forbidden by laws or customs—he will learn from experience how
difficult, if not impossible, the task 1s.

For the reason suggested by Plutarch in his Roman Questions,”
and accepted by Augustine in the City of God (Book XV, chapter xv)),
that friendships are extended more widely by contracting marriage
alliances in many places, is not of so great weight that anything

1 Eugraphius, On the Andria, Act I, scene v [line 238]: ‘This pomt also is touched upon, whether
children ought to obey the commands of their parents. It is, in fact, agreed that sons have free choice
in respect to marnage.’ Cassiodorus, VII. iv [Vartae, VII. xl]: ‘It 1s hard not to have entire freedom
in respect to marriage, from which children are born.’

2 Philo, On Spectal Laws [III. 1v-v] says: ‘What need have men to forbid relationships and
bonds of union with one another, and to restrict to the narrow limits of a single home so great and
excellent 2 work, which can extend itself and spread to countries, and islands, and even to the whole
world? For alliances of marnage with strangers create new bonds of union between men, not of less
moment than those which come from blood. This Moses had in view when he forbade many other
marriages between relatives.’ ;

Chrysostom, On First Corinthians, xiii. 13 [Homily XXXIV. iv]: ‘ Why do you restrict to narrow
limits the breadth of love? Why do you needlessly destroy the cause of friendship, through which
you could obtain another opportunity for winning friendship by marrying a woman from abroad ?’

1569.27 S

Genesis,
XXXVI.

Declama-
tions,
eclvll.

evi [evil
= 289 D].

[Deut ,
XXV. 5.]

[Numbers,
xxxv1. 8]

Digest,
XXITI.

u 4. § 2.

[Prolego-
mena, 9.]

Digest,

XXITI. 1.

68.

Socr., IV
[Memora-~
bila, IV

iv 19 ff.].

On the Law of War and Peace [Book Il

240

contrary to it would have to be considered void and unlawful. That
which is less advantageous is not in fact thereby also illegal.

Add a situation which may arise. This lesser advantage may be
offset by another greater advantage, not merely in the case of which
God made an exception in the law given to the Jews, where a man
has died without offspring; or in the similar provision, which was
established by the Hebraic and the Attic law* with reference to
maidens who are sole heiresses, which they call émixAnpot, for the pur-
pose of keeping ancestral estates in the family; but also in many
other cases, which are commonly observed, or can be imagined.

2. From this general principle I except the marriage of parents
of any degree with their descendants, the reason for the unlawfulness
of which is, unless I am mistaken, quite apparent. In such a case
the husband, who by the law of marriage is the superior, cannot show
such respect to his mother as nature demands, nor the daughter to
her father; for although the daughter in the marriage relation is
inferior, nevertheless marriage itself introduces such an association
that it excludes the respect belonging to the former relationship

When Paul the jurist had said that in contracting marriages
regard should be had for the law of nature and modesty,” he well
added that it was contrary to modesty to marry one’s own daughter.
Therefore we must not doubt that such marriages are both unlawful
and void, because the fault inheres permanently in the effect.

3. Neither ought we to be disturbed by the argument of
Diogenes and Chrysippus drawn from poultry and other dumb
creatures, by which they tried to prove that such unions were not
contrary to the law of nature. For, as I have said at the beginning
of this work, it is sufficient for a thing to be considered unlawful if it
is opposed to human nature; and in this category is incest, which,
as Paul ® the jurist has written, is by universal customary law a crime
committed between parents and descendants. Such is that law
which Xenophon said was not less a law because it was held in con-
tempt by the Persians.*

1 See Demosthenes, To Leochares [xliv. 3]; the rhetorician Fortunatianus [Ari of Rhetoric, I, p. 49] ;
Donatus, On the Phormio, Act I, scene u [line 125], and On the Adelpht, IV. v [lme 651].

2 Philo, On Special Laws [III. ui], develops this subject excellently, where he says ‘It is an
unspeakable crime to defile the bed of a dead father, which ought to be left untouched as sacred;
and not to show respect for the age and name of mother, and to be at the same time son and husbanil
of the same woman, to have the same woman as mother and wife.’

°> Thus also Papmian expresses himself in the law, Digest, XLVIII. v. 39 (38). § 2.

* Philo [On Special Laws, III. m1] notes that God punished their crimes in this matter with
continuous wars and the slaughter of brothers. Jerome, Agatnst Jovinianus, Book II [II vii. 335], adds
to the Persians also the Medes, Indians, and Ethiopians. Concerning barbarians generally, Hermione
in the Andromache of Eumpides [lines 173 ff.] says:

And of such sort is every race barbaric,

The father weds with daughter, the mother with the son,
The brother with the sister; and to murder come

The next-of-kin ; no law prevents such awful deeds.

Chap. V] On the Original Acquisition of Rights over Persons 241

_ According to the commentary of Michael of Ephesus On
Nicomachean Ethics, that in fact is rightly said to be in accord with
nature “which is the practice of most peoples that are uncorrupted
and live according to nature’. Hippodamus the Pythagoraean
speaks of ‘ unrestrained and unnatural desires, mad impulses, abomin-
able pleasures’. Lucan says of the Parthians :

With feastings mad, and wine,
The royal house shrinks not from lawless matings.

[151] And later he adds:

For one who shares a mother’s bed,

What should I think a crime?

Dio of Prusa in his twentieth Oration wisely assigns a faulty education
as the particular cause of this Persian custom.

4. In this connexion we may well be surprised at the comment
of Socrates. According to Xenophon, he found nothing blame-
worthy in such marriages except the disparity of age; for from that
cause, he says, either sterility or deformity of offspring results. [f
this in fact were the only reason opposed to such a marriage, the
marriage would surely not be void or unlawful, any more than a
marriage between other persons, one of whom is as much older than
the other as parents ordinarily are older than children.

5. This point ought rather to be discussed, whether, in addition
to that which, as we have already said, can be attained to by reason,
there does not exist, implanted in men who have not been corrupted
by evil education, a kind of revulsion against unions with parents or
with children, especially since such unions are naturally avoided by
certain dumb animals. So in fact others have thought, and so Arnobius
says in his fifth book Against the Heathen:

Did Jupiter even conceive an unspeakable lust for his mother, and could not be
turned from the burning passion of such a desire by the horror which nature herself

has implanted not in men alone but also in some animals, and by that universal inborn
feeling ?

On this topic in the ninth book of Aristotle’s History of Animals
(chapter xlvi) there is a noteworthy story about a camel and a Scythian
horse. A similar report appears in Oppian, On Hunting (Book I).
Seneca says in his Hippolyzus :

And likewise beasts themselves avoid the crimes of lust,
And shame unwilling keeps the laws of blood.

1 Pliny, Natural History, VIII. xli [VIII. xlii. 156], treating of horses says: [165] ‘ Another
horse, when it had discovered, through the removal of the cloth covering, that it had mated with its
own mother, rushed to a precipice and was killed. And in the district of Reate we find that the atten-
dant holding the mare was wounded for the same cause. For in horses also there is a recognition of
relationships.’ Similar instances you find in Varro, On Farming, II. vii [II. vii. 9], and in Antigonus
Carystius, Marvelous Stories [ix] ; also in Aristotle’s treatise with the same title [1].

$2

[V. 1v.]

[ = Hip-
parchus,
De Anwmt
Tran-
quilitate,
cited by
Stobaeus,
evii. 82 ]
[VIIT.
4071 ff.]
(VIII.
409 f.]

[xxl =
p 270C.]

[M emora-
bilia, IV.
lv, 23 |

[V. 1X.]

[=1X.
xIvii.]

[I. 239 ff.}
[9r3-4.]

Leviticus,
XV1ll 24,
25, 27.

Ephesians,
li. 14.
r Corin-

imans, Vii.

25 [v. 1].

[ = Ando-
cides,

i 124.]
[vi. 15 ]

242 On the Law of War and Peace [Book II

XIII.—That marriages of brothers with sisters, mothers-in-law with
sons-in-law, fathers-in-law with daughters-in-law, and other similar
marriages are unlawful and void by volitional divine law

1. Next comes the question concerning all the different degrees
of marriage and of blood relationship in collateral lines, particularly
those which are expressly mentioned in the eighteenth chapter of
Leviticus. For even granted that those prohibitions do not come
from the pure law of nature, nevertheless they may seem, by a com-
mand of the divine will, to have passed over into that which 1s for-
bidden. In truth this command is such that it binds not only the
Jews, but rather all men, as seems to be inferred from the following
words of God to Moses: ‘ Defile not ye yourselves in any of these
things; for in all these the nations are defiled which I cast out from
before you.’ Later come the words: ‘ And ye shall not do any of
these abominations; for all these have the men of the land done,
that were before you, and the land is defiled.’

2. For if the Canaanites and their neighbours sinned in com-
mitting such acts, it follows that some law had preceded. And since
such a law is not purely natural, the alternative is that it was given
by God, either to those people in particular, which is not probable
nor sufficiently supported by the words, or to the human race, either
at the creation, or at the restoration after the flood.

Now those laws which were given to the whole human race do
not seem to have been annulled by Christ, but merely those laws
which separated the Jews from other nations as if by an interposed
wall. An additional point is that Paul severely reproves the marriage
of a step-son with a step-mother, although no particular teaching
of Christ on that question exists; and he does not use any other
argument than this, that such union seems impure even to heathen
peoples.* ,

The truth of the last statement is shown by other facts and also
by the laws of Charondas, which brand such a marriage with dis-
grace. There is also this statement in an oration of Lysias: [152]
‘ That most impure of all men was husband of mother and daughter.’
Consistent with this, in a not dissimilar case, is the statement of
Cicero in the speech for Aulus Cluentius; for having stated that
a mother-in-law had married her son-in-law, he adds: ‘ O incredible
crime of a woman, unheard of in all the life of man except in the case
of this one woman!’ When King Seleucus gave his wife Stratonice

+ Tertullian, Against Marcion, V [V. vii]: ‘1 do not maintain that according to the law of the
Creator the man has sinned who has married the wife of his father. Let him follow the rule of the
common public religion.’

Chap. V] On the Original Acquisition of Rights over Persons 243

in marriage to his son Antiochus, according to Plutarch,* he feared
that she might be offended ‘at the unlawful act’. ‘There is also
the verse of Virgil :

Daring to pollute his own stepmother’s bed !

If this common opinion did not have its origin in a necessary dictate
of nature, the conclusion is warranted that it comes from an ancient
tradition which was derived from some divine command.

3. In respect to this part of the divine law the ancient Jews
are interpreters not to be despised; and Moses Maimonides, who
read and with great judgement explained all their writings, says that
there are two causes for the laws about marriage which have been
handed down in the eighteenth chapter of Leviticus. The first cause
is a kind of natural modesty, which does not permit parents to have
intercourse with their own offspring, either directly or through
persons closely connected by blood relationship or by marriage ?;
and the second is, that too close association daily and unobserved of
certain persons might pave the way to unchastity and adultery, if
such loves could be cemented in marriage.

If we wish to adapt these two causes judiciously to those divine
laws cited from Leviticus, it will easily appear that in the case of
relatives by marriage who are in the direct line (not to mention
parents and children now, since, as I think, the union of these is
sufficiently forbidden by natural reason without a formulated law),
and likewise in blood-relationship of the first degree in collateral
Iines,*? which is usually called the second degree because of origin
from a common stock, the first cause has weight on account of the
very recent likeness of the parents in the children; and such avoid-
ance comes from the fact that, if nature does not order it, she cer-
tainly calls it more honourable. Many things of this kind furnish
subject-matter for divine and human laws.

4. Consequently the Jews wish to include in the direct line the
degrees not mentioned in the law, on account of the apparent identity
of reason. The following are the designations of degrees among them :
the mother’s mother, the mother of the mother’s father, the father’s
mother, the mother of the father’s father, the wife of the father’s
father, the wife of the mother’s father, the son’s daughter-in-law,
the daughter-in-law of the son’s son, the daughter’s daughter-in-law,
the daughter of the son’s daughter, the daughter of the son’s son,

1 In the life of Demetrius [xxxvin= 907 E]; also reported by Appian in his Syrian Wars [x 59],
who calls such passion ‘impious love’.

2 Philo [On Special Laws, III. v]: ‘ Although in fact the parties have been separated, they
retain the right of fraternal affection and are bound by blood relationship as by a natural bond.’

3 Both Peruvians and Mexicans refrained from marriage with relatives of this degree [Jean de

Léry, Jt:nerary, chap. xvii, near the beginning].

(A eneid,
X. 389.)

See Caje-
tan, On
Matthew,
xix,

[V. vi1.]

I [xxv].

[In Augus-
tine, City
of God,

On the Law of War and Peace [Book II

244

the daughter of the daughter’s daughter, the daughter of the daughter’s
son, the daughter of the wife’s son’s daughter, the daughter of the
wife’s daughter’s daughter, the mother of the wife’s father’s mother,
the mother of the wife’s mother’s father, that is, to use the Roman
terms, all grandmothers and great-grandmothers, stepmothers’
mothers, great-granddaughters, stepdaughters’ daughters, daughter-
in-laws’ daughters, and mother-in-laws’ mothers ; because, of course,
under the title of relationship on the father’s side is included similar
blood relationship, and under relationship in the first degree relation-
ship in the second degree ; and under relationship in the second degree
the third degree, beyond which it is scarcely possible that contro-
versy should arise, since if it could the same reckoning might go on
to infinity.

5. Now these laws, and also the law that brothers and sisters
should not marry, the Jews think were given to Adam at the same
time with the laws to worship God, to administer justice, not to shed
blood, not to worship false gods, not to take what is another’s; but
with the condition that the laws regulating marriage should not
have effect until after the human race had multiplied sufficiently,
[153] because in the very beginning this could not take place
without the marriage of brothers and sisters.

And the Jews do not think that the fact that this provision was
not mentioned by Moses in the proper place makes any difference.1
Moses considered it sufficient to have tacitly indicated it in the law
itself, when he condemns foreign nations on that account. There
are, in fact, many such provisions in the law, which are not given in
the proper order of time, but as circumstances suggest. Hence the
widely accepted opinion among the Jews, that in the law there is
no first or last; that is, many things are presented in inverse
order.

6. In regard to the marriage of brothers and sisters, these are
the words of Michael of Ephesus On Nicomachean Ethics, Book V:
‘For a brother to marry a sister was in the beginning a matter of
indifference; but since a law has been established against such
unions, it makes a great deal of difference whether the law is observed
or not.’ Diodorus Siculus calls it a common custom of mankind that
brothers should not marry sisters, but excepts the Egyptians from the
custom. Dio of Prusa makes barbarians the exception. Seneca has
written : ‘ We join the gods in marriage, and that too not reverently,
as brothers forsooth with sisters.’ Plato in the eighth book of the
Laws calls such marriages ‘ least holy, and hated of deity’.

* For neither was that law related according to which Judah wished Thamar bummed [Genesis,
xxxvill. 24]. Thus Judith, [ Judith,] ux. 2, says that the Sichemites were justly killed because they had
violated a maiden, and Reuben is cursed by his father on account of incest [Genesis, xlix. 4].

Chap. V] On the Original Acquisition of Rights over Persons 245

7. All these statements show that there was an ancient tradition
concerning a divine law against marriages of this kind, and for that
reason also we see that the word ‘ impious’ is used about such mar-
riages. Moreover, the law itself indicates! that all brothers and
sisters are meant, by including both relatives on the father’s side and
blood relatives of that degree in general, whether born and brought
up within or without the home.

XIV —That the same objection does not seem to hold in case of marriages
with relatives of a degree farther removed

1. This plain statement seems to indicate the distinction
between these and other more distant relatives. For it is forbidden
to marry an aunt on the father’s side; it is not, however, forbidden
to marry a brother’s daughter,? where the degree of relationship is
the same, and there are to be found examples of such a marriage
among the Jews. ‘Tacitus says: ‘New among us is the marriage
with a brother’s daughter, but it is customary among other peoples
and not forbidden by any law.’ Isaeus shows that such marriages
were permitted at Athens, and likewise Plutarch, in the life of Lysias.
The reason given by the Jews is that young men constantly visit the
homes of grandfathers and grandmothers, or even live in them along
with their aunts; but their access to the homes of brothers is less
frequent, and in these they do not have the same rights.

If we accept this explanation, which seems quite consistent with
reason, we shall acknowledge that, from the time when the human
race began to be numerous, the law against the marriage of relatives
in the direct line and with sisters has been permanently valid, and
common to mankind, since it rests on a natural sense of honour. In
consequence, whatever is done contrary to this law becomes void,
since the defect is permanent. The other laws nevertheless are not
on the same basis, since they contain a mode of prevention rather,
which can be exercised in other ways.

2. Surely in the earliest canons, which are called Apostolic,
the man who had married two sisters, one after the other, or ‘a niece’,
that is, the daughter of a brother or a sister, was merely excluded
from the clerical office.

1 On this compare the Chaldaean paraphrase. The Spartans and Athenians distinguished these
faultily, and indeed im a different way.

2 Josephus thinks that Sarah bore this relationship to Abraham [Antiquzties of the Jews, I. xii. 1].
The same author gives us an example, after the promulgation of the law, mm the person of Herod, who
had married his brother’s daughter and had betrothed his own daughter to his brother Pherotas.
See Antiquities of the Jews, XII and XVI [XVI. i. and XVII. jj.

According to Ovid, Metamorphoses V [V, lines 1 ff.], Andromeda had been betrothed to her uncle
Phineus. Though such a marriage was forbidden among the Romans, Claudius permitted it, Nerva
forbade it, and Heraclius again permitted it.

Annals,
XII (v1}

[ = Demo-
sthenes,

A gavnst
Leochares,
xliv. ro J

[=p.8368.}

Canon
XIX,

Eusta-
thius,

On the
Ihad, XII
[line 224],
and On the
Odyssey,
VIT [line
63].

Carty of
God, XV.
XVL,

On the Law of War and Peace [Book II

246

Further, it is not difficult to reply to what we have said con-
cerning the sin charged against the Canaanites and the neighbouring
peoples. ‘The general expression can in fact be restricted to the
special points of the chapter [of Leviticus], as intercourse of males
with males, intercourse with animals, with parents, with sisters, and
with the wives of others; other laws were added as ‘an outpost’, as
the Greeks say, or as an advanced line of fortifications, as the Jews
say, for the defence of these main positions.

The proof that the general expression cannot be understood of
the individual parts may be found in the prohibition of having two
sisters in marriage at the same time. For the righteousness of [154]
Jacob, who broke that law, does not permit us to believe that this
prohibition had previously been made general for the human race.
The act of Amram, the father of Moses, can be added as an example ;
for before the times of the law he married his aunt on his father’s
side. Similarly among the Greeks Diomedes and Iphidamas married
maternal aunts. Alcinous married Arete, his brother’s daughter.

3. Nevertheless the early Christians acted rightly in observing,
of their own accord, not only those laws which were given to all
men in cammon but also the other laws which were written par-
ticularly for the Jewish people. They also extended the bounds of
natural modesty to some degrees of relationship which were farther
removed, that in this virtue, not Jess than in others, they might
surpass the Jews.

From the canons it appears that this was done by common
consent. Speaking of the marriage of first cousins? among the
Christians, Augustine says: ‘ By custom this, which was permitted
by law, rarely took place ; the divine law did not forbid it, and human
law had not yet forbidden it. Nevertheless, even the lawful act was
avoided because of its nearness to an unlawful act.’ ‘This exten-
sion of the bounds of natural modesty was afterward sanctioned by
laws of kings and states. Thus the Code? of Theodosius forbade

1 We learn from the Eleciva of Euripides [line 311] that Electra was betrothed to her uncle Castor.

* Aeschylus [Supplzants, 37] speaks of the marnages arranged for the Danaids as ‘ marriages which
the law forbids’, and says [225] that thus ‘ the race 1s defiled’, But the Scholiast adds that those
marnages were unlawiul because the father of the maidens was still alive, as, after his death, they
would have been lawful, according to the law ‘ of sole herresses ’.

Livy [XLII. xxxiv. 3] represents Spurius Ligustinus, a Roman citizen, as saying: ‘My father
gave to me the daughter of his brother as wife.’ See also Plautus, Poenulus [ine 1156 ff.].

* Aurelius Victor (Epitome, xlvin. ro] says of him: ‘He laid such stress on modesty and con-
tinence, that he forbade marnages with first cousins as if with sisters.’ Also Libanius mentions this
in the oration De Angarits.

In the Theodosian Code (III. xu. 3) there is a law of Aicadius and Hononus with like import.
Another law of Honorius and the Younger Theodosius in the same Code, III. x [III. x. 1], shows that
such marriages were nevertheless allowed by special dispensation of the Emperors. The Gothic kings
followed the practice.

Cassiodorus, VII. xlvi [Vartae, VIT. xlvii. 123]: ‘ Wise men, following this example, have passed
on to posterity this observance of natural modesty, reserving to the Emperor alone the privilege of
uniting first cousins in marriage.’ There also is found ihe formula for such a dispensation.

Chap. V] On the Original Acquisition of Rights over Persons 247

the marriage of first cousins, and Ambrose praised the decree as
righteous.

4. But it must at the same time be understood that what is
forbidden by human law, if done, is not also void,’ unless the law has
added a provision to this effect, or indicated that it will be. The
sixtieth Elberic canon has this provision: ‘If anyone after the death
of his wife has married her sister 2 and she be of the faith, he is denied
communion for five years.’ The provision itself indicates that the
marriage bond remains. And as we have already said, according to
the Apostolic canons the man who has married two sisters or a brother's
daughter is merely excluded from the clerical office.

XV.—That certain marriages, which are classed by the laws as con-
cubinage, can take place and are lawful

1. To proceed to other topics, this observation should be made,
that a certain form of concubinage is in reality a valid marriage,
although it is deprived of certain effects peculiar to municipal law,
or even loses certain natural effects by the hindrance of the municipal
law. For example, by Roman law * cohabitation and not marriage
is said to exist between a male and a female slave. Nevertheless, in
such a union nothing essential to the nature of marriage is lacking ;
for this reason it was called ‘marriage’ in the early canons.

Similarly, concubinage and not marriage is said to exist between
a free man and a slave girl. Hence this term by a kind of analogy
has been extended to other unions between persons of unequal rank,
as at Athens the union of a citizen and a woman of foreign birth.

Hence in commenting on the verse of Virgil,
Substituted bastard foals begot from stolen mother,

Servius explains ‘ bastard’ as ignoble and obscure on the mother’s
side. In the Birds of Aristophanes one who had said, * You are a

1 [166] In the Council of Agde, after enumerating prohibited marriages, and among them
that with a brother’s widow, there is added: ‘ We forbid such marriages at the present time, but in
such a way that we do not annul those which have been contracted up to this time.’ Gratian placed
this in the Decretum, II. xxxv. 2 and 3. 8.

This is similar to what Paul has reported among his Sententzae, Book II, title xx [II. xix. 2], ‘ that
marriages contracted without the consent of the parents are unlawful, yet so that they are not annulled’,
unless, perchance, the last clause was added by Arnanus. Tertullian treating of a marriage with a non-
Chnstian says, To Hts Wefe, IL [II. si]: ‘The Lord has rather decreed that such marriages be not
contracted than that they be altogether annulled.’ See below, xvi.

2 Law of the Lombards, II. visi. 13 [II. vui. 3]: ‘ Because the canons decide the same concerning
two sisters as concerning two brothers.’

3 But the unions of slaves were called marriages in Greece, Carthage, and Apulia; see prologue
to the Casina of Plautus [line 68]. So also in the Law of the Lombards, Il. xi. to and xiii. 3 ; and
in the Salic Law, title xv. 1. But among the Jews such marriages were not valid without the consent
of the masters, as is observed by the Rabbis on Exodus, xxi, where mention is made of such marnages.
That the same rule held among the Greek Christians 1s noted by Basil in his canons [To Amphiloch. xli =
Epist. Class., Il. 199].

We see in Cassiodorus, Variae, VII. xl, that it was customary to ask the Emperor for a dispensation
to marry a woman of lower rank

Letters,
Ixvi.

[A ened,
VII. 283.]

[Lines
1650 ff.|

[Var.Hast.,
VI. x.]

[Decretum,
I xxxiv.
4.]

Code, V.
XXVI11. 3.
Digest,
XLVIII
Vv. 14 (13).

Institutes,

I {aj.

248 On the Law of War and Peace [Book IT

bastard and not of noble birth,’ proves his statement by adding,
‘since you were born of a foreign woman.’ And in Aelian the word
meaning ‘ lawfully begotten’ is defined as ‘ one whose parents are both
citizens ’.

2. Under these conditions in the state of nature there could be
a true marriage between such persons as I have mentioned if the
woman was under the husband’s protective care and had promised
him fidelity. Also under the Christian law’ that will be a true
marriage between a male and a female slave, or between a free man
and a slave woman; and much the more between a citizen and a
foreign woman, or a senator and a freedwoman, if the necessary
conditions according to the divine law of Christianity are present,
to wit: an indissoluble union of one man with one woman, even if
certain effects of the municipal law do not follow, or if effects which
would otherwise naturally follow are hindered by the law.

It is in this sense that the words of the first Council [155] of
Toledo must be taken: ‘ For the rest, one who has not a wife, but
has a concubine in the place of a wife,’ should not be refused com-
munion ; provided, however, that he shall be content with the union
with one woman, either wife or concubine, as he has preferred.’ On
this topic add also the passage in the Constitutions of Clement (Book
VIII, chapter xxxi). Pertinent in this connexion is the fact that
Theodosius and Valentinian call a certain kind of concubinage an
unequal marriage, and, further, that it is said that from such a
marriage the charge of adultery may arise.

XVI.—That certain marriages can be unlawfully contracted and never-
theless be valid

1. Again, if a human law forbids that marriage be contracted
between certain persons, it does not therefore follow that the marriage,
if in fact contracted, will be invalid. To prohibit and to annul are
in fact two different things. For a prohibition can exert its force
through a penalty, whether express or arbitrary; and Ulpian®

1 See the collection of Gratian [Gregory], Decretals, IV. ix. r.

* Concerning such a concubine Augustine, On Faith and Works [xix. 35], says: ‘ Also if a concu-
bine has promised that she will have intercourse with no other man, even if she is sent away by
the man to whom she has been subject, there is no proper ground for doubt whether or not she
ought to be permitted to receive baptism.’ The same author, De Bono Conjugalz, v, adds: ‘When
a.man and a woman, he unmarned and she not the wife of another, cohabit, not for the sake of having
children but to satisfy passion, yet with such fidelity that neither he does this with another woman
nor she with another man, the question is raised whether such a relation ought to be called marriage.
And perhaps 1t can be called marriage without absurdity 1f they have decided to live thus until the
death of one of them, and if, although the having of children was not the cause of their union, they
have nevertheless not so avoided offspring that they were unwilling to have children, or even took
unlawful means to prevent children.’ Likewise in the Capztulary of the Kings of France, VII. cclv,
it is said: ‘A man who has a wife cannot at the same time have a concubine, lest the affection for
the concubine should take him away from his wife.’

* Livy, Book X [X. ix. 5-6]: ‘Although the Valerian Law had forbidden the whipping or execution

Chap. V] On the Original Acquisition of Rights over Persons 249

applies the word ‘imperfect’ to laws which forbid anything to be
done, but do not annul it when done. Such was the Cincian Law,
which forbade gifts above a certain limit but did not make them void
when given.

_ 2. We know that among the Romans the rule was afterward
introduced by a law of Theodosius that, if a law merely prohibited
some act without specifically saying that whatever was done contrary
to the law ought to be without effect, nevertheless the act itself was
void, without effect, and as if it had never been done—of course in
case the matter should come into court.

Such extension, however, does not arise from the force of the
prohibition alone, but from the effect of the new law, which other
peoples do not find it necessary to follow. Often, in fact, there is
greater impropriety in the act than in its results; often, again,
the inconveniences which result from annulment are greater than the
improprieties themselves,’ or than the disadvantage of the act itself.

XVII.—T he right of the majority in associations of any kind

Besides the most natural association of marriage there are other
associations, both private and public. Public associations are formed
either by a people or by peoples. All associations have this in common,
however, that in those matters on account of which the association
was formed the entire membership, or the majority in the name of
the entire membership, may bind the individual members. In general
it must be believed that it was the wish of those who united in an
association that there should be some method of conducting business.
But it is manifestly unfair that the majority should be ruled by the
minority. ‘Therefore, naturally, the majority has the same right as
the entire body, if due exception is made of agreements and laws?
which prescribe the form of conducting business.

Thucydides says: ‘ Whatever the majority votes has full power.’
Also Appian: ‘The majority controls both in the elections and in

of the one who had appealed, it added nothing beyond the illegality of the act against those who had
done so. Such was the modesty of men at that time, I believe, that the bond of the law seemed suffi-
ciently strong, but now one would scarcely so threaten a slave.’

Ulpian [Insistutes, i. 2= Jurisprudentiae Ante- Justinianae, I. ii] states that the Furian Law on wills
forbade any one, outside the list of persons excepted, to take a legacy or donation on account of death
exceeding a thousand asses, and decreed a fine of four times the amount received against any one who
accepted more.’

Macrobius, near the end of what he wrote On the Dream of Sctpio [II. xvii. 13], says: ‘Among
laws, that one is accounted imperfect in which no penalty is decreed against the violators.’ See above
in this chapter, at the end of xiv. Of this character [167] isa rescript of the Emperor Marcus Aurelius
[Digest, XI. vir. 14. § x4]: ‘The heir, who prevents the funeral from being conducted by the one
chosen by the deceased, acts not rightly, yet no punishment has been decreed against him.’

1 Thus King Alcinous decided that Medea should be returned to her father, if she was still a virgin,
as Apollonius Rhodius, Argonautic Expedztion [IV, lines 1106 ff.], and his Scholast note, and also

Apollodorus, Library [I. ix. 25].
2 As those laws which require a two-thirds vote, such as Decrefals, I. vi. 6.

Code, I.
XIV 5.

Victoria,
De Potes-
tate Crvili,
no I4.

V [xxx].
[Crave
Wars,
III. viii
52.]

[Dion.
Halic ,

II xiv;]
VII
[xxxvi and
XXXIX].
Poliises,
IV. vuli;
VIL uu.

[X. vi 15 ]
[Against
Symma-
chus, I.
598 f.]

[I. 606 f.]

[Anabasis,
VI. 1. 18.)

[470 ff ]

On the Law of War and Peace [Book IT

250

the courts.’ Dionysius of Halicarnassus likewise: ‘ Whatever has
seemed best to the majority prevails’*; in another passage: ‘Whatever
the majority of the votes repeals, we must conform to’; and similarly :
‘Whatever the majority votes to rescind, ‘that controls.’ Says
Aristotle: ‘The decision of the majority [...] rules.’ Also Curtius in
the tenth book: ‘ Let that be valid which the majority has decided.’
Prudentius writes :

Among the few, as numbers now were waning,

Existed in reality nor fatherland nor senate ;
and again:

Let the weak voice of the minority

Give way, and in its lesser part
Be still.

In Xenophon are the words: ‘To do all things in accordance with
the opinion that prevails.’

XVIIL—W hich opinion should prevail in case of a tie vote

If the votes are equal, no action will be taken, because [156]
there is not sufficient weight to carry a change. For this reason,
where the votes for and against are equal, the accused is considered
acquitted.” This right of acquittal the Greeks called the vote of
Minerva, in remembrance of the story of Orestes; the subject 1s
dealt with in tragedy by Aeschylus in the Furies, and by Euripides
in the Orestes and the Electra.°

Further, under such a condition the possessor of a thing retains
it, as was not badly noted by the author of the Problems ascribed to
Aristotle (chapter xxix). In one of the Controversies of Seneca
is the statement: ‘One judge condemns, another acquits; in
differences of opinion let the milder prevail.’* Thus also in dia-
lectic the conclusion supports the side which presents the less

difficulty.

XIX.—W hat opinions should be divided and what joined

At this point question is usually raised in regard to the com-
bining or separating of votes. According to the pure law of nature,

+ The Chaldaean paraphrase and the rabbis attribute this meaning to the statement in Exodus,
xxui. 3.
Add Digest, XLII. i. 39 and 36, and what I give below, in III. xxx. 24 [III. xx. 4]; also
what Ambrose (Letters, xvu] says, in accord with Prudentius, Against Symmachus [I. v. 599 f., 607 £.].
* Digest, XLIT. i. 38 [beginning]. See Juhan, On Eusebia [Orations, \Il=p. 115 A, ed. Spanh.].
* Also in the Iphigenia among the Taurtans [line 1470]. In the Elecira [lines 1268 f.] the verses are :
And for the future this shall be the law for all,
A tie of jurors sets free the accused.

* Seneca in his Controverstes [I. v. 3] declares: ‘ Power which wins by pity is not hated.’ Further
among the Jews condemnation by a majority of one is considered void; so the Chaldaean paraphrase

Chap. V] On the Original Acquisition of Rights over Persons 251

that is, if no other rules have been laid down by agreement or by
statute, clearly a distinction should be made between opinions that
are entirely different and those of which one contains a part of the
other, so that the latter ought to be combined in whatever they
agree," but the former cannot be combined.

Thus when some favour a fine of 20, others of 10, they will
unite on 10 against the vote for acquittal. If, however, some vote
for the death penalty, and some for banishment of the accused,
these votes will not be combined, because they are different, and
banishment is not included in the death penalty. But neither will
those who vote for acquittal be combined with those who vote for
exile, because, although they agree in not favouring the death of the
accused, nevertheless this is not what the vote itself declares, and the
matter is one of inference; for he who votes for banishment does
not vote for acquittal.

Pliny, then, rightly said, when something of this kind happened
in the senate, that the difference in the motions was so great that no
count could be made except for each motion separately ; and that
it made little difference that senators agreed in opposing the same
motion, since there was no motion on which they did agree. Polybius,?
again, notes that the praetor Postumius acted illegally in taking the
votes, since he combined those voting for condemnation of the captive
Greeks with those voting for temporary detention, as against those
who voted for acquittal.

There is a question of this kind in the ninth book of Gellius,
and in the work of Curius Fortunatianus, De Quantitatum Com-
paratione; also in the Controversies of Quintilian the Father (ccclxv),
where are the following words: ‘ Now united you plainly have the
more, now that very number, which, united, might do harm, you
destroy the effect of by making a division in it. Two vote for exile,
two for degradation. Do you desire that I unite those who separate
themselves ?’

to the passage in Exodus, xxii [verses 2-3]; and Moses de Kotzi gives the same explanation, Precepts
Bidding, 98, and [Precepts] Forbtdding, 195.

1 So, when a motion contained several parts, the Roman senators were ordered to vote the parts
separately, as Asconius testifies in his commentary On [Czcero’s] For Mzlo [xliv].

Cicero, Letters, I. ii [I. 1i. 1], says: ‘And so when Bibulus had first made a motion, that three
delegates should restore the king, and secondly Hortensius, that you should restore him without an
army, and in the third place Volcacius, that Pompey should restore him, the demand was made that the
motion of Bibulus be divided. The part of the motion referring to the religious aspect of the case, to
which opposition could no longer be made, was passed. On the question of the three delegates, the
majority voted for everything else but that.’

Seneca, Letiers, xxi [II. ix. 9]: ‘What is the usual custom in the senate I think ought to be made
the custom in philosophy also. When some one has proposed what pleases me in part I bid him divide
his statement, and I follow the part I approve.’ He says also, On the Happy Life, iii [iiil. 2]: ‘The
right of decision rests with me; and so in one case I shall follow a man, in another I shall bid him
divide his proposition.’

Pliny, Letters, VIII. xiv [VIII. xiv. 13 ff.], mentions the same practice.

2 [Selections on Embassies, cxxix, p. 1331, edit. Amster. = Polybius, XXXTII. i]. See also thenotes
of Fulvius on this passage.

Letiers to
Amnsto,
VIII
[xiv. 24].

Selections
on
Embassves.

fIX. xv.
7]

Dig. L.
li. I.

[Nicom.
Ethics,
ViIl. xu]

Code, XII

tll. I

Dg. IT.
xiv. 8,
AVI ui.
145
XLII. v.
16.

252 On the Law of War and Peace [Book II

XX.—That the right of those who are absent accrues to those present

This point must also be added. If any members cannot avail
themselves of their right by reason of absence or some other hindrance,
their right in the meantime accrues to those present. This, too,
Seneca expresses in his Controversiest: ‘Suppose you are the slave
of more than one master; you will serve the one who is present.’ ”

XXI.—W hat rank is to be observed among equals, even kings

The natural order ? of rank among members of an association is
the order in which they entered it. So this order is preserved among
brothers, since the first born takes precedence, and so on in succes-
sion, with disregard of all other qualities. As Aristotle says, ‘ Brothers
in fact are equal, except as age distinguishes them.’

Theodosius and Valens in a Constitution prescribe the order of
rank to be observed as between the consuls: ‘ Of those holding the
same official rank, who in fact ought to have precedence except the
one who first attained to the rank?’* In ancient times this custom
prevailed in the association of Christian kings and peoples, that in
councils > concerned with Christian matters those who had first
accepted Christianity took precedence of the rest.

XXII.—In associations which are based upon property, the votes must
be counted according to the shares which each has in the property

Yet the following must be added. In the case of an association
[157] having its foundation based on property in which all do not
share equally, as in an inheritance or an estate, in case one has a half,
another a third, another a quarter, then not only must the order
according to the amount of participation be followed, but also the
votes must be counted in proportion to the shares, that is, to use
a technical expression, gro raia. This is in accord with natural
justice and was approved by the laws of the Romans also.

1 Controversies, Book III, xix [VII. iv. 4].

2 So that even the power over the whole may fall to one person, Digest, II1. iv. 7; see Wesenbeck
on this provision. See also Digest, Il. xiv. 10; Zasius, Paraitla Dig. De Pactis [II. xiv]; Bartolus,

-On Digest, L. iii. 1; Bohier, Decsstons, i, no. 4; Antoine Favre, Codex Sabaudicus, I,ii. 40; Reinkingk,
Book I, class v, chap. viii.

Nevertheless often also in this case, as in that rule concerning the majority, the laws make excep-
tions, as that two thirds should be present ; Degest, III. 1v.3; Code, X. xxxil. 45; again, that those
absent should be able [168] to give their proxies to those present or to give their vote through an
attomey; Sexi, I. vi. 46.

3 On the right of precedence, if you wish, examine M. Antonius Natta, Conszla, 600, no. 22, and
Constlia, 678, no. 31; Martin Wacher, Consilza Caesarea, in Controversia Saxonica.

4 Add Code, XII. viii. 2; Digest, L. vi. 6; Code, XII. xliii. 3.

5 John Fice., Consilia Latina, 77,n0.16; Afflictis, Decistones Neapolitanae, i, no. 8; Bartolus, On
Digest, L. ii, x; Innocent, On Decretals, I. xxxiii. 7; Anthony Tessaurus, Quaestiones Forenses, I,
qu. xlviii, no. 5; Tiberius Decianus, Responsa, xix, nos. 183 ff.; Innocent, Butrio, Felinus, On De-
cretals, I. xxxili. 15 ; Baldus, On Code, I. 1i. 16, 2. But, above all, see Aeneas Sylvius in his Htstory
of the Council of Basel.

Chap. V] On the Original Acquisition of Rights over Persons 253

Thus Strabo relates that when Libyca and three neighbouring
cities had united into one body politic it was agreed that the others
should have one vote each, but Libyca two, because it contributed
much more to the common interest than the others. The same
author reports that in Lycia there were twenty-three cities, of which
some had three votes each,1 some two, and some only one, and that
they distributed the burdens in the same proportion. But Aristotle
tightly notes that such a division would be fair only in case ‘ the
association was entered into on account of property’.

XXIII.—The right of a state over its subjects

An association in which many fathers of families unite into
a single people and state gives the greatest right to the corporate
body over its members. ‘This in fact is the most perfect society.
There is no lawful act of men which does not have relation to this
association either of itself or by reason of the circumstances. And
this is what Aristotle expressed in saying that ‘the laws prescribe
concerning matters of every kind’.

XXIV.—Whether 1t is permissible for nationals to withdraw from
a state ; explanation, with a distinction

1. Here the question is commonly raised, whether it is per-
missible for nationals to withdraw from their state without per-
mission.”

We know that there are peoples among whom such withdrawal
is not permissible, as the Muscovites; and I do not deny that a civil
society can be formed on such terms, and that such a custom may
receive the force of agreement. By the Roman laws, at least the
later laws, a man could at any rate change his place of habitation,
but none the less the person who had done so was subject to the
burdens of his native town. ‘This applied, however, only to those
who remained within the limits of the Roman Empire, and the
regulation itself had special reference to the payment of taxes.

2. But we are inquiring what would naturally be the rule if
nothing else were agreed upon; and not regarding a part of a state,
but a whole state, or even the limits of a single empire. And surely,
that the nationals of a state cannot depart in large bodies ® is quite

1 Thus in the treaty of Smalkald the Elector of Saxony had two votes.

2 On this question see the Swiss treaties in Simler [De Republica Helvettorum, l=p. 203] and in other
authors. Servius, in the Fuldensian excerpts, says [On the Aenezd, II, line 156]: ‘It had been an
ancient custom, that the man who was passing over into a family or nation first withdrew from the
one in which he had been, and under such a condition was received by the other.’ See in Mariana’s
History some examples of renouncing fidelity to kings, especially the last notable one in XXVIII. xii.

3 “Zonaras [XIV. v. 25], speaking of the king of the Lazes, who had revolted from the Persians to
the Romans, says: ‘ This was the beginning of the war between the Romans and the Persians, because
the Roman Emperor enticed away the subjects of the Persians.’

XIII
fiv. r7].

XIV
fina. 3]

Politics,
ITT. ix.

Morals
[Ntcom.
Ethics], V.
ill.

Dig. L. i.
22.

Digesi,
XLIX.
KV. 12. § 9

[X111. 31 ]

Digest,
XVIT 13,
65. § 5.

[Hera-
chidae,
187 ff.]

(De Bigs,
XV1 14
= 349 D.]

On the Law of War and Peace [Book Il

254
clear from the necessity underlying its purpose, which in moral
matters takes the place of law. For if such migration were per-
missible the civil society could not exist.

The withdrawal of individuals, on the contrary, seems a different
matter, just as it is one thing to draw water from a river and another
to conduct the stream into a canal. Tryphoninus says: ‘Each has
the unrestricted right to choose his own state.’ Cicero in the speech
For Balbus praises the law that ‘no one is forced to remain in
a state against his will’, and calls ‘ each man’s power to retain or to
abandon his right the foundation of liberty ’.

Yet here also we must observe the rule of natural justice which
the Romans followed in putting an end to private associations, that
a thing should not be permitted if it is contrary to the interests of
society. ‘ Always, in fact,’ as Proculus rightly says, ‘it is the custom
to observe, not what is to the interest of an individual associate, but
what is to the interest of the association.’+ Moreover, it will be to
the interest of the civil society that the national do not withdraw
if a heavy debt has been contracted, unless the national is prepared
to pay his share at once; likewise if war has been undertaken because
of confidence in numbers, and especially if a siege threatens, unless
the national is prepared to furnish an equally capable substitute to
defend the state.

3. With the exception of these cases, it is to be believed that
peoples consent to the free withdrawal of their nationals, [158]
because from granting such liberty they may experience not less
advantage than other countries.

XXV.—The state has no legal claim against exiles

Thus the state has no legal claim against exiles. According to
Furipides the descendants of Hercules, expelled from Argos by
Eurystheus, through their defender Iolaus speak as follows :

By what right does he now claim us as of Mycenae,
Whom, there abiding, he from that city drove?
Citizens, therefore, we no longer are.

In an oration of Isocrates the son of Alcibiades, discussing the period
of his father’s exile, says : ‘ When our state had no relation with him.’ ®
The association of several peoples, either of themselves or through
their heads, is a league; regarding the nature and effect of such
association there will be an opportunity to speak when I come to the
question of obligation arising out of a compact.
1 Bembo, Book VII. 2 See below, III. xx. 41.

® Nicetas, Isaac Angelus, Book I [I. ix]: ‘It is no wonder that any one who has perceived that
his own people are hostile to him courts an enemy and makes a friend of him.’

Chap. V] On the Original Acquisition of Rights over Persons 255

XXVI.—The right, arising from consent, over an adopted child

Subjection by consent is either private or public.

Private voluntary subjection can be of many kinds, as there are
many kinds of authority. The noblest form is adult adoption, by
which a person so gives himself to another family that he is subject
to it in the same way in which a son of mature age is subject to his
father. A father, however, cannot give his son to another in such
a way that the full right of the father passes to the other, and that
he himself is released from the duty of a father; for nature does
not permit this. But the father can entrust his son to another, and
allow him to be brought up by the other as in his place.

XXVII.—The right over slaves

1. The basest form of voluntary subjection is that by which
a man gives himself into complete slavery, as those among the Ger-
mans who staked their liberty on the last throw of the dice; ‘’The
one who lost’, says Tacitus, ‘went into voluntary slavery.’ Such
slavery prevailed even among the Greeks, as Dio of Prusa relates in
his fifteenth Ovazion: ‘Innumerable persons, though free, give
themselves into slavery to serve according to contract.’ ?

2. That is complete slavery which owes lifelong service in
return for nourishment and other necessaries of life; and if the
condition is thus accepted within natural limits it contains no
element of undue severity.* For the lasting obligation to labour is
repaid with a lasting certainty of support, which often those do not
have who work for hire by the day. Consequently that often comes
to pass which Eubulus said :

He fain would stay with them and without pay,
With food alone content.
The same writer of comedy elsewhere said :
To his own manger many a slave returns,
Who once had run away and lived as free.

So Posidonius the Stoic noted in his Azstories, that formerly

there were many who, conscious of their weakness, of their own

1 This was formerly forbidden to the Egyptians [Diodorus Siculus, I. lxxix. 1]. It was permitted
at Athens up to the time of Solon, who established that the body should not be secunty for debt; so
Plutarch, Solon [xv = 86]. The Petilian law established the same principle at Rome [Varro, Latin
Language, VII. cv; Livy, VIII. xxvii].

2 On this subject see the excellent dissertation of Busbecq, in the third of his foreign letters
[Letters of the Turkish Embassy, iu].

3 In Plautus [Casina, 293] some one says:

If I were free I’d live at my own nsk,
But now [I live at yours.

Melissus Spoletinus, the grammarian, did not wish to be set free [Suetonius, Grammarians, xxi].
1569.27 T

On the
Customs
of the
Germans
[xxiv].
[= 241B.]

[Athen-
aeus,
VI. 1J

[Stobaeus,
Ixu1. 32.]

[Athen-
aeus, VI,
Ixxxiv.]

[Athe-
naeus, VI.
IXXXIV ;
Strabo,
XID 4.)

On Beine-
fits, III.
XVI.

On Bene-
fits, III
XX11
Sextus
Empiricus,
Pyirho-
neva, IIT
[=211c ]

= 240C.]

(III. vii.
2.]

On the Law of War and Peace [Book IT

256

accord gave themselves into slavery to others, ‘so that the masters
would provide them with the necessaries of life, and they them-
selves in turn would do what work they could’. [159] Others
add the example of the Mariandyni, who for the same reason made
themselves the slaves of the Heracleots.

XXVIII.—To what extent the right of life and death may be said to

exist n the right over slaves

Masters do not have the right of life and death (I am speaking
of complete moral justice) over their slaves. No man can rightly
kill a man unless the latter has committed a capital crime. But
according to the laws of some peoples the master who has killed
a slave for any reason whatsoever goes unpunished. ‘This is the case
also with kings everywhere who have the most unrestrained power.

Seneca had already made this comparison ;: ‘ If necessity and fear
of suffering the worst prevents a slave from acquiring merit, the same
obstacle will hinder one who has over him a king or a general, since
to them equal powers are granted, though under a different title.’
Nevertheless, although a slave may without doubt receive injury at
the hands of his master, as the same Seneca rightly affirms, yet
impunity in action is not properly called a right.

Such a right over children both Solon and the ancient laws of
the Romans assigned to parents. Sopater says: ‘ Since he was a father,
he was permitted to kill his children, of course in case they had com-
mitted a crime; for the law granted this permission to him, because
it was believed that he would be a fair judge.’ Dio says in his fifteenth
Oration that among many peoples famed for their laws the same
right prevails.

XXIX.—W hat according to the law of nature should be decided con-

cerning those who are born of slaves ?

I. The question is more difficult in regard to the children of
slaves.

By the Roman law and by the universal customary law relating
to captives, as we shall state elsewhere, in the case of persons of servile
rank, as in the case of animals, the offspring follows the mother.
Nevertheless this is not in satisfactory agreement with the law of
nature, in case the father can be recognized with sufficient certainty.
For since in the case of dumb animals the fathers no less than the
mothers care for the offspring,’ this fact shows that the offspring is

+ See below, IT. vili. 18; Pliny, [Natural History,| X. xxxiv, says concerning doves: ‘Love of
offspring is equal in both parents.’

Chap. V] On the Original Acquisition of Rights over Persons 257

common to both. If, then, municipal law. had been silent on the
subject, the children would not be less likely to follow the condition
of the father than that of the mother.

Let us suppose, to make the difficulty less, that both parents
are in servitude, and let us see whether the children will naturally be
of servile condition. Surely, if there were no other method of bring-
ing up the children, the parents could adjudge to slavery, along with
themselves, the offspring liable to be born to them, since under such
conditions parents are allowed to sell children born free.

2. But since this right derives its origin from necessity only,
without such necessity the parents do not have the right to enslave
their offspring to any one.” Consequently in this case the right of
masters over the children of slaves will arise from the furnishing of
nourishment and other necessaries of life ; * and so, since the children
of slaves have to be supported for a long time before their work can
be useful to their masters, and since the services which follow are in
return for support in that period, it will not be permissible for those
who are born under such an obligation to flee from slavery unless
they return adequate compensation for their support.

Surely the generally approved opinion is that, if the cruelty of
the master is excessive, even those slaves who have voluntarily given
themselves into slavery can take counsel for their welfare by flight.
For the prohibition by which the Apostles and the early canons
forbid slaves to leave their masters * is a general prohibition, which

1 Seneca, On Benefits, VII. xii [VII. xdi. 1] says: ‘In what manner are the children common to
father and mother ?’

In the Visigothic Law, X. i. 17, we find: ‘If the son is begotten and created by both parents, why
should he belong to the rank of the mother only—he who could not [169] have been conceived
without the father?’ Then this is added: ‘ By this law consistently with nature we are compelled
to divide equally between the two masters the offspring of a female slave who had been united with
a slave belonging to another.’

The offspring of a male and female slave followed the father, according to the Speculum Saxonicum,
ii. 73. The same custom existed in some places in Italy ; Decretals, IV. ix. 3.

Among the Lombards and Saxons the children take the status of the parent having inferior rank ;
Speculum Saxonicum, i. 16. The same rule held among the Visigoths in Spain during the time of
Isidore, as you may learn from the Decretum, II. xxxii. 4. 15.

The child born of a slave and a free woman becomes a slave by the same Visigoth1e Law, IIT. ii. 3;
IV. v. 7; IX. i. 16. The children born of a slave and a slave woman are divided between masters.
If there is only one son, the owner of the father has him and pays half the value to the owner of
the slave woman [X. i. 17]. In the case of children of serfs bound to the soil the owner of the father
receives two thirds, the owner of the mother one third, according to the edict of Theodoric in
Cassiodorus, [Varzae,] Ixvii.

In England one is free or bond-servant according to the condition of the father, and the same mile
is observed in other distinctions of rank; Littleton, On Tenures, and [Fortescue,] On the Praises of
the Laws of England.

Thomas Aquinas [Suppl., qu. lu, art. 4, concl.] recognizes that these laws, though opposed to the
Roman civil law, are not at variance with the law of nature. Furthermore by the Mensian Law,
when either of the parents was of foreign birth, the child was considered a foreigner, as Ulpian explains
in the Institutes, V. vu.

2 So Charles the Bald also decreed, Edictum Pzstense, xxxiv [Monumenta Germaniae Historica,
Leges, II, vol. II, pp. 325 ff.].

3 See Leo of Africa, Book VI, concerning Barca [ed. of 1632, p. 598].

# See below, ITI. vii. 6.

T2

Lessius,

V {ij v,
dub. 5

Zr Cor, vii.
21; Gal.
[Ephes.],
Vl. 53
Coloss.

1l1, 22.

Titus, ii.
9; z Peter,
ll. 16
Decr , Il.
Evil. 4. 37.

[I. iii. 8.]
“[Livy, I.
Xxxviil.2.]

[Lines
258 f.]

I, iit.

258 On the Law of War and Peace [Book II

is opposed to the error of those that denied all subjection, either
private or public, as inconsistent with Christian liberty.

XXX.—Different kinds of slavery

Besides the complete slavery, which we have already treated,
there are also [160] varieties of incomplete slavery, such as that
which is temporary, or under a condition, or for certain purposes.
Such is the state of freedmen, of those who have been promised
freedom conditionally, of debtor bondsmen both voluntary and from
court decree, of serfs bound to the land, of the seven year servitude
among the Jews and of the other kind which lasts till the year of
Jubilee, of the Penestae among the Thessalians, of tenants of land
held under the law of mortmain, and finally of men hired for pay.*

These distinctions are dependent either on laws or on agreements.
Also, for reasons mentioned above, seemingly by the law of nature,
incomplete slavery exists in the case of those that are born of one
parent who is free while the other is a slave.

XXXI.—The right gained by consent over a people which submits

Public subjection is that condition in which a people is that
surrenders itself to some man, or to several men, or even to another
people. The formula of such a subjection we have given above in
the example of Capua. Similar is that of the people of Collatia:

Do you surrender the people of Collatia, the city, the fields, the water, the
boundaries, the shrines, and all appliances divine and human, into my power and that
of the Roman people ?

We do.

And I accept them.

Alluding to this formula, Plautus in the Ampbitruo says:

They yield themselves, and all things human and divine,
Their state and children, to the Theban people’s rule and will.

The Persians called this the giving of earth and water. This, then,
is complete subjection.

There are also other degrees of subjection which are less com-
plete, either in the manner of holding sovereign power or in the
plenitude of it; the different degrees can be derived from the dis-
cussion previously given by us.

1 Among these, they who in England are called apprentices approach very close to the condition
of slaves during the time of their training.

Chap. V] On the Original Acquisition of Rights over Persons 259

XXXIT.—The right over a person resulting from a crime

Subjection as a result of crime arises also without consent,
whenever a person who has deserved to lose his liberty + is by force
brought under the power of him who has the right to exact the
penalty. We shall see below who has the right to inflict punishment.

In this way individuals can be brought under private subjection,
as at Rome those were who did not respond to conscription,” those
who did not correctly report their property to the censors, and after-
ward also women who cohabited with another’s slave; and also
peoples can be brought into public subjection for a public crime.
But there is a difference in this respect, that the servitude of a people
is naturally lasting, since the succession of the parts does not prevent
it from remaining one people. On the other hand the penal servitude
of individuals does not pass beyond the persons themselves, because
the crime attaches to the person of the criminal.

Moreover, both kinds of penal servitude, private as well as public,
can be either complete or incomplete, according to the degree of the
crime and punishment inflicted. Below, when we come to the results
of war, there will be an opportunity to speak of slavery, both private
and public, which arises from the volitional law of nations.

i 1 As mse companions of Ulysses who plundered the Egyptians; Homer, Odyssey, XIV [XIV,
ines 271-2]:

Part of our men they with sharp weapons slew,

And part they dragged away alive, to work as slaves.

So when Jupiter wished to hurl Apollo into Tartarus he was persuaded by Latona to sentence him to
slavery ; see Apollodorus, Book IIT [TITI. x. 4]. ;

2 So thieves among the Lycians ; see Nicholas of Damascus [frag. 20, p. 148, edit. Dindorf] ; and
among the Visigoths many condemned for other crimes, as appears from their laws.

[I]. xx. 3.]

Cicero,
For Cae-
cing
[xxxiv,
99].

(III. vii.]

Rhetone, I.

Vv.

Soto, IV,
qu. v, art.
I.

[IT.iv. 3 ]

Lessius,
II 1,
dub 3

CHAPTER VI

ON SECONDARY ACQUISITION OF PROPERTY BY THE ACT OF MAN:
ALSO, ALIENATION OF SOVEREIGNTY AND OF THE
ATTRIBUTES OF SOVEREIGNTY

I.—W hai 15 necessary, on the part of the giver, that the alienation of
a right should be valid

1. A THING becomes ours by secondary acquisition either
through the act of man or by operation of law.

After the introduction of ownership it 1s of the law of nature
that men, who are the owners of property, should have the right to
transfer the ownership, either in whole or in part. For this right is
present in the nature of ownership, at least of full ownership. ‘Thus
Aristotle says: ‘ The definition of ownership [. . .] is to have within
one’s power the right of alienation.’

Two matters only are to be noted, the one affecting the giver,
the other the receiver. In the case of the giver a mental act of will
is not sufficient, but together with it either words or other external
signs are required, because a mere mental act, as I have said else-
where, does not meet the requirements of human society.

2. The requirement that delivery of the property take place
arises from municipal law. But because this has been received by
many nations it is improperly called a principle of universal law.
Thus we see that in some places it is the custom to require a declara-
tion in the presence of the people, or before a magistrate, and inser-
tion in the public records; and it is quite certain that all these
formalities arise from municipal law. But the act of will, which is
expressed by a sign, must always be understood to be the act of
a rational will.*

Il.—W hat is necessary on the part of the receiver

In the case of the receiver, in turn, if we disregard the municipal
law, the requirement by the law of nature is willingness to receive,
accompanied by its natural sign. This willingness ordinarily follows
the giving, but it can also precede, as, for instance, if any one has
asked that a thing be given or granted to him. It is in fact believed
that the willingness continues unless a change becomes apparent.

The other conditions, which are required both for the transfer
of a right and for its acceptance, and the question how both can
take place, will be treated below in the chapter on promises. For

* Cassiodorus, [Varzae,] II. ii: ‘ Alienation of property demands absolute freedom of decision.’
260

Chap. VI] Secondary Acquisition of Property by Act of Man 261

in these matters the method of alienation and that of promising are
alike,* at least by the law of nature.

ITI.—That sovereignty can be alienated, sometimes by the hing, some-

times by the people

Moreover, as other things, so also sovereignty can be alienated
by the one under whose control it in reality is; that is, as we have
shown above, by the king, if he holds the sovereignty by inheritance,
otherwise by the people,? but with the consent of the king, because
he also has a certain right as possessor of a kind of life interest which
ought not to be taken away against his will. ‘These considerations
apply to sovereignty in its entirety.

IV.—T hat sovereignty over a part of a people cannot be alienated by
the people against the will of the part

In the alienation of a part of a people there is the additional
requirement that the part whose alienation is under consideration
also give consent.* For those who unite to form a state form a kind
of perpetual and lasting association by reason of the character [171]
of those parts which are called integral.

From this it follows that these parts are not so dependent on
their body as are the parts of a natural body, which cannot live
without the life of the body, and, therefore, may rightly be cut off
for the advantage of the body. This body of which we are treating
is in fact of a different kind, since it was formed from voluntary
compact. For this reason, again, the right of the whole over its parts
must be measured from the original intent, which we ought not to
believe was such that the body should have the right to cut off parts
from itself and give them into the power of another.

V.—That a part cannot alienate the sovereignty over itself except in
case of extreme necessity

Likewise in turn it is not right for a part to withdraw from the
body unless it is evident that it cannot save itself in any other way.*

1 So also gifts can be sent by messenger to those who are absent, as Servius remarks On the Aeneid,
Book IX [ITX. 361], ‘ when absent he was joining’.

2 See Baldus and Oldradus, On Decretals, II. xxiv. 33.

Also, Baldus, Consilia, 327, no. 7; Cardinal Toschi, Practicae Conclustones, 40, no. 1, and 694.
Examples are given in Haraeus, [Annales Ducum Brabantiae et utrrusque Belgit,] vol. U, year 1526, and
in Guicciardim, Book XVI.

8 Gail, De Pace Publica, II. xv. 14; see De Serres in the life of Charles the Wise [Jnventazre de
l’ Histotre de France, 1627, p. 194], and the same historian on the life of Francis the First, where he speaks
of Burgundy [p. 565]. }

¢ Compare what is said below, II. xxiv. 6. For this reason the Spartans acquitted Anaxilaus,
who had surrendered Byzantium, when compelled by hunger; Xenophon, Greek History, Book I
[I. ili, Ig].

[I. 12. 12.)

262 On the Law of War and Peace [Book IT

.u 6 ] For, as I have said above, in the case of all rules of human devising,

[XVIII ]
ll.

Herodo-
tus, VII.
[cxxxu].

absolute necessity seems to make an exception, and this reduces the
matter to the strict law of nature. In the eighteenth book of the
City of God, Augustine says: ‘ Among almost all nations this utter-
ance of nature has in some way been heard, that they should prefer
to yield themseives to the conquerors rather than to be exterminated
with every kind of war’s destruction.’ And so in the oath of the
Greeks, in which those who should have yielded to the Persians
were devoted to death, there was added the exception, ‘ unless they
should be actually forced ’.*

VI.—The reason for the difference indicated

Hence it can be clearly enough understood why, in this respect,
the right which the part has to protect itself is greater than the right
of the body over the part. The part, in fact, employs the right
which it had before entering the association, but not so the body.

Furthermore no one should say that sovereignty exists in a body
as in a subject, and so can be alienated by it, just as ownership can.
Just as the soul, in fact, exists in bodies that are suited to it, so sove-
reignty resides in the corporate body as in a subject which is entirely
filled, and not divisible into several bodies. But necessity, which
restores a thing to the law of nature, cannot exert its force here,
because in the law of nature use indeed is included, as eating, and as
keeping, which are natural acts, but not the right of alienating,
because that was introduced by act of man, and so by that fact the
extent of its validity is measured.

VII.—T hat sovereignty over a place can be alienated

Nevertheless, I see nothing to hinder a people, or even a king
with the consent of the people, from alienating sovereignty over
a place, that 1s, a part of its territory, for example, a part that is
uninhabited or deserted. For because a part of the people possesses
freedom of choice, so also it possesses the right of refusal; but both
the whole territory and its parts are the undivided common property
of the people, and therefore subject to the will of the people.

If, on the other hand, the people is not allowed to alienate the
sovereignty over a part of the people, as we have just said, still less

1 The Emperor Anastasius even thanked the commanders, who had surrendered Martyropolis to
the Persians, because it could not be defended, Procopius [Ox the Buildings of Justinian, III. ii].
The same Procopius, Gothtc War, IV [IV. 23]: ‘ Valor refuses to dwell with hunger, and nature does
not suffer the same persons to be famished and to fight bravely.’

In Anna Comnena, Book VI [V. v], there is a letter of Cephales from the besieged Larissa to the
Emperor Alexis: ‘Slaves to necessity (for what can be done against the force of nature ?), we have
decided to surrender the town to those who are not only besieging us but are most plainly strangling us.’

Chap. VI] Secondary Acquisition of Property by Act of Man 263

can a king do so, though possessed of absolute authority, since this
power is not without restrictions, as I have shown above.

VITI.—Refutation of the opinion that a king can lawfully alienate
portions of bis dominion for reasons of advantage or necessity

_ I cannot agree, therefore, with the jurists who add two excep-
tions, public advantage and necessity, to the rule concerning the
inalienability of parts of a state, except with this understanding, that
when the common advantage is the same, both for the corporate
body and for its parts, the consent of the people and of its parts
seems easily established from a silence of no long duration, but more
easily still if the necessity is apparent. But when an opposing desire
Is manifest, either on the part of the whole state or of a part, the act
must be understood to be null and void, except, as I have said, where
a part has been compelled to withdraw from the corporate body.

IX.—T hat infeudation and pledging are contained in alienation

Under the head of alienation is properly included infeudation
with liability of forfeiture in case of felony or lack of issue; for this
is a conditional alienation. Therefore we see that infeudations of
kingdoms, as well as alienations, which [172] kings have made
without consulting the people, have been held void by most peoples.!
But we are to understand that the people has given its approval,
whether it has assembled as a whole, as was formerly the custom
among the Germans and Gauls, or has expressed its will through
satisfactorily instructed delegates of integral parts. For we do also
that which we do through the agency of another.’

Furthermore, a part of a state cannot be given in pawn except
with similar consent, and not merely for the reason that alienation
customarily results from giving in pawn, but also for the reason that
both the king is under obligation to the people to exercise his sovereign
authority in person, and the whole people is likewise bound to its
parts to preserve in entirety this exercise of that authority for the
sake of which they united in civil society.

X.—That for alienating inferior powers also the consent of the people
1s required, either express or inferred from custom

Nothing, however, hinders the people from being able by
hereditary right to bestow the inferior offices of government, since

1 Also remissions of homage; see Kromer, Poland, Book XXV.
2 [174] Thus in the Empire in the case of alienations the consent of the Electors, according to
custom and agreements, takes the place of the consent of the constituent states.

Belluga,
Speculum
Princrpis,
vil 3 and 4.
Rochus de
Curte, De
Consuetu-
dine, vol.
I, qu. 5,
col 6, and
others
quoted by
Vazquez,
I ix

Smith, De
Republica
Anglorum,
ix.
Buchanan,
life of
Baliol
[History
of Scot-
land, VITI.
Xvil].
Froissart,
[Chroni-
cles,]

I cexiv
and ccxlvi.
Monstre-
let, Chro-
Nigues,
XX. 5.
Guicciar-
dini, XVI.

Cravetta,
Constlia,
894, no. 2.
Zoanettus,
De Im-
perto Ro-
mano, no.
162

Alberico
de Rosate,
On De-
cretals,

II xxiv
33, Bart.,
On Digest,
XLITI.
XX1V 3
§4; Co1-
setti, De
Excellen-
tia Regia,
qu. 4.
Loazes
cited by
Vazquez,
v, Natta,
Constha,
367;
Bonifacius
Rugerius,
Constlia,
49, BO. 43

On the Law of War and Peace [Book IT

264

those do not at all diminish the integrity of the state as a whole, or
of its sovereignty. But the king cannot do this without consulting
the people, if we are to remain within the bounds of the law of
nature; because a temporary right, such as that possessed by elected
kings, or those succeeding to sovereignty by the law of nature, can
produce no effects except those which are equally temporary. Never-
theless silence introduced by custom, as well as the express consent
of the people, could have assigned this right to kings, and this we see
is now the rule generally. And so we read in history, that formerly
the kings of the Medes and Persians exercised this right of granting
towns or whole provinces as permanent possessions.”

XI.—T hat the public domain cannot be altenated by kings

Also the public domain, the fruits of which have been assigned
to support the burdens of government or of royal rank,’ cannot be

alienated by kings,® either in whole or in part; for in this they have

no greater right than of usufruct. And I do not admit an exception
if the thing is of little value; for I have no right to alienate even
a small part of that which is not my own. But the consent of the
people is more easily inferred from knowledge and silence in the case
of small than of great matters.

With this in mind we can apply to the public domain what we
have said above [I. iii. 12] concerning the necessity and public advan-
tage in alienating parts of the state, and with even more cogency,
because here a matter of less moment is at stake. TThe public domain
was, in fact, established for the sake of the state.

XIT.—T hat tt 15 necessary to distinguish the income arising out of public
domains from the domains themselves

But many are deceived on this point, because they confuse the
income from the public domains with the domains themselves. Thus
the right of acquiring alluvial additions ordinarily belongs to the
domain, but the alluvial lands added belong to the income. The
right of collecting taxes belongs to the domains, the money coming
from the taxes to the income. The right of confiscation concerns
the domains, the estates confiscated belong to income.

* As the city and island of Samos was given to Syloson by Darius [Herodotus, III. cxl—cxlix].

* The ancient Greeks called the portion of public land assigned to a king reuévy7. Examples
you find in Homer: in regard to Bellerophon among the Lycians, Jdiad, VI [VI. 194]; in regard to
Meleager, [dzad, IX [IX. 578]; and concerning Glaucus the Lycian, Ilad, XII [XII. 313]. See the
Scholiasts on these passages.

* Without the consent of the constituent bodies of the state. An example is found in De Thou,
Book LXIII [LXIII. xx], year 1577.

Chap. VI] Secondary Acquisition of Property by Act of Man 265

XIII.—To what extent parts of the public domain can be pledged by
kings, and why

Parts of the public domain can for good and sufficient reasons
be pledged by kings possessed of absolute power, that is, by those
who have the right to levy new taxes for good and sufficient reasons.
For as the people is bound to pay taxes justly levied, so also it is
bound to redeem property pledged for good reason. Such redemp-
tion is, in fact, a kind of tax.

The public domain, moreover, is pledged to the king as a security
for the obligations due from the people; and what has been pledged
to me can be pledged in turn. However, what I have said thus far
is valid only on the condition that no law has been enacted for the
state which either has increased or diminished the power of king or

people.

XIV.—That a will is a form of alienation and formed upon the law of

nature

1. While we are treating of alienation, the fact should be
recognized that wills also are included in this class. Though in fact
a will, as other acts, can take a definite form in accordance with [17 3]
municipal law, nevertheless in its essential character it is related to
ownership, and, if we grant that, it belongs to the law of nature.
I can, in fact, alienate my property, not only absolutely but also
under conditions, and not only irrevocably but also with right of
recovery, even meanwhile retaining possession with unrestricted right
of user.

A will, however, becomes an alienation only in the event of
death. Up to that time it is recoverable, and the right of
possession and enjoyment is meanwhile retained. Plutarch rightly
observed this, for having said that the right to make wills was
granted to the citizens by Solon, he added: ‘He made every man
the master of his own property with full ownership.’ Quintilian
the father says in a declamation: ‘Even an inherited estate can
seem a burden if the possession is not absolute; and although abso-
lute power over it is entrusted to us while living, it may be taken
away at death. In accordance with this right, if Abraham had
died without children he would have left his possessions to Eliezer,
as is indicated in Genesis, xv. 2."

1 You find in Sophocles, Tvachiniae [lines 1191 ff.], the will of Heracles ; in Euripides [Alcestts,
lines 280 ff., that of Alcestis ; and in Homer, Odyssey, XVII [lines 79 ff.], a donation by Telemachus
in case of death, and this is itself a sort of will.

Dig XX.
1. 13. § 2.

Anstotle,
Pohiws,
TI. vii.

[Lafe of
Solon,
xxi= goA.]

[Declama-
tions,
ecevil |

266 On the Law of War and Peace [Book II

2. The fact that the right to make a will is not everywhere
granted to foreigners is not due to a universal principle of law but to
a special statute of a particular state; and, unless J am mistaken,
the restriction goes back to the time when foreigners were con-
sidered almost as enemies. In consequence, among the more civilized
nations, this restriction has deservedly fallen into disuse.

There are also in Homer last wishes in respect to deeds to be done, as Plutarch [On the Life and

Poeiry of Homer, I1. clxxxviu] shows from the words of Penelope and Andromache.
Other examples of ancient wills I have presented above, I. 1v [1]. 12, m the text and notes. It
appears from Deuteronomy, xxi. 16, that wills were in use among the Jews. See the Son of Strack

[= Eeclestasitcus], xxxil. 25 [xxxun. 24].

CHAPTER VII

ON DERIVATIVE ACQUISITION OF PROPERTY WHICH TAKES PLACE
IN ACCORDANCE WITH LAW; AND HEREIN,
INTESTATE SUCCESSION

I.—That certain laws of states are unjust and therefore do not transfer
ownership ; such as those which confiscate the goods of shipwrecked
persons 1n favour of the state treasury

[175] Derivative acquisition, or alienation, which takes place
in accordance with law, is based either on the law of nature or on
volitional universal law, or on a statute.

It is not our purpose to treat of the statutes of states, for that
would be an endless task, and the particular disputes arising from
wars are not decided in accordance with municipal law. However,
attention should be called to the fact that certain laws of states are
plainly unjust,1 such as those which confiscate in favour of the state
treasury the goods of shipwrecked persons. It is, in fact, pure in- Auten,
justice to take away from any one his ownership of property when fe:

. ea 2 Code, VI.
no adequate cause precedes. Euripides has well said in the Helena: is.18.
I come a shipwrecked stranger whom ’tis impious to rob.” [Line 449.]

In the words of Constantine [Antoninus], ‘What right has the code, x1.
imperial treasury in another’s disaster, that it should try to find +
profit in so grievous a condition?’ Dio of Prusa in his seventh [=p
Oration says of a shipwreck: ‘Far be it from us, O Jupiter, to 19
seek such gain from men’s misfortune!’

II.—That according to the law of nature property is justly acquired by
a man who has received another’s property to satisfy a debt ; when
this may take place

1. According to a law of nature, which has its origin in the
very character and essence of ownership, alienation takes place in
two ways, by legal compensation and by succession.

1 As formerly in England, Brittany, and Sicily. An ancient law of this sort in Greece is mentioned
by Sopater, and by Syrianus, On Hermogenes.

Christian, king of Denmark, said that he lost a hundred thousand pieces of gold a year by the
repeal of the law confiscating the goods of shipwrecked persons. Bridget, [Revelationes Brigtiiae,]
VIII. vi, mentions this evil custom, as does the Speculum Saxonicum, II. xxix, in speaking of the Danes.

See also the canon, Decretals, V. xvii. 3. Also Krantz, Vandaltca, XIII. x1; XIV.i; Kromer,
Poland, XXI.

2 Add the law, Digest, XLVII. ix. 7. Nicetas of Chonae on the reign of Andronicus [II. iii] calls
this ‘a most unreasonable custom’. See also Cassiodorus, [V. vii.

Flow did it occur to Bodin [I. x. 267] to defend such practices? However, the same writer
[III. iv. 458-59] criticized Papinian, because he preferred to die rather than to violate his conscience.

267

Sylvester,
word Del-
lum, Il,
qu 13.

[Diodorus
Siculus],
IV [Ixix].

Dig XLI.
11.53
XLVII.
Vill 2.

§ 18;

IV 11.13;
XLVIII
vu. 7 and
8.
Thomas
Aquinas,
II 11. 66,
art. 50
fart 5]

[I i. 2].
Code, X.
XXKL. 54;
Tau 12.
Doctors On
Dig IX.
11 39. § 1,
end
Bartolus,
On Re-
prisals,
qu, lix

On the Law of War and Peace [Book II

268

Alienation by legal compensation takes place when, from one
who retains my property or is in debt to me, I receive, as of equal
value,t something which is not yet mine but which ought to be given
to me in the place of a thing belonging to me or due to me, and
I am unable to obtain the thing itself. For whenever expletive
justice cannot acquire the same thing it tries to obtain something
of equal value which, morally, is considered the same. Moreover,
the transfer of ownership in this manner is proved by the result,
which is morally the best proof. In fact I shall not be able to acquire
the fulfilment of my right unless I become owner ; for possession of
the property will be fruitless if I cannot use it as I wish.

There is an ancient example of this matter in the History of
Diodorus, when Hesioneus receives the horses of Ixion in satisfaction
for the non-fulfilment of Ixion’s promises to his daughter.

2. We know that it is forbidden by the civil statutes, at any
rate, to take the law into one’s own hands, so that it is called violence
if any one recovers by force what is due to him; and in many places
the one who has done this loses his right to the debt. Further, even
if the civil law should not directly forbid such violence, the illegality
of it would nevertheless be inferred from the establishment of the
courts.

The right which I have mentioned will, therefore, be in force
when the courts cease to act, for a continuous period. How this
may take place I have explained above. When the closing of the
courts is of short duration, the seizing of property will in fact be
lawful in the circumstances that you cannot otherwise recover your
own, if perchance the debtor 1s absconding; but actual ownership
will have to wait for the decree of the judge. This usually happens
in the case of reprisals, a subject which will be treated later. How-
ever, if the right is certain, but at the same time it is morally certain
that enforcement of the right cannot be obtained from a judge, for
the reason, for instance, that proof is lacking, the truer opinion is
that in these circumstances [176] the law of the courts ceases to
apply and one has recourse to primitive right.

1 See what is said below, III. vii. 6.

Thus by the law of nature Irenaeus defends the Jews because they took property of the Egyptians
in compensation for their work. He says [Against Heretics, IV. xxx. 1]: ‘The Egyptians in fact were
indebted to the people not only for property but also for their lives.’

Tertullian, treating of the same subject in the second book Agazmst Marcion [II. xx], says: ‘The
Egyptians demand of the Jews their vessels of gold and silver. In reply the Jews put forward like
claims, alleging that [189] pay ought to be given to them for their toil in servitude.’ He shows,
further, that much less was demanded than was due.

In Diodorus Siculus, Book IV [IV. lxix], the story is told that Hesioneus received the horses of
Ixion in return for the things which Ixion had promised to his daughter but which were not furnished.
With this agrees what is said below, III. ii.

Chap. VII] Derwative Acquisition of Property 269

Ill.—How intestate succession has its origin in nature

Aside from all positive law, intestate succession, as it is called,
after ownership has been established, has its origin in natural inference
as to the wishes of the deceased.! Since the force of ownership was
such that it could be transferred to another at the will of the owner,
so also in case of retention of ownership at the time of death, as I have
said above, if any one had given no indication of his wishes, never-
theless, since it was not credible that his intention was to yield his
property after his death to the first who would take it over, the
inference is that his property is to belong to the person to whom it
is especially probable that the dead man had wished that it should
belong. Pliny the Younger says: ‘To know the wishes of the dead
takes the place of law.’ In case of doubt, moreover, it is credible
that each man wished what was most just and honourable. But
among things of this kind the first class includes what is actually due;
and the next class, that which, though not actually due, is consistent
with duty.

IV.—W hether any of the property of parents 1s due to children according
to the law of nature ; explanation, with a distinction

1. The jurists discuss the question whether parents are under
obligation to support their children. Some indeed think that it is
sufficiently in accord with natural reason that parents should support
their children, yet that there is no legal duty.

I think that we ought to distinguish accurately the meanings of
the word duty. This word sometimes is taken strictly for that
obligation which is imposed by expletive justice; and sometimes,
more freely, to indicate what cannot be neglected with honour,
although in this case honour does not have its origin in expletive
justice but in another source. We are concerned with duty in its
larger sense, except when a human law intervenes.

Consequently I accept what Valerius said: ‘ Parents by bringing
us up have imposed upon us the duty of bringing up their grand-
children.’ Plutarch in his admirable treatise On the Love of Offspring
says: ‘Children expect the inheritance as their due.’? There 1s
a saying of Aristotle: ‘ Who gives the form gives what is necessary

1 Paul says (Digest, XXIX. vii. 8. § 1): ‘Therefore bequests in trust can be given to the
successors of a person dying without a will, because the head of a family is supposed of his own accord
to leave to such succeeding heirs their lawful inheritance.’

2 Julian says in The Caesars [334]: ‘It is right that an inheritance be left to children.’ Also
the history of Job near the end [/od, xlii. 15] bears witness that according to the most ancient law
daughters were next in order after the sons as heirs of their parents.

Having in mind this principle of faimess Augustine desired that the Church should not accept
the property of those who disinherited their children. The passages are found in the De V2ta Clertcorum,

Soto, De
Lushita,
lil, art 2.
Cajetan,
[On

II 1i.,] 66.

IV. x [3];
II. xvi [2];
V vii [2].

Francis-
cus Pisci,
De Statu
Excellen-
tum Fe-
minarum,
no. 133.
Menochio,
On
Authent ,
after Code,
III. xxviii.
6, no 2096.
Tell. Fer-
nandes,
Taurinen-
ses Quae-
stones, X.
qu, iv.

[II. ix 1]
[=497B.]

[A ndro-
mache,
418 f.]

[Philo-
stratus,
Life of

A polloniws
of Tyana,
II xv
and xv ]

[Stobaeus,
Ixxxill 17
== 702 ]

Insivtutes,
I. 11. pl.
Dig Ii.
1. § 3.
Code, V.
xi. I.§ 5c,
Code, VI.
Ixi 8.

§ 4D.

[IT. 1. 7.)

[Institutes
of Ovatory,
VII. i, 46.)
[Letter to
Mith., viii]
Drgest,
XXV. iii.
5. $4,

On the Law of War and Peace [Book II

270

to the form.’ Therefore the one who brings a human being into
existence is under a duty to look out for it as much as he can, and as
much as is necessary, in those things which are essential to human
life, that is, for the natural social existence for which man was born.

2. For this reason, of course by natural instinct, the other
living creatures also provide necessary nourishment for their offspring.
On account of this fact the saying of Euripides,

To all men
Children are as life itself,

was corrected by Apollonius of Tana to read :

To all animate beings
Offspring is as life itself ;

and he adds a great number of arguments by which he proves that
this affection is inborn’; these may be seen in Philostratus, VII.
vii and viii. With this opinion that expressed by Oppian, Ox
Hunting, Book III [IIJ. 107], and On Fishing, Book I [I. 646], is
in perfect agreement. Also inthe tragedy Dictys the same Euripides
says that ‘there is this one law for all, which is common to men
both among themselves and along with other animals’.

In consequence the ancient jurists ascribe the bringing up of
children to the law of nature, that is, to that law which reason herself
enjoins upon us, while natural instinct commends it to other animals
also. As Justinian says: ‘A natural impulse, that is, affection,
impels parents to bring up their children’; and [177] in another
place he has this: ‘The father is obliged by nature herself to
support a son or a daughter.’

Diodorus Siculus states the case thus: ‘ Nature is the best
teacher of all animate beings as regards the preservation not only
of themselves but also of their offspring, to the end that as a result
of this affection for kin the stock by uninterrupted succession may
complete the circle of eternity.’ In Quintilian a son says: ‘I claim
my part by universal law.’ Sallust said that a will was impious
which disinherited a son.

Because this duty is according to nature, a mother ought to
nourish her children that were begotten indiscriminately.

3. Although it was the intent of the Roman laws that nothing
should be left to children born of an illegal union, just as also the

II [I. ini Sermones de Dtversis, ccclv. 4], and Sermones ad Fratres in Eremo, li [Sermones de Diversts,
ceclv. 5], 1f indeed this work is the work of Augustine. Gratian placed these passages in the Decretum,
II. xiii. 2 [TT. xui. 2. 8], and IT. xvii. 4. 43.

Procopius, Persian War, I [I. xi], says: ‘Laws, which for the rest among men are opposed to
one another by the greatest differences, on this one point agree as completely among barbarians as
among the Romans, that they declare the children owners of the property left. by the father.’

1 Pliny, X. xxxili [Natural History, X. xxxii. 66-67, 92], says of swallows: ‘With the greatest
fairness they feed their young in turn.’

Chap. VII] Derivative Acquisition of Property 271

law of Solon had provided that it should not be necessary to leave
anything to bastards, the canons of the Christian Church have amelio-
rated this severe restriction. They teach that that which is necessary
for support is rightly left to all children whatsoever, or rather, ought
to be left in case there is need. In this way we are to understand
the common saying, that the lawful portion cannot be taken away
by human laws, with the restriction, to be sure, that in that lawful
portion only the necessaries of life are included. For what is over
and above the necessaries of life can be taken away without trans-
eressing the law of nature.

4. Furthermore our descendants not only of the first degree,
but also of the second, ought to be provided for, if there is need,
and even beyond that. This Justinian shows when he declares that
naturally we ought to provide not only for children but also for those
who come after them; and this rule is even extended to those who
are descended from us through the female line, if they cannot other-
wise be supported.

V.—That in a succession children are preferred to the father and mother
of the deceased, and why

I. Support is due likewise to parents. This duty has been fixed
not only by laws, but also by the common proverb which bids ‘ to
cherish in return ’.* For this reason, in fact, Solon is praised, because
he branded with disgrace those who did not provide for parents.

Nevertheless this practice is not so universal as that which we
have indicated with respect to children. For when children are born
they bring nothing with them upon which to live. Another con-
sideration is that they have a longer time to live than their parents ;
consequently, just as honour and obedience are due to the parents,
not to the children, so support is due to children rather than to
parents.

With this meaning I accept the statement of Lucian, that
‘nature bids that children be loved by parents more than parents
by children.’ Similar is this of Aristotle: ‘The producing cause
feels more affection for that which is produced than that which is
produced feels for the producing cause ; for what any one has brought
into being is, as it were, his own.’

2. Hence it happens that, even without the help of municipal
law, the first right of succession to property falls to the children ;
the parents are believed to have wished to provide for them, as parts
of their own body, most abundantly, not only the necessaries of life
but also those resources which make it possible to spend life more

1 See Leo of Africa, Book TX [p. 388], concerning the vulture [ed. 1632, p. 768].
1569.27 U

(Cf. Plu-
tarch,
Solon,
xx11=
QOE ]
Decretats,
IV wii. 5.

Code, VI.
Ix, 8,

§ 4 D.
Digest,
XXV. iii.
5.§§ 1 and
5,andiu 8.

Diogenes
Laertius,
Life of
Solon

[I. ix. 55].

[Abdscat ,
£75-]

Nicoma-
chaean
Ethics,
VIII
[xiv].

Digest,
XLVITI.
EX. 7.

[Digest,
XXXVIIT
vi. 7 §1]

V. ix [2].

2 Corm-
thians,
Xl, I4.

Dig. I.

vi. 7.
Digest,
XXVIII.
1. 2. § 7.
Novels,
CXXVI. pr.
[Orat.,

V1. 41.)

272 On the Law of War and Peace [Book II

pleasantly and honourably, especially after the time when the parents
can no longer enjoy their property themselves. Paul the jurist says :
‘Natural reason, as a sort of silent law, allots to children the inheri-
tance from their parents by calling them to a succession that is, so to
speak, their due.’

Further, Papinian says:* ‘The inheritance from children is
not due to the parents in the same way that the inheritance from
parents is due to the children. Parents are admitted to the estates
of their children out of compassion, children to the property of
parents by the common will of nature and of the parents.’ That is,
the inheritance falls to children partly in consequence of an express
natural obligation and partly in accordance with a natural presump-
tion, which warrants the belief that the parents desire to provide
for their children as well as possible. [178] ‘He left it as an honour
to the ties of blood ’, says Valerius Maximus of Quintus Hortensius,
who had willed his property to a daughter of whom he did not approve.
And this is the force of that saying of the Apostle Paul: ‘ For the
children ought not to lay up for the parents, but the parents for the
children.’

VI.—The origin of vicarious succession, which is called representation,
or succession tn the place of and with the rights of another

Because it is ordinarily the case that the father and mother
provide for their children while they are alive, it is understood that
grandfathers and grandmothers are not bound to furnish support.
But when the parents, or either one of them, has died, it is fair that
the grandfather and grandmother undertake the care of the grand-
sons and granddaughters, in the place of the deceased son or daughter.
This, again, is extended in like manner to degrees of parentage farther
removed.

From such an origin comes the law that the grandson succeeds
in the place of the son,’ as Ulpian states. Says Modestinus: ‘ The
son fills the place of the dead father.’ Justinian says: ‘ He assumes
the position of the father.’ In the speech on the inheritance of
Philoctemon Isaeus calls this ‘to enter again upon’. Philo Judaeus

2 Philo, Ox the Life of Moses, III [III. xxxii], says: ‘As it is a law of nature that children inherit
the property of their parents and not the parents the property of their children, Moses covered with
a veil of silence that which was contrary to the wishes of the parents and of evil omen.’

Xenophon, Sayings of Socrates, Book II [Memorabilia, II. ii. 5], reports a saying of Socrates:
‘For the children that he expects to have a man prepares everything which he thinks will be of
advantage for their livelihood, and indeed in as great abundance as possible.’

* The Jews say: ‘The son inherits even mn the tomb’; and likewise: ‘The sons of sons are as
sons.’ Iacchiades [Joseph bar Chijah ?], On Daniel, v. 2, mentions this as a natural right.

Justinian [Insttiutes, ITI. i. 6] says: ‘It seems perfectly fair that grandsons and granddaughters
inherit in the place of their father.’ Eginhard in the life of Charlemagne [ix] refers this to loyalty to
kin. Michael Attaliates (Synopsis, xli] says that ‘descendants in each case take the place of parents’.

Chap. VII] Derwative Acquisition of Property 273

says: ‘When the parents are dead, grandchildren hold the place
of children with their grandparents.’ ‘This vicarious succession,
which takes place per stirpes,’ by modern jurists is preferably called
representation.

_ The same kind of succession was valid also among the Jews, as
is quite clearly shown by the division of the promised land among
the sons of Jacob. As the son and the daughter are each man’s
nearest relatives, so also are the children of a son or a daughter, as
Demosthenes says in his speech Against Macartatus.

VII.—On abdication and disinherttance

What we have thus far said about the presumption of intent is
valid in case there are manifest no indications to the contrary.

Among such indications the first to be mentioned is disowning,”
which was common among the Greeks, and disinheritance, to which
the Romans frequently resorted. Yet this cutting off of a child
that had not deserved death because of crimes is subject to the
condition that support be provided for him, for the reason stated
above.

VII1.— Concerning the rights of illegitimate children

1. To the rule just stated an exception must be admitted, in
case there is not satisfactory agreement as to who the father of the
child is.

It is true that absolute certainty is not to be found in an induction
from facts. But whatever is wont to happen in the sight of people
derives its own degree of certainty from evidence. And in this sense
it is said that there is certainty in regard to the mother, because both
men and women are available who were present at the birth and
witnessed the bringing up. The same degree of certainty, however,
cannot be had concerning the father, as Homer indicates by saying :

No man himself is sure from whom he is descended.

This was imitated by Menander :

No man himself knows from whom he is sprung.

Elsewhere Menander says :

The mother loves her children more than does the sire ;
The mother knows that they are hers, the father thinks they are.

1 Thus in allotting the cities among the Heraclidae Procles and Eurysthenes, since they were
descended from Aristodemus, together drew but one lot as against Temenus and Cresphontes. So
Apollodorus, Book II [Zibvary, I. viti. 4]; Pausanias, On Corimth [On Messene, IV. iii. 5]; and
Strabo, VIII [VIII. v. 4].

2 See the treatise Baba Kama, ix. 10, and later in this chapter, sect. 25.

UZ

On the
Emobas:
to Gaus

[v].

[xlui. 25]

(Odyssey,
I, 216.]

[in Eusta-
thius, On
Odyssey,

i, 221]

fin
Stobaeus,
Ixxvi. 7.]

[Frag.
T4I.]

Code, V.

XxXvul. 6.

Genesis,
Xxv. 6.

274 On the Law of War and Peace [Book II

It was necessary, therefore, to devise some method by which
it might be established with probability who the father of each child
was. That method is marriage, taken in its natural limits; that is,
the union in which the woman is placed under the guardianship of
the man. [179] But if in a given case it is established in any other
way who the father was, or if the father himself has considered it
established, then by the law of nature the child concerned will have
right of succession not less than any other child; and why not?
For even a person of admitted foreign birth,’ if accepted as an adopted
child, has right of succession from the presumption of the desire of
the adoptive parent.

2. But ulegitimate children also have a right even after the
distinction between them and the legitimate children has been
introduced by law. Euripides has said :

In nothing is the bastard less than lawful son ;
By law he is held down.

Nevertheless such children can be adopted, unless the law prevents.
Formerly a Roman law of Anastasius permitted such adoption.
Afterwards, in order to favour lawful marriage, a rather more difficult
system of putting illegitimate on a par with legitimate children was
devised, through nomination of the son to the municipal senate, or
by subsequent marriage.

An example of an ancient adoption of illegitimate children is
found among the sons of Jacob, who were placed on an equality
with the sons of free mothers and shared the inheritance equally.

3. On the other hand it can happen, not only in accordance
with law but also by agreement, that such children, just as may be
the case with those born in wedlock,® shall have support only, or
shall be excluded, at any rate, from the principal share of the inheri-
tance. The Jews give the name of concubinage to a marriage based
on such an agreement, even if it be with a free woman. Such was
the marriage of Abraham with Keturah, whose children, therefore,
just as Ishmael, son of the handmaid Hagar, received gifts, that is,
certain legacies, but did not share the inheritance. Such marriages
now are called morganatic.

Not far different, in effect, are second marriages among the
people of Brabant.* For the real estate, which was held when the
end of the first marriage came, passes to the first wife’s children.

1 [190] Ora grandson adopted as a son, as in the case of the grandsons Ephraim and Manasseh,
adopted by Jacob [Genests, xlviil. 5].

2 As formerly all the sons except the eldest, in the country of Mexico [Lépez de Gomara, Hzstorza
Generalss Indiae Occidenialis, II. lxxvi].

® See a similar law of the ancient Burgundians [Lex Romana], I. i. 2.

Chap. VII] Derivative Acquisition of Property 275

IX.—When there is neither a will nor a precise law covering the matter,
uf there are no children the ancestral property should be returned
to those from whom it came, or to their children

I. When there are no children to whom the succession would
naturally come, the case is less clear, and in no other matter is there
greater divergence among the laws. Nevertheless the entire range
of variation can be traced to two sources. In the one case regard is
had to nearness of relationship; in the other, the aim is to return
the property to those from whom it came, according to the regular
formula: ‘ ‘The father’s property to the relatives of the father, the
mother’s property to the relatives of the mother.’

It is clear that we ought to distinguish accurately between
paternal or ancestral property,’ such as is ordinarily expressed in the
formula which cuts a spendthrift off from property, and recent
acquisitions.” In the case of the former this statement of Plato
should be binding: ‘ As lawgiver I decree that you are not your own
masters, and that your patrimonies are not yours, but that all belongs
to your family, not only that which was, but also that which is to
come.’ Qn this ground Plato proposes that the ‘ paternal estate’ be
preserved for the family from which it came.

I should not wish to have this principle accepted with the
implication that by the law of nature it would not be permissible to
dispose of paternal and ancestral estates by will (often, in fact, the
poverty of a friend makes such a device not only praiseworthy but
even necessary *); but rather as making clear, in case of doubt, the
presumption of the desire of one who died intestate.

We grant, in fact, that full ownership belongs to him with
whose wishes we are concerned.

2. But since he cannot retain his ownership after death, and it
ought to be considered altogether certain that he would not be
willing to lose an opportunity of conferring a favour, we should
ascertain what above all is the natural order in the conferring of
favours. Aristotle well says: ‘It is better to make return to one
who has done a kindness to us than [180] to confer a favour on
a friend.’ Also Cicero says: ‘ No duty is more necessary than the

1 In Hebrew, moraschah, ‘ estate’.

2 In Hebrew, nahalah, ‘property’. See this distinction in the Burgundian Law, I. i. 1.

3 Seneca, On Benefits, Book IV. 1i [IV. xi. 4]: ‘ What, then, when we have reached the end of life
and are makmg our wills? Do we not distribute favours which will be of no advantage to us? How
much time do we spend, how long do we ponder in secret as to how much and to whom we shall
give ? What difference, in fact, does it make to whom we give, since we shall receive return from no
one? And yet, never do we give with greater pains, never do we more carefully exercise our judgement
than when, having laid aside all thought of advantage, we fix our gaze only on that which is

honourable.’

[Laws,
XI.vi =
Pp. 923 A]

[N2c.
Ethics,
IX. ii.]
[On
Duties,

I. xv. 47.]

[On
Duives,
I xv. 48.]

On Dutes,
I xxx,

[XX ]

Code, VI.
Ix1 3;
VI lviii.
13 §2;
VI. lix.
II ;
Noveis,
1xxxiv
[Nicom,
Ethies,
VIII xiv]
Vv

+ [Curtius,
X. VU 2]

[Nicom.,
thts,
VIII. xiv.]

On the Law of War and Peace [Book II

270

return of favours’; in another passage: ‘ Inasmuch as there are two
kinds of generosity, one of conferring favours, the other of requiting
them, it lies within our power whether we shall confer favours or
not; but for a good man it is not permissible not to return favours,
provided only he can do this without injustice.’ Ambrose declares :
‘It is noble to have a more kindly consideration of him who has
conferred some favour upon you or has done you a service’; later
he adds: ‘ For what is so contrary to duty as not to make a return
for what you have received ?’

Now a favour is returned either to the living or the dead.* As
Lysias has shown in his Funeral Oration, ‘A favour is returned to
the dead in the persons of their children, who are by nature a part
of their parents, and upon whom the parents, if living, would especially
wish favours conferred.’

3. The framers of the body of civil law, compiled under Jus-
tinian, being most zealous for absolute fairness, have followed this
principle of natural equity in deciding between full brothers, brothers
on the father’s side, brothers on the mother’s side, and in the cases
of certain other relatives. Aristotle says: ‘ Brothers mutually love
each other, because they are born from the same parents. For
common origin makes them as it were the same.’ Valerius Maximus
says: ‘As the receiving of very many and very great favours is con-
sidered the first bond of affection, so the receiving of favours at the
same time ought to be considered the second bond.’ In Justin it is
said to be a principle of universal law that brother should succeed to
brother.

4. Now if the one from whom the property has directly come
is not to be found, nor his children, then it remains to return the
property to those to whom it is due less directly, but nevertheless in
the next degree after the first recipient; that is, to the parent of
the degree above, and to his children, especially since in that way
it remains among the nearest relatives, both of him whose inheri-
tance is under consideration, and of him from whom the property
directly came. Aristotle says the same: ‘ First cousins on the
father’s side and other cognates are united through their parents in
so far as they have their origin from the same persons; and in such
a way that some are more closely, others less closely united in respect
to origin.’

1 Thus in Procopius, Persian War, I [I. iv. 4],a man who is about to diesays: ‘On me you will
confer the favours which you will bestow on my children.’ See an example in the act of Theodosius,
who bestowed favours on Valentinian the Younger, n return for obligations due to the father of Valen-
tinian ; Zosimus, Book IV [IV. xlvii].

By the law of Moses, Numbers, xxvii. 11 [xxvii. ro], the uncle on the father’s side stood next in
the succession after the brothers, as being nearer to the first possessor than the brother’s sons.

Chap. VIT] Derwative Acquisition of Property 277

X.—Possessions recently acquired go to the nearest relatives

it In the case of newly acquired possessions, which Plato called

that over and above the inheritance’, the duty of requiting favours
ceases ; 1t remains, then, that succession should be conferred on the
person who 1s believed to have been most dear to the deceased. That
person, moreover, is the one who is most nearly related to the deceased.
This Isaeus says was the rule among the Greeks: ‘ The property of
the deceased falls to the most nearly related member of the family’ ;
and he adds, ‘ What is more just than that the property of a relative
should pass to relatives?’ ‘The same opinion is found in Aristotle,
in the Rhetoric to Alexander, chapter ii.

Cicero says: ‘ The social relationship and union of men will be
best preserved if each shall bestow the largest measure of kindness on
those who shall be most closely related to him.’ Elsewhere likewise
he places especially intimate relatives next after the children.? So
also does Tacitus: ‘ Nature has willed that each man’s children and
kin should be most dear to him.’ In still another passage Cicero,
speaking of relatives, says: ‘To these especially the necessary support
of life is due.’

This duty to relatives, however, does not have its origin in
expletive justice, but in ‘ natural fitness’. Cicero, again, after treating
the affection for relatives, adds: ‘ From these feelings of affection
arise wills as well as remembrances on the part of the dying.’ The
same author declares that it is more just that our property be given
and bequeathed to relatives than to strangers. Ambrose says: ‘ This
also is generosity worthy of approval, that you do not neglect your
next of kin.’ ®

2. Further, the intestate succession with which we are dealing
is nothing else than a tacit will [181] derived from inference as
to wishes. Quintilian the father says in a declamation:

The relatives hold the next place after the legatees of the will; and the case is
similar if a person has died intestate and without children. This principle holds not because

1 See Deuteronomy, xv. 11; xxii. 7; Proverbs, xi. 17. This point Servius treats, On the Aenetd,
VI [VI. 612], on the words

And to their own a part they did not give.

Hierocles [On the Golden Verses of Pythagoras, line 4] says: ‘ Affection for relatives will receive its
due measure from natural relationship, so that after the parents as much will be conferred upon each of
the relatives as his nearness of relationship to the parents demands.’

Possidius says of Augustine [chap. xxiv]: ‘ He saw that it was just and fair that either the children,
or parents, or relatives of the dead preferably should possess them,’ that is, the inheritances of which
he was treating. '

2 These two passages of Cicero, cited later, are from the same first book On Duties [I. xvi: 50;
xvii. 58].

2B cen from Isaiah, lviii. 7. You find similar statements in Chrysostom, On First Corinthians,
iv. 7 [On First Timothy, v. 8=Homily XIV, i], and in Augustine, On Christian Docirine, Il. xil.

(Laws,
XI. vi =

Pp. 923D ]

[IV. xv;
IV xxii ]

On Duties,
I [xvi. 50].

[Agricola,
XXXL. I.]
[On Duttes,
I.xvi1. 58.]

[On Ends,
III xx.
65.]

[On
Duties,

I. X1v. 44.]
On Duties,
J, xxx
[r50].

[ecevili.1.]

278 On the Law of War and Peace [Book II

it is assuredly just that the property of the deceased should fall to these, but because
property abandoned and, as it were, left out of ownership, seems to fall to no one else
by preference.

What we have said of property recently acquired, that it is
naturally bestowed on the nearest relatives, will also take place in
the case of paternal and ancestral estates if neither the persons
from whom they have come, nor their children, are alive. Under
such circumstances requital of gratitude finds no opportunity for
expression.

XI.— Diversity of laws about succession

1. Although what I have said is particularly in accord with
natural presumption, nevertheless according to the law of nature it
is not of the things established by necessity. Hence in consequence
of the diversity of causes influencing human choice there arises
a great variation in pacts, laws, and customs. ‘Those who admit
succession through the right of another within certain degrees of
relationship do not admit it in other degrees.’ Some consider the
origin of the possessions, others do not take this into consideration.
There are countries where the first-born receive more than the younger
children, as is the case among the Jews; there are others where the
children are placed on an equality.

In some countries, again, account is taken only of relatives on
the father’s side, in others all blood relatives receive the same as the
relatives on the father’s side. Also in some places sex has influence,
in others not ; and in some places consideration of blood relationship
is confined to the nearer degrees, elsewhere it has a wider range.
To enumerate these diversities would be tedious, and this is not
a part of my plan.

2. Nevertheless this principle should be kept in mind, that
whenever there are no quite definite indications of intent it is to
be believed that each person in regard to his succession had in mind
that which the law or custom of his people approves. Such belief is
based not only on the power of government, but also on presumption
regarding the wishes of the deceased, which has weight even with
those who possess sovereign power. For also those who possess
sovereign power are believed to have rendered a perfectly fair judge-

1 The ancient customs of the Germans did not recognize such substitution or representation even
among children. Childebert first introduced this law into France by an edict. It was introduced into
the regions across the Rhine by Otho, son of Henry, as Wittekind testifies in Book IT. See the Law of
the Lombards, II. xiv. 18,

Likewise the ancient Scottish law regarded only the neamess of the degree of relationship. See
Pontanus, Danish History, VII [year 1291], where he relates that such relationship was decreed by
the king of England, who had been appointed umpire.

Chap. VIT] Derwative Acquisition of Property 279

ment in matters affecting themselves, which they have either them-
selves sanctioned by laws, or approved in custom; I mean in those
matters where there is no question of any loss to themselves.

XIT.—W hat is the manner of succession in hereditary kingdoms

In the matter of succession to kingdoms we ought to distinguish
those kingdoms which are held with unrestricted right of possession,
and are patrimonial, from those which derive the form of possession
from the consent of the people. This is a distinction we have treated
above.

Kingdoms of the first class can be divided between male* and
female offspring,” as we see was formerly done in Egypt and Britain.
Lucan says :

Not hindered by her sex
A queen can rule o’er Pharos.

Of the Britons Tacitus writes: ‘In fact they make no distinction
of sex in governing.’

Further, because of assumed intent in the matter of succession,
adopted children are not at a disadvantage in comparison with true
children. Thus Hyllus, son of Hercules, succeeded by adoption to
the kingdom of Aepalius, king of the Locrians. Molossus, a bastard,°
by the will of his father Pyrrhus, who had no legitimate children,
succeeded to the throne of Epirus. King Atheas considered adopting

1 In Asia brothers ruled at the same time, but in such a way that the right to the crown was the
special privilege of one ; Polybius, Selections on Embasstes, xciti [= XXX. ii].

[Er9z] You will find in Livy [XLIV. xix ; XLV. xi] and in the same Polybius [lxxxix =X XIX.
xxi, 3] that Egypt was divided between the Ptolemies, who were brothers. The sons of Attila
demanded that the different peoples be divided between them in equal shares; Jordanes, History
of the Goths [I].

Gregoras m Book VII [VII. v] says of Irene, wife of Andronicus Paleologus: ‘ What was especially
astonishmg, instead of one being made Emperor according to the ancient custom of the Empire of
Constantinople, she desired that after the fashion of the rulers of the West the cities and countries should
be divided among the individual sons, in order that the kingdoms, as each one’s inheritance, might
pass from father to son, just as ordinarily happens in the inheritances of common men ; and that they
should continue thus to descend to each one’s children and heirs. She was, in fact, planning to introduce
there without precedent a custom which had originated in the Western Empire and which she had
borrowed from that source.’

2 Conceming Alexander and Laodice see Polybius, Selections on Embassies, exl [ = XXXII. xvii] ;
concerning the daughter of Auletas, see Strabo, XVII [XVII. i. 11].

Arrian in his Anabasis [I. xxiti. 7] relates that in Asia after Semiramis many women ruled. Such
are Nitocris at Babylon, Artemisia at Halicarnassus, and Tomyris in Scythia. Servius, On the Aeneid,
I [I. 654], says: ‘Because formerly women also ruled’. The same commentator, On the Aeneid, IX
[IX. 596], shows that this custom prevailed among the Rutulians.

3 ‘Among the Tartars illegitimate and legitimate sons were on equal footing ; but of the Persians
Herodotus (IU. ii] says: ‘It is not their custom that an illegitimate son shall rule if a legitimate son
is available.’

In Spain two Vandals ruled, Gontharis, the legitimate son, and Genseric, the illegitimate son, of
Godigisclus, as Procopius [Vandalic War, I. iii] reports. Adam of Bremen, Historia Ecclesiasitca, cvi, and
Helmold, Slavica, Book I, li and hi, are witnesses to a similar ancient custom of the northern nations.

Michael, ruler of Thessaly, was succeeded by Michael, his illegitimate son, since legitimate heirs
were lackmg ; Gregoras, Book II [II. vin]. To the second Michael in hke manner an illegitimate son
succeeded ; the same Gregoras, Book IV [IV. ix].

On Molossus, natural son of Pyrrhus, see Servius, On the Aeneid, III [III. 297].

[T.1ii, rxr,]

[X. 9r-2.]

[A gricola,
XV1, I.]

Strabo,
IX [iv.ro].
Pausanias,
I [xi].
Justin,

IX [i].

Sallust,
Jugurtha
[x]
Cassiodo-
rus, Paulus
Diaconus,
History of
the Lom-
bards,

VI.

XXXVIII
[Vv 4]

VII [11].

XXXI
[XXI,
XXX1. 6].
Justin,
II [x. 2].

[XA XIV.
ll. 7.]

XL [zi. 7].

XVI fi. 7]
and
XXXIV

(i. 7].

On the Law of War and Peace [Book II

280

Philip to succeed him in Scythia. Jugurtha, a bastard, but adopted,
succeeded to the throne in Numidia; just as also in the kingdoms
which the Goths and Lombards gained by force of arms we read
that adoption gave a similar right.

Furthermore, the throne will pass to those relatives of the last
king who are not connected by blood with the first king, if such
a method of succession has been adopted in those places. So in
Justin Mithridates says that ‘ Paphlagonia had come by inheritance
to his father on the extinction of the line of native kings’.

XIVI.—That if hereditary kingdoms are indivisible the eldest child is
given preference

If it is expressly stated that the kingdom shall not be divided,
but no direction has been given as to the person to whom it ought
to go, the child that is the oldest,* whether male or female, [182]
will have the kingdom. In the chapter of the Talmud on kings we
read: ‘ ‘The one who has the principal right to the inheritance has
it to the possession of the kingdom.’ Thus an older son is preferred
to a younger. ‘It is the custom among all peoples that the eldest
should receive the throne,’ says Herodotus. Elsewhere the same
author often calls this the ‘law’ or custom of kingdoms. Speaking of
two brothers who were striving for the kingship of the Allobroges,
Livy says that the younger was inferior in right but superior in force.
In Pompeius Trogus is the statement: ‘Artabazanes the eldest
claimed the kingdom by privilege of age; a right which order of
birth and nature itself have granted among nations.’ Elsewhere the
same author calls this a universal principle of law; and so likewise
Livy, who calls it succession according to age and nature.

This principle of succession is to be understood as applicable
unless the father has otherwise ordered, as Ptolemy did, according to
the same Trogus. But the one who has succeeded to a kingdom
under such conditions will be bound to pay to the coheirs according
to the valuation of their shares, if that is within the bounds of
possibility.

+ Concerning the Swedes see Bridget, IV. ini; concerning the Danes see Saxo, XII and XIII.
Appian in Ins Mzihridatie Wars [n. 13] says: ‘ He judged it nght that the kingdom should belong to
the eldest.’

Nicetas of Chonae in Joannes Comnenus [xii] says: ‘ Nature, following her own order, honours the
first-born. But m conferring the greatest privileges God does not always imsist on that order.’ The
same author in Manuel [1. i.], speaking of Isaac, says: ‘ He was called to the succession to the throne
on account of order of birth.’

In Josephus [Jewish War, I. vi. 2] Antipater said: ‘The kingdom belonged to Hyrcanus by
order of birth.’

See also Leunclavius, Turkish History, XVI.

Chap VIT] Derivative Acquisition of Property 281

XIV.—That in case of doubt a kingdom which is hereditary only with
the consent of the people is indivisible

But those kingdoms which have been made hereditary by the
voluntary consent of the people are handed down in succession
according to the presumed will of the people. But it is presumed
that the people desired what is most to its advantage. From this is
derived the first principle, that the kingdom is indivisible; for that
1s of the utmost importance for protecting the kingdom and main-
taining the harmony of the people.

An exception is made, however, if there is law or custom to the
contrary." ‘Thus it is apparent from the story of Zethus and Amphion,?
and from that about the sons of Oedipus, that the royal power of
Thebes in Boeotia was divisible between the sons. Similarly, ancient
Attica was divided among the sons of Pandion ; the district of Rhodes,
among the brothers Camirus, lalysus, and Lindus; and the Argive
kingdom among the four sons of Perseus.

Justin in Book XXI says: ‘ They thought that the kingdom
would be stronger if it should remain under the power of one, than
if it should be divided into parts among the sons.’

XV.—That the right to such kingdoms does not continue beyond the last
descendants of the first king

A second principle is that the succession is limited to those who
are descended from the first king. That family, in fact, seems to
have been chosen on account of its nobility; and so, when it has
become extinct, the royal power reverts to the people. Curtius in
Book X said that ‘ the strength of sovereign power would remain in
the same house and family; that the royal line would defend its
hereditary sovereign authority ; and that the subjects were accus-

1 Dardanus and Lasius ruled together in Troy, as Servius says, On the Aenezd, II [III, line 15],
in explanation of ‘allied households’. In Crete, Minos and Rhadamanthus ruled together; Julian,
Against the Christians [Orations, IT. lxxxii= 190 DJ.

At Alba, Numitor [192] and Amulhus were joint rulers, as says the author, On Famous
Men [Aurelius Victor, 1]. Others say that the money fell to Numitor, the kingship to Amulus, as
Plutarch declares [Romulus, ui =19 A]. So also some have related that the Theban kingdom fell to
Eteocles and the necklace of Hermione to Polynices in lieu thereof [Schohast on Euripides, Phoenzcian
Mandens, line 71].

In hke manner in Norway one son had the crown and the other the ships and the profit from
expeditions at sea.

2 Euripides in the Mad Hercules [lines 29, 30] says :

Before the kingdom came to the two sons of Zeus,
To Zethus and Amphion, for white horses famed.

[XXI 1.2.]

[X vl.15.]

Livy,
XXXIX
{lui. 3].

[Herordes,
iv. 121-2.]

(Horace,
Odes, IV
lv. 30 |

282 On the Law of War and Peace [Book II

et

tomed to respect and honour the very name of Philip; and no one
else assumed that name, unless born to rule.’

XVI.—That in such kingdoms illegitimate children have no right of
SUCCESSION

The third principle is that only children who are legitimate
according to the laws of the country shall be entitled to the succes-
sion. Not only are illegitimate children excluded because they are
subject to scorn, since their father did not deem the mother worthy
of a true marriage, and moreover because their paternity is considered
less certain, whereas in kingdoms it is to the advantage of the people
to have the greatest certainty possible, in order to avoid contests.
And this is the reason why the Macedonians thought that the king-
dom belonged to Demetrius, the younger son, rather than to Perseus,
the older; for Demetrius was born in lawful wedlock. In Ovid we
read :

But she was neither bride nor with the marriage torches wed ;
And why, except that you, a bastard, should not have your father’s realms?

But adopted children also are excluded from succession, because the
nobility of a truly royal family causes the kings to be more reverenced
and greater expectations to be entertained concerning them.

There is in cattle, and in horses too,
The merit of their sires.

XVII.—That in such a kingdom male descendants are preferred to
female descendants of the same degree of relationship

The fourth principle is that among those who are admitted
equally to the succession, either because they are of the same degree
of relationship, or because [183] they succeed to the degree of
their parents, males are given preference over females.1 The reason
is that males are thought to be better suited than females, not only
for war, but also for the other functions of government.

XVIII.—That among the male descendants the eldest 1s given preference

1. The fifth principle is that of the male descendants the eldest
is given preference,” or of the female descendants in case male descen-
dants are lacking. It is, in fact, believed that the oldest is already,

1 See Nicetas of Chonae, Manuel, IV [IV. iv].
2 Homer, Iliad, XIII [lines 354-55], speaking of the throne of Crete, says:

We both are of one family and of one native land,
But Jupiter the elder and more skilful 1s.

Chap. VII] Derwative Acquisition of Property 283

or sooner will be, of more mature judgement. In Xenophon Cyrus
says: °I leave my kingdom to the older son as naturally having had
the larger experience.’

_ Further, because this preference of age is purely temporary,
while that of sex is permanent, the prerogative of sex takes pre-
cedence over that of age. So when Herodotus had said that Perses,
son of Andromeda, succeeded to the kingdom of Cepheus, he adds
the reason: ‘ For Cepheus had no male children.’ According to the
version of Diodorus, Teuthras left the kingdom of Mysia to his
daughter Argiope, ‘for the reason that he had no male children’.
‘T'rogus said that the empire of the Medes belonged to the daughter,
because Astyages had no male descendant. Similarly in Xenophon
Cyaxares declared that Media belonged to his daughter, adding,
‘ For I have no legitimate son.’ Of King Latinus Virgil says :

By the gods’ destiny no son nor offspring male

Had he; a son was born, but died in early youth.
The line and so great power an only daughter kept.

In like manner before the rule of the descendants of Hercules
over the Spartans, Eurotas was succeeded by Sparte, his daughter, or
by her children, as the children of Helen also succeeded Tyndarus,
because there were no male descendants living. Eurystheus, again,
was succeeded in the rule of Mycenae by his uncle Atreus, as
Thucydides states. In accordance with the same law it is noted
that the royal power of Athens fell to Creusa,t and of Thebes to
Antigone, because there were no sons. Also the Argive kingdom
came to Argus, the son of Phoroneus’s daughter.’

2. From this it is to be understood that, although children in
some degree take the place of the parents who die before them, yet
it is to be understood also that they are capable of succession only
along with the others; and that among those who are capable of
succession the prerogative first of sex, and then of age, is maintained.
For the quality of sex, and that of age, in so far as they are con-
sidered in this matter by the people, are so united with the person
that no separation is possible.

Here Homer, as he usually does, has wisely given the reason why the older sons have received the
preference in the succession to royal power. For the most part this reason holds good, and that is all
that is necessary in such matters. Zosimus in his second book [II. xxvii] says of the Persian law:
‘Smce the law gave the supreme power to the eldest of the king’s sons.’

Periander succeeded his father on the throne of Corinth, ‘ because he was the eldest child’, as
Nicholas of Damascus says in the Excerpia [= frag. 57, p- 44, edit. Dindorf], which we owe to the
kindness of that excellent scholar, Nicholas Peiresc.

1 See Euripides, Jon [72, 73, 578].

2 And if Orestes had died without offspring, Electra would have succeeded him in the same kingdom
of Argos, as we learn from the Iphigenia among the Taurians of Euripides [lines 681 f., 695 f.].

Thus the kingdom of Calydon came to Andraemon, son-in-law of Oeneus [Apollodorus, Lzbrary, I.
viii. 6], and the kingdom of Asterius to his son-in-law Minos [Z1brary, III. i. 3], as Apollodorus in both
cases notes ; and he assigns as the reason the fact that there were no male children.

[Traming
of Cyrus.
VIII vi.
9.]

VII (lxi]

IV [xxxui.
12].

[Justin, I.
lv. 7]
[Traming
of Cyrus,
VIII. v.
19 |

[A eneid,
VII. 50—-2.]

Pausanias,
III fh 3].

IT [T. 1x].

284 On the Law of War and Peace [Book Il

XIX .—W hether such a kingdom 1s a part of an inherttance

The question is raised whether a kingdom subject to such rules
of succession is a part of an inheritance.

It is nearer the truth to say that it is a kind of inheritance,’ but
separated from the inheritance to the other possessions in the same
manner as the special form of inheritance seen in certain fiefs, in
subinfeudations, in rights of patronage, and in rights of special
legacies requiring predelivery before the general distribution of the
estate. In consequence the kingdom may belong to the person who
can be also an heir to property, if he wishes, but in such a way that
the kingdom can be inherited without the estates and their burden.

The reason is that the people is believed to have wished the
succession to the kingdom to take place on the best terms possible.
In fact it makes no difference to the people whether estates are
inherited by the king or not, since it did not choose the order of
hereditary succession with that in view; the desire of the people
was that there might be something certain about the succession,
that respect might be gained by prestige of family, that at the same
time there might be expectation of noble qualities from birth and
nurture, and that the possessor of the kingdom might care for it
more deeply, and defend it more bravely, if he should expect to
leave it to those whom he held in the highest regard, either on account
of favours received or from affection.

XX.—T hat the presumption is that such a form of succession was estab-
lished in the kingship as was customary in other things at the time
of the founding of the kingdom. First, tf the royal power ts free
from rights of tenure
When, however, the custom of succession was different in fiefs

and in land held allodially, if [184] the kingdom is not a fief,
or certainly was not originally a fief, even if afterward homage was
done on behalf of it, then the succession takes place according to
the law which was applicable in allodial estates at the time of its
foundation.

XXI.—Secondly, tf the royal power ts held as a fief

In the case of those kingdoms which were originally given as
fiefs by one who had absolute authority, the feudal law of succession
will need to be followed. This will not always be the Lombard
law, which we have in the form of a code, but the law which was
received by each people at the time of the first investiture. For the

1 Innocent IIT thought that the succession to such a kingdom was forfeited by an heir who should
not have carried out the last instructions of the deceased; Decretals, III. xxxiv. 6.

Chap. VII] Derivative Acquisition of Property 285

Goths, Vandals, Alemans, Franks, Burgundians, Angles, and Saxons,
all the Germanic tribes which by right of war seized upon the best
parts of the Roman Empire, had their particular laws and customs
in regard to fiefs no less than the Lombards.

XXII.—What cognate lineal succession is; and of what character the
transmission of right in it 1s

I. Again, frequently in kingdoms there is a different kind of
succession, which is not hereditary but is called lineal.t In this kind
it is not the custom to observe the right of substitution in the place
of another which is called representation, but, instead, to hold the
right of transmitting the future succession as if already conferred,
since the law founds a sort of true right upon the expectation, which,
of course, of itself produces nothing. Of such a kind, in fact, is the
right to property which is due under a conditional agreement.?

ow this succession is of such a sort that the unimpaired right
necessarily passes to the descendants of the first king and in a fixed
order, so that the last possessor’s descendants of the first degree are
first called, both those living and those dead; and the distinction
first of sex, and then of age, is made in the case of both the living and
the dead. If the right of those who are dead proves to be the stronger,
it passes to their descendants, again with like preference in respect
to sex and age among those of equal degree; and the right of the
dead is always transmitted unimpaired to the living, and that of the
living to the dead. If the last possessor has no children, the succes-
sion passes to the others who are most nearly related, or would be
if they were alive, while the same rule of transmission, and distinc-
tion of sex and age among equals of the same line, is preserved, so
that they never pass from one line to another on account of sex
or age.

1 See Cardinal Toschi, Pracitcae Conclusiones, 88, words regnit successto ; William of Montferrat,
De Successtonibus Regum, in the work Oceanus Juris [vol. xvI]; Peregrinus, De Jure Ftscz, I. ii. 44
and V.i. 109.

See examples of such succession to the throne of Norway in the Danish History of that very learned
and industrious scholar, John Pontanus, Book IX [year 1388]; for the customs of Normandy regarding
the nearer relationship of heirs, see John de Serres in the Lzfe of Louss the Fai, concerning the Bolognese
[Bourbon] dispute [1627 ed., p. 107].

D’Argentré, Histoire de Bretagne, VI. iv, says: ‘In successions the children of the first-bom,
whether male or female, and similarly the children of the second-bom, if the first-born have died without
offspring, by right of primogeniture, represent the persons of their fathers m the succession to fiefs,
and exercise such rights of successions and of primogeniture just as if their fathers were living, to the
exclusion of uncles on both father’s and mother’s sides ; this is in accordance with a general and well-
known custom in successions both in [193] the direct line and in the collateral limes. In accordance
with the above-mentioned usage and custom the daughter succeeds in fiefs, whether they are duchies,
earldoms, peerages, or baronies, no matter how great and noble ; and such was the practice in Artois,
Champagne, Toulouse, and Brittany.’

Such an order of succession was prescribed for the Marquisate of Mantua by the Emperor Sigismund
in the year 1432; and by the Emperor Charles V and Philip II, king of Spain, in their kingdoms and
principalities. in the years 1554 and 1594.

a Likewise in the case of legacies, of which the ownership has passed to the heir, but the time of
payment has not arnved [Digest, XXXVI. i. 5].

Institutes,
III. xv. 4

Covar-
ruvias,
Practicae
Quaes-
t10nes,

II. xxxviti.

no 5
Molina,
De His-
panorum
Primo-
genitorum
Origine et
Natura,
Vill.

286 On the Law of War and Peace [Book II

The consequence of this is that a son’s daughter is preferred to
a daughter’s son, and a brother’s daughter to a sister’s son, and in
like manner the son of an older brother to the son of a younger
brother, and so on among the rest. This is the order of succession
in the kingdom of Castile, and in that kingdom the same rule holds
in regard to the rights of primogeniture.

2. Jf law and precedents are lacking, an evidence of lineal
succession can be drawn from the order which is observed in public
assemblies. For if in that case consideration is had of lineal descent
it will be a sign that expectation has by law been strengthened into
a right, so that it can pass from the dead to the living. This, more-
over, is cognate succession, in which females and their children are
not excluded, but receive a secondary place in the same line, so that
the succession returns to them if males have been lacking, or descen-
dants of males of a nearer or equal degree.

The foundation of this type of succession, in so far as it differs
from hereditary succession, is the hope, on the part of peoples, that
the best training will be had by those who have the best-founded
expectation of possessing royal power. Such are those whose parents
would have had succession if they had lived.

XXITI.—W hat agnate lineal succession 1s

There is also another kind of lineal succession called agnate,
which passes from male to male; this is commonly called the succes-
sion according to Frankish law,’ from the example of a very famous
kingdom. In so far as agnate differs from cognate succession, it was
introduced especially with the aim in view that sovereignty might
not pass to foreign blood through the marriages of daughters.

In both kinds of lineal succession, however, those who are related
[185] in even the most remote degree to the last possessor are
admitted, provided that they are descended from the first king.
There are also cases where the cognate succession is substituted in
case the agnate succession fails.”

XXIV.—The succession 1n which nearness of relationship to the first
king 1s always considered

Other types of succession also can be introduced, either by the
will of the people or by that of a ruler who holds his kingdom as

1 Ancient testimony to this French custom is found in Agathias, Book II [II. xiv, end].

There was the same order of succession in the line of David after Solomon; see 2 Chronteles,
xx. 3 [xxu. 3].

* As in the province of Narbonne; see De Serres on Charles VIII [History of France, p. 322,
Paris ed., 1627]. In accordance with such a law, I suppose, Theodoric, dying without issue, was suc-
ceeded by his sister’s son, Athalaric [Procopius, Gothic War, I. ii]. The custom seems formerly to have
prevailed in Aragon also.

Chap. VII] Derivative Acquisition of Property 287

a patrimonial estate, in such a way that he can alienate it He may,
for example, determine that in every case those who shall be in the
nearest degree related to himself shall succeed to the throne; ? just
as formerly among the Numidians, from some such cause, I suppose,
the brothers of the last possessor were given precedence over the
children. The same custom was formerly in vogue in Arabia Felix,
as I infer from Strabo. Modern writers have reported a similar
arrangement in the Crimea. It is not so long a time since in Africa ®
the kings of Morocco and Fez followed the same practice.

The truer opinion is that in case of doubt this rule is to be
followed also in the disposition of a property left to a family in trust.
The rule is in fact in agreement with the Roman law, though some
scholars have a different interpretation.

If the systems discussed are thoroughly understood, it will be
easy to settle disputes concerning the right to kingdoms which, on

account of the conflicting opinions of jurists, are considered most
difficult.

* Among the Ethiopians formerly kings were succeeded by their sisters’ sons, as Nicholas of
Damascus testifies [frag. 22, p. 148, edit. Dindorf]. The same custom was in vogue among the Picts,
and the relatives from female lines always had the succession, as Bede notes [Heclestastical History, I. 1}.

Tacitus [On the Customs of the Germans, xx] says of the Germans: ‘ The sons of sisters, who stand
in honour with the father. Some think that this bond of relationship is closer and more sacred.’ Osorius
and others form us that the same custom was in vogue among some of the Hindoos.

* This custom prevailed in Africa, according to Genseric’s will. Procopius in the first book of the
Vandalte War [I. vu] says: ‘ After some time Genseric died. He was advanced in years, and had made
a will in which he not only had given many other instructions to the Vandals, but also had directed
that the Vandalic throne should always pass to that descendant who should be most nearly related to
Genseric himself through the male line; and among these, the one who should be oldest.’

Jordanes (chap. xxxtii] says: ‘ After reigning a long time, Genseric before his death summoned
all his descendants and ordered that there should be no strife among them out of rivalry for the throne,
but that each should succeed the others in his turn and degree, that is, that his eldest son should be
succeeded by the second, and he in tum by the one next younger.’

Victor of Utica [Vitensis] in his second book [II. v] says: ‘To whom among the grandsons, because
he was the eldest, the kingdom belonged above all others by the constitution of King Genseric.’

Here not the last possessor but the founder of the kingdom is always considered. Whether Genseric
took this form of succession from Africa, where we have shown in the text that it prevailed, or, in
fact, from some of our northern peoples, remains a matter of doubt. For also among the Lombards,
though King Vaces left sons, no one of these was entitled to succeed him, but Risiulfus of the same
family, as Procopius bears witness in the third book of his Gothic War [III. xxxv].

Also Nicetas of Chonae, on the reign of Manuel, Book IV [IV.1], relates that when Latra had died
not his children but his brother had the right to the crown of Hungary. Probably in the same class
should be placed the kind of succession in vogue among the Patzmacitae and rather indefinitely referred
to by Constantine Porphyrogenitus in his De Administrando Imperto, xxxvil.

The same type of succession was in vogue in Denmark, [194] as Krantz in his Danish Htstory,
IV [IV. xxxiv], and Swedish History, V [V. xiv], reports. Also at Alba not Iulus born of Ascanius, the
eldest son of Aeneas, succeeded to the throne, but Silvius, the second son of Aeneas [Dionysius of Hali-
camassus, Roman Antiquities, I. xx. 3; Aurelius Victor, Origo Genits Romanae, xvii. 4].

3 Livy [XXIX. xxix. 6] says of Masinissa: ‘ While he was serving with the Carthaginians in Spain
his father died. The father’s name was Galba. And the kmngdom passed to Desalces, the king’s brother,
for such was the custom among the Numidians.’ In regard to Mauretania as a whole, see Mariana,
Book XXIX [XXTX. xxii].

In imitation of this practice also among the Saracens, who had come from Africa into Spain,
brothers had the preference over sons down to the time of Abderamen; Roderick of Toledo, Mrstorta
Avabum, vi. De Thou, History, Book LXV {[LXV. 16], year 1578, says of Hamet: ‘ By the will of his
father he was called to the throne next after the brothers, to the exclusion of their sons.’

The same form of succession prevailed in the kingdoms of Mexico and of Peru, as I learn from the
histories of those countries.

1569°27 x

Livy,
XXIX
[xxix. 6].

XVI f[iv.
25].

Digest,
XXXI.
xx=1i. 6.
Covarru-
vias,
Practicae
Quaesito-
nes, II.
XXXVI.
Molina, as
above, V1.
no. 47.

Digest,
XAT,
|xxxv1il.

Il;
XXXIV.
iv 31. § 2.
Hostiensis
and others,
On Decre-
tals, ITT.
XXxXlvV 6

288 On the Law of War and Peace [Book II

XXV.—W hether a son can be disinherited 1n respect to succession to the
throne

The first question is, whether a son can be so disinherited by
his father that he shall not succeed to the throne.

In this inquiry we must distinguish alienable kingdoms, that is,
kingdoms which are patrimonial from those that are inalienable.
For there is no doubt that disinheritance can take place in alienable
kingdoms, since they differ in no respect from other possessions.
Consequently, whatever laws or customs in respect to disinheritance *
are binding will be operative in this matter also. If, on the other
hand, there should be no laws or customs in effect, nevertheless by
the law of nature disinheritance will be permitted, except for bare
support, or even without this exception, if the son has committed
a crime deserving of death, or has otherwise grievously sinned, and,
besides, has means of support. Thus because of an offence Reuben
was deprived of the right of primogeniture by Jacob, and Adonijah
was deprived of the throne by David.? Even more, the son will be
considered as tacitly disinherited who has committed a serious crime
against his father, if there are no indications that the offence has been
pardoned.

In inalienable kingdoms, however, even though they are heredi-
tary, the same rule will not hold; for while the people has indeed
chosen the hereditary method of succession, it is hereditary in the
sense that it is not subject to a will.® Still less will disinheritance
hold good in lineal succession, where the throne passes on to individuals
in prescribed order from the gift of the people, and without any
semblance of ordinary inheritance.

XXVI.—W hether any one can abdicate the throne for himself and his
children

A similar question is, whether the throne, or the right of succes-
sion to the throne, can be abdicated.

There is no doubt that a ruler can abdicate for hiniself ; whether
he can abdicate for his children is a subject of controversy. However,
the matter ought to be settled by the extension of the distinction
just made. For he who abdicates his right to inheritances can transter
nothing to his children. On the other hand, in lineal succession the
act of the father cannot harm children already born, because they

1 What Baldus says on the introduction to the Deereials of Gregory 1s to be understood of such
a kingdom, that the king could choose, as a successor, the son whom he wished. An example 1s found
in Mexican history also.

2 The kingdom of David was, in fact, an absolute possession, not indeed by right of war, but by

the gift of God himself.
3 Not by will nor by adoption ; on the kingdom of Naples, see Mariana, Book XX [XXIX. iv].

Chap. VIT] Derivative Acquisition of Property 289

have by law gained their own right as soon as they have begun to
exist ; and it cannot work harm to those yet to be born, because it
cannot hinder the right from falling to them also at the proper time,
as the gift of the people.

This point of view, moreover, is not inconsistent with what
I have said about transmission. The power of transmission which
the parents possess is, in fact, of necessity, not voluntary. Between
existing children and those who are yet to come there is this differ-
ence: those who are to come do not yet have any right, and so a right
can be taken away from them by the will of the people, if it has also
been yielded by the parents, whose interest it is to transmit it to
their children. Here also is applicable that which we said above
about abandonment of ownership.

XXVII.—Absolute decision regarding the succession belongs neither to
the king nor the people

1. This question, furthermore, is often raised, whether [186]
the king who is now ruling, or the people by themselves or through
appointed judges, can decide concerning the succession to the throne.

Both alternatives must be rejected so far as the decision is con-
cerned, on grounds of jurisdiction. For jurisdiction belongs only
to a superior, since it includes not merely the bare consideration of
the person but also of the cause, and this must be examined with
its attendant circumstances. But a cause of succession is not subject
to the reigning king;* this is apparent from the fact that the king
who is now reigning cannot bind his successor by any law. Succes-
sion to sovereign power is not, in fact, included in sovereign power,
and in consequence has remained in the state of nature, in which
there was no jurisdiction.

2. Nevertheless, if the right of succession is disputed, those
who claim the right will act in a correct and high-minded way if
they will agree upon arbitrators, a subject which will be treated
later. The people, in truth, has transferred all its right of jurisdic-
tion to the king and royal family, and it has no remnants of that
power so long as the former are in existence; ] am speaking of a true
kingdom and not of the mere possession of supreme authority.

Nevertheless, if question should arise concerning the original
intention of the people, it will not be out of place for the people ®
which now exists, and is considered identical with that which formerly
existed, to express its opinion on the matter. In that case the judge-

1 In regard to the kingdom of France, see De Thou, Book CV [CV. xi], year 1593; see also Guic-
ciardini.

a Either in the general assembly of the orders, as was done in England and Scotland, as Camden
shows, years 1571 and 1572; or by delegates chosen for this task, as was done in Aragon, as Mariana
shows in Book XX [XX. iti and iv).

xX 2

(II iv. ro.]

Pausanias,
IV [x. 5]
Justin,

II [x 9]
Plutarch,
On the
Love of
Brothers
[xvlu=
488 D, E].

Hotman,
Quae-
sitones
Illustres,
2; Tira-
queau, De
Prvmo-
genitorum
jure, qu

3I.

[Josephus,
Antigui-
ives of the
J ews,
XVI.

Wl, 3; 1V
6]

On the Law of War and Peace [Book IT

2.90

ment of the people will have to be followed, unless it is quite certainly
established that formerly the desire of the people was different, and
that the right in question was derived from that desire. Thus King
Euphaes allowed the Messenians to decide which one of the royal
family of the Aepitidae ought to rule; and the people decided in
the contest between Xerxes and Artabazanes.

XXVIII.—That a son born before the father came to the throne should

have preference over one born afterward

To proceed now to other questions, it holds true of every kind
of succession that in an indivisible kingdom a son who was born
before his father’s accession to the throne should have the preference
over a son born in the royal state. For in a divisible kingdom such
a son will undoubtedly receive a part, as in the case of other posses-
sions in regard to which no distinction is ever made on account of
the time in which they were acquired. ‘The son, then, who in a
divisible kingdom would receive a share in an indivisible kingdom,
received the preference by reason of age. For this reason the fief
goes to the son who was born before the first investiture.

Also, again, in lineal succession, as soon as a throne has been
acquired, some expectation has been acquired by the children already
born. If, in fact, it is assumed that other children are not born later,
no one will say that those born previously ought to be excluded.
In this kind of succession, a hope once established gives a right, and
this right does not cease in consequence of a later act, except that
in cognate succession it is suspended in consequence of the privilege
of sex.

The opinion which I have stated was held valid in Persia in the
contest between Cyrus and Arsica;* in Judaea, between Antipater,
son of Herod the Great, and his brothers; in Hungary when Geissa
obtained the throne; and in Germany in the contest between Otto
the First and Henry, though not without resort to arms.”

XXIX.—The rule stated holds unless 1t appears that the kingship was

conferred under a different condition

We read that a rule contrary to that just stated was followed in
Sparta, in accordance with a special law of that state which gave
the preference to children born during the reign because greater

1 To whom the name of Artaxerxes Mnemon was given; see Plutarch, Artaxerxes [i= 1011 F].

2 See on this subject Sigebert [Chronographia] and the notes [Meibom’s] to Wittekind, ITI.

Bayezid and Gemes contended with each other for the succession to the throne of Turkey. Bayezid
was the older, but Gemes was born during the reign of the father. Bayezid won the throne. Mariana,
Book XXIV [XXIV. xxi].

Constantine Ducas left the empire to his sons, two of whom were born while he was in a private
station, the third ‘after he had put on the imperial purple’; Zonaras [X VIII. 1x. 19-20]. See Corsetti,
De Prole Regais, ITI, qu. xxvi.

Chap. VII] Derivative Acquisition of Property 291

pains were taken with their education. It will be possible for the
same thing to occur in accordance with a special law of the original
investiture, if the power of governing is given in fief to a vassal and
to his descendants.

Ludovico [Sforza] seems to have relied on this argument as
against his brother Galeazzo, in the contest for the duchy of Milan.
However, in Persia Xerxes, who obtained the throne in opposition
to his brother Artabazanes, as Herodotus states, prevailed rather by
the influence of his mother Atossa than by right. In the same Persia
again, when afterward a dispute of the same kind arose, as we have
already noted, between Artaxerxes Mnemon and Cyrus, the sons of
Darius and Parisardis, Artaxerxes as the elder, though born in private
station, was declared king.

XXX.—The question whether the son of an older son is to be given pre-
ference to a younger son; explanation, with a distinction

I. No less bitter is the contest, even with wars and single
combats, [187] over the question whether the son of an older
son should be given the preference over a younger son.”

In lineal succession this question presents no difficulty. For in
lineal succession the dead are considered as if living in this respect,
that they may transmit their right to their children. In such a succes-
sion, therefore, the son of the first-born son will have preference
without any regard to age; and in kingdoms having succession not
restricted to male issue even the daughter of the first-born will have
preference, for in such kingdoms neither age nor sex will furnish
a reason for departing from the line.

In divisible hereditary kingdoms, however, such grandchildren
will share in the division except in those regions where substitution
in the place of another is not allowed, as was formerly the case among
many peoples in Germany ;* for grandchildren were admitted late
to share the inheritance with the children. In case of doubt we
ought rather to believe that the succession by substitution may take
place, because it is favoured by nature, as we have stated above.

2. If substitution in the place of the deceased parent has been

1 Further, Artaxerxes was made joint ruler with Xerxes, but not Darius and Hystaspes, though
they were older ; for they were born before their father received the royal power. But perhaps it is
true that the kingship of Persia was dependent on popular election, though choice was restricted to
the royal family ; for Ammianus Marcellinus in his twenty-third book [X XIII. vi. 6] relates this of
the Arsacidae, the Parthians who ruled the Persians ; and Zonaras in his account of Justinus [XIV.
v=59 C] says this of the Persian kings, who followed the Parthians.

2 See Choppin, De Domanio, Book II; Thomas Grammaticus, Decistones Neapolitanae,I; Johannes
le Cirier, De Primogenitura, which 1s mserted in the Oceanus Juris [vol. x] ; Mariana, Book XX [XX.
iii] and Book XXVI [XXVI. x1]; Kromer, Book XXX.

$ See what I have noted above on sec. ro [11].

For this [195] reason in the Palatinate formerly Rupert, a younger brother, was given the
preference over another Rupert descended from the eldest son. See Reinkingk, Book I, class Iv,

XvVii, NO. 35.

[VII iii]

Hotman,
Quae-
SIUONES
Lilustres,
qu 3
Tiraqueau,
De Primo-
gen. Jure,
qu. 40.
Molina, De
Hsp.
Promigen.
Origine,
IIT. vi.

Wittekind,
History of
Saxony,
II.

Molina,

De Pri-
mig. Ori-
gine,

III. vii.

Procop1us,
Vandalic
War, III

(I vii, vi21].

Conrad
Vicerlus,
Life of
Henry
Vil

Almoin,
ITI. 1x11

Plutarch,
Lycurgus
[Pyrrhus,
xxvi =
400 E].
Justin,
Hstortes,
III fi. 5).

Pausanias,
ITT. [vu. 2].

On the Law of War and Peace [Book II

292

openly introduced by the civil law of the country, it will take place
even if mention is made of the nearest relative in some statute.
The reasons, which are adduced from the Roman laws for this pro-
cedure, are not strong; this will become apparent to the person
who examines the laws themselves. But this is the best reason that,
when the subject-matter admits of it, the signification of words
ought to be extended to the fullest possible meaning, to include not
only the general but also the figurative use, in such a way that under
the term children adopted children should be comprised, and, under
that of death, civil death, for the reason that the law is accustomed
to use terms in this fashion. Therefore that one will rightly be
included under the term next of kin whom the law advances to the
nearest degree of relationship.

In indivisible hereditary kingdoms, where substitution in the
place of another has not been excluded, neither always the grandson
nor always the second son will be given the preference; but the
elder son will be given preference as among equals, at any rate, by
the effect of the law as to the equalizing of the degrees of relation-
ship; for we have shown above that in hereditary kingdoms pre-
ference due to age is not transferred by inheritance.

Among the Corinthians the eldest of the children of the deceased
king always obtained the succession, as George the Monk has shown
from the sixth book of Diodorus Siculus. So also among the Vandals,
by the provision that the heir should be next of kin and eldest, an
older second son was given preference over the first son’s son.” Thus
in Sicily Robert was given preference over the son of his older brother
Martel, not specially for the reason which Bartolus accepted, because
Sicily was a fief, but because the kingdom was hereditary.

3. There is an example of a similar succession in the kingdom
of the Franks, in the person of Guntram; but this came rather
through election by the people, which at that time had not com-
pletely ceased. But after agnate succession has been introduced the
matter 1s free from contest; this was the case at Sparta, where,
after the throne was given to the descendants of Hercules, a similar
male lineal succession existed. Thus it happened that Areus, the son
of an older brother, was given preference over his uncle Cleonymus.

But also in the cognate succession a grandson will be given
preference, as in England Richard II, the grandson of Edward [IIT]
by his first-born son,? was preferred to Hermon and Thomas, sons

1 Henry [Honoric], son of Genzon, took precedence of Gondemond. On this order of succession
see above, sec. 24, text and notes.

2 See De Serres [Inveni. del’ Hist. de France, p. 196, edit. 627] on Charles the Wise ; also Mariana,
Book XVIII [XVIIT. i], who says that no contest was made by the sons of Edward. When the same
Mariana, Book XIV [XIV. viii], treated of the contest between the son of Alfonso and his grandson,
bom of a son, he says that in the assembly the decision was in favour of the son, Sanchez, but it is
uncertain whether rightly or wrongly.

Chap. VII] Derivative Acquisition of Property 293

of the same Edward. This provision is also established by law in the
kingdom of Castile.

XXXI.— Likewise, whether a surviving younger brother of the king ought
to be given preference over the son of an older brother

It is with the help of the same distinction that answer should
be made to the question of succession between the surviving brother
of the last king and the son of an older brother; excepting that in
many countries succession to the place of the deceased is admitted
among the children when it is not allowed in the collateral line.

But in cases in which the right is not clear we ought rather to
incline to the view which puts the children in the place of their
father,* because natural justice points to this point of view, [188]
that is, in respect to ancestral possessions. And no obstacle is pre-
sented by the fact that Justinian calls this right among the sons of
brothers a privilege; for he does this out of regard not for natural
justice, but for the ancient law of the Romans.

Let us now briefly mention the other questions which Manuel
de Costa proposes.

XXXII.—W hether the son of a brother should be preferred to an uncle
of the king

Costa rightly says that the son, or even the daughter, of a deceased
brother is given preference over the uncle of a king, not in lineal
succession only, but also in hereditary succession, in realms where
substitution in the place of the deceased is observed. ‘This is not the
case in kingdoms which in explicit words follow the natural order
of relationship ; for in these the person will have the preference who
shall have the advantage in the matter of sex or age.

XXXIII.—W hether the son of a son should have preference over the
daughter of a king

He adds that a grandson, born of a son, takes precedence of
a daughter. This is correct, and by reason of sex; but exception
must be made if the question arises in a country which among the
children takes account of nearness of relationship alone.

XXXIV.—W hether a younger grandson, born of a son, has preference

over an older grandson, born of a daughter

He adds that a younger grandson, issue of a son, is given pre-

1 See De Serres, in his account of Philip Augustus [p. 118], on the contest between John and
Arthur [in England]. Thesame author tells of a decision in favour of the lineal succession in the duchy
of Brittany in his account of Philip of Valois and of Charles VIII [pp. 165, 166, 422].

Novels,
cxviii [3].

[De Rebus
Dubdiis.]

Digest,
XXXVI.
iv. 3. §5.

Illescas,
Astoria
Ponittfical,
VI xix
Afflictis,
De Natura
Succedendt,
i, col. 5,
no, 20.
Aguirre,
Apologia,
no. 82,

204 On the Law of War and Peace

ference over an older grandson who is born of a daughter. This is
true in cognate succession,» but not equally so in hereditary succes-
sion, unless supported by a special law. Moreover the reason alleged,
that the father of the one would have excluded the mother of the
other from succession, is not sufficient; for the result would have
come about from purely personal superiority, which is not capable
of transmission.

[Book II

XXXV.—Whether a granddaughter born of an older son should be

preferred to a younger son

He adds that it seems to him probable that a granddaughter,
born of the eldest son, would exclude a younger son from succession.

This cannot be accepted for hereditary kingdoms, even if succes-
sion by substitution in the place of the deceased is admitted; that,
in fact, merely makes one eligible to the succession, but among those
who are eligible the prerogative of sex ought to have weight.

XXXVI.—W bether the son of a sister ought to be preferred to the daughter
of a brother

In accordance with this rule, in the kingdom of Aragon ® the
son of a sister has been given preference over the daughter of a brother.

XXXVII—W hether the daughter of an older brother takes precedence

over a younger brother

In like manner in hereditary kingdoms the daughter of the eldest
brother should be placed in the succession after the king’s younger
brother.

1 Mariana, Book XXVI [XXVI. xi], approves of the order of succession in Portugal. Yet he says
that, contrary to it, Emmanuel, by the favour of the people, was preferred to the Emperor Maximilian.
The same author, Book XII [XII. vii], says that in the kingdom of Castile Ferdinand, son of Berengaria,
younger sister of the deceased king Henry, was preferred over Blanche, the elder sister of the same king ;
this preference grew out of hatred of France, into the royal family of which Blanche had married.

* Mariana says that 1t was formerly believed that the brother of the king, not the daughters, ought
to succeed. Afterward, however, they accepted the lineal succession so completely that the son of
a sister was given preference over the descendants of a brother, who were a degree farther removed ;
Books XV. xiii; XIX. xxi; XX. ii and viii.

The same author, Book XXTV [XXIV. xviii], treating of Alfonso, says: ‘ He decreed that for the
inheritance of the crown of Aragon his grandsons should be preferred to the sons of Ferdinand, and
even the sons of a daughter, if male offspring were lacking, rather than Ferdinand’s daughters.’ And
he adds: ‘Thus the nght of succession to the crown is often changed at the will of kings.’

See Mariana again, Book XXVII. iii.

CHAPTER VIII
ON ACQUISITIONS COMMONLY SAID TO BE BY THE LAW OF NATIONS

I.—That many rights are said to have their origin in the law of nations,
of which, if we speak accurately, this is not true

1. [196] Tue order of our subject has brought us to the
acquisition of property which takes place by that law of nations that
we previously called the volitional law of nations, distinct from the
law of nature. Such is the acquisition made by right of war, but we
shall treat of this more properly below, when the effects of war will
be explained.

When the Roman jurists treat of acquiring ownership of pro-
perty, they enumerate many methods, which they say are according
to the law of nations. If, however, any one will examine these closely,
he will find that with the exception of the right of war none of them
have anything to do with that law of nations with which we are
concerned; but that they must be referred, either to the law of
nature—not, to be sure, in its original state, but in the state which
followed the introduction of property ownership and preceded all
civil law—or they must be referred to the civil law itself, not alone
of the Roman people but of many surrounding nations.* I believe
that this is the case, because the origin of such law or custom had
come from the Greeks, whose institutions, as Dionysius of Hali-
carnassus and others note, were followed by the peoples of Italy and
their neighbours.

2. ‘This law of nations is not international law, strictly speaking,
for it does not affect the mutual society of nations in relation to one
another; it affects only each particular people in a state of peace.
For this reason a single people can change its determination without
consulting others; and even this happens, that in different times
and places a far different common custom, and therefore a different
law of nations (improperly so called), might be introduced. This,
we see, did actually happen when the Germanic peoples invaded
almost all Europe. For as formerly the Greek laws, so then the

1 Phny [Natural History] notes a similar agreement, for causes that are not certain, on the part
of nations in other customs also that have nothing to do with law ; such are, that the bodies of children
whose first teeth have not appeared are not cremated, VII. xvi [VII. xvi. 72], that the Ionian characters
are used in writing, VII. lvii [VII. lvii. 210], that barbers are employed, VIE. lix [VII. lix. 21x], that
time 1s noted by hours, VII. lx [VIL. lx. 212], that a certain religious veneration is accorded to the
knees, XI. xlv [XI. xlv. 250], and that lightning flashes are adored by clucking with the tongue, XXVIII.
ii XXVIIL it. 25].

295

Dig. XLI.
ii. 3. § 14.

Dig. XLI,

1.3.§ 4.

Dig. XLI.

il, 13.

296 On the Law of War and Peace [Book II

Germanic customs were everywhere accepted, and these are even
now in force.

Now the first method of acquiring property, which by the
Romans was ascribed to the law of nations, is the taking possession
of that which belongs to no one. This method is without doubt
in accord with the law of nature, in the state to which I referred,
after the establishment of property ownership, and so long as no
statute established any provision to the contrary. For property
ownership can be brought about also by the civil law.

II.—That fish in ponds and wild animals confined in parks are private
property according to the law of nature, contrary to the ruling of
the Roman law

First under this head the capture of wild beasts, birds, and fish
comes up for discussion. The question is by no means settled, how
long these may be said to belong to no one. Nerva the son said that
the fish which are in our fish-ponds belong to us, but not those in
a lake; also that wild beasts which are confined in a park are our
property, but not those which wander at large in forests that are
fenced in. But fish in a private lake are no less shut in than in a fish-
pond, and well-fenced forests detain wild beasts no less effectively
than parks, which the Greeks called ‘ places for raising wild beasts’ ;
and these differ in no other respect than that one is a narrower,
the other a less restricted confinement. Therefore in our time with
greater justice the opposite opinion has prevailed, so that it is under-
stood that we have right of ownership over wild beasts in private
forests, and fish in private lakes, just as we have possession of them.

ITI.—That wild beasts, even if they have escaped, are none the less the
property of those who captured them, uf they can be properly identified

The Roman jurists affirm that wild animals cease to be our
property as soon as they regain their natural liberty. But in all
other things [197] ownership, which begins with possession, is not
lost when possession is lost ; rather, ownership gives us the right to
recover possession. Besides it makes no great difference whether
another takes away our possessions from us, or they themselves
escape, as a runaway slave. The truth, then, is rather that owner-
ship is not actually lost because the wild beasts have escaped, but
because of the natural inference that we have abandoned ownership
on account of the difficulty of pursuit,’ especially since the wild
creatures which belonged to us cannot be distinguished from others.

1 We have noted above, on II. iv. 5, that this was called by the Jews ‘ despairing of the recovery
of a lost object’.

Chap. VIII] On Acqutsttions said to be by the Law of Nations 297

This inference, however, can be made invalid by other inferences,
such as would be warranted, for example, if ‘identification marks ’,1 or
bells,” were placed on the wild creature; this, we know, has been done
in the case of deer and hawks, which, when identified thereby, have
been restored to their owners.? Moreover an actual physical possession
is requisite in order to acquire ownership. It is, then, not sufficient
to have wounded an animal, a view that is rightly held in opposition to
Trebatius. Hence came the proverb, ‘ You started the hare, but others
caught it.’ * Again, in the fifth book of Ovid’s Metamorphoses, we read
that it is one thing to know where a thing is, and another to find it.

IV.—W hether possession may be acquired with the help of appliances,
and how ?

Now this physical possession of wild creatures can be acquired
not only by the hands, but also by appliances, such as traps, nets,
and snares, provided that two conditions are observed: first, that
the appliances are in our possession ;, then, that the wild creature
has been caught in such a way that it cannot escape. On this basis
the question of the boar caught in a snare should be decided.

V.—That 1t 15 not contrary to the law of nations that wild creatures

should be the property of kings

The principles stated will therefore be applicable if no statute
has prevented. Modern jurists, in fact, are greatly mistaken who
think that these rules are so bound up with the law of nature that they
cannot be changed. They are not a part of the law of nature absolutely,
but are such only under a certain condition, that is, if no provision
has otherwise been made. Thus the peoples of Germany, since
properties had to be assigned to their kings and princes for the main-
tenance of the proper rank, wisely considered that a beginning ought
to be made with those things which could be so assigned without
loss to any one.’ To this class belong all things which have not
become the property of any one.

I see that the Egyptians availed themselves of this right. For
in Egypt also the revenue collector of the king, whom they called

1 See Donatus On Terence’s Eunuch, IV. vi [IV. vi. 15]. These are signs which the Greeks call
‘recognition marks ’ or ‘identification marks ’.
2 Apuleius, Apologia [1x], uses the word in this sense.
3 Harmenopulus, II. i (II. i. 21]: ‘He who has wounded a wild beast does not become owner
of it unless he also has taken it.’
« Petronius [cxxxi]. Ovid [Art of Love, III, hnes 661-2] says:
And so the hare you started will belong to others.

By the Law of the Lombards [I. xxii. 4 and 6], the one who kills a wild animal, or finds a wild
animal wounded by another, takes away a shoulder and seven mbs. The one who wounded the
animal has a right to the rest, but only within the space of twenty-four hours.

’ But on the abuse of this law see John of Salisbury, Polteraticus [I. iv].

Dig. XLI
i. 5. § 1.

[V. 519~-
20.]

Dig. XLI.
i 55

Hostiensis
and others,
On Decre-
tals, III.
XXX. 22.
Jason,
Conszlia,
IIQ.

Strabo,
XVII
[i ra].

Covarru-
vias, On
Sett, V
ult. 4,

1 8,

Plutatch,
Greek
Questions,
xXXIX
[Xxx=
298 A]

[V 519-

Dig XLI.
11 3

[Laws, XI
1=973 f.]

Philo-
stratus,
[Life of

A pollo-
nus of
Tyana, |
II. xv [II.
XXXIX].

{II.xxxix.]

On the Law of War and Peace [Book II

298

by a title meaning his personal representative, took possession of
property of that kind. A statute law could transfer the ownership
of such things before occupation, since a law alone is sufficient to

produce ownership.

VI.—How the possession of other things lacking an owner may be acquired

In the same manner as wild animals, other ‘ things without
a master’, as the Greeks say, that is other ownerless objects,* are
acquired. For, if we follow the law of nature alone, these also belong
to the one who finds and takes possession of them. Thus the deserted
island of Acanthus was adjudged to the Chalcidians, who had first
entered it, and not to the Andrians, who had first thrown a javelin
upon it. The reason is that the beginning of possession is the con-
nexion of body with body; such connexion, in the case of movable
things, is made with the hands; and, in the case of land, with the
feet. To know where a thing is, is not the same as to find it, as we
read in the fifth book of Ovid’s Metamorphoses.

VII.—To whom a treasure-trove naturally falls ; the diversity of the
laws on this subject

Among ‘ ownerless objects’ is also treasure-trove, that is, money
the owner of which is unknown. Now that which is not known is
reckoned as if it did not exist. Therefore treasure-trove also naturally
becomes the property of the finder, that is of the one who has removed
it from its place of concealment and taken possession of it.

Nevertheless this natural presumption does not hinder the possi-
bility of establishing a different rule by laws or customs.? In such
cases Plato wished that information should be given to the magis-
trates, and that an oracle should be consulted. Apollonius would
assign a treasure, as if a gift from God, to the person who seemed
tohim the best. [198] From the parable of Christ found in Matthew,
chapter xl, the inference seems to be warranted that according to
the accepted rule among the Jews a treasure that had been found
belonged to the owner of the land.* From the story in Philostratus,
Book VI, chapter xvi, ] infer that the same law held good in Syria.

1 [204] In Portugal whales cast ashore belong to the king; Jorge Cabedo, Dectszones
Lusitanae, pt. 1, xlviii.

2 There is a law of the people of Byblos, ‘ that you should not carry away anything found, unless
you had originally placed it there.’ Apollonius approved of this maxim, according to Philostratus
[Life of Apollonius of Tyana, I]. xxxx].
lin a a1 seems that this was the law also at Rome in the time of Plautus ; for Callicles says [Trinummus,

e178]:
Would not that wealth belong to him who bought the house ?
And again [line 1146 f.]:

And then by common law the buyer of the house
That treasure would demand from me for his estate.

Chap. VIII] On Acquisitions said to be by the Law of Nations 299

The laws of the Roman Emperors on this subject vary greatly.
This is apparent partly in their constitutions, partly in the Histories?
of Lampridius,? Zonaras, and Cedrenus. The German peoples
assigned treasure-trove, as other ‘ownerless objects’, to their rulers.
That is, in fact, now a common law, and in a sense a law of nations ;
for it is observed in Germany,* France, England, Spain, and Denmark.
Why the charge of injustice cannot be brought against this law,
I have already sufficiently explained.

VIWI.—That the regulations of the Roman law regarding tslands and
alluvial deposits belong neither to the law of nature nor to the law of
nations

Let us now come to the fluvial additions of land, to which the
ancient jurists devoted many rescripts, and modern jurists even
entire commentaries.’

The principles which they have laid down regarding this subject,
however, are for the most part drawn from the established custom
of certain nations, and by no means from the law of nature, though
often commended through reference to that source. For most of
their definitions rest on this basic principle, that not only the river
banks belong to the possessors of the nearest estates, but also the
river beds, as soon as these have been left dry by the river. The
resulting inference 1s that islands which are formed in the stream
belong to the same owners.

In the case of an overflow by a river, to be sure, the jurists do
make the distinction that a slight overflow does not take away owner-
ship, but a greater one does; with this condition, nevertheless, that
if the river should recede all at once the estate which had been
submerged would revert to its original owner by postliminy; but, if
the river should recede gradually, ownership would not in like manner
revert, but rather would fall to the nearest landowners.

Now I do not deny that all these regulations might have been
introduced by law, and defended on account of a certain advantage

1 See Tacitus on the treasures in Africa, which Nero had already devoured in anticipation ; Aznals,
XVI EXVI. r].

de Plileteratus on the life of Atticus [Z7ves of the Sophisis, II. 1. 2], a passage which Zonaras has
copied in his account of Nerva [XI. xix = p. 582].

2 [Spartianus,] Hadrian [xvi] ; and [Lampndius,] Severus [xlvi]. -

3 See Speculum Saxonicum, xxxv ; Constitutiones in Steia Friderict, I. lviii and ciii [Monumenia
Germantae Htstorica, Leges, IT].

The Goths had the same custom. According to Cassiodorus, [Varzae,] IV. xxxiv, King Theodoric
says: ‘It is not greed to take away what no owner bemoans losing.’ In the same work, VI. viii, he
says: ‘ Also let deposits of money, which through lapse of time have lost their legal owners, by your
diligent search be brought into our treasury ; for all ought to offer us freely the possessions of others,
since we allow them to possess their own. The man who does not lose his own property suffers no loss
in giving up things that he has found.’ .

4 John Boreo; Antonzus Marsa; John Gryphiander [De tnsulzs, xviii], besides those whose
names are given in the marginal note.

Thomas
Aquinas,
IT, 1.
66. 5,
and
Cajetan
thereon
Covarru-
vias, On
Sext, V
ult. 4,
lll 2.

Bartolus,
Tyberiad ;
Baptista
Aymus.
De Allu-
viOnuM
Lure;
Connan,
Commen-
taria Juris
Civilis,
III. v

Dig. XLI.
1.7

Dig. XLI.
1.7.85
Dig. XLI
1 30 and
38.

See above,
TI 111, end.

On Bene-
fits,
VII iv [3]

On Duives,
I (via, 2z].

[=p 325¢c]

[Germany,
XXVI |

300 On the Law of War and Peace [Book II

in protecting the banks ;* but I do not for a moment concede that
they belong to the law of nature, as the jurists seem to think.

IX.—That by the law of nature an island in a river and a dried out bed
belong to the one who owned the river or the part of the river, that is,

to the people

1. For if we take into consideration that which generally
happens, peoples have taken possession of lands’? not only with
sovereignty, but also with property ownership, before the fields have
been assigned to individuals. Seneca says: ‘ We designate as terri-
tories of the Athenians, or of the Campanians, those lands which
afterward neighbours divide among themselves by private boun-
daries.’ So also Cicero: ‘ By nature, moreover, there is no private
ownership, but such arises either from ancient occupation, as in the
case of those who formerly entered unoccupied territory; or from
victory, as in the case of those who have gained possession by war ;
or from some law, agreement, condition, or lot. The result is that
the land of Arpinum is said to belong to the people of Arpinum,
and the land of Tusculum to the Tusculans ; and the characterization
of the properties of individuals is similar.’

Dio of Prusa says in his Rhodtan Oration: ‘ Many things can be
found which, as a whole, the state considers its own, but which have
been divided among individual owners.’ Of the Germans Tacitus
says: ‘ Lands are taken possession of in common by villages’ (‘ alter-
nately’ is a bad reading), ‘in proportion to the number of culti-
vators; and they presently divide the lands among themselves
according to rank.’

Consequently, whatever was originally occupied by the people,
and has not since been distributed, must be considered the property
of the people. As an island formed in a privately owned river, or
the bed of such a river that has dried out, 1s the property of individuals,
so in the case of a public stream both belong to the people, or to him
to whom the people has granted it.

2. What I have said about the bed of the river should in like
manner be held in regard to the bank,? which is the extreme edge
of the bed, that is of that in which the river usually flows. And such
we see is now the usual custom. In Holland and the neighbouring
regions, where in ancient times there were very frequent controversies
in regard to these matters on account of the lowness of the land,
the size of the rivers and the nearness of the sea, [199] which

1 See a passage of Cassius [Longinus]1n [Aggenus] Urbicus [Commentary on Frontinus, viti= Schriften
der vomischen Feldmesser, vol. 1, p. 17], and Boethius [On Geomeiry, ii= op. ett., p- 399]-

* See above, IT. iti. 19, both text and notes.

* Such is the law in France, Sanction des Eaux et Foréts, II. i.

Chap. VIIT] On Acquisitions said to be by the Law of Nations 301

takes up mud in one place and, by tidal changes, carries it away to
another, it has always been the established rule that islands, which
were really islands, belonged to the public domain; and likewise,
abandoned beds of the Rhine and Meuse, a position often confirmed
by court decisions, and supported by the best of reasons.

3. For the Roman jurists themselves concede that an island
which floats in a river,’ supported, let us say, by bushes, is public
property ; in fact an island formed in a river ought to belong to the
person who has a title to the river. But the legal status of the river
and of the bed are the same, not only from that point of view which
the Roman jurists took into consideration, because the bed is covered
by the river, but also from the other point of view which we men-
tioned above, because the river and its bed were taken possession of
by the people at the same time and have not passed into private
ownership.

In consequence I do not accept, as in accord with the law of
nature, the principle which they maintain, that if the fields have
received definite boundaries the island belongs to the first occupant.
Such an acquisition of ownership would take place only in case the
river itself, and its bed along with it, had not been taken possession
of by the people,’ and there should remain a possibility of occupation
just as in the case of an island formed in the sea, which becomes the
property of the first occupant.

X.—That by the law of nature in an inundation the ownership of the
land 1s not lost

I. Again, if we follow natural reason only, loss of ownership
ought not to be admitted any more in the case of a greater than of
a smaller flood. For though the surface of the land may be com-
pletely turned into sand, nevertheless the lower part of the ground
remains solid; and though it changes its quality somewhat, it does
not change its essential character any more than the part of a field
which is swallowed up by a lake, the right to which, as the Roman
jurists correctly perceived, is not changed. ‘Their assertion is not
in accordance with nature, that rivers perform the function of treasury

1 There is a description of floating islands in Seneca, Natural Questions, ITI. xxv [ITI. xxv. 7 f£.];
Pliny, the Elder, [Natural History,] Il. xcvii [II. xcv] ; Macrobius, Saturnalza, I. vii []. vil. 28].

A charming description of such islands in Lake Vadimon is found in Pliny the Younger, [Leiters,]
VIII. xx; and of such islands in Flanders, in a book by Chifflet, which is worth reading.

@ Siculus Flaccus, in his book De Conditiombus Agrorum [= Schriften der romschen Feldmesser,
vol. 1, p.157], says: ‘ Insome regions the measure of the river formed a part of the territory assigned,
and in some regions it was merely left in the undivided portion. In others, however, it was made an
exception, and there was an assignment of the river only.’ —

On the undivided portions see the remarks of Salmasius On Solinus, which are excellent, as are
all of his comments. On this whole subject of rivers and alluvial additions, if you have leisure, examine
Rosenthal, De Jure Feudorum, v, corol. 23; Sixtinus, De Regaltbus, II. ini ; and Caepolla, De Seruttutibus
Rusticorum Praediorum, xxx. .

Dig. XLT.
i. 65. §§ 1,
4; XLIII.
xi1.I.§ 7

Digest,
XLII.
mii. r. § 6.

Dig. XLI.
i. 125
XXXIX.
ii. 24. § 35
XVITI. 1.
69.

[XVII.
1. 3.]

[Dzgest, L
Xvil IT ]

Dug. VIL.
lV. 23.

Dig. XII,

i.4; XLL

1. 30. § 2;
XLIL1. 7.

§ I.

302 On the Law of War and Peace [Book IT

officials,’ and take from public ownership to transfer to an individual,
and from the individual to transfer to the public treasury.

The Egyptians handled these matters rather well, and in regard
to them we find the following in Strabo:

There was need of an accurate and minute division of fields for the reason that the
Nile, adding and taking away by its overflows, changes the appearance of the surface
and the landmarks, and confuses the boundaries by which the land of one 1s distinguished
from that of another. On this account the surveying of the land had often to be
done over.

2. This opinion is not contrary to the principle which the
Roman writers themselves have handed down, that what is ours
does not cease to be ours except by our own act, or, again, by law.
But we have noted above that under acts are included also failures
to act, in so far as they warrant an inference as to intention. Where-
fore we grant this, that if there is a very great inundation, and there
are no other indications which suggest an intention of retaining
ownership, it is easily assumed that the land has been abandoned.
Such an assumption from the nature of the case is indefinite, on
account of the variety of circumstances, and such cases should be
committed to the decision of an honest man; consequently they are
ordinarily decided by municipal law. Thus in Holland land is con-
sidered abandoned which has been submerged more than ten years,
if no indications of continued ownership exist. And in this case,
not without adequate reason, we have accepted a principle which
the Romans rejected, that possession may be considered as retained
even by fishing, if not otherwise possible.

But princes were accustomed to set a limit of time within which
the original possessors of the lands were obliged to drain their lands.
If they did not do this, then those who held mortgages on the lands
were warned; and then again, those who held civil jurisdiction
merely, or both civil and criminal jurisdiction over the lands. If
all these delayed action, then their entire right fell to the prince,
and. he either himself drained the lands and made them a part of his
patrimony, or he assigned them to others to drain, while retaining
a part for himself.

[200] XI.—That in cases of doubt alluvial deposits also belong to the
people
As regards alluvial deposits, that is, the addition of soil particle
by particle, these can be claimed by no one because the place of

* Compare Cassiodorus on the land surveyor [Variae, IIT. lii]: ‘ After the fashion of a great river,
he takes away territory from some and grants rights to others.’

Chap. VIII] On Acquisitions said to be by the Law of Nations 303

origin is unknown; otherwise, according to the law of nature, they
would not change ownership.

It ought to be considered certain that such deposits also belong
to the people, if the people owned the river, as must be believed in
case of doubt; otherwise such accretion would belong to the first
occupant.

XII.— But that such alluvial deposits seem to be conceded to those whose
lands have no other boundary than the river

I. But as the people can grant to others the right to such lands,
so also it can grant the same right to the possessors of the nearest
estates. The people seems indeed without doubt to have so granted
this right in case the lands have no boundary on that side except the
natural boundary, that is, the river itself. On this point, then, we
ought not to view with contempt the painstaking of the Roman
jurists, who distinguished fields limited by natural bounds from other
fields, if only we remember that in this respect a measured field has
equal rights with a field so bounded. For what we said above of
states, when we were treating of their acquisition, likewise holds good
of private lands, but with this distinction, that when in doubt it is
to be believed that states have natural boundaries, since this is most
in accord with the nature of a country; private lands, on the con-
trary, are not supposed to have natural boundaries, but are either
measured or bounded by a certain measure, because this is more
consistent with the nature of private possessions.

2. Yet we do not deny that a people can assign its lands with
the same right with which it has itself held them, that is, up to the
stream itself; and if this is apparent, then it can assign the right
over the alluvial deposits. This, in fact, was so decided in Holland
some centuries ago in regard to the fields bordering on the Meuse
and Issel, the reason being that both in the deeds and in the tax
lists they had always been described as bordering on the river. Further,
if such lands are sold, they retain their special character and the right
over alluvial deposits, even though some measurement has been
mentioned in the terms of sale, provided nevertheless they are not
sold according to measure, but as a whole. This practice has come
down to us in the Roman laws also, and is now general.

XTII.—T hat the same opinion ts to be held in regard to a bank abandoned
by a river, and a part of the bed that has dried out

What I have said about alluvial deposits ought also to be held in
regard to a bank abandoned by a river and a part of a river bed that
has dried out; to wit, that in the case of rivers having no owners

1569-27 Y¥

Deg XLI.
1 16;
XLII.

x 1. § 6.
Baldus, O7
Feuds,

I. iv. 5 (sz
quis dé
manso), § I
(sz de sure
feud. contr.

fuerit).

Digest,
XIX. i.
13. § 14.

304 On the Law of War and Peace [Book II

such parts belong to the first occupant, but to the people in the case
of rivers owned by the people.

Moreover, such parts belong to individuals in case these have
received from the people, or from some one acting for the people,
the land bordering on the river as so bounded.

XIV.—W hat ts to be considered alluvial deposit and what an tsland

Since, as we have said, the ownership of islands is subject to one
law and of alluvial deposits to another, disputes frequently arise in
regard to the title under which that land ought to be held which,
though somewhat raised, 1s so joined to the nearest estates that the
level ground between is under water. We see that this condition is
common enough in our country on account of the inequality of the
ground.

In this matter customs vary. In Gelderland all such ground
that can be reached with a loaded cart is assigned to the nearest
estates, if also there is ownership by right of possession. In the region
of Putten such ground is similarly assigned, if a man on foot with
a drawn sword can make his way to it.* But it is especially in accord
with the law of nature that decision in such matters be governed by
the consideration whether the passage is ordinarily made by boat
during the greater part of the time.

XV.—W hen alluvial deposits belong to vassals

1. No less hackneyed is the question regarding ownership of
alluvial deposits arising between a prince, who enjoys sovereign
authority over his people, and his vassals, who have received a power
inferior to his.

In the mere grant of the right to govern, it is quite clear that
the right to alluvial additions is not included. But we should note
that along with this limited authority some of the vassals at the same
time received the full ownership of the land, with the exception of
that which was in private possession, either because such land for-
merly belonged to the people or to the prince, or because it had been
drained by the prince. In such cases there is no doubt [201] that
the vassals possess the right which belonged either to the people or
to the prince. ‘[hus we see that in Zeeland even the vassals, who
appoint the judges only for civil cases, pay the land tax for the whole

1 This agrees with the most ancient [205] custom of the Germanic peoples. Paulus Diaconus
Mol xxx1] says of Autharis, king of the Lombards: ‘On horseback Autharis advanced as far as that
column in the sea), and touched 1t with the point of his spear, saying: ‘“‘ Up to this point the territory
of the Lombards shall extend.”’
A similar story you find concerning the lance which the Emperor Otto hurled into the sea, saying
that he marked the limit of his empire in the Baltic Sea ; Saxo, X [p. 165], and others.

Chap. VIII] On Acquisitions said to be by the Law of Nations 305

district, collecting a part from the individual owners according to
their individual possessions; and with these vassals no contest 1s
raised on the score of alluvial additions.

There are some to whom the river itself has been granted, who
therefore rightly claim as their own the islands, whether formed by
mud deposits or from a part of the river bed which the water has
surrounded.

2. There are others in whose grants neither of the rights
specified has been included, and they have a poor case against the
public treasury unless the custom of the district favours them, or
a sufficiently long and uninterrupted possession, reinforced by the
requisite conditions, has given a right to them.

But if the land has been granted as a fief without any right of
governing, the nature of the land must be considered, as we have
said above. For if the land has natural boundaries alluvial additions
will be considered as included in the fief, not from any special right
belonging to the prince, but from the character of the land. For
in such a case the alluvial addition would be of value only to the
one who had the right of user.

XVI.—Answer to the arguments by which the Roman jurists defend their
law as the law of nature

In order to prove that the law regarding alluvial additions
adopted by them is according to nature, the Roman jurists are
accustomed to quote this maxim: ‘It is in accord with nature that
a man should acquire the advantages of anything to the disadvantages
of which he is subject. Therefore since the river often washes away
a part of my land, it is fair that I should enjoy a favour granted by
it This rule, however, is not in point, except where the advantages
acquired arise from our own property. But in the case under con-
sideration the advantages arise from the river, which belongs to
another. Again, it is in accord with nature that whatever loss there
is should fall upon the owner. And finally, the fact that the jurists
make an exception of measured lands shows that their proposition is
not universal. I may pass over the fact that it generally happens
that the river enriches some and impoverishes others. Lucan says:

The land escapes its owners there, but here new fields are won
By farmers through the bounty of the Po.

XVI1.—Naturally a road prevents gain by allueial addition
Also the assertion, that a public highway does not prevent gain
by alluvial addition, has no foundation in nature, unless the land is
private property that has to furnish thoroughfare.
¥2

Dig. Vil.
1.9. § 4.

[VI.
277-8.]

[Digest,
XLI. 1.38.)

[Conjugal
Precepts,
EX=140
E F |

(Institutes,
II. 1. 25 ]

III, vi.

306 On the Law of War and Peace [Book II

XVIII.—That it is not according to nature that the ownership of the
offspring should be determined from the mother alone

Another method of acquiring property, which is said to be
based on universal legal principles, is through the breeding of animals.
In this matter the rule established by the Romans * and some other
peoples, that the ownership of the offspring is determined from the
mother, is not according to nature, as I have said above, except in
so far as the sire is in most cases unknown. But if the sire should
be determined on satisfactory grounds no reason can be assigned
why the offspring should not in some measure belong to him. For
it is certain that the offspring is a part of the father also; but whether
more comes from the father or from the mother is a subject of dispute
among the natural philosophers. Plutarch discusses the matter thus :
‘Nature so mingles the persons of the two sexes that it blends the
elements taken from each and makes the offspring the common
result of the two ? to such a degree that neither parent can distinguish
what is his own and what is the other’s.’ And this rule the ancient
laws of the Franks and the Lombards followed.

XIX.—That according to nature a thing fashioned out of another's
material becomes common property in the same manner as in the
intermingling of properites

1. If any one had fashioned a thing out of material belonging
to another, the school of Sabinus maintained that it belonged to the
one who had been the owner of the material. Proculus assigned the
thing to the one who had made it, because through the maker that
which before had no existence had come into being. At length an
intermediate position was adopted, that if the material could be
restored to its previous [202] form the owner of the material
should be the possessor of the thing; but if it could not, then he
who had fashioned the thing should have it.

Connan disapproves of this view and wishes only one point
considered, whether there was greater value in the work or in the
material; whichever, then, had the greater value should by its
superior force draw to itself that which was of less value. His proof
is obtained from what the Roman jurists have handed down on the
subject of accession.

_ 7 With this agrees the Edicium Pistense of Charles the Bald, chap. xxxi [Monumenta Germaniae
Historica, Leges, II, vol. II, p. 324]. On the laws of others on this subject see above, text and notes
of IT. v. 209.

* See in Galen’s De Semine, II, an apt passage on this subject ; and also what he has cited from
Athenaeus. Chrysostom, On Ephesians, v [v. 31=Hom. XX, iv], says: ‘The child originates in the
mixture of the two seeds.’

Chap. VII] On Acquisitions said to be by the Law of Nations 307

2. If, however, we consider the truth of nature just as the
Roman jurists also have concluded that in the case of mingling of
materials common ownership is introduced in proportion to what
each has furnished, because an adjustment could be made naturally
In no other way, so when things consist of material and form, as if
of parts, if the material belongs to one and the form to another, it
naturally follows that the ownership becomes common in proportion
to the value that each has. The form in fact is a part of the sub-
stance, not the whole substance; and this was perceived by Ulpian,
wren he said that the substance was almost destroyed by changing
the form.

XX.—The principle stated holds true even if the material has been
intentionally injured

It is not an unjust rule that those who, with fraudulent intent,
expend labour on material belonging to another, should lose their
labour. ‘That nevertheless is a penal enactment, and so does not
come under the law of nature. Nature, in fact, does not fix penalties,
nor take away ownership, on account of an offence in and of itself,
although those who do wrong naturally deserve punishment.

XXI.—T hat it is not natural that a thing of less value should be absorbed
by one of greater worth on account of superiority 1n value. Here also
errors of the Roman jurists are noted

However, that a thing of less value should be taken over by one
of greater value, which is the basis of Connan’s argument, is naturally
consistent with the facts but not with right. He in fact who is the
owner of one twentieth of an estate remains a part owner as well as
the one who has the nineteen twentieths. Therefore what the Roman
law has decreed in some cases, or what may be decreed in others,
concerning accession on account of superiority in respect to worth,
is not law of nature but civil law, and has in view the transacting of
business more easily. Nevertheless the law of nature is not opposed,
because statute law has the right of conferring ownership.

Yet there is scarcely any legal question regarding which there
are so many divergent opinions and errors of the jurists. For who
would allow that, if copper and gold have been mixed, the one cannot
be separated from the other, as Ulpian has written; or that by
soldering a blending of materials is produced, as Paul says; or that
there is one rule for writing and another for painting, so that the
panel belongs with the painting, the writing with the tablet?

Dig. X.
1V. 9. § 3.

Dig X.
iv. 12. § 3.

Dig. VI.
1. 5. §T.
Dig. VI.
i. 23. § 5.
[Digest,
XLI. i. 9.
§ 2]

institutes,
IT 1. 33,
34.

Dig. XLI.
i. 60,

Dig. V.

iil, 25.

§ 11.
[Institutes
I.1. 35]

Dig V.
111. 38.

TI. vi. x.

308 On the Law of War and Peace [Book II

XXII.—T hat by planting, sowing, or building on another’s ground a com-
munity of ownership naturally is produced

In like manner it is an established rule of law that what is planted
and sown goes with the soil, and the reason for this is that such things
are supported by the soil. Thus a distinction is made in regard to
a tree, according to whether it has put out roots. Yet the nourish-
ment forms only a part of the thing, which was already in existence.
So just as the owner of the ground acquires a certain right over the
produce from the nourishment of it, so the owner of the seed, plant,
or tree does not on that account naturally lose his right. Conse-
quently in such cases also a common ownership is produced.

The same principle is not less applicable to a house, of which
the component parts are the ground and the structure. For if the
house is movable the owner of the ground has no right over it, as

Scaevola also decided.

XXIII.—That in community of ownership a person who merely has
possession of a thing 1s not entitled to the income of 1t, but can charge

for expenses incurred

In such cases of community of ownership it is likewise not in
accord with nature that one, who has in good faith become the
possessor of a thing, should consider as his own all the income he has
received from it; but he should merely have the right of charging
for expenses incurred and useful labour expended, and on this account
to deduct from the income received. Such a possessor may even
retain the growing crops, if he is not otherwise repaid.”

XXIV.—The same right holds even tf possession has been obtained
fraudulently

Also it seems that the same rule should be applied to one who has
gained possession fraudulently, in case the penal law does not prevent.
The jurist Paul says: ‘It is more considerate [203] that an account
of expenses incurred should be allowed, even in the case of a thief.
The plaintiff, in fact, ought not to acquire gain from another’s loss.’

XXV.—T hat actual delivery ts not required naturally in order to establish
transfer of ownership

The last way of acquiring property that is classed under the
volitional law of nations is by actual delivery. But we have said
above that such delivery is by nature not necessary for transfer of

1 On this subject see the Speculum Saxontcum, II. xlvi, in which there are many very just rules,

Chap. VIII] On Acquisitions said to be by the Law of Nations 309

ownership. This the Roman jurists themselves also recognize in
certain cases, as in donations subject to the former owner’s right of
use ; or in the transfer of ownership to one who already has possession,
or to one who keeps property loaned to him; and in the case of
things thrown out for distribution. Further, in some cases owner-
ship passes even before acquiring possession, as in inheritances and
legacies, and in gifts made to churches, holy places, or states, or for
the support of the poor; and in the case of property over which a
common partnership has been established.

XXVI.—The application of what has thus far been said

These observations I have written down in order that he who
finds the expression ‘law of nations’ in the Roman legal writers
may not at once take as meant that right which cannot be changed,
but may carefully distinguish precepts according to nature from those
which are according to nature only under certain circumstances ; and
may distinguish, further, the laws common to many peoples separately
from those which contain the bond of human society.

For the rest, this should be understood, that if by this law of
nations, improperly so called, or even by a statute of a people,
a single method of acquiring property has been introduced without
distinction of citizen or foreigner, immediately thereupon foreigners
acquire a right; and if the enjoyment of that right is hindered the
injury is such that it may furnish a just cause of war.

1 Tt is certainly not necessary. See the Laws of the Vistgoths, V. ii. 6: ‘ True delivery seems then
to have taken place when the deed of gift is in the hands of the legatee.’ ;

Among the ancient Romans property transferable only by formal purchase was acquired by the
formula of the bronze coin and the balances; see Varro, Latin Language, IV [VII. cv]; Pompeius
Festus, word Rodus [p. 265]; Ulpian, Instttutes, tit. xix [xix. 3]; Boethius, On Cicero's Topics [III].

Code,
VIII liu.
28

Dig. XLI.
i. 21.
Institutes,
IT. i. 44.
Dig. XLI.
ii. 23.
Digest,
XLVITI. 1i.
65 (64)
Code, I ii.
23.

Code,
VIII.

liv (lv). I.
Digest,
XVII. ii.
tr. § 3x, and
2.

On Peace
[cxx = 183

pj.

[Letter to
Argues,
p- 411 B,
Span. ed.]

CHAPTER IX
WHEN SOVEREIGNTY OR OWNERSHIP CEASES

I.—Ownership and sovereignty cease when he who possessed the right 1s
taken away and leaves no successor

I wave already sufficiently explained in what manner not only
private properties but also sovereign powers are originally acquired,
and how they are transferred ; let us now see how they are terminated.

We have already shown above, in passing, that such rights are
extinguished by abandonment, for the reason that, when the desire
ceases, ownership does not continue. There is also another mode of
extinguishment, when the subject, in whom the sovereignty or the
ownership resides, is taken away before there is any transfer of owner-
ship, either expressed or implied ; such a case arises in succession to
one who dies intestate. If, therefore, a person dies without having
given any indication of his will and without leaving any blood relative,
all the rights which he possessed are extinguished. In consequence,
unless some human law prevents, his slaves will be free, and peoples
that had been subject to his sway will become independent, because
from their very nature such things cannot be acquired by possession
unless they voluntarily yield their liberty. Other possessions of the
deceased, however, will become the property of the first one who
takes possession.

1

IIl.—Similarly the rights of a family are extinguished when the family
dies out

The same rule is to be applied in case a family, which possessed
certain rights, has become extinct.*

III.—So also the rights of a people are extinguished if the people ceases
to exist

1. The result is the same if a people has ceased to exist. Isocrates,
and after him the Emperor Julian, said [206] that states are
immortal; that is, they can continue to exist because a people

1 As in former times the Danish family. Krantz, Vandalsca, VIII. xxiii. Similar examples are
the House of Rugen, op. cit., VIII. xi; that of the Pelasgi and Thessalians, Gregoras, VII [VII.
xiii, 3]; that of the Usanchanids in Persia, Leunclavius, XVI.

Add Leo of Africa, Book IT [p. 252, in edition of the Hakluyt Society], concerning Tarodent, and
if you wish, also Ernest Cothmann, Consilia, xl, no. 1 and following.

310

Chap. IX] When Sovereignty or Ownership Ceases 311

belongs to the class of bodies that are made up of separate members,*
but are comprehended under a single name, for the reason that
they have ‘a single essential character’, as Plutarch says, or a single
spirit, as Paul the jurist says. Now that spirit or ‘ essential character ’®
in a people is the full and perfect union of civic life, the first product
of which is sovereign power; that is the bond which binds the state
together, that is the breath of life which so many thousands breathe,
as Seneca says. These artificial bodies, moreover, are clearly similar
to a natural body; and a natural body, though its particles little by
little are changed,® does not cease to be the same if the form remains
unchanged, as Alfenus argues after the philosophers.

2. And so the statement of Seneca, that no one of us is the
same in old age as he was in youth, ought properly to be so inter-
preted as to be understood only of that which is material. Similarly

1 Seneca, Letiers, cii [cii. 6], says: ‘Some bodies are of hke substance throughout, as man; some
are composite, as a ship, a house; and finally all bodies which have been made by joining different parts
into a single whole; and other bodies consist of ununited members whose parts are still separate
individuals, as an army, a people, or a senate.’

_ This distinction was borrowed from Achilles Statius [Tatius], On Avatus [xiv, Petav. ed.], and
his words were taken from Conon, the discoverer of the constellation Coma Berenices :

* The mathematician Conon has observed that things are said to be bodies which consist of a single

substance of like essential character. Moreover, this essential element is the spirit, which holds together
the body. But composite bodies are those which are not made up of a single element, as a ship or
a house, for the one 1s constructed of many planks and the other of many stones ; and there are bodies
made up of different elements, as a chorus. But even the latter are of two kinds, differing from each
other ; for some are made up of particular bodies, whose number it is easy to know, and others consist
of unlimited numbers, as the people.’
_. itis apparent that this is the source of what Pomponuus said in a law quoted in the Digest, XLI.
ili. 30, and of the statement of Paul that a statue is united by a single spint, Digest, V1. i. 23. §5, where
he likewise distinguishes between bodies formed of cohenng particles and those made up of separate
and distinct particles. Others also have used this distmction, as Philo Judaeus, On the World [= That
Godis Immuiable, vu]: ‘ The essential element is a spirit circulating within itself’ ; and again [=On the
Indestructibiltty of the World, xxiv]: ‘ The essential element 1s the spiritual bond of union, a tie not
incapable of being sundered, but difficult to break.’

See also Boethius, Arzthmetic, I [I.1], and observe that when we speak of the ‘ constituting principle’
or spirit of a people we do not use the word in its strict sense, as Conon did, but ‘ analogically ’, by a sort
of comparison such as we use when we call the people a body. Alfenus in the Diges?, V. i. 76, calls this
spirit the form of the thing.

* Aristotle in his Politics, IV. x1 [IV. xi. 3], says: ‘Government is the life of the city.’

8 Alfenus, cited [2rx] above, gives an example in the case of a ship. Also Ulpian im a law of
the Digest, VII. iv. 10, remarks: ‘ They say that the ship is the same if it has been renewed part by
pare put that it is a different thing if it has been entirely broken up and rebuilt.’ See also Dzgest,

- ni. 98. § 8.

Plutarch 3 his Theseus [xxiti= 10 C] says : ‘ The ship, equipped with thirty oars, in which Theseus
sailed with the chosen youth and returned in safety, was preserved by the Athenians down to the time
of Demetrius Phalereus. They removed timbers that were decayed with age and put in others, so that
the craft held together. In consequence the ship became a stock illustration for philosophers, engaged
in discussing the question of growth, some affirming that the ship was the same up to the end, and
others denying it.’

In this case discussed by the philosophers jurists have wisely preferred the affirmative side. Also
Tertullian, who was well acquainted with the law, says in his book Ox the Resurrection of the Flesh
[Ix]: ‘We have often observed that a ship, that has been shattered by storm or ruined by decay, is
the same after all of its parts have been repaired and restored, even though it boasts of its restoration.’
It must be understood that the keel remains, just as the word resoluta [error for dtssoluta, that is,
‘entirely broken up’] must be understood in the expression of Paul in the Dzgest, XLV. i. 83. § 5;
this is also proved by what precedes in Tertullian and what follows in Paul’s statement.

Philo Judaeus, On the World [= On the Indestructibility of the World, xxvii] says: ‘That is not
destructible of which the parts gradually perish, but that of which all the parts perish together and at the

same time.’

Dig. XLI.
ill 303
[De Animae
Procrea-
Mone, XKV
=p 1025C,
Dig Vii
23 §5,]
Achilles
Tatius, On
Araius
Seneca, On
Clemency,
Liv

Dig. V.i.
76.

Letters,
Ivii1 [22].

[xix =
p. 402A ]

Pohities,
III. 11 (III
111]

[Achilles
Tatius,
loc ct]

[On the In-

destruc-
trbtlity of
the Worla,
XXIV. ]
(xv=

Pp. 5594]

Historzes,
III [xxiv]

[Annals,
Il. lv]

On the Law of War and Peace [Book II

312

Heraclitus, as cited by Plato in the Cratylus and by Seneca in the
passage just quoted, said* that we do not twice descend the same
river. [his saying Seneca rightly corrects thus: ‘ The name of the
river remains the same, but the water has been borne along.’ Like-
wise also, in comparing a river to a people, Aristotle said that rivers
bear the same name, though different water is always replacing that
which is fowing on. Again, it is not an empty name merely that
remains, but ‘the essential character’, which Conon defines as an
‘inherent bodily character ’, Philo as a ‘spiritual bond ’, and the Latins
as a spirit.

In this sense, then, as Alfenus, and Plutarch On the Delayed
Vengeance of the Deity, say, a people is considered the same at this time
as it was one hundred years ago, although not one of the men of
that time is now alive. A people survives ‘so long as that common
union, which makes a people and binds it together with mutual
bonds, preserves its unity’; such are the words of the same Plutarch
in this connexion. Hence arose the custom of speech, that in address-
ing a people which now is we ascribe to it what happened to the
same people many ages ago. ‘This it is possible to observe not only
in the historians but also in the Scriptures,” as in Mark (x. 3), John
(vi. 32; vii. 19, 22), Acts (vil. 38). Thus in Tacitus Antonius Primus
serving under Vespasian reminds the soldiers of the third legion of
their former exploits, how ‘under Marc Antony they had defeated
the Parthians, under Corbulo, the Armenians.’

3. Asaresult of hatred, then, and not in accordance with truth,
in the writings of the same Tacitus, Piso says that the Athenians of
his time are not Athenians,* since these had been destroyed by so
many slaughterings, but are the offscouring of the nations. That
influx from abroad had perhaps lessened their prestige somewhat,
but it had not made them a different people. Piso, in fact, was not
unaware of this, since he reproached those very Athenians of his
own time with their ancient defeats by the Macedonians and their
cruelty to their fellow citizens. But while the change in the individual
members does not cause a people to cease to be what it was even for
a thousand years or more, yet it cannot be denied that a people
may cease to exist. The extinction of a people, moreover, may be
brought about in two ways: either by the destruction of the body,
or by the destruction of that form or spirit which I have mentioned.

IV .—Such extinction takes place tf the essential parts have been destroyed
A body perishes if the parts without which the body cannot

1 Also Epicharmus, quoted by Diogenes Laertius [ITI. xi].
> Add Matthew, xxl. 35 ; Acts, iii. 22.
§ Julian in his Mzsopogon [p. 348 B] speaks to the contrary concerning the same Athenians.

Chap. IX] When Sovereigniy or Ownership Ceases 313
exist have at the same time been destroyed, or if the corporate
bond of union has been destroyed.

Under the first type of destruction we must class the engulfing
of peoples by the sea, as the peoples of Atlantis mentioned by Plato,
and others ? by Tertullian; likewise the destruction of peoples that
an earthquake or a chasm in the earth has swallowed up, of which
there are examples in Seneca, Ammianus Marcellinus, and elsewhere ;
and also of those who have voluntarily destroyed themselves, as the
Sidonians and Saguntines. Pliny says that fifty-three [207] peoples
of ancient Latium had perished without leaving a trace.

What if there are so few survivors of such a people that they
cannot constitute a people? It will be possible for the ownership of
the property, which the people possessed as private citizens, still to
remain in their hands; but not what belonged to the people as a
people. The same principle holds true also in regard to a corporation.

V.—The rights of a people are extinguished when the body of the people
as a whole 1s broken up

The body politic of a people is broken up if by reason of pestilence
or rebellion the citizens withdraw from the association of their own
accord, or if they are so scattered by force * that they cannot unite
together again, as sometimes happens in wars.

VI.—The rights of a people are extinguished when the form of orgamza-
tion, under which the people exists, 1s destroyed

A people’s form of organization is lost when its entire or full
enjoyment of common rights has been taken away. In such cases the
individual citizens may also become subject to personal slavery ; thus,
the people of Mycenae were sold by the Argives, the Olynthians by
Philip, the inhabitants of Thebes by Alexander, and the Bruttians
were made public slaves by the Romans. Citizens, again, may be
deprived of the right of government, though personal liberty is left
to them. So Livy tells us that in regard to Capua the Romans
decided that it should be inhabited as a city, but that there should
be no body politic, no senate, no council of the common people, and
no magistrates, but that the population should be without a public
assembly and without authority, and that a prefect sent from Rome

1 Servius in the Fuldensian Excerpts, On the Aeneid, Book I [I. 70], says: ‘An army is destroyed
in two ways, either by slaughter or by dispersion.’

2 Myus, mentioned by Vitruvius [IV. i] ; Helice and Buris, by Pausanias [VII. xxv], Strabo [I. iit.
18], Seneca, Natural Questions, V. xxi and xxxii [VI. xxiii and xxxii], and in the Anthology.

3 Philo, in his book On the World already quoted [On the Indestructibility of the World, xvi),
says: ‘ Bodies, which are made up of separate units, as flocks, herds, choruses, armies, perish b
separation and dispersion, just as truly as bodies which are formed of members firmly knit together.’

Add what was said above [p. 311, note 3] concerning a ship.

(Critias,
111 =
p. 108 £.]

On the
Pallum

[1 =p. 39].
Letters,
xc11 [xci.
gl.
Austory,
XVII

(vil. 13].
Diodorus,
Library,
XVI

[xlv. 4 ff.].
[Nat Hist ,
IiI v 70]
Deg. III.
iv. 7.§ 2;
XLIX,

xV. Iz.

§ 13.

Aristotle,
Politics,
III. in
(III. ii].
(Diodorus
Siculus,
XI lxv.
5; XVI.
lni. 35
XVII. xiv;
Aulus
Gellius,

X. ili. rg.]

XXVI
[xvi.9-z0].

Cice10o,

J gaiuist
Rullus, I
[v1 19]
Theodoret,
Eccles1as-
tical. His-
tory, V 1x
[xx]; Zo-
naras, On”
V alents-
nian and
Theodo-
sius [XIII
xvill] 5
Herodian,
Hat, V
[III. vi 9].
Florus,

IT. xv.

Plutarch,
Agesilaus
[XxxV =
616 A].

Politics,
Ti, in
(TIT. ivi

=P. 341].

314 On the Law of War and Peace
should administer justice." And so Cicero in his first speech before
the people Against Rullus says that not even the shadow of statehood *
had been left to Capua. The same thing should be said of peoples
that have been reduced to the form of a province, and likewise of
those that have been subjected to the sway of another people. Thus
Byzantium was made subject to Perinthus by Severus,*® and Antioch
to Laodicea * by Theodosius.

[Book ITI

VII. —The rights of a people are not extinguished by reason of migration

If, however, a people has migrated, either of its own accord,
because of famine or other misfortunes, or under compulsion, as the
people of Carthage did in the third Punic war, the people does not
cease to exist,® provided the outward form, which I have mentioned,
remains ; and surely a people does not cease to exist if only the walls
of its city have been levelled. And so when the Spartans refused to
allow the Messenians to take oath to maintain the peace of Greece,
because the walls of their city had been destroyed, the case was
decided against them by the common assembly of the allies.

VIII.—Such rights are not extinguished by a change of government ;
and herein also the question of what 1s due to a new king or to a
liberated people is treated

1. Furthermore, it makes no difference in what way a people is
governed, whether by royal power, or by an aristocracy, or by popular
government. The Roman people, in fact, is the same under kings,
consuls, and emperors. Nay more, though the king rules with absolute
power, the people will be the same as it was before, when it was its
own master, provided that the king governs it as the head of that
people and not of another. For the sovereign power, which resides
in the king as the head, remains in the people as the whole body, of
which the head is a part; and so when the king, if elective, has
died, or the family of the king has become extinct, the sovereign
power reverts to the people, as I have shown above.

There is no reason why any one at this point should cite Aristotle
against me. Aristotle declares that the state does not remain the same

1 See Festus, under the word praefectura [p. 233M]; Velleius, II [I]. xliv. 4]: ‘ Their rights
were restored to them about 152 years after Capua had been reduced by the Romans to the form of
a prefecture in the course of the Punic war.’

Add the Wlustrations, which are given in the text and notes above, I. iu. 8.

* The nght to have a senate Severus gave to the Alexandnans, who had lived under the adminis-
ization of a judge without a public council.

* See Xiphilinus, in the life of Severus [Dio Cassius, LXXIV. xiv]; Herodian, III [TIT. vi. 9]. Add
what is said below in this book, II. xxi. 7.

} [212] See Zonaras [XTIT. xvini=u1, p. 36 4]

° As the inhabitants of Gela were transported to Phintias; Diodorus Siculus, in the Excerpia
Petresciana [=XXII. i. 2].

Chap. IX] When Sovereignty or Ownership Ceases 315

when the form of government is changed ; just as a melody, he says,
does not remain the same when it is transposed from the Dorian to
the Phrygian mode.

2. We must, in fact, recognize that there may be several forms
of a single artificial thing, as in a legion there is one form of organiza-
tion through which it is governed, and another by means of which
it fights. Thus one form of the state is the association of law and
government, another the relation to each other of those parts which
rule and are ruled. The political scientist has under consideration
the latter, the jurist the former. And this did not escape the notice
of Aristotle, when he added: ‘ But whether, after a change in the
form of government, the debts ought to be paid or not, is another
question.” ‘That is, the question of payment of debts belongs to
a different science, which Aristotle does not confuse with political
science, lest he should. himself commit the fault which he censures in
others, ‘ of jumping from one subject of discussion to another.’

3. A people by making itself subject to a king does not [208]
cease to owe the money which it owed when free. For it is the same
people, and it retains its ownership of all public property; it even
retains its sovereignty over itself, although this must now be exercised
not by the body, but by the head.

From this principle is derived the answer to the question some-
times actually raised as to the place which ought to be occupied in
assemblies by one who has acquired the sovereignty over a people
previously free. Of course he is entitled to the same place which the
people itself had occupied. Thus in the Amphictyonic Council
Philip of Macedon received the place of the Phoceans. In like manner
a free people will take the place which had belonged to their king.

IX.—W hat becomes of such rights if peoples are joined together ?

Whenever two peoples are united,’ their rights will not be lost
but will be shared in common. Thus the rights first of the Sabines,
and then of the Albans, were taken over by the Romans, and the
peoples were made into a single state, as Livy says. The same prin-
ciple should be applied in the case of kingdoms which are united
not by treaty or by the fact merely that they have a king in common,
but in a true union.

X.—W hat becomes of such rights if a people 1s divided ?

On the contrary, it may happen that what had been a single
state may be divided, either by mutual consent or by the violence

1 As the Celtiberians were formed from the Celts and the Iberians, according to Diodorus Siculus
[V. xxxiii. 2]. If you have leisure, on this subject, see Reinking, I, class Iv, xvil, no. 95, and the cita-
tions there made.

[Polutzcs,
IIT. in.]

I [xii .5 ff.;
XXVI1. 7;
xxx. If.]

I [xxxtv ,
XXV11].

III fx, r).

316 On the Law of War and Peace [Book II

of war, as the Persian Empire was divided among the successors of
Alexander. When such a division takes place several sovereignties
exist in the place of one, with their respective rights over the individual
parts. In such cases, whatever common property there was will
have to be either administered in common, or divided #70 rata.

The same reasoning must apply also in the separation of a people
which occurs by mutual consent in sending out colonies. For thus
also a new people arises, possessed of its own rights. The colonists,
in fact, are not sent out as slaves, but possessed of equal rights,’ as
Thucydides says. The same author relates that the Corinthians sent
a second colony to Epidamnus with equal rights. According to
Dionysius of Halicarnassus, king Tullus said: ‘ We think it neither
true nor just that mother cities should rule their colonies as if by

the law of nature.’

XI.—Who is now possessor of the rights which once belonged to the
Roman Empire, in so far as they do not appear to have been
alienated ?

1. Among historians and jurists there is also the notable question,
who is now the possessor of those rights which once belonged to the
Roman Empire. Many hold that these now belong to the kingdom
of Germany as it was formerly called, or the Empire (it makes no
difference by what name you call it); and they imagine some sort of
a substitution of the latter empire in the place of the former, although
it is nevertheless well known that Great Germany, or Germany
beyond the Rhine, was outside the territory of the Roman Empire
during the most of its existence.

It seems to me that a changing over or transfer ought not to be
assumed, unless it is supported by sure proofs. I say, therefore, that
the Roman people is the same that it formerly was, although mingled
with an increment of foreigners, and that the empire has remained
within it as if in the body in which it once existed and lived. For
whatever the Roman people in former times could rightfully do,
before the emperors ruled, it had the same right to do after each
emperor had died, and so long as there was not yet a successor.
Besides, the election of the emperor belonged to the people, and
was sometimes made by the people in person, or through the senate.”

1 Nevertheless the respect due to the parent city, of which I have treated in I. iii. 21, should be
preserved. Cf. Curtius, IV [IV. ii. ro]: ‘The Tyrians founded Carthage and were always cherished
as parents.’

4 Examples are commonly found of elections made or ratified by the senate, as of Hadrian, Per
tinax, Julian, Severus, Macrinus, Maximinus, Balbinus, Aurelian, Tacitus, Florian, Probus, mentioned
by Dio Cassius, Spartianus, Capitolmus, Lampridius, and Vopiscus.

Before Aurelian the Empire was without a head for six months and the soldiers urged the senate
again and again to make a choice. In Capitolmus [Scriptores Historiae Augustae, Albinus, xiii] there

Chap. IX] When Sovereignty or Ownership Ceases 317

Moreover, the elections, which were made by different groups of
legions, were not rendered valid by the right of the legions (for there
could not be any sure right in an empty name) but by [209] the
approval of the people.

2. ‘The fact that all the inhabitants of the Roman Empire were
made Roman citizens by the constitution of Antoninus is not incon-
sistent with this view. By that constitution the subjects of the
Roman Empire, in fact, obtained the rights which formerly the
Roman colonies, municipal towns, and provinces had possessed, so
that they both shared the honours and enjoyed the rights of Roman
citizens. But the source of sovereign power * did not reside in the
other peoples in the same way as in the people of the city of Rome.
This it was not in the power of the emperors to confer; they were,
in fact, unable to change the mode and basis of holding the sovereign
power.

The right of the Roman people was in no degree diminished by
the fact that afterward the emperors preferred to reside in Con-
stantinople rather than in Rome. But even then the whole people
had to ratify the election made by the part which lived in Con-
stantinople; and for this reason Claudian called the Byzantines
Roman citizens. The Roman people furthermore kept a far from
unimportant survival of its right in the pre-eminence of the city,”
the distinction of the consulship,? and other privileges. Therefore

is a noteworthy letter [speech] of Albinus on the rights of the senate, and a letter of the senate in behalf
of the Gordian: [Maxzminz, xv]. Macrinus [Maertnus, vi. 5 f.] saysin a speech: ‘ They have conferred
the imperial power upon me. I accept the defence of it for the time being, conscript fathers, and I shall
retain the sovereignty, if you also shall ratify what the soldiers have voted.’

Tacitus, the Emperor, says in Vopiscus’ life of Probus [Scrptores Historiae Augustae, Probus, vii] :
‘ The senate, in fact, has made me emperor in accordance with the wise choice of the army.’ According
to the same Vopiscus [2b7d., x1] Probus says: ‘ The action taken last year, Senators, was lawful and
in due form, with the result that your kindly choice gave to the world an emperor, and indeed from
among you, who are and always have been the rulers of the world, and so will be to your latest
descendants.’ Majormus [Majonanus] says to the senate in the Novels [IV. ui]: ‘Senators, know
that I have been made emperor by the choice of your election and by the proclamation of the invincible
army.’

1 According to Herodian [VII. vii. 5] the senate urges the provinces in behalf of Gordian ‘ to obey
the Romans, who have possessed the sovereignty from ancient times, to whom by ancient right the
other nations manifest love and obedience.’

In the same author [VIII. vii. 5] Maximus says in an address to the soldiers: ‘ For this Empire is
not the property of a single person but from ancient times the common possession of the Roman people.
In this city the fortune of the principate has been placed; but I have been chosen along with you,
soldiers, that we may care for and protect whatsoever belongs to the Empire.’ Claudian says of
Rome [On the Consulshtp of Sttlicho, IIT. 136 £.] :

Parent of arms and laws, that over all
Her sway extends.

2 Zonaras says [XIII. iii] that ‘ pre-eminence’ was preserved at Rome, because from that place the
Empire had extended. Ammianus in his fourteenth book [XIV. vi. 6] says of Rome: ‘ Nevertheless
by all the parts of the Empire, however many in number, she is looked upon as mistress and queen.’
Claudian [On the Sixth Consulshtp of Honorius, 407-8] says of Honortus, residing at Ravenna :

How long, I pray, shall power from home be exiled,
And sovereignty from its own borders wander ?P

’ For one of the consuls was from the city of Rome, and he took precedence of the other ; Procopius,

Secret Htstory [xxvi].

[Against
Euiropus,
II. 136).

318 On the Law of War and Peace [Book II

whatever right the inhabitants of Constantinople could have had in
choosing a Roman emperor was dependent on the will of the Roman
people. To pass by other considerations when, contrary to the will
and custom of the Roman people’, the inhabitants of Constantinople
had submitted to the rule of a woman, Irene,” the Roman people
very properly revoked its expressed or implied acceptance and in-
dependently chose an emperor and proclaimed his election by the
utterance of the first citizen, that is, the bishop. Such was the
procedure also in the Jewish state; when there was no king, the
person of the high priest ranked first.

3. This election, moreover, was personal in the case of Charle-
magne and certain of his successors, who carefully distinguished the
right of sovereignty which they had over the Franks and also over
the Lombards from the right of sovereignty which they had over
the Romans, as if this had been acquired on new grounds.’ Later,
to be sure, the Franks were divided into the western Franks, who
now possess France, and the eastern, who hold Germany or Alemania *;
for they were called the two kingdoms of the Franks by Otto of
Freising. When now the eastern Franks had begun to choose their
kings by election (for up to this time the succession of the Frankish
kings, though implying agnate succession, had not depended so much
on fixed rights as on the choice by the people),° the Roman people
decided not to choose its own king, but to accept the king whom the
Germans had elected, in order that it might have a more dependable
assurance of protection. Nevertheless it did reserve for itself a measure
of right to approve or disapprove of the election, in so far as this
affected the Roman people.®

4. Such approval, furthermore, was customarily proclaimed by
the bishop and solemnly attested by a special coronation. In con-

1 [213] Nero in the fourteenth book of the Annals of Tacitus [XIV. xi] brings charges against
his mother, ‘ because she had hoped for a share in the government, and that the pretorlan cohorts
would take the oath of allegiance to a woman, which would be a disgrace 10 senate and people’. Priscus
says in the Selectzons on Embassies |Byz. Corpus, vol. XIV, p. 151]: ‘The principate of the Roman
Empire belongs not to women but to men.’

Lampniduus says after the death of Elagabalus [Scnptores Historiae Augustae, Helzogabalus, xviil.
3]: ‘Every precaution was taken that a woman should never enter the senate and that the lite of the
man who should accomplish such an act should be consecrated and devoted to the gods of the under-
world.’ Trebelhus Pollio [sdem, Thirty Tyrants, xxvu] says to Herennianus [Herennius]: ‘ Zenobia,
having usurped the sovereign power, held control of the state longer than was fitting for a woman.’

? They took oath to her, as Zonaras says [XV. x1= II, 117 B].

9 See the Council of Pont-Yon in the Capztularies of Charles the Bald [Monumenia Germaniae
Historica, Leges, I, 532]. Also Paolo Emilio, Book III, on Charlemagne.

“ See Wittekind, Book I, and the notes of Meibom, as also the treaty between Charles and Henry
according to the Capttulares of Charles the Bald, with the notes of the very wise and learned man,
Jacques Sirmond. Wipo calls ihe western part of the kingdom of the Franks the Latin kingdom,
because a romance tongue was in use there, as it 1s to-day also, while the nations across the Rhine used
the German language.

® This was noted by Priscus in the Selecitons on Embasstes (= Byz. Corp., vol. XIV, p. 152) and
by Regino on the year 816. See the will of Charlemagne: ‘Now if any one of these three sons should

ave a son.’

* This is an absolute fact, openly attested by Wipo in the life of Conrad Salicus.

Chap. IX] When Sovereignty or Ownership Ceases 319

sequence the one that has been chosen as king by the seven electors
who represent the whole of Germany has the right to rule the Germans
in accordance with their customs; but it is by the approval of the
Roman people that the same king becomes the Roman king or Roman
emperor, or, as historians often style him, king of the kingdom of
Italy." Under that title he holds subject to his sway all possessions
that belonged to the Roman people, in so far as these have not passed
under the rule of other peoples by treaties, or by occupation of
abandoned territory, or by right of conquest. 3

From this it can easily be understood also by what right, in the
case Of a vacancy in the Empire, the Bishop of Rome assigns in-
vestitures of fiefs of the Roman Empire.?- The reason is that he holds
the primacy among the Roman people who are at such a time free.
The business of a corporate body is ordinarily administered in the
name of that body by its leading person,® as I have said elsewhere.
In fact [210] the principle laid down by Cynus and Rayner that,
if the Roman Emperor is prevented from discharging the duties of
his office. by disease or captivity, a substitute can be appointed for
him by the Roman people itself, is by no means unsound.

XII.—c oncerning the rights of heirs |
It is a clear legal principle that the person of the heir is con-

sidered the same as the person of the deceased in all that concerns
the continuation of ownership of both public and private property.

XIII.— Concerning she rights of the conqueror |
In what degree the conqueror succeeds to the rights of the
conquered will.be discussed below, in treating the effects of war. _

1 Thus the Pope in the excommunication of Henry expressly names-the kingdom of the Germans
and of Italy. See Otto’s privilegium granted by Alderamus as published by Meibom after the Saxonica
of Wittekind. See also Krantz, Saxonica, V [V. xiii], on the oath of Otto, which Gratian cites, Decretum,
I. Lxiii [I. xiii. 33]: ‘I will make no decree or order in Rome about all the matters which belong to
you (the Pope) and to the Roman people, without your advice.’ : a

@ Just as in the German Empire the Elector Palatine and the Elector of Saxony are substitutes
for the Emperor in separate parts. of the realm. See De Serres, Life of Louis XII [p. 505, ed. 1627], °

* Also in Poland during an interregnum ‘the Archbishop of Gnesen takes the place of the king ’* and '
‘sits on the royal seat’, as if first among the orders; Philip Honorius in the dissertation On ihe
Kingdom of Poland [of Horatius Spanorchius, in Honorius’ Thesaurus Politicus, 1617 ed.,p.430].

1569-27 . Z

[214] CHAPTER X
ON THE OBLIGATION WHICH ARISES FROM OWNERSHIP

I.—The origin and nature of the obligation to restore the property of
another to tts owner

1. Havine explained, so far as our purpose requires, the right
which belongs to us over persons or over things, we must see also
what obligation in consequence rests upon us. Such obligation,
moreover, arises either from things which exist or from things which
do not exist. Under the term things I shall now include persons,

so far as may be convenient for us.

2. From things which exist there arises the obligation by which
a person, who has property of mine in his possession, is bound to do
what he can to restore it to my control.1 He is bound, I say, to do
what he can; for there is no obligation to do what is impossible, or
even to return the property at his own expense. The possessor is,
however, under obligation to make the possession known, in order that
the other may recover his own. Just as, in the state of community
ownership, a certain equality had to be observed, that one might
have the use of the common property as well as another, so after the
introduction of property ownership a kind of mutual arrangement
was entered into between owners, that one who had another’s pro-

1 Among the positive commands of the law given to the Jews is this, that a thing which has been
found should be restored to its owner. Precepts Bidding, 74. This is based not only on natural
justice [218] but also on Deuteronomy, xxii.1. Chrysostom, On First Coriniuans, v. 8 [Homily
XV, v], says: ‘Even the laws of this world, which constitute mghtfor all except the plunderer and
the thief, approve of our demanding our possessions from those who have them, no matter of what
sort they are.’ Jerome [Origen], On Leviticus [vi, Homily IV], says : ‘ Many think that they are free
from sin if they retain property of another which they have found ; and they say, “God gave 1t to
me; to whom do I have to retunit?’’ Theyshould know that this sin is similar to robbery, if one
does not return a thing found.’

Augustine, in his On the Words of the Apostle, XIX [=Sermones de Scripturts, clxxviii. 9], says:
‘If you have found anything and have not returned it, you have stolen it.’ Later he adds: ‘The
one who refuses to return another’s property would also steal it, if he could.’ Gratian has cited both
these passages in Decreium, II. xiv. 5 [II. xiv. 5. 6]. Augustine, On Faith and Works [vii], likewise
says: ‘ Just as by the law of real property a man is very properly called the mghtful possessor so
long as he is in ignorance that he is in possession of another’s estate, but when he has found this out
and has not withdrawn from the other’s property, then he will be accounted a possessor in bad faith,
then will he justly be called an unjust possessor.’ This pomt is covered also in the Law of the Visigoths,
IX. i. 9. Sometimes for grave reasons municipal law expands and increases this obligation, as the
Law of the Burgundzans (I. vi) in the case of a runaway slave.

Property which Domitian had unjustly taken from the owners, Nerva ordered to be restored ;
this is recorded by Xiphilinus [Nerva, 227= Dio Cassius, LXVIII. ii]. According to Procopius, Gothtc
War, II [II. vi], Belisarms says: ‘I at any rate think that the person who willingly retains another’s
property and does not restore it is in the same class with the thief.’

320

Chap.X] On the Obligation which arises from Ownership 321

perty in his possession should restore it to the owner. If, in fact,
the force of ownership had been limited to this, that property should
be restored to the owner only on demand, the right of ownership
would have been too weak, and the protection of property too
expensive.

3. No consideration is here given to the question, whether
a person has obtained possession of the property honestly or dis-
honestly ; for the obligation arising from a wrong is one thing, and
that from possession of property another. ‘The Lacedaemonians
cleared themselves from the crime of Phoebidas, who contrary to
the treaty had captured the Cadmeia, the citadel of Thebes, by
condemning him; but they were themselves accused of injustice ’*
because they nevertheless kept possession of the citadel. Xenophon
remarks that this outstanding act of injustice was punished by a
special divine providence. So Cicero accused Marcus Crassus and
Quintus Hortensius because they had retained their shares of an
inheritance in accordance with a will which had been forged, though
they were not to blame for the forgery.

4. Now inasmuch as this obligation is binding upon all men, as
if by a universal agreement, and creates a certain right for the owner
of property, the result follows that individual agreements, as being
later in point of time, are thereby restricted. This throws light on
the passage of Tryphoninus :

Property stolen from me was deposited by a robber with Seius, who was ignorant of
the crime of the depositor. Ought Seius to restore the property to the robber, or to me?
If we take into account only the depositor and the recipient, good faith requires that the
depositor receive the property which he has deposited. If we consider the equity of the
whole matter, which includes all the persons having an interest in the transaction, [215]
the property must be restored to me, from whom it was most wrongfully stolen.

He rightly adds:

And I agree that that is justice which gives to each man his own in such a way that
it is not taken away from him in response to a more just demand of any other person.

Beyond doubt the demand of the owner is more just according
to that right which we have said is as old as ownership itself. And
from this is derived the following rule, which is found in the same
Tryphoninus, that a person, who in ignorance has accepted his own
property on deposit, is not bound to return it. Furthermore the
question raised by the same author a little previously in regard to
goods deposited by a person whose property has been confiscated
must be decided in accordance with the principle stated rather

1 So Diodorus judges, Book XV [XV. xx] Plutarch in his Agestlaus [xxili= 609 B] says: ‘ He
persuaded the state to transfer the blame to itself by retaining the Cadmean citadel.’ Similar was
the deed of Bayezid in regard to Nicopolis, recorded by Leunclavius, Book VI.

Z2

Diodorus,
XV [xx.2]
Plutarch,
Pelopidas
[v=280B].
On the
Training
of Cyrus,
V [Greek
History,

V iv. gi.
On Duties,
III [xviii.
73].

Dogest,
XVI, ini.
31. § I.

Digest,
XXV.

li. 25.
Digest,
XLVII,.
it. 430 § 9.

Cajetan,
On II.u,
62, art. 6;
Dig V.
11. 20. § 6.

On Dutves,
III [v az
and 22].

Dig. L.
xv1ll 206,
and the
commen-
tators
thereon.

Digest,
XIV. 111,
17. § 4.

322 On the Law of War and Peace [Book II

than according to what Tryphoninus says about the utility of
punishments. . .

5. As regards the nature of ownership, it makes no difference
whether ownership arises from the universal principles of law or from
the law of a particular country. Ownership, in fact, always carries
with it its natural implications, and among these is the obligation
on the part of every possessor to restore property to its owner. This
is affirmed by Marcianus when he says ‘ that by universal principles of
law suit can be entered for property against those who possess it
wrongfully.’ From this source arises the rule laid down by Ulpian,
that the finder of another’s property is under such obligation to
return it to the owner that hes not even to ask ‘a reward’ for finding
it. Moreover, the income of the property also should be restored,
after deducting expenses.

Il.—The obligation to restore any gain that a person has made from
another's property ; this ts illustrated by many examples

1. As regards property no longer in existence, mankind has
adopted this rule, that if you have been made richer through posses-
sion of my property, while I did not have possession of it, you are
under obligation to the extent that you have been enriched. The
reason is that in the degree that you have been enriched from my
property you have more while I have less. Now property ownership
was introduced for the purpose of preserving equality to this end, in
fact, that each should have his own. ‘It is contrary to nature’,
says Cicero, ‘ that a man should increase his own advantage to the
disadvantage of another man.’ In another passage he adds: ‘ Nature
does not suffer this, that we should increase our means, riches, and
resources from the spoils of others.’

2. So great is the justice of this maxim, that in accordance
with it jurists decide many cases outside the narrow purview of the
laws, always appealing to it as most obviously fair. A man who has
placed a servant in charge of business is bound by the act of the
servant, unless he has given warning that the servant should not be
trusted; but even though such a warning has been given, in case
the servant has made personal gain under an agreement, or it has
been turned to the profit of the master, action for fraud will be
admissible. ‘The man who seeks gain from another’s loss’, says
Proculus, ‘seems to act with fraudulent intent,’ and in this con-
nexion the word fraudulent includes everything which 1s contrary to
natural law and. equity.

1 Cassiodorus, [Vartae,] X.xvi, says: ‘In our times we consider it a hostile act for one to rejoice in
the misfortune of another,’

Chap.X] On the Obligation which arises from Ownership 323

If at the mother’s request a person has given bail for the defender
of her son, he has no right of action against the defender under the
agreement, nor has he, properly speaking, acted on behalf of the
defender, because he furnished bail out of consideration for the mother.
Nevertheless, according to the view of Papinian, such a person will
have right of action (in equity, unless I am mistaken) against the
defender for services rendered, because the defender was freed by
the money of the bondsman.

Similarly a wife, who has given to her husband money, which
she could collect by law, is entitled to a civil action for restitution,
or an action in equity for the thing purchased with the money ; for,
says Ulpian, it cannot be denied that the husband is richer in con-
sequence, and the question is what of his wife’s property he has in
his possession.

If you have spent money, which my slave stole from me, thinking
that it was his, I am entitled to an action for recovery against you
on that account, just as if my property had come into your possession
without a legal title.

According to the Roman law wards are not bound to repay
loans ; nevertheless an action in equity will lie if the ward has thereby
become richer. Again, if a debtor has pawned another’s property
and the creditor has sold it, the debtor is released, as regards his
debt to the creditor, to the amount of the price received. The
reason is, Tryphoninus says, that no matter what [216] the obliga-
tion is, it is more just that the price received through the instru-
mentality of the debtor should profit him than bring gain to the
creditor. The debtor, however, will be liable to the purchaser, that
he may not seek gain for himself from another’s loss. For even if
the creditor had received from the possessor income in excess of
interest, he would be under obligation to place all the excess income
to the debtor’s credit.

Similarly, if you have had dealings with my debtor, thinking
that he was in debt to another and not to me, and have borrowed
money from him, this you are bound to pay to me, not because
I have loaned the money to you (for such a transaction could not
be consummated except between parties to an agreement), but
because it is fair and right that my money, which has come into
your possession, should be restored to me.

3. The later jurists rightly extend these principles to analogous
cases. For example, a man, whose goods have been sold on his non-
appearance, is entitled to the money received from his property, on
properly filing an exception to the action. Another case is that
a person who has loaned money to a father for the purpose of sup-
porting a son, in case the father had become insolvent, would have

Digest,
XVI. i. 7.

Digest,
XXIV,
1 55.

Digest,
XTX i. 30.
pr.

Digest,
XIII.

V1. 3.

Dzgesi,
XX ~V. T2-

§ I.

Deg. XTI.
i. 32.

Accursius,
On D1g.,
XX. Vv. 12.

Jason, On
Dig., XII.
i. 32.

Soto, IV.
Vil, art 2;
Covar-
Tuvias, On
Sext, V
ult 4,
pt.u, §1;
Sylvester,
word resit-
tuizo, no 3,
qu 6;
Medina,
De Con-
tractibus,
qu 1X0;
Lessius,
II, xiv ;
Navarrus,
XV11, M0. 7.

Suetonius,
(Caligula, ]
xvi.

324 On the Law of War and Peace [Book II

the right of action against the son, when the son should have posses-
sion of his mother’s property.

If the two rules stated have been rightly understood, it will not
be difficult to reply to the questions which are commonly raised by
jurists and by theologians who lay down rules for the tribunal of
conscience.

II].—That a person who has honestly come into possession of another's
property 1s not bound to make restitution, uf the property has perished

In the first place it is clear that a person who is honestly in
possession of a thing does not have to make restitution if the thing
has perished. In such a case the thing itself is not in his possession,
and he has not received gain from it. The dishonest possessor will
be liable for his own wrongdoing in addition to accounting for the

property.

IV.—That such a possessor of another's property 1s bound to restore the
income that still rematns

Secondly, a possessor in good faith is bound to restore any income
of the property that still remains. 1 speak of income from the pro-
perty ; for the income from the possessor’s industry is not due to
the property, even if it could not be obtained without the property.

The reason for this obligation arises from ownership. For the
person who is the owner of a thing is likewise naturally the owner
of the income derived from it.

V.—That such a possessor is likewise bound to make good the income
which has been used up, tf under other circumstances he would have
used an equivalent

Thirdly, the possessor in good faith is bound to make restitu-
tion for the property and its income that have been used up, pro-
vided that he would have used just as much under other conditions.
For in that degree he is judged to be richer. Thus in the beginning
of his reign Gaius Caesar Caligula receives praise because to those
to whom he restored their kingdoms he paid the income of the
intervening period.

VI.—That such a possessor is not bound to restore income which be
neglected to collect

Fourthly, a person in possession of such property is not liable
for income from it which he has neglected to collect; for he owns
neither the property nor anything in place of it.

Chap.X] On the Obligation which arises from Ownership 325

VII.—Thaz such a possessor 1s not bound to make restitution of the
property which he has given to another ; herewith a distinction

Fifthly, if such a possessor has given to another a thing which
was given to himself, he is not liable for it, unless he would have given
the same amount in any case, if he had not had this; for in that
case the sparing of his own property will be considered as a gain.

VITI.—Thaz such a possessor, again, 1s not under obligation if he has
sold a thing which he has bought ; ltkewise herewith a distinction

Sixthly, if such a possessor has sold property which he bought,
he is not bound to make restitution except in so far as he may have
sold it at a higher price. If he has sold property which was given
to him, he is bound to restore the value, unless he has squandered
the amount which he would not otherwise have wasted.

IX.—W hen a person, who in good faith has bought property of another,

can reserve the cost, or a part thereof

1. Seventhly, another man’s property, though bought in good
faith, must be restored, and the price which it cost cannot be
demanded back. This rule, it seems to me, ought to be qualified
with the proviso, ‘ except in so far as the owner in all probability
could not have recovered possession of his property without some
expenditure,’ as, for example, if the property was in the hands of
pirates.1 In such a case, then, whatever amount the owner would
willingly have expended can be deducted. Actual possession, in
fact, especially of an object difficult to recover, can be reckoned in
terms of value. In this respect, therefore, the owner is considered
to have been made richer than he was after the loss of the thing.

Consequently, although in ordinary legal usage the purchase of
one’s own property [217] is not valid, yet Paul the jurist says
that it is valid if from the beginning the agreement is that the actual
possession, which is lodged with a second party, is being bought.
I do not here make the requirement that the thing should have been

1 The following stands in Terence, Self-tormentor, Act IV, sc. v [IV. v. 42 ff.]:

But what I said to you
About the money which she owes to Bacchis,
This must be paid to her at once. Nor will you shirk
Indeed with this excuse, ‘ What matters it to me?
Then was it paid tome? Did I command? Or could
She pawn my daughter ’gainst my will?’ That which they say
Is true, Chremes: ‘The strictest law is oft the deepest wrong.’

On this see also Eugraphius. Such justice is also approved by the Jewish Rabbis and by the
Law of the Vusigoths, I. 1x. 9 and 15. Alciati, Praetermissa, TIT. xxix ; Menochio, De Praesumpttont-

bus, V. xxix, no. 26; Straccha, pt. II, no. 18.

Digest,
XLVII.
u 48. § 7.
Dig. V.
lll. 22 and
25.

Dig. XII,
1, 23.

Code, ITI.
XXX1l. 3
and 23;
Digest,
XVIII. i
16; XXI.
lu. I;
XIV.

li. 2.§ 3;
Aegidius
Regus,
disp. 31,
dub. 7,
no. 126;
Hostiensis,
On
Decretais,
V. xxxviii,
verse Quid
depraecdam
ementibus.

Digest,
XVITI.
1. 34.

Baldus
and
Castrensis,
On Dig,
AXXV,
vi

Dig XI.
vil I4.

§ 12;
Balsamom,
on canon
x of
Gregory
Thauma-
turgus
Digest,
IIT.

v. 6. § 3.
Cajetan,
On II. 1,
62. 6;
Soto, IV.
vil, art. 2;
Covarru-
vias, On
Sext, V.
ult. 4,

pt II;
Digest,
AIV.u 1.

On the Law of War and Peace [Book II

326

bought with the intention of restoring it to the owner,* for some say
that in such a case there arises a right of action for services rendered,
though this is denied by others. The right of action for services
rendered, in fact, arises from the civil law; it contains none of those
basic elements by virtue of which nature imposes an obligation. But
we are here trying to find out what the law of nature 1s.

2. Similar is what Ulpian wrote about funeral expenses, that
in this matter a just judge does not merely have in view the action
for services rendered, but rather freely follows equity, since such
a course is permitted to him by the nature of the action. Similar,
likewise, is the statement made elsewhere by the same authority,
that if any one has carried on my business without regard for my
interest, but for the sake of his own gain, and has incurred some
expense in transacting my business, he has a right of action, not
indeed for what he has expended, but for the amount by which
I am made richer. Thus also, in fact, the owners of goods, which
have been thrown overboard to lighten a ship, recover a part of the
value from the others whose property was saved by the lightening.
The reason is that the person who has saved property that otherwise
was about to perish seems in this respect to be made richer.

X.—That purchased goods, if they belong to another, cannot rightfully
be returned to the seller

Eighthly, the person who from one man has bought property
belonging to another cannot return it to the seller, in order to save
the purchase price; for the obligation of restoring it to the owner
commenced at the moment when the object came into his posses-
sion.

XI.—That a person who has in his possession property of which the
owner 15 unknown 15 not bound to turn 1t over to any one

Ninthly, the man who has in his possession property of unknown
ownership is not obliged by the law of nature to give it to the poor,
although this is a very noble act,’ and such procedure is rightly
established as a law in many places. The reason for this is that
according to the principle of ownership no one except the owner
has any right to the property. But non-existence of an owner, and
not knowing who the owner is, amount to the same thing, so far as
the man who does not know the owner is concerned.

1 Speculum Saxonicum, II. xxxvii ; Landrecht, tit. xv.
2 Chrysostom, passage cited [On First Corinthians, v. 8=Homily XV, v].

Chap. X] On the Obligation which arises from Ownership 327

XII.—T hat according to the law of nature money received for a shameful
cause, or under other circumstances for an act which one is under
obligation to perform, does not have to be restored

Tenthly, by the law of nature whatever a person has received
for a shameful cause, or for an honourable service which it was his
duty to perform, does not have to be restored. Yet such a rule has
been introduced, not undeservedly, by certain laws. The reason is
that no one is bound to render account for property unless it belongs
to another. But in the case under consideration the ownership
passed with the consent of the former owner.

The case will be different if there was illegality in the method
of receiving the money, as, for example, by extortion.1 That, in fact,
involves a different principle of obligation, with which I am not
here concerned.

XTII.—Refutation of the opinion that ownership of goods which are
weighed, counted, or measured, changes without the consent of the
owner

Let us add also this, which has been incorrectly asserted by
Medina, that the ownership of another’s property can pass to us
without the consent of the owner if the things are such as are ordinarily
reckoned by weight, number, and measure. For it is said that things
of this kind admit of substitution, that is, that they can be replaced
‘by that which is of the same kind. Even in this case, however, such
use can be made only if consent has preceded, or may be presumed
from law or custom to have preceded, as in the case of a loan; or
if the thing cannot be given back because it has been consumed.
But such a substitution of an equivalent does not take place without
consent, expressed or implied, or in the case of necessity.

1 Augustine, Letters, liv [clini. 21 ff., ed. Benedict.], has well made this distinction.

Thomas,
IT. 11. 62,
art. 5,

ad 2;
Cajetan
thereon.
Covar-
ruvias, On
Sext, V
ult 4,

pt. 11, § 2.
I Samuel,
xu. 5, 6.

De Resti-
tutione,
qu. ro.

Drg. XII.
i, rr. § 2.

I. vi; V.1.

[On
Duties,
I. x. 32.)

[219] CHAPTER XI
ON PROMISES

I.—Refutation of the opinion that by the law of nature a right does not
arise from promises

1. Tse order of our work has brought us to the obligation
which arises from promises. Here we find ourselves at once opposed
to Francois de Connan, a man of exceptional learning. For he main-
tains the opinion that according to the law of nature, as well as the
law of nations, no obligation is created by those agreements which
do not contain an exchange of considerations ; that nevertheless such
agreements are honourably carried out if only the matter 1s of such
a nature that it would have been honourable and consistent with
some other virtue to fulfil them even without the promise.

2. Furthermore in support of his opinion he brings forward
not only the statements of jurists but also these reasons, that the
individual, who rashly believes a person that makes a promise without
any reason for it, is not less at fault than the person who has made
a worthless promise ; then, that the fortunes of all would be greatly
imperilled if men should be bound by a mere promise, which pro-
ceeds often from the love of display rather than from a purpose, or
from a purpose, indeed, but a trivial and ill-considered purpose ;
finally, that it is just to leave something to the honesty of each person
and not to exact fulfilment according to the necessity of an obliga-
tion; that it is disgraceful not to fulfil promises, not because the
act is unjust, but because it reveals the worthlessness of the promise.
He cites also the testimony of Cicero, who said that promises ought
not to be kept if they are of no advantage to those to whom you
have made the promise, or if they are more harmful to you than
they are advantageous to him to whom you made the promise.

If, however, freedom of action is no longer possible, Connan
thinks that there is due to a man not the thing which was promised,
but only what is to his interest; that, for the rest, the force which
agreements have they do not derive from themselves but from the
contracts in which they are contained or to which they are added,
or from the delivery of the property ; and that under such conditions
on the one side actions lie and on the other exceptions are filed and
recovery forbidden. Those agreements, in truth, which have the
force of an obligation according to the laws, such as those containing
stipulations, and certain others, derive [z2z0] their force from the

328

Chap. XT] On Promises 329

beneficence of the laws, which have the effect of rendering obligatory
that which in itself is only honourable.

3. Now this opinion, in the general terms in which it is stated
by Connan, cannot stand. For, first, it follows therefrom that
agreements between kings and different peoples have no force so
long as no part of such agreements has been carried out, especially
In the regions where no set form of treaties or guaranteed engage-
ments exists, Again, no reason can, in fact, be found why laws, which
are a sort of common agreement of the people and are so characterized
by Aristotle and Demosthenes, should be able to add the force of
an obligation to agreements, while the desire of each individual
striving in every way to bind himself is unable to add such force,
especially in cases where the civil law offers no impediment.

There is the further fact that ownership of property can be
transferred by an act of will which is sufficiently manifest, as we
have said above. Why then, since we have equal right over our
actions and over our property, may there not be transferred to
a person also the right to transfer ownership (this right is less than
ownership itself) or the right to do something?

To these considerations we must add the accordant opinion
of wise men.’ For just as the jurists say, that nothing is so in accord
with the law of nature as that the wish of the owner should be held
valid when he desires to transfer his property to another, in like
manner it is said that nothing is so in harmony with the good faith
of mankind as that persons should keep the agreements which they
have made with one another. Thus the edict concerning a promised
payment of money, when on the part of the person who made the
promise no cause for the debt except the agreement had preceded,
is said to agree with natural justice. Paul the jurist also says that
‘the man who according to the law of nations ought to pay, and on
whose good faith we have relied ’—and here the word ‘ ought’ implies
a kind of moral necessity—‘ is indebted by the law of nature’.

Furthermore, that is not to be admitted which Connan says,
that we are considered to have relied on one’s good faith only when
action according to the agreement has commenced. For in that
passage Paul was treating of an action to recover money wrongfully
paid, which is void if the money was paid in accordance with any
agreement whatsoever, for the reason that both according to the law
of nature and according to the law of nations the obligation to pay
existed before any payment was made, though the civil law, in order
to remove occasions for lawsuits, did not furnish support.

1 The Hebrew junsts go as far as to say that in a matter not admitting of delay silence has
the force of an agreement (Baba Kama, x. 4).

Rhetortc,
I, xv.
[Against
Aristo-
geitost,
XXV. 16
= DP. 774.]
Digesi,

I. 111. 2,
(II. vi 1.)

Institutes,
Ii. i. § 40.

Dig. II.
xiv. i.

Digest,
SII. v. 1.
Dig. L.
Xvil.

84, § 1.

On Duties,

I [vi 23].

[Odes, I
xxiv. 6 f.]

On Plato
fIZ. v11]
Plato,
Republic,
I [v=p.
331 C, Dj.

330 On the Law of War and Peace [Book II

5. Cicero, moreover, in his treatise On Duties, attributed to
promises such force that he calls good faith the foundation of justice.
Horace calls her the sister of justice, while the Platonists often
designate justice by the Greek word meaning ‘ truth’, which Apuleius
has translated ‘ fidelity’. Simonides, in fact, explained that justice
consists not only in returning what had been received but also in
speaking the truth.

6. Now in order that the matter may be properly understood,
we ought carefully to distinguish the three ways of speaking concern-
ing things yet to come, which either are under our control, or, accord-
ing to our expectation, soon will be.

Il.—That bare assertion does not create a binding obligation

The first of these three modes of speech is an assertion, setting
forth a present intention concerning something in the future. That
this assertion may be free from fault, the true expression of the opinion
held at present is required, but not the continuance of that opinion.
The human mind, in fact, has not only a natural power, but also
a tight, to change its opinion. If there is anything wrong in the
change of opinion, as at times happens, this is not inherent in the
change, but comes from the subject-matter, as, for example, because
the first opinion was better.

IlI.—T hat by the law of nature a promise 1s binding, but that no legal
right 15 thereby gained by another

In the second mode of speech the intention shapes itself in respect
to future time with a sufficient manifestation to show the necessity
of continuance. This also may be called a sort of promise, which,
without regard to the civil law, is binding either absolutely or under
conditions, but [221] gives no right, properly speaking, to the
second party. In many cases it happens that a moral obligation
rests upon us, but no legal right is acquired by another, just as becomes
apparent in the duty of having mercy and showing gratitude; similar
to these is the duty of constancy or of good faith. So in the face of
such a promise the property of the one promising can be retained,
and the promisor cannot be compelled by the law of nature to keep
faith.

IV.—W hat the kind of promise 1s by which a second party acquires
a legal right

1. In the third way of making a promise, such a purpose as
that just mentioned 1s manifested by an outward sign of the intent

Chap. XT] On Promises 331

to confer the due right upon the other party. This is a perfect
promise, and has an effect similar to alienation of ownership. It is,
in fact, an introduction either to the alienation of a thing or to the
alienation of some portion of our freedom of action. To the former
category belong promises to give; to the latter, promises to perform.

A noteworthy proof of what I am saying is furnished by the
Scriptures, which teach us that God Himself, who cannot be bound
by any established law, would act contrary to His nature if He did
not make good His promises (Nehemiah, ix. 8; Hebrews, vi. 18, x. 23 ;
Furst Corinthians, i. 19 [1. 9], x. 133 First Thessalonians, v. 243 Second
Thessalonians, iii. 3; Second Timothy, ii. 13).1 From this it
follows that the obligation to perform promises arises from the
nature of immutable justice, which in its own fashion is common to
God and to all beings possessed of reason. In addition to this there
is the judgement of Solomon:

My son, if thou art become surety for thy neighbour,
If thou hast stricken thy hand with a stranger,
Thou art snared with the words of thy mouth,
Thou art taken with the words of thy mouth.

Hence a promise is called by the Jews ‘a bond’, and is compared
to a vow (Numbers, xxx. 4, 5, 6).”

Similar is the origin of the word for promise in Greek, as is
noted by Eustathius on the second book of the Zliad: ‘The one to
whom a promise is made in some way captures and binds the pro-
misor.’® The thought is also well expressed by Ovid in the second
book of the Metamorphoses, where the promisor says to the one to
whom he has given his promise, ‘ My word has become yours.’

2. With these considerations in mind we shall have no difficulty
in replying to the arguments of Connan. For the sayings of the
jurists about mere promises have in view the custom introduced by
Roman law,* which required a formality as the indispensable sign of
a deliberate intent. And we do not deny that there are similar
laws among other peoples. Seneca, when speaking of human law
and a promise not made in proper form,® says: ‘ What law obliges
us to perform what we have promised to any one? ’

1 So Baldus, On Digesi, II. xiv. 1. ;

2 In offering their vows men bargain, so to speak, with the gods; Scholiast on Horace [Odes,
III. xxix. 59]-

8 Poe. this they are called the bonds of good faith ; Donatus On the Eunuch [of Terence, I. ii. 22].

4 Paul, in his Sententiae, Book II. xiv [II. xiv. 1], cautiously says : ‘ If a bare agreement has been
entered into in regard to the interest to be paid, 1t is of no importance ; for among Roman citizens
no action arises from a bare agreement.’ oo, a

5 That is to say, not by a legally ratified pledge. Thus he distinguishes in his Letters, xix [xix. 1]:
‘No longer are they promising in regard to you, but they are giving a pledge.’ A stipulation and
a pledge are called ‘solemn verbal expressions’ by Paul, in Book V of his Sententiae [V. vil. 1], and by
Gaius under the title Concerning obligations which arise from consent [II. ix. 4].

Proverbs,
v. 1 [vl.
1-2].

[II. 349.]

(II. 5r.]

On

Bene fis,
V.x

[V. xxl

[Stobaeus,
xliv. 22.]

[On Duties,
I x 32.]

(II. xvi
27 |

[xxiv
= 6§38D.]

332 On the Law of War and Peace [Book II

3. Naturally there can be other signs of a deliberate intent
besides the formality, or whatsoever it is, that the civil law requires
in order to fix the rights of the parties. What is done without
deliberate intent does not, as we also believe, attain to the force of
an obligation, a fact which Theophrastus noted in his book on Laws.
As to that which is done deliberately, but without an intent to grant
a corresponding right to another, we declare that a right of enforce-
ment is not thereby naturally given to any one, although we admit
that there arises not only a question of honour, but also a kind of
moral necessity.

The passage taken from Cicero we shall treat below, when we
speak of the explanation of agreements; but let us now see what is
required to constitute a perfect promise.

V.—That for a perfect promise the possession of reason on the part of
the promisor is requisite ; herein the law of nature 1s distinguished

from the civil statutes in regard to minors

1. The first requisite is the use of reason; consequently the
promises of madmen, idiots, and children are null and void. A
different opinion should be held in regard to minors. Although it is
in fact believed that minors possess a rather weak judgement, as also
women, nevertheless this is not a lasting condition, and in itself it
is not sufficient to destroy the force of an action.

2. Now the time when a boy begins to employ reason cannot
be absolutely [222] fixed, but must be assumed from his daily
acts, or even from what commonly happens in any region. And so
among the Jews a promise was valid which was made by a youth
who had completed his thirteenth year, or by a girl who had completed
her twelfth. Elsewhere, not only among the Romans but also among
the Greeks, as Dio Chrysostom states in his seventy-fifth Oration,
the civil laws with good reason declare certain promises of wards
and minors void; and against certain other promises they provide
the favour of restitution.

These, however, are the special effects of municipal law, and
they therefore have nothing in common with the law of nature or
the law of nations, except that it is natural that they should be
observed in the places where they are in force. In consequence, if
a foreigner makes an agreement with a citizen, he will be bound by
the laws of the latter’s country, for the reason that a person who
makes a contract in any place is under the law of that place as a tem-
porary subject.

3. The case will be clearly different if the agreement is made
on the sea, or on a desert island, or by means of letters between

Chap. XI] On Promises

333

those who are at a distance. For such agreements are governed by
the law of nature alone, as are also the agreements of those who hold
sovereign power, in so far as this affects their sovereign right. For
in the promises which they make in their private capacity even those
laws have effect which make the act void where this is to their own
advantage, but not when the act is to their loss.

VI.—W hether a promise given under a misapprehension is by the law
of nature binding, and to what extent

1. The treatment of agreements based on a misapprehension is
perplexing enough. It is, in fact, customary to distinguish between
errors which affect the substance of the matter and those which do
not; to consider whether a contract was based on fraud or not,
whether the person with whom the contract was made was a party
to the fraud, and whether the act was one of strict justice or only
of good faith. Forin view of the diversity of these cases the writers
declare some acts void and others binding, but in such a way that
they may be annulled or changed at the choice of the one injured.

The majority of these distinctions come from the Roman law,
not only the old civil law, but also the edicts and decisions of the
praetors ; and some of them are not entirely true or accurate.

2. Now a method of ascertaining the truth according to nature
is furnished to us by the fact that as regards the force and effect of
laws nearly every one agrees that, if [the application of] a law rests
upon the presumption of a certain fact* which does not actually
obtain, then that law does not apply ; for the whole foundation for
the [application of the] law is overthrown when the truth of the
[alleged] fact fails. The decision when a law has been based on such
a presumption must be inferred from the substance, words, and
circumstances of the law.

In like manner, then, we shall say that, if a promise has been
based on a certain presumption of fact which does not so obtain,’
by the law of nature it has noforce. For the promisor did not consent
to the promise except under a certain condition which, in fact, did
not exist. To this principle should be referred the question in the
first book of Cicero’s Ou the Orator, concerning the man who, falsely
believing that his son was dead, had named another as heir.

3. If, however, the promisor was careless in investigating the
matter, or in expressing his thought, and another has suffered loss
therefrom, the promisor will be bound to make this loss good, not

1 See the example in the Code of Justinian, VI.i. 5 ; in Gail, Observations, I. ii. 7; in Dumoulin,
Ad Consuetudines Paristenses, I. xiii, gl. 3.

2 Seneca, On Benefits, IV. xxxvi [IV. xxxvi. 3]: ‘He is a madman who keeps a promise that is
based on error.’

Antoninus,
IT 1.xv1i.6.
Doctors,
On Dig.

L. xvii. 23
Covar-
Tuvias,

De Con-
tvactibus,
qu. 57;
Medina,
De Resi-
tutione,

qu. 33.

Felinus,
On
Decretals,
I 1.1,
qu. 40 ;
Baldus,
On Code,
I. xvlil.
10;
Covar-
ruvias, On
Sext, V.
ult. 2,

pt. i1.

§ 6, no. 8 ;
Navarrus,
chap. Xl,
no. 13.

[xxxvili.
175.]

Sylvestei,
word
metus,

qu 8.

N1co-
machean
Ethics,
III [a].

Sylvester,
word
restitutto,
2, dict 7;
Navarrus,
chap xvi,
no 15,
and xxu1,
no 51, §7.
Covar-
ruvias, On
Sext, V.
ult. 4,

pt. u, § 3;
no. 7

On the Law of War and Peace [Book II

334

from the force of the promise, but by reason of the loss suffered
through his fault, a subject which we shall treat below.

On the other hand, if there was an error present indeed, but the
promise was not based thereon, the action will be valid, since true
consent was not lacking. But in this case also, if the person to whom
the promise is made has by fraud caused the error, according to that
other principle of obligation he will have to make good whatever
loss the promisor has suffered in consequence of the error. If the
promise only in part was based on error, it will be valid as to the

remainder.

[223] VIIl—That a promise made under the influence of fear ts
binding, but thatthe person who caused the fear 1s under obligation

to secure the release of the promisor

1. No less involved is the discussion of that which is done
under the influence of fear. For in this case also a distinction is
ordinarily made between a fear that is very great, either in its own
nature or with reference to the person fearing, and a fear that is
slight; between a fear that is justly and one that 1s unjustly occasioned ;
again, whether the fear was caused by the one to whom the promise
is made, or by another; and also a distinction is recognized between
acts that are generous and those that are burdensome. In accordance
with these distinctions some acts are said to be void, others revocable
at the will of the promisor, and others entitling to entire restitution.
In regard to all these cases there is a great variety of opinions.

2. On the whole I accept the opinion of those who think that
the person that makes a promise under the influence of fear is bound
by it, if the municipal law, which can annul or diminish an obligation,
is not taken into consideration. For in such a case there is a consent,
not conditional, as we just now said in regard to the person in error,
but absolute. As Aristotle, in fact, has rightly stated, the man who
throws his property overboard because of the fear of shipwreck
would wish to save it conditionally, if there was no danger of a ship-
wreck. But, considering the circumstances of the place and time, he
is willing to lose his property absolutely.

At the same time, this, I think, is indubitably true, that if the
person to whom the promise is made has inspired a fear, not just
but unjust, even though slight, and the promise has resulted there-
from, he is bound to release the promisor, if the latter so wishes,
not because the promise was without force, but on account of the
damage wrongfully caused. The exception to this, which is allowed
by the law of nations, I shall explain below in its proper connexion.1

1 Jn this Book, xvii. r9, and III. xix. x [ITI. xix. rz].

Chap. XI] On Promises 335

_ 3. The rule, that some acts are made void on account of fear
inspired by a different person? from the one with whom the agree-
ment is made, belongs to municipal law, which often makes void or
revocable acts that were freely performed, but performed by a person
possessed of weak judgement. Here I wish to assume also the repeti-
tion of what I said above about the force and effect of municipal
law. What effect an oath has in strengthening promises we shall
discuss below.

VIII.—T hat, in order that a promise may be valid, that which is promised
ought to be within the power of the promisor

1. In order that a promise may be valid, the subject of it ought
to be either actually or potentially under the control of the promisor.

In the first place, then, promises to perform an act which is
in itself illegal are not valid; for no one has, and no one can have,
a right to do anything that is unlawful. A promise, as I said above,
takes its force from the power of the promisor, and does not extend
beyond. When Agesilaus was asked about a promise, he replied:
‘If it is just, well and good; but if not, I only said it, I did not
make a promise.’

2. Again, if the thing is not at present within the power of the
promisor, but may be at some future time, the validity of the promise
will be in suspense; under such circumstances the promise ought to
be thought of as made on the condition that the thing should come
into the power of the promisor. But if the condition under which
the thing can come into the power of the promisor implies his power
to obtain it, the promisor will be bound to do whatever is morally
right, in order to fulfil the promise.

3. In this class also ordinarily the civil law makes many promises
void which would naturally be binding. Such is the promise of
future marriage by a man or woman who is now married; such
also are not a few promises made by minors, or by children subject
to parental control.

IX.—W hether by the law of nature a promise to do an illegal act ts
binding ; explanation, with a distinction

At this point the question is customarily raised, whether the
promise to perform an act which by nature is morally wrong is by

1 Seneca, Controverstes, IV. xxvi [=IX. iu. 9], following nature, says: ‘Engagements made
under the pressure of violence or necessity are rescinded on this condition, if the violence and necessity
arose from the party making the engagement. For’, he says, ‘1t is not in my interest that you are
compelled, 1f you are not compelled by me. The fault should be mine, in order that the punishment
become mine.’

Cf. what is said below, III. xix. 4.

1569-27 Aa

Dog. IV.
it 14. § 3.

[Plutarch,
Apo-
thegms,

A gesilaus,
iv=p. 208
Cc, D.]

Cajetan,
On II. 14
qu. 32,
art 7.
Genesis,
XXXVI

[II. x. 11
and 12.)

336 On the Law of War and Peace [Book II

the law of nature valid; as if, for instance, something should be
promised to a man for committing a murder.

In such a case it is clear that the promise itself is criminal; for
it is made to this end, that another may be induced to commit
a crime. However, not everything which is done wrongfully loses
the effect of a right, as is apparent in the case of an extravagant gift.
But there is this difference, that when such a gift has been made
the wrongful act comes to an end; [224] for the property is left
in the hands of the recipient, without further harm. In promises
made for a wrongful cause, however, the fault continues as long as
the crime has not been committed; for during so long a time the
fulfilment of the promise as an allurement to crime carries a moral
blemish within itself, and this comes to an end only after the crime
has been committed. Hence it follows that up to this time the
effectiveness of such a promise is in suspense, just as we said above
in regard to the promising of a thing which is not in our power.
But when the crime has been committed the force of the obligation,
which from the beginning was not intrinsically lacking but was
restrained by the accompanying wrong, is revealed. An example of
this can be adduced in the case of Judah, the son of Jacob, who paid
the promised hire to Tamar, whom he thought a courtesan, as if it
were due.

Now if the injustice of the one to whom the promise was given
has furnished the occasion for it, or if there is unfairness in the con-
tract, the proper remedy is a different question, which we shall treat
presently.”

'X.—W hat should be thought of a promise made to obtain a thing which

was already due before the promise

If we look to the law of nature, what is promised for a cause
already due is not on that account the less obligatory, in the light
of the principles which we stated above in regard to the accepting
of another’s property. For a promise, even if made without a cause,
by the law of nature would be binding. But in this case also loss
through extortion, and unfairness in the contract, will have to be
made good according to the rules which are to be laid down later.

XI.—The method of making a firm and binding promise in person

As regards the mode of making a promise, that also, as we said
about the transfer of ownership, requires an external act, that is, an

* According to nature indeed, under the laws of which people then lived. Gaius Aquilius judged
otherwise according to civil law, as Valerius Maximus testifies, VIII. ii. 2.
2 In the next chapter, secs. 9, ro, and 11.

Chap. XT] On Promises 337

adequate indication of intent, for which sometimes a nod may suffice,
but more often the spoken word or writing is employed.

XIT.—The method of making a binding promise through the agency of

others ; also concerning ambassadors who exceed their powers

But we may be obligated also by another, if there is no doubt
concerning the intent with which we chose him as our agent, whether
specifically for the business in hand, or under a general appointment.
In the case of a general authorization it can happen that our agent
may obligate us by acting contrary to our desires as expressed to him
alone. In such a case two acts of will must be distinguished, one by
which we bind ourselves to ratify whatever our agent does in business
of such a nature, and the other by which we bind him not to act
except according to our directions, which are known to him but not
to others.

This distinction is to be noted with respect to those promises
which are made on behalf of kings by ambassadors, by virtue of the
power contained in their credentials, but which exceed their secret
instructions.”

XIII.—To what extent obligations incurred through the agency of ship-
captains and through business agents arise from the law of nature ;
wherein also an error of the Roman law 15 pointed out

From this we can understand also that actions associated with
the transactions of ship-captains and business agents, which, strictly
speaking, are elements of actions rather than actions, come within the
purview of the law of nature.

In this connexion it should be added that by the Roman law
the provision was wrongfully introduced that shipowners should
individually be wholly responsible for the acts of the captain. This
provision, in fact, is neither in accord with natural justice, which
considers it sufficient if individuals are responsible according to their
proportionate shares, nor is it advantageous for the public good.
Men are deterred from engaging in commerce if they are afraid that
they will be held accountable for the acts of the captain as if to any
limit.

For such reasons among the Dutch, whose commerce has greatly
flourished for a long time, that law of the Romans was not formerly,
and is not now, observed. On the contrary the principle has been

1 Servius, On the Aeneid, IX [IX. 361], commenting on the words, ‘ When plighting friendship
though absent’, says: ‘ through the agency of messengers.’
ee what is said above, chap. vi. 2. —
@ See an example in Mariana, XXVII. xviii [XXVII. xix]; another in Guicciardini, vol. 2.

Aaz

Digest,
XLI

11. 38
Gomez,
vol. II,
1x, no I

Molina,
disp. 263.

Cf. IT un,
ili. 6
(II. iu. 6]

and II iv.

Io.

Code, IV.
1.6;
Digest,
XL. ii. 4.

338 On the Law of War and Peace [Book II

established that, in respect to responsibility for the acts of the captain,
all the owners together are liable for no more than the value of the

ship and the cargo.

XIV.—That the acceptance of a promise is necessary to make 1t binding

In order that a promise may transfer a right, the acceptance of
it is no less necessary than when a transfer of ownership * is made ;
yet in this case also it is understood that a preceding request con-
tinues, and has the force of an acceptance. [225] And no obstacle
is presented to this view by the rule of the civil law concerning
promises made to the state. Nevertheless this consideration has led
some to judge that the act of promising is alone sufficient. However,
the Roman law does not say that the promise has full binding force
before the acceptance, but forbids the revocation of the promise,
in order that the acceptance * may be possible at any time.

This effect does not follow from the law of nature but merely
from the civil law. Not unlike it is the effect of the custom which
the law of nations has introduced on behalf of infants and idiots.
For in the interest of such persons, just as the law supplies the intent
to possess the things which are sought, so it supplies also the intent
to accept them.

XV.—W hether an acceptance ought to be made known to the promtsor ;
explanation, with a distinction

This question is also commonly raised, whether it is sufficient
that the acceptance be signified, or whether, in fact, the acceptance
ought also to be made known to the promisor before the promise
attains its full effect.

It is certain that a promise can be made in both ways, either
thus: ‘I desire that this be valid, if it be accepted’; or thus: ‘I
desire that this shall be valid if I shall have understood that it has
been accepted’. In promises which deal with mutual obligations
the latter meaning is assumed, but in merely generous promises it is
better that the former meaning should be believed to be present,
unless something else should appear.

XVI.—T hat a promise can be revoked if the one to whom 1t was made
died before accepting tt
Hence it follows that before acceptance a promise can be revoked
without injustice, since the right has not yet been transferred; and

1 Tertullian, speaking as one having a knowledge of law, says in his book, On Fastings, xi: ‘ When
a vow has been accepted by God, it constitutes a law for the future.’
* [228] See a similar provision in the Law of the Vtsigoths, V. ii. 6.

Chap. XT] On Promises

339

such a revocation will even be without inconsistency if in truth the
promise was made with the intent that it should begin to be binding
only after acceptance.

Furthermore a promise can be revoked if the person to whom it
was made dies before accepting it, for the reason that the acceptance
seems to have been submitted to his decision and not to that of his
heirs. It is, in fact, one thing to wish to give to a man a right which
will pass to his heirs, and another to wish to give directly to the
heirs ;* for it makes a great difference upon whom the favour is
conferred. ‘This is in accord with the response of Neratius, ‘ that it
did not seem to him that the prince would have granted to a dead
man what he had granted to the person who he thought was living.’

XVII.—W hether a promise is revoked on the death of an intermediary ;
explanation, with distinctions

1. A promise can be revoked also on the death of the person
who has been chosen to convey orally the promisor’s intent, for the
reason that the obligation had been based on his words. The situa-
tion is different in the case of a messenger who has not an instru-
mental part in the obligation, but is merely the bearer of the obligatory
instrument. Similarly letters, which indicate consent, can be carried
by any one.

Further, we must distinguish between the servant who has been
chosen to report the promise and the agent authorized to make the
promise himself. In the former case the revocation will be fully
binding, even if it be not known to the servant; but in the second
case a revocation will not be valid, because the right of promising
was dependent on the will of the representative himself, and this
will was without fault in promising, because lacking knowledge of
the revocation. So, again, in the former case a donation can be
accepted after the death of the giver,? as being completed on the
one side, though it had been subject to revocation ; and this is easier
to perceive in the case of embassies. In the second case the gift
cannot be accepted, because it was not made but merely ordered to
be made.

2. In case of doubt the conclusion is that it was the intent of
the person who directed the making of the promise that it be fulfilled,
unless some great change has occurred, such as the death of that
person. Nevertheless there may be presumptions which suggest
a different decision, and which ought to be easily admitted, so that

1 So in order to avoid ambiguity it was customary to say: ‘ to him and to his children’; Servius,
On the Aeneid, IX [IX. 299]. See also the Law of the Viszgoths, V. ii. 6.
2 See the book [Littleton’s] De Tenurts Anghiae, vu.

Dug. L.
XV11. IQI.

Digest,
XVII.

lL. 573
Clarus,
Book IV,
§ donaizo,
qu. Xil.

Digest,
XVII.
i. 15.

Code,
VITlI.
lhii. 6-

Covar-
ruvi1as,
Var Res.,
X1V, no. 16;
Dig, XL.
il. 4.

(II. xu
19 ]

Covar-
ruvias, On
Decreials,
V xi. ro,
pt. I, § 4,
13.

Alexander,
Constha,

I 204, and
Charles
Du-
moulin
thereon

On the Law of War and Peace [Book II

340

a gift which was to be given for a worthy cause may be made. In
a similar manner the question formerly discussed, as to whether
a right of action on the order to make a promise exists against the
heir, can be settled; on this matter the author of the 4d Herennium
reports that the praetor Marcus Drusus gave a decision on one side,
and Sextus Julius on the other.

XVIII.—W hether a promise is revocable after acceptance by a proxy ;
explanation, with distinctions

1. Disputes are wont to arise also in regard to an acceptance
given by proxy. In such cases we must distinguish between a promise
madetome [226] about giving something to another and a promise
conveyed in the name of the person to whom the thing is to be given.
If the promise has been made to me without regard to the question
whether I am personally interested—a distinction which was intro-
duced by the Roman law—it seems that in accepting by the law of
nature I am given the right of effecting the transfer of the right to
the other party,'if he also accepts, and in such a way that in the
meantime the promise cannot be revoked by the promisor. On the
other hand I who have received the promise may remit it. For this
opinion is not inconsistent with the law of nature, and it is particularly
in harmony with the wording of such a promise. And to me it is not
a matter of indifference whether another person receives a favour
through me.

2. Now if the promise has been conveyed in the name of the
person to whom the thing 1s to be given the distinction must be
made whether the one who accepts it has a special authorization to
accept it, or an authorization so general that such an acceptance
ought to be considered as included therein, or whether he has no
authorization whatever. Where such an authorization has preceded
I do not think that we should insist on the further inquiry whether
the person is his own master or not, as the Roman law provides ; we
should rather consider that by such an acceptance the promise is
fully completed, because consent can be transmitted and indicated
even by the agency of a servant. I am in fact considered to wish
what I have entrusted to the will of another, if he also wishes it.

When, however, there is no authorization, if another to whom
the promise was not made should with the permission of the promisor
accept it, the result will be that the promisor is not permitted to
revoke his promise until the person whom it concerns has accepted
or refused. Yet in the meantime the one who has accepted cannot
remit the promise, for in this case he was not employed to accept
a tight, but merely to bind the good faith of the promisor in fulfilling

Chap. XT] On Promises

341

the favour. And yet the situation is such that, if the promisor should
revoke his promise, he would be acting contrary to good faith and
not against the individual right of any one.

XIX.—At what time a burdensome condition can be added to a promise

From what has been said we can understand also what ought to
be thought about the addition of a burdensome condition to a pro-
mise. ‘This can, in fact, take place so long as the promise has not
been completed by acceptance, nor made irrevocable by giving
a pledge. Moreover a burdensome condition to the advantage of
a third party can be revoked so long as it has not been accepted by
that party.

There are, nevertheless, some who think differently in regard to
this matter, as well as on other questions. But the natural equity
is so easily apparent to one who examines the matter rightly that it
does not need many proofs.

XX.—How an invalid promise can be made binding

The question is also commonly discussed, how a promise, which
was based on a misunderstanding, can be made valid if, after the
error has been found out, the promisor wishes to keep his promise.
The same question can be raised also in regard to promises which
the civil law makes void because of fear, or for any other cause, if
the cause has afterwards ceased to have effect.

To confirm such promises some require merely a mental act
which, joined with the previous external act, they consider sufficient
to produce a binding obligation. Others, who are dissatisfied with
this requirement, because an external act cannot be the sign of
a mental resolve which comes later, require a new verbal promise
and acceptance.

The truth rather lies between these two views. An external act
is indeed required, but it is not necessarily expressed in words; for
the retention of the thing promised by the person to whom the
promise was made, and the abandonment of it on the part of the
promisor, or some similar act, may suffice to indicate consent.

XXI.—T hat promises without cause are not void by the law of nature

In order that the civil law may not be confused with the law
of nature, this statement also must not be omitted, that promises,
which have no cause expressed, [227] are not by the law of nature
void, any more than material gifts.

Code,
VII

liv. 4.
Bartolus,
On Dig,
XLV. i
122. § 2.

Navarrus,
III. xxii.
51 and 80.

Sanchez,
De Sanciz
Matri-
Monty
Sacra-
mento Dis-
putationes,
II, xxxil,
no. 8,

Covar-
ruvias, On
Decretais,
V. xii Io,
pt. 1, § 5.
IT (xxx1
11]

342 On the Law of War and Peace [Book II

XXII.—To what degree a person who has promised an act of another is
bound by the law of nature

A person who has promised the act of another is not held account-
able for the material interest involved, provided he has not omitted
to do what he could on his own part to secure the action, unless the
words of the promise or the nature of the business add a more strict
obligation. ‘As if he had fulfilled his pledge’, says Livy,! ‘ because

he had not been to blame for its non-performance.’

+ Cf. what is said below, ITI. xx 3o [III. xxi. 30].

CHAPTER XII

ON CONTRACTS

—The division of men’s acts which are advantageous to other men 3;
jirst, into simple acts and acts of a mixed character

Of the acts of men which are advantageous to other men, some
are simple, others of a mixed character.

I1.—T he division of simple acts into those that are merely acts of kind-
ness and those that involve a mutual obligation—

Some simple acts are merely kind, others are reciprocal. The
kindnesses either are unmixed or involve a kind of mutual obligation.
Unmixed kindnesses are either fulfilled in the present, or are directed
to the future. A useful deed is accomplished in the present, and in
regard to this it is not necessary to speak; while it is advantageous,
to be sure, it has no legal effect. Of the same character is a donation
by which ownership of property is transferred, and that topic we
treated above, when the matter of acquiring ownership was under
consideration. Not only promises to give but also promises to per-
form are directed toward the future; these also we have already
treated.

Advantageous acts which involve a mutual obligation are those
which dispose of property without alienation, or accomplish a deed
in such a way that some effect remains. Such in regard to things
is the permission to use, which is called a gratuitous bailment ; and
in regard to deeds the undertaking of a costly service, or one imply-
ing obligations, which is called a mandate ; one form of the mandate
is the deposit in trust, which involves the expenditure of labour
in guarding and keeping a thing. Similar to such acts, again, are
[229] promises to act, except that, as we have said, the latter are
directed ‘toward the future; and this we wish to have understood
also concerning the acts which are now to be discussed. -

TIT.—Also into reciprocal acts, which sometimes separate the parties

I. Reciprocal acts either separate the parties or produce a com-
‘munity of interests. ‘Those acts which are separative the Roman —
jurists rightly divide into these classes : : I give that you may give ;

1 Aristotle [Rhetortc, I. v] includes all acts of the former class under the term. ‘of gift’ ; ‘of the |
. latter under the term ‘ of sale’.

343

344 On the Law of War and Peace [Book II

I do that you may do; I do that you may give. On these classes
see the jurist Paul in the Digest, XIX. v. 5.

2. But from this classification the Romans omitted certain
contracts, which they themselves called specified contracts, not so
much for the reason that they have a special name (for reciprocation,
which they exclude from the specified contracts, has this characteristic)
as for the reason that such contracts had received a certain force and
character from their more frequent use,’ so that that could be under-
stood from their name alone, even if nothing had been specified in
particular. For this reason also certain formulas of action had been
established in relation to such contracts, while in the other and less
usual contracts only that was included which had been stated; in
consequence no common and customary formula was given to them,
but one appropriate to the act, which was therefore called a formula
in prescribed words.

By reason of more frequent use in specified agreements, if certain
required conditions were present (as in a sale, if the price had been
agreed upon),” the necessity of carrying out the agreement was
imposed, even if the matter was still fresh, that is, before anything
had been done by either of the parties. But in those less common
contracts, while the matter was still fresh there was granted liberty
to withdraw, that is exemption from penalty, because the civil law
withdrew its compelling force from such agreements, so that they
were based on the good faith of the contracting parties alone.

3. But the law of nature ignores these distinctions ; and indeed
the contracts, which are called unspecified by the jurists, are neither
less natural nor less ancient. In fact the exchanging of commodities,
which is reckoned among the unspecified contracts, is both simpler and
more ancient than purchase.* And Eustathius in his comment on

1 See Vazquez, Controversies, chap. x, at the end.

* Among the Jews a sale was not considered complete until after delivery, either real or imagined.

> This is apparent from the verses of Homer [Jtad, VIL. 472 ff. ; VI. 234 .] quoted in the Dagesi?,
XVIII. i. r. Of the Germans Tacitus [Germany, v] says: ‘The tribes farther from the border use
the simpler and older custom of barter.’

Servius, On the Eclogues, TV [IV.39], explains the expression ‘They will exchange merchandise’ thus :
‘For the reason that the ancients were accustomed to barter for goods.’ Again, On the Georgics, III
[IIT. 306], on the words ‘ Fleeces may be exchanged’, he says: ‘ They may be bought at a great price.
or among the ancients all trading was by barter, and this fact Gaius established by an example from

omer.’

Pliny, XXXIII. ii [Natural History, XXXIIL. i. 6], says: ‘In an age how much happier, when
goods were bartered for goods, just as it is agreed that Homer thought was the case in Trojan times.’
Again, in regard to the Chinese, in Book VI, xxii: ‘Their goods, displayed on the farther bank near
the objects for sale, are taken away by the traders, if they are pleased with the exchange.’ Mela [IIT.
Vil. 10] says of the same people: ‘The Chinese dwell between, a race absolutely just in trade, which
they carry on while absent by leaving their goods in a desert place.’

Of the same folk Ammianus, in Book XXIII [XXIII. vi. 68], says: ‘ When strangers have crossed
the river to buy thread or some other things, without any interchange of words the prices of the things
offered are determined by the eyes alone.’ Mela [II. i. 9s] says of the Sarmatians: ‘ They practise
commerce by barter.’ Concerning the Colchians, see Busbecq, Epsstolae Exoticae, Book III [p. 205],
and Olaus Magnus, Book IV, v, about the Laplanders.

Chap. XIT] On Contracts 345

Homer’s [/tad (Book X), in treating of a public contest for which
a prize had been offered, explains the Greek word for ‘ seek to gain’
in Homer as ‘take in exchange’, adding that ‘ this and other such
matters are a sort of contract’; and in fact it is of the class ‘I do
that you may give’. Therefore, in accordance with nature we shall
refer all those separative contracts to the three classes which we
have mentioned, without making any distinction of the specified and
unspecified.

4. Weshall say, then, that in the agreement to give that there
may be giving in return a person gives a thing directly for a thing,
as in that form which is particularly called exchange of commodities,
and is, without doubt, the most ancient form of commerce; or money
is given for money,’ which merchants in ancient Greece called money-
changing and we to-day call exchange; or a thing is given for money,
as in buying and selling; or the use of one thing for another thing,
or the use of one thing for the use of another, or the use of a thing
for money; this last is called letting and hiring. But under the
term ‘use’ we here understand not only the bare use but the use
which is joined with the enjoyment of the income, whether this is
temporary, or restricted to a person, or hereditary, or restricted in
any other manner whatsoever; an example among the Jews is the
contract which lasted till the year of jubilee.

One gives as a loan, however, in order that, after an intervening
time, the same amount, and that of the same kind, may be given back ;
and this is applicable to those things which are reckoned by weight,
number, or measure, to other things as well as to money.

5- The exchanging of an act for an act may have innumerable
forms, according to the diversity of the acts. But I do that you
may give. In the one case, I do that you may give money; this in
acts of daily service is called letting and hiring, and in the act of
guaranteeing indemnity [230] against chance losses it is called
a guarding against risk, or, in everyday speech, insurance, a form of
contract which was formerly scarcely known, but is now very common.
In other cases [I do] that you may give a thing or the use of a thing.

IV.— Reciprocal acts that sometimes contribute to a community of interests

Acts which contribute to a community of interests bring about
a sharing in activities or in things, and turn these to the common
advantage; all such acts come under the head of joint undertakings.
In this class is included also an association for purposes of war, as
among us the frequent union of privately owned vessels against pirates

1 On this, see Procopius, Secret History [xxv]. Coined money was formerly brought from Illyricum
into Italy in the place of goods. Pliny, [Natural History,] XX XIII. ui.

(NIL.
160 }

Amistotle,
{Nico-
machean|
Ethics,
V. vi;
Politics,
I. 1x;
Digest,
XVIII.
i.

Dig. L.
Xvi. 19.

346 On the Law of War and Peace [Book II

or other assailants, which is now commonly called an admiral’s force,
and by the Greeks was named ‘a sailing together ’ or “a joint sailing’.

V.—That acts of mixed character may be mixed tn respect to their main
elements

Acts are of a mixed character, either in their essential elements
or through the association of another act. Thus if I knowingly buy
a thing at a price higher than it is worth, and give the excess in price
to the seller, the act will be partly gift, partly purchase. If I promise
money to a jeweller for making rings for me out of his own gold, the
transaction will be partly purchase, partly hiring. So in a partnership
it happens that one party contributes services and money, the other
money only.

In a feudal contract the granting of the fief is a kindness, but
the agreement to render military service in return for protection is
a contract, of the form ‘I do that you may do’. If, furthermore,
the burden of a yearly payment is added, the transaction to that
extent is blended with leasing. Also a loan on things at sea 1s a mixed
contract, which consists of a contract for a loan and an insurance
against loss.

VI.—Or such acts may be of mixed character only by reason of an
addtitonal act

An act becomes of mixed character by the addition of another
act, as in giving security, or in putting up a pledge. For the giving
of security, if you look at the transaction as between the surety and
the principal debtor, is in the main a mandate; as between the
creditor and the surety, who receives nothing, it seems merely an
act of generosity, but because the giving of security 1s added to
burdensome contracts it is customarily judged a part of the same act.
So the giving of a pledge seems in itself an act of generosity, by which
the retention of a thing is granted; but this also derives its nature
from the contract, for which it furnishes security.

VII.—W hat acts are called contracts

Now all acts of benefit to others, except mere acts of kindness,
are called contracts.

VITI.—That equality 1s required in contracts; and first, equality as
regards preceding acts

The law of nature enjoins that there be equality in contracts,
and in such a way that the party who receives less acquires a right of
action from the inequality.

Chap. XII] On Contracts

347

This equality is required both in the acts and in the matter with
which the transaction is concerned; and in respect to the acts it
covers the preceding as well as the principal acts.

IX.—That equality 1s required in contracts as regards knowledge of the
facts

I. T'o the preceding acts consideration pertains that the person
who is making a contract with any one ought to point out to him
the faults of the thing concerned in the transaction which are known
to himself. This is not only prevailingly established by the civil
laws but is also consistent with the nature of the act. For between
the contracting parties there is a closer union than ordinarily obtains
in human society. In this way an answer is made to what Diogenes
of Babylon said in treating of this question, that all things which
are not mentioned are not concealed, and that it is not necessary
for me to say everything which it is useful for you to know, as in the
case of the heavenly bodies.

The nature of a contract which was devised for the sake of mutual
advantage in fact demands something more intimately related.?
Ambrose well said :

In contracts it is ordered that the faults in things which are sold be made known ;

and if the seller has not declared these the contracts are held void by action for fraud,
even if the property has passed into the possession of the purchaser.

Lactantius had said:

The man who, having in view only his own gain and advantage, has not called atten-
tion to the mistake of the seller, in order that he may buy a piece of gold at a cheap price,
or does not declare the truth about a runaway slave or a fever-infected house that he is
selling, is not a wise man, as Carneades would have him seem, [231] buta shrewd and

clever rogue.

2. The same thing, however, should not be said in regard to
circumstances which have no direct connexion with the thing con-
tracted for; as if any one should know that many ships were in route
bringing grain. The giving of such information is, in fact, a part of
one’s duty, and praiseworthy, so that often it cannot be omitted
without violating the rule of love. Yet such omission is not unjust,

1 [239] See the Scholiast on Horace, on the verse [Satires, II. iil. 285f.]:
For mind the owner would not vouch,
Unless he wished a suit.
2 Valerius Maximus, Book VIII, ii. 1, says: ‘One who sells in good faith ought neither to exag-
gerate the hope of advantages nor to hide the knowledge of disadvantages.’ In that passage he is
treating of a house ordered to be destroyed by the augurs, a fact which the seller had concealed from

the purchaser.

Digest,
XIX. i. x.

Cicero, On
Dunes,

IIT [xu.
52].

On Duties,
IT. x (EIT.
x. 66].

[Divine
Insti-
tutes, V
[XV11. 32].

Loc cit
[On Duties,
Til xu

51]

Digest,
XIX. i. 1,

[Cicero,
On Duties,
WII xvi
67.]
[Episiles,
II 1.17]

[XI. i=
p. 916 ]

Greek
History,
IIT [ii.
3r].

On the Law of War and Peace [Book IT

348

that is, it is not inconsistent with the right of the one with whom
the contract is made. That, then, is in point here, which the same
Diogenes, as quoted by Cicero, aptly said: ‘I have brought my
goods, I have displayed them for sale; I am selling my own at no
higher price than others, perhaps even at a lower price, since I have
a greater amount. Whom do I injure?’

In general, therefore, it is not necessary to follow the statement
of the same Cicero, that you practise concealment when, for the sake
of your own gain, you wish that those, whose interest it is to know,
shall be in ignorance of what you know. This is applicable only
when those facts are considered which are intimately connected with
the subject of the transaction, as in the case of a house which 1s
infected with pestilence, or which the magistrates have ordered to
be pulled down; examples which you may find in the same passage
of Cicero.

3. But it is not necessary that faults known to the person with
whom you are dealing should be mentioned, as the servitude attached
to the house which Marcus Marius Gratidianus sold to Gaius Sergius
Orata, after having previously bought it of him. Equal knowledge
on both sides, in fact, puts the contracting parties on an equal footing.’
Horace says :

Scot free the man will take his price, I think ;
Forewarned you bought a faulty thing.

This point was noted also by Plato in the eleventh book of the Laws.

X.—T hat equality ts required in contracts as regards freedom of choice

Not only in the knowledge of facts but also in the freedom of
choice there ought to be a kind of equality between the contracting
parties. Not indeed that any preceding fear, if justly inspired, ought
to be removed, for that is outside of the contract; but that no fear
should be unjustly inspired for the sake of making the contract, or,
if such fear has been inspired, that it should be removed.

With this point in view the Lacedaemonians annulled the pur-
chase of land which the Eleans had forced the owners to sell by reason

of fear, ‘thinking that it was no more just to extort property

from weaker persons under the semblance of purchase than through
fear alone,’ as Xenophon says. Yet, in the proper place, we shall
see what exception there is to this rule, according to the law of
nations.

1 Edict of Theodoric, chap. cxli,

Chap. XIT] On Contracts 349

XI.—Secondly, that equality ts required in the act of making a contract,
uf it be a contract requiring an exchange

I. The equality demanded in the principal act of a contract
is, that no more be exacted than is just. This is hardly applicable
in the case of contracts involving beneficence. For if any one should
make a bargain for something as a slight reward in return for a loan,
or for service rendered in executing a commission, or in looking after
a deposit in trust, he will not act wrongfully, but he will be mixing
the contract, that 1s, he will make it in part a contract of exchange
instead of being wholly beneficent.

In all contracts with exchange of considerations, however, the
rule should be carefully observed. And there is no reason why one
should say that whatever either party has promised in excess should
be considered a donation. Such is not ordinarily the intention of
persons making contracts of this kind, and such an intention ought
not to be assumed unless it is apparent. Whatever, in fact, the
parties promise or give, they should be believed to promise or give
as on an equality with the thing which is about to be received, and
due by reason of that equality.

2. John Chrysostom says: ‘ In making contracts, and in buying or
selling anything, whenever we strive and toil in every way to pay less
than a fair price, is there not a kind of thievery in the act?’ The
author of the life of Isidore in Photius relates [232] that when
Hermias wished to buy anything which was offered at less than a fair
price he added whatever was lacking so as to pay the proper price,
because he thought that to act otherwise was a form of injustice,
and injustice of a sort to escape the notice of most persons. Also
the Jewish scholars in this way interpret the law found in Leviticus,*

xxv. 4 and 7 [xxv. 14 and 17].

XII.—T hirdly, there should be equality in the subject of the contract ;
explanation thereof

1. There remains equality in the subject of the contract, con-
sisting in this, that although nothing has been concealed which ought
to have been said, and no more has been exacted than was considered
due, nevertheless if an inequality has been detected in the transaction,
although without the fault of either party—because, for example,
the fault was hidden, or because there was a mistake in the price—
this inequality should be made good, and something should be taken

1 See Moses de Kotzi, Precepts Bidding, 82.

Institutes,
Ii, xxvi.
§ 13; Dig.
XVI, 111.
1. § 9.

[Commen-
tary on
John,
Homily
LX, vi.]
[=p.1044.]

Loe. cit.
[On Duties,
IIi. xvu.
68].

Sylvester,
word
bellum,

pt. I, No.7 5
Thomas
Aquinas,
II. ii 62,
art 6.

350 On the Law of War and Peace [Book II

from the one who has more and given to the one who has less ;_ for
in the contract it was proposed, or ought to have been proposed, on
both sides, that each should receive the same amount.

2. The Roman law did not establish this rule to apply to every
inequality, for it does not follow up trivial differences, since it judged
that a multitude of lawsuits would result ; but the rule is applicable
in sufficiently important differences, as those which exceed one-half
of the just price. Beyond doubt, as Cicero says, the laws deal with
injustices so far as these can be laid hold of, but the philosophers
deal with injustices so far as they can be distinguished by reason
and intelligence. ‘Those persons, in fact, who are not subject to the
civil laws ought to follow the same rule, which right reason tells them
is fair. Furthermore, this rule should be observed even by those
who are subject to laws whenever the transaction involves what is
morally right and blameless, even if the laws do not grant or take
away a right, but merely for certain reasons refuse to lend their aid
to what is right.

XIII.—W bat equality ought to obtain in acts that are wholly acts of
kindness, or partly acts of kindness

1. But it is to be noted that a kind of equality is to be main-
tained also in contracts of beneficence, not indeed of the same degree
as in contracts requiring an exchange but in accordance with the
supportive character of the transaction, in order that a person may
not suffer loss from his own generosity. Therefore a mandatary
ought to be indemnified for expenses incurred and for loss which he
has suffered in consequence of the mandate. A bailee, too, is bound
to make good a thing lost, because he is under obligation to the
owner not merely on account of the thing, that is, by reason of the
force of ownership, by which, as we stated above, a temporary possessor
would be bound, but also by reason of the acceptance of a favour.
This rule holds good except in case the thing would have completely
perished also in the possession of the owner ;+ for in such a case the
owner would have lost nothing through the bailment. The acceptor
of a gratuitous deposit, on the contrary, receives nothing beyond
confidence in his good faith, and so, if the thing is lost, he will not be
held liable, either in respect to the thing, because it does not exist
and he is not made richer by it, or by reason of the acceptance of the
thing, since in accepting he did not receive a favour but conferred it.

In the case of a pledge, as also of a thing that has been hired,
an intermediate course ought to be followed, in order that the receiver
may not be made liable for any and every mishap, as a borrower is.

1 Laws of the Visigoths, V. v. 1-3:

Chap. XIT] On Contracts 351

And yet he ought to exhibit more diligent care than one who accepts
a deposit; for the acceptance of a pledge is usually without profit,
but is ordinarily associated with a burdensome contract.

2. Now all these rules are in truth in conformity with Roman
law. Yet they did not have their origin in the Roman law, but in
natural justice, and therefore the same legal provisions will be found
among other nations also. Thus among other writers they are found
in the Guide of the Perplexed (Book III, chapter xliii) by the Jew
Moses Maimonides.+ Seneca had reference to this rule when he said
that some are under obligation to exhibit fidelity, others to furnish
protection. In accordance with this rule judgement must be passed
on other contracts also.

Having now discussed the general subject at sufficient length
for our purposes, let us run over some special questions in regard to
contracts.

XIV.—In what way the price of an object ought to be estimated in a sale,
and for what reasons it may justly increase or decrease

1. ‘The most natural measure of the value of each thing [233]
is the need of it, as Aristotle has rightly shown. This becomes the
paramount consideration in the exchange of objects among bar-
barous peoples. Nevertheless this is not the only measure. For the
desire of men, which controls the price of things, covets many things
more than their need requires. ‘ Luxury’, says Pliny, ‘ set the price
for pearls.’? In his argument 4gainst Verres, Cicero says of statues :
‘The limit of value in these things is the same as the limit of our
desire for them.’

On the contrary, it happens that the most necessary things are
of less value because of their abundance. Seneca has made this plain
by many examples in his On Benefits, Book VI, chapter xv, where he
adds also the statement: ‘ The price of everything depends upon
circumstances. Though you have praised those things highly, they
are worth only as much as they can be sold for.’ Paul the jurist

1 This agrees with the passage in Exodus, xxli.6. 10-13 [xxii. 7. 10-13] ; Moses de Kotzi, Precepts
Bidding, 88 and 89.

4 Likewise in Book XXXVII [XXXVII. vi. 85] he says about gems: ‘The passionate desire of
individuals, and especially of kings, sets the price in each case’ ; also in Book XXXII [X XXII. it. 21]:
‘ The value of coral is as great among the people of India as of Indian pearls among us. For these
objects derive their value from the fancy of the peoples.’ _

Augustine, in his City of God, XI. xvi, says: ‘ But why is it strange, since in consequence of the
fixing of value by men themselves (whose nature is certainly of the highest dignity) often a horse is
bought at a higher price thana slave, and a gem than a slave girl? And so, with such freedom in
passing judgement, the estimate of the one who weighs the matter differs greatly from that prompted
by the necessity of one in need, or the pleasure of the one who eagerly desires, since reason considers
what an object is worth in itself in the scale of things, but need considers its worth according to what
it seeks. Reason, again, makes search for that which may appear true to an intelligent mind, but
pleasure seeks that which in an agreeable manner may gratify the bodily senses.’

1569-27 Bb

On
Benefits,
VII. xx

[2].

Nico-
machean
Ethies,
V. vill.
[Natural

H story, ]
IX. xxxv

[124].
(IV. vii.
14.]

Digest,
XXXV,
11. 63.

Dig. IX.
il. 33.

352 On the Law of War and Peace [Book II

says: ‘The prices of things are not fixed by the desire or the use of
individuals, but by common estimation’;* that is, as he elsewhere
explains, the value which all put upon them. Hence it comes about
that a thing is valued at the price commonly offered or given for it ;
and that price is not so limited that it may not have a range of varia-
tion within which more or less may be given or asked, except in
cases in which the law has established a definite price ‘at a fixed
point ’, as Aristotle says.

2. Moreover, with respect to the current price, account is
ordinarily taken of the labours and expenditure* of the dealers.
The price, again, is wont to change suddenly according to the abun-
dance or scarcity of buyers, of money, and of commodities. Also
circumstances may by accident arise, on account of which a com-
modity may lawfully be bought or sold above or below its normal
price; such, for example, as an expected loss, absence of profit, personal
fancy, or sale or purchase, as a favour to another, of that which would
not otherwise have been bought or sold. Such exceptional circum-
stances should be made known to the person with whom we are
dealing. Also, we can take into account the loss or absence of gain
which arises from deferred or anticipated payments.

XV.—W hen according to the law of nature a sale 1s completed, and when
ownership is transferred

1. It must also be noted that in selling and purchasing the
ownership may be transferred without delivery from the very moment
of the contract, and that this is the most simple form. So in the
opinion of Seneca ® a sale ‘ is an alienation and a transfer to another
both of one’s property and of one’s right ’; for that is also the method
used in an exchange of commodities. But if it has been agreed that
ownership shall not pass immediately the seller will be under obliga-
tion to give possession according to contract, and in the meantime
both gain and loss in the commodity will fall to the seller.

These, then, are fictions of the civil law not universally recog-
nized, that sale and purchase consist in guaranteeing that one may
have the property and right of recovery if dispossessed ; also that the
property shall be at the risk of the purchaser and that the income
from it shall belong to him even before ownership passes. On the
contrary many lawgivers have enacted that up to the time of delivery

1 Pliny, XVIII. xxxi [Natural History, XVIII. xxxi. 320]: ‘It is the proper course for a pro-
prietor to use the price of grain of each year.’

4 And Augustine does not disapprove of this, On Psalm LXX [Ixx. 17]: ‘ But the dealer him-
self says: “I bring my goods from a great distance ...; I seek pay for my labour in order to make
aliving.” ... ‘The labourer is in fact worthy of his hire” ; but the matter in question is the lying and
perjury, not the business transaction.’

* On Benefits, V. x.

Chap. XIT] On Contracts 353

the seller should have the profit of the commodity, as well as the risk,
as ‘Theophrastus noted in a passage found in Stobaeus;? in the
same passage you may find also many other rules concerning the
formalities of sale, of payment to bind the bargain, and of retraction,
all very different from the Roman law. Thus also among the people
of Rhodes, as Dio of Prusa noted in his Rhodian Oration, a sale and
some other contracts were commonly completed by entry in the
public records.

2. ‘This rule also should be known, that if an object has been
sold twice, of the two sales that will be effective which has included
in itself immediate transfer of ownership, either by delivery or in
some other way. For by this act the essential control over the object
passes from the seller, a result which is not brought about by a promise
alone.

XVI.—W hat monopolies are contrary to the law of nature or the law of
love

Not all monopolies are contrary to the law of nature.” [234]
Sometimes, in fact, monopolies may be permitted by the sovereign
power for a just cause and with a fixed price. The history of Joseph,
when he ruled Egypt as royal governor, furnishes us a notable example
of such a case. So also under the Romans the Alexandrians had
a ‘monopoly’ of Indian and Ethiopic wares, as Strabo relates.®

A monopoly can also be established by private persons, if only
with a fair price. But those who make a compact, as did the oil
merchants in the Velabrum,* that goods may be sold at a higher
price than the current range of prices, or by violence or fraud hinder
a larger supply from being imported, or buy up all the goods in such
a way that they sell at a price which is unfair at the time of sale, are
committing a wrong, and are bound to make good the loss. If in
any other way they hinder the importation of merchandise, or so
buy it up that they may sell it at a price which is higher, but under
the circumstances not unfair, they are violating the rule of love, as
Ambrose shows by many proofs in his third book On Duties; but,
properly speaking, they do not violate the rights of another.

1 On Laws [XLIV. xxii]. ;

2 The history of Thales in respect to the olive harvest is known [Diogenes Laertius, I. xxvi].
The plan of Pythocles in regard to the buying of Tyrian lead, by which the people of Athens made
a profit, is found in Aristotle, Economics, II [IT. ti. 36]. On the monopoly of hedgehog skins, by which
cloth is carded, see Pliny, VIII. xxxvii [Natural Htstory, VIII. xxxvii. 135]. On the silk monopoly,
see Procopius, Secret History [xxv]. ;

3 Book XVII [XVII. i. 13]. See also Cassiodorus, [Varzae,] II. iv and xxvi.

4 There is a fair and wise law in the Code, IV. lix; also a notable passage in Lysias [Orattons,
xxii. 5] directed against the grain merchants, who were advancing the price with false reports.

Add Cassiodorus, Variae, IX. v, and Decretum, II. xiv. 4. 9.

Bb2

[Orations,
XXxXI =
Pp. 326 ]

Aristotle,
Poltttes,
I. vii

[I. xi].

Chap. vi.

[On Nc0-
machean
Ethics,

V. vii]

Digest,

XIX, il. 2.

354 On the Law of War and Peace [Book II

XVII.— How money serves as the medium of exchange

As regards money, we should know that it acquires its function
naturally, not by reason of its material alone, nor by reason of a special
name or form, but because it has a more general character * by which
it is compared either with all things, or with the things that are
most necessary. Its value, if not otherwise agreed upon, must be
fixed according to the time and place of payment. Michael of
Ephesus, in his commentary On the Nicomachean Ethics, Book V,
says :

It is possible in the case of coined money to see the same thing which happens as
atesult ofneed. For as our need is not always the same, and what others have is not always
equally necessary for us, so coined money does not always have the same value but varies ;
while formerly it had a greater value, later it has had less or none. Nevertheless, in general,

the value of coined money 1s more stable,? and on that account we are accustomed to use
it as a measure of other things, which are compared with it.

The meaning of the passage is, that whatever is employed as
a measure of value for other things ought to be of such a character
that in itself it shall vary as little as possible. Such, moreover, in the
class of things possessed of value, are gold, silver, and copper. For
in themselves these metals have almost the same value everywhere,
and always. But just as other things of which men are in need are
plentiful or rare, so likewise money made of the same material and
of the same weight has now a greater value, now a less.

XVITI.—By the law of nature nothing should be deducted from the
price of rent on account of unfruttfulness or similar misfortunes ;
also what rule holds if the first renter is hindered from using a thing
and it has been rented by another

‘Renting and hiring’, as Gaius rightly said, ‘is very near to selling
and buying, and is subject to the same rules.” The price, in fact,
corresponds to the rent or hire, and the ownership of the thing to
the right of user. ‘Therefore, as the loss of the property itself falls
upon the owner, so by the law of nature, in the case of unfruitfulness
and other misfortunes which hinder the use, the loss is borne by the
renter ; and the person letting the property will not on that account
have less right to the promised rental, for the reason that he himself
transferred the right to use, which had that value at the time.

1 Not so much from the material as from the quantity; Dzgest, XVIII.i.1. Here the bodies are
not considered but the quantity; Duzgest, XLVI. ill. 94. § r.
2 [240] The value is fixed by public authority and is lasting; Digest, XVIII. i. r.

Chap. XII] On Contracts 355

This rule, however, can be changed both by laws and by agree-
ment. Nevertheless if the landlord has rented the land to another
tenant while the first renter was hindered from working it, whatever
he has thereby gained he will repay to the first renter, in order that
he may not become richer at another’s expense.

XIX.—How a just payment for services may be increased or diminished

In regard to a sale I said that a thing can be sold at a higher
price [235] or bought at a lower one if it is sold or bought as a favour
to the other party, when it would not otherwise have been sold or
bought. The same rule should be understood in regard to the rent-
ing or hiring of property or service. If one service can be useful to
more than one person, as for the undertaking of a journey, and if
the contractor has bound himself firmly to several individuals, in
case the law interposes no hindrance, he will be able to demand
from each the payment which he would have exacted from the one.
The fact that the service will be useful to a second person also is
outside the contract which was entered into with the first party,
and it does not in any degree diminish the value of the service in
respect to the first party.

XX.—By what right interest 1s forbidden

1. In connexion with a mutuum the question is commonly
raised, by what right is interest forbidden?

Although it is the more generally accepted opinion that interest
is forbidden by the law of nature, yet Abulensis holds the opposite
view. And the arguments advanced on the other side do not seem
to be such as to require assent. For what is said of a mutuum, namely,
that it is without charge, may be said also of a commodate.* And yet,
although it is not unlawful to demand a price for the use of a thing,
such a demand may cause the contract to pass under another name.

The argument is not more convincing, that money 1s by its own
nature unproductive. For houses and other things naturally un-
fruitful ? are rendered productive by the industry of men. This is

1 [A mutuum is a contract by which a thing consumable by first use 1s given to another with the
obligation of returning at a stated time a similar thing and in the same species and goodness. A com-
modate is a contract by which a thing not consumable by first use is given to another with the obligation
of returning at a stated time the same thing unimpaired.] For the commodate and the mutuum, as
the letting of property and lending of money, are in fact very similar. See the Code af Theodosius,
II. xxxi. 1, pecunzam commodat (he loans money). Justinian [Code, IV. xxvi. 13] has used the expression
muiuam dat (he gives a loan). Horace, in his Saézres, I. ii [I. ii. 9], said: ‘ Coins Jet out at interest’;
and hereon the Scholiast explains that interest is the gain, the pay, for the use.

2 Money in fact ought not to be unproductive; Digest, XXVII. iv. 3. § 4; XXII. i. 7.

[Tostado,]
On
Matthew,
XXV,

qu. I71
and 172.

Dig. VI.
Vv. 2.

Digest,
XXXV,
11. 1,§ 9.

[xiv. 5:]
(xviis. 8.]

Luke,
X. 209.

356 On the Law of War and Peace [Book II

more plausible, that in the case under consideration the thing is
returned for the thing; that the use of the thing cannot be dis-
tinguished from the thing when the use of the thing consists in
using it up; and that, therefore, nothing ought to be demanded
for such use.

2, But it is to be noted that although the usufruct of things
which perish in use, or are transferred to the ownership of another,
is said to have been introduced by a decree of the Senate, neverthe-
less it was not thereby brought about that there should be a usufruct
properly speaking ; but the word usufruct was dealt with, and cer-
tainly according to its proper interpretation this word does not
accord with such alaw. Yet from this it does not follow that there
is no such right, or that it is not capable of evaluation, since on the
contrary it is certain that if any one should yield such a right to the
owner money could be demanded on that account. So also the
right of repaying money or wine only after a certain time is some-
thing capable of being evaluated; for he pays less who pays later.
And so ‘in reciprocal usage’ + the use of money is compensated for by
the fruits of an estate. What is said against interest by Cato, Cicero,
Plutarch, and others,* has in view not so much its intrinsic nature
as its usual accompaniments and results.

3. Whatever may be thought of this matter, for us the law
given by God to the Jews, which forbids Jews to loan money on
interest to Jews, ought to suffice. For the substance of this law, if
not necessary, is at any rate honourable* from the point of view of
morals; and for this reason it is added to other specially moral
precepts in the Psalm which is numbered fifteenth in the Jewish
Bible and fourteenth in the Latin,‘ and also in the eighteenth chapter
of Lzektel.

Moreover, precepts of this kind are binding also upon Christians,
since they are called upon to give loftier examples of the virtues ;
and the duties, which at that time the Jews and other circumcised
persons, being of equal condition, were ordered to perform, ought
now to be performed by every person, since the Gospel has removed
all distinctions between peoples,® and a broader meaning has been
given to the word neighbour. Besides other passages, this is shown
by the noteworthy parable of Christ concerning the Samaritan.

2 Digest, XX. ii. 8 ; Code, IV. xxxt. 14.

2 As in Appian, Crvil Wars [I. vi. 54].

® The Jewish scholars think that the word meschek means interest on loaned money, but zarbzth,
interest on anything. Jerome, On Ezehel, xvii [xviii = VI. xviii. 210], says: ‘Some persons think
that interest 1s taken for money only ; but the Divine Scnptures, foreseeing this interpretation, take
away all excess, that you may not receive more than you have given.’

Also Psalms, cii [cxii. 5]: ‘ Good is the man that dealeth graciously and lendeth.’

5 Amobius in Book IV [IV. xxxvi] says that Christians ‘share their possessions with all men
whom union joins in the bond of brotherhood’. Elsewhere he adds: ‘ They love all men as brothers.’

Chap. XII] On Contracts 357

And so Lactantius, treating of the duties of a Christian, says: ‘ He
will not lend money on interest, for this is to seek gain from another’s
misfortunes.’ Says Ambrose: ‘ To assist the one in need is an act
of humanity, but it is harshness to extort more than you have given.’ !
Augustus Caesar himself branded with disgrace certain persons
because they had borrowed money [236] at a low rate of interest
and lent it at a higher rate.

XXI—W hat advantages do not come under the head of interest

Nevertheless the observation should be made that there are
certain advantages which approach the character of interest,’ and
commonly seem to be interest, although they are agreements of
another kind; such are agreements for making good the loss which
one who lends money suffers because he misses the use of the money
for along time; and likewise for the loss of gain on account of a loan,
with a deduction, of course, in view of the uncertainty of expectations
and of the effort which it would have been necessary to put forth.
So again, it is not, in fact, usury if something is demanded for the
expenses of the man who lends to many and keeps cash on hand for
this purpose, as well as for the danger of losing the principal, in case

proper security is not taken.
In his oration Against Pantaenetus, Demosthenes declares that

it is not right to burden with the name of usurer a man who lends
at a moderate interest ? money which he has made by trade or honour-
able labour, partly in order that he may preserve his property, and
partly that he may do a favour to another.

1 Cyprian, On the Lapsed [vi], enumerating the graver faults, adds: ‘To add to one’s gam
by interest which multiphes debts.’ Chrysostom, On Fasting, V, says: ‘If you fast, see to it that
you do not place your money at interest. Do you fast? Cancel the written bonds of your unjust
contracts.’ Likewise On First Corinthians, dealing with the last chapter [= Homily XLITI, iv, end] he
says that money gained by interest if given in alms is no more acceptable to God than if given from
gains of harlotry.

Augustine, Letters, liv [cliii. 25], says: ‘ What shall I say of interest, which even the law and
the judges order paid? Then is he more cruel who robs or steals some thing from a rich man than
one who murders a poor man with usury?’ Maximus in his third homily, De Quadragesima [xliv. 136],
says: ‘ Rightly you will attend the church, brother, if that greedy interest does not entangle your
feet in its deadly snares.’ ; .

Add to these Basil’s homily On the Sermon of Our Lord on the Mount [On Psalms, xiv, Against
Usurers],and what Gratian has collected from the councils and sacred writers in Decretum, II. xiv. 3 and 4.

2 And if we wish to speak in themannerof the Roman jurists, the name of usury is hateful, but
not in like manner interest. ‘ Interest is charged not for the gain of those who demand it, but because
of the delay of those who pay it’; Digest, XXII. i. 17. § 3. Cujas, Paratttla on Code, IV. xxxiii (De
Nautico Fenore), says: ‘ Extortion is what is added above the principal for the sake of gain ; terest,
what 1s added that the creditor may not suffer loss.’ Because many have misused the word usury, it
has now begun to be taken in a worse sense, and the word interest is substituted for it in the good sense.

3 Procopius, Gothic War, ITI [III. xl], says in praise of Germanus, a relative of Justinian: [241]
‘ He loaned great sums of money to all who had need, but henever took from them interest deserving

of the name.’

Epit, of
Div. Inst ,
ii flix].

On Duttes,
ITT. is (IIl.
1iL, 20].
Suetonius,
[Augus-
tus,]
XXxix.

[xxxvii. 54
=p. 982.]

(VIII,
XV1.]

[Plautus,
Asinayta,

172.]

358 On the Law of War and Peace [Book II

XXII.—W hat the force of the civil laws 15 in this matter

There are, in fact, human laws which allow that a return may
be agreed on for the use of money, or of anything else. Thus in
Holland it has long been lawful for other persons to collect 8 per cent.*
per annum, but for merchants to exact 12 per cent. If such laws
truly keep within the natural limit of compensation for that which
is, or can be, out of one’s possession, they are not inconsistent with
natural or divine law ; but if they exceed that limit they may grant
impunity,® but they cannot give a right.

XXIII.—W hat valuation ought to be put on a contract for securing
against loss or tnsuring

A contract for securing against risk, which is called insurance,®
will be null and void if either of the contracting parties knew that
the property in question had either arrived at its destination in safety,
or had been lost. This rule is valid not only by reason of that fair-
ness which the nature of contracts for exchange requires, but also
because the particular substance of the contract is the uncertainty
of the loss. Moreover, the price of such insurance against risk ought
to be fixed in accordance with common estimation.

XXIV.—W hat rule applies in the case of a partnership 5 wherein many
kinds of partnerships are explained

1. In a business partnership,* where the capital is made up
from payments of funds, if the investments are equal then the partners
ought to have equal shares in the loss and gain; but if the invest-
ments are unequal the division should be made proportionately.
The principle was set forth by Aristotle at the end of the eighth
book of the Nicomachean Ethics in these words: ‘ In an association
with capital those receive more who contributed more.’

The same will hold true if equal or unequal shares of work were
contributed. But also money can be associated with work, or with
money and work, as in the common saying :

Like to like gives recompense, when work and funds are joined.

1 The same rate is legalized in the Empire [of Austria].

2 Thus Justinian considered it his duty to reduce to a fairer rate the interest permitted before
his time; Novels, xxxil, xxxlil, xxxiv.

$ Suetonius in his Claudius [xviii] said that he took the loss on himself. Thus Cicero took security
for the public money, that the people might be guarded against the nsk of transportation ; Letiers,
XII. xvii [To Friends, Il. xvii. 4].

‘ According to Pliny you have an illustration of a partnership among dolphins, IX. viii [Natural
History, IX. viti 33]; and in the case of the mussel and the mussel-crab IX. xl [IX. xlli. 142].
Cicero, too, speaks of that matter in his Ow Ends [III. xix. 63].

Chap. XII] On Contracts 359

2. But this joint contribution is not made merely in one way ;
for either the work is united with the bare use of the money, in
which case the loss of capital falls upon the owner, and the capital,
if saved, belongs to the owner; or the work is associated with the
ownership of the money, in which case the one who contributes his
work becomes a sharer in the capital.

In the first case there is joined with the capital, not the work,
but the danger of loss of the capital and of the gain which might
reasonably be expected from it. In the second case the value of the
work is considered as if added to the capital; and according to the
value of it the one who furnishes work has a share in the capital.
What we have said about work ought to be understood as applicable
to the work and peril of voyages and similar undertakings.

3. Moreover, it is contrary to the nature of a partnership that
one of the partners should share in the gain, when he has immunity
from loss. Nevertheless, an agreement with this end in view can be
made without injustice. Under such conditions the agreement will
become a mixed contract of partnership and insurance against loss,
[237] in which equality will be preserved if the one who has taken
upon himself the risk of loss shall receive an equivalent increase in
profit over what he would otherwise have received. In such a case,
however, the risk of loss without the chance of gain ought not to be
permitted, because the sharing in advantages is so essential to partner-
ships that a partnership cannot exist without it.

The statement of the jurist, that when the shares in a partner-
ship are not designated they are understood to be equal, must be
considered as true only in case the amounts contributed to the capital
are equal. In a partnership covering all the possessions of the part-
ners it will be necessary to compare not the profit which has arisen
from this or that share, but that which could reasonably have been

expected.

XXV.—Concerning joint undertakings for maritume operations

In a joint undertaking of ships the common advantage is defence
against pirates; sometimes also booty. Ordinarily a valuation is
placed on the ships and on their cargoes, and from this the total is
reckoned, so that the losses which occur, in which the care of the
wounded is included, may be borne by the owners of the ships and
cargoes in proportion to the shares of the whole which they possess."

What we have said up to this point is in accordance with the

law of nature.

1 See a similar provision in the Laws of the Visigoths, V. v. 5.

Navarrus,
XVII,

No 250;
Covar-
ruvias,
Variae,
TIT. u;
Lessius,
II. 1i. 25
(II. xxv.],
dub. 3.

Angelus,
word
soczetas,

1. § 7;
Sylvester,
word
socieias,

i, qu 2;
Navarrus,
xvii,

no. 255 3
Covar-
ruvias and
Lessius, as
cited
above.
Digest,
XVII.

il, 29.

Livy,
XXXIX
(XXIII.
xlix] ;
Aristotle,
Politics,
III. vi,

Dig. IV.

1v.16[§ 4];
XIX, 1.

22 [§ 3].

zr Corin-
thians,
Xi I4.

[Book of
Wisdom, |
xill. 1.
Ephesians,
il. 3.
[Gnomic1,
p. 131 ]

III
flxxxiv. 2],

(XVI.
Xvili. 2.]

Dig. L.
xvii, 7.

On the Law of War and Peace [Book II

360

XXV1.—According to the law of nations, so far as external acts are
concerned, no consideration is given to an inequality in terms which
has been agreed to ; in what sense this may be said to be consistent
with the law of nature

1. In these matters no change seems to have been made by the
volitional law of nations, with the one exception that, when there
has been no falsehood or concealment of what ought to have been
said, an inequality in terms is considered an equality as regards
external acts; consequently, as no action at law was allowed against
such an inequality by the civil law before the constitution of Dio-
cletian, so among those who base their association on the law of
nations alone no demand or collection on that account is allowed.

This, in fact, is the same point that Pomponius maintains, that
by the law of nature it is permissible for men to cheat one another
in the price of sale and purchase; but here ‘ permissible’ is used
not in the sense of morally right, but with the meaning that no remedy
exists against the man who in such a case chooses to defend himself
on the basis of the agreement.

2. In this passage, and elsewhere at times, the law of nature
has been used to designate that which is everywhere the accepted
custom. So in the writings of the Apostle Paul nature herself is
said to teach that it is disgraceful for a man to wear long hair, though
nevertheless this is not repugnant to nature, and has been customary
among many nations. So the writer of the Book of Wisdom calls all
men, meaning only the worshippers of idols, ‘ vain by nature’, and the
Apostle Paul alluded to those who are ‘ by nature the children of
wrath ’, although he spoke not so much in his own person as in that
of the Romans, with whom he was then living. Evenus, the ancient
poet, says :

That which you long think o’er will lasting be, O friend,
And this I think is nature’s law for mortal men.

An ancient saying with the same meaning is found in Galen:
‘Habit is a second and acquired nature.’ With similar meaning
Thucydides says: ‘Human nature is superior to laws.’ So the Greeks
call both virtues and vices ‘ naturalized’ after they have become
firmly rooted. In Diodorus Siculus we read: ‘ Since necessity, that
is, strength of mind, conquered nature.’ Thus when the jurist
Pomponius had said that the Roman law did not allow a civilian to
die both testate and intestate, he added that these things were by
nature opposed to each other, though that rule is dependent on

1 Thus Gelhus, [X. x [TX. x. 1], says of the conjugal act: ‘It is a thing to be done in pnvate
by the law of nature.’

Chap. XII] On Contracts 361

Roman customs alone and has no place among other peoples; [238]
and even among the Romans themselves it does not apply in the case
of soldiers’ wills.

3- However, the advantage of introducing the rules which
I have mentioned is manifest for the termination of disputes which
would be without number; which, furthermore, would be intermin-
able on account of the uncertain price of things among persons who
have no common judge, and which would be unavoidable if men
were allowed to withdraw from agreements on account of inequality
of terms. ‘This is the substance of purchase and sale,’ say the
emperors—meaning by the word ‘substance’ the lasting custom—
“that since the buyer desires to purchase at a cheaper price and the
seller to sell at a higher price, they reach this agreement; and with
difficulty after much bargaining,? while the seller gradually lowers
the sum which he had asked, and the buyer adds to his offer, they
finally agree on a definite price.’

In accordance with this principle Seneca says: ‘ What difference
does it make how much they are worth, after the price has been
agreed upon between the buyer and the seller? He who has gotten
a good bargain owes nothing to the seller.” Andronicus of Rhodes
says, to the same effect : ‘ A gain, which is made with the consent of
the contracting parties, is neither unjust nor subject to suit. In
fact, the law has granted permission for such transactions.’

4. The writer of the life of Isidore, whom I mentioned further
back, says that buying at less than a fair price or selling at more than
a fair price is an injustice, which is permitted indeed by law, but
which in fact destroys justice.

1 On the contrary, often in the wills of civilians, when complaint is entered of a will contrary to
duty; Digest, V. ii. 19, 15, 24; Code, III. xxviii. 13. ; ; ;

2 Festus says [word Coctlones|: ‘Brokers seem to be so named from their delaying, because in
buying and selling goods they arrive slowly at the limit of a just price. Consequently, among the ancients
the first syllable of their name, cocto, was written with the letter V.’. Quintilian in his declamation
For the Citizens [xii. 21] says: ‘ He haggled for a long time.’

Code, IV.
xliv. 8.

On
Benefits,
VI. xv
[4]-

On Nico-
machean
[Ethtes],
V. v [end].

[In
Photius,
Bibluo-~
theca,

cod. 242=
p. 1044.]

[In

Stobaeus,
Sermones,
XXv1. 6.]

On Duties,
J [IIT

EXX1. 11x].

[Theogony,
231 f.}

II [VI.
Ixxxvi ].

[xni.
208 fj

On Duties,
IIT [xxix.
104].

CHAPTER XITI
ON OATHS

I—How great the force of an oath is, even in the opinion of heathen
peoples
1. [242] Amone all peoples, and in every age, the force of
an oath regarding promises, agreements, and contracts has always
been very great. For as Sophocles says in the Hippodamza :
The mind is wont by oath to be aroused

With earnest care to shun these evils twain,
That friends should blame, and gods should take offence.

‘Our ancestors’, says Cicero, ‘ provided that there should be no
stronger bond for guaranteeing good faith than an oath.’

2. Hence at no time has it failed to be believed that a severe
punishment awaits perjurers. So Hesiod said in regard to an oath:

From such a source to mortal man disasters come,
Whenever they take oath with lying heart.

In their view even posterity might pay the penalty for the sins of
ancestors,* an opinion that was held only with regard to the worst
crimes ; and the wish also, without the act, might bring punishment
on itself. Both of these statements are substantiated by Herodotus
in the story of Glaucus, son of Epicydes, who had merely deliberated
whether he should falsify his sworn pledge in regard to a deposit in
trust; and in the same passage Herodotus records these verses of the
Pythian prophetess :
But from an oath is born a nameless child ;

No hands, no feet, yet with great power he comes,
And all the house and stock annthilates.?

Juvenal, recalling the same story, thus concludes :

Such punishments the mere desire to sin
Suffers.

3. Cicero well said: ‘ An oath is a religious affirmation. ‘That
moreover which you have firmly promised, as if with God as your

i 2 fs] See Servius in the Fuldensian excerpts, On the Aeneid, Book I [On the Georgics, I,

ine 502].

IRV. Zachariah, v. 1-3, and Chrysostom as interpreter of this passage in On the Statues, XV
. vi.

362

Chap. XIII] On Oaths

363

witness, must be maintained.” He adds also this: ‘ Now, in fact,
the matter belongs not to the anger of the gods, which has no exis-
tence, but to justice and good faith.’ If under the term anger Cicero
means mental disturbance, the statement ought to be believed ; but
if he means some sort of a feeling or a wish to harm he should by no
means be followed, as Lactantius rightly shows.

Let us now see whence the force of an oath arises, and to what
point it extends.

Il.—T hat a deliberate intention 1s required, that 1s, that a person bas
willed to take oath

First, the statement which we made about promises and con-
tracts, that a mind possessed of reason and a deliberate intention
are requisite, isin place here. If, then, a person has uttered the words
of an oath without thinking that he is swearing, as is related of
Cydippe,! the same remark applies which is assigned to her by Ovid:

The mind it is that swears; therewith have I not sworn.?

This is taken from Euripides, who had said in the Hzppolytus :

The tongue has sworn; I swore not with the mind.®

If any one has been willing to swear but unwilling to bind him-
self, he is none the less bound, because the obligation is inseparable
from the oath and is a necessary result of it.

III.—That the words of an oath are binding in the sense in which tt 1s
believed that they were understood by the one to whom the oath
was sworn

1. But if any one has deliberately uttered the words of an oath,
yet without the intention of swearing, some writers state that he is
not bound, but yet that he sins by swearing rashly. It is, however,
nearer the truth to say that he is bound to make true the words

1 A similar story is found in the Metamorphoses of Antonius [Antoninus] Liberalis concerning
Ctesylla and Hermochares [chap. i].
2 Ibid. [Ovid, Heroides, xxi, lines 137 ff-] :
Good counsel and forethoughtful mind take oath ;
No bonds have strength except as judgement binds.
Then he adds,
But if without the heart we senseless speech
Have uttered, all in vain the words, of strength
Deprived. I have not taken oath; merely
The words of one who swears I read.

See also the verses which follow.
’ Because Hippolytus had understood the words of the nurse conceming the concealment of an

honourable act, not of adultery and incest.

[On Duties,
ITl. xxix
104.]

On the
Anger
of God.

[II. x1. 5.]

[Herordes,
Xxi.135 |

[Line 6r12.]

Soto,
VIII. 1,
art. 7.
Covar-
ruvias, On
Decretais,
V. xii. ro,

pt. 1, § 5

[On
Duives,

TI] xxix.

108 |

(Odyssey,
V. 188.]

[On
Duites,

Jit. xxx.

_107.]
Histortes,
IV [xii].

Letters,
CCXX1V

[exxv. 4].

Appian,
Crt)
Wars,

I [iv. 3x].

On the Law of War and Peace [Book II

364

which he has called God to witness. For that act, which is binding
in itself, proceeded from a deliberate intention.

From this it naturally follows that in the main the statement
of Cicero is true, that ‘It is perjury not to do that which [243]
you have sworn to “on your conscience”’. Akin to this is what
Calypso, according to Homer, says in making oath to Ulysses :

But I shall say the same my mind has thought.

2. Nevertheless there may be an exception in this, that the
person taking oath should know, or should reasonably believe, that
the words are understood differently by the one with whom he is
dealing; for in calling to God to witness his words he ought to
make them true as he thinks they are understood.* And this is what
the same Cicero said: ‘ An oath sworn with the clear understanding,
in the mind of him who swears, that it ought to be performed, should
be kept.’ We read in Tacitus : ‘ Those who were troubled by a guilty

conscience became fearful, and by every kind of expedient tried to

alter the words of the oath.’

Augustine says: ‘Men who, keeping the letter of the oath,
have deceived the expectation of those to whom they have sworn,
are perjurers.’ Also Isidore:? ‘No matter how artful the words
with which a person takes oath, nevertheless God, Who is the witness
of the conscience, accepts it just as the man to whom the oath is
made has understood it.’ This is what is called to take oath clearly.
And so Metellus rightly refused to swear obedience to the Apuleian
law, although there were some who said that the law was not valid on

1 Augustine, Letters, ccxxiv [cxxv. 3], speaking of the one who, after leaving the Carthaginian
camp, had returned to the camp and had then come to Rome, says: ‘ Thus those who removed him
from the senate considered not what he had thought when taking oath, but what those, to whom
he had sworn, expected from him.’ See also the rest of the passage.

Cf. also what was well said on this matter in the Council of Trosly in Sirmond’s edition of Conciha,
vol. III, and by Hincmar in the treatise, De Divortio Lotharit et Tethergae, interrogation vi [p. 603],
where he rightly speaks to this purport concerning God:

Who heard the oath not as you swore, but as he thought ‘
You swore who took your oath; so are you bound to both.

In the oath sworn by the Jews throughout Spain is this provision: ‘ If you shall not have done
it with the same understanding as I declare it was heard and understood by us.’

2 De Summo Bono, Book II, xxxi. 1, cited in the Decretum, IT. xxii. 5. 9.

2 On that see Donatus, On [Terence’s] Andria [lines 729 f.]:

For if, perchance, I must to my master swear
I did not place it there, with conscience clear I may.

‘With clear conscience’ means openly and plamly.

Nicetas in the life of Alexzs [I. iii], censuring the deceit of Andronicus Comnenus, says: ‘We
ought not to twist the meaning of our words with an unusual expression, but utter them as they have
been regularly understood.’ Also in another passage he says of Alexius, taking words in a sense con-
trary to their natural meaning: ‘ He clung fast to those words as flies to a cut made by a whip.’

The court of Arcadius sinned grievously against this rule; it caused a man to be killed at Chalcedon
who had come to Constantinople under promise of safe-conduct affirmed on oath. Zozomen, Book V
[Zosimus, V. xviti].

Add also what is said in chap. xvi, 2.

Chap. XIII] On Oaths 365

account of the illegality of its passage, and that the oath to support
the law ought to be understood as binding only in case the law had
been proposed and passed in due form.

3. Although in the case of other promises a tacit condition,
which absolves the promisor, is easily understood, nevertheless this
ought not to be admitted in the case of an oath. Here the notable
statement of the Apostle in the Epzstle to the Hebrews applies:
‘Wherein God, willing more abundantly to show unto the heirs of
promise the immutability of His counsel, confirmed it by an oath;
that by two immutable things, in which it is impossible for God to
deceive ’—for so I think it right to translate weddeo@a:, as plain
speaking is called the truth (Daniel, vii. 163; viii. 26; x. 1)—‘ we
may have a strong encouragement.’ In order to understand these
words, we ought to know that the sacred writers often speak of God
‘as having human feelings ’, and rather as He seems to us than as Heis.

4. For in reality God does not change His decrees. Never-
theless He is said to change them and to be influenced by repentance?
as often as He acts otherwise than His words seemed to mean; and
this may happen on account of a condition tacitly understood,’
which has ceased to exist; Jeremiah, xvili. 8. It is possible to find
examples in Genesis, xx. 3, Exodus, xxxil. 14, I Kings, xxl. 29,
2 Kings, xx. 1, Isaiah, xxxviil. 1, Fonah, ii. 5 and 11 [ro]. In
this sense God cannot properly be said even to deceive us, and the
word ‘ to deceive’, which appears in the passage of the Eozsile to the
Hebrews, quoted above, ordinarily refers to an event which dis-
appoints expectation. This can be seen both in other passages and
in Leviticus, vi. 2, Foshua, xxiv. 27, Lsaiah, lviti. 11 [lvii. 11], Hosea,
i. 2 [ix. 2], and Habakkuk* (i. 17). But this apparent deception
occurs most easily in threats, because these confer right upon no one.
It appears at times also in promises, when indeed there is a tacit
condition secretly present.

5. For this reason, then, the Apostle names two things which
denote unchangeability: the promise, because it confers a right ;
and the oath, because it admits of no tacit conditions or conditions
in any way concealed, as we may see in the Psalms (Ixxxix. 30-6).
For it is a different thing if the nature of the transaction itself
openly indicates certain conditions. To such a case some refer the
promise found in Numbers, xiv. 30. But it is more true to say that
the land was said to have been promised on oath to them not as
individuals but as a people, to the descendants, undoubtedly, of

1 Cf. Council of Toledo, VIII. ii: ‘For God to swear is not to overthrow anythmg whatever that
has been ordained by Himself ; to repent, however, is to change what He has ordained, when He will.’
This was cited by Gratian in the Decretum, Il. xxii. 4 [TI. xxii. 4. 9]. Explain as in our text.

2 [253] See Seneca, Natural Questions, II. xxxvil.

= Add Job, xli. 6 [xl. 28]; Hosea, ix. 2.

Panormi-
tanus, On
Decretals,
II. xxviu.

35.
Sylvester,
word
tura~
mentum,
4, qu. 23;
(Hebrews, |
vi. 173
Thomas
Aquinas,
thereon.

Jonah,
lv. 2.

Navarrus,

XU, No 13.

Joshua,
ix [15].

Deutero-
nomy,
XxX. I0.

[Joshua,
li,]

366 On the Law of War and Peace [Book II

those to whom God had sworn in verse 23. Such a promise, more-
over, can be fulfilled at any time, and is not restricted to particular

individuals.

IV.—W hen an oath procured by means of fraud 1s binding

1. From what I have said it can be understood what ought to
be thought of an oath procured by means of fraud. If it is certain
that the person [244] who took an oath believed to be true some
fact which is not true,t and would not have sworn if he had not
believed this, the oath will not be binding. If, however, it shall be
doubtful whether he would not have taken the same oath even
without the erroneous supposition, he will have to stand by his words,
because in an oath the greatest possible simplicity is required.

2. And under this head I class the oath which Joshua and the
leaders of Israel took to the Gibeonites. These had, in fact, been
deceived by the Gibeonites, who pretended that they had come from
a distant region. But it did not follow therefrom that Joshua and
the leaders would not have spared them if they had known that they
were aneighbouring people. For they had said this to the Gibeonites :
‘Peradventure you dwell among us. And how shall we make a covenant
with yout’ ‘These words are open to the interpretation that the
Gibeonites were asked what sort of a treaty they desired, one of
alliance or of surrender, or even that the Jews thereby indicated that
they were not allowed to make a treaty of alliance with certain
peoples; but the words do not also indicate that life would not be
granted to them if they should surrender. For the divine law, which
devoted those peoples to destruction, from comparison with the
other law,? was to be so understood that it would hold good unless
the peoples concerned should obey the commands immediately on
being summoned. This contention is proved by the story of Rahab °
—-among others—who was spared on account of her good offices,

1 As Hippolytus, of whom we have just made mention. On the passage of Sophocles in the
Oedipus at Colonus [lines 230 ff.],
Deception on deception heaped will be repaid
With due destruction, not with kindnesses,

[the Scholiast] says: ‘The Thebans think that on receiving Oedipus they promised him immunity as
regards the cause stated by him, for they had not learned that he was held guilty of a crime in his
family. Similar also is the well-known verse,

My tongue has sworn; I swore not with my mind.

For also Hippolytus had sworn in consequence of having been deceived.’

* And also for the reason added to the law conceming their destruction; Exodus, xxiv. 33 [xxiii. 33] ;
Deuteronomy, vii. 4. For that reason, in fact, 1t loses its effect in the case of those who accept the
commands of the sons of Noah and pay tribute. Thus Maimonides and Samson Micosi; also Moses
de Kotzi, in his Precepts Bidding, 15 and 118.

® So also the inhabitants of Gazer in Joshua, xvi. 10. The 'Gergesenes continued to exist up to
the times of Christ, as appears from the Gospel, Matthew, viii. 28. For they had surrendered in the very
beginning, and so are omitted in the enumeration of enemies ; Deuteronomy, xx. 17; Joshua, 1x. 1.

Chap. XIIT] On Oaths 367

and that of Solomon, who received the remnant of the Canaanites
as subjects and payers of tribute.

3. This view is supported also by the statement in the book
of Joshua, that there was no state of those seven peoples that made
peace; they had, in fact, been hardened that they might not find
favour. Since, then, it was credible that if the Gibeonites had
declared the truth, which they did not do on account of fear, they
would nevertheless have obtained the preservation of their lives on
the condition of surrendering, the oath was valid, and valid in such
a degree that by the authority of God most severe punishments were
inflicted for the violation of it.

In his discussion of this narrative, Ambrose says?: ‘ Neverthe-
less Joshua thought that he ought not to annul the peace, which he
had granted, because it had been confirmed by a religious oath, lest,
while censuring the faithlessness of others, he should himself break
faith.” However, the Gibeonites did suffer some punishment for
their fraud, since by their surrender they were made subjects of the
Jews. For they were assigned to a kind of personal slavery,”
although if they had acted openly they might have been received
as tributaries.

V.—T hat the words of an oath should not be stretched beyond the meaning
supported by ordinary use

Yet the meaning of an oath ought not to be stretched beyond
the usage of ordinary speech. So when the other Jews had taken
oath that they would not give their daughters in marriage to the
Benjamites they did not perjure themselves even though they
permitted the girls, who had been carried off, to live with the men
who had taken them. It is, in fact, one thing to give, another not
to demand the return of something that has been lost.2 Ambrose
says in regard to this matter: ‘ And that kindness seems not to have
been without a punishment meet for the lawlessness of the men,
since they were permitted to enter wedlock only by stealing wives
and not through the sacrament of marriage.’

Not unlike is the case of the Achaeans. For when the Romans
disapproved of some things which they had done and confirmed by
oath they asked that the Romans themselves should make such

1 On Duties, III. x [IIT. x. 69].

2 As the Bruttians formerly by the Romans; Gellius, X. iii [X. iii. 19]; Festus, under the word
Bruittant.

3 Josephus [Antiquities of the Jews, V. ii. 12] says in regard to this story: ‘ The Israelites neither
urged them to do it nor forbade them.’ Seneca in the Excerpts [Controversies], VI. ii, says: ‘That
man is subject to the law who aids an exile, not he who allows an exile to be aided.’ Symmachus
[Letters, X. hiv] says: ‘He who asserts that you are guilty in the sight of those who grant, unless you
are odious to those who remove, is trying to instil an empty fear into your divine mind.’

1569+27 cc

zr Kings,
IX. 23.

%1. 19, 20.

2 Samuel,
xxi. 6.

On Duties,
II. xiv
(III, xix.
IIo].

Livy,
XX XIX
[XXXVI1.
2rj.

xr Samuel,
xxXV.

[On Du-
tres, IIT
XXV 95]

II [XI. x].

[Hercules
Oeiaeus,
480 f,]

On Duties,
I, last
chapter.

368 On the Law of War and Peace

changes as should seem best, and not place the Achaeans under the
necessity of annulling what they had ratified by oath.

[Book IT

VI.—That an oath to perform an unlawful act is not binding

In order that an oath may be valid, the obligation taken ought
to be lawful.t Therefore a sworn promise relating to an illegal act
will have no force either by the law of nature, or by divine interdict,
or even by human law, which we shall discuss later. Philo the Jew?
well said :

[245] Let everyone, who undertakes to perform an unjust act because of an oath,
know that he will not be keeping but breaking an oath, which is worthy of great care
and scruple, and by which honourable and upright acts are wont to be confirmed. He
in fact adds fault to fault who joins an unlawful act to an oath wrongfully made, from
which it would have been better to refrain. Let him abstain, then, from the unlawful
act and let him pray to God to grant to him the mercy which is suitable for him. For
to choose two evils, when you have it in your power to be relieved of one, is an evidence
of an incurable frenzy and lack of sense.

An example may be given in the case of David, who spared
Nabal, whom he had sworn to kill. Cicero gives a similar example
in the vow of Agamemnon; Dionysius of Halicarnassus offers still
another in the conspiracy of the decemvirs to seize the government.
Seneca says :

I do confess that I can keep my silent pledge,
If it is free from crime; sometimes good faith is crime,

where the Latin text has ‘ meanwhile’ with the meaning ‘ some-
times ’.

Ambrose says: ‘It is in fact sometimes contrary to duty to
fulfil a promise, to keep an oath.’ Says Augustine: ® ‘ If good faith
is shown in committing a sin, marvellous it is that it is called good
faith.’ In his second letter To Ampbhilochius, Basil has the same
teaching.

VII.—That an oath ts not binding which hinders a greater moral good

1. Furthermore, even if the thing which is promised is not
unlawful, but only hinders a greater moral good,* under such a con-

1 Ambrose deals well -with this subject in the treatise On Duties, I [I. 1. 254], and likewise other
authors cited in the Decretum, IT. xxii. 4. Canon vn of the Council of Ilerda applies to this, cited in
volume III of the Councils of France. There are also many examples in the works of Hincmar.

4 On Special Laws [II. 1].

* De Bono Conjugalt,iv. This passage is quoted in the Decretum just cited [II. xxii. 4. 20].

See also Gail, De Pace Publica, Book I, iv. 16; and the story about Albinus, in Paulus Diaconus,
Book II, xxvi [II. xxvii].

* Such as the oath of Honorius never to make peace [254] with Alaric, as Zosimus relates
[V. xlix]. See Decretum, II. xxii. 4. 22, and the Council of Ilerda in the Councils of France, vol. IIT,
canon vii. Also Hincmar in the work cited above, Lrber de Divortio, Interrogation xiv [p. 651],
and Interrogation vi[pp. 602 ff.] and xiv.

Chap. XIIT] On Oaths 369

dition also the oath will not be valid; in truth we are under obliga-
tion to God to advance in goodness in such a way that we have not
the power to cut off from ourselves the opportunity of growth in
grace. It will not be out of place to quote a noteworthy passage of
Philo the Jew, whom I cited above, as bearing on this point: ‘ There
are some people so controlled by a hard and unsociable nature, or
by hatred of the human race, or by a harsh overmastering wrath,
that they strengthen their savageness of character with an oath that
they will not sit at table or stay in the same house with a certain
man, that they will never do him a favour, that they will not receive
anything from him even until death.’ But the kind of oath, which
he said certain persons swore, never to do a favour to this or that
man,’ the Jews called ‘an oath of beneficence’, ‘ an oath to do good’,
Leviticus, v. 6 [v. 4]. According to the Jewish rabbis the formula
of this was, ‘Let all the advantage you might receive from me
be consecrated to God’; and with this the Syriac, in the old
version of Matthew, xv. 5, agrees: ‘If you have ever received any
good from me, let it be a gift consecrated to God’; for that is the
meaning of the expression ‘ given to God’. ;

2. The Jewish rabbis, who are the worst interpreters of this
portion of the divine law, thought that a vow was perfectly valid
in case the penalty of consecration had been added, even if the vow
had been made against parents. That opinion is refuted by Christ
in the passage cited ; for according to his words ‘ to honour’ is ‘ to
do good to’, as is apparent from the parallel passage of Mark and
also from the words of Paul in r Timothy, v.3 and 17; also from
Numbers, xxii. 11. But even if an oath has been taken against
other persons we shall rightly say that it is not binding, because,
as we have said, it is a barrier to our growth in goodness.

VIII.—T hat an oath is not binding to perform an act which ts impossible

It is not necessary to speak of impossibilities. It is, in fact,
sufficiently evident that no one is bound to do that which is quite
impossible.

[246] IX—What if an act, for which an oath has been taken, ts
impossible for the time being ?

As regards what is impossible for the time being, or in the
opinion of the one who took the oath, the obligation is in suspense.
Consequently, a person who has taken oath under such a supposition
ought to do what he can to render his oath possible.

1 See Baba Kama, ix. 10, and the observations of the learned Constantine thereon.
CczZ

[On
Special
Laws,
II, iv.]

Thomas
Aquinas,
II. ii. 89,
art. 7;
and
Cajetan
thereon.
Gratian,
Decretum,
II, x11. 4.
23 § 6.
Soto, VII.
i, art. 3,
circa 2.

Roman
Questions
[xliv=
275 Dj.

I [xxiv.8].

XXI [zlv.
8].

(IIT. xxv.
8.]

[Under the
words
lapidem
siicem |

[Eusta-
thius, Ow
the Ihad,
I. 234 ]
[On Ab-
staining,
IIl, xvi =
p. 285.]
[Birds,
521 |

On the Law of War and Peace [Book II

370

X.—That an oath is sworn in the name of God, and in what sense

In regard to form, oaths differ in words, but agree in substance.
An oath ought to contain this element, that God is invoked, as, for
example, in this way: ‘God be my witness ’, or ‘God be my judge’,
two expressions which amount to the same thing. For when a
superior having the right to punish is called as a witness* punish-
ment of faithlessness is at the same time asked from him. And He
who knows all things is the avenger, because He is a witness. Plutarch
says: ‘Every oath comes to an end in curses in case one has com-
mitted perjury.’

To the same category belong the ancient formulas for treaties,
for which it was the custom to use sacrificial victims, as appears
from Genesis, xv. 9 ff. Similar are the Roman formulas in Livy:
‘Do thou, Jupiter, so smite that people as I smite this pig.’ In
another passage of the same author: ‘He prayed to the gods that
they should so slay him as he himself had slain the lamb.’ See also
the example in Polybius and Festus: ‘If I knowingly deceive, so
may Jupiter cast me away as I cast away this stone.’

XI.—But that an oath is sworn also in the name of other things with
respect to God

1. But it was also an ancient custom to swear in the name of
other things or persons, either because they were invoking such
things or persons to become harmful to themselves, as the sun, the
earth, heaven, their ruler, or because they were demanding that they
be punished in respect to such things as their heads, their children,
their country, their ruler. And this was not a custom of the heathen
nations only, but also of the Jews, as the same Philo teaches us.”
For he says that those who are about to take oath ought not for
any and every thing and at once ‘to have recourse to the author
and parent of all things’, but should swear by their parents, heaven,
earth, and the universe.

Similar to this is the point noted by the commentators on
Homer, that the ancient Greeks were not accustomed ‘ to swear easily
by the gods but by other things at hand’,* as by the sceptre; and
Porphyry and the commentator on Aristophanes report that that
oath was introduced by Rhadamanthus, a most just king. So Joseph

1 Ambrose writes to the Emperor Valentiman [Leiters, xvii. 9]: ‘ What is the taking of an oath
except to confess the Divine power of Him whom you call upon as witness to your good faith?’ See
the excellent formula of the Chagan of the Avars in Menander, Selecizons on Embassies [= frag. 63,
p- 123, edit. Dindorf].

4 On Special Laws [II. 13].

® See Apollonius concerning Socrates in Philostratus, VI [VI. xix]: ‘He swore by those things
not as by the gods, but that he might not swear by the gods.’

Chap. XIII] On Oaths 371

is said to have sworn by the life of Pharaoh, in accordance with the
accepted custom of the Egyptians, as Ebenesdras notes in the com-
mentary on the passage; so Elisha swore by the life of Elijah.’

And in the fifth chapter of Matthew Christ does not, as some
think, mean that such oaths shall be less lawful than those sworn
explicitly in the name of God. But since the Jews had less regard
for them, in accord with an opinion not unlike that of the man who
said ‘ He does not believe the sceptre to be the gods,’ Christ shows
that these also are true oaths. Ulpian, too, most excellently said:
‘He who swears by his own safety seems to swear by God, for he
swears with respect to the divine power.’ * 5o Christ shows that the
man that swears by the Temple swears by God, who presides over
the Temple, and the man that swears by heaven swears by God,
whose throne is, as it were, in heaven.

2. But the Jewish teachers of those times were of opinion that
men were not bound by oaths sworn by created things unless a penalty
was added, as if the thing by which they swore were consecrated to
God. This, then, is the oath called xopBav, or ‘ by way of gift ’, of
which there is mention not only in the passage of Matthew cited, but
also in the laws of the Tyrians, as we learn from the discussion of
Josephus, Against Apion. And not for any other reason should
I think that the Oriental peoples were called xapBavo. (barbarous) by
the Greeks, a word found in Aeschylus and Euripides; note also
kapBava 8 aidds, of ‘ barbaric speech’, in the same Aeschylus.

This error Christ opposes in the passage cited. Tertullian says :
‘The ancient Christians took oath by the safety of the ruler, which
[247] was more revered than all the Geniuses.’ In Vegetius
there is a formula, of which we made mention above, according to
which Christian soldiers swore not only by God but also by the
majesty of the Emperor, which by the human race ought to be
loved and cherished next after God.

XII.—That an oath is binding even if one swears by false gods

But also if any one has sworn by false gods the oath will be
binding. For although possessed of false notions, he nevertheless
has a respect for divinity under a general aspect; and so, if perjury
has been committed, the true God interprets it as done to His harm.
We see that holy men never proposed an oath in such a form, and
still less swore in that way (I wonder that Duaren considered such

1 Add 2 Kings, iv. 30; Song of Songs, ll. 7.

2 So also Gratian, Decretum, IT. xxii. 1.

> Book of Wisdom, xiv [xiv. 31], thus given in the Latin version: ‘ It is not the uprightness of those
by whom one swears, but the punishment of the guilty, which ever attends upon the falsehoods of the

unjust.’

Genesis,
xii. 5.

2 Kings,

ll. 2.

(Ovid,
Remedy
for Love,
784.]

Dy. XII.
ii, 33.

Matthew,
xxii. 21.

TI, xxii.
167.]

[4 gamem-
non, IO6I ;
Suppli-
anis, 118.]

[Apology,
XXXUu.]

[II. v.]

Augus-
tine,
Letters,
cliv
[xlvil. 2],
To

Pubhicola,
cited 1n
Decretum,
II, xxu1.

I 16

[v1. 16.]

[Lex Alle-
gorzarum,
III, Ixxiii.]
(VI.

Ixxx1v. 3.]

Diodorus
Siculus
{I. Ixxvit].

(In
Stobaeus,
Flori-
leguum,
EXviii. 15.]

On the Law of War and Peace [Book II

374

a form allowable); but nevertheless, if those with whom they had
dealings could not be induced to take oath in any other way, they
made contracts with them, and they themselves would swear as their
duty required, but they would accept from the others such an oath
as could be procured.

An example of this kind is found in the case of Jacob and Laban
(Genesis, xxxi. 53). ‘This is what Augustine says:* ‘ Whoever swears
by a stone, if he swears falsely, is perjured’; and further: ‘ The
stone does not hear you speaking, but God punishes if you deceive.’

XIJI.—The effects of an oath 5 hence from an oath a twofold obligation
arises, one at the moment of the oath, another afterward ; thts 1s

clearly explained

1. The chief effect of an oath is to put an end to disputes.
‘In every dispute the oath is final for confirmation,’ says the inspired
writer of Jo the Hebrews. Similar to this is the statement of Philo:
‘An oath is the witnessing of God in a matter under dispute.’ Not
unlike it is the statement of Dionysius of Halicarnassus: ‘The
strongest pledge of good faith? among men, both Greeks and bar-
barians, which no time will destroy, is that which makes the gods
sponsors by means of sworn agreements.’ ‘Thus among the Egyptians
an oath was ‘ the strongest pledge of men to one another’.

2. Therefore the person who takes an oath is bound in two
ways: first, that his words should agree with his intent, which
Chrysippus calls ‘to swear truly’; and secondly, that his action should
be consistent with his words, which the same writer calls ‘ swearing
faithfully ’. The person who does wrong in regard to the first require-
ment is said by the same Chrysippus ‘to swear falsely’ ;* in thesecond,
‘to perjure himself’, a distinction which is clear enough, though these
matters are at times wont to be confused.

XIV .—W hen, as a result of an oath, a right 1s acquired for a man and
for God ; when for God alone

If the matter should be such, and the words of an oath so phrased
that they may be referred not only to God but also to a man, without
doubt a right will be acquired for the man from the oath itself, as
if from a promise or contract, which ought to be understood in the
simplest way. But if either the words do not have a man in view

__* On the Words of the Apostle, XXVIII [= Sermones de Scripiurts, clxxx. 13], cited in Decretum, II.
Xxil. 5. 10.
2 Procopius, Persian War, IT [I]. x. ro] says: ‘An oath, which by all men is considered the last
and strongest pledge of good faith and truthfulness.’
* To swear falsely is forbidden in Exodus, xx [xx. 7 and 16]; to perjure oneself, in Levtiicus,
xix [xix. 12]; as the Jewish commentators explain, Precepis Biddzng, 240.

Chap. XIIT] On Oaths 373

for the conferring of a right upon him, or if they do have him in
view, but if there is something which can present an obstacle to his
claim, then the force of the oath will be such that the man will
indeed acquire no right, but nevertheless he who has sworn will be
under obligation to God to keep his oath.

An example of this occurs in the case of one who by means of
an unjust fear furnished the cause of a sworn promise.’ For he
acquires no right, or a right which he is obliged to relinquish, because
he caused the loss. Thus we see that the Jewish kings were both
rebuked by the prophets * and punished by God, because they had
not kept their sworn pledge to the Babylonian kings. Cicero praises
the tribune Pomponius, who kept the oath which he had sworn
under the compulsion of fear; ‘so great’, he says, ‘ was the power
of an oath in those times.’ For such reasons not only Regulus was
obliged to return to imprisonment, most unjust though it was, but
also those ten, whom Cicero mentions, had to return to Hannibal ;
for an oath had been taken.

[248] XV.—Refutation of the opinion that one who has given hts oath
to a pirate or a tyrant 1s not obligated to God

1. The principles stated are applicable not merely with respect
to public enemies, but to any persons whatsoever. For not only the
person to whom the oath is given is taken into consideration, but also
God, by whom one swears,* and the reference to God is sufficient to
create an obligation. Therefore we must thrust Cicero aside when he
says that there is no perjury if the ransom for life, which had been
agreed upon even under oath, is not paid to pirates, for the reason
that a pirate is not entitled to the rights of war, but is the common
enemy of mankind, with whom neither good faith nor a common
oath should be kept. Elsewhere he said the same thing about a tyrant,
as Brutus also did, according to Appian: ‘ With a tyrant the Romans
keep no faith, have no scruple regarding an oath.’

2. Although it is true that according to the established law of
nations there is a difference between a public enemy and a pirate—
that will be pointed out by us below—yet the difference cannot be
in point here where, even if the right of the person fails,* we have
to reckon with God; and for this reason an oath is called a vow.
Again, that is not true which Cicero assumes, that there is no common

1 Augustine in his Letters, cexxiv and ccxxv [cxxv and cxxvi], teaches that even an oath extorted
by force must be kept, on account of reverence for God.

2 See also Jeremiah, xxix. 7 [xxxix. 5].

$ Gregoras [K. v = 307 C]: ‘ Perjury charges God with the fault of negligence.’

‘ Plutarch in his Lysander [viii = 437 C] says: ‘He that has cheated an enemy by an oath shows
that the enemy is feared, and God despised, by him.’

Exzektel,
xvii I2,
13, 15

On Duties,
Til [xxx.
112].
Toledo,
IV, xxi.

On Dutres,
JII (xxx.
113].

Thomas,
II. 11. 89,
art. 7, and
Cajetan
thereon
Alexander
of Im., On
Decretals,
II. xxiv.

15.

Soto, VIII.
1, art 7.
[On Duties,
IIT. xxix.
107. ]

Civil
Wars, II
[xix. 139].

(III. iii 1.)

Digest,
XVI 111.
31.

[Cicero,
On Duives,

III xxvii.

I02.]

Dag. XID,
ii, 39.

[VI, 63 f.]

{Ila 6 x]
Autheni.,
after
Code, II.
XXV111, I,
Psalms,
xv [4]

On the Law of War and Peace [Book II

374

ground of right with a robber. For Tryphoninus was right in giving
the opinion that, according to the law of nations, if the true owner
does not appear a deposit must be returned to a robber.*

3. Consequently I am not able to approve of the view held by
certain persons, that one who has promised anything to a robber
can discharge the promise with a momentary payment, so that it
may be permissible for him to recover what he has paid. For in an
oath the words relating to God ought to be understood in the simplest
manner possible and so as to have effect. And so the man who
secretly returned to the enemy and went away a second time did
not satisfy the oath in regard to his return, as was rightly judged by
the Roman senate.

XVI.—W hether one who has given his oath to a faithless person ought
to keep his oath ; explanation, with a distinction

1. There is this in Accius:

T. Your good faith you have broken.
A. Faith which I neither gave, nor do I give,
To one who faithless is.

The rule here implied can be approved if the sworn promise clearly
was related to the promise of him to whom the oath was given, and
that had been blended with it,* forming as it were a condition; but
it cannot be approved if the promises are of a different kind and
without mutual relation. For in the latter case each must absolutely
make good what he has sworn, and on this account Silius in praising
Regulus thus addresses him :
You who through ages long with fame increasing still

Will be recalled as he who kept his faith
With faithless Carthage.

2. We said above that inequality in contracts gives naturally
an opportunity for annulling or correcting them. And although the
law of nations has changed this somewhat, nevertheless by municipal
law, which is valid between the different parts of the same people,
a return is often made to that which was lawful by nature, as we
likewise showed above. But in this case also, if an oath has been
added, even if nothing, or a little, is due to the person, faith will
have to be kept with God. And so the writer of the Psalms, when
enumerating the virtues of a good man, adds this also: ‘ He that
sweareth to his own detriment, and changeth not.’

1 And to the one who has invaded a kingdom unlawfully, as the deposit was returned to Orofernes
by the Prienians ; Polybius [Excerpia de Virtute et Vittts, p. 1470 = XXXIII. xii], and Diodorus Siculus
in the Excerpia Peiresciana |p. 334 = XXXI. xxxii]. ‘

* Deecretals, II. xxiv. 3. Add the law in the Digest, XVIII. iii. 5.

Chap. XIIT] On Oaths 375

XVII.—T hat when a person has given his oath to God alone his heir ts
in no degree obligated

This, again, must be noted, that when in consequence of some
such defect as I have mentioned no right is created for a person
but good faith is pledged to God, no binding obligation rests upon
the heir of the man who took the oath. For as the property passes
to the heir, that is, things bought or sold among men, so also the
burdens on the property; but not in like manner other obligations,
to which a person has been subject by reason of a duty imposed by
religious feeling, gratitude, or good faith. These obligations do not,
in fact, belong to what is in a strict sense called among men a right,
as we remember having explained elsewhere also.

XVIITI.—That he 1s not guilty of perjury who does not keep his oath to
a person that does not wish to have it kept, or in case the special
character of the person, to whom the oath was sworn because of that
character, has been laid aside

But also where no right is created for a person, if nevertheless
[249] the oath has in view the advantage of some other person,
and the other person does not wish to have that advantage,” the one
who took the oath will not be bound. So also he will not be bound
if the condition under which he swore to some one has ceased,” as
if a magistrate should cease to be a magistrate. In the second book
of Caesar’s Civil War Curio speaks to those who had been the soldiers
of Domitius as follows: ‘How could he hold you bound by your
oath when he has thrown aside the insignia of office, laid down his
command, and as a private citizen and a captive has come under
the power of another?’ Presently he says that the oath was annulled
by the loss of civic rights.

XIX.—W hen anything which is done contrary to an oath becomes void

The question is raised, whether anything done contrary to an
oath is merely unlawful, or also void.

In this matter I think that a distinction ought to be made. If
good faith alone has been pledged, the act done contrary to the
oath will be valid, as, for example, the making of a will, or a sale;
but such an act will not be valid if the oath was so phrased that it
contained at the same time full abdication of the right of action.

2 Plautus, Rudens [line 1414]: ‘Excuse the man, I beg you, from his oath.’
2 Similar laws in the Digest, XX VII. i. 6. § 14; in Gail, Observaizones, II, obs. 144, no. 8, and
De Arrests, X.ix; and in Azor, Moral Insittutes, V. xxi, qu. 6, pt. I.

II xxxhi J

Decretais,
III. v. 25.
Covar-
ruvias, On
Decretals,
V. xii. ro,
pt. il, § 2,
no, Io.

Thomas
Aquinas,
II. 13,

qu $9,
art. 9.

Decretals,
II. xxiv.
19.
Feuds,
II. lv.
On
Benefits,
IV. xxxv

[x].

Dig. L.
i. 38.
Molina,

disp. 149.

On the Law of War and Peace [Book II

376

These distinctions, at any rate, naturally accompany an oath.
In accordance therewith judgement should be passed on the oaths
of kings, and the oaths which foreigners take to one another, since
in such cases the act is not subject to the law of the place.

XX.—W hat power the act of superiors has with respect to that which
a subject has sworn, or with respect to an oath given to a subject,
is set forth, with distinctions

1. Let us now see what powers are possessed by superiors, that
is, by kings, fathers and masters, and also by husbands, so far as
conjugal rights? are concerned. The act of superiors cannot indeed
bring it to pass that an oath does not have to be fulfilled, in so far
as the oath was truly binding; for such fulfilment is required by
both the law of nature and divine law. However, because our acts
are not fully within our own power, but are related in such a way
that they are dependent also on our superiors, there may be a twofold
action by superiors concerning whatever is sworn, the one action
directed against the person who takes the oath, the other against
the person to whom the oath is given.

z. The person who takes the oath can be directed, either by
making the oath void before it is sworn, in the degree that the right
of the inferior is subject to the power of the superior, or by forbidding
that the oath be fulfilled after it has been taken. For the inferior,
in so far as he was inferior, could not have put himself under obliga-
tion except in so far as his act should meet the approval of his superior ;
for he would have no power beyond that. On such grounds, accord-
ing to the Hebraic law, husbands could annul the oaths of their
wives, and fathers the oaths of their children so long as these were
subject to parental authority. ‘This question is proposed by Seneca:
‘What if a law should be passed that no one should do what I had
promised that I would do for a friend?’ He answers thus: ‘ The
same law which forbids me also defends me.’

But an act may also result from the mingling of the rights of
both parties, as if a superior should order that what an inferior has
sworn in this or that case, as, for example, in consequence of fear,
or from weakness of judgement, shall be valid only on the condition
that it be approved by himself. Under such a condition absolutions
from oaths can be defended. Such absolutions were formerly granted
by princes,? but now, with the permission of the princes, by the

1 [255] Augustine, Letters, ccxl and ccxli [Lxii and Ixii].
* Suetonius, Tzberius, xxxv. Also Fernando Vazquez (De Successtonum Creatione, II. xviii) notes
that such was the custom for a long time in Spain.

Chap. XIII] On Oaths 377

dignitaries of the Church, in order that greater regard may be had
for religious scruple.

3. Furthermore, the act of the superior can be directed against
the person to whom the oath is sworn by taking from him the right
which he has acquired, or, if there is no right, by forbidding that he
should receive anything in accordance with such an oath. This,
again, by virtue of the power of sovereignty, may be done in two ways,
either for a punishment or for the public advantage. In case the one
who takes the oath is not under the same governmental authority
as the one to whom the oath is sworn, it can be understood from this
what power the rulers of the two parties have in respect to the oath.

However, a person who has promised something on oath to
a guilty person as such, as, for example, a pirate, for this very reason
cannot take away from him the promised right under the name of
penalty ; for then his words would be of no effect, a result which
ought in every way to be avoided. And for a similar reason what has
been promised cannot be given as a compensation for a right which
was in controversy before, [250] if the agreement was entered
into after the controversy began.

4. Again, a human law can remove an impediment, which it
had placed on acts of a certain kind, if an oath either in general
terms, or in a special form, has been added. This the Roman law
did in the case of those impediments which did not have directly in
view the public good, but the private advantage of the one taking
the oath. If such a case arises, the sworn act will be valid in the
same way that it would naturally have been valid without human
law, either by binding good faith only, or also by giving a legal right
to another, according to the diverse nature of acts, which has been
set forth by us elsewhere.

XXI.—To what kind of oath the teachings of Christ in regard to not
taking an oath are properly applicable

1. The fact ought here incidentally to be noted, that what is
said in the teachings of Christ and by St. James against the taking
of oaths does not, properly speaking, apply to an oath of assertion,
of which there are some examples extant in the writings of the Apostle
Paul,t but to the promise of a future uncertainty. This is plainly
shown by the opposition in the words of Christ: ‘Again ye have
heard that it was said to them of old time, thou shalt not forswear
thyself, but shalt perform unto the Lord thine oath. But I say unto

1 Romans, i. 9,ix. 13 2 Corinthians, i. 23, xi. 31 3 Phileppians, i.8; 1 Thessalonians, ii. 9 [i. 5];
I Timothy, ui. 7.

Decretals,
I]. xxiv. 8.

(Matthex,
Vv. 33-]

(Epistle,
Vv. I2.]

[Virgil,
Eclogues,
VII. 70.]
(Aquila
Romanus,
in Ant
Rhet. Lat,

Pp. 19.]

[Digest,
XXXII.
iii. 39. § 1;
XLV 1 I.
§ 2.]

{Jewish

On the Law of War and Peace [Book II

378

you, swear not at all.’ A second point is the reason, which James
adds: ‘that ye be not found deceptive’; for vzoxpicews has that
force among the later Greek writers, as appears from ‘fob, xxxiv. 30,
Matthew, xxiv. 51, and elsewhere.

2. The same thing is convincingly shown by the words of
Christ, ‘But let your speech be Yea, yea, Nay, nay,’ which James
explains thus: ‘ But let your yea be yea; and your nay, nay.’ Here
the figure is clearly what the rhetoricians call ‘interlocking’, as in the
verse :

From that time on is Corydon for us the only Corydon.

Also in another similar passage: ‘Up to that day Memmius was
Memmius indeed.’ For the former ‘yea’ and ‘nay’ indicate a
promise, the latter its fulfilment. ‘ Yea’, in fact, is a word of pro-
mising, and so is explained as ‘amen’ in Revelation, 1.73; it has
the same meaning as the Syriac word for ‘so be it’ in this passage.
The corresponding words of Rabbinical Hebrew and Arabic have
a like force, just as among the Roman jurists ‘ yes indeed ’ and ‘ why
not’ are the expressions for one replying to an agreement. Paul, in
2 Corinthians, i. 20, takes it as the medium of a promise when
he says that all the promises of God in Christ are ‘yea and amen’.
Hence comes the ancient expression of the Jews, ‘ that of a just man
the yea is yea, and the nay is may.’

3. On the other hand, those whose deeds differ from their
words are said by those teachers to be ‘yea and nay’ (2 Corin-
thians, 1. 18-19); that is, their ‘yea’ is ‘nay’ and their ‘nay’ is ‘yea’.
So the Apostle Paul himself explains. For having declared that he did
not ‘ show fickleness *, he added that his word was not ‘yea and nay’.
Festus, reporting many opinions concerning the meaning of the
word naucum, thus writes: ‘Some say that it is from the Greek
words meaning “yes and no’, and signifies an unreliable person.’
If ‘yes and no’ indicates unreliability, it follows that ‘ yea, yea, and
nay, nay’ will signify constancy.

4. Christ, then, says the same thing as Philo:? ‘It is best,
most useful, and most in harmony with a rational nature to abstain
from oaths and so to accustom oneself to veracity that the bare words
may be accepted in place of an oath.’ Also in another passage: ®
‘Let the speech of a good man be as an oath which is firm, unchange-
able, and incapable of deception.’ Josephus says this about the
Essenes : ‘ Whatever they have said is stronger than an oath; [251]
and it is considered by them a superfluity to take an oath.’

1 The word for ‘No’ should properly be written ov«? in this passage of Festus [p. 166M], as
often in Homer; for it approaches nearer to the word naucum.

2 On the Ten Commandments [xvii].

5 On Special Laws [IT. i].

Chap. XIII] On Oaths 379

5. From the Essenes, or from those of the Jews whom the
Essenes imitated, Pythagoras 1 seems to have borrowed the doctrine
expressed in the maxim: ‘An oath ought not to be taken by the
gods ; for every man ought to take care that he should be believed
without an oath.’* On the authority of Curtius the Scythians say
of themselves to Alexander: ‘Do not think that the Scythians
make their friendship firm by an oath; they take oath by keeping
faith.’ Cicero, in the speech For Roscius the Comic Actor, says: ‘The
same punishment has been appointed by the immortal gods for the
deceitful man as for the perjurer. For the gods are wont to be
angry, and incensed, not on account of the formula of words which
contains an oath, but by reason of the faithlessness and wickedness
by which snares are set for another.’

Well known is the saying of Solon: ‘ Let him be of such upright-
ness that he will be believed rather than his oath.? Clement of
Alexandria, too, said that it was the duty of a good man to show
faith in his promises by the firmness and steadfastness of his words
and life. Alexis the comic actor says :

My nod is just as valid as an oath.

In the oration For Cornelius Balbus Cicero says that at Athens
when a certain man, who had lived among them with uprightness
and dignity, had given his testimony publicly and was approaching
the altar to take oath, with one accord all the judges cried out that
he should not take oath; for they did not wish his faith to seem
bound by religious scruple rather than regard for the truth.

6. The comment of Hierocles on the Golden Verses does not
differ from the teaching of Christ: ‘ He, who in the beginning had
told us to reverence an oath, by that very injunction had bidden us
to abstain from swearing concerning those matters which can either
happen or not happen,’ and which are subject to the uncertain

1 For also the Pythagorean Hermippus said that the philosophy of Pythagoras was derived from
the Jews, as Origen testifies, Against Celsus [I. xv = p. 334]- It is hkewise stated by Josephus, a Jew
[Against Apion, I. xxii. 162], and by Iamblichus, a Pythagorean.

2 Philo [On the Ten Commandments, xvii]: ‘The person from whom an oath is exacted is
already suspected of bad faith.’ In the Oedipus at Colonus of Sophocles Oedipus had said [lines
650 {.]:

50% I would not force an oath from you as a base man,

and Theseus replies :
For you would have no more than sound of voice.

Marcus Antoninus in his description of a good man [Marcus Aurelius, III. v] says: ‘ Nor having
need of an oath.’ Chrysostom, On the Statues, XV [XV. v], says: ‘ If you believe that he, with whom
you are dealing, is truthful, do not impose upon him the necessity of ah oath ; if you know that he will
lie, do not oblige him to perjure himself.’ ; _

3 Chrysostom has well noted, On the Statues, XII [XIV. i]: ‘ Even if it should not fall to your
lot to take oath when carried away by an impulse or under compulsion or without thought, yet the
very nature of the matter at times will bring 1t to pass that you will be found to have sworn falsely
with full knowledge and consent.’ Later he adds FXIV. ii]: ‘ Therefore it is dangerous to take oath

[Diogenes
Laertius,
VIILxxu ]

[VII. vin.
29 ]

[xvi 46]

[Diogenes
Laertius,
I. lx]
[Stromaia,
VII. vin.
59.]
[Stobaeus,
Sermones,
XXVI11. 3.]

[v. 12.]

[=p. 164.]

(XIV.171.]

Decretals,
II. xxiv.
ro.
Diodorus,
XVI
[xiii].
Panormi-
tanus, On
Decretals,
I xl. 3.
Jason, On
Dig., XII.
li. 3. § 4
Mynsinger,
Observ ,

I xvii.
[Sueton.,
Augustus,
xli.]
(Plut., Bu-
menes, V =
p. 585 F]
fii. 8.]
Poltives,
III. xiv.

380 On the Law of War and Peace [Book II

outcome of chance. Such things in fact ought to be considered of
slight moment, and they are changeable, whence it is neither worth
while, nor safe, to swear concerning them.’ Among the praises of
a Christian emperor, Libanius has this, ‘ that he is so averse to perjury
that he fears even to swear to the truth.” In commenting on the
words of the Odyssey,

But yet an oath we surely shall allow,

Eustathius says: ‘In matters that are uncertain an oath should not
be used for confirmation, but prayers for a possible outcome.’

XXII—W hat unsworn pledge of good faith has by custom the force of

an oath

In many places instead of an oath it is found that good faith
is pledged by joining the right hands," which was ‘ the strongest
bond of faith among the Persians’; or by some other sign having
such force that, if the promise should not be fulfilled, the promisor
is considered no less detestable than if he had committed perjury.
Especially regarding kings and princes it was a very common saying
that their pledge of faith was as good as an oath. In fact they ought
to be such that they can say with Augustus, ‘I am a man of good
faith’; ? and with Eumenes, that they would rather lose their lives
than break faith. Also the verses of Gunther, in the Ligurinus [III.
511 f.|, bear on this point :

In his bare word the king is wont to show
Right and respect greater than any oath.

Cicero, in his oration For Deiotarus, praises the right hand of Gaius

) P §

Caesar, ‘as not stronger in wars and battles than in promises and
) g Pp

good faith’. Aristotle, too, noted that in heroic times the holding

of the sceptre upright counted as the oath of kings.

even regarding one’s own act; for the very nature of affairs takes out of our power many things
which are subject to chance.’

1 Mentioned by Eustathius, On the Odyssey, xxiv [for Iliad xxiv, line 669] ; Scholiast on Aristo-
phanes, Clouds [line 81, and Acharntans, line 307] ; Diodorus Siculus, Book VIII [XVI. xliii. 4]; Krantz,
Saxonica, XI. xxvii. In Deeretals, I. xl. 3, an oath and pledged good faith are put on an equality.

2 Isocrates says of Evagoras, Kmg of Salamis [Evagoras, xix = 1978]: ‘Guarding his verbal
agreements in like manner as his oaths.’ Symmachus, X. xix, says: ‘ Nowhere is there greater hope
of dependability than in the promises of good pmnces.’ Nicetas says of Alexis, the brother of Isaac,
Book III [III. 1v]: ‘ Kings must place the good faith of an oath above everything else.’

Cicero, For Cornelius Balbus [v.12]: ‘ Men say that at Athens, where a certain man who had
swom [lived] among them with uprightmess and dignity had given his testimony in public, and,
in accordance with the custom of the Greeks, was approaching the altars to take oath, all the judges
with one voice cried out that he.should not take oath.’

[256] CHAPTER XIV

ON PROMISES, CONTRACTS, AND OATHS OF THOSE WHO HOLD
SOVEREIGN POWER

I.—The opinion that restitution in full, which arises from municipal
law, pertains to the acts of kings as such, is refuted ; also, that
a king 1s not bound by an oath

1. [HE promises, contracts, and oaths of kings, and of others
who like them hold the chief power in the state, present peculiar
questions In regard to what is permitted to them as regards their
own acts; also, what is permitted to them in relation to their subjects
and in regard to their successors.

As regards the first point, the question 1s whether a king can
restore to himself his rights in full, as he can restore those of his
subjects, or can make a contract void, or can absolve himself from
an oath. Bodin is of the opinion that a king who has been over-
reached by the fraud or deceit of another, or induced by error or
fear, can be restored to his original rights for the same reasons that
a subject would be restored, not only in matters which pertain to
the rights of sovereignty, but also in matters which relate to his
private affairs. He adds that a king is not even bound by an oath
if the agreements are of a kind from which the law permits withdrawal,
even though they are consistent with honour; he is not, in fact,
bound because he has taken oath, but because every one is bound
by just agreements, in so far as another has an interest therein.

2. Here also we think that a distinction ought to be made,
just as elsewhere, between the acts of a king which belong to the
kingly office and those which are private. For whatever the king
does in acts belonging to his kingly office should be considered in
the same way as if the state did them. But as the laws made by the
state itself would have no power over such acts, because the state is
not superior to itself, so laws emanating from the king would not.
Wherefore, restitution will not take place against such contracts, for
restitution arises from municipal law. No exception, then, ought to
be admitted against contracts of kings which they have made in their

minority.

II.—To what acts of kings the laws apply ts set forth, with distinctions

1. Evidently if a people has placed a king in power without
absolute authority, but subject to certain laws, his acts contrary to
381

I. vii1
[r35].

[II vi. 4]

[I. visi.
135.]

382 On the Law of War and Peace [Book 11

those laws can be rendered void by them, either wholly or in part,
because to that extent the people has preserved its own right. The
acts of kings who rule with absolute power but do not hold their
kingdoms as proprietary owners, acts by which the kingdom, or
a part of the kingdom, or its revenues are alienated, we have treated
above; and we have shown that by the very law of nature such
acts are null and void, just as if they had been performed in respect
to the property of another.

2. The private acts of a king, on the contrary, ought to be
considered as acts not of the state, but of a part of the state, and
therefore done with the intention [257] that they should follow
the common rule of the laws. In consequence the laws which render
some acts either void, or voidable by the injured party, will apply
here also, just as if the contract had been made with that as a con-
dition. ‘Thus we see that certain kings have availed themselves of
the aid of the laws against extortionate interest charges. Neverthe-
less a king will be able to exempt from the operation of such laws
his own acts, as well as the acts of others; whether he intended so
to do must be judged from the circumstances. If he has done so,
the case will have to be judged by the bare law of nature.

This should be added, that if any law renders an act null and
void, not in the interest of the doer, but for his punishment, this
will have no force in regard to the acts of kings ; so also other penal
laws, and whatever has the force of compulsion, will not apply. For
punishment and coercion can proceed only from different wills ; and
so, to compel, and to be compelled, require separate persons, and
separate aspects of the same person do not meet the requirement.

IIl.—W hen a king 1s bound by hts oath, and when not

A king can render an oath null in advance, just as a private
person may, if by a former oath he has plainly deprived himself of
the power to swear to any such thing. But after an oath has been
taken he cannot render it void, because here also separate persons
are required. For whatever is rendered void after an oath has been
taken already in advance contained in itself this exception, ‘ unless
his superior should be unwilling’. But to swear so that you would
be bound only if you should yourself be willing is altogether ridiculous,
and contrary to the nature of an oath. Although from an oath of
this character no right may be gained for the other party, because
of some fault in himself, yet, as we have shown above, the person
who took oath is under obligation to God. ‘This applies no less to
kings than to others, although Bodin, in the passage cited, maintains
the opposite view.

Chap. XIV] On Promises, Contracts, and Oaths

383

IV.—How far a king is bound with reference to things which be promised
without cause

It has also been shown above that promises which are complete
and unconditional, and have been accepted, naturally confer a right.
This in like manner applies to kings no less than to others, so that
in this sense at least the opinion of those who deny that a king is
ever bound by promises which he has made without cause must be
disapproved. Nevertheless, we shall presently see in what sense even
this may be true.

V.— Application of what has been said about the force of law as regards
the contracts of kings

As for the rest, what we said above, that the municipal law of
a kingdom has no force in the agreements and contracts of kings,
was correctly seen by Vazquez also. But his inference ought not to
be conceded, that buying and selling without fixed price, letting and
hiring without stated amount, and permanent right of land tenure
without a written document, are valid if they are the acts of kings.
The reason is that such acts are not ordinarily performed by a king as
king, but by him just as by any person.

So far is it from being true that the laws of the realm have no
force in respect to acts of this kind, that we believe that the king is
subject even to the law of the town in which he lives; for the king
maintains himself there in a special manner as a member of that
society. Yet the matter stands, as we have said, only in case circum-
stances do not show that the king has been pleased to free his own
act from the operation of that law. Another illustration which
Vazquez presents, in regard to a promise made in any way whatsoever,
is quite in point, and can be explained in the light of that which
we have said above.

VI.—In what sense a king may rightly be said to be under obligation
to his subjects by the law of nature only, and also by municipal law

1. Almost all jurists believe that the contracts, which a king
enters into with his subjects, are binding upon him by the law of
nature only, and not by municipal law.

This is a very obscure way of speaking. For legal writers some-
times improperly speak of a natural obligation as referring to that
of which the fulfilment is by nature honourable, although not in
reality due, as the payment of legacies in full [258] without the
deduction allowed by the Falcidian Law, the payment of a debt

1569°27 pd

Angelus,
On Dig
XXI.

ii. IT.
Curtius
Junior,
Consilza,
CXXXViii,
no. 4.

Contro-
versiae
Lllusives,
II li 34.
Suarez,
III. xxxv.
I4.

Baldus,
On Drg.
II. xiv. 2.
Drg. I.
lll. 31.
Code, II,
IV. 43 5
ITI.
XxXxiv. 2.
Doctors,
On
Decretals,
J it. x.

Baldus,
On Code,
IV. vi. 10;
On Dig.
VI. xxui.
3.

Dig. XII,
V1. I9.
Code, VI.
1 x.

Dig. V.
lll 25.

§ If.

Jason, On
Drgest,
XII. 1v.
Bk. v.
Castaldus,
De Im-
peratore,
qu.iu, 81.
Vazquez,
Contro-
versiae
Tllustres,
I. ili. x.
Bodin,

I. viii.

On the Law of War and Peace [Book II

384
from which one had been freed by a criminal penalty inflicted on
the creditor, or the requiting of a favour with its like, acts of which
none permits of an action to recover anything unjustly paid. But
sometimes the words are more properly used with reference to that
which does in truth bind us, whether the other party has acquired a
right therefrom, asin contracts, or has not acquired it, as in a full and
firm promise.

The Jew Maimonides, in his Guide of the Perplexed, Book III,
chapter liv, appropriately distinguishes the three cases just men-
tioned, and says that what is not due falls under the head of
‘bounty’, which other interpreters of Proverbs (xx. 28) explain as
‘overflowing of goodness’. In the Hebrew language what is due
according to the strict sense of the law is called ‘a judgement’; and
what is due in accordance with honour is defined by the Hebrew
word meaning justice, that is, equity. So the interpreter of Matthew
(xxiii. 23) has used @deos (mercy), xpiows (justice), and aioris
(faith), where by cio7vis he expresses the idea for which dicaoovvy
(justice) is generally used by the Hellenists. For in Furst Macca-
bees (vii. 18 and 32) you may find «pious used for that which 1s
strictly due.

2. According to civil law also a person can be said to be bound
by his own act, either in this sense, that an obligation results not
from the law of nature alone but from the municipal law, or from
both together, or in the sense that the obligation gives a right to
action in a court of law. Therefore we say that a true and proper
obligation arises from a promise and contract of a king, which he
has entered into with his subjects, and that this obligation confers
a right upon his subjects; such is the nature of promises and con-
tracts as we have shown above; and this holds even between God
and man.

Now if the acts are such as may be done by a king, but also by
any one else, municipal law will be binding in his case also; but if
they are the acts of the king as king, municipal law does not apply
to him. This distinction has not been observed with sufficient care
by Vazquez. Nevertheless, from both these acts a legal action may
arise, at least so far that the right of the creditor may be declared ;
but compulsion cannot follow on account of the position of the
parties with whom the business is conducted. For it is not per-
missible for subjects to compel the one to whom they are subject ;
equals, however, by the law of nature, have this right against equals,
and superiors against inferiors even by municipal law.

1 To this class belong those acts which are performed with no other motive than generosity and
bountifulness, as this is expressed in the Digest, XX XIX. v.1. Plutarch, Cato the Elder [v= 339 A]:
‘Generosity flows from the bounteous spring of a kindly disposition.’

Chap. XIV] On Promises, Contracts, and Oaths

385

VIl.—In what way a right lawfully obtained by subjects may be taken

away

This also ought to be known, that through the agency of the
king even a right gained by subjects can be taken from them in two
ways, elther as a penalty, or by the force of eminent domain. But
in order that this may be done by the power of eminent domain
the first requisite is public advantage; then, that compensation
from the public funds be made, if possible, to the one who has lost
his right. Just as such a result is accomplished in other things, then,
so also in respect to the right which is created by a promise or contract.

VIll.— Here the distinction between rights gained by the law of nature
and by municipal law 1s rejected

Herein by no means should the distinction be conceded which
some persons make, between a right gained through the force of the
law of nature and a right which arises from municipal law. The right
of the king is, in fact, the same over both kinds of rights, nor can
the one any more than the other be taken away without cause. For
when ownership or any other right has been acquired by any one in
a legitimate manner it is a provision of the law of nature that this
may not be taken away from him without cause. If a king should
act to the contrary he is without doubt bound to make good the
damage inflicted, because he is acting against a true right of the
subject.

The right of subjects, then, differs from the right of foreigners
in this, that over the right of foreigners, that is, over those who are
in no way subject, the power of eminent domain has no control. In
regard to penalties we shall see below. But the right of subjects is
subordinate to that of eminent domain so far as the public interest
may require.

IX.—W hether the contracts of kings are laws, and when

From what we have said it becomes apparent how false is the
opinion which some advocate, that the contracts of kings are laws.
For no one acquires a right against a king from the laws; if there-
fore he revokes them, he does a legal [259] injury to no one.
Nevertheless he commits a moral wrong if he pursues such a course
without just cause. Right, however, does arise from promises and
contracts. Only the contracting parties are bound by the contracts,
while all are subject to the laws. Nevertheless, some mixtures of
contracts and laws are possible, as treaties made with a neighbouring
king, or a contract with a farmer of the revenues which is at the

pdz2

Vazquez,
Conitro-
VETS1AE
Illustres,
I v. pr.,
and I,
passim,
and
Castrensis,
Constha,
I. coxxix.

Baldus,
On Dig.
XXXIX,
iv. 15.
Bartolus,
On Dig.
ITT. iv. 7.
Jason,
Consilia,
vol. I,

1. 4, and
others
cited by
Vazquez,
Contro-
VEVStQE

Ilustres,
I

ili 5.

386 On the Law of War and Peace [Book I

same time published as a law, in so far as there are provisions in it
which have to be observed by the subjects.

X.—In what way the contracts of kings are binding on the heirs of all
their possessions

Let us come now to the successors.! In regard to these a dis-
tinction must be made, whether they are the heirs at the same time
of all the possessions as those who inherit an hereditary kingship by
will, or in default of a will; or are successors to the kingship only,
as for example in consequence of a new election, or in accordance
with a prescribed rule; or by a sort of imitation of ordinary inherit-
ance, or otherwise; or whether, finally, they succeed by a mixed
tight. For there must be no doubt that those who are heirs of all
the possessions, as well as of the kingship, are bound by the promises
and contracts. The rule that the property of the deceased is subject
to his personal debts also is as old as property ownership itself.

XI.—In what way those who succeed to the kingship only may be bound
by the same contracts

1. But there are those who succeed to the royal power only,”
or to the property in part and to the royal power in its entirety.
The question to what extent they are obligated is one which is all
the more worthy of investigation, for the reason that previously it
has been confusedly handled. Now it is sufficiently clear that such
successors to a kingship are not in that capacity directly, that is to
say immediately, bound ;* they do not receive their right from the
one who has last died, but from the people, whether that succession
approaches more nearly to the right of ordinary inheritance, or is
farther removed from it. This distinction has been treated above.

2. Such successors may be bound through an intermediary,
that is through the interposition of the state.* This will be under-
stood as follows. An association, as well as an individual, has the
right to bind itself by its own act, or by the act of a majority of its
members. This right it can transfer, not only explicitly, but also
as a natural consequence, as for example in transferring the sovereign
authority. For in morals he, who grants the end, grants the means
which lead to the end.

1 See the authors cited by Reinkingk, Book I, class 111, x.

* See Aimoin, edited by Freher, p. 373.

8 Thus Solomon was not obliged to keep the promise which David had made to Shimei
[z Kings, ii. 9]

4 See similar cases in Decretals, III. xxiii. 1; Sext, II. xiv. 3,is more in point, where these words
should be noted: ‘ When both the donation of the above-mentioned grandfather and the acquisition
of the stipulated lands were made in the name of the kingdom.’ See also Treutler, I. vi. 7; Syring,
De Pace Religtonts, concl. 19.

Chap. XIV]

On Promises, Contracts, and Oaths 387

XII—To what extent those who succeed to the kingship only may be
bound by the same contracts

I. Nevertheless this transfer of obligations cannot go on to an
unlimited extent. The unlimited power of imposing obligations is,
in fact, not essential to the proper exercise of sovereignty, just as
it is likewise not necessary for guardianship or trusteeship; it is
necessary only in so far as the nature of the power demands. ‘A
guardian is considered as holding the place of the master,” says Julian,
‘as long as he manages the estate well, not when he is robbing his
ward.’* In this sense the statement of Ulpian, that the agreement
made by the master of a society not only may help it but may also
injure it, is to be understood.

Nevertheless, this matter [a contract by a king] does not, as
certain persons think, have to be handled according to the nature of
business undertaken for others, so that the act should then be con-
sidered to be ratified, if it has turned out advantageously. For it is
dangerous for the state itself to reduce the ruler of the state to such
straits. “Therefore it is not to be believed that the people held such
an opinion when it conferred the sovereign power. But the decision
rendered by the Roman emperors in the case of a city, that action
taken by the magistrates in a doubtful matter was valid, but not if
that was undoubtedly given away which could be collected, ought
and can be made to apply to our question concerning the whole
people, if due proportion has been preserved.

z. Consequently, just as not all laws bind the subjects—for
even in addition to laws which command something illegal there
can be laws that are plainly foolish and ridiculous *—so also the
contracts of rulers are binding upon subjects if they have a reasonable
motive; and in case of doubt such a motive ought to be presumed
by reason of the authority of those who rule.* This distinction is
much [260] better than the one commonly suggested by many
writers, which is based on the slight or great injury of the outcome.

1 The statements of Camden (H:story of Elizabeth, pt. tv, Year 1595) apply on this point; also,
what Kromer in Book XXVII [p. 593] has concerning the debts of George, king of Bohemia, unwisely
assumed by Wladislaus.

2 As the law of Cabades, king of Persia, in Procopius [Perstan War, I. v. 1], and Agathias [IV.
XXvu-xxviu].

Peter, ambassador of Justin II to Chosroes, when discussing the promises which Justinian seemed
to have made to the Saracens, applies this principle of law to alienations: ‘No state, in fact, will
ever be condemned by reason of the practice of one man, nor even a bad law, though it should be the
emperor who has established such a practice, or has confirmed it by law’ [Menander Protector,
frag. I5, p. 39, edit. Dindorf].

3 Sidonius, Book V, letter xvii [V. xvi. 2]: ‘ The state ruled by a prince will always make good
what the prince has promised.’ See Ambrose, on the praises of Theodosius [De Ob:tu Theodost, v} ;
Symmachus, IV. vii and xix, and V. xxxvii; Council of Toledo, V. vi, and Decretals, III. xxiv. 3.
Corippus in Book II [II, line 389] relates that the debts of Justmian, which were very great, were paid
by Justin, his successor in the Empire.

Digest,
XLI. 1v,
7-§ 35
XXVIT
KX 12;
Code, II
lll 22;
Dig. I.
xiv. 28.

§ I.

Dig Ii.
XIV. I4.
Code, II
iv. 12
Alphonsus
de Castro,
De Potes-
tate Legis
Poenaizs,
Iv;
Victoria,
Relecino de
Potestate
Papae et
Concilat,
no. 18
Thomas,
I il,

qu. 95;
art. 3
Panormi-
tanus, On
Decretals,
Iu. 7,
no Y¥4.
Felinus,
no 60.
Torque-
mada, On
Decr , IT.
xi 3.1
concl. 6
and 7, nos.
8 and 9.
Others,
On Deer.,
II. iit,
34. 6.

Aguurre,
Apologia,
pt. I,
no. 70.

Histories,
III [lv].

388 On the Law of War and Peace [Book II

In this matter, in fact, not the outcome, but the reasonable motive,
ought to be kept in view. If a reasonable motive is present, both
the people itself will be bound, if by any chance it has commenced
to be independent, and also the king’s successors, as being the rulers
of the people. For also in case a free people should have made
a contract the obligation would be binding upon the one who should
afterward accept the sovereignty, even with the most unlimited
powers.

3. Titus Caesar is praised on this account,* because he did not
allow petitions to be made to himself for the favours granted by his
predecessors, although Tiberius and the emperors who followed him
had not considered the benefactions of their predecessors valid,
unless these had been expressly confirmed by themselves. Following
the example of Titus, the most excellent emperor Nerva, in an
edict preserved in Pliny,? says: ‘I am unwilling that any one should
think that what he obtained from another emperor, either privately
or publicly, is annulled by me in order that he may be under obliga-
tion to me if I ratify and confirm it; and the congratulations of any
one do not need to be accompanied by petitions for renewal.’ But
also Tacitus, having related of Vitellius that without regard for
posterity he had torn the Empire to pieces while the common crowd
were thronging to secure his extravagant gifts, and some people were
even buying them with money, adds, ‘ Among wise men those gifts
were considered void which could neither be given nor accepted
without the ruin of the state.’ *

1 The story is in Suetonius, [Titus,] viii; Xiphilmus from Dio [Dio Cassius, LXVI. xix. 3];
[Aurelius] Victor [On the Caesars, x.2]. There is a similar thing m the Decretum, II. xxv. 1.153 Gail,
Observattones, II. 1x. 15. See also the history of Radevic. Gunther, Ligurinus, V [lines 560 ff.]:

And kings who follow cannot overthrow,

Nor yet revoke, a deed that has been done.
The proofs made safe with royal seal he left,
And also, for the Duke, sure documents.

[262] In Book VIII [lmes 579 ff.]:

So great this famous king’s indulgence was,
That whosoever had possessed the grants

Of former kings with faith unto this time,
And this could prove or show by documents,
Rejoices in the king’s assent, and still
Retains possession.

2 Pliny, Letters, Book X, Ixvi [X. lviii. 9].

§ Manana, XXIV. xvi, cites this and applies it to the boundless munificence of Frederick, king
of Naples. Galba recalled the gifts of Nero from the purchasers with the exception of a tenth; Tacitus,
HAtstortes, I [I. xx], and Plutarch [Galba, xvi= p. 10604]. Pertinax even exacted from the freedmen
what they had appropriated under the pretence of sale when Commodus was emperor [Capitolinus,
Pertinax, vii. 1].

Basil the Macedonian as emperor revoked what the Emperor Michael had given away. Zonaras
[XVI. viii] says of hm: ‘It was decided with unanimous consent that those who had received money
for no good cause should make a refund, some of the entire amount, some of a half.’

See the same author on Isaac Comnenus [XVITI. iv]. See de Serres, Charles VIII [p. 413], on
the donations of Louis XI. See Philippe de Commes, Book IX, on grants of the same king which, though
made to churches, were revoked.

Chap. XIV] On Promises, Contracts, and Oaths 389

4. Here also this should be added, that if by any chance a
contract should begin to lead not merely to some loss, but to the
ruin of the state, so that the contract, if carried to conclusion, would
have to be considered as unjust and illegal from the beginning, then
it is possible not exactly to revoke it, but rather to declare that it
has no further binding force,’ as if made under a condition without
which it could not have been made justly.

5. What we have said about contracts Js also to be understood
in regard to the alienation of the public funds,’ or of anything else
which, according to law, the king can alienate for the public good.
Here also a similar distinction must be maintained, whether there
was a reasonable motive for giving, or otherwise alienating.

6. But if the contracts have to do with the alienation of the
kingdom, or of a part of it, or of the royal patrimony, in so far as this
has not been placed in the king’s hands, they will not be valid, for
the reason that they have been made in regard to the property of
another. The same will hold in limited monarchies, if the people
has reserved any matter, or kind of act, from the royal power. For
in order that such acts may be valid the consent of the people 1s
required, such consent being given either in person or through
those who lawfully represent it, as can be understood from what
I have said above about alienation.

With the help of these distinctions it will be easy to judge
whether the pleas made by those kings that have refused to pay the
debts of their predecessors, whose heirs they have not been, were
just or unjust. It is possible to find examples of such pleas in Bodin.

XIII.—W hat grants of kings are revocable, and what are not, 15 set
forth, with a distinction

This, again, which has been affirmed by many,’ that the grants
of rulers made from generosity can always be recalled, ought not to
be allowed to pass without a distinction. There are, in fact, certain
gifts which a king makes at his own expense, and which have the
force of an absolute grant, unless there is inserted a clause implying
termination at will. Such grants cannot be revoked,* except in
relation to subjects for the purpose of punishment, or in the public
interest—in the latter case, with compensation if possible.

See Mariana conceming the revocation of the grants which Ramirus, king of Aragon, had made
(X. xvi), and conceming the revocation of the grants of Isabella by herself (X XVII. x).

See Kromer, XII [XIII, pp. 322-3] on the will of Casimir, king of Poland, which was partly
accepted, partly annulled.

1 Decretals, III.xxx.9. There is an example in the Acts of Alphonso and Sanchez given by Mariana
in Book XII, last chapter, and in Camden for the years 1595 and 1597 in the Hanseatic controversy.

2 There are matters related to this in the Councils of France, vol. III.

3 See those cited by Reinkingk, II. 11. 8, nos. 26 ff.

4 See Afflictis, Dectstones, cxxvill, NO. To.

[Chap. vi]

I. viii.
163.

Curtius
Junior,
Consiha,
A, and
elv1i. x8.
Cravetta,
De Anti-
quitatibus
Tempo-
rum, II,
pt. I,

no. 38.

Belluga,
Speculum
Princepis,
XXV1.
Anton
Gabrieli,
Conclu-
siones, I,
tit. De jure
quaes~
i0n1S Hon
tollendo,
V1. 20
and vil.

390 On the Law of War and Peace [Book II

There are other grants which take away the binding force
merely of a law without any contract, and these are revocable. The
reason is that, as a law which has been annulled in regard to all people
can always be re-enacted for all, so also, when a law in respect to
a particular person has been annulled, it can be restored in regard
to that person. Here, in fact, no right was acquired against the
author of the law.

XIV.—W bhether the rightful possessor of the throne is bound by the
contracts of usurpers

Neither peoples nor rightful kings will be bound by the contracts
of those who have unlawfully [261] seized the sovereign authority.
For these do not have the right to place a binding obligation on the
people. Nevertheless they will be bound for what has been spent
for their advantage, that is, in so far as they have been made richer.

CHAPTER XV
ON TREATIES AND SPONSIONS

l.—W hat public conventions are

[263] Utpran divided conventions into public and private.
ublic conventions he explained, not, as some think, by definition,
but by giving examples. His first example is the convention ‘ which
is arranged in time of peace’; and the second, ‘ When the generals
in command in a war conclude certain agreements with each other.’
Ulpian, then, understands that public conventions are such as can be
made only by the right of a higher or lower authority of government ;
and in this respect they differ not only from the contracts of private
persons, but also from the contracts of kings which are concerned
with private affairs.

However, from such private contracts also causes of war are
wont to arise, although more frequently from public contracts.
Having, therefore, sufficiently treated of compacts in general, we
ought to add some details which relate to this more excellent kind
of agreement.

II.— Conventions are divided into treaties, sponsions, and other agree-
ments

We can divide these public conventions, which the Greeks call
cuvOyKxas (articles of agreement), into treaties, sponsions, and other
agreements.

IlI.— The difference between treaties and sponsions ; to what extent
sponstons are binding :

1. For the distinction between treaties and sponsions, Livy
may be cited, in Book IX, where he correctly shows us that treaties
are made by order of the highest authority, and that in respect to
such treaties the people itself is liable to divine wrath if it does not
keep its agreements. Such treaties, according to custom, were made
among the Romans by the fetials together with the ratifying priest.
A sponsion is made when those who do not have from the supreme
authority a commission for such an act promise something which
essentially affects that authority.

391

Dig. II.
xiv. 5.

[IX. v.]

(Jugurtha,
XXXIX 3]

XXIV
[v1. 3].

[1188 ff.]

[Livy,
V. xlix. 2.]

(XIII.
XV1. I.]

392 On the Law of War and Peace [Book II

In Sallust we read: ‘ As was proper, the senate decreed that no
treaty could have been made without its authorization and that of
the people.’ Hieronymus, king of Syracuse, had made an agreement
of alliance with Hannibal, as Livy relates; but afterward he sent to
Carthage in order to make the agreement of alliance into a treaty
of alliance. Hence the statement in Seneca the father:* ‘ The
commanding general made a treaty; the Roman people seems to
have made it and is bound by the treaty.’ This refers to those com-
manders of ancient times who had received a special commission for
such an act.

In kingdoms, however, the kings have the right to make treaties.”
Says Euripides in the Supplianis :

This treaty oath Adrastus needs to swear ;

For having royal power, the right he has
To bind the state with treaty made by him.

In this passage, in fact, the verb at the end is to be read as an infinitive,
as we have given it, not in the indicative.

2. Moreover, just as the magistrates do not bind the people by
their acts, so a minority of the people does not. ‘This principle
favours the Romans as against the Senonian Gauls ; for the majority
of the people were with the dictator Camillus. It is not possible, as
we find in Gellius, to treat with a people in two divisions.

3. But let us see wherein those are obligated who, without
the authority of a people, have promised something which is within
the power of the people. Some one may perhaps think that in this
case the promisors have fulfilled their pledge if they have done their
utmost to have their promise carried out in accordance with the
principles which we have previously stated * in regard to a promise
made by athird party. Butinthis matter, [264] in which acontract
is involved, nature desires a much stricter obligation. For whoever
in making a contract gives or promises something of his own wishes
in turn that something in fact be furnished to him; hence, according
to the civil law, which rejects the promise of another’s act, the
promise to have an act ratified is nevertheless binding, so far as the
promisor is concerned.

1 Controversies, IV. xxix [==IX. ii. 15].
2 See below, Book III, xx. 2, and following. Servius, Ou the Aenetd, Book II [II, les 160 f ],
on the words
And mayest thou, Troy, be saved,
And keep thy pledge of faith,

says: [273] ‘ Because the state seems to promise what the king promises.’ And when Aeneas makes
a treaty with Latinus before fighting in single combat Servius adds [Ox the Aenerd, XII, line 212]:
‘ [The poet] does not introduce Tumnus as taking the oath, for the reason that in the presence of the king
he did not have the power.’

I. xi 22.

Chap. XV] On Treaties and Sponsions 393

IV.— Rejection of the classification of treaties which Menippus made

According to Livy,t Menippus, ambassador of King Antiochus
to the Romans, made a classification of treaties rather for his own
purpose than according to the rules of his craft. He said that there
are three kinds of treaties which kings and states make with each other.
One kind is consummated when terms are dictated to those who
have been conquered in war; in this class of treaties the victor has
the decision as to what he wishes the conquered to have and to be
deprived of. The second kind of treaty is made when those who are
equal in war come into relations of peace and friendship by an equal
alliance ; in such cases restitution is asked and granted by the agree-
ment, and if the possession of anything has been disturbed by the
war a readjustment is made either in accordance with the terms of
the ancient right or to the mutual advantage of both parties. The
third kind is consummated when those, who have never been enemies,
unite in a league of friendship with each other through a treaty of
alliance; in such cases the signatories neither impose terms nor
accept terms.

V.—The classification of treaties: first, treaties which establish the
same rights as the law of nature ; whence this artses

1. But it is necessary for us to make a classification with greater
painstaking. First, then, we shall say that some treaties establish
the same rights as the law of nature, while others add something
thereto. ‘Treaties of the first class not only are wont to be made
between enemies who cease from war, but formerly also they were
often made, and were in some degree necessary, as between those
who previously had made no compacts with each other.

Hence arose the rule of the law of nature, that by nature there
is a kind of relationship between men, and therefore it is an impious
crime that one should be injured by another. ‘Though this rule was
in force in the olden time before the Flood, yet some time after the
Flood it was effaced again by evil customs, so that it was considered
lawful to rob and to plunder strangers without declaration of war.’

This Epiphanius calls ‘the Scythian fashion ’.

1 Add Diodorus Siculus, Selections on Embassies, iv [= XXVIII. xv. 2].

2 Caesar says of the Germans [Gallic War, VI. xxiii. 6]: ‘ Acts of brigandage committed outside
of the boundaries of any state involve no disgrace.’ Tacitus is an additional witness, On the Customs
of the Germans [xiv and xxvi]; also Saxo, Book XIV [pp. 259-60] and elsewhere.

The same thmg was written about the Etruscans by Servius, On the Aeneid, VITI [VIII. 479] and
X [X. 184]; and about other peoples, On the Aeneid, I [I. 317]. Diodorus Siculus [V. xxxiv. 6]
says the same of the Lusitamians. And with him Plutarch agrees, Marius [vi= 408]: ‘ Up to that
time brigandage was considered by the Spaniards among the most noble occupations.’ ;

Similar is the fact that the Jews maintain that a loss that has been occasioned to one who is
neither a Jew, nor allied to the Jews, ought not to be made good [Baba Kama, I. 2, p. 13}.

XXXIV
wi. 77.

[Against
Heresy,
pr. and
I=p. 4.]

Dugesi,
XLVII.
XX11. 4
XLIII
[111.5].

{T. xl ]
[Jugurtha,
x1x. 7 ]
[Polticcs,
I, vi.)

Livy,
XLI
(xxIVv.
15 ff.).

[Orattons,
ii iz]

On the Law of War and Peace [Book I]

394

2. In consequence the question in Homer,’ ‘ Are you plun-
derers?’ is a friendly inquiry, of which Thucydides? also makes
mention. In the ancient law of Solon there are companies ‘ of those
who go out for booty’. Indeed, as Justin says, up to the times of
Tarquin piracy was considered an honour. In the Roman law this
principle is stated, that if it is considered that neither friendship nor
hospitality nor any treaty for the sake of friendship has been made
with any peoples these are not indeed public enemies ; yet whatever
has come to them from the Romans should belong to them, and a free
Roman captured by them would be a slave. The same thing, again,
would happen if any one came from them to the Romans; and in
this case also postliminy should be granted.

Thus formerly, before the period of the Peloponnesian War,
the Corcyraeans were not public enemies of the Athenians, but they
had neither peace nor treaties with them, as is apparent from the
speech of the Corinthians in Thucydides. Of Bocchus Sallust says :
‘Known to us neither in peace nor in war.’ Hence the taking of
plunder from barbarians was commended by Aristotle, and in ancient
Latium the word hostis means only a stranger.

In this class I include also treaties in which provision 1s
made that there shall be rights of hospitality and commerce on both
sides, in so far as such rights come under the law of nature, a subject
which we have treated elsewhere. According to Livy Arco uses this
distinction in his speech to the Achaeans, in which he said that the
question at issue is not regarding an alliance but regarding a stipula-
tion for granting and obtaining a right of commercial intercourse, in
order that, to be specific, the slaves of the Macedonians might not
find a refuge among them. The entire class of conventions the
Greeks call in a strict sense ‘peace’, and they contrast it with ‘treaties’,
as may be seen both elsewhere and in the oration of Andocides On the
Peace with the Lacedaemonians.

[265] Vi.—Treaties which add something beyond the rights of the law

of nature ; what treaties are on equal terms

1. Conventions which add something beyond the rights based
on the law of nature are either on equal or on unequal terms. Those
are on equal terms * which are of the same character on both sides,

+ Odyssey, III [III. 71], where the Schohast says: ‘Among the ancients, brigandage was not
only free from disgrace, but in addition was considered full of glory.’

2 Book I [I. v]; and he adds: ‘This kind of Infe did not yet involve disgrace, but rather was
considered praiseworthy.’

* Thus Pliny [Natural History, VI. xxv. 112] says that the Parthians lived on terms of equality
with the Scythians. In Lucan [VIII. 231-2] Pompey says of the same people, the Parthians :

The Parthian alone approaches me on equal terms.

On Treaties and Sponstons

Chap. XV] 395

‘which are equal and common on both sides’, as Isocrates says in the
Panegyric. ‘To such a convention the verses of Virgil apply :

Nor seek I kingdoms for myself; on equal terms
Unvanquished let the nations both alliance form
That shall endure for ever.

The Greeks call conventions of the first type sometimes simply
‘covenants ’, sometimes ‘covenants on like and equal terms’, as may be
seen in Appian and Xenophon. The second type they call more
properly ‘treaties’; and in so far as these are concerned with inferiors
they call them ‘arrangements imposed by command’. In his speech
On the Freedom of the Rhodtans, Demosthenes says that such treaties
ought to be avoided by those who love liberty, because they approach
very near to servitude.

2. Treaties of both types are made for the sake either of peace
or of some alliance.

Equal treaties of peace are those, for example, which are com-
monly arranged for the restoration of captives and of captured
property, and for safety ; these will be discussed below in connexion
with the effects and consequences of war.

Equal treaties of alliance have to do either with commerce, with
joint action in war, or with other matters. Equal agreements in
regard to commercial relations may have various ends in view, as,
for example, that no import duties should be paid on either side, an
article of agreement in the ancient treaty between Rome and Carthage,
containing an exception to cover that which was regularly given to
the clerk and the public crier; or that no greater duties should be
levied than at present; or that duties should be levied only up to
a certain amount.

3. So also in an alliance for war the agreement may be that
equal auxiliary forces of cavalry, infantry, and ships shall be furnished,
either for every war, which the Greeks call ‘an offensive and defensive
alliance’,t and Thucydides explains as ‘having the same enemies and
friends ’—this you may often find in Livy also—or for protecting the
boundaries only, which the Greeks call ‘a defensive alliance’; or for
a particular war; or against particular enemies; or against all
enemies, to be sure, but with the exception of allies, as in the treaty
between the Carthaginians and Macedonians, which is found in
Polybius. Likewise the Rhodians by treaty promised aid to Antigonus
and Demetrius against all enemies whatsoever except Ptolemy.

An equal treaty, as we have said, may apply also to other matters,
with provisions such as these, that neither signatory shall have fort-

1 The ancient Greeks called it ‘a union for battle’; Zosimus, Book V [V. xiii].

hv 176
Pp. 77 E.]
(lenerd,
XIT, lines
Igo-1 |

(Maced
Aff ,xi.5f,
Greek
History,
VIL i rf]

f =ITso-
crates,
Archida-
mus, li
r26c]

({IT. lxxv.]
[MXIT
KXKV 3.]

[VIL.ix 9]
Plutarch,
Demetrius
[XxX11= p.
899 a].

[Livy,
XXX,
XxxXVii. 4 ]

(IX.x=x.7.]

396 On the Law of War and Peace [Book II

resses in the territory of the other,’ or defend the subjects of the
other, or furnish a passage to the enemy of the other.

VIIL.—W hat treaties on unequal terms are; such treaties, again, are
subdivided

1. From the discussion of treaties on equal terms it may easily
be understood what unequal treaties are. Unequal terms, moreover,
are promised either by the party of higher rank or by the party of
lower rank. Such terms are unequal on the part of the superior if
he promises aid, but does not require it, or promises greater aid.
Unequal terms on the part of the inferior, or, in accordance with
what Isocrates says in the Panegyric just cited, ‘ those who oppress
the other party more than is just’, are those which, as we have said,
were called ‘arrangements imposed by command’.

Such treaties, again, are either accompanied by impairment of
sovereignty, or are without such impairment.

2. Such treaties may be accompanied by impairment of sovereign
power, as the second treaty of the Carthaginians with the Romans,
which contained the provision that the Carthaginians should not
make war on any one without the sanction of the Romans. From
that time, as Appian says, ‘ the Carthaginians, by treaty, were subject
to the Romans.’

To this kind of treaty there may be added a conditional sur-
render, excepting that such a surrender involves not an impairment
but a transfer of the whole sovereign power; on this subject we have
spoken elsewhere. Such an agreement Livy designates as a treaty
both elsewhere and in Book IX: ‘ The Teates in Apulia begged that
a treaty should be granted to them, and yet that they should not
be on equal terms, but under the sway of the Roman people.’

3. In treaties without impairment [266] of sovereign power
the burdens are either temporary or permanent.

The temporary burdens are concerned with the payment of an
indemnity, the destruction of fortifications, the withdrawal from
certain places ; or the giving of hostages, ofselephants, of ships.

The permanent obligations are, for example, to recognize the
sovereignty and respect the majesty of the other signatory; what
the force of such a stipulation is we have said elsewhere. Closely
related to this is the provision that the one signatory should have
as enemies and friends those whom the other signatory desires; and
that a passage through his territory, or supplies, should not be given
to any army with which the other is at war. ‘Then there are the
other matters of less moment, that it should not be permissible to

1 See an example in Procopius, Persian War, I [I. ii. 15].

Chap. XV] On Treaties and Sponstons 397

build fortresses in certain places, or to lead an army thither, or to
have ships beyond a certain number, or to build a city, or to engage
in navigation, or to enlist soldiers in certain places; that they should
not attack the allies, nor aid enemies with provisions, nor receive
persons coming from another place; and that treaties previously
made with other peoples should be annulled. Examples of all these
provisions may be found in Polybius, Livy, and other historians.

4. Unequal treaties, moreover, are wont to be made not only
between victors and vanquished, as Menippus thought, but also
between more powerful and less powerful peoples that have not even
engaged in war with each other.

VIII.—T hat treaties with those who are strangers to the true religion
are permissible by the law of nature

A question frequently raised concerning treaties 1s whether they
are lawfully entered into with those who are strangers to the true
religion.

According to the law of nature this is in no degree a matter of
doubt. For the right to enter into treaties is so common to all men
that it does not admit of a distinction arising from religion. There
is, however, a question in regard to the teaching of the divine law,
and in consequence not only the theologians * but also some jurists
treat the question ; among these are Oldradus and Decianus.

IX.—T hat treaties with those who are strangers to the true religion are
not, generally speaking, prohibited by the Hebraic law

1. let us first consider the divine law as set forth in the Old
Testament, and afterward discuss the teaching of the New.

Before the law of Moses it was permissible to make with strangers
to the religion a treaty not to inflict injury. An example is the
treaty between Jacob and Laban—not to speak now of Abimelech,
since it is not sufficiently established that he was an idolater. And
no change in this respect was made by the law of Moses. Let the
Egyptians serve as an example. They without doubt were at that
time idolaters ; yet the Jews are forbidden to hold aloof from them.
An exception must be made of the geven peoples condemned by a
divine sentence, which the Jews were chosen to execute ; for Israelites
are forbidden to spare them, because they are obstinate in their
idolatry and refuse to submit to overlordship. To these the Amale-
kites likewise were joined by divine decree.

2. Treaties of commerce also, and other similar conventions,
which are to the common advantage, or to the advantage of either

2 As Antoninus, Cajetan, Toledo, Molina, Valdes, Malderen.

[Livy,
XXXIV.
Ivi. 6 fF J

Thomas,
IT. 11,

qu. I0,
art. 10.
Oldradus,
Consslt1a,
Ix;
Decianus,
Constlia,
III, xx

Genesis,

[Genesis,
Xxi 28.]

Deutero-
nomy,
xxiii. 7.
Deutero-
nomy,
Vil. I.
Deutero-

EXV. 17.

2 Samuel,
Vv. Ir

r Kings,
Vv 12

Leviticus,
xix 8
[xix 18]
Deutero-
nomy,
XXL. I

[Saioves,
X1V. 103 |

On Duives,
I [xvi 51].
On
Benefiis,
VI. 1x

[IV. xxix].
Historves,
V [v]

[ John,

lv 9:3
Acts, X.
28 |
[Josephus
Agawmst
Apwn, II
XXXVI.
258 |
[XXXIV.
1.]

[Lufe of
A pol-
lonws,
Vv. 33-]

[John,
iv. 7.]

398 On the Law of War and Peace [Book II

party, may be entered into with pagans according to the law. Nothing,
in fact, is found which is opposed to this view. Further, we have
examples of the treaties which David and Solomon made with Hiram,
king of Tyre; and the point is to be noted that in the Scriptures
it is stated that this treaty was made by Solomon according to the
wisdom which God had given him.

3. The law of Moses does indeed specially command Jews to
do good to their own people, ‘to love their neighbour’. Further, the
peculiar food and system of morals prescribed for the Jews scarcely
admitted of familiar intercourse with other men. But from this it
does not follow either that they were not permitted to do good to
strangers, or even that such doing of good was not praiseworthy,
though this inference has been erroneously drawn by the faulty
interpretation of later teachers. From such a source comes the
statement of Juvenal about the Jews :

The way he does not show except to one
Who shares with him his sacred rites.

In this passage the example of pointing out the way stands for the
forces which are least troublesome and costly, which Cicero and
Seneca say ought to be granted even to strangers. Of like import is
the statement of Tacitus concerning the same people: ‘In their
relations with one another, inflexible good faith, ready compassion ;
against all others, hostility and hatred.’

Similarly in the New [267] ‘Testament we read that the Jews
were not accustomed to live, ‘to havedealings’, ‘to eat’, ‘to join’, or ‘to
associate’, with those of foreign origin. Also Apollonius Molo said,
in reproach of the Jews, that ‘ those who had different views about
God were not received by them, and that they did not have anything
in common with those who differed from them in mode of life’.
According to Diodorus friends of Antiochus bring against the Jews
the charge that ‘ they alone of all peoples are unsociable with foreigners
to such a degree that they consider all other men as enemies’. ‘There
follows this about the same people: ‘ With no other race do they eat
in common, nor do they wish well to others.’

Presently ‘ hatred of the human race’ is alleged against them.
In Philostratus Apollonius of Tyana speaks thus of the Jews: ‘ They
have found a kind of life so withdrawn from human intercourse that
they do not even eat in common with others.’ Likewise also in
Josephus ‘ the unsociable mode of life? of the Jews is in many passages
objected to.

4. That such is not the meaning of the law Christ taught us
by His example, when He did not refuse to accept water from the
Samaritan woman, though He is everywhere most observant of the

Chap. XV] On Treaties and Sponsions 399

law. But also formerly David had sought refuge among peoples tr Samuel,
not of the faith, and he is nowhere criticized on that account. In **"

Josephus this utterance is assigned to Solomon, when dedicating the Antiguzises
Temple and praying that God might there hear even the prayers of ofthe Jews,

4 . . a . : VII u
foreigners: ‘We are not of unhuman disposition, nor ill-disposed [v1ut.
towards strangers.’ v 3].

5. Not only are the peoples who were mentioned above to be
excepted from this rule, but also the Ammonites and Moabites, who
are spoken of in Deuteronomy (xxiii. 6): ‘Thou shalt not seek their
prosperity "—this is here a better interpretation of the Hebraic
word than ‘ their peace °"—‘ nor their good all thy days for ever’. By
these words beneficent treaties with the peoples mentioned are for-
bidden, though the right to make war is not also granted; or at any
rate, according to the opinion of some of the Jews, it was forbidden
to seek peace from them, or even to accept it when offered. Surely
the right to make war on the Ammonites is denied to the Jews in
Deuteronomy (ii. 19); and Jephthah did not commence war against Judges,
them until the ways of a fair peace had been tried, nor did David, Ps7 re
except when provoked by cruel injuries. x.

6. ‘There remains the question of an alliance for purposes of
war.

Before the giving of the law such an alliance with heathen
peoples was permissible, as is apparent from the example of Abraham,’
who helped the impious Sodomites in war. In general no change in
the law of Moses in regard to this matter is read of. Consistent with
the position stated was the view of the Asmonaeans, as we see,
a people both skilled in the law and very religious,” as is apparent
from their careful observance of the Sabbath, the defence only of
themselves, and their use of weapons for no other purpose. Never-
theless, with the approval of their priests and people, they made
treaties with the Lacedaemonians and the Romans; even more, they [x Macca-
performed public sacrifices in behalf of the safety of those peoples. 7 Vit.
The cases which are cited to prove the contrary have special reasons. 6#]

7. If, in fact, God had indicated through the prophets that

1 He likewise made an alliance with Eshcol and Aner (Genesis, xiv. 13]. So also David made an
alliance with Achish and Nahash, Solomon with the Egyptians, Asa with Ben-hadad [r Samuel,
xxvii; 2 Samuel, x. 2; © Kings, iti. t and xv. 19].

2 Praise of them is found in the Chaldaean Targum, in the Books of the Maccabees, and in the
Eptsile to the Hebrews. Following their example, the Christian emperors and kings have made treaties
either with non-Christians or with those who were not truly Christian, as Constantine with the Goths
and Vandals; Justinian with the Lombards; Theodosius, Honorius, Leo, Heraclius, Basil, Isaac
Angelus, and Palaeologus with the Saracens, Alani, Gepidae, Franks, Suevi, and Vandals.

With the Moors treaties were made by the kings of Spain, Alfonso of Seville, Ramiro, Alfonso
the Chaste, Sanchez of Castile, and Ferdinand called Saint, as well as Peter, king of Leon, and Alfonso
of Castile, a very wise king. Rudolf of Hapsburg made a treaty with the Tartars. Consult Joannes de
Carthagena, De Jure Belli Romant Pontificis, Book III, i.

Pope Julius II employed the Turks.

1569-27 Ee

2 Chront-
cles, X1X. 2.

2 Chront-
cles, KXV.7.

2 Chron-
cles, KX. 37.

2 Chromt-
cles, XV1
2,73
Lsatah,
vin. 6

2 Chrom-
cles,XV1 12.
Ambrose,
On
Romans,
in.
Auctor
Imper-
fectus, On
Matthew,
Xvi.

2 Samuel,
XXIV.

2 Kings,
XxX. 13.
Isatah,
Xxxi 1.

On the Law of War and Peace [Book II

400

any kings or peoples, besides those that had been mentioned in the
law, were hateful to Him and condemned to misfortune, without
doubt it would have been an impiety to undertake their defence or
to make an alliance with them. With this harmonizes the statement
of the prophet to Jehoshaphat’ in regard to the king of Israel: [268]
‘Shouldst thou help the wicked, and love them that hate God? ?
For this thing wrath is upon thee from before God.’ The prophet
Micah had already, in fact, foretold the unhappy outcome of the
war. Then there are the words of the other prophet to Amaziah :
‘Let not the army of the Israelites go with thee; for the Lord 1s
not with Israel, ¢o wit, with all the children of Ephraim.’

That this attitude was not determined by the nature of the treaty,
but by some peculiar quality of the person, is shown even by the fact
that Jehoshaphat was severely reproved, with threats also, because he
had entered into an alliance with Ahaziah, king of the Israelites, for
the sake of commerce, similar to the alliance which David and Solomon
had made with Hiram; and they, as we have said, in part were not
criticized, in part were praised, on that account. For the additional
statement that Ahaziah had acted very wickedly ought to be referred
to his whole life; and on that account God was hostile to him and
all his undertakings. In this way the narrative is explained in the
work which is entitled the Constitutions of Clement (Book VI, xviii).

8. This also should be noted, that the case of those descendants
of Jacob that had deserted God, Who was well known to them, was
worse than that of foreign peoples. For the rest of the people took
up arms against those deserters in accordance with the law, which
is found in Deuteronomy, xiii. 13.

g. ‘There are cases also where treaties are censured by reason
of a fault in the intent with which they were made. Thus Asa was
reproved by the prophet for the reason that he had made an alliance
with the Syrian because he distrusted God. This distrust he had
shown when he sent to the Syrian things that were consecrated to
God. But the same king was further censured because he had put
his hope in doctors, and not in God. Consequently, it no more
follows from this narrative that it is inherently and universally wrong
to make an alliance with such peoples as the Syrians than it 1s to
consult doctors. The intent, in fact, vitiates many acts which are
not unpermissible, such as the numbering of the people in the case
of David, the display of treasures in the case of Hezekiah. Similarly
in another passage confidence placed in the Egyptians is censured,

1 Josephus [Antiquities of the Jews, IX. i. 1] says: ‘ He accused him of making an alliance with
Achab, an impious and wicked man.’

[274] * Gratian wrote to his uncle Valens asking aid against the Scythians: ‘It is not right
to jom arms in alliance with one who is an enemy of God’; Zonaras (XIII. xvii].

® Add the example in Joshua, xxii.

Chap. XV] On Treatres and Sponsions AOI

although it was permissible for Solomon to make an alliance with
them.

10. ‘To the considerations already presented this also should
be added, that under the ancient law the Jews had clearly expressed
promises of victory if only they observed the law, so that they were
less under the necessity of having recourse to human help. In
Solomon, again, there are not a few maxims about avoiding associa-
tion with the wicked. These, however, are the admonitions of pru-
dence, not precepts of the law; and those very admonitions, as
moral precepts in most cases, have a great many exceptions.

X.—That treaties with those who are strangers to the true religion are
not prohibited by the Christian law

1. Moreover, the law of the Gospel made no change in this
matter. Rather it extends even greater favour to treaties by which
those who are strangers to the true religion receive help in a just
cause; for the doing of good to all men, whenever there is oppor-
tunity, has not only been left freé and praiseworthy, but has even
been enjoined by precept. By the example of God, who maketh
His sun to rise on the good and on the evil, and sendeth rain for both,
we are bidden to exclude no class of men from our deeds of kindness.
Tertullian well said :

So long as the covenant was confined to Israel, He properly commanded that com-
passion should be shown only to brethren. But when He had given to Christ ‘ the gentiles
as His inheritance and the ends of the earth for His possession ’, then began to be fulfilled
that which was spoken by Hosea: ‘ Ye are not my people, who were my people; ye have
not obtained mercy, who once obtained mercy ’—that is, the nation. Thenceforth Christ
extended to all the law of brotherly kindness, excepting no one from His compassion,
just as He had excepted no one from His invitation,

2. Now this law ought to be received with due regard to
difference in degree, so that we should be doers of good to all, but
particularly to those who share the same religion. In the Conséztiutions
of Clement we read: [269] ‘ Service ought to be rendered to all,
but in such a way that greater consideration should be shown to those
that are holy.” Says Ambrose: ‘ Perfect generosity is commended
by reason of faith, cause, place, and time, so that you labour first
on behalf of the servants of the faith.” The statement of Aristotle
is similar: ‘It is not, in fact, fair that equal care should be taken
for strangers and for friends.’

3. Furthermore, familiar association with men who are strangers
to the true religion is not prohibited; and not all intercourse, but
only that which is unnecessarily intimate, is forbidden even with

Ee€2z

xq Kings,
ll I
Deutero-
s0MY,
XXVILL. 7.
Proverbs,
1 25;
X11. 20;
XX. 245
XXIV. I.

Victoria,
De Indts
Relec-
tiones, 1,
nos. 15
and 17,
Fran-
ciscus
Arias,
De Bello,
no. 192.
Cajetan,
On II. vi,
qu. 40,
art, I.
Mohna,
ll I12.
Matthew,
V. 45.

[A gatnst
Alarcton,
lv. 16.]

Galatians,
v1. IO.

VIL. ini
[VII.

1, end].

On Duttes,
I. 1i2

(I. xxx.
148].
Nico-
machean
Ethtes,

IV [xix].

2 Thessa-
lonians,
i. 15

[iii. 15].
2 Corin-
thians,
vl. 14

xr Corin=-
thians,
X. 21.

Sylvester,
word
bellum,

pt. I, no. 9,
conel. 3.
Panormi-
tanus, On
Decretals,
IT].
xxxIv. 8

(Athen-
aeus, VII.
lv.]

I. in [9. 3].

On the Law of War and Peace [Book II

402

those whose case is worse, who have fallen away from the rule of
Christian teaching; and not even that 1s forbidden if it furnishes
the hope of their correction.

This is the force of the passage in the writings of Paul: ‘ Be ye
not unequally yoked with unbelievers; for what fellowship have
righteousness and iniquity? or what communion hath light with
darkness? And what concord hath Christ with Belial? or what
portion hath a believer with an unbeliever?’ The passage refers to
those who joined in the feasts at the temples of idols, and thus either
were guilty of idolatry, or at any rate presented the appearance of
being guilty. This is shown by the words which follow: ‘ What
agreement hath a temple of God with idols?’ Statements similar
to these appear in the First Epistle to the same Corinthians: ‘ Ye
cannot partake of the table of the Lord and of the table of demons.’

4. Proof again will by no means naturally follow from this fact,
that we ought not of our own will to submit to the rule of the heathen,
or contract marriages with them. Forin both these cases it is apparent
that there is greater danger, or at any rate greater difficulty 1s thrown
in the way of practising the true religion. Add also the consideration
that such ties are more lasting, and in marriage the choice is freer,
while treaties have to be made to satisfy the exigencies of the time
and place. Moreover, as it is not wrong to do good to the heathen,
so it is not wrong to implore their aid, as Paul invoked the aid of
Caesar and the tribune.

XI.—Cautions in regard to such treatwes

1. Insuch alliances, therefore, wrongfulness is not inherent nor
universal, but is subject to judgement according to the circum-
stances.! Pains must, in fact, be taken that too great intimacy may
not bring contamination to the weak. With this end in view it will
be advantageous that the homes be kept separate, as the Israelites
dwelt apart from the Egyptians. Not without reason are those
verses of Alexandrides [Anaxandrides |:

J cannot as your fellow-soldier fight ;

For neither our laws nor customs harmonize,
But differ by great intervals.

Here also the remarks apply which I have elsewhere made concerning
the religious scruples of the Jews and Christians in respect to joint
military service with the heathen.

1 See the oration of Phartaza to the Lazi in Agathias, III [TI]. mJ]. Saxo, in Book IX
[p. 158], says in the words of Louis, king of France, to Hurald: ‘No harmony of spirit can exist between
those who have embraced different religious faiths. Wherefore the seeker for aid has need first to
be united in the bond of the same religion, and those cannot be partners in great undertakings whom
the creed of divine worship has separated.’

Chap. XV] On Treatres and Sponstons 403

2. But also if, as a result of such an alliance, the power of the
heathen is going to be greatly increased, it should be refrained from
except in direst need. Applicable here is what Thucydides said in
a similar case: ‘'Those who are treacherously attacked, as we are by
the Athenians, ought not to be looked upon with disfavour if they
seek safety not only in the aid of the Greeks but also in that of the
barbarians.’ No right whatsoever is sufficient to warrant committing
what will probably be harmful to religion, indirectly, if not directly.
For as a matter of first importance the kingdom of heaven is to be
sought, that is, the spread of the Gospel.

3. It were greatly to be desired that to-day many princes and
peoples should take to heart the generous [270] and noble utter-
ance of Fulk, formerly Archbishop of Reims, who thus admonished
Charles the Simple: ‘Who would not be greatly alarmed that you
desire the friendship of the enemies of God, and are receiving
heathen armies in detestable alliance, to the destruction and downfall
of the Christian name? For it makes no difference whether any one
allies himself with the heathen or denies God and worships idols.’
There is a saying of Alexander found in Arrian: ‘ They do a grievous
wrong against the rights of Greeks who serve with the barbarians
in war against the Greeks,’ ?

XII.—T hat all Christians are under obligation to enter a league against
the enemies of Christiantty

At this point I shall add that, since all Christians are members
of one body, and are bidden to share one another’s sufferings and
misfortunes, just as this principle applies to individuals, so also it is
applicable to peoples as such, and to kings as such. For every man
ought to serve Christ not only personally, but also with the power
that has been entrusted to him. This, however, kings and peoples
cannot do while an impious enemy is raging in arms, unless they
furnish aid to one another.? Such aid, again, cannot be rendered
effectively unless an alliance is made for that purpose. Such a league
was formerly made, and the emperor of the Holy Roman Empire
was unanimously chosen as its head. ‘To this common cause, there-
fore, all Christians ought to contribute men or money, according to
their strength. How they can be excused from making such a con-
tribution, I do not see, unless they are kept at home by an unavoid-
able war or some other equally grievous misfortune.

1 Mancafa furnishes an example in Nicetas, On Isaae Angelus, II [II. iii]. The religiousness of
Emmanuel, Duke of Savoy, is praised, for the reason that, though he might have done so, he was
unwilling to recover Cyprus with the help of the Turks.

2 [The Greek words quoted by Grotius are a paraphrase of Arrian.]

3 Qn this subject see Mariana, XXX [XXX. xxiii]; Paruta, Book IV; Bizarri, VII and X11.

Sylvester,
word
bellum,

pt I,no. 9,

3.
T (Ixxxij].

Matthew,
vi. 33.

Flodoard,
Historia
Ecclesiae
Remensis,
IV. vi.

[I. xvi.]

xr Cortm-
thians, xii.
18, 26.

[XV1 9-10
=p 204.]

Polybius,
VI [VII.

IX. g].

[= p. 220]

IX [xxxiz].

[Livy,
VII
XXX1, 2 ]

Sylvester,
word
bellum,

pt. I, no. 7.

On the Law of War and Peace [Book II

404

XIII.—To which ally help should by preference be given when several
are at war, 1s explained, with distinctions

1. This question also frequently arises. If several are at war,
to which of two parties ought aid preferably to be given by one who
is in alliance with both?

First, then, that is to be recalled which we previously said, that
there is no obligation to undertake unjust wars. Therefore that one
of the allies who has a just cause for war ought to have the prefer-
ence! if the contest is with one who is not in alliance. The same will
likewise hold if the contest is with another ally. Thus in his speech
in regard to Megalopolis Demosthenes showed that the Athenians
ought to give aid to their allies the Messenians against the Lacedae-
monians, who were also allies, if the latter were the aggressors.

The principle stated holds true only if there is no clause in the
agreement forbidding that aid be sent to an ally. In the agree-
ment of Hannibal with the Macedonians there was the clause:
‘We shall be the enemies of your enemies, with the exception
of the’ kings, states, and ports with which we have treaties of
friendship.’

2. Now if allies are engaged in war with each other for unjust
causes on both sides—and this can happen—it will be necessary to
refrain from aiding either party. Thus Aristides says, in his fifth
speech On Leuctra: ‘If indeed they were asking for aid against
others, it would be an easy matter; but if each of the allies was
requesting aid against the other they did not wish to mix in the affair.’

3. If, on the contrary, two allies are waging war against others,
and each for a just cause, aid in men and money will have to be sent
to both, if this can be done, just as happens in the case of personal
creditors. But if the undivided co-operation of the one who has
promised is required, reason demands that preference be shown to
the ally with whom the treaty is of longer standing.? This, accord-
ing to Polybius, is what the Acarnanians said to the Spartans. And
the answer given by the Roman consul to the Campanians has the
same effect: ‘It is right that friendships be so established that the
more ancient friendship and alliance shall not be violated.’ ®

4. But an exception needs to be made if the later treaty has
something beyond the promise which, so to speak, contains in itself

1 See below, III. xxv. 4 [II. xxv. 4]. In the feudal oath of fidelity are the words (Feuds, II. vii) :
* And 1f I know that you wish to attack some one justly, and if in consequence I have been summoned
either by a general or by a special summons, I will furnish aid to you as I shall be able.’

2 See Feuds, IV. xxxi [IT. xxvui. 4].

® According to Appian, in the Selecizons on Embassies [= Of Sicily and the Other Islands, 1] Ptolemy
says to the Athenians [Carthaginians]: ‘Help should be furnished by friends against enemies, not
against friends.’

Chap. XV] On Treaties and Sponsions 405

the transfer of ownership ;1 that is, some form of subjection. For
so also in a sale ® we say that the earlier promise receives the prefer-
ence, unless a later promise has transferred ownership. So in Livy
the Nepisini held the pledge of surrender [271] more sacred than
that of alliance.

Others draw these distinctions more subtly, but what I have
said, as more simple, is, I think, nearer the truth.

XIV .—W hether an alliance may be considered as tacitly renewed

An alliance ought not to be considered as renewed tacitly on
the expiration of the time, except in consequence of acts which
admit of no other interpretation. A new obligation, in fact, is not
easily presumed.

XV.—W hether the one party may be freed by the perfidy of the other

If one party has violated a treaty of alliance, the other will be
able to withdraw from it; for the individual terms of an alliance
have the force of conditions. This instance in Thucydides may
serve as an example: ‘ Those do not bear the blame of breaking
a treaty of alliance who, abandoned, turn to others for help, but those
who do not in fact furnish the aid which on oath they had promised.’
There is another example in the same author: ‘If either of the
parties should deviate from the terms ever so little, the alliance
would be broken.’ This, however, is true only in case there has been
no agreement to the contrary; for sometimes such an agreement
is made in order that withdrawal from the league may not be per-
missible for a slight offence.

XVI—To what the signers are bound tf a sponsion signed by them 1s
rejected ; also concerning the sponston of the Caudine Forks

I. Sponsions can have as many kinds of subject-matter as
treaties. Sponsions and treaties, in fact, differ only in the power of
the persons who make them. But in regard to sponsions there are
two questions that are commonly raised.

The first question is, in case a sponsion is disapproved by the
king or state, to what are the signers bound; whether they are to
make good the loss, or to restore matters to the state in which they
were in before the sponsion, or to be surrendered in person. The
first alternative seems to be in harmony with Roman civil law; the
second, with equity—and this was urged by the tribunes Lucius

1 See Radevicus, II. vii. 2 Edict of Theodoric, chap. Cxxxviil.

VI ‘x. 4].

Decio,
Constilta,
eccevil.

Decio,
Constlta,
cclxv.
Caepolla,
Conszl14,
ccccl,
cccelv,
eccchao.

I [Ixx1].

[IV. xxili.]

[Flouus,
I. x1.9,
I xxiv
7]

[Livy, IX.

1x. 16.]

(Livy, IX.

ix. 4]

{Livy, IX.

Ix 7]

406 On the Law of War and Peace [Book II

Livius and Quintus Maelius in the Caudine controversy ; while the
third opinion has been approved in practice, as is apparent from the
examples of the two famous sponsions of the Caudine Forks and
Numantia.

Now the point which ought to be maintained above all others
is that the one who holds the sovereign power is under no obligation
whatsoever. Postumius well said to the Romans: ‘ You have made
no compact with the enemy; you have not commanded any citizen
to make one for you. Therefore you have no dispute with us, to
whom you gave no commission, nor with the Samnites, with whom
you have made no engagement.’ Equally well did he say this: ‘I
declare that nothing can be so sanctioned as to bind the people
without the order of the people.’ This again is not less to the point :
‘If there is anything to which the people can be obligated, it can be
obligated to all things.’

2. Therefore the people was not bound either to give com-
pensation or to make restitution. For if the Samnites had wished to
have dealings with the people, they ought to have kept the army at
the Caudine Forks and to have sent envoys to Rome, to treat with
the senate and the people concerning a treaty of peace, in order that
the people itself might judge of how great value the safety of the
army was to it. Then, if at length the treaty had not been kept,
they could have said, what Velleius says was maintained by both the
Samnites and the Numantines, that the violation of the public faith
ought not to be expiated with the blood of a single individual.

3. With greater plausibility it can be said that all the soldiers
were bound by the obligation.t_ And this would certainly be fair if
the sponsion had been made by the signers on their order and in their
name, as we see was done in the case of the treaty which Hannibal
made with the Macedonians. If now the Samnites were satisfied
with the good faith of the signers,? and of the six hundred hostages
whom they had levied,? they had only themselves to blame.

Again, if the signers claimed the power to execute agreements
in the name of the state, they were bound to make restitution for
the loss suffered by reason of their deceit. If deceit was not apparent,

1 Thus the Numantines thought that the army, freed from the sponsion, ought to be surrendered
to them, in case the sponsion should not be ratified [Orosius, V. v. 3}.

* ‘These were the two consuls, two quaestors, four prefects, twelve tribunes, according to Appian
[Selections on Embassies, = Samnite History, 1. 6]. All these were surrendered in accordance
with the Caudine agreement. According to the Numantine agreement only the consul was surrendered ;
the others were spared on account of Tiberius Gracchus, as Plutarch relates in the lives of the Gracchi
[Tiberius Gracchus, vii = 827 A].

* Pontius, the son, according to Appian said [Samntte History, iv. 4]: ‘I shall choose the noblest
of the knights to be hostages until the people confirms the convention.’ In a similar case the Portuguese
thought it was sufficient to leave the hostages at the will of him who held them; Mariana, XXI. xi.
They who accept those who have been surrendered are held to remit the penalty; Polybius, S elections,
exxll [=XXXIT. vii. rr-12].

Chap. XV] On Treaties and Sponstons 407

they were bound to have that ratified which was called for by the
force of the negotiations. And in this case not only the bodies but
also the property of the signers would be under obligation to the
Samnites, unless they had imposed a penalty in the place of their
loss. [272] For there had been an agreement in regard to the
hostages, that their lives were forfeited if the compact was not adhered
to. Whether the same penalty was agreed upon in regard to the
signers, is not clear; but the stipulation of a penalty affects what 1s
done in such a way that there is no other obligation if the deed cannot
be performed. For a certain advantage has succeeded to the place
of an uncertain one. Moreover, it was the current opinion of those
times that even a life could be lawfully pledged as security.

4. Among us who hold a different opinion, I think that in such
a sponsion first the property is liable up to the amount of the loss ;
and if that is not sufficient, then the person is subject to slavery.
Formerly Fabius Maximus, when the senate had rejected an agree-
ment which he had made with the enemy, sold his estate for 200,000
sesterces and made good his promise.1 Besides, the Samnites rightly
thought that Papius Brutulus,? who broke a truce, ought to be
surrendered together with his property.

XVII.—W hether a sponsion that bas not been rejected 1s made binding
through knowledge of it and through silence is set forth, with dts-
tinctions ; likewise concerning the sponsion of Luctatius

1. A-second question is whether a sponsion is binding upon the
sovereign authority in consequence of the knowledge of it, and of
silence.

Here the distinction should be made, first, whether the sponsion
was made unconditionally, or on the condition that it should be
considered as valid by the supreme authority. For this condition, if
unfulfilled, makes the sponsion null and void, for the reason that
conditions ought to be carried out exactly. And this applies per-
fectly to the sponsion of Luctatius with the Carthaginians; there
was the further fact that the people had declared that it was not
bound by that sponsion, because it had been made without its order.
And so another entirely new treaty was made with the public sanction.

2. Then the point should be investigated whether, in addition
to silence, there is anything else having a bearing on the matter.
For silence, unless reinforced by some thing or act, does not supply
a sufficiently probable basis for determining intent, as may be under-

1 Diodorus Siculus, Excerpta Peiresciana [Dio Cassius, Excerpta Valesiana, p. 597= XIV. xv];

Valerius Maxmus, IV. viii.
4 Dio Cassius, Selections on Embassies, v [= VIL. viii].

The

writer
[Aurelius
Victor, ]
OnFamous
Men,

xlui;
Plutarch,
Fabius
Maximus
(vii=178
F] Livy,
VIII and
IX [VIIl.
XXxIx. 15}.

Livy,
XXI

[xix, 3}.
Polybius,
III {xxix}.

[xv 34-6 ]

Polybius
and Livy
as cited
above

408 On the Law of War and Peace [Book IT

stood from what we have said above regarding the abandonment of
ownership. But if in addition there shall have been certain acts
which cannot with probability be referred to any other cause, then
the agreement will be understood to have been ratified. Cicero
notes, in the speech For Balbus, that in this way the treaty which had
been made with the people of Gades was approved.

3. Against the Carthaginians the Romans pleaded their silence
as regards the treaty compact with Hasdrubal. But since that
compact had been expressed negatively, that the Carthaginians
should not cross the Ebro river, it was hardly a case where silence
alone should have the power to imply ratification of another’s act,
since no act of their own would have followed except when some
Carthaginian who wished to cross the Ebro had been hindered by
the Romans, and the Carthaginian had obeyed their order. Such
action, in fact, has the force of a positive act, and does not remain
within purely negative limits. Butif the compact signed by Luctatius
had had more provisions, and it was apparent that the others, which
were at variance with common rights, had always been observed by
the Romans, there would then have been a sufficiently strong implica-
tion of the approval of the compact.

It remains to say something here about the agreements
which leaders or soldiers make, not concerning what belongs to the
sovereign authority, but concerning their personal affairs, or matters
entrusted to them. But there will be a better opportunity to treat
of these matters when we come to the incidental occurrences of war.

[275] CHAPTER XVI
ON INTERPRETATION

I.—How promises are outwardly binding

1. If we consider only the one who has promised, he is under
obligation to perform, of his own free will, that to which he wished
to bind himself. ‘In good faith what you meant, not what you
said, is to be considered,’ says Cicero. But because internal acts
are not of themselves perceivable, and some degree of certainty must
be established, lest there should fail to be any binding obligation, in
case every one could free himself by inventing whatever meaning he
might wish, natural reason itself demands that the one to whom the
promise has been made should have the right to compel the promisor
to do what the correct interpretation suggests. For otherwise the
matter would have no outcome, a condition which in morals is held
to be impossible.

It was, perhaps, with this thought in mind that Isocrates, treat-
ing of agreements in his speech Against Callimachus, said: ‘ We
men constantly apply this universal rule in our relations with one
another,’ as the passage was correctly emended by Peter Faber,
a man of most eminent learning; for not only Greeks but also bar-
barians were meant, as the author had said a little before.

2. Applicable here-also is the ancient treaty formula given by
Livy : ‘ Without wicked deceit, and as these words here to-day have
been most rightly understood.’?* ‘The measure of correct interpreta-
tion is the inference of intent from the most probable indications.
These indications are of two kinds, words and implications; and
these are considered either separately or together.

Il.—Jf other implications are lacking, words are to be understood in their
ordinary sense

[276] If there is no implication which suggests a different
conclusion, words are to be understood in their natural sense, not
according to the grammatical sense which comes from derivation,’
but according to current usage,

To whose behest belong the law and rule of speech.

1 The Jewish scholars note, on Numbers, xxx, that vows ought to be interpreted as they are

commonly understood.

2 Procopius, Vandalic War, I [I. xi. 4], treating of the word ‘ confederates’, well says: [286]
‘Length of time is not wont to preserve words in the sense originally given to them, zs them-
selves, in fact, are changed as men wish, and men care not at all for the names at first assigned to

things.’
409

On
Duties, I
[X1l1 40]

[xii. 28 =
Pp. 376D]

I [axiv. 9].

[Horace,
Art of
Poetry,
72]

[II vi,
VII
Xxxiv.]
On

Duties,

III (xxxu.
Ir3].

(I. vi. 25.]

Para-
doxes,

vi [45].
(III.
Ixxi1. r3.]

Dig., II.
ii, 2,

III. i.
[XXV., vi.
14.]

On the Law of War and Peace [Book II

AIO

The Locrians,? then, availed themselves of a stupid evasion in their
perfidy ; for they took oath that they would keep the agreement as
long as they should stand on that ground and should bear heads on
their shoulders; then they threw away the earth which they had
placed in their shoes, and the heads of garlic which they had laid on
their shoulders, as if in that manner they could free themselves from
the religious obligation. ‘This story is found in Polybius; and in
Polyaenus there are several instances of similar perfidy which it is
not necessary to repeat, since there is no doubt concerning them.
Cicero has rightly said that by deception of this kind perjury is made
worse, not lessened.

III.—Technical terms are to be explained according to their technical use

In the case of technical terms, which the people scarcely under-
stand, the explanation of those who are expert in the particular art
will need to be utilized, just as the teachers of rhetoric refer the
question, what mayestas 1s, or parricide, to a definition. Cicero, in
fact, said truly in the first book of the Academics: ‘*'The words of
the logicians do not belong to common speech. They use their own
technical terms; and indeed this practice is common to almost all
the arts.’ Thus, if an army has been spoken of in a compact, we shall
explain that an army is a body of soldiers, which has dared openly
to invade the territory of the enemy.

The historians, in fact, everywhere distinguish what is done
secretly, or in the manner of brigands, from what is done by a regularly
constituted army. Wherefore the forces which constitute an army
ought to be estimated in proportion to the strength of the enemy.
Cicero calls six legions with their auxiliary forces an army. Polybius
says that a Roman army generally consisted of 16,000 Romans and
20,000 allies. But even a smaller number can satisfy the interpreta-
tion of the word; for Ulpian says that a man is in command of an
army who has only one legion with the auxiliary forces; according
to Vegetius such an army consists of 10,000 infantry and 2,000 cavalry.
Livy reckons a true army at 8,ooo men. In like manner one must
judge in regard to a fleet. Similarly a fortress is a place which for
a time can resist a hostile army.?

* Polybius, Book XII [XII. vi. 3]. Similar is the fact that the Boeotians, having promised to
restore a city, restored it not unharmed, but destroyed; Thucydides, V [V. xlii].’ Likewise the
Sultan Mahomet, after capturing Euboea, cut in two the man whose head he had promised should
be safe [J. Cuspimian, De Turcarum Origine, p. 132, on Mahomet IT].

* Augustine in his Principles of Rhetoric [ix] says: ‘As many new things are named, as well by
technical writers and mathematicians as by philosophers, we ought to accept such terms not so much
on the ground of current usage as in accordance with the technical character of the meaning.’

* Servius, On the Aeneid, J [I, line 20]: ‘ Citadels (arces) are so named from the verb arceo (keep
away), because the enemy are kept away from that spot, that is, are prohibited.’

Chap. XVI] On Interpretation 4II

IV.—Resort ts to be had to conjectures in the case of ambiguous and con-
tradictory expressions, or uf conjectures naturally suggest themselves

I. It is necessary to resort to conjectures when the words or
sentences are ‘interpreted in different ways’, that is, admit of several
meanings. ‘The rhetoricians call this topic ‘ambiguity’, but the
dialecticians make a finer distinction, calling it ‘homonymy’ if a single
word, and ‘ambiguity’ if a sentence, has more than one meaning.
Similarly there is need of conjectures whenever in compacts there
is ‘an appearance of contradiction’. For then interpretations are to
be sought which will reconcile the different parts with one another,
if this is possible.

In case the contradiction is real, a later agreement between the
contracting parties will annul earlier agreements, since no one could
at the same time have had contradictory desires. Such is in truth
the nature of acts dependent on the will that they can be relinquished
through a new act of volition, either ‘on the one part’, as in a law or
a will, or conjointly, as in the case of contracts and compacts. The
thetoricians call this topic ‘antinomy’. In such cases, in fact,
the evident obscurity of the words compels us to have recourse to
conjectures.

2. But at times the conjectures themselves are so evident that
they naturally suggest themselves, even against the more commonly
accepted interpretation of the words. The Greek rhetoricians call
this topic ‘ concerning the word and the meaning’; and the Latins
call it ‘of the written word and the meaning of the word’. The
elements from which are derived [277] conjectures as to meaning
are especially the subject-matter, the effect, and the connexion.

V.— Conjectures from the subject-matter

Of the subject-matter! is the word day, in case a thirty days’
truce has been made; and this ought to be understood as meaning
not natural days, but civil days, for that meaning is consistent with
the subject-matter. So the word ‘to bestow’ is assumed to mean
‘to complete a transaction’, according to the nature of the business.
Similarly the word ‘ arms’, which sometimes means instruments of
war and sometimes armed soldiers, will have to be interpreted now
with the former, now with the latter meaning, according to the
subject-matter.

Again, he who has promised to deliver up men ought to deliver
them living, not dead, contrary to the quibble of the Plataeans ;

1 Tertullian, On Modesty [viii]: ‘Speech ought to be explained according to the nature of the
matter spoken of.’ The same is found in his work On the Resurrection of Christ [On the Resurreciton

of the Flesh, xxxviil.

Everard,
on the
subject

A Subjecta
Materia

Digest,
XIX. 1i.
15. § 4.

[Thucy-
dides, IT.
vi, vii.]

[Fronti-
nus, IV,
vu. 17 ]
[Plut ,
Alex., lix
= 6098 c.]
[Valerius
Maximus,
VII.in,1v ]

Everard,
on the
subject
Ab
Abstrdo
Dig , I.
111. IQ.
Thucy-
dides, IV
[xevi11]

Everard,
on the
subject

A Con-
junctione
Duarum
Legum
[Ldiad,
III. 92,
281, 309.]
Plutarch,
Sym-
posracs,
TX. xii.
[ =743 4].

On the Law of War and Peace [Book IT

AI2

and those who were commanded to deliver up their iron fulfilled
the command by giving up their swords, not also their buckles, as
Pericles craftily maintained. Thus the free withdrawal from a city
ought so to be understood that the journey also shall be safe, contrary
to what Alexander did. Finally, in a division one-half of the ships
ought to be understood of whole ships, and not as one-half of each
ship cut in two, as the Romans maintained in taking advantage of
Antiochus. In similar cases let the same decision be reached.

V1.—Comnjectures from the effect

As regards the effect, especially important is the case when a word
taken in its more common meaning produces an effect contrary to
reason. For in the case of an ambiguous word that meaning ought
preferably to be accepted which is free from fault. In consequence
we ought not to admit the quibble of Brasidas, who, having promised
that he would withdraw from the Boeotian country, denied that the
land which he occupied with his army was Boeotian, as if that word
ought to be understood of warlike possession and not of ancient
boundaries ; for in the former sense the compact would have been
meaningless.

VII.—Conjectures from elements that are connected, either in origin or
also in place

Statements are connected either in origin? or also in place.
Those are connected in origin which proceed from the same will,
although uttered in different places and on different occasions ;
hence arises the need of conjecture, because in doubtful cases the will
is believed to have been consistent. Thus in Homer the agreement
between Paris and Menelaus, that Helen should belong to the victor,
must so be understood from what follows that he who had killed the
other should finally be recognized as the victor. Plutarch gives this
reason: ‘ Judges incline to that which is less ambiguous, passing by
that which is more obscure.’

VIII.—To what the conjecture drawn from reasonable motive applies ;
and when, and how, tt 1s in point

Among the elements which are connected in respect to place,
the chief force is given to the reason for a law,? which many confuse

* Augustine, Against Adimanius, iv [xiv. 2], well says: ‘They choose out certain portions of the
Scriptures in order to deceive theignorant, without connecting these with the context which precedes
and follows, from which the will and intent of the author can be understood.’

_ * Cicero, For Caecina [xx. 57], says: ‘From the point of view of law, as regards this kind of act,
it makes no difference whether I have been ejected by your agent, who is said to be the legal repre-
Sentative in charge of all the possessions of one who is not in Italy or is away on public business, who

Chap. XVI] On Interpretation 413

with the intent, although it is only one of the indications from which
we trace the intent.

Nevertheless among conjectures this is the strongest, if it is
established with certainty that the will has been influenced by some
reason as the only cause. Often, in fact, there are several reasons,
and sometimes the will without reason determines itself from the
power of its own freedom ; and this is sufficient to produce a binding
obligation. Thus a present made by reason of a wedding will not be
valid if the wedding does not take place.

IX.—T he distinction between broad and narrow meanings

Furthermore, the fact should be recognized that many words
have several meanings, the one narrower, the other broader. This is
the case for many reasons. One is that the name of the genus may
be applied to a species, as in words of relationship and adoption ;
likewise also in masculine nouns, which are ordinarily used as common
nouns when words of common gender are wanting. Another is that
the technical use of a term may give a broader meaning than the
everyday use, just as the word for death is extended by the civil
law to cover banishment,’ though it does not have this meaning in
ordinary speech.

X.—Division of promises into favourable, odious, mixed, and median

At the same time it should be noted that of promises which are
made some are favourable, [278] some odious, some mixed, and
some median.

Those promises are favourable which are made on a basis of
equality and promote the common advantage. The greater and
more extended this advantage is, the greater the favourableness of
the promise; this, then, is greater in promises that contribute to
peace than in those that contribute to war, greater also in promises
for defence in a war that has been begun than for other causes.

Odious promises are those which impose burden on one party
only, or on one party more than the other; which contain penalties
in themselves which render acts null and void, and which bring
about some change in previous agreements. If, again, a promise is
of a mixed character, as changing former agreements, to be sure,
but with a view to peace, this will be considered now favourable
and now odious, as the amount of good or of change predominates,

is almost as the owner himself, that is, represents the rights of another; or whether it be your farmer,
or neighbour, or chent, or freedman, or any one whatsoever, who has done the deed of violence, or
has accomplished the ejection, at your request or in your name.’

1 See Guicciardim, Book XVI [p. 341], where the compacts of Charles V relating to the duchy
of Milan are related.

Alciati,
Responsa,
V. xvi.

Gl, On
Dig , I
lil 12

Bartolus,
On Dig,
XLI.

ini. 15.
Covar-
ruvias,
Variae,
III. iu. 5
Tiraqueau,
De Legabus
Connu-
bialsbus,
gl. V, no.
II5.

On the Law of War and Peace [Book II

414
but in such a way that, other things being equal, it should preferably
be considered favourable.

XI.—The rejection of the distinction between contracts of good faith and
those of strict legal right in relation to the acts of peoples and kings

The distinction between acts of good faith and those granting
a strict legal right, in so far as it is drawn from the Roman law, does
not belong to the law of nations. In a certain sense, however, the
distinction can be applied here; thus, for example, if in any countries
some acts have a certain common form, in so far as that form is
unchanged, the distinction may be understood to be present in the
act. But in other acts, which are in themselves indefinite in respect
to form, such as a donation and a generous promise, more attention

should be paid to the words.

XII.—In accordance with the distinctions of meanings and promises
stated, rules are formulated in regard to interpretations

1. In the light of the principles stated the following rules
should be observed :

In agreements that are not odious the words should be taken
with their full meaning according to current usage; and, if there
are several meanings, that which is broadest should be chosen, just
as the masculine gender is taken for the common gender, and an
indefinite expression for a universal. ‘Thus the words, ‘ from which
one has been ejected’, will have reference even to the restoration of
one who has been hindered by force from entering into possession
of what belongs tohim; the expression, taken more loosely, has that
force, as Cicero rightly maintained in his oration For dulus Caecina.

2. In more favourable agreements, if the speaker knows the
law or avails himself of the advice of lawyers, the words should be
taken rather broadly, so as to include even a technical meaning, or
a meaning imposed by law. But we should not have recourse to
meanings that are plainly unsuitable * unless otherwise some absurdity
or the uselessness of the agreement would result. On the other hand
words are to be taken even more strictly than the proper meaning
demands if such an interpretation shall be necessary in order to avoid
injustice or absurdity. And even if there be no such necessity, but
there is manifest fairness or advantage in the restriction, we ought
to confine ourselves to the narrowest limits of the proper meaning
unless circumstances persuade to the contrary.

3. In odious agreements even figurative speech is sometimes

1 See an example in the Code, VI. xlii. 16.

Chap. XVI] On Interpretation 415

admitted, in order to lighten the burden. Consequently in the case
of a donation, and in the surrender of one’s right, no matter how
general the words are, they are ordinarily restricted to the matters
which were in all probability thought of. In such cases that will
sometimes be understood to have been taken possession of which
there may be hope of being able to retain. Thus the promise of
auxiliary forces by one party only will be understood to be an obliga-
tion at the expense of the one who asks for them.

XITI.—W hether under the term ‘ alltes’ future allies are included,
and in what degree ; also, concerning the treaty of the Romans
with Hasdrubal, and similar controversies

1. A notable question is, whether under the term ‘allies’
only those are included who were allies at the time of a treaty, or
also future allies, as in the treaty between the Romans and the Cartha-
ginians after the war in regard to Sicily: ‘ The allies of each people
shall be safe at the hands of the other people.’ From this the Romans
inferred that, although the treaty with Hasdrubal about not crossing
the Ebro brought no advantage to them, since the Carthaginians had
not ratified it, war could nevertheless be declared on the ground of
treaty violation if the Carthaginians should approve of the action
of Hannibal in attacking the Saguntines, whom the Romans had
accepted as allies after the treaty. Livy sets forth the reasons as
follows :

[279] Sufficient provision had been made for the Saguntines when exception was made
of the allies of both parties. For no proviso had been added ‘ to those, who were then
allies’; nor was there a proviso ‘ that no allies should thereafter be taken’. Since, then,
it was permissible to take new allies, who would think it right to receive any one into
a relation of friendship without services rendered, or not to defend those who had been

so received, provided only that the allies of the Carthaginians should not be incited to
revolt, or should not be received when revolting of their own accord?

This appears to have been taken almost word for word from
Polybius.

What shall we say? Indeed there can be no doubt that, with
due regard for correctness of speech, the word ‘allies’ can be accepted
in the narrower sense of those who were allies at the time of the treaty,
and in a second and broader meaning, which is extended also to
future allies. Which of the two interpretations, then, ought to have
the preference will need to be inferred from the rules given above.
In accordance with those rules we say that future allies are not
included, because the breaking of a treaty, which 1s an odious matter,

1 This was added in the Peloponnesian treaty of peace between the Lacedaemonians and the
Athenians; Thucydides, Book V [V. xvui].

1569-27 Ff

Barbatia,
Cons tlta,
IV. lx

AXXI [xix.
4].

Histories,
III
(xxix. 4].

Polybius,
Fstories,
IiI

[KxV. 3].

(Til. xxvi,

6]

I [xxxv]

Same
reference
[Thucy-
dides,

I. xlv]

On the Law of War ana reace

[| DYVUK LL

416

is involved, also the taking away from the Carthaginians of unre-
stricted freedom to restrain by force of arms those who were believed
to have done injury to them. Such freedom is, in fact, natural, and
is not to be considered as given up without good reason.}

2. Was it not permissible to the Romans, then, to admit the
Saguntines to an alliance, or to defend them after they had been
admitted? Certainly it was permissible, not indeed by virtue of the
treaty, but according to the law of nature, which had not been
renounced in making the treaty. Consequently in their relation to
both parties the Saguntines were placed in the position in which
they would have been if no agreement had been made in regard to
allies ; and under these conditions neither the Carthaginians would
be acting contrary to the treaty if they commenced a war which they
thought just against the Saguntines ; nor the Romans, if they defended
the Saguntines.

Just so in the time of Pyrrhus an agreement had been reached
between the Carthaginians and the Romans, that if either of these
peoples should make a treaty with Pyrrhus it should be made with
the reservation of the right to send aid to the one whom Pyrrhus
might attack in war. I do not say that the war could have been just
on both sides, but I declare that it had nothing to do with the viola-
tion of the treaty.” In like manner, as regards the question of aid sent
to the Mamertines by the Romans, Polybius makes the distinction
whether that act was just, and whether it was permitted by the treaty.

3. This, again, is the very thing which, according to Thucydides,
the people of Corcyra said to the Athenians, that it was permissible
for the Athenians to send them aid, and that the fact that the
Athenians had a treaty with the Lacedaemonians presented no obstacle,
since according to that treaty they were permitted to acquire new
allies. And the Athenians followed that opinion afterward; for in
order not to break the treaty they ordered their men not to fight
against the Corinthians except when these should be preparing to
make a hostile landing on Corcyra. Moreover, it was not incon-
sistent with the treaty, that those whom the one party was attacking
should be defended by the other, while in other respects * peace was
still maintained.

1 When the Samnites wished to make war on the Sidicini and asked the Romans to permit them
to do this, the Romans made answer that ‘ nothing hindered the Samnite people from making a free
decision in regard to peace and war’; Livy, Book VIII [VIII. ii. 3]. In the treaty of Antiochus are
the words: ‘If any of the allies of the Roman people should of their own mitiative make war on
Antiochus, he shall have the nght to repel their attack, provided that he neither hold any city by
right of war, nor receive any city into an alliance of friendship’ ; Livy, XXXVIII [KXXVIII. xxxviii.
16]; Polybius, Selections on Embassies, xxxv [= XXII. xxiii. 24].

* Procoptus, Perstan War, II [IT.i]: ‘ Alamundarus, king of the Saracens, used to say that he was
not violating the treaty between the Persians and Romans, since he had not been included by either
party in the agreement.’

* [287] Thus after the times mentioned the people of Corcyra decreed ‘that they would

Chap. XVI] On Interpretation 417

In discussing those times, Justin says: ‘ The truce which they
had made in their own name they broke in the person of their allies,
just as if they were less guilty of perjury in bearing aid to their allies
than if they had fought in open warfare.’ So also in the speech
On Halonnesus, which has a place among the orations of Demosthenes,
it appears that in a certain treaty of peace between the Athenians
and Philip there was a provision that the states of Greece which were
not included in the treaty should be free; that it should be per-
missible for those who were included in the peace treaty to defend
them, in case any one should make an attack upon them. This is,
in fact, an example in an equal alliance.

XIV.—In what way the clause, that one people may not make war
without the consent of the other, ought to be interpreted

As applicable to an unequal alliance we shall present a second
possibility ; that is, if it has been agreed that one of the allies shall
not be able to wage war without the consent of the other.

We have mentioned above that such a provision was made
a part of the treaty between the Romans and the Carthaginians
after the Second Punic War. A similar provision was contained in
the treaty [280] of the Macedonians with the Romans before the
time of King Perseus. The expression ‘to wage war’ can apply
to every war, both offensive and defensive; in case of doubt we
shall in this connexion take it in the narrower sense, that liberty may
not be too greatly restricted.

XV.—Concerning the words ‘ Carthage shall be free’

In the same class is the promise which the Romans had made,
that Carthage should be free.t Although from the nature of the
act this promise could not be understood as implying absolute power
(the Carthaginians had, in fact, already lost the right of undertaking
war, and some other rights), nevertheless it left to them a degree of
liberty, at any rate so great a degree that they were not bound to
move their city from its location at the command of another. In
vain, therefore, the Romans laid stress on the word ‘ Carthage’,
alleging that the citizens were meant, and not the city. The dis-
tinction, while not applicable, may be conceded by reason of the
word ‘free’, which is more in harmony with citizens than city.

observe the alliance of arms with the Athenians in accordance with the agreements, and preserve the
rights of friendship with the Lacedaemonians [Peloponnesians]’ [Thucydides, ITI. lxx. 2].

1 Diodorus Siculus, Selections on Embassies, xxvii, reports the matter thus: ‘that their laws,
territory, sacred places, tombs, liberty, should remain to them’.

Ff2

IIT [vii.
T4}.

vii. 30 =
p. 84.}

Livy,
XLIT.
[xxv. 4].

[Punic
Wars,
VIIT »1.

83.]

[II. 1x. 8.]

Dig , I.

xiv. 7. § 8.

418 On the Law of War and Peace [Book II

For there was a manifest quibble in the expression, ‘ to be left free’,
or ‘autonomous’, as Appian says.

XVI.—W hat compacts are to be considered personal, and what real, 1s
set forth, with distinctions

1. To this topic is to be referred the question that frequently
arises in regard to personal and real compacts. If indeed an agree-
ment has been made with a free people, there is no doubt that what
is promised is in its nature real, because the subject is a permanent
thing. Further, even if the condition of the state shall be changed
into a kingdom, the treaty will continue, for the reason that, although
the head has been changed, the body remains the same; and, as we
have said above, the sovereignty, which is exercised through a king,
does not cease to be the sovereignty of the people. An exception will
have to be made if it is apparent that the cause of the treaty resided
in the free condition of the state; such would be the case if free states
had made a treaty for the purpose of protecting their freedom.

2. But if a compact has been made with a king the treaty will
not immediately have to be considered personal; for, as Pedius and
Ulpian have rightly said, the name of the person is for the most part
inserted in a compact, not in order that the compact may become

ersonal, but in order to show with whom it was made. Now if the
addition is made to the treaty, that it shall be lasting, or that it was
made for the good of the realm, or with the king himself and his
successors (and this addition shall be accompanied by the phrase, ‘ and
to his descendants’, which is commonly added in treaties, as Libanius
says in his defence of Demosthenes), or if the treaty was made for
a definite time, the fact that it is real will be sufficiently apparent.

The treaty of the Romans with Philip, king of Macedonia,’ seems
to have been of this sort ; for when Philip’s son, Perseus, denied that
it was applicable to him on that account a war arose. But other
words also, and at times the subject-matter itself, will warrant a not
improbable conjecture.

3. Again, if the indications are evenly balanced on both sides,
the result will be that favourable treaties are to be believed real, and
odious treaties personal. ‘Treaties made for the sake of peace or
commerce are favourable. Treaties made for the sake of war are not
all odious, as some persons think ; but ‘alliances for defence’, that is,
treaties for the sake of protecting each party, incline rather toward
favourableness, and ‘ offensive alliances’ incline more toward burden-
someness. ‘There is the further point, that in the case of a treaty

1 Livy, XLII [XLII. xxv. 1]. It 1s assumed that consideration is had of the prudence and scrupu-
lousness of the man with whom one deals. See Paruta, Books V and VII.

Chap. XVI] On Interpretation 419

which contemplates any war whatsoever the presumption is that
consideration has been had of the prudence and loyalty of the party
with whom the engagement is made, as being one who clearly not only
would not undertake a war unjustly, but not even rashly.

4. ‘To the commonly accepted statement, that associations are
terminated by death, I give no place here; for this pertains to
private associations and belongs to civil law. ‘Therefore, we cannot
tightly decide whether the Fidenates,t Latins,? Etruscans, and
Sabines justly or unjustly renounced their treaties on the death of
Romulus, Tullus, Ancus, Priscus, and Servius, for the reason that
the words of the treaties are not preserved. A not dissimilar con-
troversy is found in Justin, the question being whether the states
which had been tributary to the Medes had changed [281] their
condition when the sovereignty was changed. The point to be
considered is, in fact, whether in the agreement they had chosen
the faith of the Medes.

Least of all should the argument of Bodin be admitted, that
treaties do not pass to the successors of kings, for the reason that the
force of an oath does not go beyond the person. It is true enough
that the obligation of the oath can bind the person only, while the
promise itself can bind the heir.

5. Furthermore the assumption on which Bodin proceeds, that
treaties are based on an oath as a kind of foundation, is not valid.
The fact is that in most cases there is sufficient binding force in the
promise itself, and that the oath is added thereto in order to secure the
reinforcement of greater religious scruple. Under Publius Valerius as
consul the Roman plebeians had taken oath that they would assemble
at the command of the consul. When Valerius died, Lucius Quinctius
Cincinnatus succeeded him. Some of the tribunes dealt captiously
with the obligation, as if the people were not bound by religious
scruple. The opinion of Livy follows :

The disregard of the gods, which characterizes the present generation, had not yet
come. In those days men would not universally through interpretation make their oaths

and the laws adapted to their own desires, but rather they were accustomed to fit their
practices to their obligations.

1 See Dionysius of Halicarnassus, Book III [TITI. vi].

* Concerning the Appuli [Apiolae] and Latins, see the same author, Book III [Dionysius of Hali-
carmassus, III. xlix]; on Turnus, Herdonius and the Latins, the same author, Book IV [IV. xlvi].
Ammuanus in Book XXVI [XXVI. iv. 6] says:

The king of Persia threw himself upon the Armenians, hastening by an over-violent attack
to bring them again under his sway, but unjustly ; for he made it as his excuse that after the death
of Jovian, with whom he had made a treaty of peace, nothing ought to hinder him from recovering
those places which as he showed had previously belonged to his ancestors.

See similar statements about Justinian’s treaties with the Saracens in Menander Protector [frag. rr,
p- 21, edit. Dindorf].

Add what the Swiss alleged after the death of Henry the Third, according to De Thou, Book XCVII,
on the Year 1589. See also the notable passage in Camden, on the Year 1572, where he speaks of an
ancient treaty between the French and the Scotch.

Decio,
Consulta,
I, xxii.

[I. vii. 2.]

Book V,
last
chapter.

III [xx.
5].

{Pharsaha,
V 29f]

Livy,
XXXIV
[xxxii. r].

[Plutarch,
On the
Contra-
diction of
the Stoics,
Xx1U =
1045 D.]

420 On the Law of War and Peace [Book II

XVII.—That a treaty entered into with a king ts continued with him
though be may have been expelled from his kingdom

A treaty entered into with a king surely continues, although the
king himself or his successor has been expelled by his subjects from
the kingdom. The right to the kingdom, in fact, still belongs to
him, although he has lost possession. In this connexion the words
of Lucan about the Roman senate are pertinent :

Its rights the order never lost
By change of place.

XVIII.—T hat such a treaty does not apply to the usurper of a kingdom

On the contrary there is no violation of the treaty if a usurper
of another’s kingdom is attacked in war at the wish of the true king,
or if the oppressor of a free people is attacked before an adequate
approval on the part of the people is secured for the treaty. ‘The
reason is that, while such persons may have possession, they have no
legal right. And this is what Titus Quinctius said to Nabis: ‘ Rela-
tions of friendship and common interest were by us entered into
not with you, but with Pelops, the just and lawful king of Sparta.’
Such elements in the treaties of a king and his successor, and similar
elements, betoken a right, properly speaking; and the cause of the
usurper is odious.

XIX.—To whom a promise is due if 1t was made to the one who should
do something first, and several have done the thing at the same
time

Chrysippus in ancient times discussed the question whether
a promise which had been made to the one who should first arrive
at the goal would be due to each if two arrived together, or to
neither.

The truth is that the word ‘ first ’ is ambiguous ; ® for it desig-
nates either the one who surpassed all or the one whom no one
surpassed. But because awards for virtues are to be viewed with
favour the more just opinion is that they will together share the

1 Thus Valens did not accept the excuse of the king of the Goths, who said that he had sent aid to
Procopius, the usurper of the throne. Ammianus, Book XXVII [XXVII. v. 2], calls this an utterly
groundless excuse. The same story is found im the Greek wnters, but under the name of Scythians,
for by that name they called the Goths.

Thus Justinian declared that he would not be breaking the treaty which he had made with Genseric
if he should begin war against Gelimer, who had deprived the rightful king Ildench of his crown and
liberty [Procopius, Vandalic War, I. ix. 19].

See Cardinal Toschi, on the word tyrannus, in Practicae Conclustones, 309. 6, and Cacheranus,
Deetstones, lxxix. 35.

4 See Alberico de Rosate, De Statutts, qu. cvi and cvii.

Chap. XVI] On Interpretation A2I

prize, although Scipio,’ Caesar, and Julian more generously assigned

individual prizes to those who had mounted the walls at the same time.
Let what has been said suffice in regard to the interpretation

which is adapted to the proper or improper meaning of words.

XX.—A conjecture which presents itself in the one case broadens the
meaning ; when this occurs

I. There is also another kind of interpretation from con-
jectures outside of the meaning of the words in which the promise
iscontained. This, again, is of two sorts, either broadening the mean-
ing or Narrowing it.

Now the interpretation which broadens the meaning proceeds
with greater difficulty; that which narrows the meaning proceeds
more easily. For as in all other things the absence of a single one
of the causes is sufficient to prevent the result, and all causes need
to concur that the effect may be produced, so also in the case of an
obligation a conjecture which extends the obligation ought not
rashly to be admitted. The difficulty here is much greater than in
the case of which we were speaking above, where the words admit
of a rather broad interpretation, though one less generally accepted ;
for here we are in search of a conjecture outside of the words of the
promise. Such a conjecture ought to be very certain in order to
create an obligation ; and a similar reason is not sufficient, but [282]
an identical reason is required. Again, it is not always sufficient for
us to affirm that the extension ought to be made in accordance with
reason; for, as we were just saying, reason often moves in such
a way that the will nevertheless may be a sufficient cause in itself,
even without reason.

2. "That such an extension, then, may be rightly made, it must
be agreed that the reason, under which comes the case that we wish
to include, is the sole effective cause which influenced the promisor,
and that the reason was considered by him in its general sense, because
otherwise the promise would have been unfair and useless. This
topic also is ordinarily dealt with by the Greek rhetoricians under
the heading Concerning the word and the meaning; and a form of
this they posit as often as we are constantly uttering the same thought.
But also the other title, By means of reasoning, belongs here; for
assuredly here we derive what was not written from what was written,
as Quintilian says. And we include also whatever is taught by the
jurist concerning matters done fraudulently.*

1 When New Carthage was captured in Spain [Livy, XXVI. xlvui. 13].

4 Seneca in the excerpts from the Controversies, VI. iii, well said: ‘A documentary fraud always
hides the crime under the appearance of law; what is apparent in it is lawful; what is hidden is
deceptive.’ Says Quintilian in the Controversies [Declamattons], cccxliii: ‘And, in fact, we never

Everard,
on the
subjects
A Ratione
Legis ad
Restric-
tionem
and A
Ratione
Legis ad
Exten-
sionem,

[Institutes
of Oratory,
VIE. vain.)

On the
Oraior,

I [xxxix.
x80] and
II [xxxi.
141] ;
Brutus
{lii. 195
and

lui. 197] ,
and For
Caecina
[xvil1. §3,
59, 63]
[Val Max,
VII. vii 1 J

[For
Caecsna,
Xx11. 63.]

[Declama-
tzons, cccl.]

On the Law of War and Peace [Book II

422

3. As an example, suppose that there is an agreement that
a certain place shall not be surrounded with walls, and that this
agreement was made at a time when there was no other kind of
fortification. It will not be permissible to surround that place even
with an earthwork, if it is fully established that the sole reason why walls
were prohibited lay in the intent that the place should not be fortified.

Ordinarily an illustration is taken from the condition that a
posthumous child has died, if such a child is included in the will
of one who fully expected a posthumous child. Under such con-
ditions the intent of the will is extended to cover the alternative, if
no posthumous child has been born, because it is agreed that the will
of the speaker was determined by consideration of the non-existence of
offspring. Itis,in fact, possible to find this very example in the writings
not only of the jurists but also of Cicero and Valerius Maximus.

4. Cicero presents this reason in his speech For Caecina: ‘ What
then? Had sufficient provision been made for this in the words?
Not at all. What is it then that is valid? The intent; and if this
could be understood by us without speech we should not use words
at all. Because it cannot be so understood, words were invented,
not to hinder, but to express the intent.’ A little later in the same
speech he says that the rule of law is the same when ‘the cause of the
equity appears to be one and the same ’,® that is, of the reason, which
was the only motive; so the form of the interdict, ‘ from which you
have expelled me by violence with a force of armed men ’, is in point
against every form of violence which affects the person and life.
‘Such violence’, says Cicero, ‘is generally committed through the
agency of a force of armed men; if it has been committed on a
different plan, but with the same peril, they wished the right to be
the same.’

In adeclamation of Quintilian the Father this example is found :

Murder seems to connote blood and steel; but if a man has been killed by any other kind
of murder we shall have recourse to the same law. If he has fallen among robbers, or has

have recourse to this law’, that is, the law concerning documentary fraud, ‘ unless a just nght is
excluded by wickedness,’

You find an example in Pliny, Natural History, Book XVIII [XVIII. iit. 17]: ‘ Also a hmit of
five hundred acres had been set by the law of Licinius Stolo ; and he himself was condemned under
his own law, because he held move than that by substituting the person of his son.’ The same story
appears in Valerius Maximus, VIII. vi. 3.

See another example in Tacitus, Annals, XV [XV. xix], concerning fictitious adoptions. There
is another in a Novella of Manuel Comnenus found in the Graeco-Roman law [Greek Books on Roman
Law, chap. vi; edit. v, Labb.].

1 Fuscus Arellius m Seneca, Controverstes, II. x [II. in. 5], says: ‘This was without doubt the
intention of those who took the oath, [288] that they should not be separated by force, since they
made provision to safeguard also this pomt, that they should not be separated by death.’

2 Also (Cicero,] On Invention, IT [II. xlu. 122].

* Thus Philo, On Spectal Laws He. xii], maintains that adultery is committed against the
betrothed of another, and gives as a reason: ‘ Betrothals have the same force as marriage.’ So in
the law of Moses all domestic animals are understood under the term ‘ ox’, and any ditch whatsoever
under the term ‘ pit’; Exodus, xxi. 28 and 35. Chassaneus, Catalogus Gloriae Mundi, V. xhx.

Chap. XVI] On Interpretation 423

been thrown into water, or has been cast down some immense height, he will be avenged
by the same law as the person who has been stabbed with a sword.

Similar is the argument of Isaeus in the oration On the Inheritance
of Pyrrbus, when from the fact that by the Attic law the making of
a will without the consent of the daughter was forbidden he infers
that against the will of a daughter not even an adoption was allowed.

XXI.— Herein also concerning the execution of a mandate in a different
way

From the principles stated comes the solution of the famous
question found in Gellius, whether the obligation of a mandate may
be satisfied, not with the identical thing, but with something else
equally useful, or more useful than was that which the giver of the
mandate had prescribed.

Such an adjustment is, in fact, permissible in case it is deter-
mined that what had been prescribed was not prescribed in a special
form, but in a more general way,’ which made possible a different
fulfilment of the conditions. So it was held by Scaevola that one
who had been ordered to give security to a creditor could direct
him to pay the money to a third party. For the rest, when the
matter is not sufficiently determined, the rule found in the passage
in Gellius is to be retained, [283] that obligation to the one who
gives the order is disregarded if, in response to what he has been
ordered to do, a person makes answer, not with due obedience, but
with advice, which was not desired.

XXII.—In the other case the conjecture restricts the meaning ; and
this may happen by reason of an original defect in the intent, which
15 inferred from tts absurdity

A restrictive interpretation, outside of the natural meaning of
the words containing the promise, is derived either from an original
defect in the intent, or from the incompatibility with the intent of
a case occurring. A defect inherent in the intent is recognized from
the absurdity which evidently would otherwise result, or from the
cessation of the reason which alone furnished the full and effective
motive for the intent,” or from a defect in the subject-matter.

The first case has its foundation in this principle, that no one
ought to be believed to wish absurdities.

1 Quintilian, Coniroverstes, clvii [Declamations, cclvii]: ‘Slaves do some things more freely from
good intentions, and sometimes bond-servants that have been purchased think it a mark of loyalty
not to obey.” You have an example in the Selections on Embassies, in that part in which the manner of
engaging in and receiving embassies is dealt with ; also in the things that John, one of the generals of
Justinian, cid against the orders of Belisarius [Justinian] ; [Procopius,] Gothec War, IT [I]. x] and IV

IV. xxiii].
a Ar example is to be found in the Digest, XXXVII. xiv. 6. § 2.

(III. 68 ££.)

I, xii.

Digest,
XVII.
i, 62.

Paschal,
Legatus,
xlix [vii].

424 On the Law of War and Peace [Book II

XXIII.—Conjecture may restrict the meaning by reason of the cessation
of the only reason

The second case is founded on the principle that, when such
a reason is added, or there is agreement concerning it, the content
of the promise is considered not simply by itself, but only in so far
as it comes under that reason.

XXIV.—Conjecture may restrict the meaning by reason of a defect in
the subject-matter

The third case is based on the consideration that it is always to
be understood that the subject-matter 1s viewed from the point of
view of the speaker, even if the words have a broader meaning. This

hase of interpretation also is treated by the Greek rhetoricians
under the heading Concerning the word and the meaning, and bears the
title, ‘ When the same thought is not always expressed.’

XXV.—An observation concerning the conjectures last mentioned

1. Inregard to the reason, it is to be noted that under it certain
things are often included, not from the point of view of existence,
but in relation to their force from the point of view of morals. When
such a case arises, no restriction ought to be made. Thus if provision
has been made that an army or a fleet should not be conducted to
some place it will not be possible to conduct it to that place, even
without the intent of doing harm. The reason is that in the agree-
ment not a certain loss but danger of any possible kind was in
contemplation.

2. ‘The question also is commonly raised, whether promises
contain in themselves the tacit condition, ‘if matters remain in their
present state ’.

To this question a negative answer must be given, unless it is
perfectly clear that the present state of affairs was included in that
sole reason of which we made mention. ‘Thus constantly in the
histories we read that ambassadors gave up their mission and returned
home from the journey on which they had set out, alleging as the
reason that matters had been so changed that the entire matter or
cause of the mission was at an end.

XXVI.—Or conjecture may restrict the meaning when a case which
arises 1s incompatible with the intent; and this ts assumed in
regard to what 15 unlawful

1. The incompatibility of an actually occurring case with the
intent is also ordinarily referred by the Greek teachers of rhetoric to

Chap. XVI] On Interpretation 425

the topic Concerning the word and the meaning, which I have men-
tioned. Such incompatibility is twofold; for the desire is inferred
either from natural reason or from some other sign of intent. For
the Judging of intent from natural reason Aristotle, who treated this
subject very carefully, attributed to the intellect a special quality, the
‘judgement’, or ‘ good sense’, that is, ‘the perception of what is fair’;
but to the will he assigned ‘the quality of fairness’, that is, ‘justice’,
and this he wisely defined as the correction of that in which the
law, by reason of its general character, is at fault.

Now the use of these qualities, within proper limits, ought to
be made applicable to wills also, and compacts. For since all con-
tingencies can neither be foreseen nor set forth, a degree of freedom
is needed in order to make exceptions of cases which the person who
has spoken would make an exception of, if he were present. Yet
recourse to such a restriction of meaning should not be had rashly—
that, in fact, would be to make oneself master of another’s act—but
only on sufficient implications.

2. The most certain implication is if the literal meaning would
in any case involve something unlawful, that is, at varlance with the
precepts of the law of nature, or of divine law. Of necessity an
exception must be made of such cases, since they are not capable of
imposing a legal obligation. ‘Certain things,’ says Quintilian the
Father, ‘ although they are not included in any expression of the law,
are nevertheless by nature excepted.” Thus a person who has promised
to return a sword which he received in trust will not return it to
a madman, lest he bring danger either to himself or to other innocent
persons. [284] Similarly an object received in trust will not be
returned to the person who deposited it if the rightful owner demands
it. Tryphoninus says, ‘I am satisfied that this is justice, which so
assigns his own to each that it is not withdrawn by reason of a more
just demand of any other person.’ The reason, as 1 have noted
elsewhere, is that the force of ownership, when once introduced, is
such that it is in every way unjust not to restore property to the
owner, when he is known.

XXVII.—Conjecture may restrict the meaning when the condition ts too
burdensome as regards the act

1. A second implication will become manifest if, while the
literal interpretation may not in itself involve something unlawful,
the obligation, in the view of one who judges the matter fairly, shall

1 Seneca, Coniroversies, IV. xxvii [IX. iv. 9]: ‘In the law, you say, there is no exception. But
there are many things which, though not considered exceptions, are understood, and the written
form of the law is restricted, the interpretation broad. Some things, however, are so manifest that
they have no need of provision.’

' Magra
Moralia,
Iu]

[Declama-
ti0#1S,
CCcCzV.]

Dig. XVI.
uli 31.

(II. x.z, 2.]

Molina,
disp.
294-
Sylvester,
on the
word
commo- -
datum, 4.
Lessius,
IT.
XXVIII. 5.

Angelus,
On Dig,
XIV.1 7
Vazquez,
Coniro-
versiae
Illustres,
XXXI.
[Cicero, On
Duties, I
xX 32]

[On
Duties,
I. x, 32.]

On
Benefits,
V, XXXV

On the Law of War and Peace [Book II

426

appear to be burdensome and unbearable, whether the condition of
human nature is considered in the abstract, or the person and matter
under consideration are brought into comparison with the result of
the act itself. Thus a man who has lent a thing for some days will be
able to demand its return within those days, if he himself is greatly in
need of it; for the nature of a generous act is such that it is not to
be believed that any one has wished to obligate himself to his own
great disadvantage. Thus, again, one who has promised aid to an
ally will be entitled to excuse in so far as he himself needs his troops
as long as he is in danger at home. Also the exemption from taxes *
and tribute is to be understood as covering the usual daily and yearly
requirements, not requirements imposed by extreme necessity, which
a state cannot do without.

2. From this it is clear that the statement of Cicero was made
too loosely, that promises without advantage to those to whom you
have made them ought not to be kept, nor if they are more harmful
to you than they are advantageous to the one to whom you made
them. For the promisor ought not to judge whether a thing will
be useful to the promisee, except perhaps in the case of madness, of
which we have spoken above.

Furthermore, a certain harm to the promisor 1s insufficient to
prevent the promise from being binding, but the harm should be
such as to require that it be considered an exception in view of the
nature of the act.2, Thus one who has promised to work for a neighbour
for some days will not be bound if the dangerous illness of his father
or his son should detain him. Rightly Cicero in the first book Oz
Duties says: ‘If you have agreed that you will appear in person in
court as advocate for some one, and in the meantime your son has
begun to be seriously ill, it would not be contrary to duty not to do
what you have promised.’

3. We ought, further, to accept in the same sense, and not to
press too far, what we read in Seneca :?

Then I shall break faith, then I shall hear the reproach of inconstancy, if, when all
things are the same as they were when I promised, I do not fulfil my promise. Whatever

1 See Rosenthal, De Meudis, V. xxviii. 2; Heigh, Quaestiones Iilustres, XVIII. xvi. 1, Cothmann,
Constita, x1, no. 32; Clarus, sec. Feudum, xxix. 2; Andrew Knich, De Vesittis Pacts, II. v. 20;
Henry Bocer, De Collects, iv. 12.

4 See Charles Dumoulin, Ad Consuetudines Parisienses, I. u, gl. 4, no. 3; Fernando Vazquez,
De Successtonum Creatione, II. xviu. 80; Antoine Favre, De la Jurisprudence de Savote, IV. xxx;
Zasius, On Digest, XLV. i. 61; add Decretals, II. xxiv. 25, and Alciati, On Decretals, II. xxiv. 28.

* The following passage is in the same author, On Benefits, IV. xxxix: ‘I shall go out to dinner
because I have promised, even if it shall be cold. I shall leave the table to assist at a betrothal because
I have promised, even though my dinner is not digested ; but not if I have a fever. I shall give bond
for you because I have promised, but not if you shall bid me to give bond for an unlimited amount,
or if the obligation is to the treasury. There is, I say, a tacit exception present—if I shall be able,
if it shall be my duty, 1f matters shall be thus and so. Cause that the condition be the same, when
the demand is made, as it was when I promised.

‘It will not be a mark of fickleness to fail in a promise, if something new has intervened. Why

Chap. XVI] On Interpretation 427

is in any way changed gives me the opportunity to reconsider, and releases my pledge.
I have promised to be an advocate; afterwards it has become apparent that by means of
that case an injury to my father is contemplated. I have promised to go abroad with some
one, but it is reported that the route is infested with brigands. I was about to appear
in person in a lawsuit, but I am detained because my son is sick, or my wife is in labour.
All things ought to be the same as they were when I made the promise, if you would
hold me to it.

In this passage understand ‘ all things? according to the nature
of the act in question, as I have just now shown.

XXVIII. —Conjecture may be restricted in view of other indications, as
when the parts of a document are in confitct

We have said that there may be also other indications of the
intent, which show that an exception ought to be made. Among
such indications none is stronger than words found in another place,
not words directly opposed in meaning, for that is ‘ antinomy ’, which
is mentioned above, but words which come into conflict in con-
sequence of some unexpected turn of affairs; and this the Greek
rhetoricians call ‘a conflict arising from circumstances ’.

XXIX.—W hat rules ought to be observed in such cases

1. Of the ancient authors Cicero’ laid down certain rules for
the settlement of such a question, as to which part of the document
ought to prevail when the conflict arises from chance. Although
these ought by no means to be disregarded, yet 1t seems to me that
they were not arranged in their proper order. Accordingly I shall
arrange them in this way :

[285] That which permits should yield to that which orders.”
The reason is that he who permits something seems to grant per-
mission on the condition that nothing else hinders than that which
is under consideration; in consequence, as the author of the 4d
Herennium says, ‘ A command prevails over a permission.’

That which is to be done at a definite time should have
preference over that which can be done at any time. From this
it follows that generally a clause in an agreement which forbids

do you wonder that my purpose has been changed now that the condition, in which I was when I pro-
mised, has changed? Make everything else the same in relation to me, and I am thesame. We give
bond for appearance in court, yet fail to appear. But action is not allowed against all, for a stronger
reason excuses the failure to appear.’

The English have often made use of such an evasion. See Camden, on the Year 1595, not only
for the dispute with the Dutch, but also for that with the Hanseatic cities.

1 In the second book On Inveniton [II]. xlix. 144], and thereto Marius Victorinus.

2 Quintilian, Declamatons, ccclxxiv: ‘The law which forbids is always stronger than that which
permits. Donatus, On [Terence’s] Phormio, 1.ii[I.ii. 76]: ‘Rightly it commands; for [289] the
law which permits anything has less force than that which commands.’

See Cicero, Agatnsi Verres, II [II. . 127], and what Connan has in Book I. ix.

XIII
[II. x. 15].

Appian,
Mthrt-
datic Wars

[ix. 64]

Livy,
XXXIV
[xxxv 3].

428 On the Law of War and Peace [Book II

outweighs a clause which orders, because an agreement of prohibition
is binding at any and every time, but an agreement of command is
not binding to the same extent, unless the time has been stated, or
the command contains an implied prohibition. Among agreements
which are equal in respect to the qualities mentioned, that should
be given preference which is most specific and approaches most
nearly to the subject in hand; for special provisions are ordinarily
more effective than those that are general. Also in prohibitions that
which adds a penalty should be given preference over that which
lacks a penalty, and that which threatens a greater penalty should
have the preference over that which threatens a lesser penalty.

Then, that provision should prevail which has either the more
honourable or the more expedient reasons.

Finally, that which was last said should prevail.

2. Here this should be repeated from the previous discussion,
that the force of sworn agreements is such that they ought to be
understood according to their most generally accepted meaning ;
and so all restrictions that are implied, and not absolutely necessary
from the nature of the case, should be rejected. If, then, a sworn
compact is at variance in some particular with one which has not
been sworn to, preference ought to be given to the compact which
has the sanctity of an oath.’

XXX.—That in a doubiful case a written document is not required for
the validity of a contract

This question also is commonly raised, whether in a doubtful
case a contract ought to be considered perfect before the written
form has been completed and delivered.

This, in fact, was the point which Murena argued against the
treaty that had been arranged between Sulla and Mithridates. To
me it seems clear that, unless it has been otherwise agreed, we ought
to believe that writing has been employed as evidence of the contract,
not as a part of its content.” Otherwise the form of expression is
customary which is found in the truce with Nabis: ‘ From the day
on which the terms should be copied out and delivered to Nabis.’

1 Acontius in Ovid [Heroides, xx. 159-62] says:
Her father promised her, and she to her lover swore.
He called men to witness, she the goddess called.
He feared to be a liar, she to be forsworn.
Then do you doubt which was the greater fear?

4 Digest, XXII. iv. 4 and 5; Code, II. sii. 17. So Bartolus, Jean Faber, and Saliceto interpreted
the law in the Code, IV. xxi. 17, and their opinion has prevailed in the courts against that of Baldus
and Castrensis; Mynsinger, Decade X, cons. 91 ; Neostad, De Pactis Antenuptialtbus, obs. 18. There-
fore there is not sufficient probability in what Ligniacus derives from Guicciardini (History of Italy, IT)
concerning a document signed by a king but lacking the seal and signature of the secretary.

Chap. XVI] On Interpretation 429
if

XXXI.—The contracts of kings are not to be interpreted according to
Roman law

I shall not, however, admit the rule, which has been adopted by
some writers, that the contracts of kings and peoples ought to be
interpreted according to Roman law so far as possible, unless it is
apparent that among certain peoples the body of civil law has been
received as the law of nations in respect to the matters which concern
the law of nations. Such a presumption ought not rashly to be
admitted.

XXXII.—W hether the words of the one who accepts the condition, or the
words of the one who offers it, ought to carry greater weight, 1s set
forth, with a distinction

As regards the point which interests Plutarch in his Sympostacs,
whether more weight ought to be given to the words of the one who
offers or of the one who accepts a condition, it seems to me that
when the one who accepts is the promisor his words determine the
form of the matter, if they are complete and perfect in themselves.
For if by affirmation they look to the words of the one who offers
the condition, then, from the very nature of relative words, they will
seem to be repeated in the promise. But it is certain that before the
condition is accepted the one who made the offer is not at all bound.
For no legal right has been gained up to that time, as is apparent
from what I have said concerning a promise; and the offering of
a condition is still less than a promise.

Alciati,
Constlia,
VY. xvi.

Sym-
postacs,
1X. X3
[=742 B].

TIT. i. 2]

CHAPTER XVII

ON DAMAGE CAUSED THROUGH INJURY, AND THE OBLIGATION
ARISING THEREFROM

1.—T hat fault creates the obligation to make good the loss

We have said above that there are three sources of our legal
claims, pact, wrong, and statute. Enough has been said about
contracts. Let us come now to what is due by the law of nature in
consequence of a wrong.

By a wrong we here mean every fault, whether of commission
or of omission, which is in conflict with what men ought to do,
either from their common interest or by reason of a special quality.
From such a fault, if damage has been caused, by the law of nature?
an obligation arises, namely, that the damage should be made good.

II.—That damage 1s understood to be that which conflicts with one’s
right taken in a strict sense

1. Damage, the Latin word for which, damnum, was perhaps
derived from the word meaning to take away,? demere, in Greek is
‘the being less’; that is, when any one has less than belongs to
him, whether by a right that accrues to him from the law of nature
alone, or is reinforced by the addition of a human act, as by owner-
ship, contract, or legal enactment.

By nature [290] a man’s life is his own, not indeed to destroy,
but to safeguard; also his own are his body, limbs, reputation,
honour, and the acts of his will. The previous part of our treatise
has shown how each man by property right and by agreements
possesses his own not only with respect to property but also with
respect to the acts of others. In a similar manner every one acquires
his particular rights from the law, because the law has the same
power, or greater power than individuals have over themselves or
their property. Thus a ward has the right to demand a certain
degree of diligence and care from his guardian, and likewise the

1 Called ‘action for neglect’ by the Greeks [Hesychius]. See Decretals, V. xxxvi, and Digest,
XI. ii, and adjoming rubrics.

2 So Varro, Book V [Latin Language, V. clxxvi|: ‘ Damnum (damage) is derived from demptto
(a takmg away), when the recognized value has been made less by the act.’

Others prefer the derivation from the Greek damdvy (expense), so that the word should be first
dapnum and then damnum, as invos gives sopnus and somnus. And it would not be absurd for you
to derive the word from the Greek d¢uyw (I subdue), which has a force similar to that of Bia{w (I over-
power); or from (nia (damage) through damta to damnum, as regia (palace) and regnum (kingdom).

430

Chap. XVII] On Damage caused through Injury A31

state from an official; and not the state only, but also individual
citizens, as often as the law indicates such a requirement explicitly,
or by a sufficiently clear implication.

_ 2. But true ownership and the consequent necessity for restitu-
tion do not arise from aptitude alone, which is not properly called
a right and which belongs to distributive justice; for one does not
have ownership of that to which one has merely a moral claim. ‘The
man who out of stinginess does not assist another with his money
commits no crime against justice properly speaking,’ says Aristotle.
Cicero in the oration For Gnaeus Plancius says: ‘ This is the con-
dition of a free people [...] that, in the case of every person, it is able
by means of votes either to give or to take away what it wishes.’
Yet presently he adds that it happens that a people may do what it
wishes to do, and not what it ought to do, using the word ‘ ought’
in its broader sense.

III.—T hat aptitude must be carefully distinguished from legal right in

a strict sense, when they coexist

At this point care must be taken not to confuse things which
are of different kinds. For one who has been entrusted with the duty
of appointing magistrates is under obligation to the state to choose
a man who is worthy, and the state has a special right to demand
this. If, therefore, the state has suffered damage from the choice
of an unworthy person, the man having the responsibility of choice
will be bound to make the loss good.

So also any citizen who is not unworthy, although he has no
special right to any office, nevertheless has a true right to be a candi-
date for an office along with others; and if he is hindered in the
exercise of this right by force or fraud he will be able to collect the
estimated value, not of the entire thing sought, but of that uncertain
damage. The case will be similar if a testator has been hindered by
force or fraud from willing anything toa man. For the capacity to
receive a legacy is a kind of right, and in consequence it is an injury
to interfere with the liberty of the testator in such a matter.

IV.—That damage extends also to income

Moreover, a person will be understood to have less, and there-
fore to have suffered loss, not only in the property itself, but also
in the products which strictly belong to it, whether these have
actually been gathered or not, if he might have gathered them ;
but expenditures for the improvement of the property will need to
be deducted, or expenditures necessary for gathering the fruits, in

1569-27 Cs

N1co-
machen
Ethics,
V.iv

fv. rz]

Thomas
Aquinas,
IT, ii. 62,
art. 2, and
Cajetan
thereon.
Soto,

IV. vi.
Lessius,
Book II,
x11. 78.
Covar-
ruvias, On
Sext,

V. ult. 4,
pt. 2, § 7.

Soto,
IV. vii;

II. xii, 16,
no. 3-

Digest,

AXXY, il.

73. § 1.

Thomas
Aquinas,
II. 11. 62,
art. 4.
Soto,
Book IV,
Wl 5

[xli. 29 ]

Lessius,
Book IT,
Xil1. IO.

432 On the Law of War and Peace {Book II

accordance with the rule which forbids us to become richer at the
expense of another.

V.—How the principle stated applies to the cessation of income

Also the expectation of gain from our property will be estimated,
not at its full amount, but in proportion to its nearness to completion,
as the expectation of the harvest at the sowing.

VI—Those who by their act cause damage primarily

Besides the one who causes damage in person and ‘directly’,
others also are liable, by reason of their act or their failure to act.
By an act some are liable primarily, others secondarily. He is liable
primarily who orders the act, or gives the necessary consent, or aids,
or receives stolen goods, or in some other manner shares in the crime

itself,

VII.—Those who by their act cause damage secondarily

Those are liable secondarily who give advice, praise,’ or approval
to the act. ‘What difference is there’, says Cicero in the second
Philippic, ‘ between one who advises an act and one who approves
of the act?’?

VIII.—Likewise those who by not doing what they ought cause damage

primarily

Likewise an obligation is created by failure to act, either primarily
or secondarily ; primarily, when one, who is in strict legal duty
bound to forbid the act by a command, or to render aid [291]
to one who has been injured, does not do so.* Such a person by the
Chaldean paraphraser, On Leviticus, xx. 5, is called ‘a strengthener
of wrong-doing ’.

IX.—T hose who by not doing as they ought cause damage secondarily

A person is liable secondarily who does not dissuade when he
ought, or who keeps to himself a fact which he ought to make known.

1 Totila in his speech to the Goths in Procopius, Gothic War, ITI [III. xxv], says: * Forhe who
praises one who is doing anything must himself be considered as responsible for the deed.’ Ulpian,
Digest, XI. iii. 1. § 4, says: ‘Even if the slave were going to run away or commit the theft in any
case, if this man has praised his purpose, he will be held hable. An evil deed, in fact, ought not to
be increased by praise.’

2 [294] Ammianus in Book XXVII [XXVII. xi. 5] makes application of this saying to Probus,
the prefect. In the Law of the Lombards, Book TV, title iv [I. iv. 1, 4], even the one who gives advice
i summoned to the settlement. See Romans, i, at the end [verse 32], and the ancient commentaries

ereon.

® Nicetas of Chonae in the life of Michael Comnenus [Manuel Comnenus, I. iii] says: ‘A fire
is not only to be charged against the one who applied the torch, but also against the person who would
not put it out when he could.’

Chap. XVIT] On Damage caused through Injury 433

But in all these cases we refer the word ‘ ought’ to that true legal
right which is the object of expletive justice, whether it arises from
statute law or from a special quality. For if one is under obligation
according to the rule of love, by omission he will sin indeed, but he
will not be held to make reparation ; for the source of the obligation
to make good is the true right, properly speaking, as we have pre-
viously said.

X.—W hat kind of effective participation in the act 1s requisite to create
such obligation

It should also be understood that all those whom we have men-
tioned are under obligation to make good if they have really been the
cause of damage; that is, if they have contributed to the damage either
in whole or in part. For in the case of those in the second class who
act or fail to act, and sometimes even in the case of some in the first
class, it often happens that the one who has caused the damage would
have been sure to cause it even without the act or neglect of the
others. In such cases the others, whom I have mentioned, will not
be liable.

Yet this must not be understood in such a way that, if there
were no lack of others to advise or aid, those who did advise and aid
should not be liable in case the one who caused the damage would
not have caused it without their aid or advice. For even the others
would have been liable if they had advised or aided.

XI.—In what order such persons are held liable

Now those are liable in the first instance who by command or
otherwise have impelled any one to a harmful act. When such are
lacking, the perpetrator of the crime is so held. After him the others,
who have caused the act, are individually liable for the whole loss,
if the whole act has proceeded from them, though not from them
alone.*

XII.—That the liability is extended even to resulting damage

Again, the one who is liable for an act is at the same time liable
for the consequences resulting from the force of the act.? In one
of the Controversies of Seneca * this is illustrated by the burning of
a plane tree, from which a house caught fire and burned. In this
connexion he states an opinion thus: ‘ Although there was a part
of the damage which you did not wish to cause, you are liable for it
all, just as if you had caused it intentionally. In fact, the person who

1 Laws of the Lombards, I. ix. 5.
2 See Thomas, II. i. 20, art. 5, and Dagest, IX. ii. 27. § 8. 3 Excerpia Controverstarum, V.v.

Gg2

Thomas
Aquinas,
IT 1. 62,
art. 6.
Soto,
Book IV,
Vii. 3.

Cayjetan,
On Il. iu,
62, art 6.
Medina,
qu 7.

Lesslus,
Book II,
xiii. 5
and 4.

Strabo,

XII [u. 8].

{Halys.]

Lessius,
Book II,
1X. I9.

Diodorus
Siculus,
IV [xxx1
5].

[V. ii.]

Lessius,
II. 1x 21
Navarrus,

KV, NO. 22.

Dig. 1X.
li. 7.

Lessius,
II. x. 6.

On the Law of War and Peace [Book II

434

defends himself on the ground of not intending wrong ought not to
have willed any part of the wrong.’

Because Ariarathes, king of Cappadocia, had wantonly blocked
the outlet of the river Melanus, when it broke through its dam the
Euphrates was flooded and devastated a part of Cappadocia and did
great damage to Galatia and Phrygia. The decision of the issue was
left to the Romans, and the king paid damages in the sum of three
hundred talents.

XITI.—An example in homicide

Let the following serve as examples.

One who unjustly takes human life is bound to pay the expenses,
if any have been incurred, for doctors. He is, furthermore, bound
to give to those whom the dead man was accustomed to support
from a sense of duty, as parents, wife, and children, so much as that
expectation of support was worth in view of the age of the person
killed. Thus Hercules is reported to have paid a fine to the children
of Iphitus, whom he had slain, in order that he might more easily
obtain expiation for his crime. Michael of Ephesus, On Aristotle’s
Nicomachean Ethics, Book V, says: ‘ But also in a way the one who
has been killed receives recompense. He, in fact, in a certain sense
receives what his wife, children, and relatives receive.’

We are speaking of unjustifiable homicide, that 1s, of homicide
by one who has not the right to do that from which death results.
Therefore if any one has had the right, but has sinned against the
law of love, as one who has been unwilling to flee from an attack,
he will not be liable. Moreover, in the case of a freeman no valuation
is put on the life. It is otherwise in the case of a slave, who could
have been sold.

XIV.—An example of one who has used violence in a different way

One who has maimed another will in like manner be liable for
the expenses, and for [292] the estimated value of the decrease
in earning power of the one who has been maimed.’ But, as in the
instance mentioned above, the life, so here the scars, are not susceptible
of valuation in the case of a freeman. The same should be said of
false imprisonment.

XV.—Of the adulterer and seducer

So also an adulterer and adulteress are bound not only to in-
demnify the husband for the support of the offspring, but also to

1 The same rule was observed among the Jews, Baba Kama, viii.1. Also among the English and
the Danes; see a treaty of these peoples in the learned Pontanus’s treatise on the sea [Dtscussiones
Historicae, I. xxi].

Chap. XVII] On Damage caused through Injury

435

repay to the legitimate children whatever loss they may suffer from
the sharing of such a child in the inheritance.

He who has debauched a virgin by violence or fraud is bound to
pay to her the value of her diminished expectation of marriage.
Furthermore, he is bound even to marry her, if by so promising he
obtained the enjoyment of her person.

XVI.—Of a thief, robber, and others

The thief and the robber are bound to restore the thing taken
together with its natural increase, and make good the resulting loss
or failure to secure gain. If, again, the thing has been destroyed,
they should repay not the highest, nor the lowest, but a fair valuation.

In this class also those should be placed who by fraud avoid the
payment of their legitimate taxes. ‘Those are similarly liable who
have caused loss by an unjust sentence, or by false accusation, or by
perjured testimony.

XVII.—Of one, who has procured a promise through deceit or an unjust
fear

Furthermore, one who has caused a contract or promise to be
made by means of deceit or violence, or an unjust fear, is bound to
free absolutely the person thus dealt with. The reason is that such
persons had the right not to be deceived, not to be constrained ;
this right in the former case arose from the nature of the contract,
in the latter case from natural liberty also.

In the class with those mentioned ought to be included those
who have not been willing, except for pay, to do what they were
bound to do from duty.

XVIII.—W hat tf the promise has been motived by a just fear according
to the law of nature ?

But one who has given cause why he ought to suffer violence, or
ought to be constrained by fear, has himself to blame for it. For an
involuntary act, which has its origin in a voluntary act, is morally
considered a voluntary act.

XIX.—W bat of the fear, which 1s considered just by the law of nations ?

But by the consent of nations the rule has been introduced that
all wars declared and waged by the authority of the sovereigns on
both sides should be considered lawful as regards their external
effects, of which we shall speak below ; and so also it follows that the
fear of such a war is considered as just up to the point that what
has been obtained by it cannot be demanded back. In this sense

Lessius,
IT. x. 2,3

Lessius,
II x1. 17.

Lessius,
II xxxu1u.
8.

Covar-
ruvias, On
Sext, V.
ult. 4,
pt. 11.

Covar-
Tuvias, On
Sext, V.
ult. 4,

pt. it,

§§ 3 and 5.

Lessius,
Il. xvi1. 6.

On

Duites, ITI
{xxix 108].
Bodin, De
Republica,
Book V,
vi.

(III. xui.]

Plutarch
[Czmon,
vil =
483 ¢ ]

On the Law of War and Peace [Book II

436

the distinction of Cicero can be admitted, between public enemies,
on the one side, with whom by the agreement of nations we have, as
he says, many rights in common, and on the other side pirates and
robbers. For if pirates and robbers have extorted anything by fear
its return can be demanded, unless an oath prevents; but such
a demand cannot be made on public enemies.

The opinion of Polybius, therefore, that the Carthaginians had
a just cause for the Second Punic War, because the Romans by
threatening war had forced from them the island of Sardinia, and
also money, when they were occupied with the revolt of their mer-
cenaries, has a certain appearance of natural justice; it 1s, however,
at variance with the law of nations, as will be explained elsewhere.

XX.—To0 what extent civil authorities are liable for loss caused by their
subjects ; wherein is the question of captures made at sea from
allies contrary to public command

1. Kings and public officials are liable for neglect if they do
not employ the remedies which they can and ought to employ for
the prevention of robbery and piracy. On this account the inhabitants
of Scyros were in ancient times condemned by the Amphictyonic
League.

At a time when the rulers of our country had given to very
many persons letters of marque and reprisal as against the enemy at
sea, and some of these had seized the property of friends, had aban-
doned their native land and were wandering about at sea without
returning even when recalled, I remember that I was asked whether
the authorities were liable on that account, either because they had
utilized the services of wicked men, or because they had not required
a bond. I replied that they were under no obligation except to
punish the offenders as guilty, in case they could be found, or surrender
them ;, that in addition they should see to it that the property of
the freebooters should be rendered liable. For J] maintained that
they themselves had not been [293] the cause of the wrongful
freebootery, and that they had not had any share in it; that they
had also forbidden by laws that friends should be harmed ; that they
had not been bound by any law to require a bond, since even without
a letter of marque they could give to all their subjects the right of
plundering the enemy, as had formerly been done; that such a per-
mission was not the cause of loss inflicted on allies, since even without
such a permission private persons could fit out vessels and go to sea ;
I said that in truth it could not have been foreseen, whether the men
were going to be wicked men; and that in truth we could not avoid

Chap. XVII] On Damage caused through Injury 437

utilizing the services of wicked men, that otherwise an army cannot
be collected.

_ 2. Kings, again, are not liable if their soldiers or sailors have
injured friends contrary to orders; and this rule has been approved
by witness of France! and England. The liability of one for the acts
of his servants without fault of his own does not belong to the law
of nations, according to which this question has to be settled, but
to municipal law; and that not a universal rule, but one introduced
as against sailors and some other persons for particular reasons. A
decision was rendered to that effect by the judges of the supreme
court against certain Pomeranians; and this decision was in accord-
ance with a precedent established two centuries earlier in a similar
case.

XXI.—T hat according to the law of nature no one is liable for damage
done by his animal or his vessel without bis fault

This also is to be noted, that it is likewise a principle of municipal
law that a slave or animal, which has caused damage or loss, is to be
delivered up for punishment. For by the law of nature the owner
who 1s not in fault is not in any degree liable.

Furthermore, he is not liable whose ship without fault on his
part has caused damage to the ship of another. Yet by the laws of
many peoples, as also by our laws, it is customary that such a loss be
divided, on account of the difficulty of fixing the blame.

XXII.—That damage may be caused to reputation and honour, and how
1t may be repatred

But, as we have said, damage is also done to honour and reputa-
tion, as by blows, insults, abuse, calumny, derision, and other similar
means. In these acts, no less than in theft and other crimes, the
criminality of the act must be distinguished from its effects. For to
the former punishment corresponds, and reparation for the loss to
the latter; and reparation is made by confession of the fault, by
manifestation of honour, by witness of innocence,” and through the
other means which are similar to these. Nevertheless, such a damage
may be made good with money, if the injured party so desires, because
money is the common measure of useful things.

1 See also Constitutions of France, Vol. 11, title ii, in the constitution of the year 1543, chap. xliv.
2 See Cassiodorus, IV. xli, for the example of Vivian, who was led by penitence in consequence
of an unjust accusation.

Constitu-
tions of
France,
III. 111,
year 1583,
chap xliv.

Lessius,
Book II,
il. 19, 25,
27.

Soto,
Book IV,
Vi. 3.

CHAPTER XVIII

ON THE RIGHT OF LEGATION

I.—That certain obligations, such as the right of legation, have thetr
origin in the law of nations

Tuus far we have treated of rights for which we are indebted
to the law of nature; we have added thereto only a few from the
volitional law of nations, in so far as any addition had been made to
the law of nature from that source.

It remains for us to discuss the obligations that the law of nations,
which we call volitional, has itself introduced. In this class the
subject of prime importance is the right of legation. Everywhere, in
fact, we find mention of the sacred affairs of embassies, the inviola-
bility of ambassadors,’ the law of nations which is to be observed
with reference to ambassadors, divine and human law, the right of

1 Pomponius, Digest, L. vii. x8: ‘If any one has struck an ambassador of the enemy, he is thought
to have thereby violated the law of nations, because ambassadors are considered sacred ; therefore if,
while ambassadors of some nation are in our country, war should be declared against it, the ambassadors
will remain free. For this is in accordance with the law of nations. And so Quintus Mucius used to
give it as his opinion that one who had struck an ambassador ought to be surrendered to the enemy,
to whom the ambassador belonged.’ According to the response of Ulpian (Dzgest, XLVIII. vi. 7),
‘if any one 1s accused of having struck orinjured ambassadors, having written or oral communications,
or their suite ’, he is liable under the Julian Law concerning public violence.

Josephus, Antiqustzes of the Jews, Book XV [XV _ v. 3], vaunts the sanctity of ambassadors, who,
he says, have a name in common with the angels, the messengers of God. Varro in his third book
On the Latin Language [Nonuus Marcellus, XII, p. 529] says: ‘ The persons of ambassadors are sacred.’
Cicero in his third pleading Against Verres [I. xxxul. 85, and On the Response of the Soothsayers, xvi.
34] says: ‘The rights of ambassadors are protected by divine and human safeguarding,’ and their
title ought to be so sacred and venerated ‘that it should remain unharmed not only under the laws
of allies, but also among the weapons of enemies.’

The writer of the life of Epaminondas [Nepos, Pelopidas, v. 1] says: ‘Since he thought he was
protected by the right of legation, which is ordinarily held sacred among all nations.’ Diodorus Siculus
in the Excerpta Petresciana, no. 248 [= XXXIII. v. 4], speaks of ‘ the security arising from the mviola-
bility of ambassadors’. In Papmius Statius, IT [Thebazd, II. 373 f.], we read :

And for ambassadors return is safe.
And likewise [Thebaid, II. 486 f.]:

And sacred to the nations through all time the name
Ambassador

[301] Chrysostom says: ‘They did not even show respect for the common right of men, which
makes ambassadors safe from every wrong.’ Servius, On the Aeneid, X [XI, line ror], says: ‘To
those protected from every injury by the law of nations.’

Not to make note of all passages, add Livy, Book I [I. xiv], concerning the Laurentes ; Dio Chry-
sostom, On Law and Custom [Oraitons, lxxv and lxxvi]; Velleius Paterculus, Book II, beginning ;
Menander Protector [frag. 9, pp. 7-8, edit. Dindorf], and the letter of Felx to Zeno in the appendix
to the Theodostan Code given by Sirmond.

In Procopius, Gothte War, III [III. xvi], Totila says: ‘To speak generally, it is the custom of
all barbarians to reverence ambassadors.’ The same is said about barbarians by von Aschaffenburg.
To King Clovis Aimoin has assigned these words: ‘ Finally it is in accord at the same time with divine
and with human laws, which ordain that those who become mediators in the midst of hostile arms
ought to be free from injunes. For in the midst of arms an embassy alone is the mediator of peace.
He who undertakes an embassy puts off the character of enemy.’

See also Radevicus, in the Appendix ; for the Poles, Kromer, Book XX ; for the Turks, Leunclavius,
Books VIII and XVII; for the Moors, Mariana, Book XII [XII. xiv].

438

Chap. XVIII] On the Right of Legation 439

legation sacred among nations, treaties sacred with reference to
nations, the alliance of the human race, and the sacredness of the
persons of ambassadors. Thus in Papintus [Statius| we read :

Sacred to the nations through all time the name.

Cicero in his speech On the Response of the Soothsayers says: ‘ For
so I think that the rights of ambassadors have not only been fortified
by the protection of men, but also guarded by divine law.’ [295]
To violate this law, therefore, is by the acknowledgement of all not
only unjust but also impious,’ as Philip says in his Letter to the
A thentans.

Il.— Among whom the right of legation 1s 1n force

I. First, then, it should be understood that this law of nations,
whatever it is, which we are going to treat, pertains to those repre-
sentatives whom rulers with sovereign powers send to one another.
For in addition to these there are representatives of provinces,
municipalities, and others, who are not governed by the law between
different nations, but by municipal law. In Livy an ambassador calls
himself the public messenger of the Roman people. Elsewhere in
the same Livy the Roman senate says that the right of embassy is
granted to a foreigner, not to a citizen. In showing that ambassadors
ought not to be sent to Antony, Cicero says: ‘ For we do not have
to deal with Hannibal, a public enemy, but with a citizen.’ More-
over, Virgil, as clearly as any jurist, has indicated who are to be
considered foreigners :

Every land which free is, and not subject to our rule,
I hold as foreign.

2. Consequently, peoples who are united in an unequal alliance?
will possess the right of legation so long as they do not cease to be
their own masters; likewise also those that are in part subject, and
in part not, will have the right of legation for that part in respect
to which they are not subject. Nevertheless, kings who have been
conquered in a formal war, and have been expelled from their king-
doms, along with their other royal possessions, have lost also the
right of legation. On such grounds Publius Aemilius kept as prisoners
the heralds of Perseus, whom he had conquered.

3. In civil wars, however, necessity sometimes opens the way
for the exercise of this right, though in an irregular fashion. Such

1 * An impious act’, says Plutarch in the life of Aemilius [Aem#lzus Paulus, xiii = 261 D], relating
the deed of Gentius. Josephus in the fifteenth book of his Anitquiizes of the Jews [XV. v. 3] Says:
‘This title has the power to reconcile enemies with enemies ; what, then, can be more impious than
to kill ambassadors pleading in behalf of justice ?’

2 Kromer,

[Theba:d,
If 486 ]

[xvl. 34.}

[Demo-
sthenes,
xl. 4 =
P 159.]

I (xxx 6],

VI (xvi.
8].

[Phihp-
pies, V. x.
27]

[A ened,
VII. 369 f.]

Histories,
III [Ilxxx.

4].

Annals,
IXI [73].

Caesar,
Crit
War, III.
[xix. 2].

XI [XXL
x. 6]

Thucy-
dides,

IT [xu]
Zonaras
[TX. x11].
Livy, XLI
[xxiv. 20]

On the Law of War and Peace [Book II

440

a case will arise when a people has been divided * into parts so nearly
equal that it is doubtful which of the two sides possesses sovereignty ;
and again, when two persons with practically equal rights are con-
tending for the succession to the throne. Under such circumstances
a single people is considered for the time being as two peoples. Tacitus
censures the followers of Vespasian ® for the reason that in their relations
with the followers of Vitellius in the frenzy of civil strife they had
violated the rights of ambassadors, which even among foreign nations
were sacred.

Pirates and brigands, who do not constitute a state, cannot avail
themselves of the law of nations. According to the statement of
Tacitus, Tiberius was indignant when Tacfarinas had sent ambassadors
to him, because a deserter and bandit was treating with him in the
manner of an enemy. Sometimes, nevertheless, persons of such
a character obtain the right of legation on the strength of a pledge
of good faith, as in ancient times fugitives in the passes of the
Pyrenees.

ITI.—W hether an embassy ought always to be admitted

1. Now there are two rights of ambassadors which we see are
everywhere referred to the law of nations. The first is that they be
admitted ;* the second, that they be free from violence.

On the first point there is a passage of Livy in which Hanno,
a senator of Carthage, thus inveighs against Hannibal: ‘ Our excellent
commander has not admitted to his camp ambassadors coming from
allies, and in behalf of allies. He has broken the law of nations.’
Nevertheless, this ought not to be taken so literally. The law of
nations, in fact, does not enjoin that all be admitted,* but it does
forbid the rejection of ambassadors without cause. ‘The cause,
again, May arise in the case of the one who sends the ambassador,
or in the case of the one who is sent, or in the reason for the sending.

z. Melesippus, a Spartan ambassador, was dismissed from Attic
territory by the advice of Pericles, because he was coming from an
enemy in arms. So the Roman senate declared that it could not
admit a Carthaginian embassy, because a Carthaginian army was in
Italy.° The Achaeans did not admit the ambassadors of Perseus,
since he was planning war against the Romans. So Justinian refused

1 Conceming the ambassadors of the city of Toledo to King John, see Manana, XXII. viii; for
the people of Flanders, see Krantz, Saxontca, XII. xxxiii.

? And Zosimus, in Book II [II. xlvii], accuses Magnentius: ‘ Magnentius was debating in his
mind whether he should dismiss Philip unanswered or violate the right of legation and detam him.’
Philip had come from Constantius.

* Donatus, On [Terence’s] Hecyra, Prologue [Second Prologue], says: ‘It is the law of nations
that an ambassador ought to be heard.’

* See Camden, under the year 1571, on the fourth of the questions there suggested.

° On this custom of the Romans see Servius, On the Aenetd, VIL [VII. 168].

Chap. XVIIT] On the Right of Legation

44r

to receive the embassy of Totila, and the Goths at Urbino the repre-
sentatives of Belisarius. Also Polybius relates that the ambassadors of
the Cynethensians were everywhere expelled because they were a
wicked nation.

The second cause is illustrated in the case of Theodorus, who was
called ‘the atheist’, whom Lysimachus was unwilling to hear, though
Theodorus [296] had been sent to him by Ptolemy. The same
thing has happened to other ambassadors by reason of personal hatred.

The third cause which we mentioned becomes operative either
when the cause of the sending is suspected,* just as the embassy of
the Assyrian Rabshaketh was by Hezekiah deservedly suspected of
stirring up the people; or when the embassy is not of proper rank,
or when it comes at an inopportune time. So the Romans forbade
the Aetolians to send any embassy without permission of the Roman
commander, and ordered that Perseus should send his embassy not
to Rome but to Licinius. Further, the ambassadors of Jugurtha
were ordered to depart from Italy within ten days,” unless they had
come to surrender their kingdom and their king. But permanent
legations, such as are now customary, can be rejected with the best
of right; for ancient custom, to which they were unknown, teaches
how unnecessary they are.

IV.—Against ambassadors, who are undertaking dangerous mtsstons,
defence is permissible, but not the exaction of a penalty

1. The question regarding the inviolability of ambassadors °* is
more difficult, and has been handled in varied fashion by the dis-
tinguished minds of this generation. We need to speak of the persons
of ambassadors, then of their suite and property.

As regards their persons, some think that by the law of nations
the persons of ambassadors are protected from unjust violence only ;
for their view is that the privileges of ambassadors are to be explained
according to common law. Others hold that violence may be done
to an ambassador not on all grounds, but merely if the law of nations
has been violated by him; and this is sufficiently comprehensive,
for in the law of nations the law of nature is included, so that an
ambassador can be punished for all crimes excepting only those which
are committed against municipal law. Others restrict this right to

1 Thus Andreas Burgus, ambassador of the Caesars, was not allowed to enter Spain; Mariana,
Book XXIX [XXIX. xv]. There is a similar case in Kromer, Book XX.

2 The Emperor Charles V gave orders that the ambassadors of France, Venice, and Florence,
who had been sent to declare war, should be conducted to a place which was thirty miles from his court ;
Guicciardim, Book XVIII [XVIII p. 472]; Bellay, Book ITI [ITI, fol. 103, ed. of 1573]. .

? Menander Protector [frag. 26, p. 59, edit. Dindord] says of the Emperor Justinus IT [Baianus] :
‘ Fle held the ambassadors of the Avars in chains, contrary to the right of legation.’ SeeEmest [302]
Cothmann, vol. v, respons. xxxii, no. 29 ff.

Procopius,
Gothue War,
[II xx]
and ITI
(xxxv1j.
IV Exx?

[Diogenes
Laertius,
II cu.

2 Kings,
1!) 26!
XV111 (36).

Livy,
XXVII
(XX XVII.
xlix. §}
Livy,

AX AIT
[XLIT.
XXXVI

5 ff}.
Sallust.
Jugurtha
[xxvill.2]

fII iv. 7]

Jugurtha
[xxxv, 7].

442 On the Law of War and Peace [Book II

crimes which are committed against the security of the state, or the
dignity of the official to whom the ambassador is sent. ‘There are
also those who think that even this right is fraught with danger ; that
complaints ought to be made to the one who has sent the ambassador,
and the decision entrusted to him. Some, again, think that kings
and peoples that have no interest in the case ought to be brought in
as advisers. ‘This may be an evidence of prudence, but it is not
required by law.

2. The reasons which the advocates of these views severally
allege lead to no definite conclusion; for this law does not certainly
arise from definite reasons, as the law of nature does, but takes its
form according to the will of nations. Now the nations could have
made provision for ambassadors either covering all cases or with
certain exceptions. For on the one side lies the advantageousness of
punishment of grave offenders; on the other is the usefulness of
embassies, and the ease in sending embassies is best promoted by
making their safety as secure as possible. The question, then, ought
to be considered to what extent have nations reached an agreement?
This question cannot be answered on the basis of precedents alone ;
for there is a sufficient number of precedents on both sides. We
must, therefore, have recourse not only to the opinions of wise men,
but also to the implications.

. I have two particularly notable opinions. The one is of
Livy, the other of Sallust.

The opinion of Livy relates to the ambassadors of Tarquin, who
had incited a revolt at Rome: ‘ Although they seemed to have
committed so great an offence that they might be treated as enemies,
yet the law of nations prevailed.’ Here we see that the law of nations
is extended even to those who commit hostile acts.

The statement of Sallust applies to the suite of an embassy, of
which I shall speak presently, not to the ambassadors themselves ;
but the argument will proceed naturally from the greater, that is,
the less credible, to the less, that 1s, the more credible. Sallust speaks
thus: ‘ Bomilcar, his companion, who had come to Rome under
a pledge of good faith on the part of the state, was brought to trial,
rather in accordance with equity and justice than according to
the law of nations.’ Equity and justice, that is, the pure law of
nature, allow that punishment shall be inflicted when he who has
committed wrong is found. But the law of nations makes an excep-
tion of ambassadors and of those who, like them, come under a pledge
of public faith. Wherefore it is contrary to the law of nations that
ambassadors should be brought to trial; and on that account many
things, which the law of nature permits, are commonly forbidden.

4. The implications, furthermore, favour this side, [297] for

Chap. XVIII] On the Right of Legation 443

it is nearer the truth to understand special privileges in such a way
that they may addsomething toacommonright. If, now, ambassadors
were protected only from unjust violence, there would be nothing
great, nothing outstanding in that provision. ‘There is the further
consideration that the security of ambassadors outweighs any advantage
which accrues from a punishment. For punishment can be inflicted
through the one who sent the ambassador, if he so wills. If, on the
contrary, he is unwilling, punishment by means of war can be exacted
from him as having approved the crime. Some raise the objection
that it is better that one should be punished than that many should
be involved in war. Yet, if the one who sent the ambassador approves
of his act, the punishment of the ambassador will not exempt us
from war.

On the other hand, the safety of ambassadors is placed on an
extremely precarious footing if they are under obligation to render
account of their acts to any other than the one by whom they are
sent. For since the views of those who send the ambassadors are
generally different from the views of those who receive them, and
often directly opposed, it is scarcely possible that in every case some-
thing may not be said against an ambassador which shall present the
appearance of a crime. And although some things are so obvious
that they do not admit of doubt, yet the universal peril is sufficient
to establish the justice and advantage of the universal law.

5. My unqualified conclusion, therefore, is that the rule has
been accepted by the nations that the common custom, which makes
a person who lives in foreign territory subject to that country, admits
of an exception in the case of ambassadors. Ambassadors as if by
a kind of fiction are considered to represent those who sent them ;
thus of a certain ambassador Cicero says: ‘ He had borne with him
the majesty of the senate and the authority of the state.’ In con-
sequence, by a similar fiction, ambassadors were held to be outside
of the limits of the country to which they were accredited. For this
reason they are not subject to the municipal law of the state within
which they are living. If, therefore, the crime should be such that
according to all appearances it can be treated lightly, it will either
need to be overlooked, or the ambassador should be ordered to leave
the country,! as was the ambassador who, according to Polybius,” had
furnished the means of escape to hostages at Rome. In this con-
nexion it should be understood that, though at another time an
ambassador of Tarentum, who had committed the same offence, was

1 Stephen, king of Poland, did this to the Muscovites; De Thou, Book LXXIII [EXXIII. ix],
on the Vear 1581. Elizabeth did the same to a Scotch and a Spanish ambassador ; both examples
you find in Camden, under the years 1571 and 1584. _

2 [Barbeyrac notes that Grotius erroneously attributes this to Polybius, folowing Gentili,
On Embassies, II. xxi.]

Philtpprs,
VIII (vu.
23].

[Livy, V
Xxxvi 8.]

(II. iv. 7]

[V. XXXV1.

7:

[Children
of Her-
cules,
jines
271-2. |
[Laves of
Sophists,
II. vj

On the Law of War and Peace [Book II

444,

scourged, that was in consequence of the fact that the Tarentines
had been conquered and had begun to be subject to Rome."

If the crime should be particularly atrocious and bid fair to
bring harm to the state, the ambassador should be sent back to the
one who sent him,? with the demand that he be punished or sur-
rendered. Thus we read that the Gauls demanded that the Fabii
be surrendered to them.

6. But, as we have several times remarked, all human laws have
been so adjusted that in case of dire necessity they are not binding ;
and so the same rule will hold in regard to the law of the inviolability
of ambassadors. Nevertheless, this extreme necessity does not warrant
the infliction of punishment, which in other cases also is removed by
the law of nations, as will appear below, when we treat of the effects
of regular warfare. Such extreme necessity will be concerned still
less with the place, time, and manner of inflicting punishment, but
rather with guarding against serious hurt, especially to the state.
Therefore that an immediately threatening peril may be met, if
there is no other proper recourse, ambassadors can be detained and
questioned. So the Roman consuls arrested the ambassadors * of
Tarquin, taking special care, as Livy says,* that none of the letters
should be lost.

But if an ambassador should attempt armed force he can
indeed be killed, not by way of penalty, but in natural defence. 5So
the Gauls could have killed the Fabii, whom Livy calls violators of
human right. And so in the Children of Hercules, by Euripides,
Demophon restrained by force the herald who had been sent by
Eurystheus and was trying to drag away the suppliants by force;
and when the herald said :

Do you thus dare to slay a herald hither sent?

Demophon replied :

Unless the herald now withholds his hand from force.

[298] Philostratus in his Life of Herod relates that the herald’s name
was Copreus,’ and that he was killed by the Athenian people because
he employed force.°

1 So Charles V commanded the ambassador of the Duke of Milan, as his subject, not to leave
his court ; Guicciardini, in the work already referred to [XVIII, p. 337, n. 3).

2 Dio, in the Selections on Embasstes frag. 61], says: ‘ When certain young men, ambassadors
of Carthage, had come to Rome and had conducted themselves insultingly there, they were sent to
Carthage, and were surrendered to the Carthaginians; they suffered no harm at the hands of the
Romans, and were dismissed unscathed,’

3 Pelopidas was put in chains by Alexander of Pherae for the reason that, though an ambassador,
he was inciting the Thessalians to freedom ; Plutarch [Pelopzdas, xxvii = 292 E], and the Latin author
of the life of Pelopidas {Nepos, Pelopidas, v. 1].

“ See De Serres, on Henry IV [Monhiard, Supplement to De Serres, p. 844].

5 See Iltad, XV [XV, line 639].

* So that must be interpreted which, according to Procopius, Gothic War, I [I. vii], Theodatus
the Goth says to the ambassadors of Justinian: ‘Sacred among men and full of honour 1s the title

Chap. XVIIT] On the Right of Legation

445

By a not unlike distinction Cicero solves this question, whether
a son ought to bring accusation against his father as a traitor to the
country. Cicerothinks that he should, in order to avertimminent peril,
but not in order to punish the deed after the peril has been averted.

V.—That the person to whom the ambassador was not sent is not bound
by the right of legation

1. Now the law which I have mentioned concerning the
inviolability of ambassadors is to be understood as binding on the
one to whom the embassy was sent, and especially in case he has
received it, just as if from that moment, in fact, a tacit agreement
had been entered into. But warning can be given, and in such cases
commonly is given, that ambassadors should not be sent; and that,
if they are sent, they will be treated as enemies. Thus warning was
given to the Aetolians by the Romans; previously the Romans had
given warning to the ambassadors of Veii, that if they did not leave
the city the Romans would do as Lars Tolumnius had done; and
the Romans were warned by the Samnites that they would not go
away unharmed if they visited any assembly in Samnium.

This law, then, does not apply to those through whose territory
ambassadors pass without receiving a safeguard. For, if they are
going to, or coming from, the enemies of this people,’ or are planning
any hostile measure, they can even be killed; such was the fate
allotted by the Athenians to the ambassadors between Persia and
Sparta, and by the Illyrians to the ambassadors between the Issii
and the Romans. And much the more can they be thrown into
chains ; such was the decision of Xenophon against certain ambassa-
dors ; of Alexander against those sent from Thebes and Lacedaemon

of ambassador. But ambassadors safeguard this right for themselves only so long as they maintain
the dignity of embassy by their proper demeanour. For men think that it is nght even to kill an
ambassador if he acts wrongfully toward the ruler to whom he is sent, or violates another’s marnage
rights.’

When now the ambassadors had shown that they were entirely free from the suspicion of adultery,
since they never went out without a guard, they prudently added: ‘If an ambassador has spoken
what he has heard from the ruler who sent him, and his words are not welcome, he himself should
not bear the blame, but the one who sent him. For nothing else was allowed to him except to discharge
the mission entrusted to him.’

See also Camden in the passage cited for the year 1571 [p. 338, n. 3]-

1 The Sicilians, who were allies of the Athenians, captured ambassadors of Syracuse who had
been sent to other states; Thucydides, Book VII [VII. xxxi]. So also the Argives captured and
conducted to Argos ambassadors sent from Athens by a small faction; Thucydides, Book VII [VIII.
Ixxxvi]. The people of Epirus intercepted the ambassadors of the Aetolians to the Romans and forced
them to pay ransom. One of them was set free on the written request of the Romans; Polybius,
Selections on Embasstes, xxvii [= XXII. ix].

On the French ambassadors to Turkey, whom the Spaniards captured on the Po and killed, see
the opinion of Paruta (Book XT) and Bizarn (Book XXI). See Krantz, Sexonica, XII. xxxin, regardmg
the Flemish ambassadors to [303] France who were captured by Maximilian.

The clemency of Belisarius is praised because he spared the ambassadors of Gelimer. These had
been sent into Spain and had returned from Spain to Carthage, which had then become subject to the
Romans; Procopius, Vandalie War, I (2. xxiv].

On
Duites,
TIT (xx.
90]

Livy,
XXVII
[XXXVIL
xlix 8].
Livy,

IV [viii.
7).

Livy,

X [xii. 2].

Thucy-
dides,

Ii [Ixvir}.
Appian,
Iilyrian
Wars{ii 7].
Anabasts,
VI [iii.
ri].
Arrian,
[Anabasts
of Alex-
ander,} It
[xv. 3].

Livy,
AXIII
(xxxis ff J
AXTIX
liv 2 ff]

[V. Ixxv
I.]

Herodo-
tus, VII
[exxxvl]}.
Dr L.
vu. 18

Annals, I
[xlit].

[i. xxxu.
85.]
IIT 1i [5]

Livy,
IV (xvi

and xxx11].

AXIV

[xxxu1i. 3].

LV (at. 5].

On the Law of War and Peace [Book IT

446
to Darius; of the Romans against the ambassadors of Philip to
Hannibal,! and of the Latins against the ambassadors of the Volsci.

2. If there is no such reason, and ambassadors are mistreated,
it is to be understood that not the law of nations, which we are
discussing, has been violated, but the friendship and dignity either
of the one who sent or of the one who received the embassy.” Justin
says of the later Philip, king of Macedonia:

After that he sent an ambassador to Hannibal in order to make an alliance with him
by letter. The ambassador was captured and was brought before the (Roman) senate ;
he was dismissed unharmed, not out of honour to the king, but from fear that one who
was still wavering might be made an undoubted enemy.

VI.—That the enemy to whom an ambassador has been sent 1s bound by

the law

For the rest, when an embassy has been admitted it is under the
protection of the law of nations even among public enemies,” and
still more among those who are merely unfriendly. Diodorus Siculus
said that for heralds peace exists in the midst of war. The Lacedae-
monians, who had killed the fetials of the Persians, are said on that
account ‘to have violated the rights of all mankind’. Pomponius
says: ‘ If any one has struck the ambassador of an enemy, it is thought
that a crime has been committed against the law of nations, because
ambassadors are considered sacred.’ Tacitus calls this right which
we are treating ‘ the right of enemies and sanctity of embassy and
divine law of nations ’.

Cicero in his first pleading Against Verres says: “Ought not
ambassadors to be unharmed among enemies?’ Seneca says in On
Anger: ‘He violated embassies, breaking the law of nations.’ In
his account of the ambassadors whom the people of Fidenae had
slain, Livy says that it was a slaughter which violated the law of
nations, a crime, an unspeakable act, an impious slaughter. Else-
where he says: ‘The ambassadors had been brought into peril and
not even the laws of war had been left to them.’ Curtius says:
‘The heralds whom he sent to induce them to make peace, the Tyrians,
in violation of the law of nations, killed and threw into the sea.’

Such expressions of opinion are justified ; for not only do very
many matters come up in war which cannot be handled except
through ambassadors, but also peace itself is hardly to be made by

any other means.

1 See Appian, Selections on Embassies, xix [=Macedoman Affatrs, 1].

2 It would be a different matter if any one should lay an ambuscade for another's ambassador
outside of his own territories; in that case the law of nations would, in fact, be violated. This is
contained in the plea of the Thessalians against Philip, as given by Livy [XXXIX. xxv. ro].

See the passages just cited II. xviii.1[n.1]. Donatus, On Terence’s Eunuch (III. ii. 14=line 467]
on the words ‘To meet and to converse’, says: ‘This is to be understood as 1f he should say, May
that be permitted by you, soldier, which is permitted even among enemies and in war.’

Chap. XVIII] On the Right of Legation 447

VIL.—That the right of retaliation cannot be claimed against ambassadors

The question is also commonly raised, whether an ambassador
can be killed or mistreated by right of retaliation, if he comes from
one who has committed some such act.

There are, to be sure, sufficiently many examples of such ven-
geance in history; but, of course, the histories relate both just
deeds and also unjust, wrathful, and violent deeds. The law of
nations safeguards not only the dignity of the one who sends, [299]
but also the safety of the one who is sent; therefore there is a
tacit agreement with the latter also. Accordingly a wrong is done
to the one who is sent, even if no wrong is done to the one who
sent him.

Consistently with the principle stated, then, when Carthaginian
ambassadors had been brought before Scipio after Roman ambassadors
had been ill-treated by the Carthaginians, and he was asked what
ought to be done to them, he replied, not only nobly, but also in
accordance with the law of nations, that no such treatment should
be accorded to them as had been inflicted by the Carthaginians.
Livy adds that ‘he said that he would do nothing unworthy of the
established customs of the Roman people’. Valerius Maximus, in
a similar but more ancient case, puts this utterance into the mouths
of the Roman consuls: ‘The good faith of our state, Hanno, frees
you from that fear.’ For at that time also Cornelius Asina had been
put in chains by the Carthaginians, contrary to the right of legation.

VIII.—The right of ambassadors is also extended to the suite of an
ambassador, if the ambassador has desired tt

I. The suite also, and the effects of ambassadors, in their own
way are inviolate. Hence arose the expression in the ancient formula
of the fetials: ‘ King, do you appoint me the royal messenger of the
Roman people the Quirites, and do you designate my suite and
effects?” By the Julian Law on public violence, those who have
done an injury not merely to ambassadors, but also to their suites,
are declared to be held guilty. But these rights are sacred as acces-
sories and, therefore, only so far as seems good to the ambassador.’

1 Diodorus Siculus in the Excerpta Peiresciana [=XXVII. xii. 1] says: ‘Scipio said that they
ought not to do that which they blamed in the Carthaginians.’ The Romans themselves dismissed
the ambassadors after they learned of the deed of the Carthaginians. See Appian. Constantius dis-
missed Titian, who had been sent to him by Magnentius, though the latter was detaining Philip, who
had been sent to him by Constantius; Zosimus, Book II [II. xlix].

See also the narratives in Kromer, Books XIX and XXI; and Paruta, Book VII, concerning the
Venetian ambassadors who were detained on their way into France.

4 See the Letters of Du Fresne de la Canaye, pp. 75 and 279.

1569-27 Hh

Appian,
Punie
Wars

[v1 35].

XXX
[XxXv. ro].
VI.vii [VI.
vi. 2].

[Livy, I.
Xxiv. 5.]

Pugest,
XLVITYX,
vi. 7.

Pausanias,
VIT [xiv].

(II xvii.
4.3]

[frag. 34,
p. 150,
edit
Dindorf.]

448 On the Law of War and Peace [Book II

If, now, members of the suite have committed a great crime,
the demand can be made on the ambassador to surrender them ; for
they ought not to be taken away by force." When force was employed
by the Achaeans in the case of certain Lacedaemonians, who were
with the Roman ambassadors, the Romans cried out that the law of
nations was being violated. Also the judgement of Sallust concern-
ing Bomilcar, which we have cited above, can be referred to on this
point. If, however, the ambassador is unwilling to surrender such
members of his suite, the same course will need to be pursued as we
just now mentioned in the case of an ambassador.

2. The question whether an ambassador has jurisdiction over
his own household, and whether any one who takes refuge with him
has a right of asylum in his residence,” depends on the concession of
him in whose domain the ambassador resides; for that right does not

belong to the law of nations.

IX.—The right of ambassadors 1s extended likewise to their movable
goods

Again, it is the better established opinion that the movable
goods of an ambassador, which in consequence are considered as
attached to his person, cannot be seized as security, or in payment
of debt or by order of the court, or, as some claim, by the hand of
the king. For an ambassador ought to be free from all compulsion
—such compulsion as affects things of which he has need as well as
that which touches his person—in order that he may have full security.
If, then, he has contracted a debt and, as ordinarily happens, possesses
no landed property in the country, payment should be demanded in
a friendly way from him personally ; and if he refuses, then payment
should be requested from the one who sent him, so that finally those
methods may be employed which are customarily used in the case of
debtors outside the country.

X.—LExamples of an obligation without the right of compulsion

1. There is no reason for fearing that, as some think, no one
can be found who would be willing to make contracts with an ambas-
sador, if such is the ambassadorial right. For kings, who are not
subject to compulsion, do not fail to have creditors; and Nicholas
of Damascus informs us that among some nations it was the custom
that action at law should not be granted in relation to contracts
based on credit, any more than against ungrateful persons, with

1 De Serres [Supplement to De Serres] on Henry IV.
2 Generally in such cases a distinction is made as regards the crimes. See Paruta Book X, where

the king of France, though angered for this cause, is appeased. See Book IX of the same author.

Chap. XVIII] On the Right of Legation 449

the result that men were compelled to carry out their contracts at
the same time, or to be contented with the bare promise of the debtor.

This is the state of affairs that Seneca desires:+ ‘ Would that
we could persuade men to give credit only to men who wish to pay ;
would that no contract bound the buyer to the seller, and that
compacts and agreements were not guarded by the attachment of
seals; would that they might be kept rather by good faith and a mind
that cherishes a sense of fairness!’ Appian says that the Persians also
objected to ‘ taking money on loan, [300] since that was a transac-
tion exposed to fraud and deceit.’ *

2. Aelian says the same of the Indians; and Strabo supports
him in the following words : ‘ There are no courts except for murder
or injury; for these a man cannot hinder from happening to him.
Contracts, however, are within the power of every person ; and so,
if any one violates his pledge, this must be endured. Each one ought
in advance to consider whom he should trust, and not to fill the
state with lawsuits.? Also Charondas established the rule, that one
who had taken a promise in place of payment should not have the
right to prosecute. This was approved by Plato.°

The fact was noted also by Aristotle: ‘Among some peoples
there is no right of action in these matters ; for they think that men
ought to be content with the pledge of good faith which they have
accepted.’ Elsewhere he adds: ‘ There are countries where the laws
forbid action at law on account of debt, as if one ought to deal only
privately with a man with whom he has made a contract, and whose
good faith he has trusted.’ Opinions opposed to this view, which
are derived from the Roman law, do not apply to ambassadors, but
to the representatives of provinces or municipalities.

XI.—Of how great importance this right of legation 1s

. Profane histories are full of wars undertaken on account of the
ill-treatment of ambassadors.* Also in the Scriptures * there is mention
of a war which David waged against the Ammonites on that account.
Cicero thinks that no other cause was more just for the war against

Mithridates.

1 On Benefits, III. xv.

2 Herodotus, I [I. cxxxvuit] calls this ‘ owing a debt’.

3 On Laws, VIII [VITI. xiv].

‘ On this account the Romans began war against the Senones, Appian, Selections on Embassies,
iv and x [=Gallic History, xi] ; against the Illyrians and Ligurians, Polybius, Selections on Embasstes,
cexxv and cxxxiv [=II. viii. 134] ; against the inhabitants of Issa, Dio, Selections on Embasstes, ti [Leg.
Rom., vi]; against the Corinthians, Livy, Book II [pttome, lii] ; against the Tarentines, Dionysius
of Halicarnassus, Selections on Embassies, iv [=XIX. 5]. Of the French and the Germans you find
examples in Aimoin, ITI. lxi and lexxviii, and in Wittekind, II.

5 See Chrysostom, To Stagirius, Book II [IIT. viii].

Hh2

Civil
Wars, I
[v1. 54].

[Various
History,]
IV [i].

XV [i. 34].

Stobaeus,
On Laws
[xlv. 40].

Nico-
machean
Ethcs,
VIII. xv.

Nito-
machean
Ethics,
IX. i.

2 Samuel,
x.

[For the
Manilian
Law, Vv.
r1.]

[Cf Book
I, xiv 1.]

On
Custom
[Ovrations,
[xxvi=

Pp. 649].
Con-
eroverstes,
I.1 (xr4].

f Jewrsh
War, IV.
Vi. 3.]
Letters,
last ed,
491.
[Various
Hustory,}
XII [!x1v];
XITI [xxx].
[line 378.]
f{Panathe-
naic =

p. 202 B]
[Pharsaha,
VII. 80r.]
(Thebard,
XII. 642.]
Annals,
VI [xxv].
[Orations,
i1. g.]

War wtth
Gtldo

[397 £]
Novels, liii.

Loc. cit.
[line 563.]
[Anizgone,
450 ff]

CHAPTER XIX

ON THE RIGHT OF SEPULCHRE

I.—The right of burial of the dead has its origin in the same law of
nations

1. Tue burial of the dead also is an obligation which has its
origin in the law of nations; and this, in turn, has its origin in
the will.

Among usages or ‘ customs’ which Dio Chrysostom [304] con-
trasts with ‘the written laws’, after the rights of ambassadors he
declares that ‘ the burial of the dead should not be prevented ’. Also
Seneca the father includes the committing of a dead body to earth
among the laws which are unwritten but more sure than all written
laws. The Jews Philo and Josephus call this a law of nature, and
Isidore of Pelusium, ‘an established ordinance of nature’; we have
said elsewhere that common customs which are in accord with natural
reason are customarily included under the term nature.

In Aelian are the words : ‘ Since common nature herself enjoins
that the dead be buried.’ Elsewhere the same author speaks of ‘ the
earth and burial as common, and equally due to all men’. Euripides
in the Suppliants called burial ‘laws of mankind’;* Aristides, ‘a
common law’; Lucan, ‘the customary rites of men’; Papinius
[Statius], ‘ the laws of earth and a compact of the world’. ‘T'acitus
speaks of ‘sympathy for the common lot of mankind’; the orator
Lysias, of ‘the common hope’. Whoever hinders burial is said by
Claudian ‘to put off the nature of man’; by the Emperor Leo,
‘to bring disgrace upon nature’, and by Isidore of Pelusium, ‘ to
violate sacred right’.

2. Because the ancients were accustomed to refer to the gods
as authors the rights which are common to civilized men, in order
that these might seem more sacred, we see that this right, as well as
that of legation, is generally ascribed to the gods. And so in the
tragedy just mentioned, the Suppliants, you will find it called ‘ the
law of the gods’; ? and in Sophocles Antigone thus makes answer
to Creon, who had forbidden the burial of Polynices:

For this decree not Jupiter supreme

Nor holy law of dead now deified,
From whom the human race derived its other rights,

1 Eusebius, History, VIII. xix [On the Mariyrs of Palestine, ix], speaks of ‘ the laws of nature’.
ti 2 eopnoeies: Ajax [line 1130]. The same author speaks of ‘ laws of the gods’ in the Antigone
ine 454].

450

Chap, XIX On the Right of Sepulchre
Proclaimed. And I have not believed that your commands
So potent are that you of mortal birth

Could violate the laws unwrit but by the will

Of gods ordained, and everlasting. Not of late

Are they in force, but from all time,

And hid their origin. Then should I not

Obedience render to the mighty gods,

And with stout heart the fear of mortal wrath disdain?

451

3. Isocrates treating of the war of Theseus against Creon speaks
thus :

Who does not know, who has not learned, even in the Dionysiac festivals from the
writers of tragedies, what evils befell Adrastus before Thebes, when, wishing to reinstate
the son of Oedipus, his son-in-law, he lost the most of his Argive troops and saw the
leaders themselves lying slain ; when he himself, disgracefully surviving, could not obtain
a truce to bury the dead, he came as a suppliant to Athens, which Theseus then was
ruling, and besought Theseus not to count it a trivial matter that such men lay unburied,
and not to allow the contemptuous disregard of the ancient custom and ancestral right,
which all men have in common, not as if established by man, but ordered by a divine
power; and Theseus, when he heard this, without delay sent an embassy to Thebes.

Later the same author censured the Thebans’? because they
had put the decrees of their own state above the divine laws. He
mentions the same story also elsewhere, in the Panegyric, in the
Praise of Helen, and in the Plataic Oration. Herodotus, too, men-
tions it in his ninth book, Diodorus Siculus in his Histories, Book IV,
Xenophon in his Greek History, Book VI, and Lysias in the oration
in honour of the dead; finally, Aristides has the story in his Pan-
athenaic Oration, and he says that this war was undertaken [305]
on behalf of the common nature of men.

4. Here and there among the authors cited we see that the
names of the noble virtues are assigned to this discharge of duty.
For Cicero and Lactantius ? call this a manifestation of humaneness ;
Valerius Maximus, of ‘ humaneness and kindliness’; Quintilian, of
‘compassion and religious scruple’; Seneca, of ‘ compassion and
humaneness’; Philo, of ‘compassion for the common nature of
mankind’; Tacitus, of ‘ sympathy for the common lot of mankind’ ;
Ulpian, of ‘ compassion and devotion’; Modestinus, of the ‘ memory
of the lot of man’; Capitolinus, of ‘mercy’; Euripides and Lac-
tantius, ‘justice’; and Prudentius, of ‘ the work of kindness’. The
Donatists, who forbade the burial of the bodies of the Catholics, are
accused of impiety by Optatus of Milevis. In Papinius [Statius]

one reads:
And Creon must be forced by war and arms
To heed the customs of mankind.

1 Plutarch in his Theseus [xxix = 14] maintains that the right of burial was obtained from the
Thebans by agreement, not by battle. Pausanias in the Afica [I. xxxix] says by battle.

2 Also this in his [Divine Institutes,] VI. xii [VI. xii. 25]: ° That is the last and greatest duty of
respect, the burial of strangers and of the poor.’

Pan-
athenate
Oration
[elxvi1 £.]

[Paste-
gyric, XV;
Pratse of
Helen, xv;
Plataic,

xx ]
fIX.xxvu j
{IV lxv ]
[VI.v 46.}
Pp. 204 A.]
Cic , For
Quintus
Lact., Dev.
Inst., VI.
xi andxx11
Val. Max.,
V.1.
Quintilian,
inst. Ovrat ,
XII. ult.
Sen , On
Ben., V.
xx [5].
[Philo, On
Joseph, v.)
[Tac ,Ann.
VI, xxv.)
Dig. XI.
Vil. 14. § 7;
XXVIII.
vii. 27.
Cap., Aare.
Ani. [x11].
[Eur.,Sup.,
379 et al.]
[Lact., Div.
Inst., VI.
xii. 31.]
[Prud.,
Hymn, X.
63.] Opt.,
VI [vii]
{Thebaid,
XII.

165 f.]

Spart ,
Carac ,
[iv. 2].
VIII
[xxiv. r5].
[Ibid ,
XXIT
395 ]
VI fxn.
27]
Thebaid,
III [98].

Genesis,

I 2;
Tacitus,
Histories,
V [v].
[Laws, IT.
Xxi1. 56 ]

[Stobaeus,
Eclogues,
I. vin. 38.]

[Tusculan
Desputa-
tions, ITI,
XXV 59,.]

Eccle-
siastes,
x1. 7.
[lines 532
ff.]

On the Law of War and Peace [Book TI

452

Spartianus says that such men are ‘ without reverence for humanity ’ ;
Livy calls the refusal of burial an act of cruelty ‘ evincing human rage
beyond belief’. Homer has styled such acts ‘shameful deeds ’.* Lac-
tantius calls ‘impious ’ ‘ the wisdom of those who hold burial super-
fluous’ ; for the same reason Eteocles was called impious by Papinius

[Statius |.

Il.—W hence the right arose

1. All do not seem to hold the same opinion regarding the
cause of the introduction of the custom that bodies should be covered
with earth, whether first embalmed, as among the Egyptians, or
cremated, as among most of the Greeks, or buried as they are now ;
the last-mentioned, Cicero, and after him Pliny,? noted as representing
the most ancient custom. Moschion thinks that the occasion was
given by the savagery of the giants in devouring men, and that burial
marked itsabandonment. He, in fact, speaks as follows :

By laws then ’twas ordained to give to earth
The bodies of the dead, or sprinkle with the dust

Those not yet buried, lest the dreadful signs
Of former feastings should be left to view.

2. Others think that in this way men as it were of their own
will paid a debt which otherwise nature demands of them even
against their will. For not only did God make known to Adam, but
also Greek and Latin writers generally acknowledge, that the body
of man arose from earth and to earth must be returned.®? Cicero

quotes from the Hypstpyle of Euripides :

Earth must be to earth restored.

Also in the words of Solomon we read that ‘ the dust returneth to
earth, as it was, and the spirit returneth unto God, who gave it’.
Euripides in the Suppliants, touching upon this very subject in the
person of Theseus, thus speaks :

+ The same poet in the Iizad, XXTV [XXIV. 113 ff.], says that Jupiter and the gods were angry at
Achilles on account of the ill-treatment of the body of Hector.

? Natural History, VII. liv [VII. liv. 187], where also this is found: ‘ “‘ Interred’? (sepulius) means
laid away in some fashion, but “ buried ’’ (Awmatus) means covered with earth.’

* Job, x.9. Philo, Against Flaccus [xxi]: ‘Nature has assigned the earth as the proper place for
men, not only when living but also after death, that the same earth which received them at their
birth may receive them also on their departure from this life.’

Nevertheless as there is nothing praiseworthy in man, of which God has not placed a trace in
some other kind of animate being, so it has come about in this matter also. Pliny, [Natural H:story,]
Book XI, xxx [XT. xxx. rro], says of ants: ‘They alone of living creatures, except man, practise
burial.’ But he himself says of the dolphins in Book IX. viii [IX. viii. 33]: ‘And they have been
Seen carrying away one that was dead, that it might not be torn to pieces by sea monsters.’ Also

Virgil [Georgics, IV. 255-6] says of bees :
Then bodies of the dead

From hives they carry forth, and make sad funeral trains.
This Servius explains: ‘ Naturally with a funeral procession.’

Chap. XIX] On the Right of Sepulchre

Now let the dead be covered in the lap of earth;
Whence everything its origin received,

Thereto it is restored. The spirit to heaven returns,
The body to the earth. For not by right of sale,
But as a loan and for brief time ’twas given.

Soon earth asks back what it has nourished.

453

Lucretius similarly says of earth :

Mother of all she is, and common tomb of things.

In his second book On Laws, Cicero quotes from Xenophon :
‘ The body is restored to earth; thus placed and buried it is, so to
speak, covered with the veil of its mother.’ Pliny also wrote [306]
that the earth receives us at birth, nourishes us after birth, and
always supports us when we have reached maturity; finally, when
we have been abandoned by the rest of nature, as a mother she takes
us to her bosom and hides us.

3. There aresome who think that by burial as a kind of memorial
the hope of resurrection was handed down by the first parents of
the human race to their descendants. For by the witness of Pliny,
Book VII, chapter 55, Democritus taught that bodies ought to be
preserved on account of the promise of living again. Moreover, the
Christians often refer the custom of honourable burial to such a hope.
Prudentius says :

What mean, I pray, the hollowed rocks,
Or what tomb structures beautiful,

Unless there is to them entrusted
A thing not dead, but by sleep overcome ?

4. Asimpler explanation is that, since man surpasses the other
animate beings, it has seemed an unworthy fate that other animals
should feed on his body; wherefore, that this might be so far as
possible avoided, burial was invented. Qluintilian said that because
of the compassion of men dead bodies were guarded against the attacks
of birds and beasts.1 Cicero says in his first book On Invention :

1 See the prophecy about the children of Jeroboam in punishment of his sms rf Kings,
xiv. 11. Also Tertullian, On the Resurreciton.
Homer, Odyssey, ITI [TII. 258-9], says of Aegisthus:
[311] On him slain, then, no earth they lightly cast,
That dogs and birds his bones might lacerate.

As an adulterer and usurper of the kingdom, the Argives had left him unburied. Nevertheless with
greater humanity Orestes, as will be told later [line 310], committed his remains to earth.
According to Sophocles, Menelaus says of Ajax [Azax, lines 1064-5]:
But he, stretched out upon the pale sea-sand,
A welcome feast for sea-birds will provide.

But this also Ulysses, a model of prudence, forbids.
In praise of Antigone herself, Sophocles, in his Antigone [lines 696-8], says :
She would not suffer that her gore-stained brother
Unburied lie, to furnish food for ruthless birds and savage dogs.

[V. 259.1

(II xxu.
56.]

| Vatural
History,
II. be.
T54.]

[Hymn,
Xx. 53H]

Declama-
tions, Vi
[vi. 3].

(I. lv. 108.]

[A enerd,
X, 557 ff ]

Jevemah,
xxi [19]

VI [xit.
30]

On
Tobias

(i. 5].

On Ben.,
V. xx [5].
Quint ,
Deel.,

vi [3].
[Satures,
Cxiv J

On the Law of War and Peace [Book II

454

‘Torn by wild beasts in death he lacked the common honour of
burial.’ Also in Virgil we read :
No loving mother shall bury thee in earth,

Nor lay thy weight in the ancestral tomb.
A prey to ruthless birds shalt thou be left.

In the prophets God threatens the kings that are hated by Him,
that they shall have the burial of an ass, that dogs will lick their blood.
Lactantius has no other thought in mind regarding burial when he
says: ‘ For we shall not suffer the form and image of God to be left
a prey to beasts and birds.? So also Ambrose, whose words are:
‘There is no nobler duty than this, to confer a favour on one who
can no longer requite it ; to deliver from birds, to deliver from beasts,
one who shares your nature.’

5. Even the dead should not be exposed to such injuries,
nevertheless with good reason it seems foreign to the dignity of
man’s nature that a human body should be trodden under foot and
torn to pieces. Not inconsistent with this point of view is the state-
ment in the Controversies of Sopater :

It is a noble act to bury the dead; and by nature herself this boon was granted as
it were to corpses, that they might not be exposed to shame after death by rotting away
in nakedness. Whether the gods or the demigods granted this honour to bodies that
are done with life, such disposition of the dead is agreeable to all men. In fact, since
it is at variance with reason that the secrets of human nature should be exposed to the
view of all after death, we have accepted from antiquity the custom of burying human

bodies in order that, concealed in a tomb, they might waste away in secrecy, far removed
from sight.

Of similar purport are the words of Gregory of Nyssa in his
Letter to Letowus: ‘In order that that which is a blemish upon
human nature may not be exposed to the sun.’ }

6. Hence is it that the office of burial is said to be performed
not so much for the man, that is, for the person, as for mankind,
that is for human nature.? Therein is the reason why Seneca and
Quintilian called burial a humane public act, and Petronius charac-
terized it as prescribed by custom. A natural consequence of this
is that [307] burial ought not to be denied either to private or to
public enemies.

Appian, in the Civil Wars, I [I. vin. 73], says of those who were slain at the command of Marius: ‘It
was not permissible for any one to bury any of the slain, but birds and dogs tore in pieces such excellent
men.’ Ammuanus Marcellinus at the beginning of Book XVII [XVII. i. 1] says of Julian: ‘ Anxious
lest birds of prey should consume the bodies of those that had been slain, he gave orders that all without
distinction should be buried.’

+ In a similar manner Agathias [V. xii] says that it was the custom to conceal the afterbirth.
So it is apparent how, according to nature, we are nothing at birth and at death. To make this plain
the Hebrew sages forbade that those of the highest or of the lowest rank should be wrapped differently
in any way either at birth or at death.

Wea On the Aenetd, XI [XI, line 106], says: ‘The favour of burial is universally due to all
mankind.

Chap. XIX] On the Right of Sepulchre 455
As regards private enemies there is in Sophocles a fine disquisition
by Ulysses governing the burial of Ajax, in which, among other

sentiments, these lines appear :

O Menelaus, when so much is wisely said,
Beware of doing injury to a man who is dead.

Euripides in the Antigone gives this reason :

Death is for mortal man the end of strifes ;
Then what else greater can to death be added?

The same dramatist also in the Suppliants :

If Argives have done ill to you in aught,
Fallen they are; against a foe such vengeance is enough.

And Virgil says :

No strife is there with vanquished men, and those
Bereft of heaven’s air.

Citing this thought the author of the Ad Herennium adds: ‘ For
that which is the last of evils has already happened to them.’
Papinius [Statius] says :

We fought, *tis true ;

But hate has ceased, and gloomy wrath
By death is quenched.

Optatus of Milevis, too, assigns the same reason: ‘If the contest
was between those living, then let the death of the other appease
your hatred. He with whom you strove before is now silent.’

I1].—T hat burial is due also to public enemtes

I. Consequently, all agree that even public enemies are entitled
to burial.2_ Appian calls this ‘a common right of wars’; Philo, ‘the
common interchange in war’. Says Tacitus: ‘ Not even enemies
begrudge burial.’ Dio Chrysostom says that this right is observed
even ‘among enemies’; he adds, ‘ even though hatred has reached
the utmost limit’.

In treating of the same matter, Lucan says that the laws and
customs of humanity must be observed in the case of an enemy.
The same Sopater, who was cited above, asks: ‘ What war has
deprived the human race of this last honour? What enmity has

1 [Barbeyrac notes that this passage is not found in the Ad Herennium, but that Grotius is
followmg here Alberico Gentili, De [ure Bellz, Il. xxiv.]

® Philo, Against Flaccus [ix], says: ‘Men who possess a larger measure of goodness and humaneness
usually bury at their own expense those that have fallen in war; others, however, who extend their
hatred even to the dead, give up the bodies under agreements, that they may not lack what custom
imposes as a last honour.’

[djax,
IOgI-—2 |

[Stobaeus,
Flort-
leguum,
cxxvV. 6.]

[lines 528~—
9-]

[A eneid,
XI. ro04.]

[Thebard,
XII.

573 ff.]

[VI vii.]

[Appian,
Punic
Wars, xv.
104.]
[Annals,
I, xxii.]
[=p. 649
Cc.

(VII. 8er.]

[=p. 647
D)

Aelian,
Var. Hist ,
XII
[xxvit].
Diodorus,
XVIT [xl]
[Livy,
XXIT. vu
5; lu. 6;
XXV,
xvu. 4 ff ;
Sil. Ital ,
Pun.,

389f 5
Val. Max,
V.1 23
Appian,
Mith.,
Evi. 113;
Plutarch,
Demetr.,
xvl=
8964; Ant
111=917B;
Diodorus,
XI. xxix ]

[I xxxii.]
(Leviticus,
xxl. 1 ff.]

Ambrose,

On Duties,
IL. xxviii
[142].

[War with
Grldo

3971.}

V [xxix]

On the Law of War and Peace [Book II

456

extended the memory of evil deeds to such a point that it would
dare to violate this law?’ And Dio Chrysostom, whom I have just
cited, in his oration On the Law, says: ‘ For this reason no one judges
enemies after death, and wrath and insult are not extended to their
bodies.’

z. Examples are found? everywhere. So Hercules buried his
enemies, Alexander, those who fell at Issus. Hannibal sought out
for burial the Romans, Gaius Flaminius, Publius Aemilius, Tiberius
Gracchus, and Marcellus.? ‘ You might believe’, says Silius Italicus,
‘that a Carthaginian leader had fallen.” The same duty was dis-
charged to Hanno by the Romans, to Mithridates by Pompey, to
many by Demetrius, and to King Archelaus by Antony. In the
oath of the Greeks, when they were making war on the Persians,
there was this: ‘I will bury all allies; as victor in war, even the
barbarians.’

Quite generally in the histories you may read that an armistice
was granted ‘for the removal of the dead’.* There is an instance
in the 4itica of Pausanias: ‘The Athenians say that the Medes
were buried by them, for the reason that it is right that all dead
bodies be committed to earth.’

3. For such reasons, according to the explanation of the Jews
of the olden time, the high priest, though otherwise forbidden to
be present at a funeral, nevertheless was even enjoined to bury
a human body found unburied.* ‘The Christians esteemed burial so
highly that they thought it permissible to melt down [308] or sell
even the consecrated vessels of the Church for this purpose, as well as
for the support of the poor or the ransom of captives. "

There are, to be sure, some examples to the contrary, but
they are universally condemned. In Virgil are the words: °

Ward off this rage, I pray;

and in Claudian,

Blood-thirsty he put off the nature of a man,
And to the slain begrudged the scanty gift of sand,

Diodorus Siculus says: ‘ It is the part of a beast to wage war against
the dead who were of the same nature.’

1 Josephus [Anitquities of the Jews, IV. viii. 24] says about the laws: ‘Let dead enemies also
be buried.’ Agamemnon buned the Trojans; Jad, VII [VII. 395 ff.].

According to Plutarch [Pyrrhus, xxxiv = 406], Antigonus buried Pyrrhus.
author in the life of Theseus [xxix = 14 A].

* Plutarch, Marcellus [xxx = 316 a].

8 See below, ITI. xx. 45.

* Servius notes the same from the Roman pontifical law [On the Aenetd, VI, line 176].

5 [Aeneid, X, line 905.] Servius thus explains: ‘The wrath of his enemies desiring to exercise
cruelty even after death.’

See the same

Chap. XIX] 457

On the Right of Sepulchre

IV.—W hether the right of burial is obligatory in the case of notorious
criminals

1. Nevertheless I see that there are reasons for doubt in regard
to notorious malefactors. The divine law given to the Jews, which
is the teacher of all virtue as well as of humaneness, commands that
even those who had been hanged on the gallows should be buried
on the same day. The gallows was considered the most disgraceful
punishment (Numbers, xxv. 43; Deuteronomy, xxi. 23; 2 Samuel, xxi. 26
[xxi. 6]). Hence Josephus says that the Jews have so great regard
for burial that before sunset they take down and bury in the earth
even those whose bodies have been condemned to public execution.
Other Jewish scholars add that such reverence was manifested for the
divine image, after which man was fashioned.

In the third book of the Odyssey, Homer relates that Aegisthus,
who to the murder of the king had added adultery, was buried by
Orestes, the son of the king who was murdered. But Ulpian says
that also among the Romans the bodies of those who are condemned
to death ought not to be refused to their relatives; still further,
Paul the jurist gave it as his opinion that they should be given to
any one who might ask for them. The Emperors Diocletian and
Maximinian rendered this decision : ‘ We do not forbid that criminals
be allowed burial after they have suffered the fitting penalty.’ *

2. We read in the histories, to be sure, that examples of those
left unburied ? are more frequent in civil than in foreign wars; and
to-day we see that the bodies of some condemned criminals are left
for a long time in the sight of the people. Nevertheless, not only
statesmen but also theologians are discussing the question whether
or not this custom is praiseworthy.

3. On the contrary we see that praise has been given to com-
manders who ordered the burial of the bodies of those that had not
allowed this privilege to others; such is the case of Pausanias, the
Spartan king, who, though urged by the Aeginetans to avenge in
like manner the action of the Persians against Leonidas, rejected the
proposal as unworthy of himself and of the Grecian race. According
to Papinius [Statius|, ‘Theseus thus addresses Creon :

Go forth and offer utmost punishment,
Yet at the end be sure of burial.

The Pharisees buried King Alexander Jannaeus, who had treated
most shamefully the dead of their people. If God at times punished

1 [312] Mention is made of this Roman custom in Philo, Against Flaccus [x].
2 Josephus [Antiqutites of the Jews, XITI. xv. 5] on the death of Alexander, king of the Jews,
said: ‘To insult the dead by non-mterment.’? Add Quintilian, Declamations, iv [iv. 9}.

[Jewtsh
War, IV.
Vv 2.]

(III 309.]

Digest,
XLVIITI.
XXIV. I.
Digest,
XLVIIT.
XXiV. 3
Code, ITT.
xliv 11.

Rochus,
De Con-
suetudine,
fol. r2.
Abbas,

On
Decreials,
IIT.
XXVili. 5.
Sylvester,
word
sepulturay
qu. 13.

{Herodo-
tus, IX.
Ixxvi ]
(Thebaid,
XII. 780 £.]

Josephus,
Antiqui-
tses of the
Jews, X1II,.
xiii (XIII.
xvi. 1] and
Gorio-
nides.

Jewrsh
War, ITI.
xxv [III
VILL 5].
Hegesipp.,
Il] xvi.
Gellius,
XV x.
Plutarch,
On the
Noble
Tratts of
Women
[xis

[Natural
Rist ,]
XXXVI.
xv [107]
(Plutarch,
Cleom.,
XXXVL11I=
823 B.]
Nic Eth,
V. Xv.
Ovations,
Ixiv

[=p. 592].

stobaeus,
CXXVi
[oxxv.

14], and
Sophocles,
Ajax
[1266].

On the Law of War and Peace [Book II

458
certain persons with loss of burial, He did this by His own right
as being above the laws. And the act of David in keeping the head
of Goliath for show was done, in fact, against a foreigner, who was a
despiser of God, and under that law which limited the characteriza-
tion of neighbour to the Jews alone.

V.—W hether the right of burial is obligatory in the case of those who
kill themselves

1. Nevertheless, the fact is not unworthy of notice that even
among the Jews the rule concerning the burial of the dead had an
exception in the case of those who had committed suicide; this, in
fact, we learn from Josephus. And this is not strange, since no other
punishment can be devised against those who are beyond the reach
of the death penalty. Thus the maidens of Miletus were kept from
suicide by fear, and likewise formerly the plebeians at Rome,* though
this is denied by Pliny. [309] So also Ptolemy ordered that the body
of Cleomenes, who had committed suicide, should be hanged.

Aristotle says that it is everywhere the accepted custom ” that
those who have committed suicide should be punished with some
disgrace; and in explaining this passage Andronicus of Rhodes says
that their bodies were denied burial. A provision of this kind Dio
Chrysostom praises among other wise laws of Demonassa, queen of
Cyprus. It is no objection to this custom that Homer, Aeschylus,
Sophocles, Moschion, and others say that the dead are without
feeling ; in consequence they are not affected by injury or shame.
It is, in fact, suficient that what happens to the dead is feared by
the living, that so they may be restrained from sinning in this way.

2. Most excellently, in opposition to the Stoics and all the rest
who considered the avoidance of slavery and disease, and even the
hope of glory, as a just cause for suicide, the Platonists think that
the soul ought to be kept in the custody of the body, and that migra-
tion from this life ought not to be undertaken without the order of
Him by whom the soul was given to us. Many statements on this
point it 1s possible to find in the writings of Plotinus, and Olympio-
dorus, and of Macrobius On the Dream of Scipio.

1 Servius, On the Aeneid, XII [XII. 603], says: ‘Truly we should know that provision had been
made in the pontifical books, that whoever had hanged himself should be thrown out unburied. For
that reason he deservedly names it “a hideous death’’, as if of a most disgraceful death. Since, then,
nothing is more hideous than such a death, we should consider that the poet spoke also in view of
the rank of the queen. Cassius Hemina says that when Tarquinius Superbus had compelled the people
to dig sewers and many had hanged themselves on account of this injustice the king gave orders
that their bodies should be nailed to crosses. Then for the first tume it was considered disgraceful
to commit suicide.’

* At Athens in the time of Aeschines the hand of a man who had killed himself was buried apart
from his body; Aeschines, Against Ctesiphon [ccxliv]. Add Hegesippus, III. xvii.

Chap. XIX] On the Right of Sepulchre 459

Following this opinion, Brutus had at one time condemned *
the deed of Cato, which he afterwards imitated, ‘ maintaining that 1t
was neither loyal nor manly to yield to fortune and to try to escape
from impending misfortunes, which ought to be borne bravely.’
Also Megasthenes noted that the deed of Calanus was condemned
by the wise men of India, and that such an end for men dissatisfied
with life? was not approved by their teachings. Not otherwise, as
it seems, was the opinion of the Persians, whose king Darius, according
to Curtius, says: ‘I prefer to die by another’s crime rather than by
my own.’

3. And so‘ to die’ the Jews expressed as ‘ to be set free’, that
is ‘ to be dismissed’ ; this it is possible to see not only in Lwke (ii. 29),
but also in the Septuagint text of Genesis (xv. 2) and Numbers
(xx. end).

This form of expression is usual for the Greeks also. Themistius,
On the Soul, remarks: ‘ They say that one who dies is dismissed, and
they call death dismissal.’ In Plutarch’s Consolation are words to this
effect: ‘ Until the deity himself dismisses us.’

4. Some of the Jews, however, make one exception to the law
against killing oneself, considering it a ‘commendable exit’, as it
were, if any one should see that thereafter he would be living as
a reproach of God Himself. For because they assign the right over
our lives not to ourselves, but to God, as Josephus rightly teaches
his countrymen, they think that the presumption of the will of God
alone justifies the determination to hasten death.

To this justification they refer the case of Samson, who saw that
the true religion was an object of derision in his own person; also
that of Saul, who fell on his sword that he might not be made sport
of by the enemies of God and of himself. For they make out that
Saul returned to his senses after the shade of Samuel had predicted
his death ; and after he knew that his death was at hand if he should
fight he did not decline battle for his native land and the law of

1 Also not a few of the philosophers besides the Stoics. Seneca, Letters, xx [Ixx. 14], Says:
You will find also men who profess to be wise. who declare that violence ought not to be offered
to one’s own life, and judge it an impious crime to commit suicide, that the end, which nature decreed,
should be awaited.’

Procopius, Gothic War, IV [IV. xii], says: ‘To depart from life by violence is a useless, foolish,
impulsive act ; and the boldness, which leads one to death, since it lacks prudence, is judged by the
wise undeservedly to have assumed the name of bravery. Then, too, this ought to be considered,
that you should not be ungrateful toward God.’

* The same view was held by the Arabs no less than by the Indians and Persians, as you can
learn from Job, ii. 21.

2 On this question the opinions of the Jews vaned, as you may learn from Josephus [Jewish
War, I. xiii. ro}, where he treats of the death of Phasael, and from the passage dealing with Herod’s
deliberation [Antiquities of the Jews, XVII. vi.5]. According to Philo [On the Embassy to Gatus, xxxii],
the Jews said to Petronius: ‘We shall shed our blood together, voluntarily taking our lives. Then
your commands may be laid upon the dead. Not even God would blame us, mtent upon two purposes,
to reverence the Emperor and to keep our sacred laws. So at length it will be permitted to accomphsh
this, if we depart hence, despising life as of least account.’

(Plutarch,
Brutus,
xl= p.
1002 E.]

Strabo,
xV
fz. 68]

V [x11.
Iz].

(x111= 108
CD.]

(Jewish
War, III
viii. 5 j

r Samuel,
XXX. 4.

2 Macca-
bees, Xv.
37:

Caty of
God,

I xxvl;
Letters,
Ix1, (cc1v],
To
Duleiivus ;
and
Agamst
Gaudentuus,
IE, xxii
[I. xx].
Diodorus,
XVI
[xxv. 2].
[=318 ]
[== 8344. ]

On the Law of War and Peace [Book II

460

God, thence meriting eternal glory, according to the witness of
David; those who had buried Saul with honour received from David
the acknowledgement of a deed rightly done. A third case is that of
Razis, a senator of Jerusalem, in the history of the Maccabees.

Furthermore, in the history of Christianity we find similar
examples of those who committed suicide in order that, when put
to torture, they might not forswear the religion of Christ ;* also of
virgins, who threw themselves into a river that they might not lose
their chastity ; * the virgins the Church enrolled in the list of martyrs.
But nevertheless it is worth while to see what Augustine * thinks of
such cases.

5. I see that a second exception to the law of burial was in
force among the Greeks; [310] and this the Locrians maintained
against the Phocaeans, ‘ that it was a custom common to all Greeks
that those who were guilty of sacrilege should be left unburied’. So
also Dio of Prusa says in his Rhodian Oration, that ‘ the sacrilegious
and impious’ are deprived of burial. Plutarch in his Antiphon says
that the same rule was established at Athens against traitors.*

But to return to my subject, with great unanimity the ancients
agreed that war is lawfully undertaken on account of the denial of
burial. ‘This is apparent from the story of Theseus, which Euripides

1 See Eusebius [Ecclesiastical History, VIII. xii].

* Cicero in his speech On the Consular Provinces [iii. 6] relates that ‘ the noblest maidens threw
themselves into wells and avoided unspeakable disgrace by a voluntary death’. Such is the story
that Jerome, Against Jovinianus [I. xli= p. 48], tells of the Milesian maidens, and there is an ancient
epigram of the Anthology, Book III [VII. 492], with the title On Youths, which begins with the words
‘We leave thee, O Milesian.’

Also the Jews relate that a woman on board ship, who was being importuned to commit adultery,
asked her husband whether bodies submerged in the sea would rise again ; and when he had affirmed
that they would she threw herself into the sea.

[313] Moreover, of Christian women we have many examples, as the women of Antioch under
Diocletian, Sophronia under Maxentius, found in the Martyrologies [Eusebius, Ecclestastical History,
VIII. xii and xiv]; in Zonaras [XIJ. xxxiu], and in Sextus Aurelius [Pomponius Laetus, published
with Eutropius, Victor, and others in the Lyons edition of 1592]. Procopius, Persian Wars, II [II.
viii], adds other women of Antioch under Chosroes.

Ambrose [On Virgins, ITI. vu] praises the maidens who had guarded their chastity by death.
Jerome in the Commeniary on Jonah, end of the first chapter [1. 12], says: ‘ And for this reason also
in persecutions it is not permitted to perish by my own hand, excepting only when chastity is en-

angered.’

3 To these we may add Chrysostom, On Galatians, i. 4, and the Third Council of Orleans: ‘We
think that oblations on behalf of the dead, who have perished in some crime, ought to be accepted,
unless they are proved to have commutted suicide.’ And nevertheless Augustine himself in the first
book of his Czy of God, chap. xvi [I. xvii], says: ‘What human heart would be unwillmg to pardon
these women, who killed themselves for this reason, that they might not suffer any indignity of that

ind ?

Moreover, the Capziulary of the Franks, Book VI, lxx, has this: ‘It has been resolved conceming
the one who has killed himself or hung himself, that if any one out of pity wishes to give alms he
may do so and may say prayers in the chanting of the Psalms. But the suicides themselves should
be deprived of oblations and masses, because the judgements of God are inscrutable, and the depth
of His wisdom no man can find out.’

See also the same reference, VII. ccccxliti.

* But Nicetas in the third book of the life of Alexts, brother of Isaac [IIT. vi], after relating the
death of John Comnenus Crassus, who had sought the sovereign power through sedition, makes
this statement: ‘ After the body was carned out, it was exposed as a prey for dogs and birds. But
this seemed to all people foreign to human feeling, and almost brutish.’

Chap. XIX] On the Right of Sepulchre 461

treats in the tragedy of the Suppliants already mentioned, and Isocrates
in the passage which we cited.

V1.—W hat other rights impose obligation by virtue of the law of nations

There are also some other rights, which impose obligation by
virtue of the volitional law of nations. Such are the right to things
possessed for a long time, the right of succession to one who dies
intestate, and the rights which are created by a contract, no matter
how unfair. For although all these rights are in some degree derived
from the law of nature, yet from human law they acquire a kind of
support, elther against the uncertainties of conjecture, or against
certain exceptions which otherwise natural reason seems to suggest ;
and this was shown by us above in treating the law of nature.

{II. i. 2]

[v=p 601
B.]

(Euthy-
phro, ix.]

(Stobaeus,
ix. 55.]
[=p. 124
Needh.]
On the
Anger of
God, xvu

[6].

CHAPTER XX
ON PUNISHMENTS

I.—Definttion and origin of punishment

[314] 1. Above, when we began to speak of the reasons for which
wars are undertaken, we said that acts must be considered in two
categories, according as they can be repaired or punished. The
former class we have already discussed. ‘There remains the latter,
which concerns punishments. ‘This we must consider all the more
carefully because the lack of a clear understanding as to the origin
and nature of punishment has given rise to many mistaken opinions.

Now punishment in general means an evil of suffering which
is inflicted because of an evil of action. For although it is customary
to assign certain tasks to persons as a punishment, yet these tasks are
regarded from the point of view of their burdensomeness, and so are
to be classed with sufferings. However, the inconveniences, such as
exclusion from public meetings or offices, which are anywhere
suffered on account of a contagious disease, or a bodily deformity,
or other manifestations of uncleanness (many of these are mentioned
in the Hebraic law), are not, strictly speaking, punishments, although
they are called by this name on account of a certain resemblance and
through a misuse of the term.

2. Moreover, among those things which nature itself declares
are permissible and not sinful is this, that he who does evil shall
suffer evil; this the philosophers call the most ancient law, and law
of Rhadamanthus, as we have said elsewhere.

A sentence of Plutarch in his book On Exile contains the same
idea: ‘Justice walks with God, as an avenger upon those who sin
against divine law: to whom all men naturally have recourse against
all men in so far as they are citizens.’ Plato? said: ‘No god or man
will dare to say this, that he who does wrong is not obliged to pay the
penalty.’ Hierax, furthermore, from this most noble viewpoint
defined justice as ‘ the exacting of punishment from those who have
first done wrong’, and Hierocles [315] as ‘a curative for wicked-
ness*. There is a saying of Lactantius:? ‘ Those are deceived by

1 So the interpreter of Irenaeus, Book III, chap. xiv [III. xxv], uses his words. ‘ And God indeed,
according to an old saying, having the beginning and the middle of all things which are, acts rightly,
proceeding according to nature. Moreover Justice always attends Him as an avenger against those
who sin against divine law.’

4 With this accords the well-known saying of Belisarius in Procopius, Vandalic War, I [I. xii]:
' The first proof of justice would be the exaction of a penalty from those who have slain unjustly.’
See also Agathias, V [V. iii], on Anatolius.

462

Chap. XX] On Punishments 463

no small error who defame censure, either human or divine, by calling
it bitterness and maliciousness, thinking that he must be called a
worker of injury who afflicts with punishment them that do injury.’

3. What we have said of punishment properly so called is
summed up in this, that it is a return for a crime. This was noted
also by Augustine, who said: ‘Every punishment, if it is just, is
a punishment for a sin.’ This applies even to punishments which
are inflicted by God, although sometimes in these, owing to human
ignorance, as the same writer says, ‘ The fault is concealed, while the
punishment is apparent.’

Il.—Lhat punishment ts related to expletive justice, and in what way

1. But opinions differ as to whether punishment falls within
the sphere of attributive or of expletive justice. For, on the ground
that he who has committed the greater sin is punished more heavily,
and he who has committed the lesser is punished more lightly, and
that the penalty is given as it were by the whole to a part, punishments
are assigned by some to the sphere of attributive justice.

However, this first principle which they lay down, that attributive
justice comes into play whenever an equality is established between
more than two terms, we have shown to be untrue at the beginning
of this work; then, as regards the fact that those who have
done greater injury are punished more severely, and those who have
done less injury are punished more lightly, that happens only as
a consequence, not because it is aimed at first and for its own sake.
For first and for its own sake a balance is aimed at between the
guilt and the penalty ;* on this point Horace says :

Why does not Reason her own weights and measures use,
And each crime check by fitting penalties ?
And elsewhere,

We need a rule to fit just punishment to sins,
Nor ply him with the scourge who but the whip has earned.

1 Seneca, On Anger, II. vi: ‘A man is unjust who is equally angry in like measure with persons
who are not equally guilty.’ Tacitus, Annals, Book III [TII. 1]: ‘ But even if cnmes and wrongs
have no limit in their checks and punishments, yet the moderation of the prince [348] and the
examples of your ancestors and of you yourselves distinguish foolish things from crimimal, and words
from criminal acts. Here is an opportunity to use judgement, so that this man’s crime will not go
unpunished and we shall not regret either our leniency or our severity.’

Ammianus, Book XXVIII [X XVIII. i. 24]: ‘ Ready to pray that the punishments might not be
greater than the crimes.’ The Scholiast on Horace [Satires, I. ili. init.]: ‘ If the heaviest penalties are
used for the slightest sins, the result is that the greatest sins will go unpunished or new punishments
must be sought out.’

Law of the Vistgoths, XII. iii. 1: ‘ For although some laws recognize differences in guilt, yet
they do not distinguish penalties in the same way, but confusedly the crimes of transgressors are
entrusted to the penal judgement of a single law. Neither is the measure of punishment adapted to the
measure of guilt, although the greater and the lesser transgression ought not to be condemned to the
penalty of a single chastisement. Especially since the Lord ordains in His law that the number of
the stripes shall be in proportion to the measure of the crime.’ See below, II. xx. 28 and 32, and
IT]. xi. x [III xt. 1. 2].

1569-27 Tl

[Retrac-
tions,
I, 1x. 5.J

(I. i. 8.]

Satires,
IT iti
[77-9].

[Satires,
IT. iui.
II7—19 ]

§ [Deut.,
XXV. 2-3].
[ev.]

IL. in. 8]

464 On the Law of War and Peace [Book II

The tenor of a divine law in Deuteronomy, xxv, and of a novel
of Leo, is the same.

2. Neither is the second principle which they lay down more
true, that all punishments come from the whole to the part ; this will
appear from what we have to say. We have, in fact, shown above
that the true nature of attributive justice properly consists neither
in such a balance nor in the transference from the whole to
a part, but in taking account of the aptitude, which does not
contain in itself right strictly so called, but furnishes an opportunity
for it. Although, to be sure, he who is punished ought to be fit or
worthy to be punished, this does not mean that something should
befall him which attributive justice demands.

Nor yet do those give a better explanation who claim that
expletive justice, which they commonly call commutative, is exercised
in punishments. For in so doing they consider this a business transac-
tion, as if something were paid to the wrongdoer, in accordance with
the usage of contracts. They are deceived by current speech,
whereby we say that punishment is due to him who sins. This is
plainly ‘ misleading’. For he to whom something is properly owed has
a right against another. But when we say that punishment is due
to some person we mean nothing more than that it is proper for
him to be punished.

3. Nevertheless, it is true that expletive justice 1s exercised in
penalties primarily and for its own sake, because he who punishes,
that he may punish rightly, must have the right to punish ; and: this
right arises from the crime of the guilty. In this matter, therefore,
there is something that approaches the nature of contracts. For
just as he who sells, even if he says nothing specifically, is considered
to have obligated himself to all the things [316] which are naturally
involved in a sale, so he who does wrong seems by his own will to have

1 Servius mentions this often, On the Aeneid, TV [IV. 696]: ‘ For those who exceed the measure
of crime justify punishment upon themselves’ ; and in the same book [699]: ‘To condemn is to free
from debt, whence the phrase you also will condemn by vows.’ On the Aeneid, X [X. 32], ‘They wash
away their sins’: ‘‘“‘ They wash”? means “‘ they pay off’’. We have also said “‘ I wash away punish-
ment’’, but here it is better to use ‘‘ crime’’, for crime is absolved by punishment. For punishment
frees from former obligation him who is in bondage to crime. On the contrary, one cannot say “‘ I wash
away punishment ’’, as though the punishment were paid off. Nevertheless authority confuses these
things wilfully, m the way in which a subsequent is often confused with a precedent and vice
versa.’

The words of the Holy Scripture frequently indicate the same. For, as Tertullian says, De Oratione
[vii] : ‘ Debt in the Scriptures 1s a figure for crime, since that is owed to judgement and is exacted by it.’
Chrysostom, in his address On the Earthquake, which is in vol. v [On Lazarus, VI. ix], dealing with that
rich man who is contrasted with Lazarus, and explaining the word dréAaBe, which is in that place in
the Gospel [Luke, xvi. 25], says: ‘ Punishments were owed to him ...and pains were owed to him.’
Also in his On Penstence, IT [VII. iii]: ‘ Crmes are considered as debts.’

Augustine, De Libero Arbitrio, III [TII. xv. 44]: ‘And so, if one does not pay by doing justice, he
shall pay by suffermg pain, because in either thing that word “due”’ enters. This may be expressed
also in the following manner: if he does not pay by doing what he ought, he will pay by suffering what
he ought.’ Lo4

Chap. XX] On Punishments 465

obligated himself to a penalty, because a serious crime cannot be
unpunishable ; hence, whoever directly wills to sin, by consequence
has willed also to deserve a penalty. In this sense the Emperors say
to a person, ‘ You yourself have subjected yourself to this punish-
ment,’ and those who take evil counsel are already punished at that
time, that is they are said of their own will to have contracted for the
recompense of punishment. In Tacitus a woman who had married
a slave is said to have agreed to subject herself to slavery, because
that penalty had been ordained for such persons.

4. Michael of Ephesus, On Aristotle’s Nicomachean Ethics,
Book V, says: ‘There is here a kind of giving and receiving,
which constitutes the essence of contracts; for whoever has taken
property or stolen anything else pays the penalty for it.’ Later,
again, ‘The ancients termed contracts not merely what men have
willingly agreed to perform toward one another but also the things
that are forbidden by the laws.’

Ill.—That nature does not determine to whom punishment 1s due, but
that according to the law of nature those free from like offences may
exact punishment

1. But the subject of this right, that is the agent to whom the
right is given, has not been definitely fixed by nature itself. For
reason declares that the criminal may be punished. It does not,
however, declare who ought to inflict the punishment, excepting
so far as this, that nature makes it clear enough that it is most suitable
that punishment be inflicted by one who is superior; yet not to the
degree that this is shown to be altogether necessary, unless the word
superior is understood to imply that he who has done wrong by that
very act may be considered to have made himself inferior to some one
else and as it were to have demoted himself from the class of men into
the class of beasts? which are subject to man.

This view has been advanced by certain theologians. Says
Democritus: ‘It is in harmony with nature that the better should
rule.? Aristotle, too, says that baser things have been prepared for
the use of the better, alike in the case of things that have their origin
in nature and those that are of artificial origin.

2. Wherefore it follows that in any case a guilty person ought
not to be punished by one equally guilty. ‘his is the meaning of
Christ’s saying (Fohn, viii. 7): ‘ Whoever of you is without sin —
that is, clearly, sin of the same sort—‘let him cast the first stone.’

1 Philo, at the end of the first book, On the Life of Moses [lix]: ‘ Hastening to commit sin, you

hasten to pay the penalty.’ .
2 So also Moses Maimonides, On Deuteronomy, xxxil.

I1i2

Digest,
ALIX.
XIV. 34.
Code, IX.
vill 6

Annals,
IT fi]

[On Nee.
Eth., V.
11 J

Thomas,
II. ii. 64.
1, and
Cajetan
thereon.
[Stobaeus,
xlvii. 19.]
Polittes,
VII. xiv.

[On Chance
Remedies,
vi Ij

[On Anger,
If. xxvuu.
8.]

(XI. 1i J

Laws, 1X
fix 854d]
and XT
[xii=934
4]

On Clem-
ency, I, xv1
(On Anger,
I. xix].

[II xxx1.]

(III xliv ]

466 On the Law of War and Peace [Book II

He said this for the reason that at that time the morals of the Jews
were most corrupt, so corrupt that those who wished to appear most
holy were involved in adulteries and like wickednesses, as one may see
from Romans, il. 22.

In consequence the Apostle also said what Christ had said before :
‘Wherefore thou art without excuse, O man, whosoever thou art
that judgest; for wherein thou judgest another, thou condemnest
thyself ; for thou that judgest dost practise the same things.’ Here
a familiar saying of Seneca is in point: ‘A judgement can have no
authority where he who condemns is himself worthy of condemna-
tion.” Also his remark in another passage: ‘Consideration for
ourselves will make us more moderate if we ask ourselves whether
we ourselves have not committed any such crime.’? Ambrose
in his Defence of David says: ‘ Let each one who 1s to judge of another
first judge of himself, and let him not condemn lesser shortcomings
in another when he himself has committed more grievous sins.’

IV. That punishment having in view some advantage must among

men be inflicted differently than by God ; and why

1. Another question is concerned with the purpose aimed at in
punishments. What we have said thus far does at least show this,
that injustice is not done to the guilty if they are punished. Never-
theless, it does not follow that they are in every case to be punished.
This in fact is not true; for God and men pardon many things in
many guilty persons, and for this cause they are wont to be praised.

The saying of Plato is famous: ‘ For no punishment is designed
for evil’; in another passage, ‘It is not because a wrong has been
done that punishment is exacted (for what has been can never be
undone), but to prevent recurrence.’ Thisis [317] translated by
Seneca thus: ‘No wise man punishes because a sin has been com-
mitted, but that sin may not be committed. For what has passed
cannot be recalled, but what is to come may be prevented.’ In
another passage he says: ‘ We are not to do harm to a man because
he has sinned, but that he may not sin. Punishment will never have
reference to the past, but to the future; for it is not inflicted in
anger, but is a measure of precaution.” In Thucydides, Diodotus
in addressing the Athenians with regard to the Mitylenaeans said :
‘ Even if I should show that they have acted with the greatest injustice
I shall not vote that they are to be killed, unless that is expedient.’

2. Now these things are true in the case of men who inflict

1 Here applies also Ambrose on the Psalm, Blessed are the undefiled, and the verse, Let thy mercies,
O Lord (Psalms, cxviii, verse 156], in the discourse [On Psalm CXVIII, sermo xx, nos. 31, 36, 37, 39]
cited in the Decretum, IT. ini. 7 [IT. iii. 7. 4]; also Cassiodorus, [Variae,] VI. xxi.

Chap. XX] On Punishments 467
punishment, for one man is so bound to another by ties of common
blood that he ought not to do harm to another save for the sake of
attaining some good. With God the case is otherwise, although
Plato wrongly extends to Him the principles that have been stated.
For the actions of God can be based upon the right of the Supreme
Power, particularly where a man’s special desert is concerned, even
if they have in view no end outside themselves. In this sense, in fact,
some of the Jews explain the saying of Solomon which has reference
to this matter, so that it will mean ‘ God creates each thing singly,
for its own sake, even the wicked man for the day of evil.’ That is,
even then when He punishes a wicked man, He does so with no other
purpose than of punishing him.

Nevertheless, even if we follow the more generally accepted
interpretation it comes to the same thing, so that God is said to have
made all things for His own sake, that is by right of the highest freedom,
not seeking or regarding any perfection outside Himself; just as God
is said to be ‘ self-existent’ because He is not born of any one. Assur-
edly, Holy Writ bears witness that the punishments of those that are
irretrievably lost are not exacted by God for any other purpose, when
it says that He derives pleasure from their woe, and that the impious
are derided and mocked by God. Then in truth both the Last
Judgement, after which no mending of ways is looked for, and indeed
certain inconspicuous punishments in this life, such as hardening of
heart, demonstrate that what we maintain against Plato is true.

3. But when man punishes a man who is his equal by nature
he ought to have a definite purpose in view. And this is what the
schoolmen say, that the mind of the avenger ought not to rest content
with the woe of aman. Even before their time, Plato in the Gorgtas
said that those who punish any one with death or exile or a fine
ought not ‘ to desire this simply ’, but to desire it ‘for some good’.
Seneca,” too, said that we must come to vengeance ‘not as though
it were sweet to take vengeance, but as though it were useful’.
Aristotle, also, in his Polztzcs, VII. xii, says that certain things are
honourable ger se, certain others by virtue of some necessity ; and as
an example of the latter he mentions the inflicting of punishment.

V.—In what sense vengeance may be forbidden by nature

1. As for the saying of comedy: ‘An enemy’s pain soothes the
injured one’s woe’; and Cicero’s dictum that pain is assuaged by

2 Cassiodorus [Peter of Blois], On Friendship: ‘ But if by some chance the one hand injures the
other, that which is injured does not strike back nor raise itself to take vengeance.’
2 Also, On Anger, IL. xii [I. xii]: ‘I shall take vengeance because it is necessary, not because it

causes pain.’

Gorgias
[Ixxxi}.

Moses
Maimo-
nides,
Guide of
the Per-
plered, II].
xi, and
Rab. Im-
manuel,
On Pro-
vers, RVI,
4

Deuterono-
my, XEviul.
63; Isazah,
l. 243
Proverbs,
i. 26.

Thomas,
IT. ix. 308,
Sylvester,
word vin-
dicta,
[Plato,
Gorgias,
xxii.)

On Anger,
II. xxxii
[II .xxxiis.]

{Publ.
Syr., Seni.,
294.]

[For
Caecina,
xii. 35.]

[Aralus,
xlv =
1048 E.]

[On Nic.
Eth ,VI 1.}

On Anger,
IJ. xxx1.

[Disserta-

tions, XV1l1.

9-]

(In

Stobaeus,
xix, 16.]

[Dion,

xlvii==

Pp. 979 A.]

[Satives,
xin.
180 ff.]

468 On the Law of War and Peace [Book II

punishment, and Plutarch’s quotation from Simonides: ‘A sweet
thing and far from grievous is it to apply as a remedy to a spirit
distressed and enflamed the means of obtaining satisfaction ’—these
befit that natural instinct which man has in common with animals."
For anger in men as in animals is ‘ a warmth of the blood at the heart
from the desire to avenge pain’,? as Eustratius rightly defines it.
But this mere desire is so lacking in reason that it often acts against
things that have done no injury, as the young of a dangerous animal,
or against inanimate objects,* as the stone with which a dog 1s struck.

But a desire of this sort, taken by itself, is incompatible with the
faculty of reason, whose function is to govern the desires.* It is,
furthermore, incompatible with the law of nature, [318] because
that is the dictate of nature in so far as it is governed by reason and
takes account of society; and reason forbids a man to do anything
whereby another may be harmed, unless this action has some good
end in view. In the bare spectacle of the suffering even of an enemy,
there is only a false and imaginary good, as in superfluous riches and
many other things of the same sort.

2. Accordingly, in this sense, vengeance among men is censured
not only by Christian men of learning, but also by philosophers,”
like Seneca, when he said: ‘ Vengeance is an inhuman term, although
accepted as just, and only differs from insult in degree. He who
avenges his grief, sins, although with more excuse.’ In truth, if we
are to believe Maximus of Tyre, ‘He who takes vengeance is more
wicked than he who did the wrong.’ Musonius says: ‘ To meditate
how one may bite the one who bit him and harm the one who has done
harm is the mark of a beast and not of a man.’ In Plutarch Dion,
who applied the Platonic philosophy to public acts, says: ‘In the
judgement of law the revenge is considered more just than the wrong
committed ; but by nature it arises from the same spiritual defect.’

3. Therefore, it conflicts with nature for a man who acts
against another to be sated with the other’s pain, merely as pain.
And so the less each man employs his reason, the more apt he is to
seek vengeance. Witness Juvenal :

But vengeance is a good, sweeter than life itself.
So forsooth think unlearned men,® whose passions you do see

1 Hence the saying of Homer [Jizad, IV. 23]: ‘ And fierce anger had seized him [her]’; [349]
also [IX. 629]: ‘ He has stirred his proud spirit to fury in his breast’ ; and [IX. 496]: ‘But Achilles,
tame thy proud spirit.’

2 Hence in Homer: ‘To quench one’s wrath’ [J/tad, IX. 678].

3 Seneca, On Anger, II. xxvi: ‘ How absurd it is to be angry with these things which have neither
deserved our wrath nor are conscious of it.’ The savages of Brazil take vengeance upon iron as upon
a man.

4 See what Seneca has to say on this point, On Anger, I. v.

5 Plato, Gorgias. See also Theodoret, Curaiio, Book XX.

® Seneca, On Anger, I. xii: ‘ And those most prone to anger are infants, old men, and sick persons ;
while everything that is weak 1s by nature peevish.’

Chap. XX] On Pumshments 469

Enflamed, for slight, or even for no cause;

However trivial the occasion is, enough to stir their wrath.
Not thus would speak Chrysippus, nor the gentle heart

Of Thales, nor the sage of sweet Hymettus,

Who, in bondage cruel, wished not to share with his accuser
The hemlock he must drink. The happy man

All faults and errors step by step puts off,

Him wisdom first the right way teaches. A mind

Small, weak and mean, will ever pleasure take

In vengeance. Mark this at once, that in revenge

A woman does rejoice above all others.?

With this Lactantius agrees in saying: ‘Ignorant men and
fools, whenever they receive an injury, are seized with blind and
unreasoning madness, and attempt to pay back those who harm
them.’

4. From this it is clear that man cannot rightly be punished
by man merely for the sake of punishing. Let us, therefore, try to
see what useful ends render punishment just.

VI.—The threefold advantage of punishment

1. Here, furthermore, applies the classification of punishments
which is found in Plato’s Gorgzas and in Taurus the philosopher, who
is quoted by Gellius, V. xiv. For these classifications are made in
accordance with the end in view. However, while Plato recognized
two ends, namely correction and example, Taurus adds a third,
‘ vengeance ’,? which Clement of Alexandria defines as ‘ a retribution
for evil which contributes to the advantage of him who exacts it’.
Aristotle, who omits punishment for the sake of an example, accepts
only this third form, and that applied for correction, and says that this
is employed ‘ for the satisfaction of him who exacts it’.

This was sanctioned also by Plutarch when he said: [319]
‘The punishments which immediately follow the crime not only
restrain boldness in sinning for the future but also give the greatest
comfort to those affected by the wrong.’ ‘This is properly the sort
of punishment that Aristotle also attributes to the ‘ justice’ which he
himself calls ‘ commutative ’.

1 Terence, Heeyra [III. i. 30 ff.] :
Children are with each other wroth, for causes slight.
And why ? For weak within them is the mind that governs.
And women, too, like them are weak of judgement.

Ammianus Marcellinus, XX VII [XXVII. vii. 4], speaks of anger thus: ‘ Wise men define it as
a lingering and sometimes perpetual ulcer of the spirit, accustomed to arise from mental weakness,
and they support this view with the plausible argument that sick persons are readier to anger than
well persons, women than men, old men than youths, and the unfortunate than the fortunate.’

2 These three: Correction, Vengeance, Example, are recognized also by Chrysostom, On First
Corinthians, xi. 32 [Homily XXVIII, 1].

VI [xviii.
22].

[Gorgias,
Ixxx.]

[Paedago-
gus, I. viii.
70.]
Rhetoric,

I. x.

[On the De-
layed Ven-
geance of
the Deity,
i1= 548 £.]

[Nec. Eth.,
V. vii]

[Digest,
XLVIII
x1x, 20 |
[Plato, On
Laws, XI.
I2 ]
(Plutarch,
On the De-
layed Ven-
geance of
the Derty,
lv, XV1=
550 A,

559 F.]

[On Plato,
IT. xvit ]

Annals,
HII [liv].

Thomas,
II. ii,
qu 33,
art. 3.

Plautus,
Trinum-
mus [23

ff).

On the Law of War and Peace [Book II

470

2. We must, however, examine this question in greater detail.
We shall say then that in the case of punishment we must consider
the advantage either of the person who does wrong, or of the person
against whose interest the wrong was committed, or of other persons
in general.

To the first of these three ends belongs the punishment which
by the philosophers is called now ‘ admonition’, now ‘ correction ’,
and now ‘ exhortation’; by Paul the jurist, punishment applied for
correction ; by Plato, ‘ for wisdom’ ; and by Plutarch, ‘ surgery of the
soul ’, which has the object of making better the man who has sinned,
like medical treatment which operates by remedies the opposite of
the disease. Since every action, especially one that is deliberate and
repeated, produces a certain inclination towards itself, which, when
developed, is called habit, for this reason the enticement must be
removed as soon as possible from vices. This cannot be accomplished
more successfully than by causing them to lose the flavour of sweetness
by some subsequent pain.1 The Platonic philosophers, quoted by
Apuleius, teach that ‘It is a more serious and unpleasant matter
than any punishment if impunity is extended to the guilty and he
is not in the meantime harassed by the censure of his fellow men.’
In ‘Tacitus we find the saying: ‘ A mind that is diseased and feverish,
being at the same time corrupt and an agent of corruption, must be
held in check by remedies as severe as the vices from which it
suffers.’

VII.—Proof that punishment for the good of the wrong-doer may be
exacted by any one at all according to the law of nature

1. ‘The punishment which serves this end is by nature permitted
to any one of sound judgement who is not subject to vices of the same
kind or of equal seriousness, as is apparent from reproof that is
administered verbally.

To chide a friend for guilt deserving blame
Is a thankless task, but at times useful.

However, in the case of corporal chastisement and other punish-
ments that contain an element of compulsion, the distinction between
those who may or who may not apply them ? is not made by nature
(for this could not be the case, except in so far as reason entrusts to

1 Seneca, On Anger, I. v [I. vi]: * Just as we heat some twisted spear-points to straighten them,
and laying them on the anvil hammer them, not to break them, but to perfect them, so we correct
serious depravities by bodily and mental pain ;’ and On Anger, II. xxvii: ‘ Among these will be
good magistrates, parents, and judges, whose chastisements are received hke a surgeon’s knife,
abstinence, and other things that cause pain for our good.’

2 See Augustine, Enchiridion, Ixxii.

Chap. XX] On Pumshmenis 471

parents in a special sense the exercise of this right over their children
on account of the tie of relationship) but by the laws which have
limited that common connexion of the human race to the nearest
relationships for the sake of obviating quarrels. This one may see
from the section of Justinian’s Code on the right of correction of
relatives, and elsewhere.

Here also applies the saying of Xenophon to his soldiers: ‘ If
I have beaten any one for his own good, I admit that I owe him
a penalty such as parents owe to their children and teachers to their
pupils. Physicians in fact even burn and cut a sick man for his own
good.’ Lactantius, in Book VI, says: ‘God commands us to hold
our hands continually over minors, that is, in order that we may correct
them when they err by diligent chastisements and not train them for
evil and rear them for vices through useless love and excessive
indulgence.’

z. This form of punishment, nevertheless, cannot be made to
include the death penalty, unless by the process of reduction whereby
negatives are reduced to their opposing positives. For, as Christ
said that it would have been better, that is not so bad, for certain
ones, if they had never been born, so it is better, that is it is a lesser
evil, for men of incurable natures to die than to live, when it is
certain that by living they will grow worse. It is about such persons
that Seneca speaks when he says that sometimes it is to their own
advantage that men should die. [320] Further, Jamblichus
declares: ‘ Just as in the case of gangrene it is better for a man to be
cauterized than to have no treatment, so it is better for a wicked man
to die than to live.’

Such a person Plutarch calls: ‘of a truth harmful to others,
but most of all to himself’. And when Galen said that men are
punished with death, first that they may not live to do harm, and
secondly that others may be deterred by fear of the punishment, he
adds: ‘ And thirdly it is to their own advantage to die, since they
are so diseased in mind that they cannot be brought back to health.’

There are some who think that these are the very ones of
whom the Apostle John says that they sin unto death." But because
the proofs of this are deceptive, charity bids us hold no man for lost
without clear proof. Punishment for this purpose may in consequence
only be applied upon rare occasions.

1 Chrysostom calls them ‘persons held by an incurable disease’, On Second Cortnihians, xill. 9
[xiii. 7=Homily XXIX, iv]. Julian in the second book On Constantrus [Orations, 11 = 89 B] Says:
‘Since there are two sorts of sin, the one sort showing hope of improvement and not utterly refusing
to be cured, and the other sort committed by incurable sinners, for the latter the laws have devised
death as a means of escaping evils, not so much for their advantage, as for the advantage of others.’

{IX xv.}

[Anabasis,
V. vin 187

{xix 8]

Mark, xiv.
21.

On Anger,

[I] vi.
[Protrepti-
con, 1i.]

[On the De-
layed Ven-
geance of
the Detty,
VI=55IE ]

I John, v.
16.

(VII.

xiv. 9.]

(Annals,
XIV. Ixi.]

On Inven-
tion, II
[xxi 65]

XXXVIII
[iv, 2].

[xlv =
1048D.]

On the Law of War and Peace [Book II

472

VIII.—Likewise for the good of him who has been wronged, where it
concerns vengeance permitted by universal common law

1. The advantage of him to whose disadvantage the wrong
was committed? consists in this, that subsequently he may not
suffer any such thing from the same man or from others. Gellius
quotes from Taurus the following description of this type of good :
‘When the dignity or authority of him who has been wronged must
be protected so that the neglect to inflict punishment may not make
him despised and disgraced.? What is said there with regard to
injured authority must be understood to apply to the liberty of
a person, or any other of his rights that has been transgressed. In
Tacitus we read: ‘ Let him take counsel for his safety by a just
revenge.’

To secure a man who has been wronged from suffering harm at
the hands of the same person is possible in three ways: first, by the
removal of the wrong-doer; second, by depriving him of the power
to do harm; finally, by teaching him to cease from his evil ways,
which is closely allied with the reformation that we have already
discussed. He who has been wronged may be secured from harm by
others, not by an ordinary punishment, but by one that is public and
conspicuous in the nature of an example.

2. Accordingly, vengeance, even if it is exacted by private
individuals, is not unlawful according to the bare law of nature, that
is apart from divine and human laws and from chance circumstances,
provided that it is employed for these objects and within the bounds
of right. It is all the same whether vengeance is exacted by one who
was injured himself or by another, since it is in harmony with nature
that man should be helped by man.

In this sense we may agree with Cicero, who, while saying that
the law of nature is not what opinion but what innate force supplies
to us, among his examples thereof places vengeance, which he con-
trasts with pardon. And that no one might be in doubt as to how
much he wished to include under this term he defines vengeance as
‘that through which by defending ourselves and taking vengeance
we deliver ourselves and those who should be dear to us from violence
and insult, and through which we punish crimes’. Mithradates,
in a speech which Justin has excerpted from Trogus, says: ‘ Even if
men are unwilling to take the sword against a robber to save them-
selves, yet for vengeance sake they all wish to gird it on.’ This very
thing Plutarch, in his life of Aratus, calls the ‘law of self-defence’. -

_ > Even among animals there is some trace of this, ‘A lion gets up to punish an adulteress’ ;
Pliny, Natural History, VIII. xvi.

Chap. XX] On Punishments 473

3. Samson, defending himself by this law of nature against
the Philistines, claims that he will be guiltless if he in turn brings harm
to the Philistines who had first wronged him ; and after having taken
his revenge he justifies himself by the same argument, saying that
he had done to them what they had first done to him. The Plataeans,
in Thucydides, say: ‘ We have justly taken vengeance on them accord-
ing to the law recognized by all, that it is permissible to ward off him
who comes as a foe.’ Demosthenes, in his speech Against Aristocrates,
says that it is a law common among men that we have the right to
take vengeance on him who violently despoils us. And Jugurtha,
[321] according to Sallust, when he said that Adherbal had plotted
against his life, added that the Roman people ‘ would act neither
well nor justifiably if they should exclude him from this right allowed
by universal common law’, that is, from taking vengeance.

Aristides, the orator, declares that poets, legislators, proverbs,
and orators, in short all approve this, ‘that vengeance should be
taken upon those who have first assailed us’. Ambrose praises the
Maccabees ® because even on the Sabbath they avenged the death of
their innocent brethren.® Also, arguing against the Jews who com-
plained bitterly that a synagogue had been burned by the Christians,
he speaks thus: ‘And assuredly, if I should act according to the
universal common law, I should state how many churches the Jews
burned in the time of the reign of Julian.’ Here he calls it the
universal common law to repay like with like.* And from the same
point of view Civilis, in Tacitus, says: ‘As a noble reward for my
labour I received the death of my brother, my own bonds, and the
most cruel demands of this army, calling for my execution; from
whom I demand punishment by the universal common law.’

4. But since in our private affairs and those of our kinsmen we
are liable to partiality, as soon as numerous families were united at
a common point judges were appointed, and to them alone was given
the power to avenge the injured, while others are deprived of the
freedom of action wherewith nature endowed them. Says Lucretius:

For that each one in wrath prepared his own revenge,
More bitter than our equal laws allow,
The present age of men full weary is of force.

[350] * ‘ Murder has been atoned for by murder,’ said Romulus on the slaughter of Tatius by the
Laurentines, in Plutarch (Romulus, xxiii=32]. See also Plutarch on the ill-treatment of the Mantineans
by the Achaians [Aratus, xlv=1048 D]: ‘ And these very actions contained in themselves the justifica-
tion of vengeance.’

Belisarius in Procopius, Vandalic War, I [1. xvi. 5]: ‘For the hostility of an injured nian against
him who has attacked him is a natural thing.’

2 See also the same writer in his oration against Symmachus [Letfers, xviii. 19 f.].

8 See Josephus, Antiquities of the Jews, XIII. i, on the avenging of the death of Jobn.

4 So also Livy, I [I. xiv. r]: ‘Since the Laurentines acted in accordance with the law of
nations.’

[Judges,
XV. 3.]

(III. Ivi.]

(xxii. 61
=p. 639 ]

[Jugurtha,
xx. 4.]

For the
Four
(Platontec,
ii=p. 259}.
On Duties,
I. xl [196].

Letters,
xxix
[xl. 15].

Histories,
IV [xxxiy].

[V. r1r48—
50]

[liv. 19 ]

[ Declama-
t10ns,
Xlil rz |

Code, I. 1x.

r4

Cass1o-
dorus,
Leiters,
IV. x.

Vel. Pat.,
II [xlit]
and

Plut ,Caes.

[ii=
p. 708]

On the Law of War and Peace [Book II

474

Likewise Demosthenes, in his oration Against Conon, declares: ‘ It
has been agreed that justice for each of these wrongs should be found
in the law, but not that they should be judged in accordance with
individual anger and caprice.’* And Quintilian says: ‘ Personal
requital of a wrong is not only hostile to law but also to peace; for
there are laws, courts, judges, unless any one is ashamed to vindicate
himself by legal means.” The Emperors Honorius and Theodosius
decided that ‘the power of the courts and the guardianship of the
public law is established for this purpose, that no one may be able
to grant himself the right of vengeance’. And King Theodoric
wrote: ‘To this end the sacred respect for the laws arose, that
nothing might be done by violence, nothing by private passion.’

5. Nevertheless, the old natural liberty remains, especially in
places where there are no courts, as, for example, on the sea. An
example of this is perhaps the conduct of Julius Caesar. He, while
yet a private citizen, with a hastily levied fleet pursued the pirates
by whom he had been captured, sank some of their ships, and put
the rest to flight. When the proconsul failed to punish the pirates
who had been taken, he himself set out to sea and crucified them.
The same right will exist in desert places, or where men lead a
nomadic life. Thus Nicholas of Damascus narrates that among the

1 Tyndareus thus declaims against Orestes in Euripides, Oresies [lines 491-511]:

With this man here what question could there be of wisdom ?
If to all apparent are both just and unjust ways,

What man was there more dull of wit than he,

Who saw not what was just,

Nor had recourse to Hellas’ common law ?

When Agamemnon forth did breathe his life

With cloven skull, beneath my daughter’s hand—

A shameful deed, one I shall ne’er approve—

Then ought he to have taken the penalty of blood

In lawful vengeance, and from the house his mother

To have cast. So had he won a name for wisdom in his grief,
Held to the law, and pious still remained.

But now he shares his mother’s plight,

For justly judging her to be unjust,

By slaying her himself more wicked still was made.

And, Menelaus, thee I'll question thus:

If this man by his wedded wife be slain,

Who in her turn at his son’s hand shall fall,

And next his child shall pay for death with death,

Where then shall be the end of all these woes ?

These concluding words, full of wisdom, have afforded material for argument both to philosophers
and to orators.

Maximus of Tyre, in his dissertation on retaliation [Dzssertations, XVIII. vi], writes: ‘ For if the
one who has been wronged avenges himself, the injustice will, as it were, pass with a bound from the
one to the other, and injustice will follow upon injustice. If, granting this right, you permit him who
has suffered ill to avenge himself on him who inflicted it, it follows that the right of vengeance will
pass again from the former to the latter. For it is yust that each should have an equal right. If this is
so, 0 Zeus, what is this that thou hast done, that justice should consist in unjust acts ? And whither
will the evil lead, and where will it end?’

Aristides in his speech, On Peace [ii=p. 78]: ‘For what Greek will survive if, for the sake of those
who are already dead, others in turn shall continually meet the same end?’ Aristides expresses a
similar idea also in his second speech On Leuctra.

[35]

Chap. XX] On Punishments 475

Umbrici* each man was his own avenger. This is true to-day among the
Moschians, when a certain time has elapsed after the appeal to a judge.

Herein is the origin of the duels which the Germanic tribes?
employed before the Christian era and which they have not yet
entirely given up. And so, according to Velleius Paterculus, the
Germans marvelled when they saw the Roman form of administration
of justice, because justice put an end to injuries, and what they were
accustomed to decide by force was terminated by legal procedure.

6. ‘The Hebrew law permits a relative of a slain man to kill the
slayer outside of places of asylum. And Hebrew interpreters rightly
note that retaliation may be made for a dead man by force; that,
however, a man can only avenge himself, for a wound for example,
through a judge, clearly because moderation is more difficult to
observe where one’s own suffering is concerned.

From the words of Theoclymenusin [322] Homer, Odyssey, XV,
it is clear that a similar custom of avenging death through private
persons existed among the Greeks of very early times. But examples
of this custom occur with especial frequency among those who have
no common judicial authority. Hence, on the testimony of Augus-
tine, ‘ just wars are customarily defined as those which avenge injuries ’.
Plato sanctions warlike measures ‘ until the guilty shall have been
compelled to pay the penalty by those who have suffered innocently.’

IX.—Likewise for the good of the whole

1. The good of mankind in general, which was the third object
of punishment, involves the same problems as those presented by the
good of one who has been wronged. For in this case the punishment
may be inflicted to prevent the man who has injured one person from
injuring others, which is accomplished by removing him or weakening
him or restraining him so that he cannot do harm, or by reforming
him. Or the punishment may be inflicted to prevent others from
being induced by a feeling of security to annoy any persons whatso-
ever.2 This is attained by the infliction of outstanding penalties,
which the Greeks call tapadetyyara, the Romans exempla, ‘ examples’.
These exemplary punishments are employed so that the punishment
of one may cause many to fear, and that others may be frightened by

1 Did he mean the Umbrians in Italy ? Leo the African, Book I, in the chapter on the Tefechi,
Teiguta, and elsewhere, testifies that the same custom prevailed among many peoples of Africa.

* King Theodoric, rebuking his Goths, said: ‘Put off customs that are abomnably outworn.
Let a dispute be settled by words and not by arms,’ in Cassiodorus, [Varzae,] III. xxiii; and [II]. xxiv]
‘Why do you rush to the duel? What need has man of his tongue if his armed hand pleads his
cause ?’ In Trachonitis in the East it is customary to avenge the death of kinsmen by every possible
means [Josephus, Antiquities of the Jews, XVI. ix. 1].

8 *Polybius saw lions crucified for an attack on a man, so that others might be deterred from
the same crime by fear of a like penalty’; Pliny, [Natural History,] Book VIII, chap. xvi.

In
Stobaeus,
On Latu's
(X. Ixx

= frag. 7,
p.146,edit
Dindorfi,
II [exviu]

[Numbers,
XXXV. I9.]

Sen., O71
Clemency,
I. ecni [I.

xx].
[XV a7rf ]

On Joshua,
VI, qu =
[Heptat.,
VIL xj.
Rep., XIV
[V. xvi].

Code, IX.

xx.7; IX,

XXVIL I.
[Orations,
ix 77.]

Political
Precepts
[MX111 ==
p 817
DE].

[Tusc.

Disp, IV.

EXJl1. 51 |
(Odes, IV.

1X. 39 |
[Line 374 ]

[In
Stobaeus,
xliv. 16—

17.]

On the Law of War and Peace [Book II

470

the nature of the punishment, as the laws say, or, according to
Demosthenes, ‘ that others may learn wisdom and be afraid’.

2. And the possession of the right to punish for this purpose
also, according to nature, may rest with any person whatever. Thus
Plutarch ! says that a good man is appointed by nature to be a magis-
trate and indeed a perpetual one; for by the very law of nature
leadership is conferred on him who acts justly. Thus Cicero proves
by the example of Nasica that no wise man can ever be a mere private
citizen, and Horace calls Lollius ‘ a consul not limited to a single year’.
Euripides in his [phigenta in Aults says :

He whose mind is strong in wisdom holds a magistracy.

Nevertheless, within the state these things must be interpreted with

reference to its laws.
3. Concerning this law of nature Democritus, whose words

I shall quote because they are important, speaks as follows: First,
the question of the right to kill wild beasts presents itself to him in
this way: ‘In the matter of killing or not killing animals the
situation is this: whoever has killed animals which actually do or
desire to do harm is innocent, so much so indeed that to have done
this is more justifiable than to have failed to doit.’ And shortly after :
‘It is absolutely necessary to kill all those things which unjustly do
us harm.’ And surely it is not improbable that good men lived in
this fashion prior to the flood,? before God revealed His will to adapt
to human nourishment other sorts of animals. Again he says; ‘ What
we have written concerning foxes and poisonous reptiles, the same
it seems should be done in the case of men also.’ Then he continues :
‘One is innocent who kills a robber or a thief in any way at all, either

by his hand, or by his order, or by his vote.’
It seems to me that Seneca had these sayings in mind when he

1 Likewise in his Pelopidas[xxiv= p.290C]: ‘The first and as it seems most valid law designates as
a natural magistrate him who is able to preserve those who have need to be saved’ ; and his Philopoe-
men [xii= p. 363 4]: ‘ He delivered his fellow citizens who did not wait for the time for legislation and
election, but followed him on the ground that the stronger naturally rules the weaker.’ We find the
same idea at the close of his Life of Titus Flamininus [Comp. of Philop. and Titus, lii=p. 382 EF].

A writer on the causes of the decline of eloquence, [Tacitus,] On Orators [xxxvi. 5], says: ‘ Not
even as private citizens did these men lack power, since they ruled both the people and the senate
through their counsel and influence.’

Chrysostom, On Second Corinthians, vii. 13 [vii. 12= Homily XV, 1], writes of Moses: [352] ‘Even
before he led out the people under his hand, he was their leader by virtue of his deeds themselves. Soit
was extremely foolish when the Jew asked him ‘‘ Who appointed thee as a ruler and a judge over us ?”’
What sayest thou ? Thou seest the deeds and thou dost dispute about the name, as if some one seeing
a physician skilfully operating and thus benefiting a diseased limb of the body should say to lim,
**' Who appointed thee a physician, who bade thee to operate ?’’ ‘‘ My art, my good man, and thy
disease.”’ In like manner the skill of Moses gave him such power. For ruling is not merely a dignity,
but also an art, and indeed the most exalted of all arts.’

Chrysostom also employs this same argument, On Ephesians, in, end [Homily VII, iv]: ‘Thy
injustice,’ he says, ‘ and thy savagery have made me thy ruler and thy judge.’

? And others afterward who remembered the primaeval custom ; according to Dicaearchus and
others cited in testimony by Jerome, Against Jovinianus (II. xii].

Chap. XX] ‘ On Pumshments 477

said: ‘ When I order the neck of a guilty man to be severed, I am of
the same countenance and mind as when I transfix reptiles and
poisonous animals.’1 And elsewhere: ‘We would not slay even
vipers and adders and other creatures which harm by bite or sting,
if only we could tame them for the future, or render them innocuous
to ourselves and others. Therefore, we will not harm a man because
he has sinned, but to prevent him from sinning.’

4. But since both the inquiry into the fact often demands great
care and the evaluation of the punishment requires much prudence
and fairness, to prevent strife arising from each man claiming too much
for himself, while others refuse to yield, in communities animated
by a sense of right men have agreed [323] to select as arbiters
those who they think are the best and wisest, or hope will prove to be
such. So Democritus: ‘The laws would not have prevented each
man from living according to his own judgement, had not one been
wont to abuse another. For envy marks the beginning of civil
strife.’

5. But as we just now remarked in the case of vengeance, so too
in the matter of this punishment, as an example, traces and survivals
of primitive right persist in those places and among those persons who
are subject to no fixed tribunals, and in some other exceptional cases.
For instance, according to Jewish customs the Jew who fell away from
God and the law of God, and made himself a leader in false worships,
could be killed at once by any person whatsoever.’

The Jews call this the judgement of zeal,? which they say was
first exercised by Phineas and thence became a custom. Likewise
Mathatias slew a certain Jew for defiling himself with Greek rites.
Similarly, three hundred other Jews are said to have been killed by

1 ‘Therefore just as we kill vipers and scorpions and other poisonous creatures, at once, without
delay, before they bite or wound us or make any attempt against us, anticipating our suffering any
harm from the evil that is in them; in the same way it is nght to punish men also, who, although
they are endowed with a kindly disposition through reason which 1s the basis of society, in their habits
have assumed the cruelty of wild beasts, and take pleasure and profit from injuring as many as they
can.’ Thus Philo, On Special Laws, TI [ITI. xvii].

Claudius of Naples, in Porphyry, On Adstarmtng from Animal Food, I [I. xiv], said: ‘There
is no one who does not kill, if he can, a serpent he has seen, to prevent it wounding either himself or
another.’ See also, if at leisure, the following, a little further on [I. xx]: ‘We kill a snake and a
scorpion, even if they do not set upon us, to prevent them from injuring another, and thus we defend
the common interests of mankind.’

Porphyry himself says in Book IT [IT. xxi]: ‘ For just as, although we have a certain community
with evil men who are driven by a certain innate spirit of wickedness, as if by a violent wind, to injure
anyone at all, we believe that it is right for us to punish all such, so, consequently, it is not without
reason to kill those dumb animals which are naturally unjust and dangerous, and which are impelled
by their nature to rush upon whomever they meet [353] todo them harm.’ This 1s also the view of
Pythagoras, according to Ovid, Metamorphoses, XV EXV. 108-9] :

Bodies that seek our harm
Are sent to death, we grant, full righteously.

2 See also the passage in Josephus, XII. 8 [XII. vi. 2]; also Moses Maimonides, On ithe XIII
Articles, and Guide of the Perplexed, II. xli.
3 See r Maccabees, ii. 24, 26.

“

On Anger,
II [I. xvi.
5]-
(II xxxi.
8]

(In
Stobaeus,
XXXVIL1.
57-]

Deut.,
xill. 9

Numbers,
[xxv. 7].

2 Macc.
[zr Mac-
cabees,
ii. 25].

Acis, vil.
573 Xxiil.
I3.

(II. x. ro.
I.]

{II. xx 5]

478 On the Law of War and Peace [Book II

their fellow countrymen, in the book which is commonly called
Third Maccabees. Upon the same ground occurred the stoning of
Stephen and the conspiracy against Paul; and numerous examples
of this custom are to be found in Philo * and in Josephus.

6. Furthermore, among many peoples the full right of punish-
ment, even unto death, continued to be exercised by masters over
their slaves and parents over their children. Thus at Sparta the
Ephors could kill a man without trial.

From this discussion one may understand the character of the
law of nature in regard to punishments and the extent to which it
still persists.

X.—W hat the law of the Gospel has established in this matter

1. Now we must see whether the law of the Gospel has more
narrowly restricted freedom of action in this regard. Surely, as we
have said elsewhere, it is not strange that some things which are
permissible according to nature and by municipal law are forbidden
by divine law, since this is most perfect and sets forth a reward greater
than human nature; to obtain this reward there are justly demanded
virtues which surpass the bare precepts of nature.

From the very nature of the case it is sufficiently clear that
punishments ? which leave neither loss of reputation nor permanent
injury, and which are necessary by reason of the age or another
characteristic of the person punished, provided that they are inflicted
by those who have the right to inflict them according to the laws of
men, as by parents, guardians, masters or teachers, are in no way
contrary to the teachings of the Gospel. For these are remedies of
the mind which are as harmless as unpalatable drugs.

2. With vengeance the situation is far different. For we have
shown above that in so far as it merely gratifies the spirit of the
sufferer it is unlawful even according to nature, and in so far does it
fail to harmonize with the Gospel. Moreover, the Hebraic law not
only forbids hatred to be cherished against a neighbour, that is a
fellow countryman (Leviticus, xix. 17), but also provides that certain
common kindnesses be shown to enemies of this sort (Exodus, xxiii.
4, 5). Therefore, since the Gospel has extended the conception of
neighbour to include all men, it is obviously required of us not only

+ He speaks thus in On Those Who Offer Sacrijices [x1]: ‘Such a one is to be punished as a public
and common enemy ; little heed must be taken of kinship with him, his beliefs must be published
abroad by all who love piety, so that men may run from all sides without delay to exact punishment
from the impious man, firmly believing that this desire to slay him is a holy thing.’ There is another
equally noteworthy passage near the end of his On Monarchy [vii].

4 ‘It is sinful not to check the sins of slaves and children’, says Lactantius, On the Anger of God,
Xviil, where there is more on this topic.

Chap. XX] On Punishments 479

not to injure our enemies but even to do them good, as is plainly
enjoined in the Gospel of Matthew (v. 44).

Nevertheless, the law allowed the Jews to avenge the more
serious injuries, although not by force but by recourse to a judge.
However, Christ does not allow us this privilege, as is clear from the
contrast presented in the passage commencing ‘ You have heard that
it has been said an eye for an eye’, and what follows, ‘ But I say unto
you.” For although His words that follow properly deal with the
prevention of injury and [324] somewhat restrict freedom in this
respect also, yet they are still more to be taken as censuring revenge,
because they reject the old permission as befitting a less perfect age ; 1
‘not because vengeance that is justly taken 1s unjust but because
patience is preferable to it’, as the reason is stated in the Constitutions

of Clement, Book VII, chap. xxiii [VI. xxiii].
3. On this point Tertullian expresses himself thus : ®

Christ clearly teaches a new kind of patience, since He even prohibits the return
for injury that was permitted by the Creator in requiring an eye for an eye and a tooth
for a tooth, while He himself on the contrary commands rather to offer the other cheek
and to give the coat in addition to the cloak. Clearly Christ has added these injunctions
as supplementary, in harmony with the teaching of the Creator. Therefore we must
immediately determine whether the discipline of patience is enjoined by the Creator.
Verily through Zacharias He taught that no one should remember his brother’s wrong
or that of his neighbour. And further: ‘Let no one’, He says, ‘brood over his
neighbour’s malice.’ Much more then has He ordained us to be patient under wrong,
who ordained us to forgetfulness of it. And when He said, ‘Vengeance is mine
and I will repay,’ He thereby teaches the patience that waits for the infliction of
vengeance.

Therefore, inasmuch as it is impossible that the same one should seem to exact
a tooth for a tooth, an eye for an eye in return for injury, and at the same time forbid
not only vengeance but even the remembrance and recollection of injury, it is made
plain to us in what sense He required an eye for an eye, and a tooth for a tooth; that
is, in order not to allow a second injury as retaliation, which He had prohibited by for-
bidding vengeance, but to check the first wrong which He had prohibited by the
appointment of a penalty, so that each one out of regard to the freedom of the second
injury would restrain himself from committing the first. For He knows that violence
is more easily restrained by making clear the immediate prospect of retaliation than by
a general promise of vengeance. Now, inconsideration of the nature and faith of men,

1 * An eye for an eye [. . .], which, if one may say so, is the justice of the unjust’, says Augustine,
in the exposition of Psalm cviii, cited in the Decretum, II. xxiii. 3. 1. ;

2 Against Marcion, IV [IV. xvi]. He says also in On Patience [vi]: ‘Christ while adding grace to
enlarge the law appointed His patience as an aid in fulfilling the law, because this alone had previously
been lacking in the doctrine of justice.’

Chrysostom, On Ephesians, iv. 13 [iv. 31 = Homily XVI, ii]: ‘For this reason He said “an eye for
an eye, a tooth for a tooth,’’ to bind the hand of the aggressor, not to raise your hands against him ;
not only to secure your eyes from harm but also to preserve hisin safety. But what I was asking was this,
why, if vengeance is permitted, are they held guilty who have recourse to it?’ And shortly after:
‘God pardons those, whom perchance a feeling of insult has carried away and anger has Jed to take
revenge. For this He said, “‘an eye for an eye’’; but elsewhere, “ the ways of the wrathful [lead] unto
death’. But if the penalty for the wrathful is so great when it was permitted to pluck out an eye for
an eye, how much greater will it be for those who, having suffered evils, are bidden to offer them-
selves to further injuries.’

1559-27 Kk

[4 garnst
Flaccus,
xiv ]

[On the
Cons of
Manlius
Theod ,

224 f.)

[Dw. Inst ,]
VI xviu.
[On Duties,
I. vii. 20.]

480 On the Law of War and Peace [Book II

rovision had to be established, so that he who believed in God would await

each
: God, while he who had less faith would fear the laws prescribing

vengeance from

retaliation.
This purpose of the law, which was hard to understand, was revealed and made

intellipible by Christ as the Lord of the Sabbath and of the law and of all His Father’s
dispensations, when He bade us to offer the other cheek also, to the end that the more
effectually He might extinguish the return for an injury, which the law had wished to
check by retaliation and which prophecy had openly restrained both by prohibiting us
to remember wrong and by reclaiming vengeance for God. And so whatever teaching
Christ introduced, not in opposition to the law but supplementary to it, did not destroy
the rules of conduct laid down by the Creator, Finally, if we look to the very reason for
ordaining patience, and especially such full and perfect patience, it will not hold good
if it does not come from the Creator, who promises vengeance, who holds the position
of judge.

Otherwise, if He is not going to defend me, who has placed upon me so great a burden
of patience not only in not returning blow for blow but also in offering the other cheek,
and not only in not answering abuse with abuse but even with blessing, and not only
in not retaining my coat but further of yielding my cloak also, He has ordained patience
in vain: for He has not revealed tome the reward of obedience to His command, I mean
the fruit of such patience; for there is vengeance, which He ought to have permitted
to me if He himself did not guarantee it, or He himself should guarantee it if He did
not entrust it to me, since it is to the interest of discipline also that injury should be
avenged. By fear of vengeance, in fact, every iniquity is heldin check. But vengeance
will gain complete control if licence is accorded to it—it will pluck out both eyes and
knock out every tooth as a result of immunity from punishment.

. As we see, Tertullian thinks not only that Christians are
forbidden to demand retaliation but that not even the Jews are
allowed it, even although it contains nothing vicious, that a greater
evil may be avoided. That this view is right in the case of such
a demand arising from hatred is not to be doubted, as the foregoing
proves. For that was disapproved of even [325] by those of
outstanding wisdom among the Jews, who regarded not merely the
letter of the law but its spirit also. This appears in Philo, who makes
the Jews of Alexandria on the occasion of the fall of Flaccus, the
persecutor of the Jews, speak thus: ‘We do not rejoice, Sir, in taking
revenge upon an enemy, for we have been taught by our holy laws to
have compassion upon men.’ ? ,

This is the force of what Christ demands from us all without
exception, that we forgive all who have sinned against us (Matthew,
vi. 14, 15). That is, we ought not to procure or wish for evil to others
because we feel that we have suffered evil. For he who does this, to
speak with Claudian, ‘is a cruel man and seems to claim for himself
the vengeance of the laws.’ Therefore, Lactantius, recalling the
statement of Cicero: ‘ It is the first task of justice to see that no one
injures another unless he has been provoked by a wrong,’ says that
this simple and true statement is spoiled by the addition of two words.

1 See Origen, Agamst Celsus [VII. xxv].

Chap. XX] On Punishments 481

Ambrose declares that this sentence of Cicero’s lacks the sanction of
the Gospel.

6. What then shall we say of revenge, not as a retaliation for
the past, but as a preventive for the future ? Clearly Christ wishes
us to forgo this also ; first, if he who has wronged us shows acceptable
proots of repentance,’ as in Luke, xvii. 3, where there is question of
an even fuller pardon, that is, one which would restore the sinner to
the right of his former friendship, whence it follows that nothing
is to be demanded of him by way of punishment ; and second, even
if signs of such repentance are lacking, by His doctrine of the surrender
of the coat Christ teaches that we must not consider the wrong to
be excessively serious.

Plato too said that wrong must not be repaid ‘ even if we have
to suffer worse things than before’. The same is the opinion of
Maximus of Tyre. Musonius declared that he would not institute,
or advise any one to institute, an ‘ action for insult’, that is an action
for the sake of some insult that had been received, such as Christ
refers to in mentioning a blow on the cheek; for such things are more
rightly pardoned.

7. But if self-restraint involves great danger we ought to be
satisfied with the precaution that does the least possible harm. For
not even among the Jews was revenge customary, according to
Josephus and other learned Jews, but the man who had been wronged
was accustomed to accept monetary payment? in the place of
retaliation, in addition to such expenses as he had been forced to
incur, with regard to which there is a law in Exodus, xxi. 19. The
payment is a simple restitution without penalty;* there was also
a Roman custom, as Favorinus says in Gellius.

Accordingly, Joseph, guardian of our Lord Jesus, when he
believed that his wife was guilty of adultery, preferred to divorce
her * rather than to prosecute her. And he is said to have done this
because he was a just man, that is, upright and merciful. On this
point Ambrose says that ‘ the nature of a just man is foreign not only
to the cruelty of vengeance but also to the harshness of accusation’.
Before him, again, Lactantius had said: ‘ Neither will a just man be
allowed to accuse anyone for a capital crime.’ Justin,® dealing with
the accusers of the Christians, says: ‘ We do not wish to punish those

1 See Moses Maimonides cited by the learned [Emperor] Constantine, De Damno Dato, viii. 7.
* Law of the Visigoths, VI. 13 [VI. iv. 3].
[354] * See Constantine, cited above, [De Damno Dato,]| vill. 1. ;

* [Matthew, i.19.] Augustine in Book II of his De Adulterinis Conjugits [II. xv]: ‘If indeed, as
is said with greater truth, a Christian may not kill his adulterous wife, but only put her away.’

® See Hincmar, De Dwortio, v. fin., Decvetum, TI. ui. 7. 5, and Panormitanus thereon. Gail,
De Pace Publica, viii. 3. Also see Decretals, V. i. 8, as it is in Burchard.

* [Apology, I. vii.] He also says [Dialogue with Trypho, xviii=516 8]: ‘ Having t o desire to requite
even a slight injury upon anyone, as our new Lawgiver has ordained.’ See also IT. xx. 15, below.

Kk2

On Duties,
xxviii [I.
XXV1,
131].

Ephesians,
1V. 32.
Coloss1ans,
ill, I3.

(Crtio, x.]

[A mit.
quities of
the Jews,
IV. viu.
35 ]

[Attire
Nighis, |
AX 1

[On Psalm
CXVITI,

Sermo V11,
no 24.]

[Dw.insé.,]
VI. x [VI.
XxX, r6].

482 On the Law of War and Peace [Book II

who speak evil of us. Their own baseness and ignorance of what is
good is punishment enough.’ . _

8. Finally, we have to consider punishments inflicted, not for
the good of an individual, but for the public good ; partly by removing
the wrong-doer or by restraining him from doing harm, partly by
deterring others through the severity of punishment as an example.

Elsewhere we have proved beyond question that Christ did not
abolish these punishments, because while laying down His own
instructions [326] He testified that He did not cancel anything in
the law. Moreover, the law of Moses, which in these matters was to
last as long as the state itself, strictly ordered the magistrates to
punish homicide and certain other crimes (Ewodus, xxi. 14; Numbers,
Xxxiil, 14, 37 [xxxv. 16-34]; Deuteronomy, xxix. 13 [xix. 13]). But
if the teachings of Christ could accord with the law of Moses in so
far as the latter demanded even capital punishment * they can also be
in accord with human laws which imitate the divine law in this respect.”

XI.—The answer to the argument drawn from the mercy of God revealed

in the Gospel

1. In order to defend the opposite point of view some cite the
exceeding great mildness of God in the New Covenant, which men
are thereby obliged to imitate, even when magistrates, as being vicars
of God.

Although we do not deny that there is truth in this to a certain
extent, it does not apply so widely as they claim. For the great mercy
of God revealed in the New Covenant concerns especially sins against
the primeval law, or even against the law of Moses committed before
men had knowledge of the Gospel (Acts, xvii. 36 [xvil. 30]; Romans,
li. 25; Acts, xiii. 38; Hebrews, ix. 15). For the sins committed
subsequently, especially if in a spirit of contempt, are threatened with
a judgement much more severe than that which was prescribed by
Moses (Hebrews, ll. 23; iv-x. 29 [1i. 2, 33 x. 29]; Matthew, v. 21, 22,
28).* Nor is it only in the other life, but in this life also that God often
punishes such offences (z Corinthians, xi. 30). And pardon for such
sins is not usually obtained, unless a man should in a sense exact
punishment from himself (z Corinthians, xi. 3) * through deep sorrow
of heart (2 Corinthians, i. 27 [u. 7]).

1 Josephus [Antzqutizes of the Jews, XIII. x. 6] praises the ‘moderation’ of the Pharisees with regard
to punishments. Hence come so many exceptions to the laws concerning punishments for public
offences, and the rule that when death 1s actually to be mflicted this must be done as humanely as
possible ; this as is stated in the Talmud, title Ketuboth.

* Augustine, Evangelical Quesitons, Book I, qu. x.

* The same view is found in Chrysostom, in the oration To the Believing Father [chap. iii], and
the second homily On Fasteng [On Pemttence, VI. v].

* ‘The sinner must weep for himself before he obtains pardon,’ Tertullian, On Penttence [vi].

Chap XX] On Punishments 483

2. ‘The same persons urge that freedom from punishment must
be accorded at least to those who have been induced to repent.
But passing over the fact that it is scarcely possible for men to agree
on the matter of true repentance, and that there is no one who would
not obtain immunity for his crimes if it were enough for him merely
to profess repentance in any chance fashion, God Himself does not
always remit the full punishment to those who have been brought to
penitence. This is clear from the example of David. Therefore,
just as God was able to remit the punishment of the law, that is
a violent or otherwise untimely death, so that He might afflict him
who had sinned with evils by no means easy to bear, in like manner
now He is able to remit the penalty of eternal death and at the same
time Himself to punish the sinner by an untimely death,* or even to
permit him to be punished in this way by a magistrate.

XII.—Answer to the argument drawn from the exclusion of repentance

1. Again, others attack punishment on this ground, that with
the taking away of life the opportunity for repentance is likewise
removed. But they know that upright magistrates take serious
account of this matter, and that no one is hurried to execution
without having time to acknowledge his sins and seriously abhor
them. The example of the thief crucified with Christ proves that
repentance of this kind, even if it cannot be followed by good works
which are precluded by death,? may be accepted by God.

But if it should be said that a longer life would have been
advantageous to a more serious reformation one may reply that
sometimes there are found those to whom may be applied fittingly
the saying of Seneca*: ‘We shall bestow on you death, the only
good thing that still awaits you,’ as also this other remark of his,
“that they may cease to be bad men, in the only way in which this
is possible for them’. This Eusebius the philosopher had expressed
thus: ‘Since they can do so in no other way, let them then set
themselves free in this manner from the present bondage of evil and
procure for themselves a means of escape.’

2. Therefore let these things, in addition to what we have said
at the opening of our work, be an answer to those who claim that
punishments, whether of all kinds, or merely capital punishments,
are without exception prohibited for Christians. The Apostle teaches

Ambrose, On Psalm XXXVII; Chrysostom, On First Corinthians, Homily XXVIII [X XVIII. ii], and
On Matthew, Homily XLII [XLII iti]. Cf. 2 Corinthians, vii. 9 and to.

1 Jerome, On Nahum, chap. i, a passage cited in Decretum, II. xxiii. 5. Agathias, V [V. iv],
quoting Plato. 4 Jerome. To Damasus, cited in the Decretum, II. xxxill. 3. 1. 58.

3 He says also, On Benefits, VII. x [VII. xx]: ‘ The end of life is the cure for such natures, and
it is the best thing for him to meet who will never return to his senses’ ; and ‘ with the same hand
I shall bestow a favour upon all; I shall bestow it even upon him, since the end of life is a cure for

such natures.’

Synesius,
Letters,
xhiv.

On Anger,

I. xvi

[On Anger,
.| XV.

{In

Stobaeus,
xlv1. 41 ]

[T.1i 9. 4
and iii. 3

2,]

I [Ixv].

XI [x1. 8].

[inst.

Orat.] XII.

i. [42]

[On Pho-
tins,
Nomo-
canon,
xv1. 5.]

[VII.
xiv. 4.]

On the Law of War and Peace [Book II

484
us the contrary, by including the use of the sword in the royal office
[327] as a symbol of divine vengeance, and elsewhere saying that
we are to pray that kings may become Christians and by virtue of
their office be a protection to the innocent. Owing to the wickedness
of a great part of mankind even after the Gospel has been spread
abroad, this result can only be obtained if the boldness of the rest is
checked by the death of some offenders, especially since the innocent
are scarcely safe even when there are so many capital punishments
inflicted.

3. Nevertheless, it will be profitable for Christian rulers, at
least in some measure, to set before themselves for imitation the
example of Sabaco, king of Egypt *, most famous for his uprightness,
who, according to Diodorus, changed capital punishments into
condemnations to hard labour, with most fortunate results.

Strabo says that even among some of the peoples of the Caucasus
‘they put no one to death even for the most severe crimes’. Nor
should we scorn the saying of Quintilian: ‘ No one will doubt that,
if guilty men can be reformed in any way, as is agreed may sometimes
occur, it is of more advantage to the state to save them than to punish
them.’ Balsamon notes that the Roman laws which formerly proclaimed
the punishment of death were in many cases altered by later Christian
Emperors? so as to prescribe other penalties,? so that in this way
repentance might be forced upon the condemned more sharply and
the longer punishment might better serve as an example.

XIITI.—A rejection of incomplete classifications of punishments

1. In the enumeration which we have made of the purposes of
punishment something seems to have been overlooked by ‘Taurus the
philosopher, whom Gellius quotes as follows :

And so whenever there is either great hope that he who has sinned will voluntarily
correct himself without punishment; or whenever, on the contrary, there is no hope
of his being better and corrected ; or whenever there is no need to fear a diminution of
the dignity which has been sinned against; or whenever no sin has been committed
which must be remedied by fear as a necessary example, then whatever sin has been
committed does not seem worthy of the effort to impose a penalty upon it.

Here he speaks as if punishment is done away with when one
purpose of punishment is removed, although on the contrary all the

1 And in great measure that of the Romans also, none of whom after the Porcian Law could be
executed or scourged except for treason or when condemned by the people themselves.

2 See below, IT. xxiv. 2. See the oath of Isaac Angelus in Nicetas, [On Isaae Angelus,| I [I. iv].
Nicetas says also that m the reign of John Comnenus no one was executed [On John Comnenus, xii].
Cf. Malchus, On Zeno [Selections on Embassies, iv], and Augustine, Letters, clviii and chx [cxxxix and
exxulli], Zo Count Marcellinus, cited in the Decretum, II. xxiii. 5. 1 ff.; also Chrysostom, oration
Agamst the Jews, V [VIIL. ii], on the punishment of Cain.

* Especially labour. Augustine, Letters, clx [cxxxiv. 4]: [355] ‘Let their sound limbs serve some
useful task.’ See also the letter of Nectarius to Augustine, which 1s cci [xc].

Chap. XX] On Pumshments 485

purposes should be removed, so that there be no occasion for punish-
ment. ‘Then he omits the purpose effected by the removal of a man
whose manner of life is incurable, to prevent his committing other
or more serious crimes. What he says with regard to loss of dignity,
moreover, must be extended to other losses which are to be feared.

z. With more justice Seneca said: ‘In punishing injuries the
law has aimed at these three things, which the Prince ought also to
aim at; they are either to reform him whom it punishes, or to make
others better by his punishment,’ or by removing evil men to permit
the rest to live in greater safety.’ For here, if you understand by ‘ the
rest ’ both those who have already been wronged and those who may
be wronged hereafter, you have a complete division of the matter,
except that to ‘remove’ you must add ‘or restrain’. For either
imprisonment or any other means of limiting their power has the
same result.

The following division which Seneca himself makes in another
place is less complete: ‘ This he will keep in view always in inflicting
punishments of every sort, that one kind of punishment is applied to
reform the bad, another Kind to remove them.’ Somewhat more
incomplete still is the saying of Quintilian: ‘Every punishment has
reference not so much to the crime as to the example.’

XIV.—It is not safe for Christians, as private citizens, to exact punish-
ment, even when universal common law allows it

From what we have said up to this point one may gather how
unsafe it is for a Christian in a private capacity to exact punishment,
especially capital punishment, from any wicked person whatsoever,”
either for his own or for the public good, although we have said that
this is sometimes allowed by universal common law.* It is, therefore,
a praiseworthy custom on the part of those peoples among whom
those who are about to set sail receive warrants, by the public authority,
to destroy whatever pirates [328] they discover on the sea; so
that if the occasion offers they may be able to act as public servants
and not upon their own initiative.

XV.—Neither should Christians of their own accord be too zealous in
making accusations

In harmony with the foregoing is the widely current opinion,
that not any and every person should be allowed to bring accusations

1 These two objects are also stated by Philo, On the Embassy, [1}: ‘ Because punishment frequently
reforms and corrects even the one who has sinned; and even if it fails in this, at any rate it affects
others, to whose attention it comes., For the punishments of others make many better through fear
of a similar penalty.’ 2 Gee above, I. iil. 3. TT, xx. 8.

On Cle-
mency, I.
xx1 [I.
xx11].

On Anger,
I ult.
[I. xix. 7].

[Declama-
Zions,
cclxxiv.
end.]

Can 73.]

Matthew,
vii. I

Covar , De
Mair ,
IL. Vil,

no 8,
Fortunius,
De Ul-
tuma Fine
Legum,
illat, 1
Vazquez,
Contro-
versiae
Lilustves,
IV. vu.
[II. 1. 14;
in. 3. 2]

486

for crimes,! but that there should be certain persons upon whom this
task is laid by the public authorities. The purpose is that no one may
do anything toward shedding another’s blood except by the necessity
of his office.

This is the object of the canon of the Synod of Seville, which
ordains: ‘If any of the faithful appears as an informer, and through
his deposition any one is proscribed or put to death, he is forbidden to
receive the communion even when dying.’

XVI.—WNor should Christians seek the office of criminal judge

Likewise, it may be perceived from the preceding that it is by
no means advisable, and not even becoming, for a man who is truly
a Christian to enter of his own accord upon a public office which may
have to decide upon the shedding of blood,” and to think and profess
that it is right that the power of life and death over his fellow citizens
be conferred upon himself, as if he were the most exalted of them all
and a sort of god among men. For surely here applies absolutely the
warning of Christ that it is a dangerous thing to pass judgement upon
others, because in like cases we must ourselves expect from God the
judgement we have meted out to others.

On the Law of War and Peace [Book II

XVII.—The distinction between human laws which confer the right to
kill as a punishment and those which merely give impunity for such
action

1. It is no unimportant question whether the laws of men
which permit the execution of certain persons confer upon the
executioners a true right even in the eyes of God, or merely freedom
from retribution among men. The latter point of view is supported
by Covarruvias and Fortunius, whose opinion, however, is so dis-
pleasing to Fernando Vazquez that he calls it accursed. There is
no doubt, as we have said also elsewhere, that in certain cases the law
can confer either power. And which one it does confer must be
gathered partly from the substance. For if the law gives play to
resentment it gives immunity from human punishment, but not from
sin, as in the case of a husband who kills an adulterous wife or an
adulterer.*

2. But if the law regards the danger of subsequent harm arising
from deferring the punishment, it must be considered as conferring

* Chrysostom, On Penmsence, VIIT[VIII. u, ed. Migne, vol. vill, p. 759] : ‘ Therefore it 1s a good
thing, as I have said, to anticipate private suits by friendly settlements, so that you may guide your
fnend to this goal of the action. However, as to public accusations, I shall not advocate breaking
them off by reaching a settlement, but never commencing them.’

* As to whether a wise man should enter public life, see Seneca, On the Leisure of the Wise Man.

* See Augustine, Crty of God [rather, partly Jerome, On Ezekiel, ix, and partly an unknown writer],
cited in the Decreium, IL. xxiii. 8. 33. Cf. also the Decretum, II. xxxiii. 2. 6 and 7.

Chap. XX] On Punishments 487

upon a private individual both right and public authority, so that he
is no longer in a mere private capacity.

Such a law is the one in Justinian’s Code, under the rubric
‘When it is lawful for any one without recourse to a judge to execute
judgement for himself or for the public service’, where permission
is given to any one at all to repress by punishment soldiers engaged in
plundering. The following reason is given: ‘For it is better to
intervene in time than to seek justice after the damage has been
inflicted. Therefore we allow you to take vengeance for yourselves,
and because it is a serious thing to punish even by virtue of a judicial
decision we have subjoined in the edict, that no one shall spare a
soldier whom he ought to oppose with arms as a robber.’

A similar law, again, is the one which follows, dealing with the
suppression of deserters, which says: ‘ Let all men know that against
public robbers and deserters from military service they have been
granted the right to exercise public vengeance for the common peace.’
The remark of Tertullian is here in point: ‘ Against traitors and
public enemies every man is a soldier.’ !

3. But the right of killing exiles, whom we call outlaws, differs
from laws of this type, because in that case we have to do with a
particular sentence, but here with a general edict which, when evidence
of the fact appears,” gains the force of a judicial sentence.

XVIII.—Internal acts are not punishable by men

Now let us consider this, whether all vicious actions are such as
to be punishable by men.

We must consider it as definitely established that they are not
all of such a kind. For, in the first place, purely internal acts, even if
they should come to the attention of others by some chance, as by
subsequent confession, cannot be punished by men, because, as we
have said before, [329] it is not in accord with human nature that
a right or an obligation should arise among men from purely internal
acts. And in this sense we must take the teaching of the Roman laws,
that ‘ No one deserves to be punished for his thoughts’. However,

this does not prevent internal acts, in so far as they influence external -

ones,® from being taken into consideration, not on their own account,
but in the light of the external actions which receive from them the
quality of their desert.

1 Agathias, IV [TV. x]: ‘ For not only should the aim of well-doing be bom and dwell in generals
and other persons of influence, but it 1s possible and fitting for every one who wishes to be stirred by
the evils of that state to which he belongs, and to promote the public advantage to the limit of his
ability.’ See also IJ. xx. 9, above.

= Quintilian, Declamations, cclx: ‘ There are certain wrongs done to the state for the recognition
of which the evidence of our eyes is sufficient.’

§ So Sayrus, Thesaurus, III. vi.

[Code, III
XxXVlL 1]

[A pology,
in ]

(II. iv. 3]

{Hier., 1n
Golden
Verse, =
p 192
Needh ]
[Sen ,
Cont, II
lV 4.]
[Thue ,
ITI. xlv ]

On Anger,
II xxx
[Stobaeus,
xlvi. 59 ]

XIII [xx].

XVII
[Xxxv1il].

[xxl =
P 90A.]

On the Law of War and Peace [Book II

488

XIX.—Extrinsic acts which human frailty cannot avoid are not punish-
able by men

1. In the second place, actions inevitable to human nature
cannot be punished by men. For although one cannot sin except
one does so of one’s own will, nevertheless the total and perpetual
abstinence from all sin is a condition that is more than human.
Therefore, the belief that itis natural for man to sin has been expressed by
the philosophers Sopater, Hierocles, Seneca, and Philo among Jewish
writers,’ the historian Thucydides, and very many Christian writers.

‘If’, said Seneca,® ‘every one must be punished who has a base
and malicious nature, no one will avoid punishment.’ Moreover,
Sopater said: ‘If any one should punish men on the basis of complete
freedom from sin, he oversteps the natural limits of correction.’
This Diodorus the Sicilian? calls ‘ to sin against the common weakness
of mankind’, and, in another place, ‘ to forget the infirmity that is
human and common to all’. Sopater, whom I have mentioned above,
says that we must overlook ‘ the small and habitual sins ’.

2. Indeed, one may doubt whether such things are rightly and
properly called sins, since they lack, when considered in general, the
freedom of action which they seem to have in particular instances.
Plutarch in his Solon says: ‘The law should be drawn up with a view
to what is possible, if it aims to punish a few advantageously, and
not punish many without advantage.’

There are also certain actions which are not inevitable to human
nature itself, but to a particular person at a particular time, because
of a bodily condition which influences his mind,* or because of a
mature habit. Such actions are wont to be punished not so much

1 , On the Life of Moses, III [III. xvi]. One may add Aben = Ezra, On Job, v. 7; and Rabbi
srael, vill.

* He says also, in chap. xiv of the same book, On Anger [I. xiv]: ‘There is found none who
could acquit himself.’ In chap. ix [II. x] he says: ‘Among the other disadvantages of mortality
there is also this mental blindness, which is not so much the necessity of erring as a love of error.’
Later, chap. xxvu [II. xxvui]: ‘ Who is he who claims that he is innocent before all laws?’; and
in Book III, chap. xx [III. xxvi]: ‘ We are all evil.’

Again [Seneca], On Clemency, I. viii [I. vi]: ‘We all have sinned ; some more seriously, some more
lightly, some with premeditation, some through impulse, or influenced by the wickedness of others ;
some of us have failed to abide boldly by our good counsels, and [356] against our will and endeavour
have lost our innocence. We have not only sinned but we shall sin to the end of time. Even if any one
has so cleansed his mind that nothing further can disturb him or deceive him, nevertheless it 1s through
sin that he has arrived at innocence.’

__ _Procopius, in the speech of Belisarius, Gothze War, ITI [ITI. xi], says: ‘Complete freedom from
sin is not a human characteristic nor in accord with the order of nature.’ Compare the Emperor
Basil, [Paraeneticon ad Leonem Fltum,] chap. |.

var Also in the fragments [Selecttons, XXVI.1]: ‘One must not defame the weakness of human
nature.

* Seneca, On Anger, II. xviii [II. xix]: ‘A mixture of elements produces varieties of character,
and men’s natures incline to different characters according to the predominance of this or that element.’
In another place he says that these things are due to the condition of birth and bodily temperament ;
Letters, xi [xi. 6].

Chap. XX] On Punishments 489

for their own.sake as on account of the guilt that precedes them,"
because either the remedies therefor have been neglected, or corrupt
thoughts have willingly been received into the mind.

XX.—Acts by which human society 1s not injured, directly or indirectly,
are not punishable by men. The explanation thereof

_ 1. In the third place we are not to punish sins which neither
directly nor indirectly affect human society or a fellow man. The
reason is that there is no cause for not leaving such sins to be punished
by God, who is most wise in perceiving them, most just in judging
them, and most able to requite them. For men, therefore, to
institute punishment for such acts would be clearly futile, and
consequently inadequate.

From this broad statement we must except corrective punish-
ments, the purpose of which is to improve the sinner, even although
perhaps this does not concern others. And further, we are not to
punish actions which are contrary to the virtues in regard to which
nature rejects all compulsion, such as mercy, liberality, and gratitude.

2. Seneca discusses this problem, whether the fault of an
ungrateful man ought to go unpunished; and he advances many
arguments why it ought not to be punished. His chief argument,
which may be extended to other similar problems, is this: ‘Since
it is a most honourable thing to show gratitude, it ceases to be honour-
able if it is compulsory,’ that is, it loses its high degree of honour, as is
shown by the following words: ‘ For no one will praise the grateful man
any more than him who has restored a deposit, [330] or one who has
paid what he owed without being sued.’ Further: ‘To show grati-
tude is not a glorious thing, unless it is safe to remain ungrateful.’ *

To faults of this sort we may apply the saying of Seneca the
Father, in his Controversies: ‘1 do not desire the accused to be
praised, but to be acquitted.’ °

XXI.—A refutation of the view that pardon is never permissible
We must next consider whether it is permissible at times to
forgive or to excuse.

1 See Decretum, Il. xv. 1. 9.
2 Also, On Benefits, I.i: ‘And so surely it is shameful not to repay (kindnesses) even if one does

not have to.? Seneca the Father says, Controversies, V. xxxiv [= X.v. 15]: ‘You tell me it is not
necessary to do this; but a high evaluation is set upon this thing, and so there is no punishment for
not doing it.’

Augustine, Against Petilianus, Il. lxxxiti [I]. boonti. 184]: ‘ And so for this purpose laws have
been established agamst you; you are not thereby compelled to act rightly, but you are prevented
from doing wrong.’ .

3 This is in Controversies, IV. xxiii [X.iv. 11]. Assimilar idea is found in IV. xxiv [= IX, ul. 19]:
‘We do not hope that he will approve, but that he will pardon.’ Also in Excerpts, vi. 8: ‘ There is
a great difference between censure and punishment.’ For, as Plutarch says in his Cimon [li = p. 480 4],
there are certain things which are ‘ omissions of virtue rather than crimes arising from a vice’.

On Bene-
fits, ITI. vi
and vil.

(Stobaeus,
xlvi. 50]
(Xxx. 62 ]
[II. vir]

Letters to
his Brother
Quimtus,
I. xxi [I
2 5].

[On
Benefits,
VI. vi. 3]

490 On the Law of War and Peace [Book II

The Stoics deny that it is,’ as one may see in.a fragment of
Stobaeus under the title On Magistracy, in Cicero’s speech For
Murena, and at the conclusion of Seneca’s work On Clemency ; but
their argument is a trivial one. ‘ Pardon’, they say, “1s the remission
of a punishment that is deserved’ ; ‘ the wise man, moreover, does what
he ought to do.’ Here the fallacy lies in the word ‘ deserved’. For if
you understand that he who has sinned deserves punishment, that is,
can be punished without injustice, it will not thereby follow that one
who fails to punish him does what he ought not to do. However, if
you take the view that the punishment is deserved at the hands of
the wise man, that is, ought by all means to be exacted, we shall say
that this does not always happen, and therefore from this point of
view punishment cannot be deserved but merely permitted. This,
furthermore, may be true both prior to the laying down of penal law
and subsequent to it.

XXII.—Proof that pardon is permissible prior to the penal law

1. Even before the establishment of the penal law beyond
doubt there may be room for punishment, because the wrong-doer
is naturally in the state where punishment may be permitted. But
it does not follow from this that the punishment ought to be exacted,?
for this depends upon the connexion between the purposes for which
the punishment is instituted and the punishment itself. Conse-
quently if these purposes of themselves are not necessary on moral
grounds, or if they are opposed by other purposes not less useful or
necessary, or if the purposes set for punishment can be attained in
another way, it is clear that there is nothing which strictly compels
the exaction of the punishment.

Take as an example of the first case a crime known to very few
persons, the bringing of which to public notice is therefore unneces-
sary, or even harmful. Here is applicable what Cicero said of a
certain Zeuxis: ‘ Since he has been brought to trial, perhaps he ought
not to be acquitted, [. . .] but it was unnecessary to have prosecuted
him.’ An example of the second case is one who pleads either his own
deserts or those of his parents, which are worthy of reward, to counter-
balance his guilt ; for, as Seneca says: ‘’The surpassing benefit does
not suffer the injury to appear.’ An example of the third case is one
who is corrected by reproof, or who has made verbal satisfaction to
the injured person, so that there is now no need of punishment to
attain the desired ends.

1 They are ably controverted by Diodorus Siculus [Selecttons, XXI. vii]: ‘Pardon is more
desirable than vengeance.’ The Chnstian view is given by Cypnan, Letters, lii [hi. 16]: ‘The teaching
of the Stoic philosophers is different; for they say that all sins are equal, and that a serious man
ought not to be easily influenced. But there is a wide gap between Christians and philosophers.’

* Julian, On Eusebta [Orattons, I11=115 B]: ‘For even if some persons are deserving of ill-treatment
and punishment, it is not of certainty necessary that they should perish.’

Chap. XX] On Punishments

49x

__2. This is one aspect of clemency, that it frees from punishment.
With respect to this the Hebrew Wise Man said: ‘The just man
must love his fellow men.’ For because every punishment, especially
if of a more serious kind, contains something which viewed in itself
is opposed, not indeed to justice, but to regard for others, reason
readily permits us to refrain from punishment, unless a greater and
more just regard for others almost irresistibly restrains us. The remark
of Sopater is to the point here:

The corrective element of justice in the matter of contracts altogether spurns the

family of the Graces. But the element that is concerned with punishments does not
shun their mild and kindly countenance.

The first part of the thought Cicero expressed thus: ‘In
certain things the way of right is such that regard for others has no
place.’ The latter part is thus phrased by Dio of Prusa in his oration
To the Alexandrians: ‘It is the part of a good governor to pardon.’
As Favorinus says: ‘ What men call clemency is a relaxation of strict
justice at the opportune time.’

[331] XXII]. —But pardon is not permissible in all cases

There are these three possibilities. Either the penalty is to be
exacted absolutely, as in crimes of the worst type ;? or it is not to be
exacted at all, as when the public good requires its omission; or
either alternative may be possible, in which case, as Seneca says,
clemency has freedom of judgement. In this last case, say the Stoics,
the wise man spares, but does not pardon. As if, indeed, following
the common people who determine the use of language, we could not
call ‘ to pardon’ what the Stoics call ‘to spare’. In truth both here
and elsewhere, as Cicero, Galen, and others point out, a great part of
the Stoic arguments is taken up with discussions about terms,” which
a philosopher ought especially to avoid. For as the writer of the
Ad Herennium said with the greatest truth: ‘ It is a bad thing to raise
a dispute over a change of terms’, or, as Aristotle had put it: ‘ One
must avoid [. . .] disputing over the name.’

XXIV.—Proof that pardon ts permissible even after the establishment of
the penal law

I. There seems to be a greater difficulty with regard to pardon
after the establishment of the penal law, because the lawmaker is in
some way bound by his own Jaws. But this we have said is true in so
far as the lawmaker is regarded as a member of the state,’ not in so

1 Josephus says [Anttqusties of the Jews, XVII. v. 5]: “ Parricide is a crime both against nature
and against human life, and he who fails to punish it sins himself against nature.’

*To no purpose, as the Scholiast on Horace says. Augustine, Against the Academics [II. xi]:
‘It is disgraceful for persons in a discussion to linger over a question of words when no difference on
questions of fact remains.’ 3 See above, IT. 1v. 12, m text and notes.

[Wisdom,]
Xll 19g.

[Stobaeus,
xlv1. 60 ]

Letters to
Quinius, I
11. [3 Io}.
[xxx1i=
p. 366.)
(Gellius,
Ii 27]

[On
Clemency,
II. vir 3]

II [xxviii.
45].
Toptes, I.

xxiv [T.
Xvi 4].

“On the
einger af
God, X1X°

"Questions
on the Old
and New
Testa-
ments,
cxv.]

On Cle-
mency, I
Ve 4.

492 On the Law of War and Peace [Book II

far as he sustains the person and authority of the state itself. For in
so far as he does this he can even suspend the whole law because it 1s
the nature of a human law to depend upon a human will, not merely
in its origin but also in its duration. However, the lawmaker should
not suspend the law except for a worthy reason, otherwise he will sin
against the principles of governmental justice.

2. But just as the lawmaker can suspend the whole law, so he
can suspend its obligation in respect to a particular person or fact,
while in other respects the law remains in force. According to
Lactantius, God Himself furnishes an example; for “When He
established the law, He did not thereby take from Himself all power,
but retained this right to pardon freely.’ ‘The Emperor’, says
Augustine, ‘may repeal a sentence,’ and acquit a defendant on
a capital charge and pardon him,” giving as the reason ‘ that he who
has it in his power to create laws is not bound by the laws’. And
Seneca wishes Nero to reflect on this: ‘No one can put to death
against the law; nobody can save except me.’

3. But this step also is not to be taken except for a worthy
reason. Although we cannot define with exactness what are worthy
reasons, nevertheless we must hold that they ought to be more cogent
after the institution of the law than those which were accepted
before the law, because to the reasons for punishing there is added the

authority of the law which it is expedient to preserve.

XXV.—W hat intrinsic causes are sufficient to cause the suspension of
the law

Now the causes for freeing any one from the punishment of the
law are internal or external.

An intrinsic cause occurs when the punishment, although not
unlawful, is severe in comparison with the act.

XXVI1.—W hat extrinsic causes are sufficient

An extrinsic cause for freeing any one from the punishment of
the law arises from some merit, or from some other commendatory
thing, or even from a strong hope entertained for the future. This
type of cause is especially effective if the reason for the law, at least
in the particular instance, should cease with respect to the act in
question. For although the general reason, when not opposed by
a contrary reason, is sufficient ground for maintaining the efficacy of

1 Symmachus writes, Leiters, III. lxui: ‘For the condition of the magistrates, whose judgements
appear to be corrupt if they are milder than the laws authorize, is one thing ; something different is
the power of the emperors, who ought to soften the asperity [357] of a harsh law.’ The same
distinction between king and judge is found in Themistius, Orations, v [xix = pp. 227-28].

Chap. XX] On Punishments 493

the law, nevertheless an absence of the reason, even in a particular
instance, renders it possible to suspend the law more easily and with
less loss of authority.?

This occurs especially in the case of crimes which are committed
through ignorance, even if it is not altogether excusable, or through
some mental infirmity that is conquerable indeed, but only with
dificulty. These things ought to be taken into especial consideration
by a Christian ruler, that he may imitate God, who even in the Old
Covenant desired that many crimes of this sort should be expiated by
the offering of certain victims; Leviticus, [332] ivandv. And in
the New Covenant by word and by examples He has shown that He
is ready to pardon such things to those who repent (Luke, xxiii. 34;
Hebrews, iv. 15; v. 2; X Ttmothy, 1.13). John Chrysostom in fact
notes that Theodosius the Great? was led to pardon the men of
Antioch by these words of Christ in the Gospel of St. Luke, ‘ Father,
forgive them, for they know not what they do.’

XXVII.—Rejection of the view that there is no just cause to suspend the
law, unless it 1s one that 1s contained 1n the law as an implted
excepiton

Now from this it is clear how far wrong Fernando Vazquez was in
saying that the only just cause of suspending the law, that is of freeing
from the operation of the law, is that with regard to which the law-
maker, if consulted, would say that it was not his intention that the
law should be observed. For he has not distinguished between
‘equity’, which serves to interpret the law, and relaxation. Upon
this ground in another place he censures Thomas Aquinas and Soto
for saying that the law continues to be binding even if the cause
should cease in a particular case, as though they thought that the
law consisted merely in what was written; an idea that never
occurred to them.

However, we are so far from having to attribute every relaxation
of the law, which may often be given freely or omitted, to what is
properly called equity, that not even the relaxation due either to
regard for others or to ruling justice can be referred thereto. For
it is one thing to annul the law for a worthy or even a pressing
cause, and another to declare that an act from the beginning was not
embraced in the intent of the law.

Now that we have discussed exemptions from punishments, let
us consider their measure.

1 Gratian has assembled much useful information on this point, Decretum, II. i. 7.
2 See the account in Zonaras [XIII xviii. 30~2].

“On the
Statues,
Homily
NAT, iva

I. xlvi.

I. xxvi
and xlvi.

Lil Ex.

2 2]
Letters ti
Brutus, Xv
TI. xv. 3!
Digest,
XLVIII
XIX 41
{On
Leuctra, }
=P 94¢]
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James, i.
I 5.

[xlv. 67]

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On the Law of War and Peace [Book II

494

XXVIIL.—T he measure of punishment according to what ts deserved

From what has been previously said it appears that in applying
unishments we must have regard to two things: that for which, and
that for the sake of which. That for which is what is deserved; that
for the sake of which is the advantage to come from the punishment.
No one is to be punished beyond what he has deserved.1_ This
view is supported by what we have previously quoted from Horace,
and by the saying of Cicero: ‘ In punishment as in other things there
is a measure and a sort of moderation.’ Thus Papinian calls punish-
ment by the name of evaluation. Aristides in his second speech On
Leuctra says that it accords with human nature to find in each crime
some point beyond which vengeance ought not to proceed. Moreover,
Demosthenes in his letter on behalf of the children of Lycurgus says
that in the matter of punishment we must not regard the bare
balance, as in the case of weights and measures, but we must weigh
the purpose and the wish of him who has committed the wrong.
Within the limits of their desert, sins are punished more or less
severely with an eye to the advantage to be attained.

XXIX.—A consideration, in this connexton, of the causes which lead to
crime, and a comparison of these with one another

1. In estimating what is deserved we must take into consideration
the compelling cause,* the cause which ought to have restrained, and
the disposition of the person toward each. Scarcely any one is bad
for no purpose, while if any one delights in wickedness for its own sake
he is beyond the pale of humanity. Most people are Ied to sin by their
desires; ‘ The lust when it hath conceived beareth sin.’

Now under the name of desire I include also the impulse to
avoid evil, which is very natural and consequently the most honour-
able of desires. Hence, unjust actions committed for the sake of
avoiding death, imprisonment, pain, or extreme poverty, usually
seem in great measure excusable.

2. Here applies the saying of Demosthenes :

It is right to be more angry with those who are bad when they are rich than with
those who are so under the pressure of poverty. For with judges of a humane disposition
necessity has some value as an excuse, while those who are unjust while enjoying wealth
have no worthy pretext.

On this ground Polybius excuses the Acarnanians for not fulfilling
the terms of the treaty concluded with the Greeks against the

2 On this question the Milanese discoursed ably in the speech contained in Guicciardini, XVII
[pp. 387 #.]. Compare what we have said in II. xx. 2, and what we shall have to say in III. x. 1.

* Chrysostom says, On the Statues, X [X. vi]: ‘ For not all sins deserve the same punishment
but those which are easy to correct bring upon us the heavier penalty.’ In his second homily dealing
with the obscurity of the Old Testament [On the Obscurity of ihe Prophecies, II. viii] he proves on this
ground that a calumniator is worse than a libertine, a thief, or a homicide.

Chap. XX] On Pumshments 495

Aetolians, in view of the danger which threatened them. Aristotle
also declares: [333] ‘Incontinence is more voluntary than
cowardice ; for the former arises from hope of pleasure, but the latter
from fear of pain. Pain, moreover, as it were, carries a man out of
himself,’ corrupting his nature; but pleasure does no such thing,
and so is the more voluntary.”* Of the same sense is a significant
passage in Porphyry,* On the Abstaining from Animal Food, Book III.

3. But the other desires aim at some good, whether true or
imaginary. ‘True goods, apart from virtues and their actions, which
do not lead to sin (for virtues harmonize with one another) are either
pleasing things or the cause of pleasant things, which are called
advantageous, as abundance of possessions. Imaginary but not true
goods * are superiority over others, apart from virtue and advantage,
and revenge. And the further these depart from nature, the more
shameful they become.

Now these three desires John expresses in the following words :
‘ the lust of the flesh, the lust of the eyes, and the vain glory of life.’
For the first member includes the desires for pleasures, the second the
greed of possessing, and the third anger and the pursuit of vain glory.
Philo, in his explanation of the Ten Commandments, says that ‘ All
things are evil that arise from the desire either for money or for glory
or for pleasure’; and Lactantius, in his sixth book, that ‘ Virtue
consists in restraining anger, abating greed, and bridling lust. For
almost all unjust and wicked acts arise from these desires.’ ‘This idea
he expresses in another place also.

XXX.—Also a consideration of the causes that should have restrained
from sin ; with a discussion of the order of the commandments of the
decalogue that apply to one’s neighbour, and some other things

1. The general cause, which ought to restrain from wrong-
doing, is injustice. For here we are not dealing with sins of all kinds,
but only with such as carry their effect beyond the criminal himself.
The injustice is the greater the heavier the loss that is brought upon
another. Therefore, in order of seriousness, the first place is
assigned to crimes actually carried out, and the next place to those
which have proceeded to certain actions but not to the final act.

1 See the excellent comparison between the thief and the adulterer in Proverbs, vi. 30.

2 Philo, On the Ten Commandments [xxviii], says: ‘ For all affections of the mind are severe, and
influence and disturb it in an unnatural manner, and do not permit it to be healthy. But the most
severe is desire; for each of the other affections attacks and falls upon the mind from without, and
seems to be involuntary, but desire alone has its beginning in ourselves and is voluntary.’

° There is a like passage in Marcus Aurelius, Meditaizons, II [II. x], where he contrasts anger and
lust. Plutarch in his Romulus [Comparison of Theseus and Romulus, ui = 384]: ‘The cause which awakes
anger rather excuses him who has been influenced by a stronger cause, as though by a heavier blow.’

4 Seneca, Letters, xvi: ‘ Natural desires are limited; but those that arise from a false opmion
have no bounds.’ See Chrysostom, in his moral discussions On Romans, vi [Homily X ff.]; On Second
Corinthians, xi. 12 [Homily XXIII, v]; On Ephesians, i. 14 [Homily IT].

1569+27 Ll

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496 On the Law of War and Peace [Book II

Among the latter each is more serious the farther it has proceeded.
In either sort of crimes that form of injustice is prominent which
disturbs the public order and therefore harms the greatest number.

Next in importance comes the injustice which affects individuals.
Here the greatest injustice is that which affects human life; the next
that affecting the family, the basis of which is marriage ; and the last
that affecting desirable things severally, either by directly taking them
away or through evil intent giving rise to loss.

2. "These things may be analysed with greater precision, but we
have indicated the order that God has followed in the Decalogue.
For under the name of parents, who are magistrates by nature, it is
right for us to understand other rulers whose authority extends over
human society. ‘There follows the forbidding of homicide; then the
sanction of matrimony by the prohibition of adultery; then thefts
and the bearing of false witness ; and, finally, unconsummated crime.

However, among the reasons that should deter from crime we
ought to include not only the character of the crime that is actually
committed, but also the character of what is likely to follow, for in the
case of arson and the destruction of a dike most serious injuries and
even death in the case of many persons are to be looked for.

3. In addition to injustice, which we have stated as the general
reason for abstaining from wrong, there is sometimes added another
vice,! as impiety toward one’s parents, cruelty toward neighbours,
and ingratitude toward benefactors, which add to the seriousness of
the offence. Also the depravity appears to be greater if one sins
frequently,” because evil habits are worse than evil acts.

From this we may see how far the Persian custom is by nature
right, which takes into consideration a man’s former life along with
[334] his crime.? This ought, to be sure, to have a place in the
case of those who, while not otherwise prone to evil, have suddenly
been carried away by some charm felt in sinning; but not in the
case of those who have changed the whole character of their life.
Regarding them God Himself, according to Ezekiel, says that no
account must be taken of their previous life. We may also apply to
them the words of Thucydides: ‘They are worthy of a twofold
penalty, because from good men they have become bad’; and also

1 See the notable passage in the words of Luke, in the excerpts of Xiphilinus from Dio Cassius
[LXXI. xxiv ff.].

2 [Diodorus Siculus, Selecizons, XXJ. xv]: ‘It 1s a human trait to have been at times ignorant of
what life requires ; but to err frequently in the same matters is the mark of one who has lost the power
of reason, for the more frequently we fall into sm the more worthy we become to receive a greater
punishment.’

+ Asinius Pollio [in Seneca, Suasoriae, VI. xxiv]: ‘ Judgement should be passed on a man according
to the general state of his life and character.’ Cicero, For Sulla [xxv. 69]: ‘In all things, judges,
which are serious and important, we must consider what any one has desired, planned, and done, not
from the crime itself, [358] but from the character of him who is accused.’

Chap. XX] On Punishmenis 407

what he has said in another place: ‘ Because it least of all became
them to sin.’

4. Consequently, the early Christian writers, in adjusting
punishments according to the Canons, very rightly desired that the
crime should not be considered by itself alone,! but with it the preced-
ing and subsequent life; as one may see from the Council of Ancyra
and other Councils.

But the enactment of a law against a particular crime also adds
a sort of special wickedness thereto. So Augustine teaches: ‘ The law
by its prohibition [. . .] renders all crimes doubly guilty ;* for it 1s not
a simple crime to do what is not only wrong but is also forbidden.’
According to Tacitus: ‘ If you desire what is not yet forbidden, you
may fear that it will be forbidden ; but if you transgress with impunity
what is prohibited there is no fear or sense of restraint remaining.’

XXXI.—Also the inclination of the sinner toward incentives to and deter-
rents from sinning, which 1s considered from various points of view

1. The fitness of the person, either to take into consideration
deterrent causes, or to receive incentive desires, is usually considered
to be the result of his bodily constitution, age, sex, education, and the
immediate circumstances of the act. For alike children, women, and
men of dull intellect and bad education, are not well able to appre-
ciate the distinction between just and unjust, lawful and unlawful.
Those too who suffer from an excess of bile are prone to anger, and
those who have an excess of blood are prone to lust; moreover,
youth leads to the latter, while old age tends to the former. Says
Andronicus of Rhodes: ‘ It appears that a natural inclination toward
what is bad provides a sort of defence for these acts, and renders the
crime more tolerable.’

Reflection upon a threatening evil increases fear, and pain that
is fresh and not yet assuaged fires one’s anger, so that they scarcely
permit reason to be heard. And the crimes that arise from such
impulses are deservedly less hateful than those which spring from
a desire for pleasure, both because this affects one less powerfully and
because it can be more easily deferred and can find for itself another
object without suffering harm.? As Aristotle says in his Nicomachean

* Canon of the Council of Ancyra, XXV. Chrysostom, On Second Corinthians, i [li. 7 = Homily
IV, iv]: ‘ Whence we learn, that in defining the limits of repentance we must have regard not only to
the nature of the sins but also to the intent and the character of the smners.’ The same author, in
the third book On the Priesthood [II. iv]: ‘ For we must not inflict the punishment solely with regard
to the measure of the sins. But we must also try to discover the intention of the one who has sinned.’

* Chrysostom well says [On Romans, Homily V, iv]: ‘ Here[...]he not only shows the equal right
and worth of the Jew and of the Greek, but also that the Jew is heavily burdened by the gift of the
law.’ Then [Homily V, iii]: ‘For he who has received the fuller instruction deserves the greater
penalty if he transgresses the law.’

* Chrysostom, On Galaitans [v. 12]: ‘Lust seeks mere sexual gratification, but not with any special
person.” Tertullian, To his Wefe, Book II [II.i]: ‘For in proportion as continence, which ministers to

L1l2

III Asvii?.

Romans,
VL, 13

On the
True Reli-
gion, V1
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Annals,
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On Nico-
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VII. x.

FVII. vi]

VIE +.

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(XXIV
105 ]

498 On the Law of War and Peace [Book II

Ethics, Book VII: ‘ Anger and severity are more natural than the
desires for excessive and unnecessary things.’

2. We must in fact absolutely adopt this point of view, that
the more the judgement of a mind that can choose is restricted, and
the more this restriction is due to natural causes, the less the offence
that iscommitted. According to Aristotle in the book cited: ‘ Rather
should we call intemperate the man who, without suffering from
desire, or suffering but slightly, pursues excesses and shuns moderate
pains, than he who does so under the influence of strong passion.
For what are we to think the former would do if he should be in-
fluenced by youthful desires or severe pain along with the lack of
necessities ?’ With this agree the words of Antiphanes :

He who when rich yet does act wickedly,
What think you he would fail to do, were he but poor,

[335] and what we read everywhere in comedy about the loves of
old men.
Accordingly, for these reasons we must estimate the desert which
punishment ought not to exceed.

XXXII.—The desert of punishment may be extended to include a greater
harm than the sinner bas actually infltcted. The reasons therefor

1. Further, we must hold that the teaching of the Pythagoreans
that justice is ‘ suffering in return for suffering ’ *—that is, the suffering
of the punishment equalling the suffering of the wrongs—ought not
to be taken in the sense that he who has injured another with intent
and without reasons that sensibly diminish his guilt ought only to
suffer the equivalent of the harm he has wrought and nothing more.
That this is not so is shown in fact by that law which is the most
perfect example of all laws, when it provides that thefts are to be
atoned for by fourfold or fivefold restitution. In Attic law, again,
a thief, besides the condemnation to double damages,®? was kept in
prison for some days, as Demosthenes informs us in his speech 4gainst
Limocrates.

widowhood, is difficult, so it may seem pardonable if it 1s not maintained; for pardon is readily granted
in difficult things. However, in proportion as it is easy to wed in the Lord, seeing that it is within
our power, the more blameworthy it is not to observe what you are able.’ And soon after [II. iii]:
‘The more it was within one’s power to avoid sin, the more is he burdened with the crime of obstinacy.’

See also Marcus Aurelius, in the passage just cited [Meddiations, II. x], where he names Theophras-
tus as his authority.

1 Chrysostom, On Providence, IV [Oration V, end]: ‘ Whenever you see a rich man who is unjust,
grasping and rapacious, pity him especially for this, since he does these things because he is rich.
For by reason of this he will pay a greater penalty.’

* ‘Suffering the same thing,’ as Harmenopulus says [Prompiuartum, I. li. 34].

* There is an allusion to this in Revelation, xviii. 6: ‘ Restore twofold.’ Hercules compelled the
Minyans, who had unjustly exacted tribute from the Thebans, to restore to the latter double the
tribute; Apollodorus, Beok II [TI. iv. x1].

Chap. XX] On Punishments 499

‘The laws ’, says Ambrose, ‘ order that those things which have
been taken away from anyone with injury to the person or the thing
itself shall be restored with interest, so that either they may deter
the thief from taking them by the punishment provided, or recover
the loss by the fine.’ According to Aristides in his second speech Ox
Leuctra: ‘Those who follow up their wrongs in court are allowed by
the law to inflict upon those who have wronged them, in the way of
punishment, more than they have suffered.’ Seneca, speaking of the
judgement after this life, says :

Our [your] sins are weighed
With heavier measure.

2. Among the peoples of India,1 as Strabo notes, he who had
maimed another, in addition to suffering retaliation, was punished
by the loss of a hand. And in the Magna Moralia attributed to
Aristotle we read: ‘It is not just that one, who has struck out
another’s eye, should only have his struck out in turn, but he should
suffer something more.’ The reason is that it is not fair that the
danger to the innocent and the guilty should be equal, as Philo?
rightly proves in discussing the punishment of homicide.

This we can judge also from the fact that certain unaccomplished
crimes, which are accordingly less heinous than those which have been
accomplished,* cause an injury equal to the intent, as is shown in the
Hebraic law of false witness,* and in the Roman law concerning one
who goes about armed for the purpose of killing a man. Thereupon
it follows that a heavier punishment answers to crimes that have been
executed ; but since there is no punishment heavier than death, and
this can be inflicted only once, as Philo notes in the passage referred
to above, punishment necessarily stops with this, nevertheless with
the occasional addition of torture, as the crime may deserve.

XXXITI.—Rejection of the idea of a harmonic proportion in punishments

However, we must take into consideration the extent of the
punishment, not only by itself but in relation to the one who suffers it.
For the fine that will burden a poor man will not burden one who is
rich; and to a man of no repute ignominy will be a trifling harm,
while for a man of consequence it will be serious.

* Nicholas of Damascus has noted that among other Indian peoples a thief was punished by death
[frag. 34, p. 150, edit. Dindorf].

” On Special Laws, Book II [IT. xv].

* Phny [Natural History, VILL. xvi] writes of the lion: ‘ When he has been wounded he recognizes
with wonderful keenness the one who has struck him, and seeks him out, no matter how many
surround him. However he seizes and strikes down, but does not wound, one who has hurled a spear
but failed to strike him.’

* Also concerning one who has falsely accused his wife of adultery in order to secure her dowry;
Deuteronomy, xxii. 19. And concerning one who has unjustly brought any one into court on other
grounds, claiming another’s property for himself; Exodus, xxii. 9.

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[Letters,
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500 Ow the Law of War and Peace [Book II

The Roman law often makes use of this kind of difference. From
that Bodin built up his harmonic proportion; although in reality
we have here a simple proportion like a numerical equation, between
the desert and the punishment, just as in contracts which set goods
over against money, although the same goods have now more value,
now less, in the same way as money. But we must admit that in the
Roman law this is not done ‘ without regard to persons’, that is not
without too much regard to persons and qualities extraneous to the
fact. This fault is always completely absent from the Law of Moses.
Such, as we have said, is the intrinsic measure of punishment.

XXXIV .—Punishment may be mitigated on the ground of regard for

others, unless a greater regard for others opposes

But within the conceded limits [336] regard for him who is
punished tends to exact the minimum penalty, unless a more just regard
for the greater number urges a contrary course for an extrinsic reason.
This reason is sometimes the great danger from him who has sinned,
but more often the need of an example. This need, moreover,
usually has its origin in the general inducements to sin, which cannot
be checked without sharp remedies. Of these inducements the
strongest are habit and opportunity.

XXXV.—How the opportunity to commtt sin may urge to its punishment ;
also how the habit of sinning may urge to the punishment of the sin
or dissuade from tt

Because of the opportunity, the divine law given to the Jews
punished more severely a theft committed in the field than one in
the house * (Exodus, xxii. 1 and 9). Justin, writing of the Scythians,
says: “Among them no crime is considered more serious than theft,
for, if stealing were permitted, what could they hold safe, seeing that
they keep their flocks and herds without the protection of roof and
walls?’ In Aristotle’s Problems, section xxix, we find this similar
statement: ‘The lawgiver, considering that the owners were not
able to protect their property in these places,? established the law
as a guard,’

Although the habitual performance of an act detracts somewhat
from its guilt (‘ Not without reason’, says Pliny, ‘ did he pardon an
act that was forbidden indeed, but yet habitual’), still from one point

[359] * See Maimonides, Guide of ihe Perplexed, iii. 41. Cicero, For Sextus Roscrus Amerinus
[xl. 116]: ‘And cognizance must be taken especially of those crimes which it is most difficult to guard
inst.
? The reference is to the public baths. At Athens those committing theft in the baths were
punished with death if the damage was greater than ten drachmas; Demosthenes, Agaznst Timocrates
[cxiv]. See also Digest, XLVII. xvii. x.

On Punishments 501

Chap. XX]

of view it requires severity in the punishment. For, as Saturninus
says, ‘ When very many disturb the peace we must make an example’.
Now in passing judgements we must aim at leniency, but in framing
laws at severity, taking due account of the time when the statutes or
the judgements are made known; because the advantage derived
from punishment is considered more in the generality with which the
statutes deal, while the guilt varies in individual cases.

XXXVI—T he use of clemency in mitigating punishments

1. A second aspect of clemency, moreover, is to be found in
what we have said, that, where great and pressing grounds for punish-
ment are lacking, we should be the more ready to mitigate the
punishment ; its first aspect we have held to consist in the complete
suspension of punishment. ‘ Since an exact balance is difficult,’ said
Seneca, ‘ whatever is in excess should weigh on the side of humanity.’
And in another passage: ‘ Let him execute the punishment, if he can
with safety, but if not, let him moderate it.’

Diodorus Siculus, too, praises an Egyptian king because he
imposed ‘penalties less than the deserts’. Capitolinus says of
Marcus Aurelius: ‘This was a habit of the Emperor, to visit all
crimes with a lighter punishment than that provided by the laws.’
Isaeus the orator also said that it was necessary that the laws be drawn
up with severity, but that punishments milder than the laws should
be exacted.2, And we have the advice of Isocrates: ‘ Punishments
should be made less than the crimes deserve.’

2. Augustine* thus admonishes the Count Marcellinus of
his duty :

I feel the greatest anxiety, lest perchance your Exalted Highness should think that
these men are to be punished with such a strict application of the laws that they should
suffer punishments the equivalent of their crimes. And so in these two letters | beseech

you by the faith which you have in Christ, through the mercy of our Lord himself, not
to do this nor to permit it to be done at all.

In another passage he says :

Divine reproof has terrified even the very avengers of crime, although in this duty
they are not prompted by their own anger but are servants of the laws, and avengers not
of their own wrongs but of the wrongs of others, after examination, as befits good judges.

1 [The Emperor] Justin II, writing to the Huns, says: ‘It is a custom among the Romans not to
demand punishment of equal severity with the injuries’ (Menander Protector, frag. 28, p. 64, edit.
Dindorf].

2 The Emperor Henry wished to signify this by assuming the device of a peach, with the motto:
Subacre. The king [Theodoric], in Cassiodorus, [Variae,] XI. xl, says: ‘If sometimes we are just at
a risk to ourselves, it is always with secunty that we pardon.’

3 Letters, clix [cxxxili. 1], which is cited in the Decretum, IJ. xxili. 5.1. See, if you wish, the letter
of Macedonius to Augustine and the latter’s reply; Letters, liii and liv [clii and cliti]. Also what is said
of the Emperor Theodosius the Younger in the excerpts of John of Antioch, Excerpta Paresciana
[p- 850]. Macedonius writes to Augustine: ‘It 1s the duty of a priest to mntercede for the accused ’
[Augustine, Letters, clu. 2].

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502 On the Law of War and Peace [Book II

Therefore they reflect on the mercy of God necessary to pardon their own sin, and do
not think that it is a guilty neglect of their duty if in some degree they act mercifully
toward those over whom they have the power of life and death which the laws confer.

XXXVII.—lWVhai the Fews and the Romans thought should be taken
into consideration in punishments 1s brought into relation with the
foregoing discusston

We hope that we have omitted nothing that would greatly
contribute to the understanding of this problem, which is sufficiently
difficult and obscure. For we have discussed in their proper place
the four things which Maimonides’ says we should take into chief
consideration in punishments: the greatness of the crime, that 1s of
the harm done, the frequency of such [337] crimes, the strength
of illicit desire, and the opportunity for the act.

We have also discussed the seven points which Saturninus treats
in a rather confused fashion in his consideration of punishments.
For the person of him who has done the wrong is of the greatest
importance in fitly judging the penalty, and the person of him who
suffers the wrong sometimes is of weight in estimating the greatness
of the guilt. The place of the wrongdoing usually contributes
a particular degree of guilt to the injustice,” or has a bearing also upon
the opportunity for the deed. According as the time was long or
short it increases or restricts freedom of judgement, at times also
reveals the depravity of the mind. The quality of the crime has to do
partly with the kinds of desires, and partly with the reasons which
should have deterred from sinning. The degree also must be taken
into consideration in relation with the desire. The outcome must be
viewed in relation to the deterrent reasons.

XXXVITI.—On war waged to inflict punishment

We have previously shown, and histories everywhere teach, that
wars are usually begun for the purpose of exacting punishment. But
very often this cause is joined with a second, the desire to make good
a loss, when the same act was both wicked and involved loss; and
from these two characteristics two separate obligations arise.

However, it is quite clear that war should not be undertaken for
every sort of crime. For even the vengeance of the laws, which is

1 Guide of the Perplexed, III. xh. Compare the Decreials, V. xi. 6.

* Philo, On Spectal Laws, I [I. xxxin]: ‘ For it is not the same thing to stnke one’s father and
a Stranger, or to abuse a magistrate and a private person, or to perform a prohibited act in profane and
m sacred locahties, at festivals, public gathenngs, or public religious celebrations.’

With this agrees Ulpian’s citation from Labeo, Digesi, XLVII. x. 7, § 8: ‘The wrong becomes
more wicked through the person, as when it is done to a magistrate, to a parent, or toa patron; through
the time, if at the games and in public view, for he says that there is the greatest difference whether an
injury has been done in the sight of the Roman people or in seclusion.’

Chap. XX] On Punshments 503
exercised in safety and only harms the guilty, does not follow upon
every wrong. As we have just now said, Sopater justly declares that
crimes which are of little importance and common should be passed

over and not avenged.

XXXIX.—By distinguishing various cases, it is explained whether
a war waged to punish wrongs that have been merely attempted 15 just

1. The saying of Cato in his speech for the Rhodians, that it is
not just that any one should be punished for a thing which he is
accused merely of having wrongly desired to do, was not badly urged
in this connexion ; for no decree of the people of Rhodes could in fact
be adduced, but only conjectures of changing intent. ‘The principle,
however, cannot be accepted as a universal proposition. For the will
which proceeds to external acts (we have said above that internal acts
are not punished by men) is usually liable to punishment. According
to Seneca the Father, in his Controverstes:1 ‘ Crimes are punished even
although they have not been carried to completion.’ ‘He who is
about to commit a wrong has already committed it,’ says the younger
Seneca.” Cicero in his speech For Aizlo said that not the outcome of
deeds but the purposes were punished by the laws.? There was also
a saying of Periander: ‘ Punish not only those who sin but also those
who intend to sin.’

On these grounds the Romans thought that they ought to wage
war with King Perseus, unless he should make amends in respect to
the plans which he had formed for waging war against the Roman
people, seeing that he had already gathered arms, troops, and a fleet.
This very point is rightly emphasized in the speech of the Rhodians
recorded in Livy, that neither in the customs nor in the laws of any
state is it provided that he who wishes his enemy to perish, assuming
that he has done nothing to bring this about, is condemned to capital
punishment.

2. But, on the other hand, not every wicked intention, which
has been revealed by some fact, gives an occasion for punishment.
For if all crimes that have been committed are not punished, much less
are all those which have been planned and initiated. In many cases
we may apply the saying of Cicero: ‘I do not know whether or not
it is enough for him who has done harm to repent of his wrong-

1 Excerpts, IV. vu.

* Also On Benefits, V. xiv: ‘A brigand is one even before he has soiled his hands, for the reason
that he is already armed to kill and has the intention of robbing and killing.’

Philo. On Special Laws, I [TI]. xv]: ‘We ought to class as homicides not merely those who
actually kill, but also those who do everything for the purpose of killing, either openly or secretly, even
if they have not yet committed their crime.’

° Valerius Maximus [VI. i. 8], speaking of Gnaeus Sergius Sulus who had been condemned for
promising money to a married woman: ‘ Not the action but the intent was taken into consideration,
and it was more to his disadvantage to have wished to sin than to his advantage not to have sinned.’

“Il xx
19.

Gellius,
VII. uu
138].

II xx.
18.]

On Anger,
IIT fI. un.
I}.

iv, 19.]
[Diog.
Laer.,

I. xeviu.]

Livy,
XLII
ixxx!

(XLV.
xxiv |

On Dures,
I [xi. 34).

x. Ig.

504 On the Law of War and Peace [Book II

doing.’ The law given to the Jews made no special provision against
many crimes begun against piety, or even against human life, without
premeditation; because it is easy to err in divine things which are
not clear to us, and the impulse of anger is not undeserving of pardon.

3. However, in the midst of so many opportunities for marriage,
to disturb the marriages of others, or in the case of a fair division
of property [338] to devise fraud whereby one might enrich himself
through the loss of another, was by no means tolerable. For although
the command ‘ Thou shalt not covet’, contained in the Decalogue,
is of wide meaning if you look at the object of the law, that is ‘ the
spiritual object’ (for the law desires all to be most pure even in mind),*
nevertheless the external command, ‘ the carnal injunction ’, so far as it
extends, refers to the movements of the mind which are revealed by
action. This is abundantly clear from the evangelist Mark who has
given that same command, ‘ Do not defraud ’, and that too after he
had previously enjoined, ‘Do not steal.” In this sense, in fact, the
Hebrew word and its Greek equivalent are found in Micah (ii. 2) and
elsewhere.

4. Crimes that have only been begun are therefore not to be
punished by armed force, unless the matter is serious, and has reached
a point where a certain damage has already followed from such action,
even if 1t is not yet that which was aimed at ; or at least great danger
has ensued, so that the punishment is joined either with a pre-
caution against future harm (about which we spoke above in the
chapter on Defence), or protects injured dignity, or checks a dangerous
example.

XL—A discussion whether kings and peoples may rightly wage war on
account of things done contrary to the law of nature, although not
against them or their subjects; with a refutation of the view that
the law of nature requires right of jurisdiction for the exaction of
punishment |

I. The fact must also be recognized that kings, and those who
possess rights equal to those kings, have the right of demanding
punishments not only on account of injuries committed against
themselves or their subjects, but also on account of injuries which
do not directly affect them but excessively violate the law of nature
or of nations in regard to any persons whatsoever. For liberty to
serve the interests of human society through punishments, which
originally, as we have said, rested with individuals, now after the

1 Chrysostom, On Romans, ui. 13, and vii, says much on this point [Homily VII and XII £.].

Chap. XX] On Punishments 505

organization of states and courts of law is in the hands of the highest
authorities, not, properly speaking, in so far as they rule over others
but in so far as they are themselves subject tono one. For subjection
has taken this right away from others.

Truly it is more honourable to avenge the wrongs of others
rather than one’s own, in the degree that in the case of one’s own
wrongs it is more to be feared that through a sense of personal suffering
one may exceed the proper limit or at least prejudice his mind.

2. And for this cause Hercules was famed by the ancients
because he freed from Antaeus, Busiris, Diomedes and like tyrants
the lands} which, as Seneca says, he traversed, not from a desire to
acquire but to protect, becoming, as Lysias points out, the bestower
of the greatest benefits upon men through his punishment of the
unjust. Diodorus Siculus speaks of him thus: ‘ By slaying lawless
men and arrogant despots he made the cities happy.’ In another
passage Diodorus said: ‘He traversed the world chastising the
unjust.’ Of the same hero Dio of Prusa said: ‘He punished wicked
men and overthrew the power of the haughty or transferred it to
others.’ Aristides in his Panathenaic Oration declares that Hercules
deserved to be elevated among the gods because of his espousal of the
common interest of the human race.

In like manner Theseus is praised because he removed the
robbers Sciron, Sinis, and Procrustes. Euripides in the Supplzants
represents him as speaking thus about himself :

Already throughout Greece my deeds to me
This name have given; scourge of the wicked I am called.?

Of him Valerius Maximus wrote: ‘ All that was anywhere monstrous
or criminal, he suppressed by the courage of his heart and the strength
of his right hand.’

3. So we do not doubt that wars are justly waged against those
who act with impiety towards their parents, like the Sogdianians
before Alexander taught them to abandon this form of barbarity ;
against those who feed on human flesh,’ from which custom, according

1 And seas. Philo, On the Embassy to Gaius [xi]: [360] ‘Hercules cleansed land and sea,
undertaking contests most necessary and most beneficial to all men, for the purpose of doing away
with injurious or harmful beings, among men and among animals.’

2 And there to the herald who says [line 574]:

Did thy father then beget thee as 2 match for all?

Theseus replies :

For the insolent at least; good deeds we do not punish.

Plutarch, in his Life of Theseus [Comparison of Theseus and Romulus, 1= 37]: ‘He freed Greece
of cruel tyrants,’ and ‘ Although having suffered no wrong himself he assailed wicked men on behalf

of others.’
3 Alexander taught the Scythians to give up this custom also [Plutarch, loc. cit.].

On Bene-
fiis, I. xiv
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On the Law of War and Peace [Book Il

500

to Diodorus, Hercules compelled the ancient Gauls to abstain ;+ and
against those who practise piracy. [339] Says Seneca: ‘Ifa man
does not attack my country, but yet is a heavy burden to his own, and
although separated from my people he afflicts his own, such debase-
ment of mind nevertheless cuts him off from us.’ Augustine says:
‘ They think that they should decree the commission of crimes of such
sort that if any state upon earth should decree them, or had decreed
them, it would deserve to be overthrown by a decree of the human
race.’

Regarding such barbarians, wild beasts rather than men, one
may rightly say what Aristotle wrongly said of the Persians, who were
in no way worse than the Greeks, that war against them was sanc-
tioned by nature; and what Isocrates said, in his Panathenatc Oration,
that the most just war is against savage beasts, the next against men
who are like beasts.

4. "Thus far we follow the opinion of Innocent, and others who
say that war may be waged upon those who sin against nature.”

The contrary view is held by Victoria, Vazquez, Azor, Molina,
and others, who in justification of war seem to demand that he who
undertakes it should have suffered injury either in his person or his state,
or that he should have jurisdiction over him who is attacked. For they
claim that the power of punishing is the proper effect of civil juris-
diction, while we hold that it also is derived from the law of nature;
this point we discussed at the beginning of the first book. And in
truth, if we accept the view of those from whom we differ, no enemy
will have the right to punish another, even after a war that has been
undertaken for another reason than that of inflicting punishment.
Nevertheless many persons admit this right, which is confirmed also
by the usage of all nations, not only after the conclusion of a war but
also while the war is still going on; and not on the basis of any civil
jurisdiction, but of that law of nature which existed before states
were organized, and is even now enforced, in places where men live
in family groups and not in states.

* See the statement of Dionysius of Halicarnassus [I. xxxviii] that Hercules abolished this and
many other customs, making no distinction in his benefits between Greeks and barbarians. The
equally great benefits of the Romans towards mankind are lauded by Pliny, [Natural History,] XXX. 1:
“One cannot adequately compute what a debt is owed to the Romans, who have done away with those
monstrous practices in which the slaughter of a man was considered a most sacred act, and to devour
him most healthful’ Add also what will be said in section 47 of this chapter.

Thus Justinian forbade the rulers of the Abasgi to castrate the male children of their subjects,
as Procopius, Gothte War, IV [IV. iit], and Zonaras, in the history of Leo, the Isaurian [XV. i], record.
The Incas, kings of Peru, forcibly compelled the neighbouring peoples, who did not listen to a warning,
to abstain from incest, from the mtercourse of male persons, from the eating of human flesh, and from
other crimes of that kind. And in this way they won for themselves an empire, the most just of all
that we have read of, except in its religion.

* See Joseph Acosta, De Procuranda Indorum Salute, II. iv.

Chap. XX] On Punishments 507

XLI.—The law of nature must be distinguished from widely current
national customs

But at this point certain precautions need to be stated.

First, national customs are not to be taken for the law of nature,
although they have been received on reasonable grounds among many
peoples. Of this type chiefly were the things which distinguished
the Persians from the Greeks, to which you may rightly apply the
saying of Plutarch: ‘To wish to impose civilization upon uncivilized
peoples is a pretext which may serve to conceal greed for what is
another’s.’

XLII.—The law of nature must be distinguished also from the Divine
law that 1s not voluntarily recognized by all

Second, we should not hastily class with the things forbidden by
nature those with regard to which this point is not sufficiently clear,
and which are rather prohibited by the law of the Divine Will. In
this class we may perhaps place unions not classed as marriages ! and
those which are called incestuous, as well as usury.

XLIII.—In the law of nature we must distinguish between what ts
evident and what ts not evident

1. Third, we should carefully distinguish between general
principles, as, for example, that one must live honourably, that is
according to reason, and certain principles akin to these, but so evident
that they do not admit of doubt, as that one must not seize what
belongs to another, and inferences; such inferences in some cases
easily gain recognition, as that, for example, accepting marriage we
cannot admit adultery,? but in other cases are not so easily accepted,
as the inference that vengeance which is satisfied with the pain of
another is wicked. Here we have almost the same thing as in mathe-
matics, where there are certain primary notions, or notions akin to
those that are primary, certain proofs which are at once recognized
and admitted, and certain others which are true indeed but not
evident to all.

2. ‘Therefore, just as in the case of municipal laws we excuse
those who lack knowledge or understanding of the laws, so also with
regard to the laws of nature it is right to pardon those who are ham-

1 Astenus, Bishop of Amasea: ‘Those who heed only the lawmakers of this world leave unre-
stricted freedom to lust,’ See the passage of Jerome, To Oceanus, cited in note to II. v. 9.

> Philo, On Joseph [ix], testifies that adultery is punished everywhere; Ulpian, that it is by
nature base, Digest, L. xvi. 42.

Lactantius, Epztome of the Divine Instttuies [xiv]: ‘ To ruin the married life of others is condemned
even by the common law of nations.’

[Pompe},
Ixx== p
656 E,!

Digest,
XLVITI.
Vv. 39- § 4.

Matiiew,
x 15;
Luke, 32!
47, 43.

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Justin,
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[vi. x].

On Seri,
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| lacitus,

annals, I.

Ixxni ]
[Gode, IV.
1.2]

On the Law of War and Peace [Book II

508

pered by weakness of their powers of reasoning or deficient education.
For as ignorance of the law, if it is unavoidable, cancels the sin, so
also, when it is combined with a certain degree of negligence, it lessens
the offence. [340] And for this reason Aristotle compared bar-
barians, who err through want of training in such things, to men
having desires corrupted by disease. Plutarch says that there are
certain ‘ diseases and sufferings of the mind which cause a man to lose
his natural character ’.

Finally, to avoid repeating often what I have said, we must
add this word of warning, that wars which are undertaken to inflict
punishment are under suspicion of being unjust, unless the crimes are
very atrocious and very evident, or there is some other coincident
reason. Perhaps Mithridates was not far wrong in saying of the
Romans: ‘ They assail not the faults of kings but the power and

authority of kings.’

1

4

XLIV.—IV’ hether war may be waged on account of crimes against God

1. Our order of treatment has brought us to the discussion of
crimes which are committed against God; for there is a dispute
whether war may be undertaken to avenge these. This question has
been treated at sufficient length by Covarruvias. But he, accepting
the position of others, thinks that the power to punish does not exist
apart from jurisdiction, properly so called. ‘This view we have
already rejected. Consequently, just as in the affairs of the Church
the bishops are said in some way to have been ‘ entrusted with the
care of the Universal Church ’,? so kings, in addition to the particular
care of their own state, are also burdened with a general responsibility
for human society.

A stronger argument for the view which denies that such wars
are just is this, that God is able to punish offences committed against
Himself, whence the sayings, ‘ The injuries of the gods are the care
of the gods,’ and ‘ perjury has a sufficient avenger in God’.

2. We must, however, recognize the fact that this same thing
may be said about other crimes as well. For without doubt God is
able to punish these also, and yet no one disputes that they are rightly
punished by men. But some will insist and say that other crimes are
punished by men in so far as other men are injured or endangered

1 Jerome, Against Jovrntanus, IT [IT. vi]: ‘Every people thinks that that which it has been
taught is the law of nature.’

* This is found in the Consitiuicons, which bear the name of Clement [VI. xiv]. Cyprian, Leiters,
xxx, says: ‘Forit becomes us all to keep watch for the body of the whole Church, whose limbs are
[361] scattered through each separate province.’ And, On the Unity of the Church [chap. v]: ‘ There
is one bishopric, of which each individual holds an integral part.
ces of this universal care are found m many p es of Cyprian; an especially notable
instance is in Leters, Ixvii. See in addition, Chrysostom, in the Prazse of St. Eustathtus [iii].

Chap. XX] On Punishments 509

thereby. But it must be noted, on the other hand, that men do not
only punish the sins which directly harm others but also those which
harm by their consequences, such as suicide, intercourse with animals,
and some other things.

3. Moreover religion, although it is in itself effective in winning
the favour of God, nevertheless has also in addition important effects
on human society. For not undeservedly does Plato call religion the
bulwark of authority and the laws and the bond of right training.
Plutarch in like manner calls it ‘the cement of all society and the
basis of legislation’. In the view of Philo ‘the worship of one God!
is an unfailing means of inspiring love and an indissoluble bond of
kindly good will’. Everything opposite flows from impiety :

Alas, the first cause of crime for weak men
Is ignorance of the nature of God.”

Plutarch says that every false belief in regard to divine matters is
harmful, and, if coupled with a disturbance of the soul, very harmful.
Iamblichus preserves a Pythagorean dictum: ‘ The knowledge of the
gods is virtue and wisdom and complete happiness.’ For these
reasons Chrysippus said that law is the queen of things divine and
human; Aristotle * held that among public obligations the chief was
that concerning divine things ; and to the Romans jurisprudence was
the knowledge of things divine and human. Philo thought that the art
of ruling consisted in ‘ the care of private, public, and sacred matters’.

4. All these things are to be taken into account not merely in any
one state, as when, in [341] Xenophon, Cyrus says that his subjects
will be more devoted to him the more they fear the gods, but also
in human society generally. ‘If piety is removed’, said Cicero,
‘with it go good faith and the friendly association of mankind, and
the one most excellent virtue, justice.’ In another place he says:
‘Justice arises when we fully understand what the godhead of our
supreme ruler and lord is, what his purpose, what his will.’

A clear proof of all this is that Epicurus, after having abolished
divine providence, left nothing of justice except the empty name,*

1 The same writer, On Courage [vii], says: ‘The highest and greatest cause of harmony is the
belief in one God, from which, as from a spring, there comes an indissoluble friendliness that binds
souls together.’ Moreover, Josephus, in the book Against Apion [II. xix], says: ‘For to hold one
and the same belief about God, and to have no differences in manner of life and customs, causes the
fairest concord in the minds of men.’

= So also Josephus, in the second book Agaznst Apion [II. xxxv], gives these reasons why many
states have been badly organized: ‘ Their lawgivers did not know from the beginning the true nature
of God, and, not reaching a clear knowledge of what they were able to comprehend, did not, in the
light of this, give another form to their constitution.’ See also the excellent passage that follows,

3 Justin Martyr, callmg upon the Emperors to take cognizance of these things, adds; ‘ And this
would be a truly royal task’ [A pology, II. 11].

Add what Covarruvias says, On Sext, V. ult. 2 [V. ult. 4, pt. 11], § 10.

4 Seneca, Letters, xcvii [xcvii. 15]: ‘Therein we differ from Epicurus, when he says that nothing
is just by nature, and that crimes are to be avoided because fear cannot be avoided.’

[A gains?
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510 On the Law of War and Peace [Book II

so that he could say it arose from agreement only and endured no
longer than the common advantage therefrom endured; that one
must then abstain from the things which are likely to injure another
solely through fear of punishment. His own remarkable words on
this point are found in Diogenes Laertius.

5. Aristotle also perceived this relation, and in his Polstzcs,
Book V, chapter xi, speaks thus of the king: ‘ For the people will be
less afraid of suffering anything unlawful from their prince if they
believe that he fears the gods.’ Galen, too, in the ninth book, speaking
of the precepts of Hippocrates and Plato, after saying that many
inquiries are conducted with regard to the earth and the nature of
the gods without any advantage to morality, recognizes that the
inquiry concerning the nature of providence is of the greatest advan-
tage alike to private and to public virtues. Homer also saw this, and
in the sixth and ninth books of the Odyssey contrasts with men who
are ‘insolent and fierce ’ those whose ‘ mind is god-fearing ’.

In like manner Justin, following Trogus, praises the justice of
the ancient Jews that was bound up with their religion;1 just as
Strabo calls the same Jews ‘truly pious and righteous’. Lactantius
says: ‘If then piety is a knowledge of God, and the sum of this
knowledge is His worship, then he who does not accept the religion
of God is ignorant of justice. For how can he know it who knows not
whence it comes?’ In another place, again: ‘ Justice 1s peculiar to
religion.’

6. Religion is of even greater use in that greater society than in
that of a single state. For in the latter the place of religion is taken
by the laws and the easy execution of the laws ; while on the contrary
in that larger community the enforcement of law is very difficult,
seeing that it can only be carried out by armed force, and the laws
are very few. Besides, these laws themselves receive their validity
chiefly from fear of the divine power; and for this reason those who
sin against the law of nations are everywhere said to transgress divine
law. Therefore, the Emperors have well said that religious corruption
affects all to their hurt.

XLV.—IW hat ideas of God are most generally accepted ; and how these

are indicated in the first commandments of the Decalogue

1. To penetrate more deeply into the whole matter, we must
observe that true religion, which is common to all ages, rests mainly
upon four principles. Of these the first is, that God is, and is One;
the second, that God is none of the things which are seen, but is

_ 3 Philo, On Abraham [xxxvit]: ‘ Piety and humanity are characteristics of the same nature, and
in the same person one observes both filial respect toward God and justice toward man.’

Chap. XX] On Punishments 511

something more exalted than these; the third, that God has a care
for human affairs, and judges them with the most righteous judge-
ments ; and the fourth, that the same God is the creator of all things
besides Himself. ‘These four principles are likewise set forth in the
commandments of the Decalogue.

2. For in the first commandment the oneness of God is openly
revealed ; in the second his invisible nature, for on this account it is
forbidden to make a likeness of him (Deuteronomy, iv. 12). As also
Antisthenes* said: ‘ He is not seen with the eyes, he is not like unto
anything, therefore no one can learn to know him from an image.’
Moreover, Philo said:? ‘It is impious to depict the Invisible One’
in painting or sculpture. Diodorus the Sicilian says of Moses: ‘ He
[342] set up no image ® because he did not believe that God was
of the likeness of men.’ According to Tacitus: ‘ The Jews recognize
but one divinity and that with the mind only. They treat as impious
those who fashion images of the gods out of perishable materials in
the likeness of men.’ Plutarch, indeed, gives this reason for Numa’s
removal of images from the temples*: ‘That it is not possible to
reach a conception of God except in thought.’

In the third commandment we perceive God’s knowledge and
care of human things, even of thoughts ; for this is the basis of oaths.
Since God is a witness even of the heart, He is invoked as an avenger
if any one should swear falsely, which very fact reveals both the justice
and the power of God. In the fourth commandment we see the
origin of the whole world with God as its creator, in memory of which
there was formerly instituted the Sabbath,® and this with a certain
peculiar sanctity above other rites. For if any one should transgress
other religious rites the punishment of the law was discretionary, as
in the case of forbidden foods; but if against the Sabbath, the
punishment was death. ‘The reason is that the violation of the
Sabbath, owing to the nature of its establishment, implied a denial
that the world was created by God. However, the creation of the
world by God declares both His goodness and wisdom, and His eternity
and power.

1 Cited by Clement of Alexandria [Proirepitcum, VI. 71]. From Antisthenes, Seneca in his
Natural Questions, VII. xxx, seems to have borrowed this: ‘He who arranges these things, who has
created, who has established all this, and placed it about himself, and is the greater and better part of
his own work, escapes the sight of our eyes, and must be seen with the mind alone.’

* King Agrippa says this in Philo [On the Embassy to Gatus, xxxvil].

* Dio Cassius, XXXVI [XXXVII. xvii]: ‘Neither had they any image in Jerusalem itself; for
they believed that God could not be seen nor defined in words.’ See also Strabo, XVI [XVI. il. 35].
v1 ‘ 1 this ordinance of Numa see also Dionysius of Halicarnassus [cf. Cyril, Against Julian,

. 193]-

® The author of the Responsa ad Orthodoxes, qu. Ixix [in Justin Martyr, Opera Spuria],
says: ‘Accordingly, to preserve among men the remembrance of the creation of the world, God
ordained to this end that the number seven in the Holy Scripture should be regarded as more honourable
than the rest.’ See also what precedes.

1569°27 Mm

Selections
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512 On the Law of War and Peace [Book II

3. Now from these speculative ideas arise opinions leading to
action, that God is to be honoured, to be loved, to be worshipped,
and also to be obeyed. Thus Aristotle has said that he who denies
that we must honour the deity or love our parents must be subdued
not by arguments but by punishment ; in another passage, that some
things are considered honourable in one place, others in another,
but that everywhere it is held honourable to worship the deity.
Moreover, the truth of the ideas which we have called speculative
can doubtless be shown also by arguments drawn from the nature
of things.

Among such arguments this is the strongest, that our senses
show that some things are made, but the things which are made lead
us absolutely to something that is not made. But because all persons
do not grasp this reason and others of a like nature it is enough to say
that in every age throughout all lands, with very few exceptions, men
have accepted these ideas; both those men who were too dull to
wish to deceive, and others who were too wise to be deceived. ‘This
agreement ' in so great a variety of laws and diversity in expressions
of opinions regarding other matters sufficiently reveals the tradition
that has been handed down to us from the beginning of the human
race and has never been conclusively refuted ; and that fact of itself
is sufficient to cause belief.

. These points which we have recalled concerning God were
brought together by Dio of Prusa when he said that we have one
‘conception ’, that is belief concerning God that is born with us and
brought out by reasoning, and another ‘ acquired’ by tradition. The
same is called by Plutarch ‘ an ancient belief, than which we can name
or discover no clearer proof, the common foundation established for
piety’. Said Aristotle: ‘ All men have a belief about the gods.’ And
with this Plato in his Laws, Book X [chapter iii], agrees.

1 Tertullian, Against Marcion [I. x], says: [362] ‘A consciousness of God is a dowry of the
mind, from the beginning.’ Diodorus Siculus in the fragments [Selecisons, XXIII. xi] speaks of ‘ a piety
that is from nature’.

Philo, On the Rule of One [On Monarchy, 1v], writes: ‘ Nothing that is a work of art arses by
chance. But the world is a work of the highest art, and bears witness that 1t has been made by one
most skilful in his craft and of the highest perfection. In this way arises the knowledge from which
we believe in the existence of God.’

Again Tertullian, Against Marcion, I [I. xviii]: ‘We hold that God must first be known from
nature, then reapprehended by teaching. By nature, that is, by His works; by teaching, that is,
from prophecy.’

Said Cyprian, On the Vanity of Idols [ix]: ‘ This is the height of wickedness, to refuse to recognize
Fim of whom you could not be ignorant.’ Julian, To Heraclitus [Against Heraclius ; Orations, VII.
209 C], declares: ‘ We all without teaching are convinced that there is some divinity, and that we must
look to this and strive toward it; and I beheve that our minds so look toward God, as things that see
toward the hght,’

Chap. XX] On Punishments 513

XLVI.—Those who first do violence to these common ideas may be
punished

I. Wherefore those are not free from blame who repudiate
these ideas, even if they are too dull-witted to be able to discover or
understand positive proofs thereof, since they have guides to the right
path, and the contrary view rests upon no good reasons.

Since, however, we are dealing with punishments, and indeed
punishments inflicted by men, we must introduce distinctions among
the ideas themselves and in the manner of departing from them.
These ideas, that there is a divinity (I exclude the question of there
being more than one) and that he has a care for the atfairs of men, are
in the highest degree universal, and are [343] absolutely necessary
to the establishment of religion, whether it be true or false. ‘ He
that cometh to God (that is, he who has religion ; for the Jews called
religion an approach unto God) must believe that He is, and that He
is the rewarder of them that seek after Him.’

2. In like manner Cicero said:

There are, and have been, philosophers who think that the gods take no care for the
affairs of men. But if their view is correct, what piety can there be, what holiness, what
religion? For all these things are to be rendered to the divinity of the gods with purity

and freedom from sin if they are perceived by them, and if there is something contributed
by the immortal gods to the human race.

So also Epictetus: ‘In piety toward the gods, know that this is the
essential thing, to hold right conceptions about them, as existing and
as directing the universe well and righteously.’ Aelian says that none
of the barbarians fell into atheism, but that they all declare that there
is a divinity and that he has care for us.*

Plutarch, in his On Alatiers of Common Knowledge, declares that
if we take away providence we also take away the idea of God, ‘ for
God must be conceived and thought of not only as immortal and
blessed, but as loving man and caring for him and benefiting him’.
Said Lactantius: ‘ Neither can any respect be owed to God if He
in no way aids him who worships Him, nor any fear if He is not angry
with him who does not worship.’ And in very truth to deny that
God exists, or to deny that He takes notice of human actions, if we
look to the moral effect, amounts to the same thing.

3. Wherefore, as though under the influence of necessity itself,
these two ideas have been preserved through so many ages, among
almost all the peoples of whom we have knowledge.” For this reason

1 Seneca, Letters, xcv [50]: ‘ The first thing in the worship of the gods is to believe in the gods;
the next, to attribute to them their majesty, to attribute to them their goodness, without which there
is no majesty.’

2 Seneca, Leiters, cxvii [6]: ‘Among other reasons, we have this for believing that the gods

Mm2

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514 On the Law of War and Peace [Book II

Pomponius incorporates the worship of God in the universal common
law; and, according to Xenophon, Socrates said that ‘to reverence
the gods ’ is a law which has authority among all men. So Cicero also
affirms both in his first book On the Nature of the Gods and in his
second book On Invention. Dio of Prusa in his twelfth Oration
calls it ‘a belief held by the whole human race in common, alike by
the Greeks and by the barbarians, necessary and implanted by nature
in every reasoning being’. A little further on he adds: ‘A belief
exceedingly strong and perpetual, beginning and remaining from all
time and among all peoples.’ Xenophon in the Symposium says that
both Greeks and barbarians believe this, that both the present and
the future are known to the gods.

4. I think, therefore, that those who first begin to abolish these
ideas may be restrained in the name of human society, to which they
do violence without a defensible reason ; just as they are regularly
restrained in well-organized states, as happened, we read, to Diagoras
of Melos and to the Epicureans,? who were banished from cities that
maintained good morals. Himerius the Sophist in the suit against
Epicurus said: ‘ Do you then demand punishment for a belief? No,
but for impiety. For it is allowable indeed to preach one’s beliefs,
but not to assail piety.’

XLVII.— But we may not punish others in like manner, as 1s shown by
an argument from the Hebratc law

1. Other ideas are not equally evident, as, for example, that
there are not more gods than one; that none of the things which
we see is God, neither the earth, nor the sky, nor the sun, nor the air ;
that the earth is not from all eternity nor even its matter, but that
they were made by God. Consequently [344] we see that the
knowledge of these things has disappeared among many peoples
through lapse of time, and is as it were extinct ; and the more easily
so because the laws gave less attention to these ideas, seeing that some
religion at any rate could exist without them.

2. The law of God itself was given to that people which the
Prophets, and also prodigies, in part seen and in part brought to them

exist, that in all men there is an mnate opinion with regard to the gods; and there is no people any-
where so far outcast from law and morality that they do not believe in some gods.’ Also, On Benefits,
IV. iv: ‘All mankind would not have united in this madness of addressing divinities that are deaf
and gods that are helpless,’ etc.

See also Plato, Proiagoras [x1i=p,. 322], and Laws, X [X. iii=p. 887 DE]; also the excellent
remarks of Iamblichus, On the Mysteries of the Egyptians, after the introduction, where he says that
it is as natural for a man to know there is a God as it is for a horse to neigh.

_ 7 Moxus, the Lydian, drowned all the inhabitants of the city of Crambus whom he had taken by
Siege, “as atheists’, seeing that they neither recognized nor worshipped any god; Nicholas of
Damascus, Excerpia Peiresciana [= frag. 18, pp. 19-20, edit. Dindorf].

Chap. XX] On Punishments 515

by the report of indubitable authority, had imbued with a knowledge
of these things neither obscure nor uncertain; and although this law
most strongly censures the worship of false gods, nevertheless it does
not punish with death all who are convicted of guilt in this matter,
but merely those whose cases present a peculiar circumstance. Such
is he who has first led others astray, Deuteronomy, xiii. 16; or the
city which begins to worship gods previously unknown, Deuteronomy,
Xil. 23; or he who worships the stars so that he abandons the whole
law and therefore the worship of the true God, Deuteronomy, xvii. 2,
which Paul calls ‘to serve the creature rather than the Creator ’,*
Larpevery TH KTioe apa Tov Krioavta; for the Greek word apa
here and elsewhere often has an exclusive force. Even among the
descendants of Esau this was at one time liable to punishment, as
we may see in fob, xxxi. 26,27. Such also is he who sacrificed his
children to Moloch, that is to Saturn (Leviticus, xx. 2).

3. Moreover, God did not judge that the Canaanites and the
neighbouring peoples which had formerly fallen into base superstitions
should be immediately punished, but only when they had increased
this iniquity by heinous crimes (Genesis, xv. 16). So also among other
peoples he excused the times of ignorance about the worship of false
deities (Acts, xvii. 38). Beyond doubt it was rightly said by Philo that
to each one his religion seems the best, since this is most often judged
not by reason but by affection. Not very dissimilar is the saying
of Cicero, that no one approves any philosophic system except that
which he himself follows. He adds that most men are held in
bondage before they are able to judge what is the best.

Just as those are worthy to be excused, and certainly not to
be punished by men, who, not having received any law revealed by
God, worship the powers of the stars or of other natural objects, or
spirits, either in images or in animals or in other things, or even
worship the souls of those who have been pre-eminent for their virtue
and their benefactions to the human race, or certain intelligences
without bodily form, especially if they themselves have not invented
such cults, nor deserted for them the worship of the supreme God,’
so we must class with the impious rather than with the erring those
who establish with divine honours the worship of evil spirits, whom
they know to be such, or of personified vices, or of men whose lives
were filled with crimes.

1 Philo On the Ten Commandments [xiii], speaks of such persons thus: ‘There are some who
go exceedingly far in impiety, not attributing any equal honour to God and to His works; for
upon the latter they bestow all honour that can be devised, but, not deeming that most universal
good worthy of any remembrance, they pass over the only thing that they ought to have remembered,
wilfully wretched, bringing down upon themselves the oblivion they have sought.’ Maimonides,
Guide of the Perplexed, III. xli, also interprets thus the passage of Deuteronomy.

4 Thus the Jews allowed in the Temple victims offered by the kings of Egypt, by Augustus, and
by Tiberius. This is vouched for by Josephus and by Philo [Ox the Embassy to Gaius, xl].

xl, I
and 6]

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Decretum,
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516 On the Lau of War and Peace [Book II

To be classed as impious also are those who worship gods
with the shedding of innocent blood. For compelling the Cartha-
ginians to abstain from this practice both Darius,” king of the Persians,
and Gelon, tyrant of Syracuse, have won renown. Plutarch also
records that the Romans once intended to punish some barbarians,
who sacrificed human victims to their gods, but did no harm to them
when they defended themselves on the ground of the antiquity of
this custom ; and only forbade them to do the like in future.

XLVIII.—W ars cannot justly be waged against those who are unwilling
to accept the Christian religion

1. What shall we say of those wars that are waged against
certain peoples for the reason that they have refused to embrace the
Christian religion when proffered to them ? I shall not discuss here
whether the religion proffered was such as it ought to be, or whether
it was proffered in the manner in which it ought. Let us grant that
it was; then we say that two things must be taken into account.

The first is that the truth of the Christian religion, in so far as
it makes a considerable addition to natural and primitive religion,
cannot be proven by purely [345] natural arguments, but rests upon
the history both of the resurrection of Christ and of the miracles per-
formed by Him and by His Apostles. ‘This is a question of fact, proven
long ago by irrefutable testimonies, and of fact already very ancient.
Whence it results that this doctrine cannot be deeply received in the
mind of those who hear it now for the first time, unless God secretly
lends His aid. This aid, when given to any persons, is not given as a
reward of any work; so that, if it is denied or granted less generously to
any, this occurs for reasons that are not unjust indeed but are frequently
unknown to us, and hence not punishable by the judgement of man.
Here applies the canon of the Council of Toledo: ‘ The holy synod
ordains that no one should be constrained to believe by force.” For
God takes pity upon whom he wishes, and hardens whom he wishes.’
For it is the usage of the Sacred Writings to assign the divine will as
a cause for those things whose causes escape our notice.®

2. The second point to be considered is this, that Christ as the
author of the new law desired that absolutely no one should be
induced to receive His law by punishments in this life, or by fear

1 The son of Hystaspes, and father of Xerxes. Cf. II. xx. rz [II. xx. 40], above.
* So Josephus [Zsfe, xxiii] thinks that ‘each man should worship God from his own choice, but
not from compulsion’.
* [363] Servius, On the Aeneid, IIT [III, hme 2], says: ‘ As often as the reason or the basis of
udgement 1s not clear, then there is introduced “‘ It seemed good to the Gods”’.’ Similarly, Donatus,

(On Terence’s] Eunuch, V.ii. 36=875. Abrabanel observes that the Hebrew word yen is used in this
sense.

Chap. XX] On Punishments 517

thereof * (Romans, viii. 15 ; Hebrews, ii. 15; Fobn, vi. 67; Luke, ix.
543 ALatthew, xiii. 24). In this sense the saying of Tertullian is most
true: ‘ The new law does not avenge itself with the avenging sword.’
In the ancient book called the Constitutions of Clement, it is said of
Christ : ‘He has set free man’s power of judgement, not sentencing
him to death that is temporal, but calling him to account for this in
another existence.’ Said Athanasius:* ‘The Lord, not applying
compulsion, but leaving to the will its freedom, to said indeed all
publicly, “If any one wishes to come after me”; to the Apostles
however, “ Do ye wish to depart also?” ’® Chrysostom, commenting
on this same passage of John, says: ‘ He asks, “‘ Do ye wish to depart
also”’, which is the saying of one who has removed all constraint
and obligation.’

3- ‘This view is not inconsistent with the fact that in the parable
of the wedding it is ordered that some be compelled to come in,
Luke, xiv. 23. For just as in the parable itself the word ‘ compel’
indicates the perseverance of the summoner,‘ so it does in the applica-
tion also, and in this sense a word of like meaning is employed in
Luke, xxiv. 29, as well as in Matthew, xiv. 22; Mark, vi. 45; and
Galatians, ii. 14. Procopius, in a passage of his Secret History, informs
us that the plan of Justinian,® which led to the conversion of the
Samaritans to Christianity by force and threats, was criticized by men
of wisdom. He recounts also the disadvantages which ensued from
this course, as you may read in his work.

XLIX.—Wears are justly waged against those who treat Christians with
cruelty for the sake of their religion alone

I. Those who subject them that teach or profess Christianity
to punishment for this cause certainly act against the dictates of
reason itself. For there is nothing in the Christian teaching (here I am

1 Gregory Nazianzen discusses this in the discourse Cum assumptus est a paire; also Bede,
[Ecclestastecal History,} I. xxvi.

Isidore says of King Sisebut : ‘ Who at the beginning of his reign by influencing the Jews toward
Christianity showed a zeal for God indeed. but not according to knowledge; for he compelled by his
power those whom he should have called to the faith by reason.’ Roderic has copied this into his
History, II. xiii. On the same charge Osorius and Mariana accuse subsequent kings in Spain; see
Mariana, XXVI. xiv [XXVI. xiii] and XXVTII. v.

* Letter to the Monks [I=p. 855 a].

* Cyprian, Lefiers, lv [lv. 7]: ‘Turning to His Apostles He said: “Do ye wish togo also?” Clearly
respecting the law, by which a man who is left to his own freedom, and resting upon his own judgement,
of his own accord seeks for himself death or salvation.’

* Cyprian, On the Vanity of Idols [xiv], having this passage in mind, says: ‘ The disciples scattered
throughout the world, at the bidding of their Master and God, gave forth the precepts of God for
salvation, led men from their wandering in darkness to the way of light, and gave eyes to the blind
and ignorant for the recognition of the truth. And that the proving might not lack seriousness, and
that their confession of Christ be not a matter of pleasure, they are tried by tortures, by cructfiixions,
by many kinds of punishments.’ ;

5 See the letter of Theodahad to the same Justinian in Cassiodorus, [Variae,] X. xxvi.

"VO OXEx.’

(riomily
XLVII.
Lil |

[ Letters,
X. Xcvi j

Tertullian,
Apology,
1t1, and
Against
the
Nations, |
1v.

Thomas
‘Aquinas],
TT. 1i. 108.

518 On the Law of War and Peace [Book IT

dealing with this by itself, and not with any impurities mingled there-
with) which is injurious to human society, or rather, nothing which
is not beneficial to it. The facts speak for themselves, and those not
of the faith are obliged to recognize them. Pliny says that the
Christians were bound by a mutual oath not to commit theft or
robbery, and not to break faith. Ammianus‘ says that this religion
teaches nothing but what is mild and just. And it was a common
saying, ‘ Gaius Sejus is a good man, excepting that he is a Christian’.

Nor can we accept as an excuse for persecution that all new things
are to be distrusted, especially gatherings of men. For we ought not
to fear doctrines however new, provided that they lead to all honour-
able things and to an exhibition of obedience to those in authority ;
nor should we mistrust meetings of good men, and [346] of those
who do not seek concealment unless they are forced to. Here I may
fitly apply what Philo? records that Augustus said of the meetings
of the Jews, that they were not drunken revels or gatherings to disturb
the peace, but schools of virtue.

2. Those who show cruelty to such persons are themselves in
the condition where they may be punished with justice, as Thomas
Aquinas also thinks. And for this reason Constantine waged war on
Licinius,? and other emperors on the Persians ; * although these wars
were directed rather to the defence of the innocent, which we shall
discuss below, than to the exaction of punishment.

L.—W ars may not be justly waged against those who err in the inter-
pretation of the Divine law; as is proven by authorities and
examples

1. Likewise those who oppress with punishment persons that
accept the law of Christ as true, but who are in doubt or error on
some points which are either outside the law or appear to have an

+ [Ammianus, XXII. xi. 5-] The same author, indeed, calls the Christian religion pure and
simple [XCXI. xvi. 18]. Zosimus [II. xxix], himself a pagan, said: ‘ The promise of the Christian faith
is a release from every sin and impiety.’ Pagan writers everywhere called the Christians a sect which
annoyed no one, as we learn from Tertullian, Scorpiace [i].

Justin Martyr in his Second Apology [I. xii] says: ‘We are your supporters and allies for the
peace of the whole world, because we teach that the wicked, or the avaricious, or the treacherous, or
the upright cannot escape the notice of God; and that each one proceeds to eternal punishment or
salvation according to the merit of his works.’

Amobius, Book IT [Agatnst the Heathen, IV. xxxvi], speaking of the gatherings of the Christians,
says: ‘In them they hear nothing but what makes them compassionate, gentle, reverent, modest,
chaSte, and ready to share their goods with all who are bound together by the tie of brotherhood.’

* On the Embassy to Gatus [xl]. Likewise in the book On Those Who Offer Sacrifice [xii] he
eloquently shows the great difference between the synagogues and pagan mysteries, Both passages
are worth reading. Josephus says something simular in his Against Apion, Book II.

* See Zonaras [XV. i]. A simular case occurs in Augustine, Letters, 1 [clxxxv. 7-28]: ‘ (Maximian,
Bishop of Bagai,) sought aid from a Christian emperor against the enemies of the Church, not so much
to avenge himself as to protect the Church entrusted to his care.’ This is cited in the Decretum, II.
xxii. 3 [II. xxii. 3. 2].

* [364] See Menander Protector [frag. 32 and 41, pp. 68 and 79, edit. Dindorf].

Chap. XX] On Punishments 519

ambiguous statement in the law and are variously explained by the
early Christians, act most wickedly. This is proven both by our
previous discussion and by the ancient conduct of the Jews. For
although they had a law which was supported by the punishments of
this life, they never subjected to punishment the Sadducees, who
rejected the doctrine of the Resurrection; a doctrine most true indeed,
but in that law revealed only obscurely and in involved phraseology
and metaphors.

2. What now shall we say if the error be more serious, and one
which may be easily refuted before impartial judges by sacred
authority, or by the agreement of ancient writers? Here we must take
into account also the great power of habitual opinion, and the degree
to which freedom of judgement is hampered by zeal for one’s own sect;
an evil, as Galen says, more incurable than any leprosy. On this point
Origen fitly says: ‘ It is easier for a man to change his habits in other
things, even if he should be most strongly attached to them, than
in matters of doctrine.?1 Remember also that the degree of guilt
in this matter depends upon the method of enlightenment and other
mental conditions, which it is not given to men fully to know.

3. Inthe view of Augustine ” a heretic is one who either creates
or follows new and false opinions for the sake of some temporal advan-
tage and especially for his own glory and pre-eminence.*® Let us listen
to Salvianus on the Arians:

They are heretics, but not knowingly ; in short they are heretics in our eyes, but not
in their own, for they consider themselves so thoroughly catholic, that they insult
us ourselves with the name of a base heresy. What therefore they are to us, this we are
to them. We are confident that they do wrong to the Divine generation, because they
say that the Son is less than the Father. They think that we do wrong to the Father,
because we believe that Father and Son are equal. The truth is on our side, but they
claim it is on theirs. The honour of God is with us, but they think that what they believe
in is the honour of the Divinity. They are undutiful, but to them this is the supreme
duty of religion. They are impious, but they think that this is true piety.

They err therefore, but they err with good intent,* not through hatred but through
love of God, believing that they honour and love the Lord. Although they have not the
true faith, yet they believe that this is the perfect love of God; and how they are to be
punished for this error of false belief on the Day of Judgement no one can know but

2 This is followed by Chrysostom, On First Cortnthtans, ii [Homily VII, vii]: ‘ Whenever a habit
arises in matters of belief, it becomes much more firmly established. For one could change everything
else more easily than the things which pertain to religion.’ ;

* On the Unthity of Belief [i]. The passage is cited in the Decretum, II. xxiv. 3 [IT. xxiv. 3. 28].
Augustine adds that he does not consider a heretic and a believer in heretical doctrines to be identical.
See also his Letters, clxii [xliii. 1]. Heresy is ‘ the madness of too obstinate a mind’ ; Code, I.i.2. —

* The writer of Responsa ad Orthodoxos, qu. iv [in Justin Martyr, Opera Spuria}, says: ‘It is
evident that all the sects have arisen from the love of fame or from the rivalry which animated their
founders.’ Chrysostom, On Galatians, v [V- 13], calls ‘ the desire for primacy the mother of heresies’.

‘ Agathias, Histortes, I [I. vii], having discussed the foolish superstitions of the Alemanni, says:
‘All who miss the truth deserve to be pitied rather than to be censured and should obtain the widest
pardon. For in truth they do not intentionally wander and go astray, but in their search for the good ;
but then, erring in their judgement, for the future they hold doggedly to the views once formed, of
whatever character these may be.’

‘Al gasnst
Celsus,
I iii}

[On the
Govern-
ment of
God, V.
11.]

(Coniva
Epistolar
Manichace:,
11 and 11 |

520 On the Law of War and Peace [Book IT

——=

the Judge! Theretore in the meantime, 1n my opinion, God shows patience towards
them because He sees that even 1f they do not believe aright they err through a devotion

to a pious beltef.

4. Regarding the Manicheans, let us listen to him who for
a long time was involved in their dull follies, Augustine :

Those rage against you, who know not with what labour the truth is found, and
with what difficulty errors are guarded against. Those rage against you, who know not
how rare and difficult a thing it is to conquer by the calmness of a pious mind the vain
imaginings of the flesh. Those rage against you, who know not with what difficulty
[347] the eye of the inner man is healed, so that he may be able to gaze upon his own
sun. [...] Those rage against you, who know not what groans and sighs it costs to be able
to know God in the smallest degree. Finally, those rage against you, who have been
deceived by no such error as they see deceives you. [...] But I cannot rage against you at
all, you whom now I should bear with just as with myself at that time, and in dealing with
whom I should manifest such patience as those nearest me showed to me when, mad and
blind, I went astray in your doctrine.

5. Athanasius, in his Letter to the Monks, bitterly assails the
Arian heresy * because the Arians first used the power of the courts
against their adversaries, and strove to draw to themselves by vio-
lence, scourging, and imprisonment those whom they could not
persuade by argument. ‘And in this way’, he says, ‘ they reveal
themselves as being neither pious nor worshippers of God,’ referring,
unless [ am mistaken, to what we read in Galatians, iv. 29.3

Hilarius, in his address to Constantius, expresses similar views.
Long ago in Gaul* the judgement of the Church condemned the
bishops who had seen to it that the Priscillians should be punished
with the sword; and in the East the Synod, which had sanctioned

1 Chrysostom says, Homily [IV], Agarnst Those Whe Anathemaiize: ‘That which is hidden the
Judge of the ages alone shall judge without penl, who alone knows both the measure of knowledge and
the amount of faith. For tell me, I beseech you, whence do we know with what words each will accuse
or defend himself on that day when God shall judge the hidden things of men ? Verily His judgements
are inscrutable, and His ways past finding out.’

* Not undeservedly do we detest those who introduced such a bad precedent among the Christians.
See their cruel deeds in Eusebius, On the Life of Constantine, I. v. 38, and Socrates, IV. xxix ; Procopius,
on Hunerich, Vandalie War, I [I. viii) and on Amalarich, Gothze War, I [I. x1ii] ; and Victor Utunensis
[Victor Vitensis, Persecution of the Vandals, II. 1].

Epiphanius says of the Semi-Arians: ‘They persecute those who teach the truth, and they do
not confute them by arguments, but subject the true believers to hatreds, to wars, and to slaughter.
For not in one city and one country only have they wrought this destruction, but m many.’ Of such
occurrences Gregory, Bishop of Rome [Gregory the Great, Letters, III. xi. 56], wrote to the Bishop of
Constantinople: [365] ‘ This is a new and unheard-of preaching, which exacts beliefs by blows.’

° On this passage see Jerome, cited in the Decretum, ft. Xxiii. 4. 13.

* Sulpicius Severus [II. xlvii] says: ‘Then, however, Idacius and Ithacius pressed on more
sharply, thinking that the evil could be checked at its outset; but unwisely they approached the
Secular judges, in order that the heretics might be driven from the cities by edicts and executions.’
Then: ‘ There followed as accusers the bishops Idacius and Ithacius, whose zeal in crushing the heretics
I would not censure had they not striven with an unbecoming desire to conquer. But in my opinion
at any rate both defendants and accusers alike are censurable’ [II. I]. Afterwards: ‘ Martin, appointed
at Tréves, ceased not to urge Ithacius to desist from his accusations; to beseech Maximus to abstain
from shedding the blood of the unfortunate, on the ground that it was enough and more than enough
to banish from the churches the heretics who were condemned by the decree of the bishops.’ See also
what follows.

Chap. XX] On Punishments 921

the burning of Bogomil, was condemned. Plato wisely said that
the punishment of the erring is: to be taught.

LI—But war may justly be waged against those who show imptety
toward the gods they believe in

1. More justly are those punished who are irreverent and irre-
ligious toward the gods in whom they believe.” This cause in fact
among others was alleged for the Peloponnesian War between the
Athenians and the Lacedaemonians, and by Philip of Macedon against
the Phocians, concerning whose sacrilege Justin said: ‘ This had to be
expiated by the forces of the whole world.’ Jerome wrote: * As long
as the vessels (of the Jews) were in the temple of the idol of Babylon,
God was not angry (for they seemed to have dedicated the property
of God according to a base superstition indeed, but yet to divine
worship), but after they desecrated divine things for the use of men
punishment followed immediately upon the sacrilege.’

Beyond doubt Augustine thought that the Empire of the Romans
was increased by God because they had at heart a religion, although
a false one; and, as Lactantius says, they sought after the supreme
duty of man, in intent if not in fact.

2. We have said also above that, whatever the divinities which
are so considered may be, perjury against them is avenged by the true
Divinity. Says Seneca: ‘ He is punished because he acted as towards
God ; his belief subjects him to the punishment.’ Thus I understand
also that other saying of Seneca: ‘ The punishment for the desecration
of religion varies in different places; but everywhere there is some
punishment.’ In fact Plato appoints the death penalty for those who
violate religion.

1 Seneca says in a tragedy [Hercules Raging, 12377] :
Who has ever given to error the name of guilt?

The same author, Ox Anger, I. xiv: ‘A wise man does not hate those who err; otherwise he will
hate himself,’ Says Marcus Aurelius, [IX [IX. x]: ‘Correct me, if you can. But if not, remember
that gentleness was given you for this purpose ; and even the gods are gentle with such persons.’

Chrysostom, On Ephesians, iv. 17 [Homily XIII, i], says: ‘He who is ignorant should not be
abused or accused, but it is right that he should lear what he is ignorant of.’ Ammianus Marcellinus,
Book XXX [XXX. ix. 5], praises Valentinian in these words: ‘ He disturbed no one, neither ordered
that this or that should be worshipped ; he did not, through threatening prohibitions, bend the neck
of his subjects to adore what he himself worshipped, but left these matters undisturbed as he found
them.’
= See on this point the excellent remarks of Cyril, in his book Against Julian, v and vi. According
to Plutarch, Solon [xi=p. 83 F], on the advice of Solon, the Delphic Amphictyony attacked the people
of Cirrha, because they had done violence to the temple at Delphi. So also those who falsely assume
the name of prophet are justly punished ; see Agathias, V [V. v].

“Republee,
I xt;

Thue , I
"CXXVL
Diod ,
AVI CIR,
VIII iu
6',

(On
Danvel,
Vv. 4,
chap vi.]

City of
God, V
X11}
[Divine
Institutes,
TT uu. 14.)

TIT. xu.
I2.]

On Bene-
fits, VII.
Vii.

On Bene-
fis, II
Vi.
Lau's, X
[xv].

(II. xvii.
6.]

CHAPTER XXI
ON THE SHARING OF PUNISHMENTS

I.—How punishment may pass to those who have shared tn the crime

[366] 1. WHeENeveER question arises in regard to the sharing of
punishment, the question concerns either those who are accessories
in the wrong,! or other persons.

Those who are accessories in the wrong are punished not so much
for another’s as for their own misdeed. Who these are may be seen
from our previous discussion of damage unjustly inflicted. In fact
one comes to participation in a wrong in almost the same way as to
participation in the infliction of injury. Yet where a liability for
damages arises there is not always a wrong, but only when a more
notable evidence of evil intent is at hand; for any sort of fault
may frequently be sufficient to give rise to a liability for damages
inflicted.

2. ‘Therefore, those who order a wicked act, or who grant to it
the necessary consent,’ or who aid it,? or who furnish asylum,* or
those who in any other way share in the crime itself ; those who give
advice,® who praise, or approve ;* those who do not forbid such an
act although bound by law properly so called to forbid it,’ or who
do not bring aid to the injured although bound to do so by the same
law ; those who do not dissuade when they ought to dissuade; those

1 Tertullian says, On the Resurrectton of the Flesh [chap. xvi]: ‘ For they will say that servants
and associates have the choice of serving and allying themselves, and have the power to exercise their
will either with regard to other men or with regard to themselves. Therefore they deserve to share
the deserts of the authors of crime, whom they have aided of their own accord.’

2 ‘Saul stoned with the hands of all,’ Augustine, Sermones de Sancits, V.iv [I. iv=Appendix, ccxv.
4}. Som tning similar occurs in I. ni [ = Appendix cexv. 3] on the same subject, and in XIV [ = Appendix,

xxix].

* Actively. See Iusistutes, [V. i. 11, and the Edict of Theodorte, chap. cxx.

4 Jerome, On the Parables [xxix], says: ‘ Not the thief alone is guilty, but he also who, although
cognizant of the theft, does not reveal it to the owner who seeks his goods.’

Chrysostom, On the Statues, XIV [XIV. i]: ‘ For not only perjurers, but also those who know of
the perjury and conceal it, share m the crime.

5 See the citations from the Institutes and the Edict of Theodorie already given. Androcides
[Andocides], speaking of the Attic law [On the Mysteries, xciv], says: ‘He who formed the plan is not
less responsible than he whose hand did the thing.’ Aristotle, nm the Poetics, chapter xvii [Rhetoric,
I. vii}: ‘For it would not have been done without previous counsel.’

§ Said Chrysostom, On Romans, i, end [Homily V, i]: ‘ For he who praises a sin is worse than he
who has sinned.’ He who is present and encourages a wrong-doer is treated as a wrong-doer himself
by the Lombardic Law, I.ix.25. See our citations from Philo and Josephus on II. xxi. 17, below [p. 544].

7 Chrysostom, Against the Jews, I [IV. vii], says: ‘ Just as both those who steal and those who
are able to prevent them, but fail to do so, pay the same penalty.’ The same author, On Second
Corinthtans, vii [vil. 7=Homily XIV, iii], declares that he who prevents a sick man from being healed
is considered as responsible as if he had wounded him.

522

Chap. XXI] On the Sharing of Punishments 523

who conceal the fact which they are bound by some law to make
known—all these may be punished, if there is in them evil intent
sufficient to deserve punishment, according to the discussion which
immediately precedes.

Il.—A community, or its rulers, may be held responsible for the crime
of a subject uf they know of tt and do not prevent it when they could
and should prevent it

1. The matter will become clearer from illustrations. A civil
community, just as any other community, is not bound by the acts
of individuals, apart from some act or neglect of its own. For
Augustine well says: ‘ The particular sin committed by the individual
in a state is one thing, and differs from a common sin, which is done
with one mind and one will, when the multitude has been united for
some purpose.’ Hence we find in the formula for treaties the clause,
‘If he has violated this by public agreement ’.1

According to Livy, the Locrians showed the Roman Senate that
the blame for their defection did not rest on the public will. The same
author relates that Zeno, who interceded for the Magnesians with
tears, besought Titus Quintius and the delegates who accompanied
him ‘ not to blame the state for the madness of one man; each man’s
folly should be a peril to himself.’ And the Rhodians, in the presence
of the Senate, separated the public cause from the cause of individuals,
saying: ‘ There is no state which does not have wicked citizens some-
times, and an ignorant populace all the time.’ So the father is not
bound by the wrong-doing of his children, nor the master by that of
his slave, nor any others of superior station [by crimes of inferiors],
unless they themselves make manifest something blame-worthy in
themselves.

2. Now of the ways in which those who have control over
others come to participate in a crime, there are two which are
especially common, and which require careful consideration, toleration,
and refuge.

With respect to toleration we must accept the principle that he
who knows of a crime, and is able and bound to prevent it but
fails to do so, himself commits a crime. Cicero, in his speech Against
Piso, declares: ‘There is not much difference, especially in the case
of a consul, whether he himself troubles the state by dangerous

1 [379] Said Chrysostom, On the Statues, ITI [III. i]: ‘ The crime was not one common to the
city, but committed by some foreigners and strangers, who mn everything exhibit boldness and ignorance
of the laws rather than prudence. It would not be right, then, that such a city should be despoiled,
and that those who had done no wrong should be punished, on account of the lack of discipline in a few’

Ammianus said of the Quadi, Book XXX [XXX. vi. 2]: ‘They asserted that no wrong had been
done us by a common plan of the chiefs of their nation.’

[Questrons
on Hepia-
teuch, IIT.
XXV1.]

paXALTX,
XV |
PXXV
XXX1.]

Livy,
XLV
[zxhi. 8].

[v. I0.]

"Letters to
Brutus, I
iv 3t5)]
"Paraine-
trea,
MAVIL |
Against the
Heathen,
IV 'xxx1j
On the
Gowern-
ment of
God, VII
xix |
fCited in
Deer II
AX 3
11]

Dig XL.
V-Ul. 7.
Dig IX.
lv 2
Paul, Sen-
tentiee, V
[XXX. 2).

Dig, 1X,
li 45.
Digest,
XLVII
vi r.§ 1

Dig. IX.
IV 4.

Dig L.
XVLL. 50,
109.

Dig III. .
li, I, 13.

§ 1, 19.
Digest,
XLVII.
vu 7 §5.

[Works
and Dajs,
240.]

On the Law of War and Peace [Book II

524
laws or wicked harangues, or permits others to do so.’ Brutus wrote
to Cicero: ‘Will you then, you will say, hold me responsible for
another’s fault ? Certainly for another’s, if it could have been foreseen
and prevented.’ Agapetus, commenting on Justinian, says: ° Not
to restrain wrong-doers is the same as the committing of wrong.’
‘Whoever suffers a sinner to sin,’ says Arnobius, ‘lends strength to
his boldness.’ [367] Says Salvianus: ‘He who has it in his power
to prevent an action orders its accomplishment if he does not check
it” With truth Augustine adds: ‘ Whoever fails to oppose an act,
when he can, gives his consent to it.’

3. Thus he who suffers a slave to be prostituted, when he could
save her from such abuse, is held by the Roman laws to have prosti-
tuted her. If a slave has killed a man with the knowledge of his
master, the latter is liable for full damages, for it is as if he himself
had done the killing. The Fabian Law punished the master whose
slave with his knowledge had enticed away a slave belonging to

another.

But, as we have said, to participate in a crime a person must
not only have knowledge of it but also have the opportunity to prevent
it. This is what the laws mean when they say that knowledge, when
its punishment is ordained, is taken in the sense of toleration, so
that he may be held responsible who was able to prevent a crime but
did not do so; and that the knowledge to be considered here is that
associated with the will, that is, knowledge is to be taken in connexion
with intent.

Consequently, the master is not to be held responsible in case
the slave has formally claimed his freedom, or if he has treated his
master with contempt; for surely he is blameless who knows of an
intended crime, but is unable to prevent it. Thus parents are
responsible for the misdeeds of their children, but only the misdeeds
of those who are still under their parental authority. On the other
hand, even if parents have children under their authority and other-
wise could have restrained them, they will not be held responsible
unless they also had knowledge. For that one person may be held
responsible for the act of another, these two elements, knowledge and
the failure to prevent, should be present in like degree.

All that has been said of those in authority is with equal justice
to be applied to those under authority ; for these obligations spring

from natural equity.
5. To the line of Hesiod—

Full oft the state pays penalty
For the wickedness of one

1 Cf. Law of the Visigoths, VIII. iv. 11, 26, and elsewhere, and IX. i. 1.

Chap. XXI] On the Sharing of Punishments 525

Proclus adds the excellent comment: ‘ Since, when it could, it did
not prevent the evil conduct of that one man.’ So in the army of
the Greeks, when Agamemnon himself and other chiefs acted in
accordance with a common plan, not undeservedly—

For all the madness of their kings
Do the schaeans suffer ;

it was, in fact, in their power to compel Agamemnon * to restore to
the priest his daughter.
Likewise afterwards their fleet is said to have been burned—

For the guilt and frenzy of Ajax alone,
The son of Oileus.?

Of this deed Ovid in the Metamorphoses, Book XIV, says :

By the rape of the maid
He brought on all the punishment
Which he alone deserved,

because the others had not hindered the seizing of the maiden priestess.
In Livy we find the following :

The relatives of King Tatius maltreated the envoys of the Laurentians, and when
the Laurentians sought redress under the law of nations partiality for his relations and
their entreaties had the greater influence with him. In consequence he brought upon
himself the punishment that was theirs.

Here properly applies what Salvianus says about kings: ‘A power
great and most influential, since it can prevent the greatest crime,?
approves, as it were, the doing of a thing if, having knowledge thereof,
it suffers the thing to be done.’

1 So Cynl interprets this incident, Agaznst Julian, V [= 175].
2 [Virgil, denerd, I. 41.] Euripides, Trojan Women [lines 70-1] makes Neptune speak thus:
When Ajax’ hand with violence dragged off Cassandra
and Minerva answer him;
And yet naught heard he from the Greeks, nor suffered punishment.

With equal right Chrysostom involves all the men of Antioch in the crime of the statues in the
first homily on this theme [On the Statues, II. in], saying: ‘Lo, the sin was that of a few, but the
accusation is brought against all. Lo, on account of these we are now all in fear. and for what they
have dared to do we ourselves await the punishment. But if we had anticipated them, by driving
them from the city, and had treated the diseased part as we ought to have done, we should not now
be thus afraid.’

The same homily fII. iv]: ‘On account of this very thing, he says, suffer punishment, and pay
the extreme penalty, because you were not present. because you did not prevent it, because you did
not restrain the disorderly, because you took no msk for the honour of the Emperor. But you did
not share in the audacious deeds? That I praise and account it good. But neither did you hinder
what was going on; and this is ground for an accusation.’

3 Philo says, Agatnsi Flaccus {v]: ‘For he who could have punished, or at least restrained if he did
not prevent, must be held to have permitted, or even to have encouraged, what was done,’

Dio Cassius [LXIII. ii] remarks of Galba: ‘ For private citizens, it is enough if they do no wrong
themselves ; but those who hold authority must see to it that no one else is an evil-doer.’

In Canon IV, of the Synod of Pistes, which 1s found in the Cap:ztularies of Charles the Bald, we
read: ‘ He who fails to correct what he is able to correct is not free from complicity ; wherefore, with-
out doubt, he makes himself a participator in the crime.’ [AMonumenta Germantae Htstorica, Leges, Il,
vol. IT, p. 308.

See‘also Neetas of Chonae, IT [II. iii], on Andronicus.

"Horace,
E pisiles,
I. 1. 4.3

fXIV.
468 £f.J

Livy, I
rxiv. X],

[On the
Govern-
nient of
God, VII.
x1X.]

{ [Ixix].

I [xxx]
and VI [x]

Polybius,
IT [vu].

fPolybius,
IV. xxvu.]

(Il. xx. 7.]

526 On the Law of War and Peace [Book IT

In Thucydides the principle is stated: ‘He who is able to
prevent [a crime and does not] in very truth commits it.’ Thus,
according to Livy, the Veientes and the Latins excused themselves
before the Romans on the ground that it was without their knowledge
that their subjects had aided the enemies of the Romans. But on
the other hand, the plea of Teuta, queen of the [llyrians, was not
accepted when she alleged that piracy was not practised by herself
but by her subjects, for the reason that she had not restrained them.
In ancient times the people of Scyros were condemned by the Delphic
Amphictyony* because they had permitted some of their number
to practise piracy.

Moreover we may presume that acts which are conspicuous,
or frequent, are easily known, for ‘ none can be ignorant of what is
done by many’, as Dio of Prusa says in his Rhodian speech. Polybius
severely censures the Aetolians because, although they did not wish
to appear as enemies of King Philip, they secretly permitted their
citizens tocommit [368] acts of hostility against him, and rewarded
with offices the leaders in such enterprises.

III.—Likewtse a community, or its rulers, may be beld responsible for
refuge afforded to those who have done wrong elsewhere

1. Let us now come to the second question, which concerns
the affording a refuge against punishment. As we have said above,
any one who cannot be charged with a like crime has a natural right
to exact punishment. But, since the organization of states, it is
agreed that the crimes of individuals, in so far as they properly concern
the community to which they belong, should be left to the states
themselves and their rulers, to be punished or condoned at their
discretion.

2. But so comprehensive a right has not been granted to states
and their rulers in the case of crimes which in some way affect human
society, and which it is the right of other states and their rulers to
follow up, just as in each state it is possible for any citizen to initiate
a prosecution for certain offences. Much less do states and their
rulers possess this full authority in the case of crimes by which another
state or its ruler is in a special sense injured, and on account of which
that ruler or state, for the sake of dignity or security, has the right
to exact punishment, in accordance with our previous conclusions.
Therefore the state in which the guilty person dwells, or its ruler,
ought not to interfere with this right.

1 [380] Plutarch, Czmon [viii=p. 483 C].

Chap. XXI] On the Sharing of Punishments 527

IV.—Such responsibility rests upon a community or its rulers unless they
elther punish or surrender the guilty parties, as is shown by examples

I. Since as a matter of fact states are not accustomed to permit
other states to cross their borders with an armed force for the purpose
of exacting punishment, and since such a course is inexpedient, it
follows that the state in which he who has been found guilty ? dwells
ought to do one of two things. When appealed to it should either
punish the guilty person as he deserves, or it should entrust him to the
discretion of the party making the appeal. This latter course is
rendition, a procedure most frequently mentioned in historical
narratives.”

2. For example, the other Israelites demanded of the Benja-
mites that they give up certain guilty persons (fudges, xx). ‘The
Philistines asked the Jews to give up Samson to them, as if he were
a criminal (Judges, xv). So the Lacedaemonians made war on the
Messenians because the latter did not surrender a man who had slain
Lacedaemonians, and at another time for the failure to give up those
who had assaulted maidens sent on a sacred mission.

Cato desired that Caesar be handed over to the Germans for
having attacked them unjustly. So the Gauls demanded that the
Fabu be given up to them, because they had fought against them.
The Romans required the Hernici to surrender to them those who
had ravaged their land, and the Carthaginians to give up Hamilcar,
not the famous general, but another one of that name, who was
urging the Gauls to hostility; and afterward they demanded
Hannibal.* According to Sallust, the Romans demanded the surren-
der of Jugurtha by Bocchus with these words: ‘ That you may at
one and the same time relieve us from the bitter necessity of punishing
alike you who are making a mistake and him who is a consummate
villain.’

The Romans themselves gave up the men who had attacked the
ambassadors of the Carthaginians, and also of the Apolloniates. The

? For the judicial investigation should precede the surrender ; it is not fitting ‘ to give up those
who have not been tried,’ says Plutarch, Romulus [vii= 21 C].

According to Camden, on the year 1585, the king of Scotland said to Queen Elizabeth that he
would send to England Fernihurst, and also his chancellor, if they could be convicted by clear and
legitimate proofs of having with premeditation violated the promised security and joined in a plot
to murder.

2 Lucullus demanded from Tigranes the surrender of Mithridates and, when he refused, made
war on him; Appian, MWiethridatic Wars [Ixxxii], and Plutarch, Lucullus [xxi= 505 D]. The Romans
required the surrender of the Salyi by the Allobroges; Appian, Selections on Embassies, xi [= Gallte
History, xu].

Reparding the bishop whom the Romans wished to surrender to the Scythians, see Priscus,
Selecizons on Embassies, xxi. The Duke of Beneventum was given up to Ferdinand, ruler of Castile, by
the king of Gascony ; Mariana, XX. 1.

$ Plutarch, Camillus [xvi-xvii= pp. 136-7]; Appian, Selecttons on Embassies, ix [=Gallse History,
it].

‘ Diodorus Siculus, fragments [XXV. v]; Livy, [AXT. vi. 8].
1569+27 Nn

Pausanias,
NIV “TV.
4}.

Strabo,
VIII

fiv. 9].

[Cf. I. 111,
5 4]
fDion.
Halic.,
Vill.
Ixiv ]
(Livy,
XXXII.
x1. 6.]

tJ ugus tia,
ci. 5 ]

Livy,
XAVIIT
[XAXVIITI.
xi. 7].

Livy,
SXXVIII
[XEx1. 2.
Diod ,
KVI
(xe;
Plutarcn,
Narr.
Amal,

fy =

P 774:
Val Max,
VIw

{Pausa-
nias, VI.
11.]

Livy,
VII [xx.
6 and 7].

[III xxiv.
r0.]

[exvin }

On the Law of War and Peace [Book II

528

Achaeans required the Lacedaemonians to surrender those who had
besieged the village of Las, adding that, unless these should be given
up, they would consider the league violated. So the Athenians
proclaimed by a herald that if any one fomented a conspiracy against
Philip, and fled to Athens, ‘he would be liable to surrender’. The
Boeotians required from the Hippotians the surrender of those who
had slain Phocus.

3. All these examples nevertheless must be interpreted in the
sense that a people or king is not absolutely bound to surrender
a culprit, but, as we have said, either to surrender or to punish him.
Thus we read that the Eleans made war upon the Lacedaemonians
because the latter did not punish those who had wronged them ;
that is, the Lacedaemonians neither punished nor surrendered the
guilty. There is in fact an alternative in the ability.

Sometimes the choice is given to those who demand the
guilty,! in order that they may receive more ample satisfaction.
According to Livy the people of Caere informed the Romans that
‘The men of Tarquinii, passing through their territory in hostile
array, although they had sought nothing but the right to march
through, had drawn along with them some [369] of the rural
population, who had shared in the ravages with which the Caeretans
were charged ; that they were ready to surrender these, if the Romans
so desired, or, if the Romans desired their punishment, to inflict the
penalty.’

5. In the second treaty between the Carthaginians and the
Romans, which is found in Polybius, there is a passage which generally
is badly punctuated and interpreted: ‘ But if this is not done (what
‘this’ is, remains uncertain, for what precedes is mutilated), let each
privately prosecute his claim; but if any one has done this (unless
justice is done him) let the state be held responsible for the crime.’
Aeschines, in his reply to the accusation of Demosthenes, Concerning
the Badly Conducted Embassy, records that when he was negotiating
with Philip of Macedon about peace for the Greeks he said, among
other things, that it was not just that the states should atone for the
wrongs that had been done, but that those who had committed the
wrongs should pay the penalty, and that no harm should be done to
the states which made such persons appear for trial. Quintilian, in
his Declamations, cclv, declared: ‘I think that those who receive
deserters are almost as bad as the deserters themselves.’

1 See the treaty between the kings of England and Denmark referred to in Pontanus, De Marz
[Discusstones Htstortcae, I. xxi].

_ *® Zonaras [XVII v. 50] says that the Emperor Basil Porphyrogenitus ‘sent to Khosroo to ask
him not to receive the rebel who had attacked his proper lord, in order that Khosroo might not
establish a precedent dangerous to himself’.

On the pirates wrongly received at Lesbos see Chalcocondylas, Book IX [X. beginning].

Chap. XXT] On the Sharing of Punishments 529

6. In his address to the men of Nicomedia, Dio Chrysostom
enumerates among the evils that arise from differences between states
the fact that ‘It is possible for those who have done wrong to one
state to flee for refuge to another’.

7. Here the question arises whether those who have been
surrendered by their own state, and not received by others, continue
to be citizens. Publius Mucius Scaevola thought that they did not
remain citizens, because the people seemed to banish from their state
one whom they had surrendered, just as they would do if they forbade
him water and fire.

The contrary opinion is upheld by Brutus, and after him by
Cicero. And this is the more correct view. The reason is not, how-
ever, that adduced by Cicero, who holds that, as with giving, so with
surrendering, the act cannot be understood without an acceptance.
For the act of giving cannot be completed unless by the agreement of
two persons. But the surrendering with which we here have to do
is nothing more than the entrusting of a citizen to the power of another
state, for it to decide about him as it may wish. This entrusting
neither confers nor takes away any right; it merely removes an
impediment to the exaction of punishment. If therefore the other
state does not make use of the right that is granted to it, the condition
of him who has been surrendered will be such that he may either be
punished by his own people (as happened to Clodius, who was given
up to the Corsicans and not received by them) or not punished by

them, since there are many crimes which may be acted upon in either
way

Further, the right of citizenship, just as other rights and proper-
ties, is not lost on account of a mere fact but through some decree or
judicial sentence, unless some law requires the fact to be considered
as equivalent to a judicial decision; and that cannot be said in this
case. Likewise also goods, if they have been given but not received,
will remain the property of their former owner. If, however, the
surrender has been accepted, and afterward, by some chance, he who
had been surrendered is restored, he will not be a citizen unless by
a new grant. In this sense the opinion of Modestinus on the status
of a person who has been surrendered is correct.

8. What we have said with regard to the surrender or punish-
ment of guilty parties applies not merely to those who have always
been subjects of the state in which they are at the time found, but
also to those who after having committed a crime have fled to another
state for refuge.

[Oration,
XXXVUI=
Pp. 480 |

Dig. L. vu.
18.

On the
Oraior, I
and [I [I.
xl. r5rz;
II. xxxit.
137] ;
Topics
[vau. 37] ;
For
Caecina
LXXKXIV.
98).

Valerius
[Max ],
VI, int.

Digest,
XLIX,
xv. 4.

Library,
NIII
[XXix!

“Stobaeus,
Exc. dé
Mor, vi}

Against
Aphobus,
I xvi].

"IT. xxxv
109. |

_Antiphon,
Ovations,
X1v ]
'Oratvons,
XXX1 Io ]

Deut., xix.
Ij XX
15.
Exodus,
xxi. I4;

I Kings,
1129; 2
Kings, xi.
13 ff.

On the Law of War and Peace [Book IT

530

V.—The rights of suppliants belong to the unfortunate, and not to the
guilty, with exceptions

1. The view just stated is not inconsistent with the much
discussed rights of suppliants? and cases of asylum. These are in fact
for the benefit of those who suffer from undeserved enmity, not those
who have done something that is injurious to human society or to
other men. The Spartan Gylippus, in Diodorus Siculus dealing with
the right of suppliants, speaks thus: ‘Those who first established
such rights desired that the unfortunate indeed should look for mercy,
but that those who had done wrong with evil intent should look for
punishment.” Later: ‘Let these not blame their ill-fortune, or give
themselves the name of suppliants, if [370] they have fallen upon
these ills through evil purpose or in consequence of an unjust desire
for what belongs to another. For the name of suppliant is rightly
due to those men whose mind is innocent, but with whom fortune 1s
angry.2. Those whose life is full of wicked acts have no way left
through which they may find pity or asylum.’

Menander made an excellent distinction between these two

things—misfortune and wrong:

A mishap and a wrong have this distinction :°
Chance brings the one, the other comes from choice.

With this agrees the saying of Demosthenes: ‘It is right to pity,
not unjust men, but those who are undeservedly unfortunate,’ which
in his second book Oz Invention Cicero translates thus: ‘ We ought
to pity those who suffer through ill-fortune, not through wickedness.’
There is also the statement of Antiphanes [Antiphon]: ‘ What
happens not of one’s own will is the work of fortune; what happens
in accordance with will is an act of judgement.’ Lysias, too, says :
‘What he has willed comes to no one as ill-fortune.’

Accordingly in that most wise law places of asylum were available
for those from whose hands a chance missile had slain a man, and
a refuge was provided also for slaves ; but those who had deliberately
slain an innocent man, or who had disturbed the peace of the state,

Embe ‘The common laws of supplication’, according to Polybius, and Malchus, in the Selecttons on
asstes.

2 An ancient oracle [Aelian, Various History, III. xliv] says;

While your friend you defended, you slew him, but yet
You stained not yourself with crime; for your hand
More pure is than before.

3 According to Philo, On ihe Judge[v]: ‘Mercy is due to the unfortunate; but he who does
wrong by voluntary choice is not unfortunate but unjust.’

Thus Marcus Aurelius [AMedstations, TX. xxi] wishes us to examine the mind, ‘so that you may
perceive what is due to ignorance and what to intention, and at the same time consider that which is
natural’. So Totila in Procopius, Gothze Var, III [TII. ix], distinguishes ‘ what is due to ignorance or
forgetfulness’, and ‘ what is intentional’.

Chap. XXJ] 531

were not protected even by the most holy altar of God Himself.
In interpreting this law Philo says: ‘ The temple does not oifer an
asylum to the unholy.’ Such, furthermore, was the view of the
ancient Greeks. It is related that the Chalcidians refused to surrender
Nauplius to the Achaeans,! and the reason given is that he had
adequately cleared himself from the charges brought by the Achaeans.

2. At Athens there was an altar of Mercy, mentioned by Cicero,
Pausanias, and Servius,? by Theophilus, too, in his Lmsttutes ; it is
described at length by Statius in the Thebaid, Book All. But
who were entitled to its protection ? Listen to what the poet says:

On the Sharing of Punishments

And the unfortunate have hallowed it.

Further on he says that there came to 1t—

Those who were vanquished in war, exiles from home and from country,
And rulers bereft of realms.

Aristides declares that it was a glory peculiar to the Athenians °
‘to receive and console the ill-fated from all lands’; in another
passage, ‘For all the unfortunate among every people there is a
common good fortune, the kindness of the city of Athens, by which
they are assured of safety.’ In Xenophon Patrocles of Phiius, speaking
at Athens, said: ‘I was enamoured of this city, because I had heard
that all who were wronged and were in fear, if they had fled thither,
were assured of help.’ The same thought occurs in the letter of
Demosthenes on behalf of the children of Lycurgus.

Hence Oedipus, fleeing for refuge at Colonus, in Sophocles’
tragedy of that name * thus bears witness :

Alas, ye sons of Cecrops, ills many have I borne ;
But God my witness is, no ills I suffered
From deeds in malice done.

To this Theseus replies :

A stranger, such as I see you are, Oedipus,
[371] I never scrupled at all times to aid.
I know myself a mortal.

1 King Pepin received and refused to surrender those who fled to him from Neustria to escape
the tyranny ; this is according to Fredeganus’ chronicle of Pepin, for the year 688. The Emperor Louis
the Pious even received those who fled from the Church of Rome, as appears from his decree of the
year 817, in Conesiia Galliae, vol. i. Charles the Bald received those who fled to him from the
terntory of his brother Louis; Aimoin, Book V, chap. xxxiv.

Regarding Cegenas Patzinacas, who was not given up [381] to Tyrachus who demanded him, see
Zonaras’ account of Constantine Monomachus [XVII. xxvi]. So also the governor Inunginus did not
surrender Osmanes to Eskisar; Leunclavius, Turkish History, Il. As Mariana records, XVI. XVill,
the Portuguese did not surrender D’Alberquerque.

2 On the Aenetd, VIII [VIII. 342}-

3 Marana, XX. xii, gives the same praise to the people of Aragon. The Gepidae preferred to
perish, one and all, rather than give up Ildichis to the Romans or Lombards ; Procopius, Gothic War,
IV [IV. xxvi].

« See the whole passage, for it merits reading.

On Specirai
Laxs

{TI xv]
Plutarch,
Greek
Questions,
XXX
(xXx =
298 D..
iPaus , I
XV11 }
Inst., I.
XX1 |

[XII. 483.5

or,
O rs
ST pet
mr kei
to

Panathe-
Hal

[= 157 B.
On Peace,
1 “O,"
Levitra,
1=p. 89a_.
[Greek
HAist., VI
Vo45-

| Letters,
TIT us.)

[sar

[Eun-
pides,
Children of
Hercules,

329-32 |

{Euri-
pides,
fragm.
1036, In
Stobaeus,
xlv1. 3 ]

[1315 ff]

Against
Leocrates
[xcult]}.

Annals,
TIT (1x).

(III.
XXXV1.]

I [elx}.

Livy,
XXII
[xxxiii 3].

On the Law of War and Peace [Book IT

532

In like manner, Demophon, son of Theseus, when the descend-
ants of Hercules had fled to Athens, speaks thus :

Ever of old she chooseth, this our land,

To help the helpless ones in justice’ cause.

So hath she borne for friends unnumbered toils.
Now see I this new struggle looming nigh.

And in this way the Athenians did that for which Callisthenes
especially praised them, saying that ‘on behalf of the children of
Hercules! they took up arms against Eurystheus, who was at that
time the oppressor of Greece ’.

3. On the other hand, you find that this is said of an evil-doer
in the same tragedy :

Who conscious of his crimes, and trusting not in laws,
A suppliant, falls at altars of the gods,

I scruple not to drag before the court ;

For always should he suffer ills who evil does.

“The same poet in the Jon:

Unmeet it is
With guilty hand to touch the gods; but just it was
That shrines become a refuge for the good
Against injustices.

The orator Lycurgus tells of a certain Callistratus who had com-
mitted a capital offence, and who, when he had consulted an oracle,
received the response that, if he went to Athens, ‘he would meet with
justice’. Accordingly, he fled to the most sacred altar at Athens,°
relying upon its sanctity; but nevertheless he was put to death
by that city, which was most scrupulous in the observance of its
religious duties, and thus the promise of the oracle was fulfilled.
Tacitus censures the custom, which in his day was prevalent among
the Greek cities, of protecting the crimes of men as one would the
rites of the gods. He says also: ‘ The emperors indeed are like the
gods: but even the gods do not hear the prayers of suppliants unless
they are just.’

4. Such persons, then, are to be punished, or surrendered, or
at least removed from the country. Thus, according to Herodotus,
when the people of Cyme did not wish to surrender Pactys the Lydian,
and did not dare to keep him, they allowed him to depart to Mitylene.
From King Philip of Macedon the Romans demanded Demetrius of

1 See the Children of Hercules by Euripides [329-32] and Apollodorus [Lzbrary, II. viii. i.

4 Only just prayers of suppliants are heard by the gods’, says Tacitus, Annals, Book IIT [TIl.
xxxvil.

3 Mariana, Book XXI, records that in Portugal Ferdinand, the chief chamberlain, was dragged
from the shrine in which he had sought refuge and bummed to death, for the wrong done to a maiden
of the nobility. On asylums see also the book of the great Paul of Venice, of the order called Servites.

Chap. XXT] On the Sharing of Punishments 533

Pharos, who had fled to Philip after he had been vanquished. Perseus,
king of Macedon,! in his defence before Marcius, dealing with those
who were reported to have plotted against Eumenes, said: ‘ As soon
as I learned, upon information from you, that they were in Macedon,
I had them sought out and ordered them to leave the kingdom, and
closed my frontiers to them for all time.’ The Samothracians informed
Evander, who had plotted against Eumenes, that he must free the
temple from the profanation of his presence.

5- Inthe present and in recent generations, and in the majority
of European countries, this right, which we have discussed, of de-
manding for punishment those who have fled beyond the frontier,
has been exercised only with respect to crimes that affect the public
weal or that manifest extraordinary wickedness. It has become
customary mutually to ignore lesser crimes, unless some more definite
agreement has been made by the terms of a treaty.” We must,
however, recognize this, that robbers and pirates who have become
so strong that they have made themselves formidable may justly be
received and defended, so far as their punishment is concerned,
because it is to the advantage of mankind that they should be
brought back from their wicked ways through confidence in their
freedom from punishment, if such reform is in no other way possible ;
[372] and any people or ruler may undertake to accomplish this.

VI.—WNevertheless suppliants are to be protected pending the hearing of
their case ; under what law the hearing 1s to be conducted

1. This, furthermore, must not be forgotten, that, during the
time when the justice of their case is being investigated, suppliants
are to be protected. Thus Demophon says to the ambassador of

Eurystheus :

If crime you prove against these guests, justice
You will obtain ; by force you shall not drag them hence.

1 Appian has this also in the Selections on Embassies, xx [= Macedonian Affairs, x1.]. Something
similar appears in the Latin life cf Themistocles [Cornelius Nepos, Themzstocles, vii]: ‘When he
Themistocles] was publicly demanded by the Athenians and Lacedaemonians, Admetus (king of the
olossians) did not betray his suppliant, but advised him to take thought for his safety. So he gave
orders that Themistocles be conducted to Pydna, and gave him an adequate escort.’ And m hke manner,
according to Procopius, Gothic War, III [1II. xxxv], the Gepidae sent away the Lombard IIdichis.

See also the letter of Theodoric to Thrasamund, king of the Vandals, on the reception of Giselic,
[Cassiodorus, Variae,] V. xliii, xliv ; and also what 1s found in the life of King Louis. In this way the
Emperor Rudolph II got rid of Christopher Sborowski, as is recorded by De Thou, Book LXXXIII, on

e year 1585.

Blizabeth replied to the Scots that she would either give up Bothwell to them or drive him from
England ; so Camden, on the year 1593. On Alphonso, Count of Gegion, condemned by the king of
France and refused admission into Spain, see Mariana, XTX. vi.

2 As Simler quotes in the treaty between the Swiss and the Milanese. The treaties of the English
with the French require the surrender of rebels and deserters; those with the Burgundians, their
expulsion ; Camden on the year r60o.

Livy,
XAXVIIT
“XLII.
xh. 81.

(Livy,
XLV. v.]

[Euri-
pides,
Children of
Hercules,
251 ff.]

[Sopho-
cles,
Oedipus ai
Colunus,
ox fj

[387 £.]

LOumestions
on Hepia-
teuch, IIT.
Xxv1.]

534 On the Law of War and Peace [Book II

In another tragedy Theseus addresses Creon :

Creon, thou hast dared a deed unworthy of thee
And of thy Thebes and of thy ancestors.

Entering a city that respects what holy is and pious,
and all things executes in law’s due form,

Forgetful of our habits, what pleases thee

Thou dost attempt, thinking thou canst carry all by force.
Dost thou believe the city so bereft of men,

So obedient to a yoke, and me of no account ?
Amphion’s city did not teach thee this,

A state not wont to rear unfeeling men,

And it will not approve when it has heard that thou
Against rights of the gods and my rights trespassest,
Dragging from place of refuge wretched suppliants.
Had I set foot in the city of Labdacus,

Even though my cause were just beyond dispute,
On no man had I sought to lay my hand

Save by consent of him who ruled the land,
Mindful of what befits a stranger in a foreign town.
cin undeserving land thou coverest

With shame and with disgrace—old of a truth

In years, but not in wisdom.

2. If the crime of which the suppliants are accused is not for-
bidden by the law of nature or of nations, the case must be judged
according to the municipal law of their own country. This is well
put in the Supplzants of Aeschylus, where the king of Argos thus
addresses the daughters of Danaus coming from Egypt :

If the sons of Aegyptus should lay hands upon thee

And say that by law of their state ’tis the right

Of the nearest of kin, who would dare to oppose them ?
Wherefore thy task is to plead that by law of thy homeland
Right over thee they have none,

VII.—How subjects share in the crimes of their rulers, and members
of a community in those of the communtty ; and how the punishment
of a community differs from that of individuals

1. We have seen how guilt passes to rulers from subjects,
whether these are subjects of long standing, or recent. Conversely,
guilt will pass from the highest authority to those subject to it, if
those subject to it have consented to crime, or if they have done
anything by order or advice of the highest authority which they
could avoid doing without committing wrong. But it will be better
to discuss this point later on, when we shall be investigating the duties
of subjects.

A wrong may also be shared by both a community and individuals,
[373] because, as Augustine says in a passage previously cited,

Chap. XXT] On the Sharing of Punishments 535

‘ where there are communities, there are individuals also. Communi-
ties cannot exist save as made up of individuals; for individuals
assembled in some place, or taken as a whole, form communities.’

2. Guilt, however, attaches to the individuals who have agreed
to the crime, not to those who have been overmastered by the votes
of others. For the punishments of individuals and of a community
are different. Just as death is at times the punishment for individuals,
so ‘ the death of a state is its dissolution ’, and such dissolution takes
place when the civil body is dissolved; this question we have dis-
cussed elsewhere.

If now a state in this way ceases to exist, the right of enjoyment
therein, as Modestinus rightly says, is terminated as though by death.
As a punishment, individuals are reduced to slavery, as the Thebans
by Alexander of Macedon, those being exempted from this fate who
had opposed the decree for breaking off the alliance with him.
Similarly, too, a state suffers political slavery in being reduced to
a province. Individuals lose their property by confiscation. In like
manner it is customary to take from a state also what belongs to it
as a whole, its fortifications, naval arsenals, ships of war, arms,
elephants, public treasure, and public lands.

3. On the other hand, it is unjust for individuals to lose their
private property because of a wrong done by the community without
their consent, as Libanius rightly shows in his speech on the sedition
at Antioch. He approves the act of Theodosius,1 who had punished
the crime of the community by forbidding the use of the theatre,
of the public baths, and of the name Metropolis.

VIII. —How long the right of inflicting punishment upon a community
continues

1. At this point the important question arises, whether punish-
ment may be exacted always for the crime of acommunity. It seems
that such punishment may be exacted so long as the community
exists, because the same body remains, although composed of changing
elements, as we have shown elsewhere. But on the contrary it must
be remembered that in the case of a community certain things are
said to belong to it primarily and necessarily, as a public treasury,
laws, and the like; while certain things belong to it only through its
individual members. Thus we say that a community is wise and brave
which has a great number of wise and brave members.

1 Chrysostom, On the Statues, XVII [XVII. u], says the same as Libanius about this affar. Capito-
linus affirms that Marcus Aurelius, the philosopher, had previously punished the men of Antioch in
a similar way [Marcus Antoninus, xxv] ; so Severus punished the Byzantines, taking away their theatre,
baths, honours, and all omaments, and making the city itself subject to Permthus ; see Herodian, II
{III. vi. 9], Zonaras [XII. viii], and what we have said above.

Lycurgus
[Against
Leocraies,
Ix].
Above,
IT. ix. 4.

Dig. VII.

lv. 22.

Plutarch,
Alexander
;xXl=

670 El.

(iLix.3 1]

Aristotle,
Polsites,
VIL, xiii.

[Anabasis
of Aler-
ander, II.
xv |

VII. v.
35-]

[A nabasis
of Alex-
ander, III
xvuif ]

[Plutarch,
Apo-
thegms, ==
176 F.]

[On the
Malice of
Herodotus,
xX11==

860 A.]

F yee nome
px

557 B.]

On the Law of War and Peace [Book IT

536

Into this class of things falls whatever a community deserves ;
for primarily this concerns individuals, as having an intelligence
which the community in and of itself lacks. When, therefore, those
individuals are dead through whom the community derived its desert,
the desert itself lapses also; and likewise the debt of punishment
which we have said cannot exist without the desert. As Libanius
says in the oration cited : ‘ For it seems to me you should be content
with the thought that none of those who have done this wrong
survives.’

2. We must, then, approve the view of Arrian, who condemns
Alexander’s punishment of the Persians,’ for the reason that those
Persians who had wronged the Greeks had perished long before.
On the slaughter of the Branchidae by the order of the same Alexander
the judgement of Curtius is: ‘ If this had been planned against the
true authors of the treachery, it would: seem to be a just vengeance,
not an act of cruelty. But as the case stands, the guilt of ancestors
was atoned for by their descendants, who had not even seen Miletus,
and consequently had not been able to betray it to Xerxes.’

In another place Arrian expresses a similar opinion regarding the
burning of Persepolis in revenge for what the Persians had done at
Athens. ‘ But’, he says, ‘ Alexander in doing this does not seem to
me to have acted wisely, nor does this seem to have been in truth
a punishment of those Persians who long ago had ceased to exist.’

3. No one can help laughing at the excuse of Agathocles, who
replied to the complaints of the people of Ithaca regarding injuries
inflicted upon them, that in former times the Sicilians had suffered
greater harm at the hands of Ulysses. Plutarch, in his criticism of
Herodotus, says that it is far from true that the Corinthians wished
to avenge an injury received from the Samnians ‘ after the lapse of
three generations’. Nor can we accept the defence of this and
similar [374] actions which may be read in Plutarch’s work On the
Delayed Vengeance of the Deity; for the right of God is one thing,
and the right of men is another, as will soon be shown more plainly.

One cannot argue that, if it is right for descendants to receive
honours and rewards for the deserts of their ancestors, it is also right
that they should be punished for their ancestors’ sins. The character
of a benefit permits its being conferred upon any one at all without
injury ; that is not the case with a punishment.

_ 1? Wherefore Julian, in his eulogy of Constantius [Second Oration, Herotc Deeds of Constantius, 95 BJ;
assigns another cause for this war, saying: ‘ It is plain even to a child that no former war, that was
considered to have been just, [382] ever had so good an excuse, not that waged by the Greeks against
Troy, nor that by the Macedonians against the Persians. For they did not seek a tardy vengeance for
ancient wrongs upon the grandchildren or upon the children of the wrong-doers, but they made war on
those who were doing violence to the children of well-deserving men, who were taking away their

kingdoms.’

Chap. XX] On the Sharing of Punishments 537

IX.—W hether punishment may be shared without sharing the crime

We have spoken of the ways in which a participation in punish-
ment arises from a participation in guilt. It remains for us to consider
whether there may still be a participation in the punishment when
there is none in the guilt. To understand this matter aright, and to
avoid confusing, through similarity of name, things which in reality
are different, there are certain points which must be kept in mind.

X.—The distinction between that which 1s inflicted directly and that
which comes as a consequence

1. In the first place, there is a difference between a loss directly
inflicted and one that comes as a consequence.

By a loss directly inflicted I mean when a person loses something
to which he had a special right ; by a loss that comes as a consequence,
when one does not have what he would otherwise have had, since the
condition has ceased without which he did not have the right. Ulpian
gives an illustration: ‘If I have opened a well on my land, from
which it results that streams that would flow through to your land
are cut off’, he declares that in this case damage has not been
inflicted by a wrongful act on my part, since I have merely exercised
my own right.

In another place Ulpian says that there is a great difference
between suffering loss and being prevented from enjoying an advan-
tage which one had hitherto made use of. Paul the jurist also says :
“It is absurd for us to be called possessors before we have acquired
something.’

2. Consequently, when the property of their parents has been
confiscated children experience some inconvenience indeed, but
strictly speaking this is not a punishment, because the property that
was to be theirs would not become theirs actually unless it had been
preserved by their parents to the end of life. Alfenus has nightly
pointed this out, saying that by the punishment of their father
children lose that which would have come to them from him, but
that those things remain intact which are due to them not from the
father but from natural conditions or from some other source. With
similar thought Cicero writes that the children of Themistocles
suffered want, and he does not think it unfair that the children of
Lepidus should suffer the same misfortune; this, he says, was in
accordance with an ancient custom, recognized in all countries.
However, the custom experienced considerable modification through
later Roman laws.

Now, when the community is at fault through the crime of the
majority, who, as we have said elsewhere, represents the personality

Digest,
SMAXAIX,

lil, 24. § 12.

Digest,
XXXIX,
ii. 26.
Digest,
XEXV,
ii. 63.

Digest,
XLVIILI.
xxii. 3.

Letters,

II. xi and
xix [Letters
to Brutus,
I. xv. £1
and xi1. 2].

Digest,
XLVIII.
xx. 7.

[fII. v. 17.]

[Stobaeus,
ul. 79.]

CT echtia-
parznion,
xu 1]

538 On the Law of War and Peace [Book II

of the community, and when, for this cause, it loses the things that
we have mentioned—political liberty, fortifications, and other
profitable things—the loss is felt also by the individuals who are
innocent, but only in respect to such things as belonged to them not
directly but through the community.

XI.—The distinction between what 1s done owing to the occasion of a
crime and what is done owing to the cause of the crime

1. Furthermore, we must bear in mind that harm 1s sometimes
done to a person, or some good taken away from a person, because of
a fault committed by another, yet not in such a way that that fault
is the proximate cause of the act, if the right behind the act is con-
sidered. ‘Thus he who has promised something because of another’s
debt suffers loss, according to the ancient proverb, ‘ Go surety, and
expect loss’; but the immediate cause of the obligation is the promise
itself. For as he who has gone surety for a purchaser is not, strictly
speaking, bound by the purchase but by his promise, so he who gives
security for a wrong-doer is bound not by the wrong but by his surety.
Hence it comes about that the harm inflicted upon him who goes
security is not measured by the other’s wrong, but by the power which
he has of fulfilling his promise.

2: In consequence, it follows that, according to the view which
we believe to be the more correct, no one may be put to death by
reason of suretyship, because we hold that no one has such a right
over his life [375] as to be able to take it away from himself or to
bind himself to have it taken away. Nevertheless, the ancient Romans
and Greeks thought differently on this point, and so they believed that
sureties were liable to a capital sentence,1 as we see from a line of
Ausonius and from the well-known story of Damon and Pythias.
Often, too, they put hostages to death, as we shall recall later on.?

What we have said regarding a man’s life must be understood to
apply to his limbs also; for the right has not been given to a man to
deprive himself of these except in order to save the body.

3. If the promise covers exile, or pecuniary loss, and the con-
dition thereof is fulfilled by the other’s wrong, the guarantor will

* This is clearly seen in the words of Reuben to his father, Jacob (Genesis, xhi. 37), and in Josephus,
Anhquttres of the Jews, Book II, chap. iii [II vi. 5]. These sureties Eutropius in his Calgula [rather
pio fassius, LIX. vii] calls ‘ substitutes for a lnfe’, and Diodorus Siculus, Excerpta Pezresczana, ‘ sureties

or death’.

Says Chrysostom, On Galauans, ii [iii.13]: ‘Just as, when a man has been condemned to death,
another who is guiltless rescues him from punishment by choosing to die in his behalf.’ Augustine,
Letters, liv [cliii. 17], To Jfacedonius, says: ‘ And sometimes he who was the cause of a death is more to
blame than he who slew another: as if someone should deceive his surety, and the latter should pay
the legal penalty for him.’

2 TIT. iv. 14.

Chap. XX7] On the Sharing of Punishments

539

suffer the loss; yet this, if we speak with exactness, will not be a
punishment upon him.

A similar case arises in connexion with a right that one possesses
in such a way that it is dependent upon the will of another. Such
a right is one terminable at the pleasure of the grantor, where account
is taken of ownership of the thing concerned ; or the right of private
possession, in relation to the right of eminent domain, which the
state enjoys for the public good. If something held by such a right
be taken from any one by reason of another’s wrong, there is in this
not properly a punishment, but the execution of an antecedent right
that was vested in the person who takes the thing away. Thus, since,
strictly speaking, no wrong can be attributed to animals, when an
animal is killed, as the law of Moses provides } in case of sexual inter-
course with a man, this is not in fact a punishment, but an exercise
of man’s proprietary right over the animal.

XIl.—That, properly speaking, no one may be justly punished for

another’s wrong, and why

Having drawn these distinctions, we shall say that no one who is
innocent of wrong may be punished for the wrong done by another.

The true reason for this is not the one advanced by Paul the
jurist, that punishments are established for the correction of mankind ;
for it 1s clear that an example may be made apart from the person
of the wrong-doer, but yet of a person whose punishment affects him,
as we shall soon point out. But the true reason is that an obligation
to punishment arises from desert; and desert is something personal,
since it has its origin in the will, than which nothing is more peculiarly
ours ; hence the expression ‘ in one’s own power’.

XIII.—That children may not be punished for the sins of their parents

1. * Neither the virtues nor the vices of parents ’, says Jerome,
‘are attributed to their children.’ Augustine declares that God
Himself would be unjust if He should condemn an innocent man.
Dio Chrysostom, after saying that by the sanction which the Athenians
appended to the laws of Solon descendants of the guilty were doomed
to punishment, adds the following words regarding the law of God:
‘It does not, like the former, punish the children and the house of
those who sin; but, under it, each one is responsible for his own
il-fortune.’

Here applies the common saying, ‘Guilt is personal’. ‘We
ordain’, say the Christian Emperors, ‘that punishment shall fall

1 On this see Moses Maimonides, Guzde of the Perplexed, III. xl.

[Digest,
XSLVIT,.
xix. 20 ]

Letters,
III, Ov: the
Death af
Nepoita-
nus six. 8].
Letters, cv
[cxciv]
[Oratzons,
Ixxx=>
667.]

[Dig. IX.
iv. 43 ]

Code, IX.
xlvi. 22.

On Special
Laws, II
IIT. xxx}.
[VIII
Ixxx ]

Code, IX.
vin 5 § 1.

XXVIII
fii. x]

Victoria,
De lure
Belh,
no. 38.

On Anger,
IT. iv [II
XXXIV].
Herodo-
tus, I
{Ixxxvuil.

On the Law of War and Peace [Book II

540

where the guilt is.’ Then, ‘Therefore, let those responsible for
crimes be held for them ; and let not the fear of punishment extend
beyond those in whom an offence may be found.’

2. Itis just that those should suffer the punishments who have
committed the sins, Philo declares,’ censuring the custom of some
peoples who punished with death the guiltless children of tyrants
and traitors. This practice is condemned also by Dionysius of
Halicarnassus, who shows that the excuse accepted for such action,
that it is considered that the children will become like their parents,
is wicked, since this is doubtful and since fear of something that 1s
uncertain should not be enough to cause any one to be put to death.
Some one dared to advise the Christian Emperor Arcadius that those
who, it might be feared, would imitate their father’s crime, should
like him be punished with death. Ammianus recounts that certain
children, although still very young, were put to death ‘to prevent
their growing up to follow the example of their parents’.

Fear, again, does not constitute a more just reason for taking
vengeance, although the belief that it does gave rise to the Greek
proverb :

Mad is he who kills the father but the children spares.

3. [376] Seneca says: ‘ There is nothing more unjust than to
make an heir subject to the enmity against his father.’ Pausanias, the
Greek commander, inflicted no harm upon the children of Attagines,
who was responsible for the desertion of the Thebans to the Medes,
‘saying that they in no way shared in the guilt of Medism’. Marcus
Aurelius Antoninus, in a letter to the Senate, wrote: ‘ Wherefore
you will grant pardon to the sons, to the son-in-law, and to the
wife of Avidius Cassius * (the one who had conspired against him).
And, yet, why do I speak of pardon, since they have committed no
wrong ?’

* Philo also says in his book On Puzety [On Nobility, vii]: ‘I do not know whether there could
be a more pernicious doctrine, if punishment will not pursue the wicked children of good parents, or if
honour shall not be given to good sons born of wicked parents; the law, which judges each man
according to his own actions, does not commend him for the virtues of his relations or punish him for
their vices.’ Josephus [Aniequetes of the Jews, XIII. xiv. 2] calls the opposite conduct in Alexander,
king of the Jews. ‘a method of punishing not becoming to man’.

Says Ovid [Vetamorphoses, IV. 670f ]:

Unjustly had Ammon ordained that Andromeda, though she was guiltless,
Punishment there should suffer for words that her mother had spoken.

* See also Vulcacius, Life of Avtdtus [xii].

_ Julian [Second Oration, 101-2] praises similar humanity in Constantius, and shows that often good
children come from wicked parents, as bees fly out of rocks, figs spring from bitter wood, and the
pomegranate rises from thorns. The following are the words of the same writer [Furst Oraizon, 49 A]:

But in no way did you permit the infant son of the dead man to share in his father’s punishment.
Thus your conduct, always tending toward leniency, becomes the proof of perfect virtues.’

Chap. XXT] On the Sharing of Punishments 541

XIV.—Answer 1s made concerning the acts of God with regard to the

children of the wicked

I. Itis true that in the law given to the Jews God threatens to
avenge upon descendants the iniquity of the parents; but He Himself
possesses the most complete right of ownership, both over our property
and over our life, as it is His gift, which He can take away from any one
when He pleases, without any reason and at any time. Consequently,
if He carried off by a violent and untimely death the children of Achan,
of Saul, of Jeroboam and of Ahab, He exercised His right of ownership
over them,? not of punishment, but thereby He punished their parents
all the more heavily.

For if the parents survive, a contingency which the divine law
has in view above all else (it is with this in view that the law does not
extend these threats beyond great-grandchildren,? Hwodus, xxv, since
it is possible for men to live long enough to behold these), they are
certainly punished by the sight of such a loss, which is harder for them
to bear than their own suffering, as Chrysostom, with whom Plutarch
agrees, rightly says: ‘No other punishment causes greater suffering
than the sight of our descendants suffering for our sake.’ But if the
parents do not live long enough to see this, it is nevertheless a heavy
punishment for them to be put to death while fearing it. ‘ The
obstinacy of mankind’, says Tertullian, ‘had compelled a resort to
such remedies, in order that out of a regard for their posterity at
any rate men might obey the divine law.’ °

2. At the same time the fact must be recognized that God does
not make use of this more severe punishment except to punish crimes
committed as a direct insult to Himself, such as false worship, perjury,
and sacrilege. This was the view of the Greeks also; for the crimes
which were believed to implicate posterity, and which they called
‘pollutions ’,* are all of this nature. Plutarch has discoursed ably on
this subject in his book On the Delayed Vengeance of the Detty. In
Aelian * is found the following Delphic oracle :

But divine justice pursues the authors of crime ;
Avoid it they cannot, not even if children of Zeus.
The life of such men, and their offspring, 1t threatens,
While woe follows woe in their house.

This is the view of Rabbi Simeon Barsema, by far the most correct.
* You have examples in Zimmi and Jehu.
+ Alexander says in Curtius, Book VII [VIII. viii. 18]: ‘ You ought not to know what I had
decided with regard to these, that you might perish in greater grief.’
# See Plutarch, Pericles [xxxuti= 170 a], and what has been said above, II. xii. 1.
> [Various Htstory,| WI. xlii.

[axodis,
KX 5!

{ Joshua,
Vil. 24 |
2 Sam.,
XX1.

I Kings,
x1V.

2 Kings,
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‘x Kings,
KVill.

9, TO}.
(Exodus,
Xx. 50

Homily

X XTX
[vi],

On Gene-
sis, 1X.

[ Plutarch,
On the
Delayed
Vengeance
of the
Deity,
XV11L=
561 A.]
[Against
Marcson,
IT. xv.]

{IV 1. 13.]
[TII 1x j
(II. xu
r.]

Deut ,
XX1v 16

Josephus,
II find.
of Jews,
IV vin.
39] Philo,
On Special
Laws, II
{III xxix]
Isocrates,
Buszris[x].
Dionysius,
VITI
(ixxx}.
[Plato,

on Law's
TX. 1i1 J
Digest,
XLVITI.
xix 26,

Ox the Law of War and Peace [Book II

542

In this case it was a question of sacrilege,* and the view thus
expressed 1s supported by the story of the gold of Toulouse, recounted
in Strabo and Gellius. With regard to perjury, we have cited similar
opinions already. However, even if God has threatened to inflict
such punishment, He does not always make use of this right, especially
if some remarkable virtue * appears in the children of the guilty, as
we may see from Ezekiel, xviii, and as Plutarch proves by certain
examples in the book just mentioned.

3. Although the punishments that await the impious after this
life are set forth in the New Covenant more openly than they were in
the older time, yet in this Covenant there is no threat extending
beyond the persons of the sinners.* ‘This is particularly indicated
also in the prophecy of Ezekiel referred to, although, after the manner
of prophets, less openly.

Nevertheless, it is not permissible for men to imitate the action
of God in this matter. They have not the same justification, because,
as we have said before, God has a right over men’s lives without regard
to their guilt, but men only in consequence of deep guilt, and that too
when the guilt is distinctly individual.

4. Wherefore [377] that same divine law forbids not only
that parents be made subject to the penalty of death for the deeds
of their children, but also that children should be put to death for
the deeds of their parents. :

This ordinance, we read, was observed by God-fearing kings,’
even in cases of treason. It is warmly praised by Josephus and Philo ;
a similar Egyptian law is praised by Isocrates, and a Roman enactment
by Dionysius of Halicarnassus.° ‘There is a saying of Plato that ‘’ The
disgrace and the punishments of the father follow none of his children.’
This was expressed in Latin by Callistratus the jurist as follows :
‘ A father’s crime or punishment can put no blemish upon the son’ ;
he added the reason, ‘ for each is subject to the fate resulting from his
deeds, and no one can be appointed to succeed to the crime of
another.’

‘Would any state’, says Cicero, ‘ suffer one to propose a law of
this kind, that a son or grandson should be condemned if his father

1 [383] As Libanius also says: ‘ For these things some have already paid the penalty; others
not yet, but there is no one who shall deliver them. I say not only them but also their children, and
those who shall be descended from these.’ Similar views Libanius expresses in the oration published
by Godefroy fin 1631].

* And a public denouncement of his father’s crime, such as was made by the Emperor Andronicus
Palaeologus, im Gregoras, Book V, chap. Ixxxi [VI. i].

8 Tertullian says, On Mfonogamy [vii]: ‘The sour grapes eaten by the fathers have ceased to set
on edge the teeth of the children ; for each one will die in his own crime.’

« As Amasias [2 Kings, xiv. 6].

5 Who speaks thus: ‘ This is a custom peculiar to the Romans, to exempt the children from any
panishment for the wrongs their fathers have done.’ The provision is found in the Law of the Visigoths,

i 8

343

or grandfather should have done wrong?’ Hence it comes about
that to punish with death a pregnant woman was considered criminal}
by the laws of the Egyptians, Greeks, and Romans.”

Chap. XXT] On the Sharing of Punishments

XV.—Much the less are other relatives to be punished

If, then, the human laws which prescribe the death of children
for the crimes of their parents are unjust, more unjust still is the law
of the Persians and Macedonians which decreed the death of their
relatives also,? that those who had committed wrong against the king
might meet a more grievous end, as Curtius says. Ammianus Mar-
cellinus* wrote that all other laws were surpassed in cruelty by
this law.

XVI.—Nevertheless to children and relatives of the guilty something
may be denied which they otherwise could have had; instances

thereof

At this point it must be noted that if the children of traitors
have possession of, or may look forward to possession of, something
the direct right over which belongs not to them but to the people or
the king, this may be taken away from them by a kind of right of
ownership ; the exercise of such right, however, at the same time
may turn into a punishment of those who have done the wrong.
As an illustration we may recall that the children of Antiphanes
[Antiphon], on the ground that he was a traitor, ‘were declared
disqualified for honours,’ as Plutarch recounts; that is, they were
excluded from public offices, as were the children of those proscribed
by Sulla in Rome. Likewise in the law of Arcadius already men-
tioned there is this reasonable restraint upon the children, ‘ that
they may attain to no civil and no military offices’.

With regard to slavery, in what manner and to what degree it
may without injustice be transmitted to children, we have explained

elsewhere.

XVII.—Subjects may not properly be punished for a wrong commitied
by their king
1. What we have said with regard to the inflicting of evil upon
children because of the wrong-doings of their parents may be applied

1 This atutude is praised by Philo, in his On Humanity [xviii]

* Digest, I. v. 18, and XLVIII. xix. 3.

3 Philo [On Special Laws, III. xxx] said that it was the custom of tyrants to execute with the
condemned the five families most closely related to them. See Herodian, Book III [Herodotus, IIT.
col An instance from Milan, upon the death of Galeazzo, occurs in Bizarri, Book XIV [p. 334, ed. of
15791-
* He calls them abhorrent laws. See also the Council of Toledo, IV.
5 You will find a hke provision in the Decreials, V. xxxvil. 12.

1569°27 00

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544 Ox the Law of War and Peace [Book II

also in the case of a people that is truly subject (for a people that is
not subject may be punished because of its own guilt, that is for its
negligence, as we have said), if the question is raised whether such
a people may suffer for the crimes of its king or its rulers. At present
we are not inquiring whether the consent of the people itself is
involved, or whether there has been any other act on the part of the
people deserving of punishment ; we are concerned merely with the
relation which arises from the nature of the body whose head is the
king, and whose members are the other citizens.

2. It is true that because of David’s sin God consumed the people
with a pestilence, although they were innocent, as David thought,
but God had the supreme right over their lives. In reality, it was
not the people but David who was thus punished ; for, as a Christian
writer says, ‘ the most grievous punishment of kings who have sinned
is the punishment inflicted upon their people’. As the same writer
remarks, this is as if some one who had sinned with his hand should
be scourged on his back. In a similar discussion Plutarch says that
this must be regarded as the cauterizing of a thumb by a physician
in order to heal the thigh. Why it is not permissible for men to
inflict such punishments we have already shown.

XVIII.—Jndividuals, who have not consented thereto, cannot be pun-
ished for the wrong-doing of the community

The same principle must be applied with respect to the infliction
of harm upon individuals who have not given their consent, in the
case of a wrong done by the community, that is so far as their interest
as individuals is concerned.

XIX.—Heirs are not subject to punishment as such ; reasons therefor

The heir is bound to discharge other obligations, but not to
undergo punishment,” as Paul the jurist wrote: ‘ If anyone has been
condemned to punishment, [378] it is agreed by the interpreters
of the law that this does not pass to his heirs.’ ‘The true reason is that
the heir represents the person of the deceased, not in what he deserved,
which is purely personal, but in his property,* to which, according to

1 Philo, speaking of the subjects of the king of Egypt in the time of Abraham, says [On Abraham,
xix]: ‘The whole household suffered punishment together with him, for the reason that no one
had censured the breach of the law, but all, by their praise of it, had made themselves participants in

e crime.’

Josephus [Anizquities of the Jews, VIII. xi. 1] thus narrates the prophecy pronounced against
Jeroboam: ‘ And the people also shall share in his punishment, shall be banished from the goodly
land, and shall be scattered throughout the regions beyond the Euphrates, because they followed after
the impieties of the king.’

* Maimonides, title 71, vii. 6. Also Gemara, Baba Kama, ix. rz [x. I].

5 See the Council of Toledo, VIII, in the case of Recceswinth ; see also what [has been said] above,
II. xiv.10. ‘There is no one who more properly takes the place of him who has departed this life’ than
his heir, as Cicero says in his On Laws, IT [II. xix. 48].

Chap. XXT] On the Sharing of Punishments 5.45

a custom established in connexion with ownership, attach the debts
owed to any one in consequence of unequal distribution of things.
Dio of Prusa says in his address to the Rhodians: ‘ They are
responsible for all debts, those of their ancestors not less than their
own, contracted with any persons from the founding of their race.
For you will not say that the inheritance has been refused by them.’

XX.—WNevertheless heirs may be subject to punishment if this has passed
over into an obligation of another kind

From what has been said, it follows that if, apart from what
the deceased deserved, some new cause of liability has arisen, then
that which was in the penalty may become an obligation of the heir,
although not strictly as a penalty. ‘Thus in one case, after a judicial
sentence in another, after the settlement of a suit (these things give
the force of a contract), a pecuniary penalty will become an obligation
of the heir as well as those things which were introduced into the
agreement. For now a new cause of liability has developed.

002

[Orations,
XXxi =
P 329.)

II n.

rXA XXXVI.
liv 13

[Ill wi #7

I 'xxin ff ;
Ini f°

[384] CHAPTER XXII
ON UNJUST CAUSES [OF WARS]

1.—T he distinction between justifiable and persuasive causes 1s explained

1. We said above, when we set out to treat the causes of wars,
that some were justifiable, others persuasive. Polybius, who was the
first to observe this distinction, calls the former ‘ pretexts’, because

they are wont to be openly alleged (Livy sometimes employs the
term ‘ claim’), and the latter by the name of the class, ‘ causes ’.*

2. Thus in the war of Alexander against Darius the ‘pretext’ was
the avenging of the injuries which the Persians had inflicted upon the
Greeks, while the ‘cause’ was the desire for renown, empire, and riches,
to which was added a great expectation of an easy victory arising from
the expeditions of Xenophon and Agesilaus. The ‘pretext’ of the
Second Punic War was the dispute over Saguntum, but the cause was
the anger of the Carthaginians at the agreements which the Romans
had extorted from them in times of adversity, and the encouragement
which they derived from their successes in Spain, as was observed by
Polybius. Likewise Thucydides thinks that the true cause of the
Peloponnesian War was the power of Athens, which was on the
increase and was regarded with suspicion by the Lacedaemonians,
but that the pretext was the dispute over Corcyra, that over Potidaea,
and other points of difference; in this, however, he confuses the
terms ‘cause’ and ‘ pretext’.’

1 So they are distingwshed by Plutarch in his Life of Galba [xxii= p. 1062 D], by Dio Cassius in his
account of Caesar and Pompey [-XLI. Ixi], and by Polybius, where he discusses the war of the Romans
against the Illyrians, Selections on Embassies, cxxvi [ Histories, IT. viii. 1]. With Suetonius [ Julius Caesar,
xxx] you would justly call the former ‘ pretexts’, the latter ‘causes’. For he speaks thus of Julius
Caesar: ‘ And his pretext for avil war was this mdeed; however, men think that the causes were
different.’

Thucydides elsewhere distinguishes ‘ pretext’ and ‘ the truth’, saying that in the expedition of the
Athenians against Sicily the pretext was to bring aid to the people of Egesta, but the fact was that
they desired to seize Sicily for themselves. Hermocrates, in his oration, when speaking of the Athenians,
calls the former their ‘ pretext’, the latter their ‘intention’. Both passages are in Thucydides, VI
[VI. vi and xxx].

Appian also has adopted the word ‘ pretexts’ in his AZithridaize Wars [viii. 57]. In his Civil Wars, V
[V. ix. 77], where he discusses the rupture of the treaty between Octavius and Sextus Pompey, he says
that some of the ‘causes’ were hidden, others openly avowed. What the others call ‘ pretext’ is called
by Agathias ‘ fiction and colour’, with which he contrasts ‘ cause’ in his account of the Hun Zabergan
in Book V [V. xi].

Add what we have said above in II. i. 1.

Procopius in his Persian War, Book II [II. xv] says that it is foolish not to speak freely when
justice is one’s guide, and advantage one’s companion,

* So also in Book V, [390] when discussing the action of the Argives against the Epidaurians
[V. hii], he designates as ‘ cause’ what he had previously termed ‘ pretext’. Similarly we have pointed
out in IT. i. 1 [page 169] that the Greek word dpyai, the Latin princtpia, and others of this sort, are of
ambiguous meaning. The historians of the Byzantine Empire often call ‘ patroclus’ what others
call ‘pretext’, clearly from the story of Achilles, who found in the death of Patroclus an argument for

resuming hostilities.
546

Chap. XXII] On Unjust Causes [of Wars]

347

The same distinction appears in the speech of the Campanians
to the Romans, when they said that they fought against the Samnites
nominally on behalf of the Sidicini, but in reality for themselves ;
because they saw that when the Sidicini had been consumed the
conflagration would spread to them. Livy records also that Antiochus
made war upon the Romans alleging as his reasons the execution of
Barcillas and some other occurrences, but really because he had con-
ceived great hopes of success from the decline in Roman discipline.
In like manner Plutarch observes that Cicero incorrectly taunted
Antony with being the cause of the civil war, since Caesar, having
already decided upon war, merely found in Antony his pretext.

Il.—Wars which lack causes of either sort are wars of savages

‘There are some who rush into war without a cause of either sort,
led, as T'acitus says, by the desire of incurring danger for its own sake.*
But the offence of these men is more than human; Aristotle calls it
‘the savagery of wild beasts’. Concerning such persons Seneca
wrote: ‘I can say that this is not cruelty, but ferocity,*? which
delights in savagery. We can call it madness; for there are various
sorts of madness, and none is more unmistakable than that which
turns to the slaughter and butchery of men.’

Altogether similar to this expression of opinion is that of Aristotle,
in the last book of the Nicomachean Ethics: [385] ‘ For anyone
would seem to be absolutely murderous if he should make enemies
of his friends in order that there might be fighting and bloodshed.’
Said Dio of Prusa: ‘To wage war and to fight without a pretext,
what else is this than utter madness and a craving for evils arising
therefrom ?” The same idea is expressed by Seneca in his fourth
Letter: ‘No one proceeds to shed human blood for its own sake, or
at any rate only few do so.’

TlI—Wars which have persuasive but not justifying causes are wars of
robbers

1. In most cases those who go to war have persuasive causes,
either with or without justifiable causes. There are some indeed who
clearly ignore justifiable causes. To these we may apply the dictum

1 ‘ These things furnished him with a form of pretext and a plausible excuse for war such as he had
long sought.’ The words are in Plutarch, Life of Mark Antony [vi=p.918D]. But Lucan [Pharsala,
I, 263 ff.] says:

All restraints of shame
By fate are broken. Fortune strives to make
The leader’s acts seem just, and causes finds for war.

2 Ammianus in Book XXXI [XXXT. ii, 22] says of the Alani: ‘As men of a quiet and peaceful
disposition desire tranquillity, so these delight in dangers and warfare.’

® The same author in his On Anger, Book II, chap. v, having spoken of Apollodorus and Phalaris,
says: ‘ This is not anger; it is ferocity.’

Livy, VII
"Xxx!.

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City of
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fT. xix.
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[On Nuc
Ethics,
IV.
end.]

On the Law of War and Peace [Book IT

548

uttered by the Roman jurists, that the man is a robber who, when
asked the origin of his possession, adduces none other than the fact
of possession.”

With regard to those who advocate war Aristotle says: ‘ Do they
oftentimes give no thought to the injustice of enslaving neighbours
and those who have done no wrong ? ’

2. Such a one was Brennus, who was wont to say that all things
belonged to the stronger. Such, in the view of Silius Italicus, was
Hannibal, for whom—

The sword
The place of treaties and of justice took.

Such was Attila, and such were those whose lips are made to say :

The issue of the war and not its cause
We seek ;
again :
Guilt will be his who in this battle fails ;
and
When fortune’s at its height, strength is the same as right.

To these you may fitly apply the saying of Augustine: ‘To
make war upon our neighbours, and thence to advance against others,
and from the mere lust of ruling to crush peoples who have not
troubled us, what must we call this but wholesale robbery?’ Of wars
of this type Velleius says: ‘ They are wars entered upon for no good
reasons, but for the gain they bring.’ In the first book of Cicero,
On Duttes, we read: ‘ That exaltation of spirit seen in times of
danger and toil, if it is devoid of justice]. . .|, not only has in it no quality
of virtue, but rather is a manifestation of a brutality that is hardened
to all human feeling.?? Andronicus of Rhodes declared: ‘ T’hose
who, for the sake of great gains, take things whence they should not,
are called wicked, impious and unjust. In this class are tyrants,*® and
those who lay waste cities.’

1 Degest, V. iii. 11. ult., ff.

Of this sort was the war of the Heruli against the Lombards, ‘a war without pretext’ [Procopius,
Gothic Wer, II. xiv]. According to Livy, Book V [V. xxxvi. 5], the Gauls ‘ claimed that their nght
rested on their arms, and all things belonged to men of courage’.

* Agathias says in Book II [II. i]: ‘ They who for the sake of gain or unreasonable hatred, without
any just pretext, invade the territories of others and harm those who have done no wrong, are both
lawless and wicked.’ Menander Protector gives us a famous example [frag. 63, p. 121, edit. Dindorf] :
* Baian, chagan of the Avars, without any cause or pretext, and not even deigning to bring a false
charge against the Romans, [. . .] broke the treaty in a most shameful and barbarous manner.’

* Philo, On the Ten Commandments [xxvi], well says: ‘ Now men who have acquired the strength
of robbers lay waste whole cities, taking no thought of punishments, because they appear to be
stronger than the laws. These are men whose nature is unsuited to civil life, who seek after tyrannies
and despotisms, who carry out plundering on a large scale, concealing under the respected names of
government and authority what is more correctly robbery.” These views are in excellent accord
with the qrotations from Curtius, Justin, Seneca, and Augustine, made in the afore-mentioned II. i.
[page 170].

Chap. XXIT] On Unjust Causes [of Wars] 549

IV.—T here are certain causes which present a false appearance of justice

Others allege causes which they claim to be justifiable, but which,
when examined in the light of right reason, are found to be unjust.
In such cases, as Livy says, it is clear that a decision based not on right
but on violence is sought. Very many kings, says Plutarch, make use
of the two terms, peace and war, as if they were coins, to obtain not
what is right but what is advantageous.

Now causes which are unjust may, up to a certain point, be
recognized from the foregoing discussion of just causes. What is
straight is in fact a guide to what is crooked. For the sake of clearness,
however, we proceed to mention the principal kinds of unjust causes.

V.—Such a cause ts the fear of something uncertain

1. We have said above that fear with respect to a neighbouring
power is not a sufficient cause. For in order that a self-defence
may be lawful it must be necessary ; and it is not necessary unless we
are certain, not only regarding the power of our neighbour, but also
regarding his intention ; the degree of certainty required is that which
is accepted in morals.

2. Wherefore we can in no wise approve the view of those who
declare that it is a just cause of war when a neighbour who is restrained
by no agreement builds a fortress on his own soil, [386] or some
other fortification which may some day cause us harm. Against
the fears which arise from such actions we must resort to counter-
fortifications on our own land and other similar remedies, but not
to force of arms. The wars of the Romans against Philip of Macedon,
and of Lysimachus against Demetrius, were, therefore, unjust, unless
there was some other cause for them.

I am greatly pleased with what Tacitus says of the Chauci:
‘The noblest people of the Germans, who choose to defend their
greatness by justice alone, without greed, without lawlessness. They
are peaceful and retiring. They provoke no wars; they do not
ravage with plunderings and brigandage. This is the outstanding
evidence of their worth and power, that their position of superiority
has not been attained by wrongful means. Yet all have arms in readi-
ness, and, if the situation demands, they provide an army. They
have great numbers of men and horses, and their reputation remains
the same even though they are at peace.’

V1.—Another such cause is advaniage apart from necessity

Advantage does not confer the same right as necessity.

TXXI vi
2.]
Pyrrhus
[xti=p
389 E].

[Il.1. 17]

Zonaras
[IX. xv].
Pausanias
I [x].

[Germany,
XXxXV |

Aisiories,
IV [Ixza].

Victoria,
Relectiones
de Indis,
I, no. 31.

Victoria,
De Beilo,
Nos. 5, 6, 7,
8; De
indis, II,
no. 18.

[II iv. ro]

Plato,
Repubine,
Il. iii [V.
xvi]; Eu-
nipides,
Hecuba
'Iphigensta
mt Aulss,

LERIX. x5] 3
ates,
Panathe-
naic Ora-
tio [xvi].
II, xx. 40.

On the Law of War and Peace [Book 11

350

VII.—A cause of war presenting the appearance of justice 1s the refusal
of marriage, when there is a great abundance of marriageable women

50, when there is abundant opportunity for marriage, a refusal
of marriage cannot furnish a cause for war; although in former times
Hercules seized upon such a cause against Eurytus, and Darius *
against the Scythians.

VIII.—Such a cause, again, is the desire for richer land

The desire to change abode, in order that by abandoning swamps
and wildernesses a more fruitful soil may be acquired, does not afford
a Just cause for war. ‘T'acitus says that this was a cause of warfare
among the ancient Germans.

IX.—Such a cause 1s also the discovery of things previously taken over

by others

Equally shameless is it to claim for oneself by right of discovery
what is held by another, even though the occupant may be wicked,
may hold wrong views about God, or may be dull of wit. For
discovery applies to those things which belong to no one.

X.—W hat course 1s to be followed if the previous occupants are insane

1. For the exercise of ownership neither moral nor religious
virtue, nor intellectual excellence, is a requirement ; except that the
view seems defensible that, if there exist any peoples wholly deprived
of the use of reason, these cannot have ownership, but merely for
charity’s sake there is due to them what is necessary to maintain life.
What we have said elsewhere regarding the maintenance of ownership,
which universal common law guarantees on behalf of minors and
insane persons, applies to those peoples with whom there exists an
interchange of agreements; but such are not peoples absolutely
deprived of reason, if any of this sort are to be found, which I very
much doubt.

2. ‘Ihe Greeks were, therefore, wrong in saying that the
barbarians were their enemies as it were by nature, because of their
differences in customs, perhaps also because the barbarians seemed
to be inferior to them in intellect. However, to what extent owner-
ship may be taken away because of vicious crimes, which offend
against both nature and human society, is another question, which
Wwe just now discussed when dealing with the right of punishments.

1 Also Antonius [Antoninus] Caracalla against Artabanus, king of Parthia. See Xiphilinus [Ep:-
tome of Dio, LXXVIIL i). ° ee

Chap. XXII] On Unjust Causes [of Wars] 551

XI.—An unjust cause of war is the desire for freedom among a subject
people

Liberty, whether of individuals or of states, that is ‘autonomy’,
cannot give the right to war, just as if by nature and at all times
liberty was adapted to all persons. For when liberty is said to be an
attribute by nature of men and of peoples this must be understood
of the law of nature which precedes all human conditions, and of
liberty ‘by exemption’, not of that which is ‘ by opposition’; that is to
say, that by nature no one is a slave, but not that man has the right
never to enter slavery, for in that sense no one is free.

Here applies the saying of Albutius: ‘ No one is born free, no
onea slave; it is after birth that fortune has imposed these distinctions
upon individuals.’ Also that of Aristotle: ‘ By law one man isa slave
and another free.’ Wherefore those who from a lawful cause have
come into personal or political slavery ought to be satisfied with their
state, as Paul the Apostle teaches in the words: ‘ Hast thou been
called to be a slave? Be not concerned thereat.’

[387] XII.—An unjust cause of war also 1s the desire to rule others
against their will on the pretext that it 1s for their good

Not less iniquitous is it to desire by arms to subdue other men,
as if they deserved to be enslaved, and were such as the philosophers
at times call slaves by nature. For even if something is advantageous
for any one, the right is not forthwith conferred upon me to impose
this upon him by force. For those who have the use of their reason
ought to have the free choice of what is advantageous or not
advantageous, unless another has acquired a certain right over them.

With infants the case is clearly different ; for since they do not
have the right of exercising ‘independence of action’ and of directing
their own movements, nature confers the control over them upon
persons who undertake it and are fitted therefor.

XITI.—An unjust cause of war is the title to universal empire which
some give to the Emperor, and which ts shown to be inapplicable

1. I should hardly trouble to add that the title which certain
persons give to the Roman Emperor is absurd, as if he had the right
of ruling over even the most distant and hitherto unknown peoples,
were it not that Bartolus, long considered first among jurists, had

1 [391] See the Council of Toledo, IV, and what we have said above in IT. iv. 14 [page 220].

Seneca,
Controver-
sites, ITI.
xxi [VII.
vi. 18]
Politics, I
(its)

I Corin-
thians, Vil.
21.

Victoria,
De Indts,
no. 24

[T. 24].
Ayala, De
Iure Belli,
I. ii, 293
Covarru-
vias,

On Sexi,
V. ult. 4,
pt. IJ, §1x,
no. 5 ff

On Dig.,
XLIX.
XV. 24.

Digest,
AIV iu 9

[Petro-
nius,
CX1X,]

Luke, i 1.

{On Mon-
archy, II.]

Aristotle,
Poltitzes,
VII. iv.

Sylvester,
word bel-
lum, I,
no. 21;
Covarru-
vias, loc.
cr , nO. 9.

552 On the Law of War and Peace [Book II

dared to pronounce him a heretic who denies to the Emperor this
title. His ground, forsooth, is that the Emperor at times calls himself
lord of the world,! and that in the sacred writings that empire, which
later writers call Romania,’ is designated as ‘the inhabited world ’.®
Of like character is this expression :

Now the whole earth the victorious Roman held,

as are many similar expressions used in a broad sense, or in hyperbole,
or in high praise ; as when, in the same Holy Writ, Judaea alone often
appears under the designatian of ‘the inhabited world’.* It is in
this sense that we are to take the ancient saying of the Jews that the
city of Jerusalem is situate in the centre of the earth, that is in the
centre of Judaea,” just as Delphi, in the middle of Greece, is likewise
called the navel of the world.

Nor should any one be influenced by the arguments of Dante,
by which he strives to prove that such a right belongs to the Emperor
because that is advantageous for the human race. The advantages
which it brings are in fact offset by its disadvantages. For as a ship
may attain to such a size that it cannot be steered, so also the number
of inhabitants and the distance between places may be so great as
not to tolerate a single government.

2. Again, even if we should grant that the ascription of such
a right to the Emperor is advantageous, the right to rule by no means
follows, since this cannot come into existence except by consent or by
punishment. The Roman Emperor at present does not have this
right even over all the former possessions of the Roman people;
for as many of these were acquired by war, so by war they have been
lost; while others by treaties, others still by abandonment, have
passed under the authority of other nations or kings. Some states,
too, that were once completely subject, later began to be subject only
in part, or merely federated on unequal terms. For all these ways
either of losing or of modifying a right are not less valid against the
Roman Emperor than against others.

1 As in the Council of Chalcedon, acts xi and xii.

i As Athanasius, Letter to the Monks [I=p. 832]. This was scarcely the sixth part of the then known
world. ,

* Philo, On the Embassy to Gatus [ii]: ‘I am speaking of the most extensive and significant
parts of the world, which one might call the world in a special sense, bounded by the two rivers, the
Euphrates and the Rhine.’

Jerome: ‘The name “earth”, even when there is added the adjective “ whole’, should be hmited
to that portion which is under discussion.’

* This you may learn from Josephus, Jewzsh War, III (III. iii. 5].

* Take an example from Spain, on which see Gomez, On Institutes, IV. vi. 29, no. 5 ; Panormitanus,
On Deereials, I. vi. 34, col. 9g ; Jason, On Code, I.i. 1, col. 2; Menochio, Constiia, II, no. 102 ; Cardinal
Toschi, Practicae Conclusiones, 345, § rex Hispaniae ; Dumoulin, Consuetudines Parisienses, no. 20, pr. ;
Chassaneus, Caialogus Gloriae Mundi, V. 28; Azor, Moral Insttutes, II. v. 2.

Chap. XXIT] On Unjust Causes [of Wars] 553

XIV.—An unjust cause of war is the title to universal empire which
others give to the Church, and which also is shown to be inapplicable

1. There have also been some who claimed for the Church
a right over the peoples even of the hitherto unknown parts of the
earth, although the Apostle Paul himself clearly stated that he did
not have the right to judge those who are outside the bounds of
Christendom, saying: ‘ For what have I to do with judging them
that are without ?’ (xz Corinthians, v. 12).

Yet the right of judging possessed by the Apostles, even although
it extended in its own way to earthly things, was of a heavenly nature,
so to say, and not of earthly quality; it was to be exercised indeed
not by the sword and scourge but by the word of God enunciated
in general terms and applied to particular conditions, through the
revelation or denial of the signs of divine grace, according as each
might deserve; in last resort even by a punishment not according
to nature but from a higher source than nature, therefore emanating
from God. [388] A punishment of this kind appeared in the cases
of Ananias, Elymas, Hymenaeus, and others.

z. Christ Himself, the source of all ecclesiastical power, whose
life is set as an example to the Church, in so far as it is His Church,
declared that His kingdom was not of this world, that 1s, of the same
character as other kingdoms; adding that otherwise He might make
use of soldiers in the manner of other kings. As it was, if He had
wished to call for legions, He would have called for legions not of men
but of Angels (Matthew, xxvi. 53). Whatever He did by right of
authority vested in Himself, He did not by human but by divine power,
even when He cast the money-changers out of the Temple. For on
that occasion also the scourge was a sign, not an instrument, of divine
anger ; as at other times the spittle and oil were a symbol of healing,”
not a remedy.

Augustine thus comments on the passage of John referred to:

Hear then, ye Jews and Gentiles; hear, O circumcision; hear, O uncircumcision ;
hear, all ye kingdoms of the earth! I do not interfere with your rule in this world *—
* My kingdom is not of this world’. Fear ye not with the utterly empty fear with which
the elder Herod trembled when the birth of Christ was announced, and slew so many
children in order that death might reach that child; for he was rendered more cruel by
his fear than by his anger.

‘My kingdom’, He said, ‘is not of this world.” What more do ye seek? Come to
the kingdom that is not of this world ; come believing, and rage not through fear.

1 This is well explained by Abulensis [Tostado], On Matthew, ix.

2 Hilary of Arles: ‘For Christ had not come to this end, that He might encroach upon enother’s
glory, but that He might confer his own; not that He might seize an earthly kingdom, but that He
might grant a heavenly one.’

Victoria,
Relectiones
de Indis,
ar it.
Avala,

I, no 29

John,
XVILl 36;
see Peter
Damian,
Letiers,

II 1x

[1V. 1x],
and Ber-
nard, Let-
ters, CCXXI.

[On the
Gospel of
John,
cxv. 2.]

On the
Acts of the
Apostles,
Homily
III tiv]
On Titus,
Homily I
itv]; On
First Thes-
sa@lonians,
Homily
TV [{TI, 11} $
On the
Priesthood,
TT fn)

II, xx ]

On the Law of War and Peace [Book IT

994

3. Among other things Paul forbids the bishop to use force
(x Timothy, iii. 2). Chrysostom * said that ‘ to rule by compulsion ’,
the compulsion, of course, which is derived from human power, “1s
the right of kings, not of bishops’. Elsewhere he declares: ‘ Power
has not been given to us to restrain men from crimes by the authority
of our sentences,’ sentences, that is, which involve the right of execu-
tion by royal or military power, or the deprivation of any human
right whatsoever.? He says also that the bishop should perform his
office ‘ not by compulsion but by persuasion ’. From this it 1s abun-
dantly clear that bishops, as such, have no right to rule over men in
the manner of this world. In comparing the king and the bishop,
Jerome ® declares that ‘the former is set over unwilling, the latter
over willing subjects ’.

4. The question whether even kings may use armed force as
a means of punishment against those who reject the Christian religion
we have previously discussed, so far as is necessary for our purpose,
in the chapter ‘On Punishments’.

1 His words are, On the Priesthood, Book IT [II. tii]: “ Above all things Christians are not permitted
to punish by violence the cnmes of the guilty. The secular judges, indeed, when they find criminals
subject to the power of the law, exercise considerable authority and prevent them against their will
from hving as they desire. But among us this is to be done not by compulsion but by persuasion, in
order that a man who is of that sort may turn out better. For the right to coerce sinners has not been
given to us by laws, and even if it had been given to us we should have had no opportunity to exercise
this right, since God crowns those who refrain from evil not of necessity, but of free will; wherefore
we have need of much toil to persuade those who are sick to offer themselves of their own accord to
the priestly healing.’ And shortly after [II.iv]: ‘For he who strays from the faith cannot be violently
constrained, much less compelled by fear.’

Chrysostom says also, On Ephesians, iv [iv.16=Homily XI, v]: [392] ‘ Moreover, we have been
appointed for the teaching of men, not to authority, not to the exercise of power. We hold the place of
advising counsellors. He who gives counsel speaks on his own authority; he does not compel his
hearer, but leaves him free choice about that which is said.’ ‘The priest indeed reveals his office, but
exercises no night of authority,’ says Ambrose, On Cain and Abel, II. iv, as cited in the Decretum,
TI. xxxiit. 3 (De Penitencia), i. 51.

* For to kings and not to the Church does it pertain to judge in the matter of fiefs, Decretals, IT. i.
13 and IIT. xx; and in the matter of possessions, Decretals, IV. xvii.7. For in temporal things kings
least of all recognize a superior, Decretals, TV. xvii. 13.

* Christ has willed that the Christian Emperors should depend upon the Popes for eternal life, and
that the Popes should make use of the imperial laws for the movement of temporal interests, in order
that the spiritual action might be kept free from connexion with worldly enterprises, and that he who
serves God might involve himself very little in temporal affairs’ ; Decretum, I. x. 8 and I. xcvi. 6.

With this harmonizes what has been stated in I. ii. 9. 13, following the eighty-sixth [eighty-second]
r the aa Apostolic Canons, and what is further cited there on this subject in the text and notes

age 88].

* The same writer says in the Epriaph of Nepottanus [Letiers, lx. 14]: ‘The bishop has less power
than the king. For the former is set over unwilling subjects, the latter over willing. The former subjects
men to fear; the latter is appointed for service.’ Cassiodorus, XI [Vartae, XT. iii], in his letter to the
bishops, writes: ‘ Let the bishop teach, that the judge may not be able to find anything to punish.’

The Emperor Frederick I in Gunther, Ligurinus [VI. 362 £.], says of the Pope:

Let him govern his Church and administer laws divine ;
To us let him leave the Empire and symbols of power.
When Bishop William of Roskilde tried to exclude from entrance into a church Sweyn, the excommuni-
cated king of Denmark, by presenting his crozier, and the royal servants laid hands upon their sword-
hilts, he did as became a bishop, and offered them his neck. [See Saxo Grammaticus, m = pp. 189-90.]
Add what we have above in I. 5 [I. iv. 5].

Chap. XXII} On Unjust Causes [of Wars] 555

XV.—An unjust cause of war is also the desire to fulfil prophecies,
without the command of God

Not without reason shall I give this warning, that the hope
derived from an interpretation of divine prophecies * does not furnish
a just cause of war. For from a comparison of modern with ancient
events I foresee the danger of great evil from this source, unless we
guard against it. Apart from the fact that without prophetic
inspiration it is hardly possible to interpret with certainty prophecies
that have not yet been fulfilled? even the times set for the coming of
things that are certain may be hidden from us. Finally a prediction,
unless it is a definite command of God, confers no right, since the
things which God foretells He often permits to be accomplished
through the agency of wicked men or base deeds.

XVI.—An unjust cause of war is also the desire to obtain something that
1s owed by an obligation not strictly legal but arising from some
other source |

This principle, too, must be recognized. If a person owes a debt
that is not an obligation from the point of view of strict justice, but
arises from some other virtue, such as generosity, gratitude, pity or
charity, this debt cannot be collected by armed force any more than
in a court of law. For either procedure it is not enough that the
demand which is made ought to be met for a moral reason, but in
addition we must possess some right to enforce it.

This right is at times conferred by divine and human laws even
in the case of obligations that arise from other virtues; and when
this happens there arises anew [389] cause of indebtedness, which
relates to Justice. When this is lacking, a war undertaken on such

__} Ona certain Theodotus in the time of Gratian, see Zosimus DY. xiii] and Ammianus Marcellinus
sxth i. 8 ff. Ii 5 On John of Cappadocia, see Procopius, Persian ar, I i [t. xxx], and Leunclavius,
urkish History, Book XVII.
* The books of prophecy are closed and sealed even until the time appointed, so that they may
not be understood (Dansel, xii. 4, 8 and 9). Jerome, On Daniel [xii. 8], says: “If the prophet heard
and did not understand, what shall they do who through presumption of mind have interpreted a book
that is sealed and involved in many obscurities until the time of consummation?” =
Procopius writes, Gothic War, tT [I. xxiv]: ‘I consider it beyond human power to discover the |
sense of the Sibylline oracles before the occurrence of the event.’ The same author, shortly afterwar
‘It is impossible for any man whatsoever to understand the Sibylline oracles before the event, but we
must wait till the day itself, when the prophecy has been fulfilled and its words have’ ‘si a
firmed by the fact, [393] becomes the inerrant interpreter of the verses.” a
_Gregoras says, Book V [V. v.]: ‘And just as other predictions are most difficult & in regard
conjecture and interpretation because they contain much that is involved and 3 receive many explana-
tions, so too this oracle deceived everybody, including the emperor himsel a |
however, he had been taken away from human affairs, the oracle revealed i on.” Beware
overbold theologians! Be on your guard, ye politicians, against overbold theol oi oe ;
There is a passage worthy of inspection m De Thou, Book LX XIX, on whe yom 1683 ‘con
Jacob . Brocard.

Victona,
De Iure
Beils, no 2

{1==p
256-7 |

[Letier of
AM téhri-
dates, V ;
[LH tstortes,
TV Ixxiv ]
Seneca,
Hppolytus
[540f]

A gatwnst
Faustus,
XXII.
ixxiv.
Covatru-
vias, d §1,
no 2;
Cajetan,
On II 11,
qu. 40,
art, I;
Sylvester,
word bel-
lum,no 2,
Summa
Angelica,
word del-
lum, DO 5;
Trova-
mala,
Summa,
word bel-
lum, nos.
3 and 8.
Thomas
Aquinas,
II. ik.

66, &,

On the Law of War and Peace [Book IL

550

grounds is unjust, such as the Roman war against the King of Cyprus
on the charge of ingratitude. He who confers a kindness has no right
to demand gratitude; otherwise there would be an agreement, not
an act of kindness.

XVII.—The difference between a war the cause of which 1s unjust and
a war in which there is a wrong of another kind ; and the different

effects of each

1. It is to be observed that this often happens, that a just
cause for a war may in fact exist, but that in making war a wrong may
arise from the intent of the party who engages in hostilities. This
may come about either because some other thing, not in itself unlaw-
ful, in a greater degree and more effectively influences his purpose
than the right itself, as, for example, an eager desire for honour,"
or some advantage, whether private or public, which is expected from
the war considered apart from its justifiable cause. Or there may be
present a manifestly unlawful desire, such as the delight of him who
has pleasure in another’s ill, without regard to what is good. From
this point of view Aristides in his oration On the Alliance says that the
Phocians perished in accordance with their deserts, but that Philip
did not act rightly when he overthrew them, seeing that he did not
act out of zeal for religion, as he pretended, but in order to extend
his empire.

2. ‘The sole cause of warfare, and that an ancient one,’ says
Sallust, ‘is a deeply rooted desire for power and riches.’ ‘ Gold and
wealth, the chief causes of wars,’ we find in Tacitus. In a tragedy

we read:
Impious lust of gain and wrath impetuous
Have broken the alliance.

With these quotations you may rightly associate the passage of
Augustine: ‘The eager desire to injure, the cruelty of vengeance,
the unappeased and unappeasable mind, the savagery of rebellion,
the lust of ruling, and whatever else there is akin, these are the things
which are justly censured in warfare.’

3. However, when a justifiable cause is not wanting, while these
things do indeed convict of wrong the party that makes war, yet they
do not render the war itself, properly speaking, unlawful. Hence
no restitution is due as a result of a war undertaken under such
conditions.

2 A vice which entices us through a certain similitude of virtue. But Augustine rightly cautions
us, City of God, III. xiv: ‘It is better to suffer the penalties of lack of enterprise in any degree than
to seek glory in these wars.’

Consult what we have quoted from Agathias on section 3, above [II. xxii. 3. 2, note}.

CHAPTER XXIII

ON DOUBTFUL CAUSES OF WAR

I.—On the source of the causes of doubt in moral questions

What Aristotle wrote is perfectly true, that certainty is not to be
found in moral questions in the same degree as in mathematical
science. his comes from the fact that mathematical science com-
pletely separates forms from substance, and that the forms themselves
are generally such that between two of them there is no intermediate
form,) just as there is no mean between a straight and a curved line.
In moral questions, on the contrary, even trifling circumstances alter
the substance, and the forms, which are the subject of inquiry, are
wont to have something intermediate,” which is of such scope that
it approaches now more closely to this, now to that extreme.

Thus it comes about that between what should be done and what
It Is wrong to do there is a mean, that which is permissible ; and this
is now closer to the former, now to the latter. Hence there often
comes a moment of doubt, just as when day passes into night, or when
cold water slowly becomes warm. This is what Aristotle means when
he says: ‘ Oftentimes it is hard to decide what choice one should
make.’ Andronicus of Rhodes states the matter thus: ‘It is hard
to distinguish what is truly just from that which appears to be so.’

[394] Il—WNothing is to be done contrary to the dictates of one’s mind,
however erroneous they may be

1. First of all we must hold to the principle that, even if some-
thing is in itself just, when it is done by one who, taking everything
into consideration, considers it unjust, the act is vicious. ‘This in
fact is what the Apostle Paul meant by saying, ‘ Whatsoever is not
of faith, is sin,’ where ‘ faith ’ signifies the judgement of the mind on
the matter.2 For God has given the power of judgement as a guide
for human actions, and if this is treated with contempt the mind
becomes brutish.

2 In these the transition is made ‘ to the opposite’ ; in the former, ‘ to the mean’.

i [399] See Chrysostom, On Ephesians, iv [Homily XVI, ii]; Morals., II [Aristotle, Magna
Moralia, 1. ix].

= Of like I rport is the following from the same Epistle of Paul and the same chapter [Komans,
xiv. 5]: ‘ Let each man be fully assured in his own mind’ ; also [7b1d., 22], “ Happy is he that jadgeth
not himself in that which he approveth.’ ; ;

Ambrose says [On Romans, xiv. 23]: ‘That is a sin which is done without one’s approval.’
Augustine follows the same teaching, Both are cited by Gratian after Decreium, II. xocvui. 1. 14.

Not very different is this statement of Plutarch in his Timoleon [vi=p. 238]: ‘ It is required not
only that what is done should be honoyrable and just, but that there should also be a firm and stable
conviction as the source of the action, that whatever is done may be so done because the mind has
judged that it ought to be done.’

557

N scomach-
ean Ethtcs,
Ti.

sV icomach-
ean Ethics,
III (1).
[Om Nic
Ethis,

T. ui.J}

Romans,
xIV. 23.

On Duttes,
I [ix 30}.

[Rabbi
Gamaliel
in Pirke
A both, 1.
16.2

Covarru-
vias, vol I,
De Mair ,
pt. 1,

vu, § 2,
nog Nt
Eth., II ix
On Duties,
Til [1. 3].

[inst. of
Oratory,
VII iv.
12.]

Vazquez,
Disputa-
Ltons on
Il. 1,

62, 1, No
I; Me-
dina, On
If. 1,

qu. I4.

Victoria,
Relecitones
de Indis,
I, no. 12;
and De
Ture Belli,

2I and 24.

On the Law of War and Peace [Book II

558

2. Nevertheless, it often happens that the judgement presents
no certainty, but is undecided. If this indecision cannot be dissipated
by careful consideration, we must follow the precept of Cicero:
‘That is a good rule which they lay down who bid you not to do
a thing when you are in doubt * whether it is right or wrong.’ The
Jewish teachers also say : ‘ Hold aloof from a doubtful matter.’

This course, however, cannot be pursued where one really must
do one of two things, and yet is in doubt whether either is right.
In that case he will be allowed to choose that which appears to him
to be less wrong. For always, when a choice cannot be avoided, the
lesser evil assumes the aspect of the good. ‘ We must take the least
among evils,’ says Aristotle ; and Cicero, ‘ Of evils one must choose
the least.? Quintilian writes: ‘In a comparison of evils, the lesser
evil takes the place of the good.’

III.—One’s judgement may be influenced in either direction by arguments

from facts

Very often in a doubtful matter, however, after some investiga-
tion the mind does not remain neutral but is influenced to this side
or that by arguments drawn from the facts, or by the opinion which
it gathers from other men * who express their view of the matter.
For here also is the saying of Hesiod * true, that the most excellent
thing is to be wise of one’s self; the next best, to be directed by
the help of others.

Arguments from the facts are drawn from causes, effects, and
other collateral circumstances.

IV.—One’s judgement may be influenced in either direction by authority

To consider aright the arguments to which we have made refer-
ence, one must havea certain degree of experience and skill. Thosewho
do not have such skill and experience are bound to listen to the
counsels of the wise, in order that they may rightly mould their

1 Pliny, Letiers, I. xix [TI. xviii]: ‘Do not do that in regard to which you are in doubt.’

* Augustine. On Order, Book III [II. v. 16]: ‘It is a twofold way which we follow when the
obscurity of things affects us, we follow either reason or authority.’ This is explained by Gabriel
Vazquez, Disputations, 62. ili, 10.

3 This thought of Hesiod is applied by Minutius after a lost battle, in Livy, XXTI [XXII. xxix. 8]:
‘ The man stands first who forms a plan which is effective; next after him 1s the man who listens to
one that gives advice ; he who knows neither how to look out for himself, nor how to obey another,
is of the lowest intelligence.’ Cicero, For Cluentius [xxxi. 84], says: ‘Men say that he is the wisest
into whose mind the idea which is needed comes; next ranks the man who follows the able devices
of another.’

The verses of Hesiod [Works and Days, 293 ff.] from which these views are derived run as follows:

Best is the man who sees what useful is, what not,

And even keeps in mind the distant goal,
Next is the man who well has learned wise plans to follow.
But he who has no er to , and hearkens not

To others’ good advice, is void of usefulness.

Chap. XXIII] On Doubtful Causes of War 559

practical judgement. For, on the testimony of Aristotle, ‘things
generally admitted’, or probable things, ‘are those which seem so to
all, or to the majority, or at any rate to those who are wise; and
again, of the wise, either to all, or to the majority, or to the more
eminent’. This method of judging is especially employed by kings,
who hardly have the time to learn or to weigh thoroughly the principles
of the branches of knowledge.

The throng of wise men makes the ruler wise.

Aristides, addressing the Rhodians in his discourse On Concord,
said that just as in questions of fact that is held to be true which is
supported by the most and especially competent witnesses, so in
matters of judgement we must follow the opinions which are sup-
ported by the more numerous and most eminent counsellors. Thus
the ancient Romans used not to make war without consulting the
college of the Fetials, organized for this purpose, and the Christian
Emperors rarely did so without giving a hearing to the bishops, that
they might be advised of anything which might give rise to religious
scruples.

V.—If in a weighty matter there is doubt on both sides, and one of two
courses must be chosen, that which ts the safer is to be adopted

I. In many controversies it may happen that strong arguments
are forthcoming in support of both sides, whether drawn from the
facts in the case or supported by the authority of others. When this
occurs, if the matters which are in question are of slight moment
the choice may evidently be free from harm, no matter on which
side it may fall. But if the question is one of great importance, such
as the infliction of capital punishment, in that case, because of the
great difference between the courses to be chosen, the safer is to be
preferred, as is commonly said :

Nevertheless ’tis better on this side to err.

And so it is better to acquit one who is guilty than to condemn one
who is innocent.

2. ‘The author of the Problems which are attributed to Aristotle
says: [395] ‘ Each of us would prefer to acquit a guilty man on
the ground that he had not done wrong than to condemn an innocent
man for having done wrong’ (in this passage 7) dduxovvros is com-
monly read for d&ixotvros, and conversely). Shortly after he adds the

2 Ammianus Marcellinus, Book XXVIII [XXVIII. i. 40]: ‘If anger is unappeasable, it is
a mark of the greatest harshness. If, on the other hand, it can be assuaged by entreaty, it shows the
greatest lenity. Nevertheless leniency, even in the case of crimes, is to be preferred to harshness.’
This is explained by Vazquez in the work cited [Dispuiations, 62}, iv, no. 21.

1569-27 Pp

Aristotle,
Topics, I.

=
Lf

[Gellius,
XIII
XVI J

[=p. 378
BC,]

[Terence,
Brothers,
IT. i. 20.]

xxix [13].

[Orations,
X1V |

I (679 £.].

On Duttes,
I [x1. 34].
Victoria,
De Iure
Belh, no.
28.
[Eunuch,
IV vu.

19 f£.]

fIII. 185.)

[Supph-
ants, 347.]

560 On the Law of War and Peace [Book II
reason, which we have already given: ‘ For, whenever anyone is in
doubt, he must choose that in which there is less wrong.’ Antiphon
declares: ‘If it is necessary to err in any way, it is more in accordance
with right to set free without justification than wrongfully to con-

demn. For in the one case a mistake is made, but the condemnation
of an innocent person is a crime.’

VI.—W hence it follows that in case of doubt we must refrain from war

Now war is of the utmost importance, seeing that in consequence
of war a great many sufferings usually fall upon even innocent persons.
Therefore in the midst of divergent opinions we must lean towards
peace. Silius Italicus praises Fabius, for—

With cautious mind the future did he scan,
Nor took delight

To stir up war for causes

Slight and doubtful.

There are, moreover, three methods by which disputes may be
prevented from breaking out into wars.

VII.—First, war may be obviated by a conference

1. The first method is by a conference. Says Cicero: ‘ Since
there are two methods of settling a difference, the one by argument,
the other by force, and since the former is characteristic of men, the
latter of beasts, we should have recourse to the second only when it
is not permitted to use the first.’ And Terence has this :

The wise man should try all things before arms ;?
How know you if my bidding she will do
Without constraint ?

Apollonius Rhodius said,

Not at once with force ere with words we try to win him ;

and Euripides :
With words shall I try to win ; if that fails, then with force.

1 Dionysius of Halicarnassus in the Selections on Embassies [704, ed. Oxon.]: ‘One must not
resort to deeds before the way of words has been tried.’ Menelaus in Libanius [Oratéons, i=p. 196 D]:
‘It is more fitting for a man first to try argument rather than to rush at once to arms.’

In accord with this point of view are the words of the chorus in the Helena of Euripides [1150 ff]:

[400] Fools in sooth are they who set
A single test for virtue—steel ;
Who seek for human strife no pause
Save by the ruthless sword ;
For if in blood alone can virtue be discerned
Then raging discord never will desert
The states once embattled.

Chap. XXIII] 561

which

On Doubiful Causes of War

The same author in his Supplianés thus rebukes the states
have failed to try this method :

You too, O cities, that by slaughter prefer
To decide what words might settle.

Again, in the Iphigenia in Aulis, Achilles says :

If he obeys the right, no need have you of aid
From me; in this alone is there enough of safety.
At once a friend’s good will shall I retain,

And from my whole array less censure have,

If this by reason, not by strife, I settle.

Also, in his Phoenician Maidens, we read this :

For parley will accomplish all
That foemen’s steel would e’er effect.

The same thought is more fully expressed in Livy by Phaeneas : ?
‘To avoid the necessity of fighting, men voluntarily relinquish many
things which they could not be compelled to give up by war and
force.” In Book VII of Herodotus, Mardonius criticizes the Greeks
in this regard: ‘They ought, speaking the same tongue, to settle
their controversies by the use of heralds and envoys rather than by
battle.’

2. In Dionysius of Halicarnassus Coriolanus declares: ‘ Not to
desire the things of others, but to demand the things that are one’s
own and, if these are not obtained, [396] to fight for them, all
would agree is fair.’ In the same Dionysius King Tullus says: ‘ The
things that cannot be settled by words are decided by arms.’ In
Tacitus Vologeses uses these words: ‘What my ancestors had won
I should have preferred to retain by justice rather than blood, by
reason rather than arms.’ Says King Theodoric: ‘’'Then only is it
expedient to resort to arms when justice cannot find a place among
our adversaries.’

VIII.—Second, war may be obviated by arbitration ; with a discussion
of the duty of Christian kings in regard to warring parties

I. The second method is by agreement to arbitrate.? This is
applicable among those who have no common judicial authority.

t Donatus, On [Terence’s] Eunuch []. it. 94]: ‘For it is a well-known fact that the very thing
that you would have defended to the limit of your strength if attempt had been made to wrest it from
you, afterward you may abandon to him who does not try to seize it.’

* A way very often scorned by the more powerful. See Connestagio, On the Union of the Kingdoms
of Castile and Portugal. It is a worthy way, however, which lovers of justice and peace should pursue.
Great kings and peoples, who have been mentioned in the text, have done so. Let us add others.

Arbitrators were accepted between Magnus, king of Norway, and Canute, king of Denmark, who
were rivals for both kingdoms; just as J , first of that name, wished by an interdict to come to
terms with Severus who opposed him for the Roman principate [Spartianus, Lsfe of Pescesnius Niger,

Pp2

[745-}

[r0o17 f.]

[516 f.]

[AXXV.
mlv. 4.]

(VII. 1x.]

[VIE],
vin J

(TIT. xi.}

[Anmals,
XV. 11.]

Cassio-
dorus,
Variae,
III. i.

I. Ixxxv.]
iLV. Ixv ]

(I, xxviii ]

Platonic,
=p 248
B ]
xxx J

Livy, VIII
(III ixxi].
[Cicero,
On Duties,
I x 33]

Xenophon.

Training
of Cyrus,
II fiv. 8].
[Livy,

XL xvii ]
VIII
{xxiii].
XXXII
[x. 5].
Plutarch,
Pompey
(xxxiu=p,
637 c].
(Numa xii
=p. 68 a]

On the Law of War and Peace [Book II

562

‘It is not lawful’, says Thucydides, ‘to proceed against one who
offers arbitration, just as against a wrong-doer.’ ‘T’hus, as Diodorus
relates, Adrastus and Amphiaraus entrusted to Eriphyle the decision
regarding the kingdom of Argos. Concerning Salamis three Lacedae-
monians were chosen to judge between the Athenians and the
Megareans. In Thucydides, who was just now quoted, the Corcyreans
notify the Corinthians that they are ready to adjust their disputes
before cities of the Peloponnesus upon which they shall mutually
agree. Aristides praises Pericles because, to avoid war, he desired ‘ to
reach an agreement before a tribunal regarding their differences’.
Isocrates [ Aeschines], in his speech Against Ctestphon, commends Philip
of Macedon for being ready ‘ to entrust to some fair and impartial
city’ the settlement of the differences which he had with the
Athenians.

2. In like manner in former times the people of Ardea and Aricia,
and afterwards the Neapolitans and the inhabitants of Nola, submitted
their disputes to the judgement of the Roman people. The Samnites
in a controversy with the Romans appealed to mutual friends. Cyrus
brings in the king of India as an arbiter between himself and the king
of Assyria. The Carthaginians in their quarrel with Masinissa appealed
to legal tribunals in order to escape war.

In Livy the Romans themselves in the case of a controversy with
the Samnites appeal to common allies. Philip of Macedon in his
dispute with the Greeks says that he will accept the decision of
peoples with whom both parties may be at peace. At the request of
the Parthians and Armenians Pompey appointed arbitrators to
fix their boundaries. Plutarch says that this was the chief duty of
the Roman Fetiales, ‘not to permit military operations before all
hope of a judicial settlement was cut off’. Regarding the Druids in

chap. ii]. Magnus, king of Sweden, was accepted as arbitrator between the two Erics, kings of Denmark
and Norway.

Five Spartans, Critolaidas, Amompharetus, Hypsechidas, Anaxilas, and Cleomenes, were chosen
to judge between the Athenians and the Megarians with regard to Salamis [Plutarch, Solon, x =p. 83 E].
In the treaty between the Lacedaemonians and Argives, in Thucydides, V, the provision is inserted :
‘ Who wish to submit to arbitrators according to ancestral custom.’ Shortly after: ‘ If any of the allied
states should have a controversy with another ally, let them refer the matter to a state which shall
seem impartial to both.’ Both citations are in Thucydides, Book V [V. lxxix].

Marcus Antoninus [Antoninus Pius] was chosen by many peoples outside the Roman Empire to
arbitrate their differences, in order that they might avoid war; as [Aurelius] Victor [Epztome, xv. 3]
and others record. In Procopius, Gothic War, JIT [III. xxxiv], the Gepidae say to the Lombards:
‘ We are ready to settle our differences by recourse to an arbitrator; it is wicked violently to assail
those who are willing to abide by the decision of a tribunal.’ In the same author, Gothic War, IV
[IV. xxiv], Theudebald, king of the Franks, shows that he is ready to accept a judge to decide his
disputes with the Romans.

See also the intimation given in olden times to Philip by the Romans in Polybius, Selections on Em-
bassies, iv [=Histories, XVI. xxxiv], and what is in the treaty of Antiochus from Polybius, also in the
same Selections, xxxv [=Hisiories, XVIII. xlviii and i].

The ring of England was judge concerning the succession in Scotland; Count Holsatus between
the king of Denmark and his brothers,as Pontanus [4or] records in his Danish History, Book VII.
Add the examples in Mariana, XXIV. xx and XXIX. xxiii; in Paruta, VII and XI; in Bizarni, XTI
[p. 260}; in Krantz, Saxonica, VI. xv; and our own, below, III. xx. 46.

Chap. XXTIT] On Doubtful Causes of War 563

Gaul Strabo says: ‘ Formerly they both served as arbitrators between
those at war and often separated those who were about to engage in
battle.” The same author bears witness that in Spain the priests
discharged the same function.

3. Especially, however, Christian kings and states are bound
to pursue this method of avoiding wars. For if certain arbiters were
established both by Jews and by Christians in order that the sentences
of strange judges might be avoided by those of the true faith, and this
was prescribed by Paul, how much more should this be done to avoid
a far greater disadvantage, that is, war? ‘Thus Tertullian argues
somewhere that the Christian must not serve as a soldier, seeing that
he is not even permitted to go to law; but this argument, in accor-
dance with what we have said in another place, is to be interpreted
with a certain degree of moderation.

4. Both for this and for other reasons it would be advantageous,
indeed in a degree necessary, to hold certain conferences of Christian
powers, where those who have no interest at stake may settle the
disputes of others, and where, in fact, steps may be taken to compel
parties to accept peace on fair terms.” Diodorus and Strabo relate
that this was the function of the Druids among the Gauls.? We
read also [397] that the kings of the Franks entrusted the decision
on the division of their kingdom to their leading men.

IX.—T hird, war may be obviated even by lot

The third method is by lot.* The use of the lot for this purpose
was recommended by Dio Chrysostom in his second speech Agaznst
Fortune, and much earlier by Solomon (Proverbs, xviii. 18).

X.—W hether single combat may be permitted as a means of avoiding war

1. Something akin to the lot, furthermore, is single combat.
Resort to single combat it does not seem necessary altogether to reject
if two persons, whose disputes would otherwise afflict whole peoples
with very serious evils,” are ready to settle their dispute by arms, as

: Gregoras, On Alexander the Bulgar, X [X. iv. 279]: ‘It is unseemly for Christians to fight among
themselves with such bitterness, when there are ways of agreeing upon peace, and of turning their
common forces against the wicked.’

__.* See the example in Cassiodorus, [Variae,] III, 1, 2, 3,43; and Gail, De Pace Publica, Il, chap.
XVili, nO. 12. ;

3 In this respect, and with better right, the bishops were the successors of the Druids. See the
letter of the bishops to King Louis in the €apitularies of Charles the Bald; and, on the bishops of
Spain, Roderic of Toledo, Book VII, chap. til. .

« See Augustine, On Christian Doctrine, I. xxvill. .

’ The author of the tragedy at Thebes [Euripides, Phoentcian Masdens, 564] writes:

Seek which of you shall be the king,

But let the kingdom still remain.
Dio Cassius says of Otho [Xiphilinus, Excerpta Dionis, LXIV. xiii]: ‘ For it is more fitting and more
just that one should die for all than many for the sake of one.’

IV’ jiv. 4).

XI 1n. 6.

Victoria,
De Lure
Bellt, no.
28.

(I ii. 9. 4.1

Molina,
disp. 103,
§ Quando
inter.
Aegidius
Regius,
De Actibus
Supernat ,
disp. 31,
dub. 4,
no. 72.

[Diodorus,
V. xxx1.]
[Strabo,
IV. 1v. 4.]

Thomas,
Il. ii, qu.
95, art. 8,
and
Cajetan
thereon.
[Oratrons,
Ixiv==

P. 599 ]

Herodo-
tus, VIT

[IX. xxv}.

Plutarch,
Greek
Qirestians
[XLuL=p
294 B]
Strabo,
VIII fin
33]-
Livy,
XXVIII
[xa.. 61.
VL
Xx111. 9]
loc, cit.
[VIII in.

33]:

(I ii. end.]

Dag. L.
xvii. 128.
Victoria,
De Ture
Belli, nos.

27 and 30.

Lessius,
De Lustt-
tia, xxix,
dub. ro;
fII. v. 18.]
[xxix. 13.]

On the Law of War and Peace [Book II

564

in olden times Hyllus and Echemus for the Peloponnesus, Hyperochus
and Phemius for the country adjacent to the Inachus, Pyraechma an
Aetolian and Degmenus the Epean for Elis, and Corbis and Orsua
for Iba. In fact it seems clear that, if the combatants should themselves
not act aright, assuredly the decision might be accepted by their
states as the lesser evil. According to Livy, Metius addressed Tullus
as follows :

Let us follow some course by which it may be decided which people shall rule the
other, without a great disaster and without much bloodshed of either people.

Strabo says that this was the ancient custom of the Greeks; and in
Virgil} Aeneas says that it was right that the dispute between himself
and Turnus should be decided in this way.

2. This, among other customs of the ancient Franks,” is strongly
commended by Agathias in his first book, and I shall cite his own words
because they are notable ;

But if it should happen that any disputes arise between their kings, then all form in
line of battle for the purpose of waging war and reaching a decision by force of arms, and
they march to meet one another. But when the armies on either side behold each other,
straightway they cast aside their anger and change to friendship, and they bid their kings
to settle their disputes rather by arbitration. If these are unwilling to do this, they bid
their kings to fight in single combat and incur danger in their own persons, on the ground
that it is not just and right, nor in accord with the practices of their forefathers, that
because of their private enmity they should weaken or destroy the common good.

Immediately, therefore, they disband their armies; with the restoration of peace
they enjoy intercourse with one another in safety, since the causes of the troubles have
been removed. So great among their subjects is the zeal for justice and the love of country ;
and, on the other hand, the spirit of their rulers is mild and easily persuadable by their
subjects.

XI.—W here the doubt on either side is equal, he who 1s in possession has
the more advantageous position

Although when the cause involves doubt each party is bound to
try to find conditions under which war may be avoided, nevertheless
the party who asserts claims is under greater obligation to do this
than the party who is in possession.® For it is in accordance not only
with the civil but also with the law of nature, that when each party
has a cause equally just the case of the party having possession is the
better. ‘The reason for this we have adduced elsewhere from the
Problems which are attributed to Aristotle.

+ Aeneid, XI (XI. 115]:
For Tumus had it been more just to meet this death.
For a like reason Antony challenged Octavius to single combat ; Plutarch, Anjony [lxii=p. 944 E].
* See the Capitulary of Charles the Bald im St. Amulf, and the Treaty of Aix-la-Chapelle. The
same equitable custom prevailed among the Lombards; $ee Paul Wamefrid [Paulus Diaconus], I. xi: ;
~ xvi; V. xi. |
* See Herrera, vol. 11.

Chap. XXIIT] On Doubtful Causes of War 565

At this point we must add that war cannot permissibly be waged
by him who knows that he has a just cause but has not adequate proofs
to convince the possessor of the injustice of his possession; the
reason is that he does not have the right to compel the other to
surrender possession.

[398] XIIl—When the doubt on either side 1s equal, if neither party
1s in possession the thing under dispute should be divided

In cases in which the right is in doubt, and neither party is in
possession, or each holds possession in an equal measure, he is to be
considered in the wrong who rejects a proposed division of the thing
under dispute.

XIW.—The question whether a war may be gust from the view-point of
both parties 1s discussed, with many qualifications

I. From what we have said it is possible to reach a decision
regarding the question, which has been discussed by many, whether,
if we take into consideration the prime movers, a war may be considered
just from the point of view of each of the opposing sides.

We must distinguish various interpretations of the word ‘ just’.?
Now a thing is called just either from its cause, or because of its
effects; and again, if from its cause, either in the particular
sense of justice, or in the general sense in which all right conduct
comes under this name. Further, the particular sense may cover
either that which concerns the deed, or that which concerns the doer ;
for sometimes the doer himself is said to act justly so long as he does
not act unjustly, even if that which he does is not just. This dis-
tinction between ‘ acting wrongly ’ (76 déuxety) and ‘ doing that which
is unjust ’ (rd adixov wparrev) is rightly made by Aristotle.

2. In the particular sense and with reference to the thing itself,
a war cannot be just on both sides, just as a legal claim cannot; the
reason is that by the very nature of the case a moral quality cannot
be given to opposites as to doing and restraining. Yet it may actually
happen that neither of the warring parties does wrong. No one acts
unjustly without knowing that he is doing an unjust thing, but in this
respect many are ignorant. Thus either party may justly, that is in
good faith, plead his case. For both in law and in fact many things
out of which a right arises ordinarily escape the notice of men.

3. In the general sense that is usually called just which is free
from all blame on the part of the doer. However, many things
are done without right and yet without guilt, because of unavoidable

1 So Gratian, after Decretum, II. xi. 3. 65, distinguished a ‘ justice of cause, of sequence, of mind ’.

Molina,
disp. 103,
§ im secun-
do vero;
Lorea, On
IT, it,

§ 3, disp.
33; 10. 4.

Lorca,

On II. ti,
qu. 40,
disp. 53;
Soto, De
Justitia

ci Juve, V;
xh, art. 7

Covarru-
vias, On
Sext, V
ult. 4, § ro,
no. 6;
Alciati,
Paradoxa,
II, xxi;
Fulgosius,

Alberico
Gentili,

I. vi.
Ethics, V.
x, xi;
Rhetorsc,
I. xii.
Aug , City
of God, XV.
v; XIX.
xv; Co-
varruvias,
On Sext,
V. ult. 4,

§ 10, no. 2;
Victona,
[De Lure
Bells,] no.
32; Sua-
rez, De
Legitus,
III. xviti ;
Alphonsus
de Castro,
De Potes-
tate Legis
Poenalis,
I. i and iii.

Rhetoric,
III. xvi.
If, viii
[Insteiutes,
II. xvii.
$I].
Topics,

I. xu

[I xv. 10}.
Nicom
Ethics, V.
x1

566

ignorance. An example of this is the case of those who fail to observe
a law of which they are ignorant through no fault of their own, after
the law itself has been promulgated and a sufficient time has elapsed
for them to know of it. So it may happen in the case of legal claims
also, that each party is guiltless, not only of injustice, but also of any
other fault; this is especially true where each party, or even one of
the two, pleads not in his own name but in the name of another, for
example because of his duty as a guardian, which cannot abandon
a right even if it is uncertain.

In this sense Aristotle declares that in suits concerning a disputed
right neither party is dishonourable or, as he says, ‘wicked’. In agree-
ment therewith Quintilian says that it may happen that an orator,
that is a good man, may speak on either side. Furthermore Aristotle
also says that a judge is said to judge justly in a twofold sense, for this
means that he judges either ‘as he ought’, without any ignorance, or
‘in accordance with his own judgement’. And in another place he
says: ‘If a judge has rendered judgement through ignorance, he is
not unjust.’

4. In the case of war, however, it is scarcely possible that
rashness and lack of kindly feeling should not play some part, because
of the seriousness of the business. ‘The seriousness of war is in all
respects such that, not satisfied with merely acceptable causes, it
demands causes that are perfectly evident.

5. If we interpret the word ‘just’ in relation to certain legal
effects, in this sense surely it may be admitted that a war may be
just from the point of view of either side; this will appear from what
we shall have to say later regarding a formal public war. So, in fact,
a judgement not rendered according to law, and possession without
right, have certain legal effects.

On the Law of War and Peace [Book II

CHAPTER XXIV

WARNINGS NOT TO UNDERTAKE WAR RASHLY,
EVEN FOR JUST CAUSES

l.—Often a right should be given up in order to avoid war

[402] 1. Although it does not seem properly to be a part of this
work, which is entitled On the Law of War, to inquire what other
virtues enjoin or admonish with regard to war, nevertheless we must
proceed to correct an error, in order to prevent any one from thinking
that, where a right has been adequately established, either war should
be waged forthwith, or even that war is permissible in all cases. On
the contrary it frequently happens that it is more upright and just
to abandon one’s right.

That we may honourably neglect the care of our own lives in
order that, to the best of our ability, we may safeguard the life and
eternal salvation of another, has been stated above in its proper place.
Such conduct is above all becoming for Christians. In this they
imitate the most perfect example set by Christ, for He was willing
to die for us who were as yet ungodly and hostile (Romans, v. 6). This
fact of itself much the more urges us not to follow up our own interests,
or what may be due to us, so far as to cause others the suffering that
wars bring with them.

2. [hat war is not to be undertaken for every just cause?
is the advice of Aristotle and of Polybius. The ancients did not
praise Hercules because he made war on Laomedon and Augeas on
account of the failure to receive recompense for his toil. Dio of Prusa,
in his oration On War and Peace, says that it is customary not only
to inquire ‘whether an injury has been done by those upon whom it
is proposed to make war’, but also ‘ how great is the estimate of the
damage done’.

2 Seneca, Suasoriae, V [V. viii]: ‘ Gallio has said that war is to be undertaken in defence of
liberty, of wives, of children; it is not to be undertaken for the sake of a superfluous thing which
would cause no harm if it should be done.’

Something further was said by Apollonius to the king of Babylon, according to Philostratus, i. 23
[Life of Apollonius of Tyana, i. 38]: ‘ Moreover, he added that he should not dispute with the Romans
over villages, smaller than those often possessed by individuals, and that he should not ga to war even
for great causes.’ ;

Josephus, in his second book Against Apron [TI. xocxvil. 272], says of his countrymen: [408] ‘Our
people do not develop their courage in order that they may increase their territory, but that they may
preserve their laws. While therefore we endure other losses easily, when there are those who try
to force us to abandon our laws, we even undertake wars that are beyond our strength, and hold out
to the bitter end.’

567

Victona,
De Iure
Bells, no.
I4 and 33.

Polybius,
IV [xxxi].
Rhet. to
Alex., ril.
Pausanias,
V [ii].
(Orations,
xxx1i=

P. 275.)

iIXLIV
XXXL |

VUIV.
xliv]

"On Nic.
Ethites,
VIII.
xvui ]

(Letters,
CXXX111 2 |

[Oraiiones,
ll=p. 50.]

568 On the Law of War and Peace [Book II

Il.—Especially the right to inflict punishments ought to be given up in
order to avoid war

1. There are in truth many reasons which admonish us to forgo
punishments. Let us observe how many things fathers pass over in
their sons; with regard to this there is a discourse of Cicero in Dio
Cassius. As Seneca says:+ ‘ Unless many great wrongs have over-
come his patience, unless what he fears is more than what he con-
demns, a father will not take up the pen for condemnation.’ This
differs but little from the saying of Phineus, in the account of Diodorus
Siculus: ‘No father willingly exacts punishment from his sons,
unless by the enormity of their wicked deeds they overcome the natural
love of parents for their children’; and from that of Andronicus of
Rhodes: ‘ No father cuts off his son unless he should be excessively
wicked.’

2. Now whoever wishes to punish another assumes in some
measure the character of a ruler, that is of a father.2 With this in
mind, Augustine said to Count Marcellinus: ‘ Perform, O Christian
judge, the function of a dutiful father.’ The Emperor Julian praises
the saying of Pittacus, ‘ who sets pardon above vengeance’. Libanius,
in his oration on the riot at Antioch, says, ‘ Let him’, who desires
to be like unto God, ‘ take delight rather in forgoing punishments
than in exacting them.’

3. At times the circumstances of the case are such that to
refrain from the exercise of one’s right is not merely praiseworthy

1 On Clemency, I. xiv. Augustus, acting as an adviser to a father with regard to his son, who had
been caught in attempted parricide, said: ‘That the son should be banished, to whatever place the
father should approve. He did not sentence the son to,the sack and the serpents, or to prison; he
was mindful, not of him upon whom he was passing sentence, but of him whom he was assisting in
counsel; he said that a father should be satisfied with the most lenient form of punishment.’ The
words are from Seneca in the same book, chap. xv.

Terence says in the Andria [V. iii. 32]:

For a great fault a little punishment may satisfy a father.

Philo says [On Nobility, 11]: ‘ Fathers pronounce the sad words of disinheritance, and cut off their
sons from their home and all their relationship, only then when that love which, strong and exalted
above all things, nature gave to parents, has been overcome by the wickedness of the sons.’

Cicero, For Legarzus [x. 30]: °“* Pardon him, judges; he has done wrong; he has fallen; he did
not stop to think; if ever again.” In this way a plea is wont to be made to a father.’

* Seneca, Letters, xxxvii [Ixxxvili. 30]: ‘Clemency spares the blood of another, as if it were
one’s own, and knows that it is not for a man to make wasteful use of his fellow man.’ Diodorus
Siculus in the fragments [XXI. xvii] says: ‘Not absolutely all who have done wrong are to be
punished, but those who feel no repentance for their sins.’

Chrysostom, On the Statues, VI [VI. iii]: ‘ Let all who are strangers to our faith know that the
reverence whith is shown to Christ is so great as to impose restraints upon any power. Honour thy
master; pardon the sins of thy fellow bondmen, so that Christ Himself shall much the more honour
thee, and in that day of judgement show thee a calm and kindly countenance, being mindful of this
leniency of thine.’

Gratian, Decretum, IL. xxiii. 4 [II. xxiii. 4. 35], cites from Augustine [rather Bede, On Galatians,
chap. vi]: ‘ When we use these two terms, man and sinner, they are not spoken in vain ; because he is
a sinner, reprove him ; because a man, pity him.’ See also what follows, and what we have noted above
on II. xx. 12, 26, and 36 [pages 483, 492-3, 5or].

Chap. XXIV] Warnings not to Undertake War Rashly 569
but even obligatory, by reason of the love which we owe even to men
who are our enemies, whether this be viewed in itself or as the most
sacred law of the Gospel demands. From that point of view we have
said that there are some persons for whose safety we ought to desire
to die, even if they should restrain us, because we know that they are
necessary, or extremely useful, to mankind in general. If Christ
desires that some things be overlooked in order to avoid engaging in
lawsuits, then in proportion as a war is more harmful than a lawsuit
the more earnestly must we believe that He desired us to pass over
greater things in order to avoid going to war.

4. ‘For a good man to surrender a part of his [403] right
is not only generous, but generally advantageous also,’ is the saying
of Ambrose. Aristides advises states to ‘come to terms and to pass
over whatever is of only moderate importance ’. As a reason he adds :
‘ For among private persons also, you praise those who are complaisant
and prefer to suffer some wrong rather than to dispute with any one.’
Xenophon in the sixth book of his Greek History says: ‘ It is the duty
of wise men not to undertake war, even if the differences are no mean
matters.’ And Apollonius in Philostratus advises: ‘ War ought not
to be waged even for great things.’

IIIl.—A right should be given up, especially by a king who has been
wronged, in order to avoid war

1. Regarding punishments it is first of all our duty, if not
as men, assuredly as Christians,1 readily and gladly to pardon the
wrongs done to us, just as God pardons us in Christ (Ephestans, iv. 32).
‘To be free from anger’, says Josephus,” ‘in respect to the things
for which guilty men are liable to the penalty of death, approaches
the nature of God.’

2. Seneca says of the prince:

Let him be far more ready in forgiving the wrongs done to himself, than those done
toothers. For, just as the generous man is not one who gives from what belongs to another
but one who gives to another what he takes from himself, so I shall not call that prince
gentle who is easy-going when another suffers, but him who, when goaded by personal
injuries, does not lose self-mastery ; who perceives that it is the mark of a great soul when
a man possessing unlimited power endures wrongs, and that nothing is more glorious
than a prince who has received a wrong without avenging it.®

1 Theodosius was induced by the Bishop Flevian to pardon the citizens of Antioch for their
crime against him, through these very words of Christ: ‘Father, forgive them, for they know not
what they do.’ The incident is related by Chrysostom, On the Sictues, XX [XXI. iv].

2 Antiquities of the Jews, II. iii [IT. vi. 8].

’ Chrysostom, in praise of clemency [On Genileness, near the end], says: ‘Clemency can be a
noble adornment for every man, but especially for those who [409] have been placed m authority.
For although the royal power may permit everything, to hold itself in check and to hold before it the
divine law as a guide for its actions constitutes an excellent claim to fame and glory.’

Augustine, in his Letters, civ [clxxxix. 8], Te Count Bomface, says: ‘Remember to pardon quickly,
if any one has sinned against you and has sought pardon.’

Molina,
De Ius-
fidia, il,
disp. 103;
Lorca,
disp. 153,
no. IZ;
Aegidius
Regius, De
dActibus
Superia-
turalibus,
disp. 31,
dub 7,
no. 107.

On Duties,
II ix [II
xx1, 106}.

VIL 5]

iT.
XXXVIL1.]

On Cle-
mency, I.
XX.

[Inst. of
Oratory,
V. xii. 6.]
{For
Ligartus,
Xl. 35 j

[LV xix]

[Letiers,
x] 32.]

[Orations,
XIX = P.
227.]

[Nac. Eth.
IV. viii.]
On Duties,

I [xxv.
88}.

Driedo,
De Liber-
tate Chris-
tirana, II.
vi.

[On
Duites,

I. xi. 33]
[On Cle-
mency,

Il. vii. 4.]

On the Law of War and Peace [Book II

970

Quintilian says: ‘We shall persuade the prince to desire the
praise won by humanity rather than the pleasure derived from
vengeance.’ In his praises of Gaius Caesar, Cicero puts in the first
place the fact that he was ‘ wont to forget nothing except the wrongs ’
done to himself.

According to Dio, in addressing Augustus, Livia said: ‘ Most
persons think that rulers should punish those who do harm to the
common interest, but should bear with those who cherish some
enmity against them.’ Antoninus the philosopher,’ in a speech to the
senate, declared: ‘ For in the case of an Emperor the avenging of his
own suffering is never pleasing; the more just it is, the more harsh
it seems.’ Ambrose in a letter to Theodosius wrote: ‘ You have
made a gift of your injury to the men of Antioch.’ In his eulogy of
the same Theodosius to the senate Themistius said: ‘'The good king
should show himself superior to those who have wronged him, not in
repaying injury, but in conferring kindness.’

3. Aristotle declares that one who is magnanimous is not
‘mindful of his wrongs’. ‘This is expressed by Cicero in the words :
‘Nothing is more worthy of a great and outstanding man than
readiness to be appeased, and forbearance.’ Signal examples of this
exalted virtue are presented to us in Holy Writ, in the case of Moses
(Numbers, xi. 12) and of David (2 Samuel, xvi. 7).

This obligation to pardon rests upon us with greatest weight
when either we too are conscious to ourselves of some sin, or when
the sin committed against us is the result of some human and pardon-
able weakness, or when it.is sufficiently clear that he who has wronged
us is repentant. ‘ There is a limit of avenging and punishing ’, said
Cicero, ‘and I do not know but that it is sufficient that he who has
wronged us should repent of his wrong-doing.’? ‘The wise man’,
said Seneca, ‘ will remit many penalties; he will save many persons
whose character is not sound but is curable.’

‘These reasons for refraining from war have their origin in the love
which we either owe to our enemies or rightly manifest toward them.

IV.—Even for the sake of one’s self and one’s dependants a ruler must
often refrain from war

1. Often indeed we find an obligation resting on ourselves and
ours * to prevent [404] a recourse to arms. Plutarch, in his Life of

1 In Vulcacius Gallicanus, Life of Avidius Cassius [xii]. |
* Procopius, Vandalic War, II [II. xvi]: ‘Seasonable repentance manifesting itself in those who
have sinned usually induces the injured to grant pardon.’
_ * Procopius, Gothic War, ITI. [II. vi], says that the Goths thus addressed Belisarius: ‘Since these
things are so, it will be the duty of the rulers of both peoples not to subordinate the safety of their

subjects to zeal for their own glory, but to prefer what is just and useful, not for themselves only but
also for their enemies.’

Chap. XXIV] Warnings not to Undertake War Rashly 571

Numa, says that, after the Fetiales had declared that war could justly
be undertaken, the senate debated whether it would be advantageous
to undertake the war.'! In one of Christ’s parables it is said that, if
a king has to strive in war with another king, he will first sit down, as
is the custom of those who take counsel seriously, and will weigh within
himself whether he who has ten thousand soldiers can be a match
for an enemy who leads twice that number. If he sees that he will
not be a match for his adversary, before the foe comes within his
borders he will send an embassy with instructions to arrange a peace.

2. In this way the people of Tusculum,’ by yielding everything
and refusing nothing,® gained peace from the Romans. In Tacitus
we find: ‘In vain was a cause of war sought against the Aedui.
When ordered to surrender money and weapons, of their own accord
they offered supplies in addition.? Likewise Queen Amalasuntha
informed the envoys of Justinian * that she would not resist with
armed force.

3. A limit in yielding may also be manifested, as Strabo records
of Syrmus, king of the Triballi, who forbade Alexander of Macedon
to enter the island of Peuce, and at the same time honoured him with
presents in order to show that he did what he did from a just cause
of fear, and not from hatred or contempt of Alexander.

What Euripides said concerning the states of Greece, you may
apply to any others you may wish :

Whenever men proceed to vote on war

No one reflects that death hangs over him,
But each destruction for the other plans ;

Had we, when casting votes, with our own eyes
The funerals beheld, the funerals as we voted,
Would not have perished war-frenzied Greece.

In Livy we read: ‘ Place before your mind not only your resources,
but also the power of fortune, and War’s uncertainty.’ Also in
Thucydides: ‘ Reflect on the unexpected element in warfare before
you engage in It.’

V.—Rules dictated by prudence regarding the choice between things that
are good

1. When men weigh such matters as those mentioned, they
deliberate in part regarding ends, not indeed intermediate but ulti-

1 Diodotus, in Thucydides, ITI [ITI. xliv], says: ‘ For even if I declare that they have done wrong
in the utmost degree I shall in any case not give orders that they be killed unless this is advantageous.’

* See Plutarch, Camillus [xxxvili=p. 149]. ;

* The king of Armenia did the same in the time of Severus, as Herodian records in Book III
[III ix. 2].

# See Procopius, Vandalie War, II [1I. v], and Gothic War, I [I. ui].

jxu=
p. 68 B.]

(Luke,
X1V. 3I.]

Livy, VI
[xxv1].
[Historves,
I, lxiv.]

VII fii.
8].

[Sup-
phanis,
481 ff.]

[XXX.
xxx. 20.]

(I.
Ixxviil.]

[viz]

[On Peace,
1=p 638 ]

[On Nie
Bith , IV.
iv.]

On Duties,
I [xxiv
83].

572 On the Law of War and Peace [Book II

mate ends; and in part regarding the means which lead thereto.
The end is always something good, or at least an avoidance of evil,
which may take the place of a good. Moreover, the means which
lead to this or that end are not sought for their own sake but only in
so far as they lead to the ends in view. Wherefore, in deliberations
the ends must be compared with one another; and also the means
which may be employed, the effective power of each for contributing
to the end, must be considered. For, as Aristotle rightly said, On the
Movement of Animals: ‘'The purposes which produce actions are of
two kinds, those arising from that which is good and those arising
from that which can be accomplished.’

For this sort of comparison there are three rules.

2. The first of the rules is this. If, from the moral point of view
at any rate, the matter under consideration seems to have an equal
effectiveness for good and for evil, it is to be chosen only if the good
has somewhat more of good than the evil has of evil. That is what
Aristides states thus: ‘ When the good is less than the evil, it is
better to give up the good.’ In his description of a large-souled
man Andronicus of Rhodes says that he will not incur dangers for
any and every cause, but only for causes that are of the highest im-
portance.

3. The second rule is: if the good and evil, which may proceed
from the matter under consideration, seem to be equal, it is only to
be chosen if its effectiveness for good be greater than for evil.

The third is: if the good and the evil seem to be unequal, and
the effectiveness for these things not less unequal, then the thing is
to be chosen only if its effectiveness for good is greater when [405]
compared with its effectiveness for evil than the evil itself compared
with the good ;* or if the good is greater in comparison with the
evil than the effectiveness for evil compared with that for good.

4. These ideas we have presented in rather studied terms ;
but Cicero moves toward the same goal by a more direct path when
he says that we must avoid offering ourselves to dangers without
cause, for nothing could be more foolish than that; consequently in
approaching dangers we should imitate the practice of physicians,
who cure by light treatments those who are not seriously ill, but are
compelled to apply dangerous and doubtful remedies to more serious
diseases. Wherefore he says that it is the part of a wise man, when
a storm arises, to withstand it with all possible means, ‘ especially
if you gain more good from a successful issue than evil from the risk
incurred’.

1 This rule is used with prudence by Narses, according to Procopius, Gothic War, II [II. xviii].

Warnings not to Undertake War Rashly 573

5. In another place Cicero says: ‘ When no great advantage
can be won, and even a slight failure may do harm, what need is
there to incur danger?’ Dio of Prusa in his Second Tarsus oration
has this: ‘ Granted that that which is to be borne may be hard and
unjust. Yet, if something unjust happens, we ought not on that
account to expose ourselves to misfortunes by striving against it.’
The same writer, further on: ‘ Just as, if such burdens press so heavily
upon us that we are unable to sustain them, we seek to cast them off ;
yet, if we are weighed down only moderately and with such burdens
that we see that either these or others more grievous must be borne,
we adjust ourselves so as to follow with our load as light as possible.’
Aristides, in his Second Sicilian Oration, says: ‘ Whenever fear is
greater than hope, why is it not right to take precautions ? ’

Chap. XXIV]

VI—An example in a deliberation between devotion to freedom and
devotion to peace ; whereby the slaughter of a people may be avoided

1. Let us draw an illustration from the question which, as
Tacitus relates, was once debated by the Gallic states: ‘ Whether
they desired freedom or peace.’

By freedom, understand civil-liberty, that is, the right of a state
to be governed by itself. This right is complete in a democratic state,
but limited in an aristocratic state ; it is especially complete in a state
where no citizen is excluded from office.

By peace, again, understand such a peace as will obviate a war
of annihilation, that is, as Cicero somewhere says in explaining this
problem in the Greek tongue: ‘If the city should be likely for this
cause to endanger the lives of all.’ An example is where a correct
forecast of the future seems to augur almost no alternative but the
destruction of a whole people. Such was the condition of the people
of Jerusalem when besieged by Titus. Everybody knows what Cato,
who preferred to die rather than obey a sole ruler, would have said
in this case. Here also apply the lines :

How easy is the virtuous act
By one’s own hand to flee from slavery ;

and many other things of this sort.

2. But right reason teaches otherwise. Life, to be sure, which
affords the basis for all temporal and the occasion for eternal blessings,
is of greater value than liberty. This holds true whether you consider
each aspect in the case of an individual or of a whole people. And so
God Himself reckons it as a benefit that He does not destroy men but
casts them into slavery. And again, through the prophet He advises

Letiers tu
wlificus,
XIII
XXV1L.

Ovations,
XExXIV=
Pp. 43r6.]

_Aistortes,
IV. Ixwrr.

Letiers to
Ailttcus,

IX. cxii
{IX. iv].

[Lucan,
Pharsalta,
IV. 576f.

2 Chronz-
cles, xii.
7-8.
Jeremiah,
XXVil. 13

Lucan,
Pharsaita,
III. 3501

Augustine,

City of
God,
XAIT. vi
TT Iwi
171 |

XVIII
(XVII. x].

[Ozho,
X11 =

p- 1072p ]

[Platonec,
is

p 2838 |

On the Law of War and Peace [Book II

574
the Jews to yield themselves as slaves to the Babylonians that they
may not perish of hunger and disease.1_ Wherefore, although praised

bv the ancients,
The ills Saguntum hath, by Punic soldiery besieged,

should not be approved, nor the considerations leading thereto.

3. The slaughter of a people in a case of this kind ought to
be considered as the greatest possible evil. Cicero in the second
book On Invention gives an example of necessity. He says that it
was necessary for [406] the people of Casilinum to surrender to
Hannibal, although the necessity had this qualification, ‘ unless they
preferred to perish by famine’. On the Thebans who lived in the
time of Alexander of Macedon there is preserved this judgement of
Diodorus Siculus: ‘ They brought complete destruction upon their
country, in a spirit of courage rather than of prudence.’ ®

4. On Cato, whom we have mentioned, and on Scipio, both of
whom declined to yield to Caesar after his victory at Pharsalus, we
find the following judgement in Plutarch: ‘ They are to be blamed
for the needless destruction of many good men in Libya.’

5. What I have said regarding liberty I wish to apply also to
other desirable things, if the expectation of a greater evil from the
opposite side is warranted in a greater, or even in an equal, degree.
As Aristides rightly says, it is the custom to save the ship by casting
out the cargo, not the passengers.

VII.—He who 1s not much the stronger ought to refrain from exacting
penalties

In exacting penalties, moreover, this must be observed particu-
larly, that war is not to be waged on such a pretext against him whose
forces are equal to our own. For, as in the case of a civil judge, he
who wishes to avenge crimes by armed force ought to be much more
powerful than the other party.

2 In Gunther [VIII. 155 ff.] Guido of Blanes speaks as follows in an address to the Milanese:

To keep our liberty secure we shall endure

All things. But no man of sound mind loves liberty
At risk of life. Destruction certain to provoke,
Which can be shunned, and without other hope,
Vain glory must be called, not love of liberty.

2 The defence of Anaxilas, who had surrendered Byzantium on account of famine, was this, that
men should fight against men, not against natural conditions. Such 1s the account of Xenophon
{Greek History, 1. iii. 19].

Procopius says, Gothic War, IV [IV. xii]: ‘ Men do not praise a voluntary death, as long as hope
is greater than the danger.’

* The same writer XVI. x], after explaining the reasons for the war which the Sithonienses
[Athenians] undertook after the death of Alexander the Great, says that in the opinion of the men of

eeper insight ‘ they had indeed chosen the right course for glory, but had strayed from the path of
advantage’, seeing that they had hastened ‘to rush into danger under no irresistible compulsion’,
without even permitting themselves to be warned by the noble min of the Thebans.

Chap. XXIV] Warnings not to Undertake War Rashly 575

Not merely prudence, in truth, or love of one’s own people,
ordinarily demands that we refrain from a dangerous war, but often-
times justice also requires it ; that is, rectorial justice, which from the
very nature of government binds the superior to care for his inferiors
no less than it binds the inferiors to obedience. From this follows the
view rightly handed down by the theologians, that the king who
undertakes a war for trivial reasons, or to exact unnecessary penalties,
is responsible to his subjects for making good the losses which arise
therefrom. For he perpetrates a crime, if not against the foe, yet
against his own people, by involving them in so serious an evil on such
grounds. According to Livy: ‘ War is just for those for whom it is
necessary, and arms are blameless for those who have no hope left
save in arms.’ Such a condition Ovid, in the first book of the Faszz,
hopes for :

Arms let the soldier bear, that arms
He may restrain.

VITI.—Jt results that war is not to be undertaken, unless of necessity

Therefore a cause for engaging in war which either may not be
passed over, or ought not to be, is exceptional ;* as for example when,
as Florus says, rights are more cruel than arms. Seneca says: ‘ It is
right to rush into dangers when we fear like evils if we remain quiet.’
This idea is expressed by Aristides in the following way : ‘ Then must
one choose to take the path of danger, even if the future is unknown,
whenever it is evidently worse to follow a peaceful course.’

‘A miserable peace is well exchanged for war’, says Tacitus,
certainly when, as he says, ‘ either liberty will follow those who dare,
or if conquered their condition will be the same’; or ‘ when’, as
Livy declares, ‘ peace is more burdensome to those who are in servitude
than wartofreemen’. The last statement does not hold if the outcome
appears to be such that, as Cicero has it, if you are beaten you will
be proscribed ; and if you gain the victory you will still be a slave.

IX.—Again, war 1s not to be undertaken save from a most weighty cause
at a most opportune time

A second occasion to engage in war is when, after inquiring into
the matter as one ought, the war is found to be in accordance with
right, and at the same time—which is of the highest importance—
the necessary resources are available. This is what Augustus used to

1 [410] Servius, commenting On the Aeneid, X FX. 758 f.]:
[The gods] pity the vain wrath of both,
And so great sufferings of mortal men,
gives as the reason: ‘ Because no cause is so just that war should be waged on account of it.’

1569°27 Qq

Cajetan,
Onll i,
qu. 95,
art. 8;
Molina,
De Iusti-
tia, 1,
disp 102.
X [IV.

1. IO].

(I. 715]

[IV xi.
[On Cle-
mency,

I. mu 5]
[On Peace,
i=p 678,]

[Annals,
ITT. xliv.]
[A istories,
IV. xxxi.]

X [xvi. 5].

Letters to
Atticus,

VII. vu
[7].

Suetonius,

Gellius,
MII uw;
Valerius
Maximus,

VIT. 1: 727,

Diodorus,
KVI
ixvu!

(II vu?

Camullus
[x=

p 1348].
Cify of

God, XIX.

VIL.

On the Law of War and Peace [Book II

576

say, that war ought not to be undertaken save when the hope of gain
was shown to be greater than the fear of loss. What Scipio Africanus
and Lucius Aemilius Paulus were wont to say about risking a battle
may be fittingly applied here : ‘ One should not fight unless a supreme
necessity ! or a most favourable opportunity should be presented.’
Such an opportunity will be found particularly when there is
hope that the matter may be settled by inspiring fear and on the
strength of reputation,” with little or no risk, as Dio advised for
liberating [407] Syracuse. In Pliny’s Letters occurs the statement :
‘He subdued by fear, which is the most excellent kind of victory.’

X.—The evils of war placed before our eyes

1. War is a cruel thing, says Plutarch, and it drags in its train
a mass of wrongs and insults. Augustine stated the case wisely :

If I should wish worthily to portray the many and manifold disasters, the bitter
and hard necessities resulting from these evils [he is speaking of those that arise from war],
although I am by no means equal to the task, what would be the limit of my discourse,
extended though it might be? But, they say, the wise man will wage wars that are just.
As if, provided he remembers that he is 2 man, he will not much rather grieve that the
necessity of just wars has arisen ; for if they were not just he would not have to wage
them, and in that case there would be no wars for the wise man. It is the wrong-doing
of the opposing party which forces the wise man to wage just, and indeed necessary, wars.

This wrong-doing is to be deplored by a man, because it is human,* even if no need of
waging war should arise from it. Everyone, then, who with pain thinks on these evils, so
great, so terrible, so ruthless, must acknowledge that this is misery. If, again, anyone
endures or reflects upon these things without anguish of soul, his plight is all the more
wretched, because he considers himself happy, while in fact he has lost his feeling for

humanity.

1 Plutarch says, in his Life of the Graccht [Comparison of Cleomenes and the Gracchi, iv=p. 845 a):
‘To resort to the steel, when not absolutely necessary, is characteristic neither of a good physician nor
of a good ruler.’

There is a saying of Marcian in Zonaras [XII. xxv. 32]: ‘A king ought not to engage in war
so long as he is permitted to enjoy peace.’

Augustine, Letiers, | [cloxxix. 6], To Boniface, writes: ‘ We should will to preserve peace; war
should be the result of necessity only, that God may free us from the necessity and keep us at peace.’

* * The lion, despising missiles, defends himself for a long time by the mere terror he inspires, and,
as it were, bears witness that he is compelled to fight.’ This is in Pliny, Natural History, VIII. xvi.

* The Lacedaemonians, in the address which Js found in Diodorus Siculus, Book XIII PXIII. li],
say: ‘Since we see that enmities in vast number, and atrocities in vast number, arise from war, we
thought it our duty to bear witness to all gods and men that the responsibility for these things does
not rest upon us.’

Plutarch in his Numa [Comparison of Lycurgus and Numa, iv =p. 78 B], says: ‘ Hereupon if anyone
should say to me, “ Has not Rome made the greatest progress through her wars ?”’ he will present a
question that requires an extended answer, particularly for men who estimate progress in terms of
wealth, luxury, and military authority, and not in the safety of the people, in gentleness, and in justice
that is satisfied with what 1s its own.’

Stephen, the physician of Khosroo, king of the Persians, says in Procopius, Persian War, II
(II. xvi] : ‘For you, most mighty king, who have been occupied with massacres and battles and the
taking Cities, other eed may perhaps be fitting, but it cannot come to pass that you should be

the excellent passage in Guicciardini, XVL.

there’

Chap. XXIV] Warnings not to Undertake War Rashly 577

The same author in another passage says: ‘To carry on war
seems to bad men felicity, to good men a necessity.” Maximus of
Tyre declares: ‘Even if you remove the element of injustice from
war, the necessity of it is in itself pitiable.’ The same Maximus,
again: ‘War seems not to be undertaken by the just except of
necessity, by the unjust of their own initiative.’

z. ‘To this we must add the saying of Seneca, that it is not for
a man to put his fellow man to wasteful use. Philiscus advised
Alexander to pursue renown indeed, but upon this condition, that he
should not make himself a plague or a violent disease. He meant that
the slaughter of peoples and the wasting of cities are the work of
a pestilence, but that nothing is more befitting a king than to have
regard for the safety of all; and this is accomplished by peace.

If by the Hebraic law even he who involuntarily slew a man was
obliged to flee; if God forbade David, who is said to have waged
blameless wars, to build His Temple, because he had shed much blood ;*
if among the ancient Greeks even those had need of expiation who
had innocently stained their hands with bloodshed, who does not see,
especially if he be a Christian, how unfortunate and ill-omened the
matter is, and with what effort a war, even if not unjust, is to be
avoided ? At any rate the Greeks who professed Christianity long
observed the canon by which those who had killed an enemy in a war
of any sort whatever were for a time ? excluded from the sacraments.

1 God did not permit him to construct the Temple because he had waged many wars and had
been polluted with blood—that of enemies, it is true, but yet blood.” The words are from Josephus
[Anitquities of the Jews], Book VII, chap. iv [VII. iv. 4], where there is more to the same effect.

Pliny [Natural History], Book VII, chap. xxv, after summarizing the battles of the Dictator Caesar,
says: ‘I at any rate should not count as glory the infliction of so much suffering on the human race,
even though accomplished under compulsion.’

Philo writes, On the Life of Moses [I. lvii] : ‘ For although it is permitted by the laws to kill enemies,
still he who has killed a man, no matter how justly, even in self-defence and because he has been
attacked, still appears to have polluted himself in some degree on account of the common relationship
derived from the Supreme Cause. Wherefore those who had slain enemies had need of some purification,
to wash away the pollution which seemed to have been acquired.’

* For three years: Zonaras, Nicephorus Phocas [XV1. xxv. 23].

Qq2

City of
God, IV.
EV.
,Disserta-
trons,
AXX, i
and i1.]

[Letters,
Ixxxvii.
30.)
Aehan,
XIV. x1.

[Numbers,
XXXV ;
Deuét ,xix.]
lr Chro-
nicles,
XXV11i. 3-]

Basu, To
Amphi.,
X. 13.
[Letters,
clxxxvitl,
13.]

Navarrus,
XXIV,
no 18.

Joshua,
x. 6,

[For the
wlanilian
Law, v.
rI.]
gains?
lerves,

act. II [V.

Iwiti, 149].

[Livy,
VII, xxx1
3]

[I. xvi.]

VII
[xxx].

[411] CHAPTER XXV
ON THE CAUSES OF UNDERTAKING WAR ON BEHALF OF OTHERS

l.—War may rightfully be undertaken on behalf of subjects

1. Inthe earlier part of this work, when we dealt with those who
wage war, we asserted and showed that by the law of nature each
individual was justified in enforcing not merely his own right but
also that of another. The causes, therefore, which are just in relation
to the person whose interest is at stake are just also in relation to
those who give assistance to others.

2. Now the first and particularly necessary concern is for
subjects,! either those who are subject to authority in a family, or
those who are subject to a political authority. They are, in fact, as it
were a part of the ruler, as we said in the same connexion. For this
reason, under the leadership of Joshua, the Jewish people took arms
on behalf of the Gibeonites, who had submitted to them. ‘ Our
ancestors ’, said Cicero, addressing the Romans, ‘ often waged wars
because their traders and sailors had been wrongfully treated.’ In
another speech hesaid: ‘How many wars did our ancestors [. . .] wage,
because it was said that Roman citizens had been wronged, sailors
detained, and traders robbed!’

The same Romans considered it necessary to take up arms on
behalf of peoples who had surrendered (that is, had been made
subjects), for whom they had refused to take up arms as allies. The
Campanians declared to the Romans: ‘ Even if you will not protect
our interests with justifiable force against violence and wrong, you
will surely defend your own.’ Florus says that the alliance formerly
made by the Campanians was rendered more sacred by the surrender
of all that was theirs. ‘ Good faith’, said Livy, ‘ seemed to require
that those who had surrendered should not be betrayed.’

II.—Yez war is not always to be undertaken on behalf of subjects

Nevertheless, wars are not always to be waged on behalf of
subjects even though the just cause of some subject places the ruler
under obligation to undertake them. Such wars are to be undertaken
only when this can be done without loss to all the subjects, or to the
majority of them. The duty of the ruler concerns the whole rather
than parts; and the greater a part is, the more nearly it approaches
the character of the whole.

2 Procopius, Perstan War, I [II. xv], says: ‘He who does wrong to no one is not completely just
unless also he has the determination to protect those entrusted to him against the wrongs of others.’

578

Chap. XXV] On Undertaking Way on Behalf of Others 579

Ill.—W hether an innocent subject may be surrendered to an enemy, in
order that danger may be avoided

1. Thus if one citizen, although innocent, is demanded by an
enemy, to be made away with, there is no doubt that he may be aban-
doned to them? if it appears that the state is by no means a match
for the power of the enemy.

This view is opposed by Fernando Vazquez; but, if you consider
his purpose rather than his words, he seems to be making this point,
that such a citizen is not to be hastily abandoned, where there 1s hope
that he may be defended. For he also cites the story of the Italian
infantry who deserted Pompey when his cause was not yet clearly
desperate, but when they had been assured of their safety by Caesar.
This conduct he deservedly censures.

2. Still the learned do discuss the question whether an innocent
citizen may be delivered into the hands of the enemy, in order to
prevent the ruin otherwise threatening the state; and the same
question was debated long ago, as when Demosthenes brought forward
the notable fable of the dogs, which the wolves demanded should be
surrendered to them by the sheep for the sake of peace. That such
a surrender may be made is denied not merely by V4zquez but also
by Soto, whose opinion is attacked by V4zquez as bordering on
treachery. Nevertheless, [412] Soto holds that such a citizen is
bound to surrender himself to the enemy; but this also is denied by
V4zquez, on the ground that the nature of political society, which
each enters for his own advantage, does not require it.

3. But from this nothing more follows than that a citizen is
not bound to surrender himself by law properly so called ; it does not
follow also that love permits him to do otherwise. For there are many
duties which are not in the domain of justice properly speaking, but
in that of affection, which are not only discharged amid praise (this
Vazquez does not recognize) but cannot even be omitted without
blame.

Such a duty seems quite clearly to be this, that a person should
value the lives of a very large number of innocent persons above his
own life. Praxithea in the Erechtheus of Euripides says :

For if I numbers know and from the less
The greater can distinguish, then the ill

That but one house afflicts is less by far
Than that of a whole city, nor with this compares.”

1 See the advice of the Patriarch Nicephorus given to Michael Rhangabe in regard to the return of
deserters to the leader of the Bulgars so as to secure peace, where we find in Zonaras . Xvi. 20]
these words: ‘ We should consider it better that a few should suffer ills than a vast multitude.’

2 ‘Tt is unfair that the whole should be considered an adjunct of a part.’ The passage is in Philo,
On the Life of Moses, at the end of Book II [I. lix], where there 1s more that is well worth reading.

Soto, De
Lustiitwa et
Ture, V,
qu. i, art.
7.
Controver-
stae Ilius-
tres, I. xin

[Frag
362,

19-21.)

Diodorus,

XVII [xv].

Xx. 45.]

(III. xix
64]

XLV
[xxvi. 8].

Lessius,
IT. ix,
dub. 7.

Plutarch,
Life of
Phocion
[xvii=p.
749 C).

On the Law of War and Peace [Book II

580

Thus Phocion used to urge Demosthenes and others, after the example
of the daughters of Leos and Hyacinthus,* to die themselves rather
than to permit an incurable evil to be inflicted on their country.

In his speech For Publius Sestius Cicero said :

If it had befallen me, when sailing with my friends on board some vessel, that from
many directions many pirates threatened to attack the ship with their fleets unless my
friends should have surrendered me alone to them, and if the voyagers refused to do this,
and preferred to perish with me, rather than surrender me to my enemies, I would
rather have cast myself into the deep, in order to save the rest, than bring to certain death,
or even into great risk of their lives, those who loved me so well.

The same author in the third book Ou Ends says: ‘A man who is
good and wise and obedient to the laws, and who understands the
duty of a citizen, consults the interest of all rather than of any single
individual or of himself.’ In Livy we read in regard to certain
Molossians : ‘I have often heard tales of those who sought death for
their country’s sake; but these are the first yet found who thought
it right that their country should perish for them.’

4. But on the supposition that a citizen demanded by the
enemy ought to surrender himself to them there remains the question
whether he may be compelled to do that to which he is morally bound.
Soto declares that he cannot, and by way of illustration cites the case
of the rich man who by the precepts of mercy is bound to give alms
to the poor man, but who nevertheless cannot be forced to do so.
We must observe, however, that the relation of parts among them-
selves is one thing, and that of superiors, when they are contrasted
with those subject to them, is quite another. For an equal cannot be
compelled by an equal, except to perform what is owed in accordance
with a right properly so called. But a superior can compel an inferior
to do other things also, which some virtue demands,’ because this is
embraced in the proper right of the superior as such. Thus during
a grain famine citizens may be compelled to contribute what they
have to the common store.

Hence in this argument of ours it seems even more true that
a citizen may be constrained to do that which regard for others
requires. ‘Thus Phocion, whom I have just mentioned, pointing out
a certain man, Nicocles by name, who was a very great friend of his,
said that such a climax of evils had been reached that, if Alexander
should demand Nicocles, he himself should vote that Nicocles should
be surrendered.

1 See Apollodorus, Library [TII. xv. 8].

* Thus among the Lucanians punishment was appointed for wasteful persons; among the
Macedonians for ingrates ; among the same [416] Lucanians, and the Athenians, for idlers.

Add the notes to I. i. 9.

Chap. XXV] On Undertaking War on Behaif of Others 581

IV.—W ars may rightfully be undertaken also on behalf of allies of equal or
unequal standing

Next to subjects, and indeed on an equal footing with them in
this respect, that they ought to be defended, are allies, in whose
treaty of alliance this obligation is embraced, whether they have
surrendered themselves to the guardianship and good faith of others,
or have agreed to give and receive mutual assistance. ‘ He who does
not protect an ally from wrong, when he can do so, is at fault, just as
he who does the wrong,’ says Ambrose.

We have said elsewhere, however, that such agreements cannot
be stretched to include wars for which no just cause exists. This in
truth is the reason why the Lacedaemonians, before they made war
upon the Athenians, permitted all their allies to pass judgement
upon [413] the justice of the cause; and it was for that reason
that the Romans allowed the Greeks to pass judgement on the war
against Nabis. We may now add this principle, that not even under
such conditions is an ally bound to render aid if there is no hope of
a successful issue. The reason is that an alliance is formed for the
sake of good, and not of ill. However, an ally is to be protected even
against another ally that is in alliance on the same terms, unless in the
previous treaty there is some particular provision to the contrary.
Thus the Athenians were able to defend the Corcyreans, provided
that the cause of the latter was just, even against the Corinthians,
who had been their allies for a longer time.

V.—W ars may rightfully be undertaken on behalf of friends

The third cause for undertaking wars on behalf of others is
obligation to friends,? to whom aid has not been promised, to be sure,
but yet is owed under a certain principle of friendship, if it can be
rendered easily and without loss. For such a reason Abraham took
up arms in behalf of his kinsman Lot; on such grounds the Romans
forbade the people of Antium to practise piracy upon the Greeks,
alleging that the Greeks were related to the Italians. The Romans
also frequently waged wars, or threatened to wage war, not only on
behalf of their allies, to whom they owed this obligation in accordance
with a treaty, but also on behalf of their friends.

1 See Simler, De Republica Helvettorum [p. 160]. ; ;
‘ Whenever a lord makes war upon anyone, if it is known that this is justly done, or i case it
shall be a matter of doubt, his vassal is bound to aid him. But when it is evident that the lord is
making war without cause the vassal shall aid him in defence, but not aid him to attack another’,
De Feudts, TI. xxviii, at the end.
2 An ancient oracle [Aelian, Various History, III. xliv] runs thus:
Though present thou didst not assist thy dying friend,
Naught will I answer thee save ‘ Forth irom the temple go’.

On Duties,
I, xxxvi.

{Thucy-
dides, I
cxix and
cxxv |

Livy,
XXIV
{xxu]

Victoria,
Relectwones
de Indis,
pt. II, no.
17; Caje-
tan, On
Il. 4,

qu. 4,

art, I.

Cicero, On
Ends, IiI
[xix 64];
On Duties,
IT (v. 16} ;
Dig.T 1 3

On Anger,

L.vu iI vy}.

On Cle-
mency, IT
v [II v2].
[267 ff ]

On Duties,
I [xxvu.
129}.

I. v [2].

Laws, 1V
{IX xvi].

Diodorus,
I [ixxvu].

[On
Duties, I.
vi. 23.]

{In Am-
mianus
Marcel-
linus,
XXX. iv.
7]

[Letter to
Mithri-
dates, i.)

On the Law of War and Peace [Book II

582

VI.—Il ars, finally, may rightfully be undertaken on behalf of any persons

whatsoever

The final and most wide-reaching cause for undertaking wars on
behalf of others is the mutual tie of kinship among men, which of
itself affords sufficient ground for rendering assistance. ‘ Men have
been born to aid one another,’ says Seneca. From the same author
come the words: ‘’The wise man, whenever he shall be able, will
interpose between fortune and fortune’s victims.’ In his Suppliants
Euripides says :

The rocks afford a refuge for wild beasts,

And altars protect slaves, but cities crushed with ills
In other towns their bulwark find.

In the view of Ambrose: ‘Courage[...] which defends the weak [. . .] is
perfect justice.” This point also we have previously discussed.

VII.—WNevertheless the obligation to undertake war may be disregarded
without wrong, tf one fears for himself, or even for the life of an
innocent person

1. At this point the question arises, whether a man is bound to
defend a man, or one people another people, from wrong. Plato
thinks that he who does not defend another from violence should be
punished ;+ and this was provided for even in the laws of the
Egyptians. But first, if danger is evident, it is certain that a man is
not so bound, for he may prefer his own life and interests to those of
others. In this sense I think we must interpret the words of Cicero :
‘ He who does not prevent or oppose a wrong, if he can, is as much at
fault as if he should desert his parents, or country, or associates.’ The
word ‘can’ we may understand as ‘with advantage to himself’ ;
for the same author says also in another place: ‘ Perhaps men cannot
be defended without incurring censure.’

In the histories of Sallust we find the following : ‘ All men who,
when their affairs are prosperous, are besought to join an alliance
for war, ought to reflect whether they may at that time maintain
peace; then whether what is asked of them is sufficiently blameless,
safe, glorious, or dishonourable.’

2. This statement of Seneca*® also should not be scorned:
‘I shall come to the aid of the perishing, but in such a way that

* And the Jews ; Moses de Kotzi, Precepts Bidding, Ixxvii, xxx; Forlidding, clxiv, clxv.

* The passage is in On Benefits, IY. xv. Another of not unlike purport is in Book I, chap. x:
*I shall defend one who deserves it, even at the cost of my blood, and shall assume a part of the
danger ; but if by raising a shout I shall be able to deliver an unworthy man from robbers I shall not
trouble to utter the cry which would bring safety to the man.’

See above, II. i, 8 [page 176].

583

I myself may not perish, unless I am to be the price of a great man
or a great cause.’ But not even in the latter case will a man be obliged
to render aid if the person oppressed cannot be delivered save by the
death of the oppressor. For if the person who is attacked can put the
life of the aggressor above his own, as we have said elsewhere, he will
not do wrong who either believes or desires that the person attacked
may prefer this also; especially when in the case of the aggressor
there is the greater danger of irremedial and eternal loss.

Chap. XXV] On Undertaking War on Behalf of Others

VITI.—The question whether a war for the defence of subjects of another
power 1s rightful 1s explained by a dt1stinction

1. This too is a matter of controversy, whether there may be
a just cause for undertaking war on behalf of the subjects of another
ruler, in order to protect them from wrong at his hands. Now it is
certain that, from the time when political associations were formed,
each of their rulers has sought to assert some particular right over his
own subjects. As we see in the Children of Hercules, by Euripides :

[414] Just are we who within our city dwell,
And judgment we may render with full power.

Here too applies the following :
Sparta, which is thy lot, adorn ;

We for Mycenae shall have care.

Among the signs of supreme power Thucydides reckoned ‘ having
their own courts of justice’ no less than ‘ the right to make their own
laws and levy taxes’. Akin is the thought of the poet :

Not to him but to me by lot was given
The rule of the sea and the trident’s realm.
Quite similar is the following :
To the gods is it never permitted
The acts of the gods to revoke.
In Euripides we find this :
Among the gods the usage fixed is this :
*Tis wrong for one to thwart the other’s will.

The purpose no doubt is, as Ambrose correctly explains, ‘ to prevent
men from provoking wars by usurping the care for things under the
control of others’.

1 From the same author, Metamorphoses, II [ITl1. 336 f.], is the following :

For neither may a god annul
What another god has done.

Lessius,

[r43 £]

[Phoent-
cian Mai-
dens, frag.]}

[V. Xvui.]

Virgil,
Aeneid,
I [138 f.].

Ovid,

M etamor-
phoses,
XIV

[784 £].
Rippoly-

ius
[1328 f.].

On Duttes,
I [xi].

V CI.
xii).

Livy,
XLII
pxli. 13].

Victona,
Relectinnes
de Indis
Pt If,
no I5.

Victonia,
Relectiones
de Inds,
pt. II,

nv 13

[I. iv. 8.]

[On Bene-

fits, VII.
xix 9.}

On the Law of War and Peace [Book II

584

In Thucydides the Corinthians find it just that ‘each party
should punish its own subjects’. Perseus, in his speech to Marcius,
refused to present a defence of his conduct toward the Dolopes,
saying : ‘ I have acted by virtue of my right, since they belonged to my
kingdom and were subject to my authority.’ But all these rights have
force in cases where subjects are actually in the wrong, and also, you
may add, where the cause is doubtful. For such purposes in fact this
division of authorities was established.

2. If, however, the wrong is obvious, in case some Busiris,
Phalaris, or Thracian Diomede should inflict upon his subjects such
treatment as no one is warranted in inflicting, the exercise of the right
vested in human society is not precluded. In conformity with this
principle Constantine took up arms against Maxentius and Licinius,
and other Roman emperors either took up arms against the Persians,”
or threatened to do so, unless these should check their persecutions
of the Christians on account of religion.

3. If, further, it should be granted that even in extreme need
subjects cannot justifiably take up arms (on this point we have seen
that those very persons whose purpose was to defend the royal power
are in doubt), nevertheless it will not follow that others may not take
up arms on their behalf. For whenever the check imposed upon some
action arises from the person concerned and not the action itself,
then what is refused to one may be permitted to another on his
behalf, provided that the matter is such that the one may therein be
of service to the other.

Thus a guardian, or some other person, goes to law on behalf of
a pupil, who is personally incapable of legal action ; and counsel may
appear for one who is absent, even without authority. ‘The restric-
tion, in fact, which prevents a subject from resisting, does not arise
from a cause which is identical in the case of a subject and of one who
is not a subject, but from the personal condition which is not trans-
ferred to others.

4. Hence, Seneca thinks that I may make war upon one who is
not one of my people but oppresses his own, as we said when dealing
with the infliction of punishment; a procedure which is often con-
nected with the protection of innocent persons. We know, it is true,
from both ancient and modern history, that the desire for what is
another’s seeks such pretexts as this for its own ends; but a right
does not at once cease to exist in case it is to some extent abused by
evil men. Pirates, also, sail the sea; arms are carried also by brigands.

+ Augustine, On Free Well, II [II.i.2]: ‘To show kindnesses to strangers is a mark of goodness
on the part of any one, but to punish strangers is not in the same way @ mark of justice.’ Procopius,
Vandalse War, 1 [I. ix], says: ‘It befits an honourable man to wield the authority which falls to his lot,
and not to assume authority over others.’

* ‘You have a similar example in the history of Pepin in Fredegarius, at the end.

Chap. XXV] On Undertaking War on Behalf of Others 585

IX.—Mihtary alliances and mercenary service without dissemination
regarding the causes of war are unjust

1. Again, just as military alliances, which were entered into
with the intention that aid should be rendered for any sort of war
without distinction of cause, are not permissible, as [415] we have
said, so no manner of life is more wicked than that of those who serve
as soldiers for hire without regard to the cause of hostilities, and for

whom
Where greatest profit is, there too is right.

This Plato shows from the example of Tyrtaeus.

Such conduct, we read, was censured in the Aetolians by Philip ;
and in the case of the Arcadians by Dionysius of Miletus, with these
words: ‘’The market for soldiery is open, and the ills of the Greeks
nourish the land of the Arcadians, while men under arms go hither
and thither without giving any consideration to the cause.’ Truly
a wretched thing, as Antiphanes says, is

The soldier who, to maintain life, hires himself to death.”

Dio of Prusa says: ‘ What is more necessary for us than life, or what
is accounted of greater value? Yet even this not a few lose through
quest of gain.’

2. It would in truth matter little that mercenaries sell their
own lives, if they did not sell also the lives of others, who are often
innocent. In this respect they are much more abominable than an
executioner, in the degree that it is worse to slay without cause than
with cause. So Antisthenes used to say that executioners are more
free from guilt than tyrants, because they execute criminals, while
tyrants slay those who are innocent. Philip the Elder of Macedon
said that to men of this type, ‘whose livelihood comes solely from
mercenary service’, war was peace and peace was war.

3. Warfare has no place among the useful arts. Nay, rather,

2 On this point consult Simler again [see page 581, note 1]. ;
? ‘ That at the cost of life the things are amassed wherewith life is worn out,’ said Seneca, Natural
Questions, V. xviii.
Plautus in the Two Bacchises [frag. 7] has:
Who sell their lives for gold.
Gunther [Zigurinus, VII. 51x ff.] refers to
Troops hired by cash, and soldiery in quest
Of largesses, accustomed for a price ;
To change allegiance, choosing war for gain,
And their employers’ enemy to count their own.
3 Seneca, Natural Questions, V. xviii, says: ‘ What else than madness would any one call this ?
To carry dangers all about, and to rush against persons whom you never saw, to be without being
wronged, to lay waste all in one’s path, and after the manner of wild beasts to kill him whom you do
not hate ?’

Sylvester,
word bel-
lum, I,

§ Io, near
end

[On Laws,
I. v.]
Livy;
XXXII
[xxxiv].
[Philo-
stratus,
Lives of
the So-
phasis, I.
xxii.]
[Stobaeus,
liii. 9 J

[Orations,
XVI =

p. 29.]

Belli,
De Re
Miltiart,
pt. II,
tit. i,
no. 4.

[Sto-
baeus,
xlix. 47.]

Diodorus,
XVIII [x]

586 On the Law of War and Peace [Book II

On the it is so horrible that only the utmost necessity, or true affection,
nor ef can render it honourable. How this is possible may be gathered from

according what we have said in the last of the preceding chapters. In the opinion
70 MM Githew of Augustine, ‘ to serve as a soldier is no crime: but to do so for the

Decretum, sake of plunder is a sin.’
II xx

t [5]
X.—It ts also particularly wrong to take service merely for the sake of

plunder or pay

The same principle applies in the case of military service for pay,
if this is the sole or chief aim in view.
xr Corm- On other grounds it is altogether permissible to receive pay.

man © What soldier ever serveth at his own charges ?’ says the Apostle Paul.

[417] CHAPTER XXVI

ON JUST CAUSES FOR WAR WAGED BY THOSE WHO ARE
UNDER 'THE RULE OF ANOTHER

I.—W ho may be said to be under the rule of another

We have dealt with those who are independent of any control.
There are others in a condition which requires them to render obedi-
ence, as sons in a household, slaves, subjects, also individual citizens
considered in relation to the body politic of their state.

Il.—W hat those under the rule of another should do if they are summoned
to share in deliberation, or have a free choice of action

If those under the rule of another are admitted to a deliberation,
or there is given to them a free choice of going to war or remaining
at peace, they should be governed by the same rules as those who, at
their own discretion, take up arms for themselves or on behalf of
others.

III.—Jf those under the rule of another should be ordered to go to war,
and should believe the cause of the war to be unjust, they ought not
to serve

1. If those under the rule of another are ordered to take the
field, as often occurs, they should altogether refrain from so doing

if it is clear to them that the cause of the war is unjust. That God

must be obeyed, rather than men, was said not only by the Apostles,
but also by Socrates ;? and among the learned men of the Jews ? is
found an opinion indicating that one must no longer obey a king who
issues commands contrary to the law of God. There has been pre-
served this saying of Polycarp at the point of death: ‘ To authorities
and powers ordained of God we have learned to render the honour
which is fitting and which in no way harms us.’

Paul the Apostle said: ‘ Children, obey your parents in the
Lord ;? for this is right.’ On this Jerome comments thus: ‘It is

1 Plato tells us this in the Apology [xvii] ; Apollonius, too, who met the edict of Nero with this

line of Sophocles [Philostratus, Lzfe of Apollonius of Tyana, IV. xxxviil]:
It was not Jupiter who gave me these commands.

2 This also Josephus, Antiqutties of the Jews, XVII [XVII. vi. 3], attributes to them in the words:
‘It is not strange indeed if those things which were written down at the behest and under the guidance
of God, and which Moses left us, we believe more worthy to be observed than your commands,’

Add Rabbi Tanchuma, as cited by van den Driesche on the passage of the Acts [v. 29].

® Chrysostom [On Ephesians, vi. 1= Homily XXI, i] explains the words ‘in the Lord’ as follows:
‘ That is, in things in which you will not offend God.’ He says also, To the Unbelsevtng Father [chap.
ix]: ‘ For no small reward is set before us if we show honour to our parents; but we are bidden to

587

Aegidius
Regius,
De Actibus
Superna~
turalibus,
disp. 31,
no. 80.

Victoria,
De Iure
Belli, no.
22.

Acts, v. 9°
[v. 29].

(Eusebius,
Ecclestas-
ical H1s-
tory, IV
XV. 22.]
Ephesians,
vi. I.

[On Ephe-

stans, Vi.
4.]

Ephesians,
vi 8

[On Idola-
wy, XV }

Phoenictan
Maidens
[1648-9].

Stobaeus,
tit. aberos
parent.
honorand
[Ixmix. 51].

fAthe
Nights,]
II. vu.

588 On the Law of War and Peace [Book II

a sin on the part of children not to obey their parents; and since
parents may order something wicked, he has added “in the Lord ”’.’
In regard to slaves ‘he adds: ‘ When the Lord of the flesh commands
other than the Lord of the Spirit, he is not to be obeyed.’ In another
passage the same author says: ‘ Men should be subject to masters and
parents only in those things that are not contrary to the ordinances
of God.’ The same Apostle also had said that each one, whether
bond or free, would receive the recompense of his own work.

Moreover, Tertullian says: ‘We have it sufficiently ordained,
that it behooves us to be in all obedience, according to the precept
of the Apostle, being subject to magistrates, princes and powers, but
within the limits of discipline.” In the Martyrology Sylvan the
Martyr declares: ‘ We hold in contempt the laws of Rome, that we
may obey the commands of God.’

In Euripides, when Creon asks,

Does not right itself command his orders to obey ?

Antigone replies :
What right does not command, it is not right to do.

Musonius speaks thus: ‘If any one does not obey a father or a magis-
trate ® or a master who orders him to do what is base or wicked to
perform, he is not disobedient, he does no wrong, and he commits
no sin.’

2. Gellius declares that it is right to hold that not everything
a father orders must be obeyed. ‘ For what’, he says, ‘if a father
shall order his son to betray his country, to kill his mother, or to do
some other base and unholy act? The middle view therefore seems
the best and safest, that some commands are to be obeyed, and some
other commands not.’ Says Seneca the father : * ‘ Not all commands
are to be obeyed.’

consider them as masters, and to render them obedience both in words and in deeds, except to the
injury of piety.’ And so understand the saying of Jerome, ‘Go on, trampling upon thy father’
[Letters, xiv. 2], as oratorical phraseology, borrowed from the orator Latro in Seneca [Controverstes,
I. viii. 15]; and likewise what is in Ambrose, On Virginity; in Augustine, Letters, xxviii [ccxliii],
To Laeius, and Canon IV of the First Council of Nice, in the Arabic translation.

1 Chrysostom, On First Corinthians, vii. 24 [Homily XIX, iv], says: [422] ‘Slaves too have
their limits of action prescribed by God; to what degree they ought to serve is also ordained, and it is
not permitted them to exceed this. Where the master orders none of the things of which God dis-
approves, they should follow and obey, but no further.’ Clement of Alexandria [Stromata, IV. xix.
125], in spe of the mistress of the household, says: ‘She will obey her husband in all things,
and will do nothing against his will, except what she believes to concern her virtue and salvation.’

_.. As notable examples both of punishment and of praise see r Samuel, xxii. 18 and 19; x Kings,
xvill, 4 and 13; 2 Kings, i. 10, 12, and 14. Among Christians, Manuel and Georgius refused their
services in killing the empress; Nicetas, Alexis, Son of Manuel [chap. xvii].

_ 3 Among the pagans there are two noble examples of men who refused to obey princes in com-
mitting dishonourable deeds. That of Papinian is sufficiently well known ; the other is that of Helpidius
in Ammianus, XXT . vi. 9]. Severus wished to inflict punishment even upon those who had
followed the Emperor in accomplishing the death of asenator. See Xiphilinus [Excerpta Dionis, LXXIV,

4 Controversies, I. i [I. iL 8].

Chap. XXVI] War Waged by those under the Rule of Another

Quintilian + presents the thought thus :

589

[418] Itis not necessary for children to do everything that their parents command.
‘There are many things which may not be done. If you should order your son to give an
opinion contrary to what he may think, if you should command him to give testimony
concerning a thing of which he is ignorant, or to express an opinion in the senate; if
you bid him to set fire to the Capitol, or seize the citadel, he has a right to say: ‘ These
are things which should not be done.’

Seneca says: ‘ We are not able to give all orders, nor are slaves
compelled to render obedience to all commands. They will not carry
out orders against the state: they will not set their hands to a crime.’
Sopater writes: ‘“ One must”, he says, “ obey one’s father.” If
his commands are lawful, that is right. But if they are inconsistent
with honour it is improper.’

In former times men laughed at Stratocles,? who had proposed
a law at Athens that whatever pleased King Demetrius should be
held to be reverent toward the gods and just among men. Pliny
somewhere says that he had striven to show that to render a service
to a criminal is a crime.®

3. The civil law, which readily grants pardon to excusable
crimes, is lenient to those who are under obligation to obey, but not
so in respect to all things. It makes an exception in the case of those
acts which display heinousness of deed or crime, which, as Cicero
says, are ‘of themselves atrocious and abominable’; or, as this is
interpreted by Asconius, deeds of evil which ought to be shunned
instinctively, not in consequence of the discussions of jurists, but by
a natural reaction.

4. Josephus relates, on the authority of Hecataeus, that the
Jews who served under Alexander of Macedon could not be forced
by blows or other indignities to heap up earth in company with the
rest of the soldiers for the restoration of the temple of Baal, which was
at Babylon. But an instance more suited to our argument we have
in the Theban legion, of which we have previously spoken. Another
is the case of the soldiers under Julian, of whom Ambrose speaks thus :

The Emperor Julian, although an apostate, nevertheless had Christian soldiers under
him. When he said to them, ‘ Go into battle in defence of the state,’ they were obedient

1 Also in another place [Declamations, cccxxxiii]: ‘Even parents are not to be obeyed in all
things. Otherwise nothing is more dangerous than to accept favours, if they bind us to every form of
service.’

2 Similar is the bond that was exacted from Basil Camaterus by Andronicus Comnenus, ‘ that in
the patriarchate he would do what was agreeable to Andronicus, even though it should be obviously
wicked ; on the other hand he would avoid doing what did not meet with the approval of Andronicus ’
[Nicetas, Alexis, xv].

? Tertullian, On the Soul [xl]: ‘ He who gives the order is more severely punished, although he who
obeys is not excused’; also, On the Resurrecizon of the Flesh [xv]: ‘Since human correction is con-
sidered the more perfect in the degree that it searches out even the agents who had a part in each
deed, neither sparing them nor being prejudiced against them, in order that these may share with their
principals the infliction of punishment or the reward of favour.’ See Gail, De Pace Publica, I. iv. 14.

Declama-
tons,
eclxx1.

On Bene-
fits, ITI.
XX.

[Plutarch,
Demetrius,
XXLV = Pp.
goo A.]}
Letters, III
[ix. 14],
To Minu-
CLUS

Dig. L.
KV1i. 157
Against
Verres, III
[I. xlin
108].
[Thereon. ]

[Against
Apion,
I, xxi.
192.]

[I. 11. 9.
15, and 1v.
7. 10 ff.]

[Decretum,
IT. x1 3.
94=
Augustine,
Letters, cv J

Victoria,
De lure
Bella,

no 23.

(Il xxii.

2]

Dig. L

XV 169.

Dig. IX.
li. 37.
Dig. L.

XV11. 167.

§ x.

590 On the Law of War and Peace [Book IT

to him; but when he would say to them, ‘Bear arms against Christians,’ + then they
recognized only the ruler of Heaven.

So also we read that military executioners who had been con-
verted to Christ chose rather to die than to lend their hands to the
carrying out of the edicts and decisions against the Christians.

5. The case will amount to the same thing if any one is con-
vinced that what is ordered is unjust. For the thing is not permissible
for him so long as he is unable to get rid of that view. This is clear
from the previous discussion.

IV.—W hat they who are under the rule of another, and are ordered to go
to war, should do if they are in doubt

1. Now if one who is under the rule of another is in doubt
whether a thing is permissible or not, is he to remain inactive, or
obey ? Very many think that he should obey; and further, that he
is not hindered by the famous maxim, ‘ What you question, do not do,’
because he who doubts as a matter of reflection does not doubt in
a decision involving action, for he can believe that in a matter of

doubt he must obey his superior.
It cannot in truth be denied that this distinction of a double

judgement applies in many actions. The municipal law, not only
of Rome but of other nations as well, under such circumstances not
only grants immunity to those who obey,” but also refuses to admit
a civil action against them. He does the injury, they say, who orders

1 For Julian did not abstain from all violence against the Christians, especially when he thought
that he had found some pretext forit. ‘ Julian, the strangler of a Christian army,’ is a phrase found in
Jerome’s Epiiaph of Nepotianus [Leiters, lx. 15=p. 26]; Augustine, City of God, I. lii (XVIII. li],
recounts that under Julian’s rule a persecution was begun at Antioch, and a certain young man was
tortured.

In the martyrologies is celebrated the memory of St. Eliphius, a Scot, and his thirty-three
companions, whom Julian caused to be beheaded between Toul and Grand.

See also John of Antioch in the Excerpia Petresciana [Excerpta de Virtutibus et Vettis, l=p. 199].

Augustine, Leiters, | [clxxxv], To Boniface, cited by Gratian, Decretum, II. x1. 3 [II. xi. 3. 98], says:
* Julian arose as an unbelieving emperor. Did he not stand forth as a wicked apostate and idolater ?
Christian soldiers served an infidel emperor, but when it came to a question of Christ they recognized
none but Him who was in heaven ; when he wished them to worship idols and offer them incense they
set God before him.’

2 Chrysostom, On Providence, III, says: [423] ‘ Oftentimes many magistrates have been
accused of unjust executions and punished. But no one has haled to court the executioners, who per-
formed the service of killing, who fumished the aid of their hands; indeed, no one has even started
inquiry r ing them. They are excused by the necessity which arises from the authority of him
who gives the order and the fear of him who obeys.’

Ulpian, citing Celsus, says that ‘a slave who has obeyed his master’s order has done no wrong’,
Digest, [X. iv. 2; and ‘ He who obeys the authority of a father, or of a master, is not believed to have
willed the deed’, Digest, L. xvii. 4, and the commentary of Cujas.

Seneca [Leiters, lxi. 3] declares: ‘ There is no compulsion in the case of him who acts willingly.’
Add the Lombard Law, I. iv. 2.

Mithridates dismissed unpunished the freedmen of Atilius who were party to the plot for his
assassination, and also the sons of him who had rebelled; Appian, Mithridatic Wars [xv.102]. Tiberius
Gracchus was freed from responsibility for the treaty of Numantia, since he had done wrong on the
order of another [Plutarch, Tiberius Gracchus, vi, vii=pp. 826, 827 a].

Chap. XXVI] War waged by those under the Rule of Another 59%

that it be done; there is then no guilt on the part of him who has
to obey. The constraint of authority excuses ; and like arguments.

2. Aristotle himself in his Nicomachean Ethics, Book V [V. xii],
counts the slave of a master, who issues the order to do wrong, among
those who do something wrong, but not wrongfully. Moreover,
Aristotle says that he acts wrongfully with whom the action originates,
assuredly because there is not full deliberative power in a slave; this
is indicated by the proverb,

[419] One forced to enter slavery
One-half his virtue lacks ;

and the similar proverb,

From those for whom a life of servitude
Is willed by Jupiter he takes away
One-half their reason ;

also that which Philo quotes :

Your lot is that of a slave, in reason you have no share.

Pertinent is the saying of Tacitus: ‘ To the prince the gods have
given the supreme right of decision ; for his subjects there remains
the glory of obedience.’ The same writer relates that the son of Piso
was acquitted by Tiberius of the charge of rebellion, on the ground
that ‘ the commands were in fact his father’s, and the son could not
refuse’. Says Seneca:” ‘The slave is not the censorer, but the
servant, of his master’s order.’

3. With regard to military service in particular Augustine is in
agreement with the view stated. He speaks as follows:

Therefore a just man, who happens to serve under an impious king, may justly fight
at the latter’s command, either if he is certain that the command given him, preserving
the order of the public peace, is not contrary to the law of God, or if he is uncertain
whether it is so; so that an unjust order may perhaps render the king responsible, while
the duty of obedience preserves the innocence of the soldier,

Augustine elsewhere says :

When a soldier, in obedience to the authority under which he is’ lawfully placed,
slays a man, no law of his state will hold him guilty of homicide.* Rather, he is guilty
of neglect, and contempt of command, if he does not do so. But if he had done this
of his own accord and authority, he would have incurred the charge of shedding blood.
And so where he is punished, if he acts without orders, there he would be punished if he
did not act when ordered.

1 Themistius in Orations, ix [vii. 88], says that princes resemble reason, soldiers anger.

2 On Controversies, ITI. ix.

* Augustine also in his treatise On Free Will, I [I. iv], says: ‘If it is homicide to kill a man, it may
sometimes occur without sin, for it does not seem to me that the soldier who kills an enemy, and a judge
or his minister who executes a guilty person, and he from whose hand a missile has escaped against
his will or without his knowledge, commit sin when they kill a man; but such are ordinarily not even
called homicides.’ This is cited by Gratian, in Decretum, II. xxiii. 5 [TI. xxiii. 5. 41].

1569-27 RI

Paul, Sen-
tentrae, V.
xxii. x [2].
Law of

the Lome
bards, tit.
96, de ter-
mino effose
so; Law
of the
Visigoths,
IT. in. 2;
VIII. i. x
(3, 4]; VII.
iv. 2 [x].
[Longinus,
On the
Sublime,
xliii.]
(Homer,
Odyssey,
XVII.
322-3.]
[That
Every
Virtuous
Man Is
Free, vii.)
[Annals,
VI. xiv.]
[Annals,
IIT [xvii].

Against
Faustus,
XXII.
[xxiv
[lxxv].

City of
God, I.
Xxvi.

Syl., word
bellum, I,
no 9,concl.
4; Castr,
On Dig 11.
5; Soto, V.
I. 7, and
ill. 3;
Vict , De
Ture Belli,
no. 323
Covarr,
On Sext,
V. ult 4,
pt. u, § zo.
[Lucan,
Pharsalta,
I 126f]
Adrian,
Quaest
Quodl , II,
[Jewish
War, II
V111. 7.]
[Life of
Pytha-
goras,
clxxxvi J

Baldus,
Cons1l1a,
IT 385;
Soto, De
Ratione
Detegends
Secretum,
membr. tii,
qu. il,
reply to
obj I.
[Epigrams,
TIT, Ixvi.
5f.]

Victoria,
De Iure
Bell,

no. 25.

A pology,
lv;
Agamst
the Hea-
then, I. vi.

On the Law of War and Peace [Book II

592

Hence the view is widely accepted that, so far as subjects are
concerned, a war may arise that is just, that is to say free from injustice
on either side. To such a war applies the verse—

Which one more justly takes up arms
°Tis wrong to know.

4. This view, however, is not free from inherent difficulty. Our
countryman Adrian, who was the last Pope of Rome from north of
the Alps, supports the contrary opinion,’ and this may be established,
not exactly by the reason which he adduces, but by the more pressing
one that whoever hesitates, when reflecting, in his decision to act
ought to choose the safer course. The safer course, however, is to
refrain from war. The Essenes are praised because they swore among
other things ‘ not to injure any one, even if ordered to’; also their
imitators the Pythagoreans, who, on the testimony of Iamblichus,
refrained from war, giving as their reason that ‘ war organizes and
ordains slaughter ’.

5. It is no objection that on the other side there is danger of
disobedience. For when either course is uncertain that which is the
lesser of two evils is free from sin; for if a war is unjust there is
no disobedience in avoiding it. Moreover, disobedience in things of
this kind, by its very nature, is a lesser evil than manslaughter, especially
than the slaughter of many innocent men. ‘The ancients relate that
when Mercury, who had been accused of the slaying of Argos, rested
his defence on the command of Jupiter, the gods even then did not
dare to acquit him. Nor did Martial acquit Pothinus, the hanger-on
of Ptolemy, when he wrote:

But yet is the case of Antonius worse than that of Pothinus.

The latter did wrong for his master, the former for himself.

[420] That is not of great weight which some adduce, that if
this principle should be admitted the state would in many cases
perish, the reason being that oftentimes it is not expedient that the
reasons for policies should be made public. Although this may be true
of persuasive causes, it 1s not true of justifiable causes, which ought
to be clear and open and, further, should be such as may and ought
to be openly set forth.

6. What Tertullian has said in perhaps too indefinite a manner
with regard to laws refers with perfect justice to those laws or edicts
which concern the waging of war: ‘A citizen does not faithfully
observe a law if he does not know what sort of thing it is that the law

+ Examples of those who adhere to this view are found in Lambert von Aschaffenburg.

593

avenges. No law must keep to itself alone the understanding of its
uprightness, but must impart such knowledge also to those from
whom it expects obedience. A law, however, which does not wish
itself to be approved becomes an object of suspicion; such a law,
moreover, is wicked if it should enforce itself without having been
approved.’ In Statius Achilles says to Ulysses, who is inciting him
to war:

Chap. XXVI] War waged by those under the Rule of Another

Proclaim what causes the Greeks have for so great a war;
From these just anger may at once arise.

In the same author Theseus cries:

Go swiftly and, I pray, have confidence in such a cause.

Propertius had said :

The soldier’s cause increases or weakens his strength ;
If it be not just, shame causes his weapons to fall.

On a level with this is the saying of the Panegyrist: ‘In war a good
conscience assumes so much importance that now victory has begun
to be not more a matter of valour than of rightness.’ Thus some
scholars interpret the Hebrew word ‘ jarek’, which is read in Geneszs,
xiv, 14,1 in the sense that before the battle the servants of Abraham
were by him made fully aware of the justness of their warfare.

7. Declarations of war in fact, as we shall shortly be saying, were
wont to be made publicly, with a statement of the cause, in order that
the whole human race as it were might judge of the justness of it.
Of a truth wisdom is the virtue characteristic of the ruler, as it seemed
to Aristotle also; but justice is the virtue characteristic of a man, in
so far as he is a man.

8. It seems then that the view which we said was that of Adrian
is absolutely to be followed, if a subject not only hesitates, but, led
by more convincing arguments, leans rather to the view that the war
is unjust; especially if it is a question of attacking others, not of
defending one’s own.

g. Further, it is probable that even the executioner, who is
going to put a condemned man to death, should know the merits
of the case, either through assisting at the inquiry and the trial or
from a confession of the crime, in such a degree that it is sufficiently
clear to him that the criminal deserves death.? This practice is

2 Some attnbute the same sense to the word ‘ hanikhéw’ and interpret it as ‘instructed by him’.
Herod in his address to the Jews after the defeat in Arabia said: ‘ Moreover, I wish to show you with
what justness we have undertaken this war, driven to it by the insults of our enemies. For if you
understand this it will prove a great incentive to your daring’, in Josephus [Antiquities of the Jews.

XV. v. 3].
2 Thus the servants of Saul, more worthy than Doeg, did not wish to kill the priests who dwelt

(4 chellecd,
II. 47 £ ]

[Thebara,
AIT. 648 ]

[Zlegies,
IV. vi.
sift]

[Nazarlus,
Panegyric
of Con-
stantine,
vii. ]

[Polhtics,
IIT. 1v.]

Aegidius
Regius, De
Actibus
Superna-
tuvalibus,
disp 31,
dub. 5, mo.
85; Ba-
fez, On
IT, 1,

qu 40, art
x; Molina,
ii, disp.
II3.

Deut., xvii

[7].

Sylvester,
word bel-
lum, I,
no. 7,
near end,

[Against
Celsus,
VIII.
Ixxili,]

594 On the Law of War and Peace [Book II

observed in some places, and such is the intent of the Hebraic law,
when it ordains that the witnesses shall take the lead of the people in
stoning him who has been condemned.

V.—Sense of duty requires that subjects who doubt 1m regard to the
justness of a war should be spared, but the burden of an extraordinary
tax may be imposed upon them

1. Now if the minds of subjects cannot be satisfied by an ex-
planation of the cause of a war it will by all means be the duty of
a good magistrate to impose upon them extraordinary taxes rather
than military service; particularly where there will be no lack of
others who will serve. For an upright king may make use not only
of his subjects’ good will but also of their evil purposes, just as God
uses the means of the Devil and impious persons that are at hand ;
just as, again, he is free from blame who, under stress of poverty,
takes money from a wicked usurer.

2. Furthermore, even if there can be no doubt respecting the
cause of war, still it does not seem at all right that Christians should
be compelled to serve against their will; the reason is that to refrain
from military service, even when it is permissible to serve, is the mark
of a somewhat greater holiness, which was long demanded from
ecclesiastics and penitents, and recommended in many ways to all
other persons. To Celsus, who rebuked the Christians for shirking
military service, Origen [421] replies as follows :

To those who, being strangers to our faith, bid us serve in defence of the state and
slay men, we shall thus make answer :

* Those who are the priests of your idols, whom you consider the special priests of
the gods, keep their right hands pure on account of the sacrifices, that with hands free
from blood and unstained with any slaughter they may offer sacrifices to those who are
believed to be gods; and if any war arises priests will not be enrolled in the ranks, If
then that is not without reason, with how much more reason, while others bear arms,
are these also to be considered as rendering military service after their own fashion,
as priests and worshippers of God, who keep their hands pure indeed, but strive
before God with prayers for those who serve as soldiers justly, and for him who with
Justice rules?’

In this passage he calls all Christians priests, following the example
of the holy writers (Revelation, i.6; I Peter, ii. 5).

at Nob, without a hearing ; z Samuel, xxii. 17. And the third officer of Achab was unwilling to harm

Elijah ; 2 Kengs, i. x3 ff. Sometimes even executioners, after having been converted to‘ Christ, for the

future renounced this office as being dangerous. See the Martyrology, and Bede, [Ecclesiastical History, ]
. Vii.

Chap.XXVI] War waged by those under the Rule of Another 595

VI.—When it may be just for subjects to bear arms in a war that is
unjust

I. However, I think that the case may arise in which there may
be a just defence of subjects who engage in a war that is not merely
doubtful but obviously unjust. For since an enemy, although waging
a just war, does not have the true and perfect right of killing innocent
subjects, who are not responsible for the war, unless either as a
necessary defensive measure or as a result and apart from his purpose
(for these are not liable to punishment), it follows that, if it is certain
that the enemy comes with such a spirit that he absolutely refuses
to spare the lives of hostile subjects when he can, these subjects may
defend themselves by the law of nature, of which they are not deprived
by the law of nations.

2. But even then we shall not say that the war is just on both
sides ; for it is not a question of the war, but of a certain and definite
act. ‘his act, moreover, although done by him who in other respects
has a right to make war, is unjust, and hence is justly resisted.

[424]
HUGO GROTIUS

ON

THE LAW OF WAR AND PEACE

BOOK. III

CHAPTER I

GENERAL RULES FROM THE LAW OF NATURE REGARDING WHAT
IS PERMISSIBLE IN WAR; WITH A CONSIDERATION
OF RUSES AND FALSEHOOD

I.—T he order of treatment in the discussion which follows

We have considered both those who wage war and on what
grounds war may be waged. It follows that we should determine
what is permissible in war,’ also to what extent, and in what ways,
it is permissible.

What is permissible in war is viewed either absolutely or in
relation to a previous promise. It is viewed absolutely, first from
the standpoint of the law of nature, and then from that of the law
of nations. Let us see, then, what is permissible by nature.

I1.—The first rule: In war things which are necessary to attain the
end in view are permissible. This ts explained

1. First, as we have previously said on several occasions, in
a moral question things which lead to an end receive their intrinsic
value from the end itself. In consequence we are understood to
have a right to those things which are necessary for the purpose
of securing a right, when the necessity is understood not in terms of
physical exactitude but in a moral sense. By right I mean that
which is strictly so called, denoting the power of acting in respect to
society only.

Hence, if otherwise I cannot save my life, I may use any degree
of violence to ward off him who assails it, even if he should happen
to be free from wrong, as we have pointed out elsewhere. The reason is
that this right does not properly arise from another’s wrong, but from
the right which nature grants me on my own behalf.

2. Furthermore, [425] I can also take possession of another’s
property from which an imminent danger threatens me, without

1 It has been well said by Augustine, Letters, lxx [ccxx. 12], To Count Bontface: ‘May you, in
war itself, if it is still necessary for you to engage in war, cleave to the faith, and seek peace.’ Again
in Letters, ccv [clxxxix. 6]: ‘ Be therefore a man of peace, even when engaged in war.’

Regarding the mamtenance of justice in waging war, [437] there 1s an excellent discourse of
Belisanus to his soldiers in Procopius, Vandalic War, I [I. xvi]. Orosius, Book VII [VII. xxi], says:
* Behold in what fashion civil wars are waged by Christian kings in Christian ages, when they cannot
be avoided.” The same author [VII. xxiii] refers thus to Theodosius: ‘ Let them mention some one
war, from the time of the founding of the city, which was undertaken by reason of so righteous a neces-
sity, and concluded with so divine a felicity, that battle did not exact great slaughter or victory a
bloody vengeance.’

1569°27 $52 599

Victoria,
De Lure
Bells.
no. 15.

[Il. i. 3]

Victoria,
De Lure
Belli,

nos. 18, 39,
and 55.

II. ii. ro.

Sylvester,
word bel-
lum, I,
no. Io,
v. prima.

[Republic,
V. xvi=
471 B.]

Victoria,
op. cit.,
no. 37.
EIT. i. 4.]

On the Law of War and Peace [Book III

600

taking account of the other’s guilt; yet not in such a way as to
become its owner (for this procedure is not adapted to that end),
but in order to guard it until adequate security has been given for
my safety. This point also we have treated elsewhere.

Thus I have by nature a right to seize property of mine which
another is holding ; and if such seizure is too difficult I have the right
to seize something else of equal value, as in the case of recovering
a debt. From these causes ownership also arises, because the equality
which has been disturbed can in no other way be restored.

3. Where therefore the punishment is just, all use of force
necessary for the infliction of the penalty is likewise just ; and every-
thing which is a part of the penalty, as the destruction of property
by fire or by other means, is certainly within the limit of that which
is just and befits the crime.

III.—The second rule: A right 1s to be vtewed as arising not only from
the origin of the war but also from causes which subsequently develop

In the second place the fact must be recognized that our right
to wage war is to be regarded as arising not merely from the origin
of the war but also from causes which subsequently develop ; just
as in lawsuits a new right is often acquired by one party after suit has
been brought. ‘Thus those who associate themselves with him who
assails me, either as allies or subjects, confer upon me the right to
protect myself against them also.

In like manner those who join in a war that is unjust, especially if
they can or ought to know that it is unjust, obligate themselves to
make good the expenses and losses incurred, because through their
guilt they cause the loss. Similarly, those who join in a war that
has been undertaken without a cause worthy of approval draw upon
themselves the desert of punishment, in a degree proportionate to the
injustice which lies in their action. For this reason Plato approves
of war ‘until the guilty are compelled, by the guiltless who have
suffered, to pay the penalty’.

IV.—The third rule: Some things, which are not permissible according
to the purpose of a war, may follow therefrom without wrong; a
precaution 1s added

1. In the third place, it must be observed that in addition to
the right of action many things follow indirectly, and beyond the
purpose of the doer,' for which in and of themselves a right would
not exist. We have explained elsewhere how this may occur in a case

1 See on this point Thomas Aquinas, II. i, qu. 73, art. 8; Molina, tract. ii, disp. 121.

Chap.I] Rules regarding what is Permissible in War 6or

of self-defence. ‘Thus in order to obtain what is ours, if we cannot
get that by itself, we have the right to accept more, subject to the
obligation, nevertheless, of restoring the value of the excess. Similarly
we may bombard a ship full of pirates, or a house full of brigands,
even if there are within the same ship or house a few infants, women,
or other innocent persons who are thereby endangered. Says
Augustine: ‘A man is not guilty of homicide if he has built a wall
about his property and another is killed by the fall of it when trying
to make use of it.’

2. But, as we have admonished upon many occasions previously,
what accords with a strict interpretation of right is not always, or in
all respects, permitted. Often, in fact, love for our neighbour prevents
us from pressing our right to the utmost limit.

Wherefore we must also beware of what happens, and what we
foresee may happen, beyond our purpose, unless the good which our
action has in view is much greater than the evil which is feared, or,
unless the good and the evil balance, the hope of the good is much
greater than the fear of the evil. The decision in such matters must
be left to a prudent judgement, but in such a way that when in
doubt we should favour that course, as the more safe, which has
regard for the interest of another rather than our own. ‘ Let the
tares grow’, said the best Teacher, ‘lest haply while ye gather up
the tares ye root up the wheat with them.’ Said Seneca: ‘To ki
many persons indiscriminately is the work of fire and desolation.’
History teaches us with how deep repentance Theodosius, on the
admonition of Ambrose, expiated such an unrestrained vengeance.

3. Further, if at times God does something of this kind, it 1s
not for us to take that as an example, in view of the most perfect
[426] right of dominion which He has over us, but which He has
not granted to us over one another, as we have noted elsewhere.
And yet God Himself, lord of men in His own right, is wont to spare
a community of evil men, however large, for the sake of a very few
good men; in this He makes manifest His fairness as a judge, as the
conference of Abraham with God regarding Sodom clearly teaches us.

From these general rules we may learn how much is by nature
permissible against an enemy.

V.—What is permissible against those who furnish supplies to our
enemies 1s explained through distinctions

1. But there often arises the question, What is permissible
against those who are not enemies, or do not want to be called
enemies, but who furnish our enemies with supplies? For we know
that this subject has been keenly debated in both ancient and modern

Letters,
cliv [xlvii.
5], To
Publicola,

Matthew,
Xiil. 29 ;
Thomas
Aquinas,
II. ii, qu.
64, art. 2.
Seneca, On
Clemency,
II, end [I.
XXV1. 5].

{II xxi
I4.]

Genesis,
xvi1[xvuii]
23 ff.

Procopius,
Gothic
War, I
fut].

[On Bene-

fits, VII.
Xx ]

On Duties,
I xxx

[144].

[II. 1i. 6.]

Decreitals,
V. vi. 6
and 17.

On the Law of War and Peace [Book III

602

times, since some champion the relentlessness of warfare and others
the freedom of commercial relations.

2. First, we must make distinctions with reference to the
things supplied. There are some things, such as weapons, which are
useful only in war; other things which are of no use in war, as those
which minister to pleasure; and others still which are of use both in
time of war and at other timés, as money, provisions, ships, and naval
equipment.*

Regarding the first class of things, the saying of Amalasuntha to
Justinian holds true, that he who supplies an enemy with things
necessary for warfare is on the side of the enemy.

Things of the second sort give rise to no complaint. Thus Seneca
says that he will do a favour to a tyrant, if the kindness will not give
to the tyrant greater powers for the ruin of all? nor strengthen the
powers which he has; that is, a kindness which may be done to him
without harm to the state. In explaining this Seneca adds :

Money, by means of which a satellite may be kept in service, I shall not supply.
If he shall desire marbles and robes, that which his luxurious taste amasses will harm no
one ; soldiery and arms I shall not furnish. If, as a great favour, he seeks craftsmen of the
stage and things which may soften his savagery, I shall gladly proffer them. To him to
whom I would not send triremes or ships with bronze rams, I shall send pleasure craft,
and sleeping-barges, and other follies of kings who revel on the sea.

In the judgement of Ambrose, to be generous toward him who
conspires against his country is not approvable liberality.

3. Regarding things of the third sort, useful in both war and
peace, we must take into account the conditions of the war. For, if
I am unable to protect myself without intercepting the goods which
are being sent to the enemy, necessity, as we have elsewhere said,
will give me a right to intercept such goods, but with the obligation
to make restitution, unless another cause arises.

If, now, the enforcement of my right shall be hindered by the
supplying of these things, and if he who supplied them has been in
a position to know this (for example, in case I should be holding
a town under siege or keeping ports under blockade, and a surrender
or the conclusion of peace should already be in anticipation), then he
will be liable to me for injury culpably inflicted, just as one who
releases a debtor from prison or secures his escape, to my detriment.
As in the case of the infliction of an injury, his goods may be seized,
and ownership over them may be sought, for the purpose of recovering
damages.

Designated by the Athenians dréppyra ; that is, ‘ things of which the export is forbidden’, rope,
water-skins, timber, wax, and pitch. See the Scholiast on Aristophanes’ Clouds [rather Frogs, line 365],
and Knights [line 282].

2 See Paruta, Book VII.

Chap.I] Rules regarding what is Permissible in War 603

If he who furnishes supplies has not yet caused me injury, but
has wished to do so, I shall have the right, through the retention of
his goods, to oblige him to give security for the future, by means of
hostages, by pledges, or in some other way.

If, moreover, the injustice of my enemy toward me is palpably
evident and the one who furnishes supplies to him strengthens him
in a very wicked war, in that case the latter will be responsible for
the injury, not only by civil law but also by criminal law, just as
one would be who should deliver an obviously guilty party from
a judge who is about to inflict punishment. On this ground it will
be permissible to pass upon the furnisher of supplies a sentence which
suits his crime, in accordance with what we have said regarding
punishments; within the limits there indicated he may even be
despoiled.

4. For the reasons which have been stated, those who engage
in war usually address public proclamations’ to other peoples, with

1 See the examples in the joint war against the Egyptians, Saracens, and others ; Deeretals, I. xxxvi.
Ir; V.vi.11; Exiravagantes, vii. un.; Hxfravaganies Communes, V. ii. 1.

There has been published in Italian a book called Consolaio del Mare, in which have been collected
the edicts of the emperors of Greece and Germany, and of the kings of France, Spain, Syria, and Cyprus ;
also those of the Balearic Isles, the Venetians, and the Genoese. In title cclxxiv of that book questions
of the kind under consideration are discussed, and the following principles are stated :

If both the ship and the cargo belong to the enemy, the case is clear that they become the property
of those who take them ; if, however, the ship belongs to those who are at peace, but the cargo to the
enemy, the belligerents may force the ship to convey the cargo to some port belonging to them, upon
condition, however, of paying the cost of the voyage to the owner of the vessel. On the other hand,
if the ship belongs to the enemy, but the cargo to others, the latter must bargain for the price of the
vessel ; or, if the shippers do not wish to bargain, they must be compelled to go with the ship to some
port belonging to the side of the captor, and to pay to the captor the price due for the use of the vessel.

In Holland, in the year 1438, when the Dutch were at war with Liibeck and other cities on the
Baltic and the Elbe, in a full meeting of the Senate it was decided that merchandise clearly belonging
to others, even if it were found in vessels of enemies, did not form part of the booty; and since then
this has been recognized as the law there. This was also the view of the king of Denmark, when, in
1597, he sent an embassy to the Dutch and their alhes to claim for his subjects freedom of navigation
and of carrying merchandise to Spain, with which the Dutch were waging a very bitter war.

In France there has always been granted to those at peace freedom to carry on commerce, even
with those who were enemies of the French. So mdiscriminately has such freedom been taken advantage
of that the enemy have often concealed their property under the names of others, as appears from
an edict of the year 1543, chap. xli, which has been carried over into an edict of the year 1584, and
subsequent edicts. In these edicts it is expressly provided that it is permissible for those on friendly
terms with the French to carry on commerce in time of war, provided that this is done in their own
ships, and by their own people, ships, and cargoes; it is permissible to carry their goods wherever
they may wish, provided that these goods shall not be material serviceable in war, by means of which
they wished to help the cause of the enemy ; in case material serviceable for war should be transported,
the French are permitted to take such material for themselves, paying a fair price for it. Here we
must note two things; by these [438] laws material of war did not become legitimate spoil, and
innocent merchandise was much farther removed from the same danger.

I should not deny that the northern nations have at times made use of another nght, but in
different ways, and having in view rather atemporary advantage than the maintenance of permanent
justice. For when, making a pretext of their own wars, the English interfered with the commerce of
the Danes, for this cause war arose between the peoples with the result that the Danes imposed tribute
upon the English. Although the cause of the payment was changed, the name of it, Danegeld, remained
until the time of William [the Conqueror], who founded the dynasty now ruling in England; this is
recorded by the very reliable De Thou, in his history of the year 1589 [XCVI. xv].

Again, Elizabeth, the wisest queen of England, in the year 1575, sent Sir William Winter and Robert
Beal, Secretary of the Royal Council, to Holland in order to make it plain that the English could not
suffer the Dutch, in the very midst of Holland’s war with Spain, to detain English ships which had

Sylvester,
word
veshituito,
pt Itt,

§ 12.

604 On the Law of War and Peace [Book III

the object of making clear both the justice of their cause and the

probable hope of enforcing their right.
5. In this inquiry we have referred back to the law of nature
for the reason [427] that in historical narratives we have been

sailed for Spanish ports. This is reported by Van Reyd for the year 1575 in his Duich History, and
by the Englishman Camden for the followmg year. However, when the English had themselves
become enemies of the Spaniards and were interfering with the exercise of the nght of navigation to
Spain on the part of German cities, from the controversial writings of both peoples, which deserve to
be read for an understanding of this controversy, 1t appears that the English had availed themselves
of such interference without any clear nght. It is to be noted that the English themselves in their
writings admit this, when they adduce as the two chief points in support of their case that the things
which were being carried by the Germans to Spam were material for war, and that previous treaties had
forbidden such transportation.

Such treaties were afterward made by the Dutch and their allies with Liibeck and its allies in
1613, providing that neither the one party nor the other should permit subjects of the enemy to trade
within their territory, or aid the enemy with money, soldiers, ships, or provisions. Later, in 1627, it
was agreed between the kings of Sweden and Denmark that the king of Denmark should prevent all
commerce with the people of Danzig, who were enemies of Sweden, and should not permit any mer-
chandise to pass through the Cimbrian Strait [Baltic Sound] to the other enemies of Sweden ; for these
services the king of Denmark stipulated certam advantages for himself.

These, however, are special agreements, from which no inference can be drawn which would be
binding upon all. This was in fact said also by the Germans in their writings, that not all merchandise
was excluded by the treaties in question but only such merchandise as had been imported into England
or manufactured there. The Germans, nevertheless, were not the only ones who opposed the English
when the latter forbade commerce with their enemy. Even Poland sent an embassy and complained
that the law of nations was being infringed upon when, because of the war between England and
Spain, the Poles were deprived of the freedom of commercial relations with the Spaniards ; this is
related under the year 1597 by Camden and Van Reyd, whom we have cited already.

Moreover, after the Treaty of Vervins had been made with Spain, while Elizabeth, queen of England,
temained at war, the French refused to accede to the request of the English that the English should
be allowed to search French ships that were sailing to Spain, in order that munitions of war might
not be secretly conveyed therein ; the reason alleged was that this was seeking a pretext for plundenng
and disturbing commerce. In the treaty which the English made with the Dutch and their allies in
1625, an agreement was reached that other nations, to whose interest it was that the greatness of
Spain should be diminished, should be invited voluntarily to forbid commerce with the Spamards ;
if, nevertheless, the nations should not do this of their own accord, it was decided that vessels should
be searched to see [439] if they carried any war material, but that otherwise neither the ships nor their
cargoes should be detained, and that damage should not be done on this pretext to those who remained
at peace.

Tn the same year it happened that certain men sailed from Hamburg for Spain im a ship Jaden
chiefly with military stores; these stores were seized by the English, but the value of the rest of the
merchandise was paid. The French, however, when French ships sailing for Spain were confiscated
by the English, made it plain that they would not permit such procedure.

We have, therefore, well stated the case in saying that public proclamations are required. The
English themselves came to hold the same opinion. An example of such a proclamation made by
them is given by Camden under the years 1591 and 1598. However, such proclamations have not
always been obeyed, and distinctions have been made between times, causes, and places. In 1458,
in fact, the city of Liibeck decided that it would not obey the proclamation made by the city of Danzig,
forbidding them to carry on trade with Malmé and Memel, then at war with Danzig. Similarly the
Dutch in 1551 refused to obey when Liibeck notified them that they should refrain from commerce
with the Danes, who were then their enemies.

Tn 1522, when there was war between the Swedes and the Danes, the king of Denmark requested
the Hanseatic cities not to carry on commerce with the Swedes. Some of the cities, being in need of
his friendship, complied, but the others did not. When war was raging between Sweden and the king
of Poland, the Dutch never suffered themselves to be prohibited from commerce with one or the other
nation. The Dutch, moreover, always restored to France the French ships which on their way to or
from Spain were intercepted by Dutch vessels, Holland and Spam being at war. See the speech of
Louis Servin, one time royal advocate, delivered in 1592 in the case of citwzens of Hamburg.

But the same Dutch did not permit merchandise to be brought by the English nto Dunkirk, off
which they kept a fleet: just so the city of Danzig, in 1455, notified the Dutch not to carry anything into
the city of Koenigsberg, as Gaspar Schiitz narrates in his Prussian History. Add Cabedo, Decisiones,
xvi. 2, and Seraphinus de Freitas in his book On the Just Astaiic Empire of the Portuguese, where he
cites various others.

Chap.I] ules vegarding what is Permissible in War 605

unable to find anything established by the volitional law of nations +
to cover such cases. The Carthaginians sometimes captured Romans
who had brought supplies to their enemies; and they surrendered
such persons to the Romans who demanded them. When Demetrius
was occupying Attica with an army, and had already taken the
near-by towns of Eleusis and Rhamnus and was intending to starve
Athens into surrender, he hanged both the master and the pilot ®
of a ship that attempted to carry in grain ; having in this way deterred
others he made himself master of the city.

VI—W hether it is permissible to use a ruse in war

1. So far as the manner of conducting operations is concerned,
violence and frightfulness are particularly suited to wars. The
question is often raised, however, whether one may resort to ruses
also. Homer, at any rate, said that one must harm his foe—

By ruse or violence, by open ways or hidden.

In Pindar we find :

And every means must be employed
To bring the foeman low.

In Virgil there is also this :

Whether craft or valour, who would ask in war?

Soon there follows,

Ripheus, who among the Trojans was the one most just,
And most observant of the right.

We read that Solon, who had a famous reputation for wisdom,
sought to follow this type. Silius [Italicus], narrating the exploits of
Fabius Maximus, says :

Deceit henceforth on valour’s side is placed.

2. In Homer Ulysses, the typical man of wisdom, is at all times
full of wiles against the enemy; whence Lucian deduced the rule
that those who deceive the foe deserve praise. Xenophon asserted
that in war nothing is more useful than deceptions. In Thucydides
Brasidas says that the renown won by the stratagems of war ® is

1 The learned Jan de Mers has much on this topic in his History of Denmark, I and II. There you
will see that Liibeck and the Emperor are for commercial intercourse, and the Danes against it. See
also Krantz, Vandalica, XIV [XIV. xxix] ; De Thou, on the aforementioned year 1589, Hzstortes, XCVI
Laci xv]; and Camden, besides the places previously cited, on the years 1589 and 1595, where the

ispute between the English and the Germans, who are called Hanseatics, is discussed.

2 Not very different 1s the incident related of Pompey by Plutarch in his History of the Muthridatic
War (Life of Pompey, xxxix = p. 639 B]: ‘ He placed guards at the Bosphorus to watch for any traders
who might sail in ; for those who were caught the penalty was death.’

* So says Virgil alsa, Aenezd, XI [XI. 515], and Sallust, who is cited by Servius.

Polybius,
I [Ixxxu1i].

Plutarch,
Demetrvus
[XXXL11=

P 904E).

[Cf. Ho-
mer,
Odyssey,

I. 296;
Stobaeus,
liv 46.]
[Zsthmaean
Hymns,
111. 69.]

[A enerd,
II. 390.]

[II. 426 f.]

[Plutarch,
Solon, vii
=p. 82.]

XV [327].

Lucian,
Philo-
pseudes
[begin-
ning]
Xen.,
Training
of Cyrus,
I [vi. 29f.];
and On
Horseman-
ship [The
Cavalry
Com-
mandaer,

Vv. 9].

Thuc,

V [ix].
Plutarch,
Apoth.
[=p.

209 B}.
Polybius,
TX [x11]
V [roo].
Plutarch,
Marcellus
{xxl1= p.
311 Bl.
[Lysander,
V1Il= Dp.
4374]
[Phulo-
poemen,
x11=p.
363 E.]

[SVIT.
v. 6.]

Dig. IV.
ill. I § 3.
Digest,

XNLIX. xv.

26.

On Joshua,
qu. x [On
Hepta-
teuch, VI.
x].

On the
Priest-
hood,

I [vi].

On the Law of War and Peace [Book ITI

606

particularly conspicuous; and in Plutarch Agesilaus declares that
to deceive an enemy is both just and permissible.

Polybius thinks that what is accomplished by main force in
war is to be considered of less importance than what is done by
taking advantage of opportunities and by the use of deception.
Hence Silius represents Corvinus as saying :

War must be waged with guile; force brings less fame to the leader.

Similar, according to Plutarch, was the view even of the stern Spartans:
he observes that a larger victim was sacrificed by the one who had
gained a victory through a ruse than by him who had won by open
fighting. The same writer thinks highly of Lysander? for ‘ varying
with ruses most of the operations of war’. Plutarch counts it among
the merits of Philopoemen that, having been trained in the Cretan
system, he combined the straightforward and honourable method of
fighting with craft and ruses. It is a saying of Ammianus that
‘ All successful issues of war are to be praised without distinction of
valour or guile’.

3. The Roman jurists call it a good ruse ‘ whenever any one lays
a plot against the enemy’; and again, they say that it makes no differ-
ence whether any one escapes from the power of the enemy by force
or by trickery. This is ‘ deception which cannot be censured, such
as that of a general’, as Eustathius notes in his commentary on the
fifteenth book of the I/ad. Among the theologians, Augustine
declares: ‘When one undertakes a righteous war, it makes no
difference, [428] in respect to justness, whether he fights openly
or by ambuscades.’ Chrysostom says that generals who have won
a victory by a ruse receive the highest praise.

4. However, there is no lack of opinions which seem to advocate
the opposite view, and some of these we shall present below. The
final conclusion will depend upon the answer to the question whether
deceit belongs to the class of things that are always evil, in regard to
which the saying is true that one must not do evil that good may
come; or whether it is in the category of things which from their very
nature are not at all times vicious but which may even happen to be
good.

There is a similar saying of Mohammed, ‘el-harbu hud‘atun’, [440] that is, ‘ battles require
deceit’. According to Virgil [Aenesd, XII. 336], in the following of Mars are:
Wrath and ambuscades.
Thereon Servius comments: ‘He shows that he 1s accompanied not only by valour, but also by
stratagems.’

* Plutarch compares him to Sulla, in whose soul Carbo used to say there were a lion and a fox
[Sulla, xxvii=p. 469 E].

Chap.1] Rules vegarding what 1s Permissible in War 607

VIL.—In a negative action, deceit is not in itself unpermissible

It must be observed, then, that deceit is of one sort in a negative
action, of another sort in a positive action. The word deceit I extend,
on the authority of Labeo, even to those things which occur in a
negative action ; he classes it as deceit, but not harmful deceit, when
any one ‘ protects his own or another’s possessions through dissimula-
tion’. It cannot be doubted that Cicero spoke too sweepingly when he
said: ‘Pretence and dissimulation must be removed from every
phase of life.” For since you are not required to reveal to others all
that you know or desire, it follows that it is right to dissimulate,
that is to conceal and hide some things from some persons. ‘ One
may’, said Augustine,’ ‘conceal the truth wisely, by the use of
dissimulation in some degree’. Cicero himself in more than one
place admits that such dissimulation is absolutely necessary and
unavoidable,’ especially for those to whom the care of the state is
entrusted.

The narrative of Jeremiah (Jeremiah, chap. xxxviii) offers
a notable example touching this point. The prophet had been
questioned by the king as to the outcome of the siege, but in the
presence of the princes, at the king’s request, he wisely concealed
that fact, assigning another and yet not untrue reason for the confer-
ence. With this, again, we may class the action of Abraham ? in
concealing his marriage and calling Sarah his sister, that is, according
to the usage of the time, a near relative.

VIII.—Decett in a positive action falls under two heads: deceit
exhibited 1n actions not limited in significance, and that exhibited
in actions the significance of which 1s, as tt were, fixed by agree-
ment ; it 1s shown that deceit of the former sort is permissible

I. Deceit which consists in a positive action, if it is exhibited
in acts, is called pretence; if in words, falsehood. Some persons
establish this distinction between the two terms, because they say
that words are naturally the signs of thoughts, while acts are not.
But the contrary is true, that words by their very nature and apart
from the human will have no significance, unless perchance a word
is confused and ‘inarticulate’, such as is uttered by a person in grief,
when it comes rather under the term act than speech.

If now the assertion is made that the nature of man possesses

* Also on Psalm v, verse ‘Thou wilt destroy all’: ‘It is one thing to lie, and another to conceal
the truth.’ This is cited in the Decretum, IT. xxii. 2 [II. xi. 2. 14].

2 See Chrysostom, On the Priesthood, I [I. viii. end].

8 ‘He wished the truth to be concealed, but not to utter a he’: Augustine, On Genests, qu. xx
[On Hepiateuch, I. xxvi], quoted by Gratian, in the aforementioned Decretum, IL. xxix. 3 [II. xxii. 2. 22].

1569°27 TT

Dzg. IV.
li, I. § 2.

On Duties,
III [xv.
6x].

Against
Lying, x;
Thomas,
II. ii, qu.
40, art. 3,
ans. to
obj , and
qu. 71,
art. 7 5
Sylvester,
word
bellum, pt.
I, no. 9.
Cicero,
For Milo
(xxiv. 65];
Letters,
VII, ix
[X. viii.
4); For
Gn. Plan-
cius [V1.
16}.

Genesis,
xx;
Thomas,
II, ii, qu.
IIo, art. 3,
ans, to
obj.

Digesi,

AMXIITI.

x.7.§ 2

Digest,
XLIV.
vil. 38

On Inter-
pretation,
iv.

Luke,
xxiv. 28,

Mark, vi.

48,

Acts, Xvi.

3.

On the Law of War and Peace [Book ITI

608

superiority over that of other living creatures in this, that it can convey
to others the ideas of the mind and that words were invented for this
purpose, that is true. But it must be added that such conveying of
thought is accomplished not by means of words alone but also by
signs,1 as among dumb persons, whether these signs naturally have
something in common with the thing signified or whether they
possess significance merely by agreement.

Similar to these signs are those characters which, as Paul the
jurist says,? do not express words formed by the tongue but ob-
jects themselves, either from some resemblance, as in the case of

hieroglyphic signs, or by mere arbitrary convention, as among the

Chinese.
z. At this point then we must introduce another distinction,

such as we employed to remove the ambiguity in the term law of
nations. For we said that the term law of nations includes both what
is approved by separate nations without mutual obligation and what
contains a mutual obligation in itself. Words, then, and signs, and
the written characters we have mentioned, were invented as a means
of expression under a mutual obligation; as Aristotle called it
‘by convention’. ‘This is not the case with other things. Hence
it comes about that we may avail ourselves of other things, even if we
foresee that another person will derive therefrom a false impression.?
[429] I am speaking of what is intrinsic, not of what is incidental.

d so we must give an example, in which no harm follows as a
consequence,* or in which the harm itself, without consideration of
the deceit, is permissible.

3. An example of the former case is found in Christ, who in
the presence of His companions on the way to Emmaus ‘ made as
though He would’ go further, that is, gave the impression of intending
to go further; unless we prefer truly to believe that He wished to
go further, on condition, nevertheless, that He should not be detained
by a great effort. Thus God is said to will many things which do
not come to pass, and in another place Christ is said to have intended
to pass by the Apostles who were in a ship, that is had He not been
urgently entreated to embark.

Another example may be found in Paul’s circumcision of
Timothy, when he was well aware that the Jews would interpret this
as though the injunction of circumcision, which had in fact already

? Pliny, on the nation of the Ethiopians, [Natural Hisiory,] VI. xxx, says: ‘Some of them use
noddings of the head and movements of the limbs instead of speech.’ See Decretals, IV. i. 25.

2 * We are not’, he says, “bound by the form of the letters, but by the speech which the letters
express, in So far as it is agreed that what is indicated by the writing has not less force than what is
indicated by words formed by the tongue.’ In a truly philosophic spirit has he said ‘it is agreed’,
in order to show that these things have force ‘by convention’ (é« ouvOj«7s).

* See Augustine, On Christian Docirine, IT. xxiv [II. xxiv].

* As im the deed of Michal, z Samuel, xix. 16.

Chap.1] ules regarding what 1s Permissible 1n War 609

been done away with, was still binding upon the children of Israel,
and as though Paul and Timothy themselves thought so. However,
Paul did not have this in view, but merely sought to obtain for himself
and Timothy the opportunity of associating with the Jews on more
intimate terms. After the removal of the divine law circumcision
no longer implied such an obligation by agreement; and the evil
arising from the error, which followed for the time being, and was later
to be corrected, was not of so great importance as the good which
Paul sought, that is the introduction of the truth of the Gospel.

This sort of pretence the Greek fathers often call ‘ manage-
ment’. In regard to it there is a notable opinion of Clement of
Alexandria, who in a discussion of the good man speaks thus: ‘ For the
benefit of his neighbour he will do things which otherwise he would
not do of his own accord and original purpose.’ Of this nature was the
act of the Romans who threw bread from the Capitol into the posts of
the enemy that they might not be believed to be distressed by famine.

An example illustrating the latter case is found in a pre-
tended flight, such as Joshua ordered his men to make so as to take
Ai by storm, and such as other commanders have frequently ordered.
For in this instance we regard the injury which follows as legitimate
according to the justice of war. Moreover, flight itself has no signifi-
cance by agreement, although an enemy may interpret it as a sign of
fear; such interpretation the other party is not obliged to guard
against in his use of his freedom to go hither and thither, more or
less rapidly, and with this or that gesture or outward appearance.
In the same category we may class the actions of those of whom we
read that they made use of the weapons, standards, uniforms, and
tents of their enemies.

5. All these things are in fact of such a sort that they may be
employed by any one at his discretion, even contrary to custom; for
the custom itself was introduced by the choice of individuals, not as
it were by universal consent, and such a custom constrains no one.

IX.—The difficulty of the inquiry in respect to the second sort of decett

15 indicated

1. Of greater difficulty is the discussion with respect to those
types of deceit which, if I] may so say, are in common use among men
in commerce and in which falsehood in the true sense is found.

1 For so this is to be called, and not dwarn, that is, ‘deceit’, according to Chrysostom in the
work previously cited, On the Priesthood, I [I. 1x].

The same author comments as follows On First Corinthians, iv. 6 [Homily XII, i]: ‘ Here there
was no deceit, but a sort of obedience and management.’ Also, in his comment on ix. 20 [Homily
XXII, iii]: ‘For that he might correct those who were in truth such, he himself became such, not in
truth being other than what he was, but pretending to be, doing such things as they did, but not with
the same purpose.’ With this we may associate the pretended madness of David.

Tt2

[Stromata,
VIL 1x.]

Livy, V
[xlviti. 4]

Joshua,
viii ;
Sylvester,
word bel-
lum, pt. I,
no. 9.

[Ihad,
IX, 312 f]

[Fr of
Creusa, 10
Stobaeus,
xii. 4 ]

[Menan-
der, in
Stobaeus,
xii. 16 a.]

[On Lying,
1. r and
Xviil. 38.]
Plato, Re-
public, 1,

Xen,
Socrates,
IV [Me-
moran , IV.
i. 16 f.]
Plutarch,
Contrad.
of Stows
[xlv11= p.
1055;
1056].
Quuntilian,
[Inst.,]
XIT.i [38].
Nic. Eth ,
VII, iui;
IV. vii
[II vii;
IV. xi].
[On Nic.
Ethics,

V, vili.]

On the Law of War and Peace [Book III

610

There are many injunctions against falsehood in Holy Writ.
‘A righteous man’, that is the good man, ‘ hateth lying’ (Proverbs,
xiii. 5); ‘ Remove far from me falsehood and lies ’ (Proverbs, xxx. 8) ;
‘Thou wilt destroy them that speak lies’ (Psalms, v. 6); ‘ Lie not
one to another ’ (Colossians, 111. 9).

This point of view is rigidly maintained by Augustine; and even
among the philosophers and poets there are those who are seen to
be in sympathy with it. Well known is this saying of Homer :

To me as hateful as the jaws of Hell is he
Whose mind thinks other than his tongue reveals.

[430] Sophocles says :

What is foreign to truth it is never fitting to utter.
Yet, if the telling of truth will bring sure doom to another,
Pardon to him must be granted who does that which is not fitting.

Cleobulus has this line:

Falsehood is hateful to him who in his heart is wise.

Aristotle said: ‘ Falsehood in itself is base and worthy of censure,
but truth is noble and deserving of praise.’

2. Nevertheless authority is not lacking in support of the
opposite view also. In the first place in Holy Writ there are examples
of men cited without a mark of censure ;? and, in the second place,
there are the declarations of the early Christians, Origen, Clement,
Tertullian, Lactantius, Chrysostom, Jerome, and Cassian, indeed of
nearly all, as Augustine himself acknowledges. Although disagreeing
with them, he nevertheless recognizes that it is ‘a great problem’,
‘a discussion full of dark places’, ‘a dispute in which the learned are at
variance ’, to use words that are all his own.

3. Among the philosophers there stand openly on this side
Socrates and his pupils Plato and Xenophon; at times, Cicero;
if we may trust Plutarch and Quintilian, also the Stoics, who among
the endowments of the wise man include ability to lie in the proper
place and manner. In some places Aristotle too seems to agree with
them, for his phrase ‘ in itself’, which we have quoted, may be inter-
preted generally, that is, considering the thing without regard to
attendant circumstances. The commentator upon Aristotle,
Andronicus of Rhodes, thus speaks of the physician who lies to
a sick man: ‘ He deceives indeed, but he is not a deceiver,’ adding
the reason: ‘for his aim is not the deception of the sick man, but his
cure ’.

* Trenaeus learned from the instruction of an ancient presbyter, and taught that: ‘ We should
mot become accusers in things which the ‘Scriptures simply state, but do not censure.’ The passage
is in Book IV, chap. I [IV. xxxi].

Chap.I] ules regarding what 1s Permissible in War 611

4. Quintilian, whom I have mentioned, in defending this
same view says that there are many things which are made honourable
,or base, not so much by the nature of the facts as by their causes.
Says Diphilus :

The falsehood told for safety’s sake,
If | may judge, can cause no detriment.

In Sophocles, when Neoptolemus asks :

Do you not think a lie is base?

Ulysses answers :
If safety from the lie arise, I do not.

Similar views may be cited from Pisander and Euripides. In
Quintilian, again, ] read: ‘ For to tell a lie is sometimes permissible
even for the wise man.’ Eustathius, Metropolitan of Thessalonica,
commenting On the Odyssey, II, writes: ‘ The wise man will lie
when occasion demands’ ;1 and on this point he adduces evidence
from Herodotus and Isocrates.

X.—Not every use of an expression, which 1s known to be taken in another
sense, 15 unpermtissible

I. Perhaps we may find some way of reconciling such divergent
views in a wider or more strict interpretation of the meaning of
falsehood.

Adopting the point of view of Gellius when he distinguishes
between telling an untruth and lying, we do not understand as
a falsehood what an ignorant person happens to say; but we are
concerned with that which is consciously uttered with a meaning
that 1s at variance with the idea in the mind, whether in under-
standing or in an act’of will. For ideas of the mind are what are
primarily ‘and immediately’ indicated by words and similar signs ;
so he does not lie who says something untrue which he believes to be
true, but he lies who says that which is indeed true but which he
believes to be false. [431] Falsity of meaning, therefore, is that
which we need to exemplify the general nature of falsehood.

From this it follows that, when any term or phrase has ‘ several
meanings’, that is, may be understood in more than one way, either

1 On occasion, as Donatus says, On [Terence’s] Brothers, IV. iti. [TV. iii. 18]: ‘And some writers
on moral obligations think that it is right for one to deceive on occasion.’ Cicero, For Quintus Ligarius
[v. 16], calls such a falsehood ‘ an honourable and merciful lie’.

2 ‘Nothing except a guilty mind makes a guilty tongue’, and ‘ No one is to be considered a liar
who has said something false which he thinks to be true, because, so far as it is in his power, he himself
does not deceive, but is deceived’. These are the words of Augustine, in his On the Words of the
Apostle, XXVIII [=Sermones de Scripturis, clxxx. 2], and Enchiredium, xxii [xviii], cited by Gratian,
in the Decretum, Il. xxii. 1 [TI. xxii. 2. 3 and 4].

(Inst. Or,
XIT. 1.36 J

[Stobaeus,
Ell, 12.]

[Philo-
ctetées,
108 f.]

[Euripides,
Hecuba,
247 f.]
(Inst. Or.,
II. xvii.
27.]

Thomas
Aquinas,
II. ii, qu.
r10, art. I.
ans. to
obj.
Gellius,
XI. xi.

John,
Xl. IZ.

John, i.
20-I.

Luke,
XxX11 30.

Matthew,
XXV1. 25

[xxvi. 29].

Acts, i. 6.

[Matthew,
xii. 13 ]

Tacitus,
Annals,
VI [X1.
XXxIv].

612 On the Law of War and Peace [Book III

from common usage, or the practice of an art, or some figure of
speech easily understood, then, if the idea in mind fits one of these
meanings, it is not held to be a lie, even if it is thought that he who,
hears it will understand it in another way.’

z. It is indeed true that the rash employment of such a mode
of speech is not to be approved. It may nevertheless be justified
by incidental causes, as, for instance, if thereby aid is rendered in the
instruction of one who has been entrusted to our care, or in avoiding
an unfair question.

Christ Himself gave an example of the former sort, when He
said: ‘Lazarus our friend is fallen asleep’, which the Apostles
understood as though it were said of the sleep of the living. Again,
what He had said about rebuilding the Temple, meaning it in regard
to His own body, He knew the Jews took with reference to the actual
Temple. Similarly when He promised to the Apostles twelve
exalted seats next to the King, like judges of the tribes among the
Jews, and elsewhere that they should drink of a new wine in His
Father’s kingdom, He seems to have been fully aware that they
took this to refer to none other than some kingdom in this life, with
the expectation of which they were filled until the very moment
when Christ was about to ascend up into heaven. On another occa-
sion also He spoke to the people through the indirectness of parables,
that those who heard Him might not understand, unless, that is,
they should bring thereto such earnestness of mind and readiness to
be taught as were required.

An example of the latter use may be given from profane history
in the case of Lucius Vitellius, whom Narcissus pressed to explain
his ambiguities and reveal the truth fully, but whom he could not
force to refrain from giving replies that were dubious and capable
of varied interpretation. Here applies a saying of the Jews:3
‘If any one knows how to use ambiguous language, it is well: but if
not, let him remain silent.’

3. On the other hand, a case may arise when it is not only not
praiseworthy but even wicked to employ such a mode of speech; as

1 Just as [441] Abraham spoke deceptively to his servants; on this incident Ambrose [On
Abraham, I. viii. 71] passes judgement with approval. He is followed by Gratian, after the afore-
mentioned Decretum, II. xxii. 2. 20.

2 The same Tacitus, Historzes, III [III. iii], says: ‘ He spoke obscurely, with the intention of
interpreting his words in such a way as might be advantageous.’ Also [III. hi]: ‘ Having so phrased
his statements that, according to the outcome, he might repudiate connexion with what was unfavour-
able, or assume credit for what was successful.’

* To the Jews belongs the following also: ‘It is permissible to speak ambiguously for
the sake of a good thing.’ This is cited by the erudite Manasses Ben-Israel in his Conciliator,
qu. XxxvIi.

Chrysostom, On the Priesthood, I [I. ix. end], says: ‘ He is rightly called a deceiver who avails
himself of such a means unjustly, but not he who does so for a beneficial purpose.’

Chap.I] Rules regarding what 1s Permissible in War 613

when the glory of God,! or the love due to our neighbour,? or rever-
ence toward a superior, or the nature of the thing in question requires
that everything which is thought in the mind shall be completely
revealed. Just so in the case of contracts, we said that that must
be made known which the nature of the contract is understood to
demand; and in this sense we may not inaptly interpret the rule
of Cicero, ‘ All falsehood must be removed from matters of contract ’,
which is taken from the ancient Athenian law prohibiting ‘the
uttering of falsehoods in the market-place’. In these passages
apparently the word falsehood receives so broad a meaning that it
covers even an obscure statement. But this, strictly speaking, we
have already excluded from the idea of a falsehood.

XI.—The character of falsehood, in so far as it 1s unpermisstble, consists
in its conflict with the right of another ; this 1s explained

1. In order to exemplify the general idea of falsehood, it is
necessary that what is spoken, or written, or indicated by signs
or gestures, cannot be understood otherwise than in a sense which
differs from the thought of him who uses the means of expression.

Upon this broader signification, however, a stricter meaning of
falsehood must be imposed, carrying some characteristic distinction.
This distinction, if we regard the matter aright, at least according
to the common view of nations, can be described, we think, as nothing
else than a conflict with the existing and continuing right of him to
whom the speech or sign is addressed ; for it is sufficiently clear that
no one lies to himself, however false his statement may be.

By right in this connexion I do not mean every right without
relation to the matter in question, but that which is peculiar [432]
to it and connected with it. Now that right is nothing else than the
liberty of judgement ® which, as if by some tacit agreement, men
who speak are understood to owe to those with whom they converse.
For this is merely that mutual obligation which men had willed to
introduce at the time when they determined to make use of speech

1 Philo, On the Life of Moses [III. xxi]: ‘I am speaking of things which concern the glory of God,
in regard to which even one who is otherwise of a lying disposition must speak the truth. For truth
is the companion of God.’ Augustine, Letters, viii [xxviti. 3]: ‘ It is one question, whether a good man
should ever lie ; and another question, whether a writer of the Holy Scriptures should lie.’ See what
follows below in IIT. i. 15.
2 Aeschylus, Prometheus Bound [lines 609 ff.] :

Openly shall I say what you seek to hear,

In simple speech, and not in dubious phrase,

But as is right to hold discourse with friends.

* Hence the Hebrews say that he who takes away the means of knowing ‘steals the heart’ ;
Genesis, Xxxi. 20, 26-7, with the commentary of Onkelos thereon, and the Sepiuagint. Also Rabbi David
in his Book of Roots, Rabbi Salomon in his commentary, and Aben-Ezra.

[II. xi1. 9.

[On
Duties,
IIT. xv.
6r.]

Demo-
sthenes,
Against
Leptines
[xx. 9=
459-]

Republic,
I [v.end =
331 DI

(Enchirt-
dium,

xxii |

On Duties,
I [x. 31].

Lucretius
(I. 939].
[Institutes

of Oratory,
XII. i.

38.]

614 On the Law of War and Peace [Book III

and similar signs; for without such an obligation the invention of
speech would have been void of result.

2. We require, moreover, that this right be valid and con-
tinuing at the time the statement is made; for it may happen that
the right has indeed existed, but has been taken away, or will be
annulled by another right which supervenes, just as a debt is can-
celled by an acceptance or by the cessation of the condition. ‘Then,
further, it is required that the right which is infringed belong to
him with whom we converse, and not to another, just as in the case
of contracts also injustice arises only from the infringement of a right
of the contracting parties.

Perhaps you would do well to recall here that Plato, following
Simonides, refers truth-speaking to justice; that falsehood, at least
the type of falsehood which is forbidden, is often described in Holy
Writ as bearing false witness or speaking against one’s neighbour ;
and that Augustine himself in determining the nature of falsehood
regards the will to deceive as essential. Cicero, too, wishes that
inquiry in regard to speaking the truth be referred to the fundamental
principles of justice.

3. Moreover, the right of which we have spoken may be
abrogated by the express consent of him with whom we are dealing,
as when one says that he will speak falsely and the other permits it.
In like manner it may be cancelled by tacit consent, or consent
assumed on reasonable grounds, or by the opposition of another right
which, in the common judgement of all men, is much more cogent.

The right understanding of these points will supply to us many
inferences, which will be of no small help in reconciling the differences
in the views which have been cited above.

XII1.—The vtew 1s maintained that tt 15 permissible to say what 1s false
before infants and insane persons

The first inference is that even if something which has a false
significance is said to an infant or insane person no blame for false-
hood attaches thereto. For it seems to be permitted by the common
opinion of mankind that

The unsuspecting age of childhood may be mocked.

Quintilian, speaking of boys, said: ‘ For their profit we employ
many fictions.’ The reason is by no means far to seek; since infants
and insane persons do not have liberty of judgement, it is impossible
for wrong to be done them in respect to such liberty.

1 Lactantius, Institutes, VI. xviii: ‘Let him never lie in order to deceive or do harm.’

Chap.1] Rules regarding what 1s Permissible in War 615

XTII.—I¢ ts permissible to say what is false when he to whom the
conversation is not addressed is deceived, and when it would be
permissible to deceive him if not sharing in it

I. The second inference is that, so long as the person to whom
the talk is addressed is not deceived, if a third party draws a false
impression therefrom there is no falsehood.

There is no falsehood in relation to him to whom the utterance
is directed because his liberty remains unimpaired. His case is like
that of persons to whom a fable is told when they are aware of its
character, or those to whom figurative language is used in ‘irony’,
or in ‘ hyperbole’, a figure which, as Seneca says, reaches the truth
by means of falsehood,* while Quintilian calls it a lying exaggeration.
There is no falsehood, again, in respect to him who chances to hear
what is said; the conversation is not being held with him, con-
sequently there is no obligation toward him. Indeed if he forms
for himself an opinion from what is said not to him, but to another,
he has something which he can credit to himself, not to another.
In fine, if, so far as he is concerned, we wish to form a correct judge-
ment, the conversation is not a conversation, but something that
may mean anything at all.

2. Cato the censor therefore committed no wrong in falsely
promising aid to his allies, nor did Flaccus, who said to others that
a city of the enemy had been stormed by Aemilius, although in both
cases the enemy was deceived. A similar ruse is told of Agesilaus by
Plutarch. Nothing in fact was said to the enemy ; the harm, moreover,
which [433] followed was something foreign to the statement, and
of itself not unpermissible to desire or to accomplish.

To this category Chrysostom and Jerome® refer Paul’s speech,
in which at Antioch he rebuked Peter for being too zealous a Jew.
They think that Peter was well aware that this was not done in
earnest; at the same time the weakness of those present was humoured.

XIV.—It is permissible to say what 1s false when the conversation 15
directed to him who wishes to be deceived in this way

I. The third inference is that, whenever it is certain that
he to whom the conversation is addressed will not be annoyed at
the infringement of his liberty in judging, or rather will be grateful
therefor, because of some advantage which will follow, in this case

1 * He makes unbelievable assertions, in order to arrive at what is believable.’ Seneca, in the same
passage.

2 Also Cyril, Against Julian, IX, near the end. Not very differently also Tertullian, Agatnst
Marcton, Books I and III [I. xx; IV. ii].

On Bene-
fits, VII.
Kx1ii.

(Inst. Or ,
VIII. v1.
67.]

Livy,
XXXIV
[xii].
Appian,
Spanish
Wars
[xiii. 8x].
[Agesilaus,
xvii=

p. 605 c.]

[Chrysost.
On Gal.,
li, 7-8 ;
Jerome,
Letters,
cxvi. ro ]
(Galatians,
li. 14.]

[I. 941.]

[Stobaeus,
xi. 13]
[Training
of Cyrus,
I. vi. 31.]
[Stromatia,
VII. ix.
53-]
[Disserta-
tions, xix.
3.]

Socrates,
IV [Me-
morabilia,
IV.i1. 17].
ivy,
XXXIV
[I. xxvii.
8}.
[Livy, II
xiv. 6.]

616

also a falsehood in the strict sense, that is a harmful falsehood, is not
perpetrated ; just so a man does not commit theft who with the pre-
sumed consent of the owner uses up some trifling thing in order that
he may thereby secure for the owner a great advantage.

In these matters which are so certain, a presumed wish is taken
as one that is expressed. Besides, in such cases it is evident that no
wrong is done to one who desires it. It seems, therefore, that he
does not do wrong who comforts a sick friend by persuading him
of what is not true, as Arria did by saying what was not true to Paetus
after the death of their son ; the story is told in the Letters of Pliny.’
Similar is the case of the man who brings courage by a false report
to one who is wavering in battle, so that, encouraged thereby, he
wins victory and safety for himself, and is thus ‘ beguiled but not
betrayed ’, as Lucretius says.

2. Democritus says: ‘ We must speak the truth, wherever that
is the better course.’ Xenophon writes: ‘It is right to deceive our
friends, if it is for their good.’ Clement of Alexandria concedes ‘ the
use of lying as a curative measure’. Maximus of Tyre says: ‘A
physician deceives a sick man, a general deceives his army, and a pilot
the sailors ; and in such deception there is no wrong.’ The reason 1s
given by Proclus in commenting on Plato: ‘ For that which is good
is better than the truth.’

To this class of untruths belong the statement reported by
Xenophon,? that the allies would presently arrive; that of Tullus
Hostilius, that the army from Alba was making a flank movement by
his order; what histories term the ‘salutary lie’ of the consul
Quinctius, that the enemy were in flight on the other wing; and
similar incidents found in abundance in the writings of the historians.
However, it is to be observed that in this sort of falsehood the infringe-
ment upon the judgement is of less account because it is usually
confined to the moment, and the truth is revealed a little later.

On the Law of War and Peace [Book ITI

XV.—Ié is permissible to say what 1s false when the speaker makes use
of a@ superior right over one subsect to himself

1. A fourth inference, akin to the foregoing, applies to the
case when one who has a right that is superior to all the rights of
another* makes use of this right either for his own or for the public

1 TIT. xvi.
_ * * And when Agesilaus had come into Boeotia and had learned that Pisander had been beaten
in a naval battle by Pharnabazus and Conon he gave orders that the opposite should be told to his
troops; and he came forth wearing a wreath, and he offered sacrifice as if in gratitude for a victory.’
Plutarch, Ageszlaus [xvii =p. 605 C].
* In the Iiad, II [II. 73 £.], Agamemnon the leader of the Greeks says:
But first I shall prove the Greeks with words, as my right is,
And bid them swiftly to flee with their brazen ships.

Chap.I1] ules regarding what 1s Permissible in War 617

good. This especially Plato seems to have had in mind when he
conceded the right of saying what is false to those having authority.
Since the same author seems now to grant this privilege to physicians,’
and again to deny it to them, apparently we ought to make the
distinction that in the former passage he means physicians publicly
appointed to this responsibility, and in the latter those who privately
claim it for themselves. Yet Plato also rightly recognizes that false-
hood is not becoming to deity, although deity has a supreme right
over men, because it is a mark of weakness to take refuge in such
devices.

2. An instance of blameless mendacity, of which even Philo
approves, may perhaps be found in Joseph,’ who, when ruling in the
king’s stead, accused his brothers first of being spies, and then of being
thieves, pretending, but not really believing, that they were such.
Another instance is that of Solomon, who gave an example of wisdom
inspired by God, when to the women who were disputing over the
child he uttered the words which indicated his purpose to slay it,
although his real intent was the furthest possible from such a course,
and his desire was to assign to the true mother her own offspring.
[434] There is a saying of Quintilian: ‘Sometimes the common
good requires that even falsehoods should be upheld.’

XVI.—It ts perhaps permissible to say what ts false when we are unable
in any other way to save the life of an innocent person, or something
else of equal importance

A fifth inference may be applicable to cases where the life
of an innocent person, or something else of equal importance, cannot
be saved without falsehood, and another person can in no other way
be diverted from the accomplishment of a wicked crime.* Such was
the deed of Hypermnestra, who is often lauded for this reason :

Nobly false * and for all time
A maiden famed.

. 1 [442] Chrysostom, in the aforementioned On the Priesthood, I [I. ix], adduces examples of
physicians.

2 ‘When with pretended severity he accuses his brothers of espionage’, says Cassiodorus [Peter
of Blois] in his On Friendshzp.

* Augustine, On Psalm V [§ 7], cited by Gratian, in Decretum, II. xxii. 2. 14, says: ‘There are,
however, two sorts of lies in which there is no great fault, yet which are not entirely free from fault.
The one sort is told when we are joking, the other when we lie for the benefit of our neighbour. Now
the first sort, which consists in a joke, is not so dangerous, because it does not deceive. For he to whom
it is told knows that it has been told in jest. But the second sort of lie is still less dangerous, because
it contains some element of kindness.’

Tertullian, On Modesty [chap. xix], classes among the sins of daily occurrence, to which we are all
subject, the necessity of lying.

4 On this the Scholiast comments: ‘Fittingly. For it is noble to lie for the sake of justice.’ Of
like tenor is what Chrysostom [On Penztence, VII. v] says of Rahab: ‘O fair falsehood, O praise-
worthy deception, not of one who breaks divine commands, but of one who is a guardian of the truth’,
or, as other manuscripts have it, ‘ guardian of true piety’.

Republic,
IIT fiu=
389 Dj.

[Republic,
IT = 382
DE.]

[x Kings,
lil. 25.]

II. xviii
[Inst. Or.,
IT. xvit.

36].

Horace,
Odes, ITI.
xi [35].

Republic,
IT [xx =
382 C];
Training
of Cyrus,
II (It vi
28], and
Socrates,
V (Afe-
morabtilia,
IV.11, 16] ;
Philo, On
the Afigr.
of Abr.
[On the
Cherubim,
v]; Chry-
sostom,
On the
Priesthood,
I [viii] ;

I Samuel,
xi [x0] ;

I [2]
Kings, vi.
18 ff.
[Fron-
tinus,
Strata-
gems, IT.
iv. o].
(Inst. Or ,
XII. i.
39].
Thomas,
II. ii, qu.
rro, art.
I and 3;
Covarru-
vias, On
Sext., I.
XVIli. 2,
pt. 1,

§ 5,0. 15;
Soto, De
Iustttra,
V, qu. 6,
art. 2;
Toledo,
IV. xxi;
V. Imii;
Lessius,
De Iusti-
ta, IT. xlii,
dub. 9.

618 On the Law of War and Peace [Book III

XVII.—The authors who have judged that falsehood spoken in the

presence of enemies 15 permissible

1. The principle which the learned generally lay down, that it
is permissible to speak falsely to an enemy, goes beyond what we have
just said. Accordingly, to the rule forbidding a lie the exception,
unless against enemies, is added by Plato and Xenophon; also by
Philo among the Jews, and by Chrysostom among the Christians.’
To this exception you would perhaps refer the lie of the men of
Jabesh when under siege, as recorded in Holy Writ, and the similar
deception on the part of the prophet Elisha ;? also that of Valerius
Laevinus, who boasted that he had slain Pyrrhus.

2. To the third, fourth, and fifth of the conclusions which we
have stated, applies the passage of Eustratius, Metropolitan of
Nicaea, On Nicomachean Ethics, Book VI [VI. ix]:

He who gives good counsel does not necessarily speak the truth. [t canin fact happen
that he who plans aright makes falsehood itself a part of his plan, that he may lie inten-
tionally, either to an enemy, in order to deceive him, or to a friend, to deliver the friend
from evil; historical narratives are full of instances of this sort.

Quintilian says that, if a footpad must be deterred from killing
a man, or if an enemy must be deceived to save the country, we shall
find it necessary to praise in the wise man himself conduct that
otherwise we should have to censure in slaves.

3. These doctrines do not meet with the approval of the
school of writers of recent times, since in almost all matters they have
chosen to follow Augustine? alone of the teachers of antiquity. But
the same school admits of unspoken interpretations, which are so
repugnant to all practice that one may question whether it would
not be more satisfactory to admit to certain persons the use of false-
hoods in the cases we have mentioned, or in some of them (for I
assume that nothing has been settled here), than so indiscriminately
to exempt such interpretations from the definition of falsehood.
Thus when they say ‘I do not know’, it may be understood as ‘I do

_ __In regard to the Egyptian midwives, Augustine [On Hepiateuch, II, beginning] says: ‘O great
instinct of humanity, O pious lie uttered to save life!’ Jerome, On Ezehel, xxvii [xxxviii] and On
Isaiah, lvi [Ixy], praises these same midwives and believes that rewards, even eternal rewards, have
been given to them. Also Ambrose, Letters, VI [V. 10], To Syagrius, and Augustine himself, Against
Lying, To Consentius, chap. xv, varying, as often.

Tostado denies that there is sin in this. Augustine, On Exodus, II [On Hepiateuch, II. i], and
Thomas Aquinas, II. ii, qu. 110, art_ 55, ans. to obj. 4, and Cajetan thereon, are doubtful. e, if
you have the time, Erasmus, in his Prazse of Folly, and the erudite Maes, On Joshua, ii. 5.

* He speaks thus: ‘If you should call to account the most eminent generals, you would find that
most of their victories have been won through deception ; and yet such generals receive more praise
than those who have won by open warfare.’

* A similar act of the same Elisha is recorded in 2 Kings, viii. ro, according to the reading of the
Masorites, which is followed by the Latin Vulgate version.

* Augustine’s later view in this matter has been opposed by the Abbot Rupert.

Chap.I] Rules regarding what is Permissible in War 619

not know so as to tell you’ ; and when they say ‘I have not’ it may
be understood as ‘so as to give you’; and other things of this sort
which the common sense of mankind repudiates, and which, if
admitted, will offer no obstacle to our saying that whoever affirms
anything denies it himself, and whoever denies affirms.

4. It is assuredly quite true that in general there is no word
which may not have a doubtful meaning ;? for all words, in addition
to the significance which is called that of the first notion, have
another of a second notion, and this significance varies in the different
arts ;* moreover, words have different meanings also in metaphor and
other figures of speech.

Again, I do not approve of the view of those who apply the
term jokes to falsehoods which are uttered with a particularly serious
expression and tone, as if they shrank from the word rather than
the thing.

XVITI.—The use of falsehood 1s not to be extended to statements con-
taining a promise

We must, however, bear in mind that what we have said regarding
falsehood is to be applied to assertions, and such indeed as injure no one
but a public enemy, but not to promises.* For by a promise, as we have
just begun to say, a new and particular right is conferred upon him
to whom the promise is made.

This holds true even among enemies, without any [435] ex-
ception arising from the hostility existing at the time. It holds
true not only in the case of promises actually expressed, but also
in the case of those that are implied, as we shall show in discussing
the demand for a parley when we come to the part that deals with
the observing of good faith in warfare.

XIX.—-The use of falsehood 1s not to be extended to oaths

This also must be repeated from the portion of our foregoing
discussion which dealt with the subject of oaths, that whether the
oath is assertive or promissory it has the force to exclude all excep-
tions which might be sought in the person of him with whom we are
dealing. The reason is that an oath establishes a relation not only

1 This view is supported by Chrysippus in Gellius, [Atize Nighis,] XI. xu. It is championed also
by Seneca, On Benefits, Il. xxxiv: ‘ There is a vast number of things without name which we do not
designate by characteristic terms, but by convenient borrowed names.’

2 Augustine, De Magisiro [vu. 20]: ‘ We have learned of no symbol which, among the things that
it signifies, does not signify itself also.’

3 See what we have noted above, on ITI. i. ro.

4 Agesilaus, and with him Plutarch [Agestlaus. ix =p. 600 Dj, make this distinction: [443] ‘To
violate sworn agreements is to despise the gods. Otherwise, to deceive the enemy with words is not
only just but glorious, and brings glory and satisfaction together with gain.’

(Il. xuii.]

[Various
History,
XIT. lix.]

[Protrepit-
con, XX.]
Nic. Eth.,
IV. vin.
[On Ed. of
Children,
=p. Ir c.]
(Anabasts
of Alex-
ander), I
[preface].
VII [v].
[Panegy-
ric of
Juhan,
xx.]

[Arsstides,
li= p.

3I9 D.]
[Nepos,
Epamin-
ondas, 111.}

On the Law of War and Peace [Book III

620

with a man, but also with God, to whom we are bound by the oath,
even if no right arises for the man.

In the same place we have furthermore stated that in an oath
we do not, as we do in other speech, admit that interpretations not
wholly without warrant may be put upon words, in order to absolve
us from falsehood; but we do require that the truth be spoken
with the meaning which a man listening is supposed to understand
in perfect good faith. Obviously, then, we must abhor the impiety
of. those who did not hesitate to assert that it is proper to deceive
men by oaths just as boys do by means of dice.

XX.—Nevertheless it is more noble, and more becoming to Christian
simplicity, to refrain from falsehood even toward an enemy ; thts
view 15 thlustrated by comparisons

1. We know, too, that certain types of fraud, which we have
said were naturally permitted, have been rejected by some peoples
and persons. But this does not happen because they view such means
of deception as unjust, but because of a remarkable loftiness of mind,
and, in some cases, because of confidence in their strength. There
is in Aelian a saying of Pythagoras, that in two things man comes
very close to God, in speaking the truth at all times and in doing
good to others; and in Jamblichus veracity is called a guide to all
good things, divine and human. For Aristotle ‘the magnanimous
man is a lover of free speech and of the truth’. For Plutarch ‘ to
lie is worthy of a slave ’.+

Arrian says of Ptolemy: ‘ And for him, who was a king, it was
more disgraceful to lie than for another.’ In the same author,
Alexander declares: ‘The king must speak nothing but the truth
to his subjects.” Mamertinus says of Julian: ‘In our emperor there
is a marvellous agreement between mind and tongue. He knows
that lying is not only a mark of a low and mean spirit, but also a
slavish vice; and in truth, since want or fear makes men liars, the
emperor who lies is ignorant of the greatness of his fortune.’ In
Plutarch, praise is given to Aristides’ ‘ character rooted in firm morality
and tenacious of justice, not even resorting to falsehood in any kind
of sport’. Of Epaminondas Probus says that he was ‘so devoted to
truth that he did not lie even in jest’.

2. This point of view assuredly is all the more to be insisted
on by Christians; for not only is simplicity enjoined upon them
(Matthew, x. 16), but vain speaking is forbidden (Matthew, xii. 36) ;

* Philo, in the book That Every Virtuous Man is Free [xxi],says: ‘Whence men are accustomed
to style illiberal, and of a servile mind, those who are two-faced and deceptive.’

Chap.I] Rules regarding what 1s Permissible in War 621

and He is set for their example in whose mouth no guile was found.
Lactantius says: ‘And so the true and upright traveller will not
quote that saying of Lucilius :

I lie not to a man who is my friend and intimate.

But he will think that he should not lie even to an enemy and a
stranger; nor will he ever consent that his tongue, the interpreter
of his mind, shall disagree with his meaning and thought.’

Of like opinion is Neoptolemus in the Philoctetus of Sophocles
‘excelling in simplicity and nobleness’, as Dio of Prusa rightly
observes, for to Ulysses, who urges him to practise deception, he thus
replies:

Child of Laertes, what plans with grief I hear
With far more loathing would I carry out;

For to devise deceits I was not born, [436] nor he
Of by-gone days, my sire, as men relate ;*

But by main force, not wiles, the captive to bear off,
Prepared am I.

Euripides in the Rhesus says :

Upon the foe a noble soul cannot inflict
A guileful death.

3. Thus Alexander declared that he would not steal a victory.
Polybius relates that the Achaeans shrank from all deceit against the
enemy, because they considered that the only sure victory which,
if I may express his meaning in the words of Claudian,

Conquers foes whose minds have been subdued.

Such was the attitude of the Romans almost to the close of the second
Punic War. Aelian records that ‘The Romans know that they are
brave, and that they have not overcome their foes by artifice... and
trickery’. Hence when Perseus, king of Macedon, was deceived by
hopes of peace, the elder senators declared that they did not recognize
the methods of the Romans, that the ancestors of these never boasted
that they had waged war more by craft than by courage; that it
had been the Roman method to wage war not by the ruses of the
Carthaginians, nor by the subtlety of the Greeks, who would esteem it

1 Achilles, of whom Horace says, Odes, IV. vi [lines 13 ff.] :

He did not hide in the horse which feigned to be
An offering to Minerva, to deceive the Trojans
In untimely festivals, and the court of Pnam
Gay with choral dances ;
But openly he fought, and harsh was he to the captives,

See also what follows, upon which the Scholiast remarks: ‘ Achilles never fought by underhand
means, but always openly, in reliance upon his valour.’ Note the phrase ‘ In reliance upon his valour’,
which fits excellently with what we have said in the text at the beginning of this paragraph.

[Divine
Instiiutes,
VI. xviii.]

[Orations,
lii=

Pp. 552.]
[Sopho-
cles,
Pinlocte-
tes, 86 ff.]

[510 f.]

fPlutarch,
Alex.,
xxx1=

Pp. 683 D.]
IX

(XIII. iii.]
[On the
Sixth Con-
sulship of
Honors,
249.]
[Various

Annals,

II
[lxxxvu1].
Scholiast
on Apol-
lonius, II
[roro0]

[VIT. 1x.]

[On the
Customs of
the Catholic
Church, II.
XVII. 57.]

Dig. XLI.
1. 51.

On the Law of War and Peace (Book III

622

more glorious to outwit an enemy than to overcome him by force.

Then they added the following :

In some cases, for the moment, more is accomplished by deceit than by valour,
but only his mind is forever conquered from whom the confession has been extorted
that he has been conquered not by artifice, nor by chance, but after joining forces in
battle in a just and righteous war.

Later we read also in Tacitus: ‘ The Roman people takes ven-
geance on its enemies, not by fraud, nor in secret, but openly with
arms in hand.’ Such men were the Tibareans also, who even agreed
upon the place and time of battle. In Herodotus Mardonius makes
a similar assertion regarding the Greeks of his time.

XXI.—It is not permissible for us to force any one to do what 1s right
for us but not for him

To the conduct of operations this principle also applies, that it
is not permissible to force or to entice any one to anything which
may not be permissible for him to do.’ The following may serve
as examples. It is not permissible for a subject to slay his king, nor
to surrender towns without public consent, nor to despoil his fellow-
citizens. Therefore it is not permissible to influence a subject, who
remains such, to do these things. For he who gives to another cause
to sin always sins himself as well.

It is not enough to urge in reply that for him who forces such
a man to a crime an act of this kind, as the hilling of an enemy, is
legitimate. The deed it is in fact permissible for him to compass,
but not in this way. Augustine well says: ‘It makes no difference
whether you yourself commit the crime, or whether you wish another
to commit it for you.’

XXII.—Nevertheless we may make use of assistance voluntarily offered

The case is different when for a thing which is permissible for
him a person avails himself of the help of one who does wrong
voluntarily and not at his instigation. That this is not wicked we
have proved elsewhere by the example of God Himself.2 ‘We
receive a deserter by the law of war’, says Celsus; that is, it is not
contrary td the law of war for us to receive him who abandons the
side of the enemy and chooses our own.?

1 This is also the teaching of Maimonides in Halakot Toubal, v. 10.

2 In II. xxvi. 5.

* And such persons are not to be surrendered, unless this has been agreed upon in the terms of
peace, as in the peace with Philip, the Aetolians, and Antiochus. See Polybius, Selectsons on Embasszes,
Ix, xXxvili and xxxv [=Hustortes, XVIII. xliv; XOX]. xxx; XXI. xlv]. Menander Protector also
supports this view [frag. 11, p. 22, edit. Dindorf].

CHAPTER II

HOW BY THE LAW OF NATIONS THE GOODS OF SUBJECTS MAY
BE HELD FOR THE DEBT OF THEIR RULERS ;
AND THEREIN, ON REPRISALS

I.— By natural law no one except an heir 1s bound by the act of another

I. Let us proceed to principles derived from the law of nations.
These principles relate in part to war in general, and in part to a
particular aspect of war. Let us begin with the general considerations.

By the strict law of nature no one is bound by another’s act,
except one who inherits his property ; for the principle that property
should be transferred with its obligations dates from the establish-
ment of proprietary rights." The Emperor Zeno says that it is
contrary to natural justice for persons to be harassed for the debts
of strangers. Hence the titles in the Roman Law; the wife is not
to be sued for her husband, nor the husband for his wife, the son for
his father, nor the father or mother for their son.

2. ‘The debt of the corporation, moreover, is not a debt of the
individuals, [444] as Ulpian well declares, especially if the cor-
poration has property; for the rest the members of a corporation
are bound not as individuals, but as a part of the corporate body.
Seneca says: ‘If any one lends money to my country, I shall not
say that I am his debtor, nor will I admit this is my loan; yet I shall
give my share towards paying it off’.2, He had previously said: ‘ As
one of the people I shall not pay as though for myself, but I shall
contribute as for my country’; also, ‘ Individuals will be indebted
not as if for their personal debt, but for a share of the public debt.’

Hence in the Roman Law it was specifically provided that no
member of a village should be held for the debts of other villagers ;
and elsewhere it is ordered that no property of one person is to be sued
for the debts of others even if public debts. In a novel of Justinian,
* pledge-taking ’,® that is, the taking of sureties for others, is forbidden,
and the reason given is that it 1s not reasonable for one person to be
the debtor and another to be made to pay. Here also exactions of
this sort are called hateful. King Theodoric, in Cassiodorus, calls it
disgraceful to permit one person to give sureties for another.

1 See above, IT. xxi. 19. Add Decretals, V. xvii. 5; Decreials, V. xix. 9.

2 See the Law of Sictly, Book I [ttle c].

3 Sext, V. vill. r: ‘Sureties which current speech commonly calls reprisals (repressaktas).’ It
would be more correct to write, as certain books do, reprensalzas, for this corresponds exactly to the
Saxon word ‘ withenam ’, but usage has accepted the other.

1569-27 uu 623

Code, XI.
Ivii. rz.

Code, IV.
xii, xiii.

Dig. III.
iv. 7. § x.

On Bene-
fits, VI. xx

(VI. xix.]
[VI] xix.

Code, XI.
Ivii. 1.

Code, XII.
Ix. 4.
Novels,

lit and
cxxxiv [7].

Variae,
IV [x].

Institutes,
T. 1. 2.

Thomas
Aquinas,
II. 11, qu.
40, art. I;
Molina,
disp. 120
and 121;
Valentia,
Disputa-
tions, 111,
qu. 16,
no. 3;
Navarrus,
Xxvii, no.
136.

Livy, I

[xxxii. 13].

Livy,
XXXI
(vi. r].
Gelhius,
XVI. iv.
Livy,
XXXVIII
[xIviii. 9],

and else-
where,

On the Law of War and Peace [Book III

624

Il.—Nevertheless it has been established by the law of nations that both
the possessions and the acts of subjects are liable for the debt of
a ruler

1. Although what has just been stated is true, nevertheless by
the volitional law of nations there could be introduced, and appears
to have been introduced, the principle that for what any civil society,
or its head, ought to furnish, whether for itself directly, or because
it has bound itself for the debt of another by not fulfilling the law,
for all this there are held and made liable all the corporeal or incor-
poreal possessions of those who are subject to such a society or its head.

This principle, furthermore, is the outgrowth of a certain
necessity, because otherwise a great licence to cause injury would
arise; the reason is that in many cases the goods of rulers cannot
so easily be seized as those of private persons, who are more numerous.
This then finds place among those rights which, as Justinian says,
have been established by civilized nations in response to the demands
of usage and human needs.

2. ‘This principle, however, is not so in conflict with nature
that it could not have been introduced by custom and tacit consent,
since sureties are bound without any cause, merely by their consent.
It was hoped that members of the same society would be able through
mutual relations to obtain justice from one another, and provide for
their indemnification, more easily than foreigners, to whom in
many places slight consideration is given. Hence the advantage
derived from this obligation was common to all peoples, so that
he who might now be burdened by it at another time might in
turn be relieved.

3. ‘That this usage has been accepted, appears from the perfect
wars? which peoples wage against peoples. The practice observed
in such wars is in fact revealed by the formulas of declaration, as:
‘I declare and make war upon the peoples of the ancient Latins and
the men of the ancient Latins,’ and in the question ‘ whether they
wished and ordered that war be declared upon King Philip and the
Macedonians who were under his rule’. It is evidenced also by the
decree itself, as, ‘The Roman People orders that war be waged upon
the people of the Hermunduri and upon men of the Hermunduri’,
which is cited from Cincius on military affairs; and elsewhere, as,
‘Let him be an enemy, and also those who are within his defences.’

1 The wise Nicholas of Damascus distinguishes wars from seizures of this sort, in showing that
Herod, who had no right to make war upon the Arabs, could ‘take reprisals’ (J¥o1a AapBdvev) to use
as a pledge for what was due to him in accordance with a contract. The words are those of Josephus,
Antiquities of the Jews, VI [XVI. x. 8], where we find also this: [448] ‘ After relating that five hundred
talents were owed to Herod, and that the written bond regarding these stipulated that when the day
appointed had passed Herod could seize sureties from all the territory of the Arabs, he [Nicholas]
declared that this invasion was not an invasion, but the just collection of a debt.’

Chap. IT] Goods of Subjects and Debt of Rulers 625

We see that the same right is invoked also where a state of perfect
war has not yet been reached, but where nevertheless there is need
of an enforcement of a right by violent means, that is, by means of
an imperfect war. Long ago Agesilaus said to Pharnabazus, who
was a subject of the king of Persia: ‘ Formerly, Pharnabazus, when
we were friends of the king, we treated his possessions as became
friends ; now that we have become enemies, we treat them as belong-
ing toafoe. Since, therefore, we see that even you desire to be classed
among the king’s possessions, we do right to strike at him through you.’

[445] Ill.—An example in the seizure of persons

I. Qne form of the enforcement of right regarding which I am
speaking was what the Athenians called ‘seizure of men’. Of this
a law of Attica said: ‘ If any one die by a violent death, for his sake
it shall be right for his relatives and next of kin to proceed to apprehend
men, until either the penalty has been paid for the murder, or the
murderers are given up. Such seizure may extend to three persons,
and no more.’ Here we see that for the debt of the state, which is
bound to punish its subjects who have injured others, there is put
under obligation a certain incorporeal right of its subjects, that is,
their liberty of remaining where they wish and of doing what they
wish ; in consequence such subjects are temporarily in servitude,
until the state does that which it is bound to do, that is, until it
punishes the one who is guilty.

Although the Egyptians, as we learn from Diodorus Siculus,
used to maintain that neither a person nor his liberty should be
bound for a debt, nevertheless there is nothing in this that is repugnant
to nature, and the practice not only of the Greeks, but of other nations
also, has prevailed to the contrary.

2. Aristocrates, the contemporary of Demosthenes, had pro-
posed a decree to permit the apprehension anywhere of any one who
should slay Charidemus, and to number among the public enemies
any who should resist such seizure. In this proposal Demosthenes
criticizes many points: first, that Aristocrates did not distinguish
between lolling justly and killing unjustly, although sometimes it
may be just to kill; secondly, that he did not require that a trial
be previously demanded; and, further, that he wished those who
received the homicide to be held responsible and not those among
whom the killing was done. The words of Demosthenes are:

For the law ordains that if those, among whom the wrong is suffered, do not pay
the penalty nor surrender the culprits, these shall be apprehended to the number of
three. But he lets these indeed go unpunished, and makes no mention of them; while
he proposes that those shall be outlawed who have received the murderer when he has

UuZ

Plutarch,
Agesilaus
[xi1 =p.
602 D E],
and Xeno-
phon,
Greek
History,
IV [Hei-
lenica, IV.
1. 34 ff.].

[Demo-
sthenes,
Against
Aristo-
crates,
Xxili. 82 =
Pp. 647.]

{I. Ixxix.]

[Against
Aristo-
crates,
Exlii. 84-5
=p. 648.]

II xx 7
[5].

[Onomas-
acon, |
VITI. vi
[VIII 1.]

{under
word
ay dpo-
Anyia.]

Livy,
XXXIV
[Ix1. 13]

Baldus,
Consilia,
III. 58;
Bartolus,
On Re-
prisals,

qu. V; ans.

to obj. 3,
nO. 9.

626

taken refuge with them if they do not freely surrender him; I shall state the case in
accordance with the custom common to mankind, which bids us receive the fugitive.

On the Law of War and Peace [Book III

The fourth point of criticism is that Aristocrates at once brings
the matter to a state of perfect war, when the law would have been
satisfied with an arrest.

3. Of these criticisms the first, second, and fourth are not
without reason. But the third objection, unless it is restricted to
the single case of killing by accident or in self-defence, can only have
been offered rhetorically, and more for the sake of argument than
according to truth and right. For the law of nations that suppliants
shall be received and protected applies, as we have previously said,
only to those who are endangered by ill fortune and not by crime.

4. In other respects the law is the same for those among whom
the crime has been committed and for those who refuse to punish
or surrender the guilty person. Therefore either that very law, on
which Demosthenes relies, received from practice the interpretation
that I give, or afterward it was more explicitly formulated against
such quibbles. ‘That one of these alternatives is true will not be
denied by any one who has given attention to the following definition
of Julius Pollux: ‘Seizure of men takes place when any one upon
demand does not receive murderers who have fled to some persons
for refuge, for in that case he has the right [446] to carry off as many
as three persons of those who have not surrendered the culprits.’
In the same sense Harpocration says: ‘Seizure of men is the right
to carry off men from some city. For they used to take sureties
from a city which held a murderer and would not give him up for
punishment.’

5. Similar to this right of seizure is the right of detention of
citizens of another state in which a manifest wrong has been done
to a national, in order to secure his recovery. Accordingly at Carthage
certain persons prevented the seizure of Ariston of Tyre, giving it
as their reason that ‘ The same thing will happen to Carthaginians
both at Tyre and in the other commercial centres to which they go
in large numbers ’.

[V.—An example tn the seizure of goods

Another form of the enforcement of right by violence is ‘ seizure
of goods’ or ‘the taking of pledges between different peoples ’.
This is called by the more modern jurists the right of reprisals ;
by the Saxons and Angles ‘ withernam’, and by the French, among
whom such seizure is ordinarily authorized by the king, ‘letters of

1 This is called ovAas by Demosthenes in his oration For the Crown [For the Crown of the Trierarchy,
IL 13 = p. 1232]; also by Anistotle, Economics, II [II. ii. ro].

Chap. IT] Goods of Subjects and Debi of Rulers 627

marque’. This enforcement of right occurs, as the jurists say,
where a right is denied.

V.—Seizure is warranted after a right has been denied, and when tt
may properly be considered as settled that this has been done ;
wherein 1t 1s shown that a judicial decision does not properly give
or take away aright

I. Seizure by violence may be understood to be warranted not
only in case a judgement cannot be obtained against a criminal or
a debtor within a reasonable time, but also if in a very clear case
(for in a doubtful case the presumption is in favour of those who
have been chosen by the state to render judgement) judgement
has been rendered in a way manifestly contrary to law; for the
authority of the judge has not the same force over foreigners as over
subjects.

Even among subjects such a decision does not cancel a true
obligation. ‘ A true debtor, even though he is absolved, still remains
a debtor by the law of nature,’ says Paul the jurist. ‘And when
by a wrongful decision of a judge a creditor had taken away from its
owner, as if it had been bound over to him, property which did not
belong to the debtor, and the question was raised whether, after the
payment of the debt, this should be restored to the debtor, Scaevola
approved of its restitution.’ ‘There is this difference, that subjects
cannot legally hinder by force the execution of a judgement even
if it is unjust, or assert their rights by force against it, because of the
effectiveness of the authority over them; but foreigners have the
right of compulsion, which they may not use, however, so long
as they can obtain what is theirs by a judgement.

2. ‘The principle, therefore, was not introduced by nature,
but has been widely accepted in practice, that for such a cause
the persons,” or movable property, of the subjects of him who does
not render justice, may be seized. The most ancient instance is
given by Homer, in the Ziad [XI. 674]. Here it is recounted that
Nestor seized the flocks and herds of the men of Elis in revenge for
the horses stolen from his father, ‘ taking reprisals ’,* as the Poet

1 Here applies what is said by Gail, De Pace Publica, II. viii. 7, and Vazquez, Coniroversiae illusires,
IV. x. 41.

2 See the example in Ammianus, Book XVII [XVIII. ii], where Julian detains certain of the
Franks until the prisoners should be set free according to the agreement. Add what Leo of Africa
has on the subject of Mt. Beni Gualid, Book III [= p. 435].

* You will find fvora in this sense in the Selections on Embasstes, ftom Polybius, no. xxxviii [=p.276],
where he speaks of the Achaeans acting against the Boeotians ; and in no. cxxiu [= p. 352] Auoid(ew
is found in the Excerpta Pesresctana [Excerpta de Virtutibus et Vitits, I = p. 214] from Diodorus Siculus.
Elsewhere, however, the phrase jvo.a xarayyé\Aew is employed in speaking of war, as we shall say
shortly in ITI. in. 7 ; for these things are closely connected.

Dig. XII.
vi. 60.

Dig, XX.
v.12, §r.
Innocent
and Panor-
mitanus,
On Decre-
tals, IIT.
xhlix. 8;
Soto, ITI,
qu.1v,
art. 5.

Jac de
Can., An-
charano,
Domin.,
Francis-
cus, On
Sext, V.
vill. I;
Fulgosius
and Salic.,
On Auth.,
Code, IV.
x; Jac. de
Belvisio,
On Auth.,
Ut non
fiani
pignora ;

Syl , word
véepressa-
lta; Bar-
tolus, On
Reprisals ;
Guy de la
Pape, qu.
XXX11;
Gaul, De
Pigno., 1
no 5;
Victoria,
De lure
Belli,

no 41;
Covarru-
vias, On
Sext, V.
ult 4, pt.
II, § 9.
(Homer,
Ihad, XI.
705.|
Livy, IT
[xxx1v. 4]
Halicar.,
VII fx].

[II. xv.
16; xxi.
1I.]

I (IY). i.

12 and 13.

Decio,
Consilia,
ecclii ; Bal-
dus, On
Digest, I.
XxX. 3.

628 On the Law of War and Peace

says; in this passage Eustathius explains ‘reprisals’ as ‘what is
confiscated in return for something, that is, dragged off and seized
in return for what has been previously taken’. ‘The narrative goes
on to say that all those to whom anything was owed by the Eleans
were summoned by proclamation to secure their rights, surely,

Lest any one of his just due should be deprived.

Another instance is in Roman history, in the case of the Roman
ships which Aristodemus, the heir of the Tarquins, held at Cumae
as compensation for the property of the Tarquins. Dionysius of
Halicarnassus states that slaves, cattle, and money were held. Still
another instance is given by Aristotle, in the second book of the
Economics, on the law of the Carthaginians relating to seizure of the
ships of foreigners, ‘ if any one has a right of seizure ’, as the condition
is there expressed.

[Book III

V1.—Such seizure does not warrant the taking of human life

That for such a cause the lives of innocent subjects are liable,
has perhaps been believed among some peoples, because [447]
they supposed that every man has in himself a full right over his life,
and that it was possible to transfer this to the state. That supposition,
as we have elsewhere said, is by no means capable of proof, nor is it
in harmony with a more sound theology.

Nevertheless it may happen that those who wish by force to
hinder the enforcement of a right may be killed, not intentionally
but accidentally. But if this can be foreseen, we have shown elsewhere
that we ought rather to surrender the furthering of the right, in
accordance with the law of love. According to this law, particularly
for Christians, the life of a man ought to be of greater value than
our property, as has been proved in another connexion.

VII.—The distinction between what there 1s relating to this matter in
municipal law and in the law of nations

1. In this matter, no less than in others, we must take care not
to confuse the things which properly belong to the law of nations
and those which are established by municipal law or treaties between
peoples.

2. By the law of nations all subjects cf him who does the
injury are liable to the furnishing of sureties, provided they are
subjects from a permanent cause, whether native or immigrant, and
not persons who are present anywhere for the purpose of travel or
for a brief residence. The furnishing of pledges is treated after the
manner of burdens which are imposed in order to pay the public
debts, and from which those are immune who are only temporarily

Chap. IT] Goods of Subjects and Debt of Rulers 629

subject to the laws of the place. However, ambassadors are excepted
by the law of nations from the number of subjects, provided that
they have not been sent to our enemies; and their goods also are
excepted.

3. By the municipal law of states, however, the persons of
women and children are often excepted; and in fact even the
property of those who are engaged in literary pursuits or come to
carry on trade. By the law of nations individuals possess the right
of taking sureties, as at Athens, in the seizure of men. By the municipal
law of many countries this right is ordinarily sought in some cases
from the supreme authority, in other cases from judges.

By the law of nations ownership is acquired over seized goods
by the mere act of seizure, up to the limit of the debt and expenditure,
in such a way that the residue shall be restored.* By the municipal
law the parties concerned are usually summoned, and afterwards by
public authority the property is sold or assigned to those who are
affected. But for these and other topics reference should be made
to those who discuss the municipal codes ; on this subject particularly
Bartolus, who has written on reprisals.

4. A further statement I shall add, because it concerns the
mollification of this law, which is in itself sufficiently rigorous. Those
who, by not paying what they owe or by not furnishing satisfaction,
have given occasion for the taking of sureties, by natural and divine
law are bound to make good the damages? to others, who for that
teason have incurred a loss.

' Gregoras, Book IX [TX. v], records that the Venetians followed this principle of justice, upon the
capture of the Genoese ships at Galata: ‘ But they did not destroy any of the cargo of the ships they
had taken, which cargo consisted of wheat and barley, and in addition salt fish from the Copaic and
Maeotic Marshes and the river Don. These they preserved with care, in their full measure, until they
should restore them intact upon the receipt of what was owed them.’

4 Plutarch, in his Cimon [viii = p. 483], says of the Scyrians: ‘The majority did not wish to make
a monetary contribution, but they gave orders that those who possessed or had seized the property
of others should make good the loss.’

Aegidius
Regius,
De Actibus
Superna-
turalibus,
disp. 13,
dub. 7,

no II7.

Dig. L.
xvi. rr8,
Digest,
XLIX.
XV. 24.

Digest,
XLIX. xv.
rg. §2.
Digest,
XLIX. xv.
az. §T.

Philippics,
IV [vi. r4].

CHAPTER III

ON WAR THAT IS LAWFUL OR PUBLIC ACCORDING TO THE LAW
OF NATIONS; AND THEREIN, ON THE DECLARATION OF WAR

I.—A public war according to the law of nations ts a war between different

peoples

[449] 1. Ina previous passage’ we began to say that by authors
of repute a war is often called lawful not from the cause from which
it arises, nor, as is done in other cases, from the importance of its
exploits, but because of certain peculiar legal consequences. Of
what sort a lawful war is, however, will best be perceived from the
definition of enemies given by the Roman jurists.

‘Enemies are those who in the name of the state declare war
upon us, or upon whom we in the name of the state declare war ;
others are brigands and robbers ’, says Pomponius. Similarly Ulpian :

Enemies are those upon whom the Roman people have publicly declared war, or who
have themselves declared war upon the Roman people; others are called thieves and
brigands. And so he who has been captured by robbers is not their slave,? and has no need
of the right of postliminy. But he who has been captured by enemies, as by the Germans
or Parthians, is a slave of the enemy, and recovers his former status by postliminy.

Paul says: ‘ Those who are captured by pirates® and brigands
remain free.’ ‘There is a further statement by Ulpian:

In civil contentions, although the state is thereby often injured, nevertheless the
destruction of the state is not aimed at; the citizens who support either side after the
manner of enemies are not in the position of those who possess rights of captivity or
postliminy. In consequence it has been decided that for those who have been captured,
sold, and later set free, it would be superfluous to attempt to recover from the emperor
their free status, which they had not lost by captivity.

2. It needs only to be noted further that we may understand
that any one who has the supreme authority in a state may take the
place of the Roman people in our illustration. ‘An enemy’, says
Cicero, ‘is the one that has a state, a senate, a treasury, the agreement
and concord of the citizens, and the power, if the course of events
leads thereto, to conclude peace and an alliance.’

1 T. ii. 4.
* Hence the plot of the Poenulus of Plautus, and the Eunuch of Terence. Such a one was also
Eumaeus, Odyssey, XV [lines 402 ff.].
_ * Pompey pronounced those free who had been captured by the pirates; Appian, Mithridatic Wars
[xiv. 96]. See also Herrera, vol. 1.

630

Chap. IIT] On War that is Lawful or Public 631

Il.—The distinction between a people, although acting unjustly, and
pirates or brigands

1. Moreover, a commonwealth or state does not immediately
cease to be such if it commits an injustice, even as a body; and
a gathering of pirates and brigands is not a state, even if they do
perhaps mutually maintain a sort of equality, without which no
association can exist. ‘The reason is that pirates and brigands are
banded together for wrongdoing ;* the members of a state, even
if at times they are not free from crime, nevertheless have been united
for the enjoyment of rights, and they do render justice to foreigners.
If the treatment of members of other states is not in all respects
according to the law of nature, which, as we have showed elsewhere,
has become partly obscured among many peoples, it is at least accord-
ing to agreements entered into with each state or in accordance with
customs.

Accordingly the scholiast on Thucydides notes that, at the time
when it was considered legitimate to plunder at sea, the Greeks
refrained from murder and raids by night, and from the seizure of the
cattle of ploughmen. Strabo relates that other peoples also, who
lived in like manner by plunder, upon returning home after being at
sea, sent word to the owners in order that these might, if they wished,
recover their stolen property at a fair price? To such persons
applies the passage in Homer’s Odyssey, XIV :

Themselves eager for loot, who to the land
Of strangers fare; if gods above grant booty,

With laden ships they leave and homeward go,
And dread fear falls on those they leave behind.

[450] 2. In moral questions, furthermore, the principal
element is considered as determining the essential character. As
Cicero has rightly said in the fifth book On Ends: ‘'The whole of
an object takes its name from that constituent of it which comprises
the most important elements and has the most far-reaching effect.’
With this accords the saying of Galen: ‘ Names are taken from the
most potent element in the compound.’ The same author often
designates such things as ‘ named after the chief element’.

Cicero, then, spoke too sweepingly when he said, On the Common-
wealth, Book III, that where an unjust man is king, or where the
aristocracy or the people itself is unjust, there is not a wicked state, but

1 ‘A mob not in lawful association, but brought together in order to commit wrong’ ; Procopius,
Vandalte War, II (II. xv].

2 Such were those who are mentioned by Saxo, XIV [p. 234]. To sucha degree, as Plutarch [Csmon,
viii = p. 483 C] notes, the Scyrians had deteriorated in course of time : ‘ Although from antiquity they
had practised piracy at sea, finally they did not refrain from committing injury upon those who were
sailing to them to carry on trade.’

(II. xv. 5.
I]

I [v].

XI fii. 12],

[XIVv.
85 fi.].

[V. Xxx.
92.]

[In
August.,
City of
God, II.
xxi.)

On the City
of God,
AIX. xxiv.

Borys-
thenttica
[Orations,
XXXVI =
P. 4431,
and On
the Law
[Oratsons,
Ixxv. end]
[On Con-
cord = p.
385 a B.]

(Digest,
XLIX.,
Xv. 24 ]

[Gallte
War), VI
[xxiii].
On the
Customs
of the Ger-
mans
[xlvi].
Annals,
XII
[xxvii].
Histories,
IV Qj.
Appian,
Illyrian
Wars [ii.
9].

LJudges,
xi. 3 ff]
[Justin,
XLI. iv ;
XLIV. ii.]

On the Law of War and Peace [Book III

632

none at all. In correction of this view Augustine says: ‘ Nevertheless,
I should not go so far as to assert that the people as such does not
exist, or that its organization is not a state, so long as there remains
some sort of union in a reasoning populace, associated through
harmonious participation in the things which it chooses.’ A body
that is sick is nevertheless a body still; and a state, although seriously
diseased, is a state so long as there remain tribunals and the other
agencies that are necessary in order that foreigners, no less than
private citizens, in their relations one with the other may there
obtain their rights. Dio Chrysostom offers a more correct judgement
in saying that the law (especially that which goes to make up the
universal common law) exists in a state just as the mind in the human
body; for when this is taken away the state ceases to exist.1 In
the speech in which he urges the Rhodians to harmony, Aristides
shows that many good laws may exist even under atyranny. Aristotle
in his Republic [Polttics], Book V, chapter ix, says that if any one
presses the violence of the few, or of the people, too far, the state
first becomes full of faults, and finally ceases to be.
Let us illustrate this subject by examples.

3. Weheard Ulpian saying above that captives taken by brigands
do not belong to those who capture them. He says further that
captives taken by the Germans lose their freedom. And yet among
the Germans marauding expeditions which are sent beyond the
borders of a state ‘involve no disgrace’, as Caesar states. Of the
Venedi, Tacitus says: ‘With their marauding expeditions they
overrun the forests and mountains that lie between the Peucini and
the Fenni.’ In another place he says that the Chatti, a famous people
of Germany, engaged in marauding expeditions. In the same author
the Garamates are a nation fertile in marauding expeditions, but
still a nation.

The Illyrians without distinction were accustomed to plunder
on the sea, yet a triumph was celebrated over them; Pompey
celebrated no triumph over the pirates. So great is the distinction
between a people, however wicked it may be, and those who, although
not forming a people, associate together for the sake of crime.

Il I.—Sometimes a transformation ts effected

Nevertheless a transformation may take place, not merely in
the case of individuals, as when Jephthes, Arsaces, and Viriathus
instead of being leaders of brigands became lawful chiefs, but also in

1 Cicero, Letters, X.i[X.i. 1]: ‘There are neither laws, nor courts, nor any semblance and
trace of a state.’

Chap. III] On War that 1s Lawful or Public 633

the case of groups, so that those who have only been robbers upon
embracing another mode of life1 become a state. In discussing
brigandage Augustine says: ‘If by accessions of desperate men this
evil grows to such proportions that it holds lands, establishes fixed
settlements, seizes upon states and subjugates peoples, it assumes
the name of a kingdom.’

IV.—Ii ts essential to the nature of a public war that it should have
the support of the sovereign power; in what way thts is to be
understood

What persons have the sovereign power, we have already stated.
Hence it may be understood that, if any possess the sovereign power
in part, they may to that extent wage a lawful war.

This principle applies with even greater force to those who are not
subjects, but are allied on an unequal footing.? So we learn from
history that all formalities of lawful war were observed between
the Romans and their allies, the Volsci, Latins, Spaniards, and Cartha-
ginians, although these had an inferior status in the alliance.

V.—A declaration of war is also requisite

That a war may be lawful in the sense indicated, it is not enough
that it be waged by sovereign powers on each side. It is also necessary,
as we have said, that it should be publicly declared, and in fact
proclaimed so publicly that the notification of this declaration be
made by one of the parties to the other;* whence [451] Ennius
spoke of battles proclaimed in advance. In the first book On Duties
Cicero says: ‘ But the right usage of war has indeed been most
scrupulously prescribed by the fetial law of the Roman people.
According to this we are given to understand that no war is lawful
unless it is waged for the recovery of property, or has been previously
threatened and proclaimed.’

More concisely speaks an ancient writer in Isidore: ‘A lawful
war is one that is waged by declaration, for the recovery of property
or to repel enemies.’ Thus Livy, in his description of a lawful war,
says that the war is waged openly and in accordance with public

sx example is found in the case of the Mamertini ; Diodorus Siculus, fragments [XXI. x and

* Like the Duke of Lorraine, in Krantz, Saxonica, XII. xiii. The city of Stralsund declared war
upon its Pomeranian rulers; Krantz, Vandalica, XIV. xxxv.

* Josephus, Anizquitees [455] of the Jews, XV [XV. v. 3], says: ‘It is not lawful to wage a war
that has not been previously declared.’ ,;

For examples of this practice among the nations see Krantz, Saxonica, XI [XI. v], and Oderborn
in his Life of Basthdes, III. The opposite conduct of the Turk Olizasthlan [Chlizasthlan], and the
Serb Neemon, are censured by Nicetas, [On Manuel Comnenus,] III [III. vi] and IV [V. iv].

On the
City of
God, IV,
1V.

Cajetan,
On II, 1,
qu 40,
art. I.

(Cf
Gellius,
Xx. I0.]

({{. xi. 36.]

[Etymo-
logtes,
XVIII. i. J
I [xxvii.
3].

XXXI
[mv. ro].

I [Ixxxvi].

[Rom .
Ant I
[ivi1i] .
[Tactrca,
i.]
[Orations,
XXXVill =
Dp. 473-]

[XKXV.
li. 2.]

On the Law of War and Peace [Book III

634

decree. Also, after relating that the Acarnanians had laid waste Attic
territory, he adds: ‘ This was the first manifestation of hostile feeling ;
afterward a lawful war was declared by decrees and voluntary pro-
clamations of the states.’

V1.—What element in the declaration of war 1s in accordance with the
law of nature, and what is peculiar to the law of nations, 15 set
forth with distinctions

1. To understand the foregoing passages, and others dealing with
the declaration of war, we must carefully distinguish what is due
according to the law of nature, what is not due by nature but 1s
honourable, what is required by the law of nations to secure the
effects peculiar to this law, and what, in addition, is derived from
the particular institutions of certain peoples.

In a case where either an attack is being warded off, or a penalty
is demanded from the very person who has done wrong, no declara-
tion is required by the law of nature. This is what Sthenelaidas,
the ephor, says in Thucydides: ‘We who have been wronged in
more than words are not to seek satisfaction in words or judicial
proceedings.’ Latinus in Dionysius of Halicarnassus declares :
‘ Every one who 1s attacked repels him who begins the war.’ Aelianus,
quoting from Plato, says that a war which is undertaken to repel
force is proclaimed, not by a herald, but by nature. Hence Dio
Chrysostom, in his address Lo the Nicomedians, says: ‘ Most wars
begin without declaration.’

For no other reason Livy criticizes Menippus, an officer of
Antiochus, because he had slain certain Romans when war had not
yet been declared, and when no hostilities had been engaged in, so
that they could have heard that swords had been drawn or even that
blood had been shed; by this he shows that either of these two
steps could have sufficed to justify the action. Not more necessary,
by the law of nature, is a declaration of war in case an owner wishes
to seize what belongs to him.

2. But whenever one thing is seized in place of another, or the
property of a debtor is taken for his debt, and all the more if one
wishes to take possession of the property of those who are subject
to the debt, then a demand for settlement is required, to establish
the fact that it is impossible in any other way to obtain what is ours

* See also Thucydides, Book II [IIT. lvi], in the speech of the Plataeans : ‘ According to the law
that is in vogue among all peoples, 1t is right to defend ourselves against him by whom we are assailed
in a hostile manner.’

_ In Diodorus Siculus, Excerpta Pesresciana [i=p. 272], Flaminius ‘ called all the gods and men to
witness that the war had been begun by the king’. See also what is in Mariana, XIX. xiii. On war
that has not been, declared see Dexippus, Selections on Embassies [=frag. 22, p. 195, edit. Dindorf].

Chap. IIT] On War that is Lawful or Public 635

or what is owed to us. For this is not a primary right, but a secondary
and vicarious right, as we have elsewhere explained. Thus, even before
the possessor of sovereign power is attacked for the debt or crime
of a subject, a demand for settlement should be made, which may
place him in the wrong, and in consequence of which he may be held
either to be causing us loss or to be himself committing a crime,
according to the principles which have previously been discussed.

But even in case the law of nature does not require that
such a demand be made, still it is honourable and praiseworthy to
make it, in order that, for instance, we may avoid giving offence,
or that the wrong may be atoned for by repentance and compensation,
according to what we have said regarding the means to be tried to
avoid war.” Here applies this verse also :

At first no one has sought to try extremes.

Here, too, applies the command which God gave to the Jews,*
that they should first invite to peace the city which was to be attacked.
This command, although given to that people for a particular case,
has been wrongly confused by some with the law of nations. For the
peace there referred to is not peace in general, but one dependent
upon a condition of subjection and tribute. [452] When Cyrus
came into the territory of the Armenians, before doing harm to
any one he sent to the king those who represented him in order to
demand the tribute and soldiery due according to the treaty, ‘thinking
that this was a more’ friendly procedure than to advance without
a previous declaration’, as Xenophon says in his History. But by
the law of nations a proclamation is required in all cases in order
to secure these particular effects, not, however, from both parties
but from either one.

VII—A declaration of war is sometimes conditional, sometimes absolute

I. Now the declaration of war is either conditional or absolute.
It is conditional when it is joined with a demand for restitution.
Moreover, under the title of things sought in recovery,‘ the fetial law
included not merely a claim by right of ownership, but also the
effort to obtain that which is owed on a civil or criminal charge,

1 See Mariana, XXVII. xiii.

TI. xxiii. 7.

* Josephus, Anitquzites of the Jews, V. ti [V.il. 9]: ‘ But the council of the elders restrained them,
showing them that they should not suddenly wage war on their fellow citizens, before the causes of
complaint had been argued in words, since the law did not permit them to lead an army even against
foreigners when they had suffered wrong, unless they had first sent an embassy and tried means by which
the wrongdoers might be brought back to a more reasonable frame of mind.’

* See Paruta, On the War in Cyprus, Book I; Bizarri, Book XXIII, with regard to the Turks ;
Reinkingk, IT. 111. 4.

(Seneca,
A gamem-
non, 153 ]

Deutero-
nomy,
xX. II
[xx. Io].

History, II
[Training
of Cyrus,
II. 1v. 32].

[II.1. 2.2;
xxl. 4 ]

VIII
[xxul. 7].

Annals,
I [{xlvu1J.

[385 £.]

[Thebard,
XII. 598.]

(IV. liu1.]

[Etymo-
logies,
XVIII. i.]

(Livy, I.
xXxXxii. ro ]

On the Law of War and Peace [Book IIT

636
as Servius! rightly explains. Hence arises this phase in the formulas,
‘to be restored, satisfied, surrendered ’, where, as we have elsewhere
said, ‘ surrendered’ must be understood with a reservation, to wit:
unless those on whom the demand is made prefer to punish the guilty
party themselves. Pliny? bears witness that this demand for restitu-
tion was called a ‘ verbal demand’.

A conditional declaration is recorded by Livy: ‘That they
would themselves use every means to free themselves from this
injury unless it were removed by those who had inflicted it.’ Another
is given by Tacitus: ‘unless they should inflict punishment upon
the guilty, he would carry out a general massacre.’ There is also an
ancient example in the Suppliants of Euripides, when Theseus gives
to the herald these instructions for his mission to Creon the Theban :

Theseus, who holds the neighbouring kingdom’s soil,®
The dead demands for burial; granted that,
Erechtheus’ people will become your friend.

If this with favour meet, retrace thy steps ;

But if no heed is given, these other words employ:
Let them soon look to see my youth in arms.

Papinius in his description of the same event has :

Proclaim either funeral pyres for the Danai
Or for Thebes, battles.

Polybius calls this ‘to give notice of reprisals’, and the ancient
Romans ‘ to give formal notice’. .

An absolute declaration is what is called in particular a proclama-
tion or edict. This is made when one party either has begun hostilities
(and this is what in Isidore is said to be a war for the repulse of
enemies), or has himself committed crimes that call for punishment.*

2. Sometimes, indeed, an absolute declaration follows one that
is conditional, although this is not necessary but superfluous. Hence
arises the formula:

I bear witness that this people is unjust, and does not give satisfaction.

There is also a second formula :

Whatever things, disputes, causes of complaint,® of which the pater patratus of the
Roman people of the Quirites has formally notified the pater patratus of the people of the

1 On the Aeneid, X [line 14].

* [Natural Htstory,] XXII. xii [XXTI. xii, 2]: ‘And when ambassadors were sent to the enemy
to make verbal declaration, that is, audibly to demand back the things that had been carried off, one
of them was called the Verbenarius.’ Again, in speaking of the plant verbena, the same author says,
XXYV. ix: ‘This it is which, as we have pointed out, the ambassadors carried to the enemy.’ See
Servius, On the Aeneid, IX [line 53], and X [line 14].

? A similar formal declaration is in the Battle of the Frogs and Mice [line 135 ff.], and at the begin-
ning of the Amphitruo of Plautus [203 ff.]. See also Kromer, XXI.

* See the example in Bembo, Book VII.

* Compare the Greek of Dionysius of Halicarnassus, Selections on Embasstes, ii [= p. 9].

Chap. IIT] On War that 1s Lawful or Public 637

Ancient Latins, which things the men of the Ancient Latins ought to have surrendered,
done, paid, which things they have not paid nor surrendered nor done, these things I hold
ought to be sought in just and righteous warfare; and I agree and approve.

The third formula is;

Whereas the tribes of the Ancient Latins have acted and committed offences against
the Roman people of the Quirites, whereas the Roman people of the Quirites has ordered
that there be war with the Ancient Latins, and the Senate of the Roman people of the
Quirites has decreed, consented, agreed that war should be waged with the Ancient Latins,
for this cause I and the Roman people declare and make war upon the tribes of the Ancient
Latins.

That in this case, as I have said, a proclamation is not strictly
necessary, becomes apparent from the fact that it was formally made
at the nearest garrison point. So the fetials declared when consulted
in the case of Philip of Macedon, and afterward in the case of
Antiochus, since the first proclamation had to be made to the person
who was attacked in the war. The declaration against Pyrrhus
[453] was in fact made to one of his soldiers, and that too in the
Circus Flaminius, where this soldier was ordered to purchase a bit
of ground for form’s sake, as Servius narrates in his commentary on
the ninth book of the Aenezd.

3. Further proof of the superfluity of this formality is found
in the fact that war is often declared by both parties. Thus the
Peloponnesian War was declared by the Corcyreans and by the
Corinthians, although it is sufficient that such a declaration be made
by either one party or the other.

VITI.—W bat elements in declarations of war pertain to municipal law
and not to the law of nations

To the customs and institutions of certain peoples, moreover,
and not to the law of nations, belong the use of the herald’s staff
among the Greeks;* the sacred herbs and bloody spear used first
by the Aequicolae, then by the Romans, who followed their example ;
the renunciation of any existing friendship or alliance; the period of
thirty days set after the demand for restitution; the hurling of the
spear ® the second time; and other formalities of this sort which
should not be confused with those that properly belong to the law
of nations.

Arnobius informs us that in his time a great part of these
formalities had ceased to be observed; and, indeed, some were

1 The origin of the herald’s staff vou will learn from Pliny, [Natural History,] XXTX. iii, and
Servius, On the Aenetd, IV [IV. 242] and VIII.

2 See Servius, On the Aenesd, 1X [IX. 53]; Ammianus, XIX [XTX. ii. 6], with the notes of the
erudite Lindenbrog.

Livy,
XXXI
[vil 3]
and
XXXVI
fit. 7]

(IX. §52.]

[Thucy-
dides, I.
Xxix.]

Arnobius,
Against
the
Heathen,
II [lxvii].

Varro, On
the Latin

Language,
IV.

[LII. xv.]

Baldus,
On Codé,
VII. 1x. 2,
Do. 70.

Livy,
XXXVI
fur rz]

Livy,
XXXVI
fi. 5].

On the Law of War and Peace [Book III

638

already neglected in the time of Varro. The third Punic War was
begun at the same time with the declaration. In Dio, Maecenas holds
that certain of these formalities are peculiar to a democratic state.

IX.—A war declared against any one 1s at the same time declared
against his subjects and allies, in so far as they take hts side

Furthermore, a war declared against him who holds the sovereign
authority in a state is held to be declared at the same time not only
upon all his subjects, but also upon all who will join him as allies
in such a way as to become an accession to him. This is what the
more modern jurists mean when they say that defiance of the prince
is defiance of his supporters; for to declare war they call to send
forth defiance.

This principle is to be understood as applicable to the type of
war waged against him upon whom it has been declared in the
manner illustrated in the war against Antiochus. It was decided not
to declare war against the Aetolians separately, because they had
openly associated themselves with Antiochus. ‘The Aetolians have
voluntarily declared war against themselves’, was the response of
the fetials.

X.—A war declared against any one 1s not held to be at the same time
declared against bis subjects and allies in so far as they are con-
sidered by themselves ; tllustration by examples

If, on the conclusion of a war declared against one who holds
the sovereign power, another people or king is to be attacked, because
of the aid that they have furnished, a new declaration of war will
have to be made in order to meet the requirements of the law of
nations. For in such a case the people or king is now not regarded
as an accessory, but as a principal. It was therefore rightly said that
the war of Manilius against the Gallo-Grecians and that of Caesar
against Ariovistus were not lawful wars according to the law of nations.*
The Gallo-Grecians and Ariovistus were in fact attacked not as
accessories to another war, but principals; and for such a procedure
by the Roman law a new authorization of the Roman people was
required, just as a new declaration was required by the law of nations.

What was said in putting the question in regard to the war
against Antiochus: ‘ Did they desire, and did they direct, that war
be begun with King Antiochus and with any who had espoused his

1 Unlawful also was that of the companions of Ulysses against the Ciconians, who were at one time
allies of Priam, and who are mentioned by Homer, Odyssey, I [rather « = IX. 39 ff.], and Didymus
n.

Chap. IIT] On War that is Lawful or Pubhe 639

cause,’ also what was provided in the decree against King Perseus,
should, as it seems, be understood as meaning, so long as there should
be a war with Antiochus or Perseus, and as referring to those who
actually had a part in this war.

XI.—The reason why a declaration is required in order to secure certain
effects

Furthermore the reason why nations required a declaration
for the kind of war which we have called lawful according to the law
of nations was not that which some adduce, with the purpose that
nothing should be done secretly or deceitfully, for this pertains to an
exhibition of courage rather than to law, just as certain nations are
said to have even appointed the date and place of battle." “The purpose
was, rather, that the fact might be established with certainty that
war was being waged not by private initiative but by the will of
each of the two peoples or of their heads.

From this consideration arise the peculiar effects which do not
develop in a war against brigands, nor in a war which a king wages
against his subjects. Thus Seneca distinguishes ‘ wars declared upon
neighbours, or waged with citizens ’.

XII.—The effects referred to are not found in other wars

What certain writers point out and teach by citing examples,
to the effect that even in [454] such wars what is seized belongs
to those who take it, is indeed true, but only from one standpoint,
that of the law of nature. It is not true by the customary law of
nations, since this concerns nations only, not persons who have no
existence as a nation or form a part of a nation.

The writers in question err in this also, that they think that a
war undertaken for the defence of one’s person or property does not
require a declaration. Such a war does require a declaration, not
indeed of itself, but for the sake of those effects of which we have
begun to speak, and which we shall shortly explain.

XIU.—Whether war may be waged simultaneously with its declaration

This also is not true, that war cannot be waged at once upon
being declared. That was the procedure of Cyrus against the
Armenians, and of the Romans against the Carthaginians, as we

1 Just as the Romans did to Porsena, as is recorded by Plutarch in his Publicola [xvi = p. 105 Cc].
The Turks kindle a great number of fires two days before a battle ; Chalcocondylas, VII [= p. 344,
edit. Bekker].

1569-27 Xx

[Livy,]
XLII
[=xxx1. I].

Alberico
Gentuli,
I. ii (II. ij

On Anger,
ITI. 1i.

Ayala, I.
Vv.

Alberico
Gentili,
II.11 [11.3],
just cited.

640 On the Law of War and Peace [Book III

have stated above. By the law of nations, in fact, no interval of time
is required after the declaration. Nevertheless, it may happen that,
from the character of the affair, by the law of nature some time may
be required, as when restitution or punishment for a guilty person
has been sought, and this has not been refused. In such a case time
must be granted in order that that which has been sought may be

properly performed.

XIV.—W hether war must be declared against him who has violated the
right of embassy

Even if the right of embassy has been violated, there will not
cease to be need of a declaration of war, for the sake of the effects
of which I speak. However, it will be sufficient that this be made
in a way in which it may be done with safety, as by means of writing,
for example; for custom sanctions the use of writing for both sum-
monses and other notices to be served in unsafe places.

[456] CHAPTER IV

ON THE RIGHT OF KILLING ENEMIES IN A PUBLIC WAR, AND ON
OTHER VIOLENCE AGAINST THE PERSON

I.—The effects of a public war are explained in general terms

I. On the verse of Virgil,

Then to strive in hatred, then to plunder,
Will become permissible,

Servius Honoratus, after tracing the fetial law from Ancus Martius,
and more remotely from the Aequicoli, makes this comment :

If at any time it happened that either men or cattle had been carried off from the
territory of the Roman people by any nation, the pater patratus, with the fetials, that is,
the priests who preside over the conclusion of treaties, would set out, and standing
before the frontier would state the cause of war in a loud voice ; if they refused to restore
the things that had been carried off, or to surrender the wrongdoers, he would hurl
a spear toward them. This constituted the beginning of hostilities, and then it was
permissible to pillage in accordance with the usage of war.

Servius, moreover, had previously said: ‘The ancients were
accustomed to use the words “ to inflict injury (laedere res)’ where
we say “‘ to pillage (rapere) ’’, even if no crime of pillaging had been
committed ; in like manner they used to say “‘ to make restitution
(res reddere)”’ where we say “ to give satisfaction (satisfacere) ”’.’

From these facts we learn that a war declared between two
peoples, or the heads of two peoples, has certain particular effects *
which do not arise from the nature of war itself. This conclusion,
again, agrees excellently with what we have just now cited from the
Roman jurists.

IT.—A distinction 1s made between the word ‘ permissible’ as referring
to that which 1s done with impunity, although not without moral
wrong, and to that which ts free from moral wrong even tf virtue
would enjoin not to do 1t ; with examples

I. But let us see the import of the ‘ will become permissible’ in
Virgil’s line. For sometimes that is said to be permissible which is
right from every point of view and is free from reproach, even if
there is something else which might more honourably be done, as
indicated in that statement of Paul the Apostle: ‘ All things (that

1 Krantz, Saxontca, XI. v.
xXx2 641

[On
A enerd,
X. 14.]

[On
A ened, .
X 14.]

x Corin-
thians, vi.
17 [v1 12].

{To Pol-
lentzus, |
I, xviii.

To Pollen-
tous, I xv
[I. xu,
xix]

Digest,
XVIII.
V1. I. § 3.

[Insie-

tutes,] III.

vil [IIT.
vi. 84].

On the Law of War and Peace [Book III

642

is of the sort which he had touched upon and was going to discuss)
are lawful for me, but not all things are expedient.’

Thus it is lawful to contract marriage, but for a holy purpose
the chastity of celibacy is more worthy of praise,* as Augustine,
following the same apostle, wrote to Pollentius. Also to marry
a second time is lawful, but it is more honourable to be content
with one marriage; this is according to the correct elucidation of
that question by Clement of Alexandria.2 A Christian husband may
lawfully leave his pagan wife, as Augustine thinks * (this is not the
place to discuss in what circumstances this is true), but he may also
keep her, and so Augustine adds: ‘ Either course is indeed equally
permissible according to the justice which waits upon the Lord;
and so [457] the Lord forbids neither of them, but each one is
not expedient.’ Ulpian says of the seller who is permitted to empty
out wine after the appointed day: ‘ Nevertheless it is more praise-
worthy if he does not empty it, when he might do so.’

2. In another sense, however, something is said to be per-
missible, not because it can be done without violence to right conduct
and rules of duty, but because among men it is not liable to punish-
ment.* In this sense fornication is permitted among many peoples ;
among the Lacedaemonians and Egyptians even thieving was per-
missible. In Quintilian we find: ‘ There are certain things which
are not praiseworthy according to nature, but which are legally

* Tertullian, Against Marcion, I [I. xxix],says: ‘The proof of abstinence is wanting 1f permission
to act is taken away.’ See on this point, and on the question of flight in time of persecution, the same
author, To his Wife, Book I [I. iii]. Jerome, Against Heloidius [On Perpetual Virgintty, xx1], says: ‘A
virgin 1s worthy of greater praise, because she despises that which she could do without sin.’ [465]
Also Agatnst Jovinianus [I. xii]: ‘ Christ loves the virgins the more for this, that of their own accord
they offer what was not demanded from them.’ Agam, To Pammachius [Letters, Ixvi. 8]: ‘ Great
things are always left to the judgment of those who dare. Constraint is not laid upon you, to the
end that your will may attain the reward.’

Chrysostom, On First Corinthians, vii [Homily XTX, ii, on verse 9], declares : ‘ He [Paul] shows that
chastity 1s preferable.” On Romans, wii. 6 [Homily XII. iv], he says: ‘He has threatened us with
Gehenna, unless we obey his commands, and he shows that the things which he demands are not among
those which men may offer in zealous emulation, such as virginity and the renunciation of possessions,
but those which absolutely must be fulfilled.’ In his second discourse On Fasting, II [On Penstence,
VI. iii], he says: ‘ He has left virginal chastity outside of the course, outside of the rules of the contest,
that those who offer it may show the greatness of their spirits, and those who do not offer it may enjoy
the mercy of God.’ The same thought he shortly after applies to ‘ the renunciation of possessions ’.

Add also what Gratian has cited from Augustine and other writers in Decreium, II. xiv. 1.

2 Siromata, IV [III. sai. 82], where, among other things, he says of the man who contracts a second
marriage: ‘ He does not indeed sin against the covenant, for there is no law to prevent him, but he
does not accomplish the most excellent perfection of the life according to the Gospel.’

* In De Conjugits Adulierinis ad Pollenttum, I. xiii and xix; from these passages Gratian has
cited at length in Decretum, II. xxviii. 1.

‘ Tertullian, in his Exhoriatton to Chastity [chap. viii], says: ‘ Permission is oftentimes the trial
of teaching.’ In the same passage: ‘ All things are permissible, but all things are not for salvation.’
Chrysostom, On Penitence, VIII [VIII. iui, ed. Migne, vol. VIII, p. 762], says: ‘He who lived upon
herbs and wild honey said with authority to him who was accustomed to have set before him a splendid
and regal table, ‘ This is not permissible for you.” Nevertheless all things appear permissible for a king.’

Columella, in the preface to Book VII [On Farming, I. vii. 2], declares: ‘We must not assert
our right to whatever is permissible, for the ancients held that the extreme enforcement of right is
extreme cruelty.’ Jerome, To Jov:ntanus [To Innocentius, Letters, i. 14], says: ‘The extreme insistence
on right is the extreme of wickedness.’

Chap. IV] On the Right of killing Enemies 643

permissible ; thus according to the Twelve Tables it was permitted
to divide the body of the debtor among his creditors.’

This, however, is hardly a proper meaning of the word ‘ per-
mitted ’ in the strict sense, as Cicero rightly observes in his Tusculan
Disputations, Book V. Here, speaking of Cinna, he says: ‘To me,
on the contrary, he seems wretched not only because he did this,
but also because he so conducted himself that it would be permissible
for him to do it. Although it is not permissible for any one to do
wrong, still we are misled by an error of speech; for we say that
that is permitted which each one is allowed to do.’ This is, never-
theless, an accepted meaning, as shown by Cicero’s address to the
judges in his plea For Rabirius Postumus: ‘ You should have regard
to what becomes you, not merely what is permissible for you; for
if you seek only what is permitted you may remove from the state
whomsoever you wish.’

Similarly it is said that for kings all things are permitted because
they are ‘ not liable to be held accountable’, that is, they are beyond
the reach of human punishments, as we have said elsewhere. But
for the instruction of a king, or an emperor, Claudian rightly says :

Consider not what you may do, but that of which the doing will honour bring.

Musonius rebukes those kings ‘ who are in the habit of saying, “ This
is permissible for me”, not “ This is right for me”’.’

3. In this sense we often see what is permitted contrasted with
what is right. Such a contrast is presented by Seneca the Father *
more than once in his Controversies. Ammianus Marcellinus says:
‘There are some things which it is not right to do, even if it is
permitted.” With this accords what Pliny says in his Letters: ‘It
is right to avoid what is dishonourable, not as being not permissible,
but as being shameful.’

Cicero, again, in the speech For Balbus, has this: ‘ For there
is something which is not right, even if it is permitted.’ In the
speech For Milo he refers the standard of right (fas esse) to nature,
and the standard of what is permissible (Jzcere) to the laws. In
a declamation of Quintilian the Father there is a saying that it 1s
one thing to have regard to rights, and another to have regard to

justice.

Il].—The effects of a public war in general are concerned with per-
mission that grants impunity

With this restriction, therefore, it 1s permitted to harm an
enemy, both in his person and in his property; that is, it is per-

1 In his Controversies, IV. xxiv [=VII. viii. 1], and elsewhere.

[V. xix.
55.]

[v. 11.]

[On the
Fourth
Consulship
of Hono-
vius, 267f.]

{In Sto-

(ini. 8.]

[xvi. 43.]

Declama-
trons, ccli.

[On Public
Admiumnis-
tration, ad-
dressed to
Caesar, II.
iv. 1]

[Crval
War,
J. xxxv.]

XXXIX

12].

On the Law of War and Peace [Book III

644

missible not merely for him who wages war for a just cause, and who
injures within that limit, a permission which we said at the beginning
of this book was granted by the law of nature, but for either side
indiscriminately.

As a consequence, he who happens to be caught in another’s
territory cannot for that reason be punished as a murderer or a thief,
and war cannot be waged upon him by another on the pretext of
such an act. With this meaning we read in Sallust: ‘To whom in
the hour of victory all things were permitted by the law of war.’

IV.—W hy such effects have been introduced

The reason why such effects met with the approval of nations
was this. To undertake to decide regarding the justice of a war
between two peoples had been dangerous for other peoples, who
were on this account involved in a foreign war; just so the Massilians
said, in relation to the struggle between Caesar and Pompey, that
it was not within the province of their judgement or their power
to determine which party had the juster cause. Furthermore, even
in a lawful war, from external indications it can hardly be adequately
known what is the just limit of self-defence, of recovering what is
one’s own, or of inflicting punishments; in consequence it has seemed
altogether preferable to leave decisions in regard to such matters to
the scruples of the belligerents rather than to have recourse to the
judgements of others. The Achaeans in their speech to the Senate,
as recorded by Livy, said: ‘In what way do those things which
have been done in accordance with the law of war [458] come
under discussion ? ’

In addition to this effect of permissibility, that is of impunity,
there is another, that of ownership, which we shall discuss later.

V.—Testimony regarding these effects

1. Moreover that licence to injure, which we have now begun
to consider, extends in the first place to persons; in regard to it
there are many evidences in writers of authority. There is a Greek
proverb from a tragedy of Euripides : ?

Pure are all they who shed the blood of foes.
According to an ancient custom of the Greeks it was not lawful to
bathe, to eat or drink, and much less to perform sacred rites, in

company with those who had slain a man in time of peace; but to
do so with those who had killed in war was right.

1 Jon [line 1334].

Chap. IV] On the Right of killing Enemies 645

In general, killing is called a right of war. Says Marcellus in
Livy: ‘ Whatever I have done to the enemy is defended by the law
of war.’ In the same writer Alco says to the men of Saguntum:
‘But I think that you ought rather to endure these things than to
suffer your bodies to be butchered, your wives and children to be
seized and dragged off before your faces in accordance with the law
of war.’ Again, in another passage, after telling of the slaughter of
the Astapenses, Livy adds that this was accomplished in accordance
with the law of war.

In his speech For Dezotarus, Cicero says: ‘Why should he be
your enemy, when he remembered that he and his son had been
made kings by you, who would have been justified by the law of
war in killing him?’ Also, in the speech For Marcus Marcellus :
‘For although by the terms of victory itself you might lawfully have
slain us all, we were preserved by the mercifulness of your judge-
ment.’ Caesar informed the Aeduans ‘That those through his
kindness had been preserved whom according to the law of war he
could have put to death’. Josephus says in his Fewish War: ‘It is
a noble thing to die in war, but by the law of war, that is, at the
hands of the victors.’ Papinius [Statius| has this:

And we mourn not the fallen; such are the rights of war +
And hazards of arms.

2. However, it is clear from other passages that when these
writers say ‘ by the law of war’ we must not understand such a law
as would free what is done from all blame, but such immunity from
punishment as I have mentioned. Tacitus says: ‘ In peace we con-
sider causes and deserts; when war breaks out, innocent and guilty
fall together.’ The same author elsewhere has this: ‘ Human justice
would not permit them to approve such slaughter, nor the principles
of warfare to avenge it.’

In no other sense should we understand the right of war which,
according to Livy, the Achaeans refrained from availing themselves
of against Aeneas and Antenor because these had always been advocates
of peace. Seneca, in his tragedy the Trojan Women, says :

Whate’er he will, ’tis permitted the victor to do.

In his Letters, also: ‘ Deeds which they would atone for with their
lives if committed in peace, we praise them for having done under

22
arms.
Cyprian declares: ‘ Murder committed by individuals is a crime ;

1 Servius, On the Aeneid, II [TI. 538], in the Fuldensian excerpts: ‘In accordance with the law
of war Pyrrhus had slain Polites ; but why before his father’s eyes ?’ Spartianus, in his Life of Septimius
Severus [chap xiv]. writes: ‘In addition to those whom the law of battle destroyed.’

2 Cf. II. i. 1, above.

XXVI
[xxxi. 2].

XXI [xiii.
9].

XAVIII
(xxi. 1].

[ix. 25.]
fiv. 12.]

Comm.
[on Gallte
War], VII
[xli].

(IIT. viii.
5-]
[Thebatd,
AIT, 552¢£ ]

Annals, I
[xlvii].

Historzes,
IIT [li].

(I. i. x]

(335-]

Letters,
xcvi [xcv.
31].

Letters, ii
{i. 6].

Dw _ Inst.,
IV. ix [VI.
1X. 4].

Pharsalia,
I [2].

XXXVII

[XXXVIII.

xlvili. 9]
and nu-
merous
other pas-
sages.

(III 1i. 7.)

On Dig.,
I 1.5.

Thucy-
dides,
I [xxv].

646 On the Law of War and Peace

when accomplished by public authority it is called a virtue. Wicked
deeds acquire immunity not on the plea that they are void of. guilt
but because their ruthlessness is on a grand scale.’ Later he adds:
‘The laws have come to terms with crimes; whatever is public
begins to be permissible.’ Similarly Lactantius says that the Romans
in accordance with law inflicted injuries. And in the same sense
Lucan speaks of ‘ right given over to crime’.

[Book III

VI.—Out of this right arises the right to kill and ingure all who are in
the territory of the enemy

Furthermore, this right of doing what is permissible has a wide
application. In the first place it extends not only to those who
actually bear arms, or are subjects of him that stirs up the war, but
in addition to all persons who are in the enemy’s territory. ‘This is
made plain by that very formula in Livy: ‘ Let him be accounted
an enemy, and those who are within his defences.’ The reason is that
injury may be feared from such persons also; and this is sufficient,
in a prolonged and general war, to give rise to the mght which we
are discussing.

The situation is different from that which arises from the taking
of guarantees, which, as we have said, originated in the manner of
the impositions levied for the payment of the debts of a state.
Therefore, as Baldus notes, it isno wonder that much [459] more is
permissible in war than in the exacting guarantees.

At any rate what I have said is beyond all dispute true of
foreigners who enter hostile territory after a war has commenced
and they are aware of it.

VIT.—W hat ts the situation in case foreigners have entered a country
before the outbreak of war ?

But foreigners who have gone to a country in a period prior to
the war, after the lapse of a moderate time, in which they could
have departed, are apparently to be regarded as enemies according
to the law of nations. Accordingly the Corcyreans, who were going
to blockade Epidamnus, first gave to the foreigners an opportunity
of leaving the city, telling them that if they should remain they
would be regarded as enemies. |

* Bembo, History, Book VII. Cicero makes use of this principle in his speech For Ligarius [ii. 4].
You have an example in Livy, Book XXV [XXYV. xxii. 11], with regard to the citizens of Campania.
Others in Thucydides, Books I and V [IV. cv].

Chap. IV] On the Right of killing Enemies 647

VIII.—The right to inflict injury extends to subjects of enemies any-
where, unless the law of the foreign territory prevents tt

1. Now those who are truly subjects of the enemy, that is to
say from a permanent cause, may in respect to their persons be
lawfully injured in any place whatsoever, according to the law of
nations. For when war is declared upon any one it is at the same
time declared upon the men of his people, as we showed before in
the formula of declaration ; so also in the proposal for voting: ‘ Did
they wish, did they command, that war be declared upon King
Philip and the Macedonians who were under his rule?’

Moreover, according to the law of nations, any one who is an
enemy may be attacked anywhere. As Euripides says :

The laws permit to harm a foe where’er he may be found.

Marcianus the jurist says: ‘It is permissible to slay deserters, just
the same as enemies, wherever they may be found.’

2. Such persons therefore may be slain with impunity in their
own land, in the land of an enemy, on land under the jurisdiction
of no one, or on the sea. The fact that it is not permissible to slay
or injure such persons in territory which is in a state of peace is
based on a right derived not from their persons but from the right
of him who exercises sovereignty there.t For political societies were
able to agree that no violent measures should be taken against persons
who are in territory at peace except by recourse to legal proceedings ;
of such purport is the passage from Euripides which we have already
quoted ;

If some charge against these guests you prove,

Justice you shall obtain; by violence
You shall not drag them hence.

Where tribunals exist regard is had to the deserts of individuals,
and that promiscuous right of inflicting injury, which we say arises
as between enemies, there ceases. Livy? records that seven Cartha-
ginian ships of war were in a harbour that fell under the authority
of Syphax, who at that time was at peace with the Carthaginians
and the Romans. Scipio came to the harbour with three ships of
war, which might have been sunk by the Carthaginians before they
entered the harbour; but a strong wind brought them into port

1 Compare what we have to say below, III. vi. [466] 26, and Alberico Gentili, Hespanica Advo-
catto, I. vi; Wechner, Consilia Franconica, xcii.

4 Fora similar act of the Venetians, who prevented the Greeks from injuring Turks in a port under
Venetian jurisdiction, see Chalcocondylas, [IX [IX=p. 478]; with regard to the Venetians and Turks
at Tunis, Bembo, IV ; with regard to the Pisans and Genoese in Sicily, Bizarri, On the Pisan War; and
with regard to Rostock and Greifswald, Paulinus of Gotha.

Livy,
XXXI
[wi. r].

(frag.
r076.]

Digest,
XLVIII.
Vili 3. § 6.

[Children
of Her-
cules,

251 ff.,
cited
above in
II. xxi 6.

I.]

XXVIII
(xvii. 12].

Deutero-
nomy, ll.
34.
Deutero-
nomy, XX.
16.

Psalms,
CXXXV1
[cxxxvii.
9].

[Ihad,
XXII.
63f]

I [VII.
xxix].

[Anabasis
of Alex-
ander, I.
viii.]
[Spanish
Wars,

vi. 32.]
Annals, I
[li].

648 On the Law of War and Peace

before the Carthaginians weighed anchor. Then, in fact, the Cartha-
ginians did not dare to make any attack in the port since it belonged
to the king.

[Book IIT

IX.—The right to inflict injury extends even over infants and women

1. But to return to the point under consideration: How far
this right to inflict injury extends may be perceived from the fact
that the slaughter even of infants and of women is made with
impunity, and that this is included in the law of war.

I shall not urge, in support of this statement, that the Jews
killed the women and children of the Hesbonites, and that they were
commanded to execute a like vengeance upon the Canaanites and
those who were allied with the Canaanites!; for these are the works
of God, whose right over men is greater than that of men over
brutes, as we have explained elsewhere. Of greater pertinence, as
evidencing the common practice of nations, is the fact that in the
Psalms it is said that he will be happy who dashes the infants of
the Babylonians against a rock. ‘This is paralleled by the saying

of Homer : *
Bodies of infants dashed upon the ground,
While ruthless war all things affrights.

[460] 2. In ancient times, as Thucydides relates, upon
capturing Mycalessus the Thracians slew both women and children.
Arrian records the same of the Macedonians when they had taken
Thebes. After Ilurgia, a city in Spain, had been captured,® the
Romans ‘ slew alike both children and women’, to use the words
of Appian.

Tacitus records that Germanicus Caesar laid waste the villages
of the Marsi, a people of Germany, with fire and sword, and adds:
‘Neither sex nor age found mercy.’ Titus even exposed Jewish
children and women to be slaughtered by wild beasts in a public
spectacle. And yet these two men are believed to have been by no
Means cruel in disposition—to such an extent had cruelty of this

1 Like the Amalekites, of whom Josephus, in relating the history of Saul, VI. viii [Antiquities of
the Jews, V1. vii. 2] writes: ‘ He proceeded to slay even women and children, considering that in this
he was doing nothing cruel or contrary to human nature, first because those to whom he did it were
enemies,’ &c.

* Severus, threatening the Britons, cited [in Xiphilinus, LXXVI. xv] these words from the same
Homer [Zhad, VI. 58]:

Nor will he cruel fate escape,
Who still lies hidden in his mother’s womb

* Scipio, after the capture of Numantia; the soldiers of Julian, who slew the women that had
been left at Dacira, Zosimus, III [ITI. xv]. Ammianus in Book XIV [XXIV. iv. 25] says that after
this same Julian had taken Majozamaltha ‘ the violence of the enraged soldiery slew whatever they
met in their onset without distinction of age or sex’.

Chap. IV] On the Right of killing Enemies 649

sort become a custom. It is, then, less surprising if old men too
are killed, as Priam by Pyrrhus.

X.—The right to inflict injury extends even over captives, and without
limitation of time
1. Not even captives are exempt from this right to inflict
injury.1| In Seneca Pyrrhus says, in accordance with the accepted
custom of the time,

No law the captive spares or punishment restrains.

In the Curis, attributed to Virgil, such is said to be the law of war,
even against captive women; Scylla there speaks thus:

But by the law of war a captive you had slain.

Also in the passage cited from Seneca the killing of a woman, Polyxena
in fact, was under discussion. ‘This practice gave rise to that saying
of Horace :

When you can sel] a prisoner, slay him not;

for the words imply the postulate that it is permissible to kill a captive.

Donatus says that those were called slaves (servt) who had been
saved (servati), ‘ when by the law of war they could have been killed’.
Thus the captives from Epidamnus were slain by the Corcyreans, as
Thucydides relates. Thus five thousand prisoners were put to death
by Hannibal. In the African War of Hirtius a centurion of Caesar
thus addresses Scipio: ‘I thank you for having promised life and
safety to me, although a captive by the law of war.’

2. So far as the law of nations is concerned, the right of killing
such slaves, that is, captives taken in war, is not precluded at any
time, although it is restricted, now more, now less, by the laws
of states.

XI.—The right to inflict injury extends even over those who wish to
surrender, but whose surrender 1s not accepted

Furthermore we meet with frequent examples of the slaughter
of suppliants, as by Achilles in Homer, and in Virgil the cases of
Mago and Turnus. These instances of the killing of suppliants, we
see, are related in such a way that they are defended by the law of

1 In Josephus [Anisqusises of the Jews, IX. iv. 3] Elisaeus ‘said that it was right to slay those who
had been made prisoners by the law of war’. And so Virgil [Aenetd, X. 524 f.] introduces a prisoner
who utters the prayer :

By the shades of thy sires, by thy hope in the youthful Iulus,

Preserve, I beseech thee, this life to my son and my sire.
Wittekind, Book II [ITI, p. 34], relates that Otho put to death 70,000 [700 in Wittekind’s text] Slavs
who had been made prisoners.

A enerd, Il
[550 ff.].

Trojan
Women
[333].

[447.]

[Epzsiles,
I, xvi. 69 ]

[On
Terence’s]
Adelph,
II. i [x28].
I {xxx}.
Appian,
Hann. Wars
{uri x4].
Dio Cass.,
XLVII
[xlviui].
{Hirtius,
African
War, xlv.]

{Homer,
Ihad, XX.
463; XXI.
74; Virgu,
Aenetd,
X. 5245
XII. 930.]

City of
God, I. 1i
[I. 1].

Annals,

XII [xvul.

Livy, II
[xvil. 6].
Dion.,
XLV
(XLII.
ix].

[Dio Cas-
sius, XL.
xli.]

[V. xxx.
77-]
[XXVI.
xin. 15.]
[XII xix.]
Histories,
I [xxxvii].

[Hsstories,
I. Ixviu J

On the Law of War and Peace [Book III

650

war of which I have spoken. In fact, Augustine also, when praising
the Goths, who had spared suppliants and those that had taken
refuge in temples, says: ‘ What would have been permissible by the
law of war they judged was not permissible for them.’

Again, the surrender of those who give themselves up is not
always accepted. Such was the case of the Greeks who fought in
the service of the Persians at Granicus ; in Tacitus is another instance,
that of the Uspenses, who sought pardon for their freemen: ‘ Their
plea the victors rejected’, he says, ‘ that they might rather perish
by the law of war.’ Note here also the expression ‘the law of war’.

XII.—The right to inflict injury extends even over those who have
surrendered unconditionally

But you may read also that captives, whose unconditional sur-
render was accepted, have been put to death,’ as the rulers of
Pometia by the Romans; Sammnites, by Sulla; Numidians, and
Vercingetorix himself, by Caesar.

There was indeed almost a permanent custom among the Romans
with respect to the commanders of the enemy, whether captured or
received by surrender, that they should be put to death on the day
of the Roman triumph.? So Cicero informs us in his fifth oration
Against Verres, Livy both in Book XXVIII and elsewhere, Tacitus
in his Annals, Book XII, and many other authors. As Tacitus
also relates, Galba ordered the decimation of those whom he had
received under his protection as suppliants; and Cecinna, after
receiving the surrender of Aventicum, punished Julius Alpinus, one
of the foremost men, as the instigator of the war, and left the rest
to the mercy, or savagery, of Vitellius.

[461] XIII.—Jé 15 incorrect to refer this right to other causes, as
retaliation, or obstinacy of defence

1. Sometimes historians assign the reason for the slaughter of
enemies, particularly of captives or suppliants, either to retaliation,
or to obstinacy in resisting ; * but these causes, as we have indicated
elsewhere, are plausible rather than justificatory. In fact, retaliation
that is lawful, and properly so called, must be inflicted upon the very
person who has done wrong, as may be seen from what has previously
been said on the sharing of punishment.

In war, on the contrary, what is called retaliation very frequently
brings harm to those who are in no way to blame for that on which

* See De Thou, Book LXX [LXX. xvii], on the year 1580, with regard to events in Ireland.
* There is a similar occurrence in the Chronicle of Regino for the year 905.
* As Chalcocondylas, Book VIII.

Chap. IV] On the Right of kiling Enemtes 651

the issue is joined. The point of view is thus set forth by Diodorus
Siculus; ‘ Having learned from actual experience, since the hazard
of war is the same for all belligerents, they were not unaware that
either side if defeated must expect to receive the treatment which it
would have accorded to the vanquished.’ In the same author Philo-
melus, leader of the Phocians, ‘made the enemy cease from their
insolent and cruel punishment by inflicting an equivalent penalty ’.*

2. In truth there is no one who holds that an obstinate devotion
to one’s party is worthy of punishment; this is illustrated by the
reply of the Neapolitans to Belisarius, in Procopius. The statement
holds particularly true when the party to which allegiance is main-
tained has been assigned by nature, or chosen for an honourable
reason.

In fact, so far from there being any crime involved in such
allegiance, it is accounted a criminal act to desert one’s post. This
was insisted on especially in the military law of ancient Rome, which
in such cases hardly admitted any excuse of fear or danger. ‘ Among
the Romans to leave one’s post is a capital crime’, says Livy. For
his own advantage, therefore, each one resorts to so extreme severity
in cases in which it seems expedient; moreover, such severity is
defended among men by the law of nations, of which we are now
treating.

XIV.—T he right to inflict injury extends over hostages also

This right to inflict injury has also been exercised against
hostages, not merely against those who had bound themselves, as by
an agreement, but also against those who have been surrendered by
others. In ancient times two hundred and fifty hostages were put
to death by the Thessalians ; and hostages of the Volsci Aurunci, to
the number of three hundred, by the Romans.

Furthermore we must remember that even boys were commonly
given as hostages; we read that this was done by the Parthians and
by Simon, one of the Maccabees. Women also were given as hostages
by the Romans in the time of Porsena, and by the Germans, according
to Tacitus.

XV.—By the law of nations it 1s forbidden to kill any one by means
of potson

1. However, just as the law of nations, through that form of
permission which we have now explained, permits many things which

| 2 See the same Diodorus on Spondius and Hamilcar Barca in the Excerpia Petrescrana [Excerpia
de Virtutibus et Vittis, i = p. 262].

[XIV.
xlvi.]

[XVI.
XxXxi.]

Gothic
War, I
[vii].

Polybius,

I [xvi]
and VI
[xxxvii].
XXIV
[xxxvll. 9].

Plutarch,
On Noble
Traits of
Women
[= p. 244
B].
Dionys.us,
[Roman
Antiqui-
t1es,] XVI
[VI. xxx].
Tacitus,
Annals,
XIT [x].
I Macca-
bees, xiii.
17 [xili.
16].
Histortes,
IV [Ger-
many viii],

Livy,
XLII
[xviii. x].
War with
Gildo
[274].

On Duties,
III (xxii.
86].
[Attic
Nighis,]
III vin.
Viv

[VI. v. x].
Annals,
III [II.
]xxxviii.]

Consilta,
IT. 188.

[Ovid,
From the
Pontus,
Lit. 15 £.]

On the Law of War and Peace [Book III

652
are forbidden by the law of nature, so it forbids certain things which
are permissible by the law of nature. If you take account only of
the law of nature, in case it is permissible to kill a person, it makes
no difference whether you ill him by the sword or by poison. By
the law of nature, I repeat, for it is indeed more noble to kill in such
a way that he who is killed may have a chance to defend himself ;
but this is not an obligation due to one who has deserved to die.
Nevertheless from old times the law of nations—if not of all nations,
certainly of those of the better sort—has been that it is not permissible
to kill an enemy by poison.

Agreement upon this matter arose from a consideration of the
common advantage, in order that the dangers of war, which had
begun to be frequent, might not be too widely extended. And it
is easy to believe that this agreement originated with kings, whose
lives are better defended by arms than those of other men, but are
less safe from poison, unless they are protected by some respect for
law and by fear of disgrace.*

2. In speaking of Perseus Livy calls the poisoning of enemies
secret crimes. Claudian, in discussing the plot against Pyrrhus which
was rejected by Fabricius, characterizes it as impious, and Cicero,
touching on the same story, refers to it as an atrocity. From the
point of view of an example for all, it is important that no such
deed be done, say the Roman consuls [462] in the letter to Pyrrhus
which Gellius quotes from Claudius Quadrigarius. In Valerius
Maximus is the saying, ‘ Wars ought to be waged with weapons, not
with poisons.’

Tacitus records that, when the leader of the Chatti offered to
bring about the death of Arminius by poison, Tiberius refused the
offer, by this glorious act placing himself on a level with the generals
of olden days. Wherefore those who argue that it is permissible to
kill an enemy by poison,? as does Baldus, following Vegetius, have
regard to the law of nature only; they quite overlook that which
takes its rise in the will of the nations.

XVI.—By the law of nations it 1s forbidden to poison weapons or waters

1. Different in a degree from poisoning of this sort, and more
closely allied with the use of force, is the poisoning of javelins. This
is a doubling of the causes of death which Ovid relates of the Getae,?

> The senators [the Consuls, rather] wrote to Pyrrhus: ‘ that if anything should befall you it may
not bring infamy upon us’ (Plutarch, Pyrrhus, xxi=p. 396 C].
4 On the Venetians, see Bembo, Book ITI, end.
__ * Of the Scythians Pliny, [Natural History,] XI. liti, observes: ‘The Scythians foul their arrows
with the poison of vipers and human blood; this wickedness, for which no remedy can be found,
produces death at once by a light touch.” On the Serbians see Helmold, Supplement, chap. iv.

Chap. IV] On the Right of killing Enemies 653
Lucan of the Parthians, Silius of certain of the Africans, and Claudianus
of the Ethiopians in particular. But this also is contrary to the law
of nations,’ not indeed of all nations, but of European nations, and
of such others as attain to the higher standard of Europe.

John of Salisbury has rightly stated the principle in these words :
‘I do not read that it is permissible under any law to use poison,
although I see that poisoning is sometimes resorted to by unbelievers.’
Of like implication are the words of Silius, ‘To disgrace iron with
poison.’

2. The poisoning of springs also, though the act either is not
secret or does not long remain so, is said by Florus to be not only
contrary to ancestral custom but also contrary to the law of the
gods; just as we have pointed out elsewhere, writers frequently
ascribe the laws of nations to the gods. It should not indeed seem
remarkable if there exist some such tacit agreements among belli-
gerents to lessen the risks of war, when in olden times the Chalcidians
and Eretrians, while at war, covenanted ‘ not to make use of missile
weapons ’.

XVII.—It is not forbidden by the law of nations to pollute waters in
another way

The rule just stated has not been established in regard to the
pollution of waters without the use of poison,? in such a way that
one cannot drink from them. Such pollution, we read, Solon and
the Amphictyons considered lawful against barbarians ; and according
to Oppian, in his On Fishing, Book IV, it was customary in his
time. This is considered to be like the diverting of a river, or cutting
off the veins of a spring,® which is permissible by nature and by
convention.

XVIII.—W hether or not the use of assassins 1s contrary to the law of
nations

1. The question is frequently discussed whether, according to
the law of nations, it is permissible to kill an enemy by sending an
assassin against him.

In general a distinction must be made between assassins who
violate an express or tacit obligation of good faith, as subjects resorting
to violence against a king, vassals against a lord, soldiers against him

1 And so Tlus, the son of Mermerus, refuses Ulysses poison for his spears, Odyssey, I [I. 263]:
[467] Fearing the wrath of the immortal gods.

2 With corpses, or with asbestos, which Belisarius used in the siege of Auximium, Procopius,
Gothic War, II [II. xxvii] ; or with lime, as the Turks at Dibra, Nicetas, On Alexts, I [I. vii], brother
of Isaac [Comnenus]. Similar acts are related by Otto of Freising, and Gunther, Ligurinus.

* See Priscus, Selections on Embassies [p. 20].

{Lucan,
VIII. 304
Silius, ITI
273;

Claud , On
Consulship
of Stilecho,
I. 351]
John of
Salisbury,
[Polscrats-
cus,] viii.
20.

(IIT. 273 ]

IT [xx].

[II. xix.
I. 2.]

Strabo,
X [1. 12]

Pausanias,
ult. [X.
XXXVI1]
Frontinus,
[Strata-
gems,] ITI
[v1i 6]:
Aeschines,
On the
Badly
Conducted
Embassy
[exv].
[Halteu-
zwca, IV.
687 f.1

(V. Ixxx1.]

Livy,
II [xi 9g].

III iii
[II, 111. rj.

[xxi. 48.]

Justin, IT
[xi. 15].

Livy,
XXVIII

[xxvii].
Tacitus,
Historves,
V (xxi).
On Duttes,
I. xl [197].

Livy

II [m. 14].

Digest,
XLVIII.

viii. 3. § 6.

On the Law of War and Peace [Book III

654

whom they serve, those also who have been received as suppliants
or strangers or deserters, against those who have received them ;
and such as are held by no bond of good faith. In the latter class
is Pepin,’ the father of Charlemagne, who, accompanied by one
attendant, is said to have crossed the Rhine and to have slain an
enemy in his bedchamber; a similar deed was attempted upon
Ptolemy of Egypt, and Polybius, attributing it to Theodotus the
Aetolian, calls it ‘a manly deed of daring’.

Of such a character was also the attempt of Quintus [Gaius]
Mucius Scaevola,? celebrated by historians, which he himself defended
thus: ‘As an enemy I wished to slay an enemy.’ Porsena himself
saw nothing but bravery in this deed. Valerius Maximus calls it an
attempt free from reproach and brave; and Cicero also praises it
in his speech For Publius Sestius.

2. Not merely by the law of nature but also by the law of
nations, as we have said above, it is in fact permissible to kill an
enemy in any place whatsoever ; and it does not matter how many
there are who do the deed, or who suffer. Six hundred Spartans
with Leonidas entered the hostile camp of the enemy and made
straight for the tent of the king. The same venture would have
been permissible for a smaller number.* Those were few in number
who from an ambuscade surrounded and slew the consul Marcellus ;
and few likewise were those who all but stabbed Petilius Cerialis in
his bed. [463] Ambrose praises Eleazer * for attacking an elephant
which towered above the rest, in the belief that the king was seated
thereon.

According to the law of nations not only those who do such
deeds, but also those who instigate others to do them, are to be
considered free from blame. Scaevola was incited to his daring deed
by those Roman senators of old, who were so scrupulous in warfare.

3. No one ought to be influenced by the fact that when persons
who have made such attempts are caught they are usually subjected
to refined tortures. This result does not follow because they have
violated the law of nations, but because, by that same law of nations,
anything is permissible as against an enemy. In such cases, however,
each decides upon a more severe or more lenient punishment from
the point of view of his personal advantage.

? See Paul Wamefrid [Paulus Diaconus], VI [VI. xxxvii].

* Who is, in Plutarch [Publicola, xvii = p. 106 B], ‘a man pre-eminent in all virtue’.

* Valens promised a monetary reward to any one who should have brought in the head of a Scythian.
Thus peace was secured; Zosimus, IV [IV. xxii].

* Also Josephus, Antiquities of the Jews, XV. xiv [XII. ix. 4]. A similar act of Theodosius against
Eugenius is mentioned by Zosimus, IV [IV. Iviii] ; of the Gauls against the Persian king, in Agathias ;
of ten Persians against Julian, in Ammianus, XXIV [XXIV. iv. 4], and Zosimus, III [III. xx]; of
Alexius Comnenus against Toruses, in Nicetas of Chonae, On Manuel, IV [IV. iv]; and of the Bulgars
against the Emperor Nicephorus, in Zonaras [XV. xv]. | |

Chap. IV] On the Right of killing Enemies 655

Under these conditions spies, whose sending is beyond doubt
permitted by the law of nations—such as the spies whom Moses sent
out, or Joshua himself—if caught are usually treated most severely.
‘It is customary ’, says Appian, ‘to kill spies.” Sometimes they are
treated with justice by those who clearly have a just care for carrying
on war; by others, however, they are dealt with in accordance with
that impunity which the law of war accords. If any are to be found
who refuse to make use of the help of spies, when it is offered to
them,! their refusal must be attributed to their loftiness of mind
and confidence in their power to act openly, not to their view of
what is just or unjust.

4. But a different point of view must be adopted in regard to
those assassins who act treacherously. Not only do they themselves
act in a manner inconsistent with the law of nations, but this holds
true also of those who employ their services. And yet, in other
things those who avail themselves of the aid of bad men against an
enemy are thought to sin before God, but not before men; that is,
they are thought not to commit wrong against the law of nations,
because in such cases—

Custom has brought law beneath its sway ;

and ‘ to deceive’, as Pliny says, ‘in the light of the practices of the
age, is prudence’.

Nevertheless the warrant of custom in such cases does not extend
to the right of killing; for he who makes use of another’s treachery
in causing death is believed to have violated both the law of nature
and the law of nations. This is apparent from the words of Alexander
to Darius: ‘ You are waging an unrighteous war; and, although
you have arms, you set a price on the heads of your enemies.’ Later
he says: ‘ You who have not even observed the laws of war towards
me.’ In-still another passage: ‘I must pursue him to the death,
not as a just foe, but as an assassin and a poisoner.’

Of similar purport is the statement concerning Perseus: ‘ He
was not undertaking a just war with the spirit of a king, but was
making his attacks by means of all the secret crimes of robbers and
poisoners.’ In treating these same deeds of Perseus, Marcius Philippus
said: ‘In the ruin of his fortunes he will perceive how hateful all
his acts are to the gods also.’ Here, again, the statement of Valerius
Maximus applies: ‘The slaying of Viriathus? produced a twofold

1 See Kromer, [Book V,] p. 113.
2 The author of De Varts Iilustribus [Aurelus Victor, lxxi] says: ‘This victory, because it had
been purchased, was not approved of by the Senate.” Eutropius [IV. xvi] says: ‘ When his murderers
sought the reward from the consul Caepio, they received the reply that the Romans never approved of
a general being killed by his own troops’; perhaps one should read ‘the reward promised by the
consul Caepio’. Similarly the assassination of Sertorius is condemned by Ammianus, [XCX,

1, 23].

1569-27 Yy

Punic
Wars
(xxx1x].

[Plautus,
Trinum-
MUS,1037 |
Letters,
VIII

[xviil 3],
To Rufinus

Curtius,
IV fi.
12-13].

XIV [IV.
xi. 18].

Livy,
XLII
[xvil. x].

Livy,
XLIV

fi. To].
IX. vii
(IX. vi. 4].

Justin,
XIV [1.
12].

XII [v.
ro ff.}.

[Oedtpus
the King,
I4I.]

[Oedspus,
242.|

[Gellius,
III. vii.)

Annais,
XI [xix].

VII [v.
20].

On the Law of War and Peace [Book III

656
charge of treachery: against his friends, because he was killed by
their hands; against Quintus Servilius Caepio, the consul, because
he was the instigator of the crime by his promise of immunity, and
did not earn his victory, but purchased it.’

5. The reason why in this matter men have reached a con-
clusion different from that adopted in other cases is the same that
we advanced above with regard to the use of poison. It has in view
the purpose to prevent the dangers to persons of particular eminence
from becoming excessive. According to Justin, Eumenes declared
that ‘ he did not believe that any general wished to conquer by such
means that he would set a very bad example against himself ’.

In Justin, again, the murder of Darius by Bessus is said to be
an example and a cause common to all kings; and, in Sophocles,
Oedipus, when about to avenge the death of King Laius, says :

Then in avenging him I serve myself.

Likewise in Seneca’s tragedy on the same theme:

Kings, above all, king’s safety must protect.

The Roman consuls wrote in a letter to Pyrrhus: ‘It seemed an
example of good faith for all that we should desire your safety.’

6. Ina public war, therefore, or among those who [464] have the
right to declare a public war, the practice under consideration is not
permissible ; however, apart from a public war, by the same law of
nations it is held to be permissible. Accordingly, Tacitus does not
admit that a plot of this sort laid against the renegade Gannascus
was degrading.’ Curtius says that the treachery of Spitamenes could
seem less hateful, since no one thought anything wicked that was
done against Bessus, who slew his king. So, too, treachery towards
robbers and pirates is not indeed blameless, but goes unpunished
among nations by reason of hatred of those against whom it is
practised.

XIX.—W hether rape 1s contrary to the law of nations

I. You may read in many places that the raping of women in
time of war is permissible, and in many others that it is not per-
missible. ‘Those who sanction rape have taken into account only the
injury done to the person of another, and have judged that it is not

1 Thus Ammianus [XXVI. ix. ro] says of Florentius and Barchalba, who handed over the rebel
Procopius: ‘If they had betrayed a legitimate prince, justice itself would have declared that they
could have been rightly killed; but if they had betrayed a rebel and an opponent of peace within
the state, as it was said, they should have received a rich reward for the memorable deed.’ So Arta-
banes is praised for the death of Gontharides, in the historian Procopius, Vandalic War, at the end of
Book II [1I. xxviii]. Compare Kromer, Book XXVIII [p. 604], on the killing of Sechodolius.

Chap. IV] On the Right of kiling Enemies 657

inconsistent with the law of war that everything which belongs to
the enemy should be at the disposition of the victor. A better
conclusion has been reached by others, who have taken into con-
sideration not only the injury but the unrestrained lust of the act ;
also, the fact that such acts do not contribute to safety or to punish-
ment, and should consequently not go unpunished in war any more
than in peace.

The latter view is the law not of all nations, but of the better
ones. Thus Marcellus, before capturing Syracuse, is said to have
taken pains for the protection of chastity,’ even in the case of the
enemy. In Livy, Scipio says that it is a matter of concern for himself
and for the Roman people ‘that they should not violate what is
anywhere held sacred’. ‘Anywhere’, that is to say, among the
more advanced peoples. Diodorus Siculus says of the soldiers of
Agathocles: ‘They did not abstain from insults and lawlessness ?
towards women.’ Aelian, having related that the chastity of the
women and girls of Pellene was violated by the victorious Sicyonians,
exclaims: ‘ These are most brutal acts, ye gods of Greece, and not
held honourable even among barbarians, so far as my memory serves.’

2. Among Christians * it is right that the view just presented
shall be enforced, not only as a part of military discipline, but also
as a part of the law of nations; that is, whoever forcibly violates
chastity, even in war, should everywhere be subject to punishment.
No one could have committed such an act with impunity under the
Hebraic law, as may be perceived from that part which deals with
the taking of a woman‘ captive and not subsequently selling her.
On this passage the Jewish rabbi Bacchai comments: ‘ God wished
that the camp of the Israelites should be holy, not abandoned to
fornication and other abominations like the camps of the Gentiles.’

Arrian, after relating that Alexander, captivated by the love for
Roxane, ‘ did not desire to misuse her as a captive, but thought it
proper to marry her’, adds his approval of the act. Of the same
act Plutarch says: ‘He did not misuse her, but took her to wife,
as was becoming for a philosopher.’ Plutarch relates also that
a certain Torquatus was banished to Corsica® by a decree of the
Romans, because he had violated a maiden of the enemy.

1 Also Lucullus, according to Xiphilinus [Dio Cassius, XXXVI. iv]. See the proclamation of the
Moor Cabaon in Procopius, Vandalic War, I [1. viii].

2 Appian, Mithridatic Wars [xvii], says of the captured Chians: ‘The women and children were
barbarously violated by those who carried them off.’

? Belisarius everywhere observed this, as did Totila at the capture of Cumae and Rome. This
is recorded by Procopius, Gothic War, III [III. i, viii and xx].

* As Philo eloquently explains in his book, On Humanity [xiv]. Says Josephus, Against Apion,
IT [II. xxix. 212]: ‘ The law also cared for prisoners of war, that they might be protected, especially
the women, from insult.’

5 But Chosroes, the Persian king, crucified a man who had assaulted a girl of Apamea; Procopius,
Persian War, It [II. xi].

Yy2

Augustine,
City of
God, II

[I vi]
XXVI
[xlix. 14].

[XIX.,
viii J

Various
Hustory,
VI [2].

Deutero-
nomy, Xxi.
Io.

[A nabasis
of Alex-
ander, IV.
mx 9 |

[On the
Bravery of
Alexander,
X1=pD.

332 E.]
Parallels
[xili =p.
308 F].

On Duties,
III [v1-
32].

[V. x1 J

AXXI

(xxx 2-3].

Annals,
XITI
[xh].

Dig. XI.
vii. 36.

f1V. lv.
122.]

[468] CHAPTER V

ON DEVASTATION AND PILLAGE

I.—Enemy property may be destroyed and pillaged

Tuat it is not contrary to nature to despoil him whom it is
honourable to kill, was said by Cicero. ‘Therefore it is not strange
that the law of nations has permitted the destruction and plunder
of the property of enemies, the slaughter of whom it has permitted.
Consistently with this, Polybius in the fifth book of his Hzstorzes says
that the plunder or destruction of enemy fortifications, harbours,
cities, men, ships, crops, and anything else of the kind, is included
in the law of war. We read in Livy that ‘there are certain rules
of warfare which it is proper for us both to enforce and to endure:
the burning of crops, the destruction of buildings, and the driving
off of men and cattle as spoil.’

On almost every page of historical writings you may find accounts
of the destruction of whole cities, or the levelling of walls to the
ground, the devastation of fields, and conflagrations. It must be
noted furthermore that such acts are permissible also against those
who have surrendered. ‘ The townsmen ’, says Tacitus, ‘ voluntarily
opened the gates and placed themselves and their belongings in the
hands of the Romans, and this secured safety for themselves; but
Artaxata was set on fire.’

Il.—Even enemy property that 1s sacred may be destroyed and pillaged ;
how this 1s to be understood

1. Now the law of nations in itself, apart from the consideration
of other obligations of which we shall speak below, does not exempt
things that are sacred, that is, things dedicated to God or to the
gods. ‘ When places are taken by the enemy, all things cease to be
sacred ’,? says Pomponius the jurist. ‘ Victory had made profane
the sacred things of Syracuse’, says Cicero in his fourth oration
Against Verres.

* Suetonius, Nero, xl: ‘ As though by the law of war an occasion had arisen for plundering the
wealthiest provinces’. Cypnan, On Mortality [chap. viii]: ‘So when possession has been taken of
a State through an invasion of enemies, captivity falls upon all alike.’

* Tertulhan, Apology [xxv]: ‘Furthermore wars and victories consist very often in the capture
and destruction of cities. Such procedure is not without injury to the gods. There is the same destruc-
tion of fortifications and of temples, a like slaughtering of citizens and of priests, a like plundering of
treasures sacred and profane. Thus the sacrileges of the Romans are as numerous as their trophies,
their triumphs over gods as numerous as those over peoples; and their spoils of war are numbered
by the images of captured gods which remain unto this day.’ Soon after [xl]:' ‘ And rightly so, for if
any reverse has overtaken the cities their temples have suffered the same ruin as their walls.’

658

059

The reason is that the things, which are called sacred, are in
fact not withdrawn from human use, but are public’; however,
they are called sacred from the purpose to which they are devoted.
The proof of what I say is that when any people surrenders itself
to another people, or to a king, there are also at the same time
surrendered the things which are called divine. This is clear from
the formula which we have cited elsewhere from Livy; and with
that the verse in the Amphttruo of Plautus agrees,

Chap. V] On Devastation and Pillage

Their city, lands, their altars, hearths, and persons
Let them give up;
and then :

They yield themselves and all possessions, human and divine.

2. In consequence Ulpian says that even sacred things are
included under public law. In his description of Arcadia Pausanias
says that it was a custom common to both Greeks and barbarians,
that sacred things should be at the disposal of those who had captured
cities. Thus he relates that when Troy was taken the image of
Hercaean Jupiter was granted to Sthenelus; and he gives many
other examples of the same custom. Thucydides, in Book IV,
says: ‘It was the custom among the Greeks, that those who had
power over a country, whether large or small, should also possess
its shrines.”* With this agrees the statement in Tacitus: ‘In the
Italian towns, all ceremonies, and temples, and statues of the gods,
are subject to the Roman law and authority.’

3. Hence, furthermore, a people, having changed its mind,
may make profane what has been sacred, as is clearly indicated by
the jurists Paul and Venuleius. We see that, under the necessity
of the times, sacred things have been converted to the uses of war ®
by those who had consecrated them. This, we read, was done by
Pericles, though with a promise of restitution, by Mago in Spain,

1 Marsilius of Padua in the Defensor Pacis, chap. v, pt. 2; Nicolas de Bohier, Deciszons, xix, no. 1 ;
Bossius, Practica Criminalia, De Foro Compeiente, no. ror ; Cothmann, Conszlia, c, no. 30.

2 This custom is also revealed by a passage from Polybuus cited below, ITI. viii. 4.

8 As by the Syracusans in the time of Timoleon, in whose life Plutarch records this [Tzmoleon,
xxiii = p. 247 E]. The Chians made up even from the sacred vessels the fine which Mithndates laid
upon them; Appian, Mithridatic Wars [vii. 47]. Pliny, Book VII, last chapter [Natural History, XVII.
XXvili. end], in speaking of Marcus Porcius Cato, says: ‘He sanctioned the cuttmg down of sacred
trees [471] and groves, after the offering of sacrifice ; and he has handed down the reason for this
in the same volume.’

In the Mithridatic War, Sulla removed the votive offerings from Olympia, Epidaurus, and Delphi,
as is related by Plutarch [Sulla, xii = p. 459 B] and Appian [Mzthridatzc Wars, viii. 54]; and he also
restored their value; Diodorus Siculus in the Excerpta Petresctana [Excerpta de Virtutsbus et Vitis,
i = p. 322]. Augustus borrowed treasures from the temples, as we learn from Appian, Czvil Wars,
V [V. ii. 13]. Cassiodorus relates that Agapetus gave sacred vessels in pledge, [Varzae,] XII. xx.

In time of grave need Heraclius coined money from the vessels of the Church, but afterwards
restored their value, as Theophanes relates. See also Anna Comnena, V [V. ii] and VI [VI. iui] ; Kromer,
XXIII; and the speech of Laurentianus in Bembo, Book VI. Add what is to be said below in ITI.
XxXi. 23.

I, iii. 8
[Livy,

VII. xxxi.
4].

[226.]

[258.]

[Dzgest, I.
I xr. §2]
[VIII
xlvi.]

[IV.
Xcvili.]

Annals,
XII (TIT.
Ixxi].

Digest,
XLV. tl.
83. § 5,
and 137.
§ 6.

[Trberius
Gracchus,
xvV=

p. 832 4]

Macrobius,
Saturnalia,
III fiv]

Annals, I
fy)

[A enetd,
XII.
778 £ |

Vill

[xlvi]
Agavnst
Verres, III
[{I.xx1 57].

XXV
[xl. 2].

[Livy,

XXXVIII.

xlifi. ro.]

[Livy,]
XX XIX
[iv 12].
[Catsline,
li. 9.]

On the Law of War and Peace [Book III

660

by the Romans in the Mithridatic War, [469] by Sulla, Pompey,
Caesar, and others. In Plutarch Tiberius Gracchus says: ‘There
is nothing so sacred and holy as offerings to the gods. Nevertheless
no one has hindered the people from using, moving, or transferring
these.’

In the Controversies of Seneca the Father we read: ‘ Often-
times the temples are stripped for the sake of the state, and we melt
down offerings to serve as pay.’ Trebatius, a jurist of the time of
Caesar, says: ‘That is profane, which, from being religious or
sacred, has been transferred to the use and ownership of men.’ *
Of this law of nations, therefore, Germanicus made use against the
Marsi, when, as Tacitus relates: ‘ Profane and sacred structures alike,
even the temple most famed among these peoples, which they called
the shrine of Tanfana, were levelled to the ground.’ Here apply

the lines of Virgil :

If I your altars always have revered,
Which the Trojans have profaned in war.

Pausanias has recorded that gifts to the gods are as a rule seized
by the victors*; and Cicero, speaking of Publius Servilius, calls this
the law of war. ‘He removed statues and ornaments’, Cicero says,
‘from the city of the enemy which had been taken by force and
valour, in accordance with the law of war and the right of a com-
mander.’ Thus Livy says that the adornments of the temple, which
Marcellus brought to Rome from Syracuse, ‘ were acquired by the
law of war’. Gaius Flaminius, in speaking for Marcus Fulvius, says :
‘Statues were carried off and other things done which are usually
done when cities are captured.’ Fulvius * also in a speech calls this
very thing the law of war. Cato [Caesar] in a speech reported by
Sallust, in recalling what usually happens to the vanquished, mentions
likewise the pillaging of shrines.®

4. Nevertheless this is true, that if a divinity is believed to

1 In the Excerpia, IV. iv. -

2 Servius, On the Aeneid, II [f1. 713], says of the temple of Ceres: ‘Aeneas knew that it had
previously been profaned.’ He says the same On the Aeneid, III, IX, and XII. Moreover, On the
Eclogues, VII [VII. 31], he remarks: ‘ Gifts offered to deities are sacred, and may be called offerings,
only so long as they have not been profaned.’ .

* Virgil, Aenezd, V [line 360]:

By Greeks ta’en down from Neptune’s sacred door.

Plutarch, in his Fabrus [xxii = p. 187 C, D], relates that he captured a statue of Hercules at Tarentum
and sent it to the Capitol ; he left to the Tarentimes the rest of their gods, because they were hostile.
In harmony with this is the quotation we have just made from Tertullian, and also the following from
the same author, Against the Nations, II [Tl. xvii]: ‘Hence as many triumphs over gods as over
peoples. Still remaining among them are their captive idols, and if these perceive their conquerors
they do not love them.’

* See Polybius, Selections on Embassies, xxvii [= Htstories, XXI. xxx].

5 See Kromer, Book XVII [p. 402]. With regard to the property of the Church at Antioch captured
by Chosroes, see Procopius, Persian War, IT [II. ix].

Chap. V] On Devastation and Pillage 661

reside in an image it is unlawful that the image shall be defiled or
destroyed by those who share such belief. On the assumption that
such a belief is held, those who have committed acts of this character
are sometimes accused of impiety or of contravention of the law of
nations. The case is different if the enemy do not hold the same
view; so the Jews were not only permitted but even enjoined to
destroy the idols of the Gentiles.

The reason why the Jews were forbidden to take the idols of
their enemies was, that they might the more abominate the super-
stitions of the Gentiles, having been warned against contamination
by the very prohibition of contact. The purpose was not to spare
what was sacred to others, as Josephus’ explains, doubtless from
flattery to the Romans, just as in his explanation of the other com-
mand, about not naming the gods of the Gentiles; for he explains
this as though the Jews were forbidden to speak evil of the gods of
the Gentiles, when in fact the law would not permit them to be
named for the sake of honouring them, or without execration. The
Jews in fact knew, through the most certain admonition of God,
that in these idols there dwelt, not the spirit of God, nor good
angels, nor the power of the stars, as the misguided Gentiles thought,
but base demons, hostile to the human race. As Tacitus rightly said
in describing the institutions of the Jews: ‘In their view all things
are profane which among us are sacred.’ Hence it is not strange
if we read that the Maccabees more than once set fire to temples
of a profane cult.

When, therefore, Xerxes destroyed the images belonging to the
Greeks, he did nothing contrary to the law of nations, although
Greek writers exaggerate this greatly in order to arouse enmity.
For the Persians did not believe that there were any divinities in
idols? but thought that God was the sun, and any fire was a part
of him. By the Hebraic law, as Tacitus also rightly says: “None
but the priests were permitted to cross the threshold of the Temple.’

s. Nevertheless Pompey, according to the same author, ‘ entered
the Temple by right of conquest’; or, as Augustine, referring to the
same incident, says, ‘not with the devotion [470] of a suppliant,
but by the right of a conqueror’. He did well to spare the Temple
and its furnishings, although, as Cicero expressly says, he did so from
shame and fear of his critics, not from respect; but he did wrong
to enter, seeing that he despised the true God, an attitude which
the Prophets censured in the Chaldaeans also. For this reason some
persons even believe that the wonderful providence of God caused

1 Josephus, Antiquities of the Jews, IV. viii [IV. vill. to], and Against Apion, II (IL. xxxii. 237].
1 Diogenes Laertius at the beginning [procem., vi] says: * Idols are condemned by the magi.’

Deutero-
nomy, Vii.
45.

Hiustortes,
V fiv].

I Maccte-

bees, v [44]
and x [84].

ASconius
Pedianus,
On
[Crcero’s]
Agamst
Verres, III
(I. xvii.
48}.
[Historzes,
V. viii, ix.]
Carty of
God,
XVIII.
xlv,

For
Flaccus
[XXVLLI.
68].

Damial,
V. 23.

Jewtsis
War, VI
Xx1LVv and
xxxiv [VI
iv § 3 and
v §2)

[Dig. XI.
vu. 36.]

Digest,
XLVII.
xii. 4.

(IE. xix.
I. r.]

662 On the Law of War and Peace

the Pompey whom I mentioned to be slain as it were in the sight
of Judaea, at Cassius, a promontory of Egypt.

Still, if you consider the point of view of the Romans, nothing
in relation to the Temple in Jerusalem was done contrary to the law
of nations. Thus Josephus relates that the Temple was destroyed by
Titus, and adds that it was destroyed ‘in accordance with the law

of war’.

[Book III

IJ].—Enemy property that is consecrated may be destroyed or pillaged ;
a caution 15 added

What we have said of sacred things should be understood of
consecrated things as well; for these, also, do not belong to the
dead but to the living, being the possession of a people or of a family.
Therefore Pomponius in the passage cited above wrote that, just as
sacred places, so consecrated places ceased, when taken by enemies,
to be such; and Paul the jurist said: ‘The burial-places of the
enemy are not consecrated for us, and so we can use for any purpose
stones that have been removed from them.’

Nevertheless the principle laid down must be so interpreted
that the bodies of the dead are not to be mistreated, because that
is contrary to the law of burials; and the law of burials, as we have
shown elsewhere, was introduced by the law of nations.

IV.—How far deceit 1s permissible in these matters

At this point I shall briefly repeat, that enemy property may
be seized not alone by force, but that ruses which do not involve
breach of faith are held to be permissible; permissible, again, is
even the inciting of another to treachery. In truth the law of
nations begins to wink at these frequent minor wrongs, just as
municipal laws at harlotry and usury.

CHAPTER VI
ON THE RIGHT OF ACQUIRING THINGS TAKEN IN WAR |

L—W hat the law fm nature 15 regarding : the acquasttion of things taken
1h war

[472] ‘1. Besides the impunity among men in relation to
certain actions, which we have discussed up to this point, there is
also another effect characteristic of public. war according to the law
of nations.

According to the law of nature, by a lawful war we acquire
things which are either equal to that which, although it was owed
to us, we could not otherwise obtain,! or we inflict upon the guilty
a loss that does not exceed an equitable measure of punishment,?
as has been said elsewhere. By this law Abraham gave to’ God
a tithe ® of the spoils which he had taken from the five kings, as the
inspired writer of the Epistle to the Hebrews (vii. 4) explains the story
which is found in Genesis, xiv. In like manner the Greeks also, the
Carthaginians, and the Romans consecrated to their gods, such as
Apollo, Hercules, and Jupiter F eretrius, a tenth of their booty. —

Jacob, too, in leaving to Joseph a special legacy in preference
to his brothers, said: ‘I give thee a portion above thy brethren,
which I took out of the hand of the Amorite with my sword and
with my bow’ (Genesis, xlviii. 22). In this passage the words
‘I took? 4 apparently are to be understood, in the prophetic manner
of speech, as-‘I shall assuredly take’, ‘and there is attributed to
Jacob that which his descendants called by his name were to do, as
if the persons of the progenitor and his children were the same.
It is in fact more correct to take the meaning thus than to refer
these words, as the Jews do, to the pillaging of Shechem, which had
already been accomplished by the sons of Jacob; ‘for Jacob, as
became. his uprightness, always condemned this act as having been

associated. with treachery, as one may see in Genesis, xXxxiv. 30, and

xlix. 6. fo
', Moreover it is clear from other. passages also that God
approves of this right of spoil within the natural limits which:I have
mentioned. In His own ws when speaking. of. the city t that has |

VI viie2. Be a Wp wx [TL xx 28]
-: -% And victuals to his servants, and a part of the spoil-to his allies. See Josep on: this story
[Antiquities of the Jews, I. x..2], and what follows below, III. xvi. 3.
e Chaldaean commentator interprets this as accomplished through. prayers. to God, “who by
a wortaln exceptional benevolence had preserved’ Shechem for Jacob and his posterity. .
: 663

Deut , XX.
Id.

I Chron,
V. 20, 21,
22.

2 Chron ,
wv. 13.

Joshua,
xxii, 8.

[x Samuel,
xxx. 26 ]

On
Benefits,
WI xxxvut
[SIT
Xxxu11].

On Curses

i].

Xenophon,
On the
Tramung
of Cyrus,
V [VII. v.
73)-

Laws [I.
ii = 626 B].
Sophast
[= 219 ff.].
Comm. IV
[Mf emora-
balsa, IV.
il, 15].

On the Law of War and Peace [Book ITI

664

been stoned after the rejection of peace, God speaks thus: ‘ Even
all the spoil thereof thou shalt take for a prey unto thyself: and
thou shalt eat the spoil of thine enemies, which Jehovah thy God
hath given thee.’ The men of the tribe of Reuben, of Gad, and part
of the tribe of Manasseh are said to have conquered the Ituraeans
and their neighbours, and to have taken much spoil from them ; and
the reason is given, that they had called upon God in the war, and
He had listened to them with favour. It is likewise recorded that
the pious king Asa, after calling upon God, won both a victory and
spoil from the Ethiopians, who were harassing him in an unjust war.
The result is all the more noteworthy, because in these cases force
was resorted to, not by a special warrant, but by a right common
to all.

3. Joshua, again, when following with his blessing the very
men of the tribes of Reuben, Gad, and a part of the tribe of Manasseh,
whom I have mentioned, said: ‘ Divide the spoil of your enemies
with your brethren.’? And David, when he sent to the Jewish elders
spoils won from the Amalekites, gave value to the gift in saying:
‘Behold, a present for you of the spoil of the enemies of Jehovah.’

In fact, as Seneca said, for soldiers it is perfectly fair to enrich
some one with spoils taken from the enemy. Divine laws also
regarding the division of booty are to be found in Numbers, xxxi. 27.
Philo says that it is among the curses of the law that the land should
be harvested by the enemy, whence follows ‘ famine for friends, but
abundance for the foe’.

Il. —W hat the law of nations is ; evidences are cited

1. By the law of nations not merely he who wages war for
a just cause, but in a public war also any one at all becomes owner,
without limit or restriction, [473] of what he has taken from the
enemy. ‘That is true in this sense, at any rate, that both the possessor
of such booty, and those who hold their title from him, are to be
protected in their possession by all nations; and such a condition
one may call ownership so far as its external effects are concerned.

In Xenophon Cyrus says: ‘It is an eternal law among men
that, whenever a city of the enemy is taken, their property and
money belong to the captors.’ Plato said: ‘ All goods of the con-
quered become the property of the conqueror.’ Elsewhere, among
the quasi-natural modes of acquisition, he places that ‘ by warfare ’,
which he also calls ‘ by pillage’, ‘ by combat’, and ‘ by strength of
hand’. In this matter Plato has the approval of Xenophon, whom
I have mentioned. In Xenophon’s work Socrates, by means of
questions, leads Euthydemus to the admission that it is not always

Chap. VI] On the Right of Acquiring Things taken in War 665

unjust to plunder, as when plundering is done to the detriment of
an enemy.

2. On the authority of Aristotle also we read: ‘ The law is
a sort of agreement, according to which things taken in war belong
to those who take them.’ Of the same purport is the saying of
Antiphanes [Antisthenes]: ‘One ought to pray that the enemy have
possessions without courage ; for in that case their possessions become
the property, not of those who have them, but of those who seize
them.’ In Plutarch’s Life of Alexander* we read: ‘ The possessions
of the vanquished should be, and should be called, those of the victor.’

The same author elsewhere says: ‘ The goods of those who are
conquered in battles lie as prizes for those who conquer.’ ‘The
passage is taken from the second book of Xenophon, On the Training
of Cyrus. King Philip in his Letter to the Athenians said: ‘ All these
cities we hold either because they were left to us by our ancestors
or because we have obtained possession of them by war.’ Aeschines
says: ‘If indeed, affer making war upon us, you took the city by
force of arms, you are in rightful possession of it, since you have it
by the law of war.’

3. In Livy Marcellus says that what he took from the Syracusans
he took by the law of war.2) The Roman envoys said to Philip with
regard to the cities of Thrace and other cities that, if he had taken
them in war, by the law of war he would hold them as the reward
of victory ; and Masinissa declared that he held by the law of nations
the territory that his father had taken in war from the Carthaginians.
Likewise, in Justin, Mithridates said: ‘He had not withdrawn his
son from Cappadocia, of which, as victor, he had taken possession
by the law of nations.’

Cicero states that Mitylene had come into the possession of the
Roman people ‘ by the law of war and the right of victory’. He says
also that some things began to be private property either by taking
possession of that which was without an owner, or by war; that is,
in the latter case things became the property of those who obtained
them by victory. Dio Cassius affirms: ‘The possessions of the
conquered fall to the victors.’ Even Clement of Alexandria says that
the property of enemies may be carried off and acquired by the
law of war.

4. ‘What is taken from the enemy, by the law of nations
becomes at once the property of those who take it,’ says Gaius the

1 In the same work [xxxii=p. 684 4]: ‘ Conquerors acquire also for themselves the things which
belong to their enemies.’ .

2° [487] Diodorus Siculus, Excerpta Petresciana, no. 467 [Excerpta de Virtutibus et Vitits, i= p. 323],
says: ‘What is acquired by arms and won by the law of war is not to be given up.’ In Agathuas,
Book EI [I. v], the Goths said of Theodoric, afiter he had conquered Odoacer: ‘ He held by the law of
war all that had belonged to Odoacer,’

Polstics, I
[v1].

[In Sto-
baeus, liv.
4r.]

[xx=
p. 6764]

[II. iui. 2.)
[Demo-
sthenes,
Ovations,
xl. 22=
p 164.]
On the
Badly
Conducted
Embassy
[xxx11i].
[XXVI.
xxxi.9Q.]

Livy,
XXXIX
[xxix 2].
XXXIX
[XL. xvil.
4].
XXXVIITI
[v. 6].

A gaimst
Rullus, II
[xv1. 40].
On Dutves,
I [vi1. 22].

[XLI. lvi.]
Stromata,

I [xmii.
157].

Dig. XLI.
i.5.§ 7.

Institutes,
II i [17].
Anistotle,
Politzcs,
I vii.

Dig. XLL
u.z §1.

Greek
History,
III [Hel-

lentea, III.

i. 26 ff.].

Deg XLI.
l. 44.

Digest,

XLIX, xv.
19- § 3; 30.

Digest,

XLIX. xv.

5. § x;
Inststutes,
IL. i. § 17.
[Digest,
XLIX. xv
5. §x]

Insistutes,
loc. crt. 3
Dg. XLI.
1. 5. § 7.

666 On the Law of War and Peace

[Book III

jurist. Theophilus, in the Greek Institutes, calls this a ‘natural
acquisition ’, in the sense in which Aristotle said ‘ acquisition by war
is a method according to nature’. The reason doubtless is that the
bare fact, not the cause, is held in view, and in the fact the right
has its origin.

With precisely similar meaning Nerva the Son, as the jurist Paul
relates, used to say that the ownership of things arose from natural
possession, and that a trace of this remains in relation to those things
which are taken on land, in the sea, or in the air; likewise in respect
to the things taken in war, all of which become at once the property
of those who were the first to take possession of them.

5. Furthermore, what is taken from the subjects of an enemy
is also considered as taken from the enemy. Thus Dercyllides argues
in Xenophon, [474] that since Pharnabazus was an enemy of the
Lacedaemonians, and Mania was a subject of Pharnabazus, the
property of Mania stood in such a relation that it could rightfully
be seized, according to the law of war. -

II].—W hen a thing capable of being moved may be held to have been

captured, according to the law of nations

1, In this inquiry in regard to war, however, the nations have
agreed that he is to be understood as having captured a thing who
retains it in such a way that the original possessor has lost probable
expectation of regaining it, or so that the thing has escaped pursuit,
as Pomponius says in a similar inquiry. In the case of things that
are movable, this principle is so extended that such things are said
to have been captured when they have been brought within the
borders, that is to say, the defences, of the enemy.

A thing in fact is lost in the same manner by which it returns,
by postliminy ; it returns when it begins to be within the borders
of the state, and that is elsewhere explained as within the defences.
Paul says clearly, with regard to a man, that he is lost when he has
gone outside of our frontiers ; and Pomponius explains that a captive
in war is he whom the enemy have taken from among our men and
brought within their own defences. Such a man, before he is brought
within the defences of the enemy, remains a citizen.

2. Now as regards this aspect of the law of nations, the same
reasoning was applied to a man and to a thing. Whence it is easy
to understand that the statement elsewhere made, that captured
things immediately become the property of those who capture them,
should be understood as implying the condition that possession con-
tinue up to this point.

Hence it seems to follow that on the sea ships and other things

Chap. VI] On the Right of Acquiring Things taken in War 667

may be considered as captured only when they have been brought
into dockyards or harbours, or to the place where a whole fleet is
stationed ; for then recovery begins to appear hopeless. But in the
more recent law of nations we see the doctrine introduced among
European peoples that such things may be considered as captured
when they have been for twenty-four hours? in the power of the
enemy.

IV.—W hen territory may be held to have been captured, according to
the law of nations

1. Nevertheless territory is not considered as captured at the
moment it is occupied. While it is true that that part of a territory
which an army has invaded in great force is temporarily possessed
by it, as Celsus has noted, still such possession is not sufficient for
that effect which we are discussing, for which secure possession is
required. The Romans were so far from considering as lost the land
outside the gate which Hannibal was occupying with his camp, that
at that very time it sold at a price no lower than before. Therefore
only that territory will be regarded as captured which 1s so sur-
rounded by permanent fortifications that the other party will have
no access to it openly unless these have first been taken.

2. The origin of the word ‘territory’ as given by Siculus
Flaccus from ‘ terrifying the enemy’ (zerrendis hostibus) seems not
less probable than that of Varro from the word for ploughing (terendo),
or of Frontinus from the word for land (terra),? or of Pomponius the
jurist from ‘ the right of terrifying ’ (terrend1 ture), which is enjoyed
by the magistrates. So Xenophon, in his book On Taxes, says that
the possession of territory in time of war is retained by means of
fortifications, which he calls ‘ walls and entrenchments ’.

V.—Property which does not belong to the enemy is not acquired by war

This also is clear: In order that something may become ours
by the law of war, it must belong to the enemy. Those things which
are in the enemy’s possession, to be sure, in their towns, for example,
or within their fortifications, but of which the owners are neither
subjects of the enemy nor hostilely inclined, cannot be acquired by
war. It has been shown, among other things, in a passage of Aeschines

1 That this custom is observed on land also may be learned from De Thou, Book CXIII, on the
year 1595. The rule is derived from the Germanic laws, and follows the precedent which these
people, not without reason, had established for themselves in regard to a wounded wild animal, as in
the Law of the Lombards, I. xxii. 6. Alberico Gentili, Hispanica Advocatio, I. ii, says that the same
tule is observed in England and in the kingdom of Castile.

2 [Grotius seems to have misread a passage of Godefroy’s note on Digest, L. xvi. 239, which states
that Frontinus derived it from terrendts hostibus, Cujas from terra.]

Consolato
del Mare,
eclxxxiu.
and
eclxxxvil;
Constitu-
teons of
France,
XX, xil.
24

Cornelius
a Lapide,
On Gene-
StS, XLV ,
Molina,
disp. 118.
Dig XLI.
11. 18.
Livy,
XXVI
[x1. 6].

[p 3, edit.
Goes. ]
[On the
Latin
Language,
V.xx]
[Deg. L.
XVi. 230,
§ 8.]

f1V. xis
f.}

[On the
Badiy
Conducted
Embassy,
XXxiil.}

Consolato
del Mare,
ccl xxiii.

judges, Xi.
23, 24, 27.

r Sam,
XXX. 20.

668 On the Law of War and Peace [Book III

previously cited, that Amphipolis, which was a city of the Athenians,
could not have become the property of Philip as a result of Philip’s
war against the citizens of Amphipolis. For this would be unreason-
able, and the right of changing ownership by means of force is too
offensive to merit wider application.

VI.—W hat of goods found in ships of the enemy ?

Consequently the current statement that goods, which are found
in ships of the enemy, are to be considered as belonging to the
enemy,! should not be accepted as if it were a fixed provision of the
law of nations, [475] but as indicating a certain presumption.
This presumption, however, may be overthrown by valid proofs to
the contrary.

In our native country of Holland formerly, in the year 1438,
when war was raging with the Hanseatic towns, a decision to that
effect was reached at a full session of the Senate, as I have found, and
from that decision the provision passed into a law.

VII.—Things which our enemies have taken from others by war become
ours according to the law of nations ; this 1s attested by evidence

1. The principle, however, is beyond dispute—if we have
reference to the law of nations—that what has been taken by us
from the tnemy cannot be claimed by those who had possessed it
before it came into the possession of our enemy, and had lost it in
war. ‘The reason is that the law of nations, through external owner-
ship, first made our enemy the owner, and then us.

By this right, among others, Jephtha defends himself against the
Ammonites, because that territory, which the Ammonites claimed,
had by the law of war passed from the Ammonites; just so another
part also had passed from the Moabites to the Amorites, and from
the Amorites to the Jews. Likewise David? regarded as his own,

1 But the ships of friends do not become prizes because they are carrying goods of the enemy,
unless this happens with the consent of the owners of the ship, Digest, XX XIX. iv. 11; Rodenicus
Suarez, De Usu Marts, consilium 11, no. 6.

In this sense I think we must interpret the laws of France, which render vessels liable to seizure
because of their goods, and goods because of the ships which carry them. Such are the laws of Francis I
issued in 1543, chap. xlii; of Henry III, issued in March, 1584, chap. lxix; and the Portuguese Law,
Book I, tit. xvin.

Elsewhere the goods themselves are alone liable to seizure; Meurs, Danish History, II. Thus
m. the war between the Venetians and the Genoese Greek ships were searched and any enemies who
were concealed in them were removed ; Gregoras, IX [IX. v]. See also Krantz, Saxonica, II, and
Alberico Gentili, Hispantca Advocatio, I. xx

2 And so Rezin, king of Syria, gave the city Eloth, which had belonged to the Idumaeans, not to
the Idumaeans but to the Synans, for them to dwell there, according to the reading of the Masorites,
2 Kings, xvi. 6.

Chap. VI] On the Right of Acquiring Things taken in War 669

and distributed, what he himself had taken from the Amalekites, and
the Amalekites had taken from the Philistines.

2. According to Dionysius of Halicarnassus, when the Volscians
demanded their former possessions, Titus Largius in the Roman
Senate expressed his opinion thus :

1

We Romans consider as our fairest and most lawful possessions those which we have
taken and hold by the law of war; and we would not foolishly suffer valour to be for-
gotten by surrendering these possessions to those who have lost them. Such possessions
we think are not only to be shared in by our citizens who are living, but are also to be
left for posterity. If we allow ourselves to be deprived of what we now have, we shall
injure ourselves in the same manner in which we injured the enemy.

Similar was the answer given by the Romans to the Aurunci:
‘We Romans think that with perfect right one may hand down, as
his own, to his descendants, whatever he has acquired by courageously
wresting it from the enemy.’ Elsewhere, in reply to the Volscians,
the Romans speak as follows :

But we consider as our best possessions those which we have taken by conquest in
war. We were not the first to establish this right, nor do we think that it is a law of
men rather than of the gods; but we know that all, both Greeks and barbarians, make
use of it, and we would not yield to you anything in cowardice, nor abandon what we
have won in war. For it would be the utmost disgrace if any one through cowardice
and folly should be deprived of what had been won by courage and bravery.

There is a similar thought in the reply of the Samnites: ‘Since
we have acquired these things in war, which is a perfectly fair law of
acquisition.’

3. After relating that the land near Luna was divided by the
Romans, Livy speaks of it thus: ‘ This land had been taken from
the Ligurians ; it had belonged to the Etruscans before the Ligurians.’
By such a right Appian notes that the Romans retained Syria, and
did not restore it to Antiochus Pius, from whom Tigranes, an enemy
of the Romans, had taken it.? Justin, quoting from Trogus, repre-
sents Pompey as replying thus to the same Antiochus: ‘Since
Pompey had not taken the kingdom from Antiochus when Antiochus
held it, inasmuch as Antiochus had yielded it to Tigranes, Pompey

1 Plutarch, Romulus [xxv= p. 33], tells the same story with regard to Veli: ‘The people of Veii
began the war with the demand that Fidenae should be restored to them, just as if it belonged to them.
This was not only unjust but also ridiculous, seeing that they had not aided Fidenae when in distress
and engaged in war, but had permitted the population to perish, and now laid claim to the houses and
fields from those who held possession of these as the result of war.’

2 Appian [Syrian Wars, viii. 49] speaks as follows: ‘It was not right that the Seleucidae, who
had been dispossessed by Tigranes, should occupy Syria, rather than the Romans who had conquered
Tigranes.’ And elsewhere [Mithridatic Wars, xv. 106]: ‘ He believed that since he had dnven the
conqueror of Antiochus from this land he had thereby acquired it for the Romans.’ Antiochus himself,
in Polybius, Selectrons on Embassies, \xxii [=p. 307], ‘ thought that the possession acquired in war was
the surest and most honourable’.

[Roman
Antiqut-
ties, | VI
[xxxv1].

[Dion.
Hal., VI.
XXXII ]

VII [VIII.
x]

Selections
on Embas-
sues

[p. ro].

XLI [xiii
5]

Mtthrida-
tic Wars
[xv. 106].

XL fiz. 4]

[Apptan, |
C1v1l Wars,
I [iv. 29].

Bartolus,
On Dug,,
XLIX.
xv. 28;
Alexander
and Jason,
On Dig,
XLI. il. 1;
Angelus,
On Inst.,
II 1.§ 17;
Panormi-
tanus, On
Decreials,
II, xxiv.
13, 00. 7;
Thomas
Gramma-
ticus, Dect-
siones Nea-
politanae,
Ixx1, no.
175
Martinus
Laudensis,
De Bello,
qu 4.

[1II. vi.
2. 4.]

On the Law of War and Peace [Book III

670

would not give tohim what [476] he did not know how to defend.’
Likewise the Romans held as their own those parts of Gaul * which
the Cimbri had wrested from the Gauls.

VIII.—The opinion, which holds that things taken from the enemy
become the property of the individuals who capture them, 15 refuted

It is a more serious question, Who acquires the goods of the
enemy in a public and formal war: the people itself or the individuals
who are of it or within it!

On this point the more recent interpreters of the law hold very
diverse opinions. The majority of them, having read in the Roman
law that captured things become the property of those who take
them, but in the collection of canons that booty is divided according
to the will of the people, have declared—one following the other,
as is usually the case—that in the first place and by the law itself
things captured belong to the individuals who lay hands on them,
but that they are to be assigned to the commander for distribution
among the soldiers. Since this view is as widely current as it 1s false,
we must refute it with so much the greater pains, that it may serve
as an example of how little trust, in controversies of this sort, is to
be placed in such authorities.

However, it is not to be doubted that by agreement of the
nations either practice may be established; that is, that the owner-
ship of captured goods may fall to the people which wages the war,
or to any one who lays hands upon them. But we are inquiring what
their will has been; and we say that the nations have decided that
the property of enemies should stand to enemies in the same relation
as ownerless property, as we have already indicated from the saying
of Nerva the Son.

IX.—By the law of nature both possession and ownership may be acquired
through another

1. Things which are ownerless, to be sure, become the property
of those who take them, but they become just as much the property
of those who obtain possession of them through others as of those
who take them for themselves. Consequently not only slaves and
children, but also free men, who in fishing, fowling, hunting, or
gathering pearls, have given their assistance to others, at once acquire

The Franks did not restore to the Romans the lands of Italy which they had received from the
Goths; Procopius, Gofhtc War, IV [IV. xxiv]. See what the king of Sweden says, in De Thou, Book
LXXVI, on the year 1582.

Chap. VI] On the Right of Acquiring Things taken in War 671

what they have taken for those persons whom they serve. Modestinus
the jurist was right in saying: ‘What is acquired naturally, as
a possession, we acquire through any person at all, if we wish to
possess it.’

In his collected Sententiae Paul says: ‘We acquire possession by
means of the will and of the body; by our own will, that is, but
by either our own body or that of another.’ The same writer thus
comments on the Edict: ‘ We acquire possession through an agent,
a guardian, or an executor’; and he explains that this happens
when they act with the intention of rendering us such service. Thus
among the Greeks, those who competed in the Olympic games
acquired prizes for those by whom they were sent. The reason is
that naturally one man by his own volition becomes the instrument
of another’s will, as we have also said elsewhere.

2. Therefore the distinction in regard to acquisitions, which
is handed down as between free and unfree persons, belongs to the
civil law, and properly applies only to acquisitions under the civil
law, as appears from the passage cited from Modestinus. Never-
theless the Emperor Severus afterward made such acquisitions
approach more closely to the type of natural acquisitions, not in the
interest of utility only, as he himself claims, but in that of juris-
prudence also. If, then, we disregard the civil law, the principle
holds good that one may do through another what he can do himself,
and that the effect is the same whether any one acts for himself or
through another.

X.—The distinction between hosttle acts as public or private

In our investigation, therefore, we must distinguish between acts
of war that are truly of a public character, and private acts which
are committed on the occasion of a public war. By private acts
a thing is sought primarily and directly for private persons; by
public acts, for the people.

It was, then, in accordance with the law of nations that Scipio,
as Livy relates, treated thus with Masinissa: ‘Syphax has been
beaten and captured under the auspices of the Roman people. In
consequence he himself, his wife, his kingdom, land, towns, the men
who inhabit them, in short whatever belonged to Syphax, are the
spoil of the Roman people.’ In the same manner Antiochus the
Great argued that Coele Syria had been acquired by Seleucus and
not by Ptolemy, on the ground that the war was the war of Seleucus,
to whom assistance had been rendered by Ptolemy. The account is

in Polybius, Book V.

1569-27 ZZ

Dig. XLI.
i. 53.

V.1i [8 11.

Dig. XLI,
li. I. § 20.

[I. v. 3.]

Digesi,
XLIV.
v1. 56
Dig. XLV.
i. 38. § 17.

Code, VII.
XXXil. I.
Sext, V.
x13.68 and
72.

Livy,
XXX
[xiv.g—zo].

[V. Ixvii.]

[Dagest,
XLIX.
xv. 20 |

Dig. XXI.
li. II

Dig. VI. in.

15. § 1.

[I. i. 7.]

(II. xix.
140.]

[xlix. 128.]

Dig. XLI.
i. 51. § 2.

On the Law of War and Peace [Book III

672

[477] XI.—Territory 1s acquired for a people, or for him whose

war tt 15

1. Landed property is not usually taken except by a public act,
upon the entry of an army and the establishment of garrisons. ‘T’hus,
in the opinion of Pomponius, ‘ Land that has been taken from the
enemy is public property ’, that is, as he explains in the same passage,
‘it is not classed as booty’, if we take the word booty in its strict
sense. In Procopius,! Solomon the praetorian prefect said: ‘It is
not unreasonable that captives and other things should go to the
soldiers as booty ’—on the understanding that this is done by public
consent, as we shall explain below—‘ but that the land itself should
belong to the Emperor and the Roman state.’

2. Thus among the Jews® and the Lacedaemonians land taken
by force was divided by lot. So the Romans either kept captured
territory in order to lease it, in some cases leaving a small portion
to the original possessor as a mark of honour; or they sold it in
parcels, or assigned it to colonists, or made it subject to taxes. For
such disposition of conquered territory there is abundant evidence
in the laws and histories, and in the treatises of the land-surveyors.

In the first book of his Civil Wars Appian writes: ‘ In conquering
Italy by war, the Romans confiscated a part of the land.’ In the
second book he says further: ‘ Whenever they conquered an enemy,
they did not take away all his land, but seized a part of it.’ Cicero,
in his speech For [On] his House addressed to the pontiffs, notes
that territory taken from the enemy was in some cases consecrated
by the victorious commander, but at the command of the people.

XII.—Movables, or things capable of motion, when captured by a private
act, become the property of the individuals who take them

1. But things which are movable, or are themselves capable of
motion, if captured are taken either in the public service or outside
of it. If they are taken outside of the public service, they become
the property of the individuals who take them. To this principle
should be referred the statement of Celsus: ‘Goods of the enemy
which are in our midst are not public property but belong to those who
have seized them.’ By the words ‘ which are in our midst’ we are
to understand ‘ which are found in our midst after war has begun’.

1 Vandaltc War, II [II. xiv]. See also what follows there. Even Severus granted to the generals
and soldiers on the frontiers lands taken from the enemy, [488] as Lampridius notes [Alexander
Severus, lvili]. In the Swiss constitution it is provided that towns and fortresses that have been cap-
tured fall to the cantons in common, according to many passages of Simler.

* Among the same people the king merely received as much of the captured territory as each
tribe ; this is indicated in the Digest of the Talmud, title On the King.

Chap. VI] On the Right of Acquiring Things taken in War 673

The same practice was observed with regard to men also, at the
time when, in respect to the principle stated, captive men were
classed with captured property. On this point a passage of ‘Trypho-
ninus is noteworthy: ‘ But those who, in time of peace, have arrived
among other peoples, if war suddenly breaks out, become the slaves
of those among whom, now their enemies, it is their fate to be
caught >; for we must here read ‘fate’, and not ‘act’ or ‘ agree-
ment’ as the texts have it. This result is ascribed by the jurist to
fate because they fall into slavery through no desert of their own.*
To attribute such things to fate is common. An example is the line
of Naevius: ‘At Rome by fate the Metelli are made consuls,’ that
1s, without merit of their own.

2. From the same principle it follows that if soldiers capture
anything when they are not in formation or engaged in executing
an order, but when they are acting under a general right or by mere
permission, this they at once acquire for themselves; for they do
not make the capture in the capacity of servants. Such are the
spoils which are torn from an enemy in single combat; such also
are spoils seized by soldiers in free and unauthorized raids at a distance
from the army—beyond ten miles the Romans used to say, as we
shall see shortly. This sort of booty the Italians at the present day
call ‘ raid-spoil’ (correrza), and distinguish from ‘ sack’ (botttno).

XITI.—Movables, or things capable of motion, when captured by a private
act, do not become the property of individuals tf the municipal law
determines otherwise

But our statement, that by the law of nations things movable
or capable of motion are directly acquired by individuals, must be
understood as applicable to the law of nations as unmodified by any
municipal law covering the matter. Each people may in fact establish
other rules valid over its citizens, and may thus forestall individual
ownership; as we see is done in many places with regard to wild
animals and birds. In like manner it may also be provided by a law
that goods of enemies which are discovered in our midst should
become public property.

XIV.—Things captured by,a public act become the property of the

people or of him whose war it ts

1. With regard to those things, however, which are captured
by an act of war, the situation is different. In this case [478]

1 So Servius, On the Aeneid, I [I. 32], ‘ Driven on by fate’, also contrasts these two Ideas: ‘ Virgil
seeks to ascribe nothing to the ‘deserts of the Trojans, but everything to the fates.’

ZZ2

Digest,
XLIX xv.
I2.

[Asconius
Pedianus,
On Cicero's
Against
Verres, II.
i. 29.]

Saliceto,
On Code,
VIII 1.2;
Thomas
Gramma-
ticus, De-
cistones
Neapolita-
nae, 1xx1,
no. 18.

(Ziad, I
125 ]

[Ilad, IX.
330 ff.]

(Lad, I.
163 f.]

(had, IX.
279 ff.]

Aeneid, IT
[762 ff.].

Plutarch,
Arsstides
[v=p.
32I Di].
Herodotus,
IX (lxxx
ff.].
Plutarch,
Lysander
[xvi= D-
442 A].

On the Law of War and Peace [Book III

674

individuals represent the person of the state, and act in its stead ;
hence through them, unless a statute otherwise decrees, the people
obtains both possession and ownership, and transfers this to whom-
ever it wishes. Because this view is in direct conflict with common
opinion, I feel that I must cite proofs more fully than usual from
the examples of outstanding peoples.

2. I shall begin with the Greeks, whose practice Homer describes
in more than one passage :

But the spoil which we took from the cities now has been divided.

In the same poet Achilles, speaking of the cities which he had
stormed, says :

From all of these much rich spoil did I ravish,

And all I brought and gave to Atreus’ son;

But he by the swift ships remained behind,

And, taking it, shared some with others, but kept much.

Here Agamemnon is to be regarded, on the one hand, as at that
time ruler of all Greece, and so taking the place of the people, and
by that right dividing the booty, with the approval of his council ;
and on the other as filling the post of general, hence obtaining
a greater share than the rest from the common store. The same
Achilles addresses Agamemnon himself as follows :

Never have I with you of spoil an equal share,
When Grecian valour has o’erthrown a Trojan town.

Elsewhere Agamemnon offers to Achilles, by public agreement, a ship
full of bronze and gold, and twenty women, to fall to his lot from
the spoil. Upon the capture of Troy, as Virgil narrates :

Phoenix and hard Ulysses chosen guards

Watched o’er the booty: hither from all sides

The spoil of Troy snatched from the blazing shrines,
With tables of the gods and mixing bowls

Heavy with gold, and captured raiment, high

Is heaped.

In like manner at a later time Aristides guarded the booty from
Marathon. After the battle at Plataea it was strictly forbidden that
any one should remove anything from the spoil on his own authority ;
later the spoil was distributed on the basis of the deserts of the
several peoples. When Athens afterward was conquered, the booty
was transferred by Lysander to the public treasure. Among the
Spartans? the name of a public office is ‘ sellers of booty ’.

1 While Agesilaus was operating in Asia, Spithridates had abstracted booty from the camp of
Phamabazus, which had been captured ; but when an inquiry was set on foot by the Lacedaemonian
Erispides he took flight [Plutarch, Agesilaus, xi=p. 601 F].

Chap. VI] On the Right of Acquiring Things taken 1m War 675

3. If we come to Asia, the Trojans, as Virgil teaches us, were
accustomed ‘to draw lots for booty’, as is usually done in dividing
things held in common. At other times the decision to divide booty
rests with the commander; and by this right Hector, upon the
express stipulation of Dolon, promises him the horses of Achilles, so
that you may perceive that the right of acquiring ownership was
not in the mere act of seizure.

Spoil was brought to Cyrus, the conqueror of Asia; and like-
Wise, at a later date, to Alexander. If we look to Africa, the same
custom is found. Thus what was captured at Agrigentum, [479]
and in the battle of Cannae, and elsewhere, was sent to Carthage.
Among the ancient Franks, as we see from the History by Gregory
of Tours, things which had been captured were divided by lot? ;
and the king himself had nothing else from the spoil than what the
lot assigned to him.

4. But the Romans are more worthy of our consideration in
respect to their examples in a degree commensurate with their
superiority to the other nations in the art of war. Dionysius of
Halicarnassus, a most careful observer of Roman customs, informs
us on this point as follows: ‘ The law ordains that whatever has
been captured from the enemy in battle becomes public property,
in such a way that not only no private person may become owner
of it, but not even the commander of the army himself. The
quaestor takes possession of the things captured and auctions them
off, and deposits the money in the public treasury.’ These are the
words of those who accuse Coriolanus, and they are to some extent
framed to arouse ill-will towards him.

XV.—Nevertheless in such things some right of decision 1s usually
granted to commanders

While it was true that the people were the owners of the spoil,”
it was not less true that, in the time of the free republic, the com-
manders were entrusted with the decision in regard to its disposal.®
In Livy, Lucius Aemilius says: ‘Cities that have been captured,
not surrendered, are sacked, and nevertheless the decision in regard
to them belongs to the commander, not to the soldiers.’

1 This you find in Gregory of Tours, IT. xxvii; in Aimoin, I. xii, and in the Epitome, edited by
Freher, chap. ix. The same custom is an old one among other peoples also. Servius, On the Aeneid, III
[III. 323], ‘She did not endure any casting of lots’, says: ‘ Because captives and spoil were divided
by lot among the victors; as: “to draw a lot for spoil’’.’

With respect to the collecting of the spoil for the common use, and the justification by oath among
the Swedes and Goths, see Johan Magnus, XI. xi [Barbeyrac believes this a misquotation].

2 See also on this point Simler, in the Helvetica.

3 Polybius, in the Excerpia Petresciana [p. 1454], says of Lucius Aemilius Paulus: ‘ Although
he had become master of the entire kingdom, and could dispose of everything at his pleasure, he sought
nothing for himself.’

[A enead,
IX. 268.]

Homer,
Iliad, X
[321] ;
Euripides,
Rhesus
[x82].
Pliny,
[Nat.H1s ,]
XXIII ui
[XXXITI.
111}.
Plutarch,
Alexander
[xxxiv=p.
685 BH];
Curtius
[VITI. 1Vv] ;
Diodorus,
XVII (Ixvi
and Ixx] ;
Strabo,
XV (111. 6].
Diodorus,
XIII [xc].
Livy,
XXIII
[xii].
Gregory of
Tours, II.
xvii [II.
XXvii].
[Dion.
Hal., VII.
1xii1.]

XXXVII
[xxxii. 12].

Livy,
V (xxi,

1].

XIII. xxiii
(XEII.
XXxv].

(IV. liii.
10.]

IT
[xxxvil].

Letters, II.
vu [II.
XV1i. 4].

[The Two
Bacchises,
1075.]
(Captives,
III,]

On the Law of War and Peace [Book III

676

This right of decision, which custom vested in the generals, they
themselves at times referred to the Senate, as Camillus did, in order
that they might be the more free from all suspicion. The com-
manders who retained the right are found to have made varied use
of it, according as they were influenced by scrupulousness, regard
for their reputation, and ambition.

XVI.—Commanders may turn booty over to the public treasury

1. Generals who wished to be, or wished to be believed to be,
most scrupulous, did not touch the booty at all.+ If there was money
in the booty, they ordered that it should be taken over by the
quaestor of the Roman people; if there were other things, they
ordered that these be auctioned off by the quaestor; and Favorinus,
in Gellius, thinks that the money procured by such means was called
‘proceeds of spoils’ (manubiae). Such money was placed by the
quaestor in the treasury, after having been first publicly exhibited
if the victory had warranted a triumph.

In the fourth book of Livy it is said of the consul Gaius Valerius :
‘There was considerable booty from the constant raids, because all
the loot had been brought together in a safe place. The consul
ordered the quaestors to sell this booty at auction, and deposit the
proceeds in the treasury.’ The same thing was done by Pompey,
with regard to whom the words of Velleius are: ‘ The treasure of
Tigranes, in accordance with Pompey’s usual practice,” was placed
in the hands of the quaestor and entered in the public accounts.’
Marcus Cicero pursued the same course, and in his letters to Sallust
he writes thus of himself: ‘ Of the spoil I have taken, no one except
the city quaestors, that is, the Roman people, has touched or will
touch a quarter of a penny.’ This was the practice especially in the
ancient and better days, and Plautus has this in mind when he
speaks thus :

Now all this booty to the quaestor I shall take.

In like manner, of captives he says :
Whom I bought from the quaestors, out of the spoil.

2. But others sold the booty themselves, without the aid of the

1 ‘Manius Curius swore that he had touched nothing from the booty except a vessel of beechwood
with which to offer sacrifice’ [Phny, Natural History, XVI. xxxviii]. The author of the De Virts
Iltusiribus [Aurelius Victor], in speaking of Mummius [chap. clx], says: ‘ He robbed Corinth of statues
and paintings, but, although he filled all Italy with them, he collected nothing in his own house.’

Of the Aemilius Paulus just referred to, Plutarch [Aemil:us Paulus, xxvii=p.270D] says: ‘Men
bestowed no less praise upon his generosity and his magnanimity, because he did not wish even to
mspect the great quantity of gold and silver collected from the king’s treasures, but gave it to the
quaestors to transfer to the public treasury.’

* As on many occasions. See what is cited from Lucan in the following paragraph [TII. vi. 17. 4].

Chap. VI] On the Right of Acquiring Things taken in War 677

quaestor, and deposited the proceeds in the treasury, as we may gather
from Dionysius of Halicarnassus in the words which follow [in the
passage just cited]. Thus we read that in early times, after the defeat of
the Sabines, the spoil and the captives were sent to Rome by King
Tarquin. Thus, again, it is related that the consuls Romulius and
Veturius sold the booty because of the poverty of the treasury, although
the army was annoyed thereat.

Since in fact we frequently find statements showing how much
each of the generals deposited in the treasury either through himself
or through his quaestor, from Italian, African, Asiatic, Gallic, and
Spanish triumphs, [480] there is no need to accumulate examples.
Rather is this to be noted, that the booty, or part of it, was given at
times to the gods, at times to the soldiers, and at times to others.
To the gods either the articles themselves were given, such as the
spoils which Romulus hung in the temple of Jupiter Feretrius, or
the money derived from them, as when from the proceeds of the booty
from Pometia ['Tarquinius] Superbus built the temple of Jupiter on
the T'arpeian mount.

XVII.—Or commanders may divide the booty among the soldiers ; in
what way such a division may be made

1. The early Romans regarded the granting of the spoil to the
soldiers as a form of bribery. Thus Sextus, the son of Tarquinius
Superbus, but an exile at Gabii, is said to have given booty to his
soldiery with the object of securing power for himself in this way.
In the Senate Appius Claudius attacked a largess of similar character
as being new, prodigal, and ill-considered.

The booty granted to the soldiery is either divided or left for
pillage. It may be divided on the basis of pay or of merit.1_ Appius
Claudius desired that the booty be divided on the basis of pay, in
case he should be unable to secure the transfer of the money derived
from its sale to the treasury. Polybius carefully explains the whole
system of distribution. For full days, or for watch periods, a half of
the army, or a smaller portion, was regularly sent to collect booty.
Each man was ordered to bring into camp what he had found, that
it might be equally divided by the tribunes; and a share was given
both to those who had guarded the camp (a practice which, we read,
was sanctioned also by King David among the Jews, and which from
that source passed into law) and to those who had been absent on
account of ill-health or assignment to details.

2. Sometimes the booty itself was not granted to the soldiers,

1 From Josephus, Antiquities of the Jews, Book III [III. ii. 5], we learn that this was done among
the Jews.

Livy, I
[kxxvil. 5].

Livy, ITI
[xxxi. 4}.

Dionysius
of Halicar-
nassus, II
[xxxiv].
Livy, I
{liti. 3].

Livy, I
{liv. 4].

Livy, V
[xx. 5].

Livy, V
(xx. 5].

X [xvi].

I Sam.,
XXX. 24.

Livy,
XLV
[xxxiv. 6,
xl, xliii. 6].

Livy
[XLV.

xl 5;
XXZlV. 5].

Suetonius,
Caesar
[Devus
Julius),
XXXVI11 ;
and Ap-
pian, Crvel
Wars, IT
[xv. ro2].
Livy
[Dion.
Hal , VI.
xclv].

[33 f.]

[Trojan
Women,
274 |

[Aeneid,
IX. 269 f J

[TX.
lxxx1.]
[Dion.
Hal.,] IV
[1].
[Selections
on Embas-
stes, p. 18.]

On the Law of War and Peace [Book III

678
but the money derived from it was given to them in place of the
booty ; this was often done on the occasion of a triumph.

This is the proportionate distribution that I find. A single
share was given to a foot-soldier, a double share to a centurion, and
a threefold share to a cavalryman. Sometimes a single share was
allotted to a foot-soldier, and a double share to acavalryman. Again,
a single share was given to a foot-soldier, a double share to a centurion,
and a fourfold share to a tribune and a cavalryman.’ In many cases
account was taken also of merit, as when Marcius was granted a share
from the booty of Corioli? by Postumius, because of his brave
conduct.

3. Without regard to the way in which the division was made,
the commander was allowed his selection*; that is, he was permitted
to take for himself, as first choice, as much as he chose, in other words,
as much as he considered fair. This privilege was at times accorded
to others also on account of their valour.* Euripides in his Trojan
Women, speaking of the women of Troy of high birth, says :

Outstanding women, who had been given to the chiefs
Of the Grecian host.

Of Andromache the same dramatist says :

Pyrrhus received that noble woman for himself.

In Virgil, Ascanius says of a horse:

Him, the shield, and the ruddy crest, from the lot
I shall exempt.

Herodotus relates that after the battle of Plataea, as choice
things, women, horses, and camels, were given to Pausanias. In this
way King Tullius received Ocrisia, the chief woman of Corniculum.
In Dionysius of Halicarnassus, Fabricius® says in an address to
Pyrrhus: ‘Of these things seized in war it was lawful for me to
take as much as I chose.’

1 To a tribune and a prefect of horse, says Appian, Civil Wars, II [II. xv. 102].
* See Plutarch, Corzolanus [ix and x=p. 218 A, B].
* See Leunclavius, Turkish History.
* Thus Nestor acquired a woman—
Exempted from the lot
By the gift of the Greeks.

[489] That is in the Jkad, XI [XI. 626f.]. Butin the Odyssey, XIV [XIV. 232 f.], Ulysses says :
Excellent Meneaeceus I received [Of this I’d choose what chanced to please my mind],
But after, by the lot, I much obtained.
Euripides says of Cassandra [Trojan Women, line 249] :
Her the elder son of Atreus made his special prize.

On what ‘was chosen’ from the spoil for the Athenian general Demosthenes, that is, was given him
by right of pre-eminence, see Thucydides, Book IT [III. cxiv].
* Whom Julian set as an example for himself and his soldiers; Ammianus, XXIV [XXTIV. iii. 5].

Chap. VI] On the Right of Acquiring Things taken in War 679

With this in mind Isidore, in discussing military law, mentions
‘ The disposition of the booty, the just division in proportion to the
rank [481] and services of individuals, and the portion of the prince’.
Tarquinius Superbus, as Livy has it, wished both to enrich himself
and to win over the affections of the people with spoil. Servilius in
his speech for Lucius Paulus says that he could have made himself
wealthy by a division of the booty. There are some writers, among
whom is Asconius Pedianus, who take the view that the term manubiae
more correctly designates this share of the commander.

4. But those commanders have won greater renown who, giving
up their right, took nothing for themselves from the booty. Such
was the Fabricius whom J have mentioned, who ‘ despised wealth,
even when acquired justly, in comparison with fame’; and this he
declared that he did after the example of Valerius Publicola and
some others.

These commanders were imitated also by Marcus Porcius Cato
in his victory over the Spaniards, when he declared that none of the
spoils of war would come into his hands, with the exception of those
things which he had consumed in food and drink; and yet he added
that he did not blame the commanders who had made use of the
privileges conceded to them, but that he preferred to rival the best
in point of virtue rather than the richest in point of wealth. Very
nearly the same praise was merited by those who took of the spoil
in moderation, as Pompey, who is praised by Cato in Lucan:

More than he withheld
Did he contribute.

5. Sometimes in making the distribution account was taken of
the absent also, as Fabius Ambustus decided at the capture of Auxur.
Sometimes, too, for some reason in such a distribution no account
was taken of certain persons even though they were present; this
was the case with the army of Minucius, in the dictatorship of Cin-
cinnatus.

6. Furthermore this right, which the commanders had enjoyed
under the old republic, after the fall of the republic appears from
Justinian’s Code to have passed to the masters of the soldiers; for
under the Code there are exempted from inclusion in the reports of
military exploits the largesses of movable objects or those capable
of locomotion. ‘These the masters of the soldiers grant to their
troops from the spoils of the enemy, whether in the actual conduct
of wars or in places in which they are known to be stationed.

7. But this kind of division in olden times was often exposed
to calumny, as though by this means leaders were seeking to win
the goodwill of individuals. On such grounds charges were brought

[Etymolo-
gies, V.vii.]

[I. Ivit. 1.]

Livy, XLV
[XXXV1L.
ro].

[On
Cicero’s]
Against
Verres, III
[I. lix.
154].

Plutarch,
Marcus
Cato [the
Elder, x=
P. 342 a].

[Pharsaha,
IX. 197 f.]

Livy, IV
[lix. 8].

Livy, III
[xxix. 2].

Code, VIII.
liti. 36. § x.

Dion.
Hal., VI
[xxx], and
VII (imu).

Livy, V
(xxx. 8].

Dionysius
of Halicar-
nassus,
VIT {Ixv].

Dion.
Hal., [IV
fl].
Livy, IV
[xlvi1. 4].
[Livy, V.
xx1 14.]
Dionysius,
IV; VI
[xx1x] ;
IX flv] ;
X [xxi].
Livy,
XLVI
[XLIV.
xiv. 4].
[Livy,
XLV.
XXXIV, 1.]
Appian,
Miuthrida-
tic Wars
xl. 85].
it lv.
85]

VI [V.
xx. 6].

On the Law of War and Peace [Book III

680

against Servilius, Coriolanus, and Camillus, that they had granted
largesses to their friends and clients from the public funds. In reply
they defended themselves on the ground of the public advantage,
‘ that those, who had shared in the undertaking, after having gathered
the fruit of their labours, might be the more ready to enter upon
other campaigns ’—if we may cite the words of Dionysius of Hali-
carnassus on this matter.

XVIII.—Or commanders may permit pillaging

1. I now come to pillaging. This was conceded to the soldiers
either in the devastation of a country, or after a battle, or after the
storming of a town, with permission to scatter at a given signal.
It was a practice rather unusual in early times, yet it did not lack
examples. ‘Tarquin gave over Suessa to his soldiers for pillage ;
Quintus Servilius, the dictator, the camp of the Aequians ; Camillus,
the city of Veii; the consul Servilius, the camp of the Volscians.
Also Lucius Valerius permitted pillaging in the land of the Aequians,
Quintus Fabius, after the rout of the Volscians, and after the capture
of Ecetra. Such pillaging was afterward permitted by others on many
occasions.

Upon the defeat of Perseus, the consul Paulus granted the spoil
of the beaten army to the infantry, and the booty of the surrounding
country to the cavalry. The same consul, in accordance with a decree
of the Senate, gave over the cities of Epirus ? to the soldiers to plunder.
When Tigranes was conquered, Lucullus® for a considerable time
restrained his troops from collecting spoils, but later, when victory
was assured, he yielded the right to plunder the enemy. Cicero, in
his first book On Invention, among the ways of acquiring ownership,
includes the capture of anything from the enemy, when a public
sale of this booty has not taken place.*

2. "Those who condemn this practice [482] say that hands
greedy for pillage ‘ will snatch away the rewards of brave warriors,
since it usually happens that the more slothful man takes to plunder ’,*
while all the bravest ‘ are wont to seek the chief share of toil and
peril ’—to quote the words of Appius in Livy. Not very different

1 As Sulla did in the case of Athens; Appian, Mithridaite Wars [vi. 38].

* Plutarch [Lucullus, xxix= p. 511 E] relates that he tured over Tigranocerta for his soldiers to
plunder, and besides gave to each man eight hundred drachmas from the spoil. Severus granted his
troops the plunder of Ctesiphon ; and likewise ordered the tribunes, officers, and soldiers to keep the
‘oot from - villages, as Aelius Spartianus records [Severus, xvi; Aelius Lampridius, Alexander

everus, lv].

Mohammed II promised his soldiery the people of Constantinople with the booty and slaves.

_ 3 Varro [On Farming, II. x] enumerates six ways by which one may lawtully become a pro-
prietor: through the acquisition of a lawful inheritance, through purchase, cession, usucaption, sale of
booty at auction, and public auction, when a person’s property is divided and sold.

« See what we shall cite from Procopius on ITT. vi. 24..

Chap. VI] On the Right of Acquiring Things taken in War 681

is the saying of Cyrus in Xenophon: ‘I am well aware that in pillag-
ing the worse element would get the greater amount.’

On the opposite side it is said that what each soldier had taken
from the enemy with his own hand and had carried off home would
prove to be more acceptable and afford greater pleasure than many
times as much allotted to him by another’s decision.

3- Sometimes, too, pillaging was permitted because it could not
be prevented. In the storming of Cortuosa, an Etruscan town, as
Livy relates: ‘The tribunes decided to reserve the booty for the
state, but the order was slower than the decision; for already the
spoil was in the hands of the soldiers, and could not be taken away
without causing ill-feeling.’ So also we read that the camp of the
Galatians was plundered by the army of Gaius Helvius against the
will of the commander.

XIX.—Or commanders may grant the spoil to others

The practice already mentioned, that in some cases the booty,
or money derived from the sale of booty, might be assigned to others
than the soldiers, usually had as its purpose to make an equivalent
reimbursement to those who had contributed funds for the war.

You may also note that public spectacles were at times produced
with the money derived from the booty.

XX.—Or commanders, having divided the booty into portions, may em-
ploy now one method of distribution and now another; in what way

1. Not only in different wars are different methods employed
in the disposition of booty, but in the same war booty is often diverted
to different uses, after it has been divided into portions or the different
kinds have been distinguished.

Thus Camillus gave a tenth of the spoil to the Pythian Apollo,
following a Greek precedent, which had previously come from the
Jews; at this time the pontiffs decided that the dedicated tenth
included not only movable things but also the city and its territory.
When Camillus was again victor the greatest part of the spoil from
the Faliscans was assigned to the quaestor; not so much was given
to the soldiers. In like manner Lucius Manlius ‘ either sold the spoil,
in so far as it had to be contributed to the public treasury, or divided
it among the soldiers, taking care that it should be as fairly divided
as possible’ ; the words are those of Livy.

2. The classes into which booty may be divided are these:
prisoners, herds, and flocks, which the Greeks when speaking with

1 This is also recorded by Appian in the Excerpta Petrescrana [ii= Concerning Italy, viii. 1].

[LTrawmng
af Cyrus,
VII. 1.
TX.]

Livy, V
[xx. 8].

VI [iv.
Ir].

Livy,
XXXVI
(xxi. 4].

Dionysius
of Halicar-
nassus,

V {xlvit].

Livy, V
[xx11. 8].

Livy, V
[xix. 8].

XXXVITI
[xx111. 10].

Dionys.us,
VIII
{Ixxx11].
Dionysius,
xX [xx].

Lb1d.

Livy, X
[Dion.
Halic.,
xX, XXV].

Livy, V
(xxl. 1].

VI [iv.
2-3].
Livy, VI.
xiii. 6.]

Dionysius,
Fragments
[Selections
on Embas-
stes, p. 18].
Livy,
XXV [xiv.
12-13].
Appian,
Punic
Wars
[xx. 133].
Vy,
XXXVII
[v. 3].
Livy,
XXXVIII

[xxiii. ro].

682

exactness call ‘ pillageable property’; money, and other movables,
costly or cheap.

Quintus Fabius, after defeating the Volscians, gave orders that
the pillageable property and spoils be sold by the quaestor ; he him-
self brought back the money. The same general, after the conquest
of the Volscians and the Aequians, gave the captives, with the excep-
tion of the Tusculans, to the soldiers, and permitted them to carry
off the population and the herds in the land belonging to Kcetra.
When Antium was captured, Lucius Cornelius deposited in the
treasury the gold, silver, and copper, sold the prisoners and booty
through the agency of the quaestor, and allowed the troops to have
articles of food and clothing. Similar to this was the policy of Cin-
cinnatus, who, after taking Corbio, a town of the Aequians, sent the
more valuable objects in the booty to Rome, and divided the rest
among the centuries.

After the capture of Veii Camillus contributed nothing to the
public treasury except the money from the sale of the captives; and
when the Etruscans were beaten and the captives sold, from the money
thus obtained he paid back to the women the gold they had con-
tributed, and set up three libation saucers of gold in the Capitoline
temple. When Cossus was dictator, all the booty from the Volscians,
except the persons of freemen, was granted to the soldiers.

3. Fabricius, after conquering the Lucanians, Bruttians, and
Samnites, enriched his troops, paid back the war taxes to the citizens,
and contributed forty talents to the public treasury. Quintus
Fulvius and Appius Claudius, when the camp of Hanno was captured,
sold the booty and made a division, giving largesses to those whose
services had been exceptional. On the taking of Carthage, Scipio
gave what was in the city to the troops to plunder, excepting the
gold and silver [483] and the votive offerings. Acilius, on the
capture of Lamia, in part divided and in part sold the spoil. When
the Galatians had been beaten and the arms of the enemy burned
in accordance with a Roman superstition, Gnaeus Manlius ordered
all to bring together the rest of the spoil, and either sold it, in so far
as it was to be brought to the public treasury, or divided it among
the soldiers, taking care that the division should be as fair as possible.

On the Law of War and Peace [Book III

XXI.—The committing of peculation in the distribution of booty

1. From what we have said it appears that among the Romans,
not less than among most other nations, booty was the property of
the Roman people, but that some right of decision as to its dis-

* Fabius did likewise with the money from the sale of the prisoners after the capture of Tarentum,
although he distributed the rest of the spoil to the soldiers.

Chap. VI] On the Right of Acquiring Things taken in War 683

tribution was granted to commanders; nevertheless, as we have
previously stated, under the condition that they owed to the people
an accounting for their actions. ‘This, among other things, we
learn from the case of Lucius Scipio, who was condemned in a trial
for peculation, because, as Valerius Maximus states, he had received
480,000 sesterces in silver more than he transferred to the treasury ;
and also from the cases of others to which we have previously referred.

2. Marcus Cato, in the speech which he wrote on the subject
of booty, according to Gellius, complained in passionate and noble
language of the impunity and licence accorded to peculation. Of
the speech there remains this fragment: ‘ Those who steal from
private persons pass their days in bonds and fetters; those who
steal from the state pass theirs in gold and purple.’

On another occasion the same speaker had said that ‘ he wondered
that any one dared to place as furniture in his house statues that had
been captured in war’. Cicero also increases resentment at the
peculation of Verres, by pointing out that he had carried off a statue
which in fact had been taken from the spoil of the enemy.

3. Not commanders alone, but even soldiers, were held on the
charge of misappropriation of booty if they had not brought it to
the public treasury ; for, as Polybius says, they were all bound by
an oath ‘that no one would appropriate anything from the booty,
but would carry out his pledge in scrupulous regard for his oath’.
To this we may perhaps refer the formula of the oath in Gellius, by
which, within the lines of the army or within the range of about ten
miles, the soldier was enjoined not to carry off anything which was
of greater value than a silver sestertius; or in case he had taken
anything of the sort, to bring it to the consul, or to confess the fact
within the next three days. Hence we may understand what Modes-
tinus meant by the statement : ‘ He who has secreted booty captured
from the enemy is guilty of peculation.? This statement of itself
should be sufficient to warn interpreters of the law against believing
that things captured from the enemy are acquired by individuals,
since it is clear that peculation can only occur in connexion with
property that is public, sacred, or religious.

All these considerations clearly lead to the view which we have
expressed above, that, apart from the civil law, and primarily, what
is captured in acts of war becomes the property of the people or of
the king who wages the war.

XXII.—Some change may be made with respect to this common right of
booty by a legal enactment or by another's act of will

1. In the statement just made we said, ‘ apart from the civil

V.1n1, and
Livy, XLV
[XXXVITI.
lv 6].

II. xvii
[XI. xviii].

Priscian,
(Institut.
Gramm.,]
VII [zx.
95]
Against
V erres,
IV [xh.
88].

[X. xvi.]

XVI, iv.

Digest,
XLVIII.
xiii. 15
(13).

Digest,
XLVIII,
xiii. 1.

2 Macca-
bees, Vill.
28, 30.

Calderi-
nus, Con-
sila, 85;
Job. Lu-
pus, De
Bello, § st
bene adver-
tas; Jason,
On Dig.,
XXX 1,
g; Fran-
ciscus a
Ripa, On
Dig., XLI.
li. I, m0. 5;
Covarru-
vias, On
Sext, V.
ult. 4, pt.
2,§ II;
Bonfini,
Decade V,
Book IV.

On Bene-
fis, IV. xv
(V1. xv. 2].
[Inst. Or.,
XII. vii.
ro.]
Annals,
IX [XI.
vii}.

On the Law of War and Peace [Book III

684

law ’, and ‘ primarily ’, or directly. The former restriction is added
because with regard to things that have not yet been actually acquired
a law may ordain in the public interest, whether that legislative act
is a law of the people, as among the Romans, or the law of a king,
as among the Jews and elsewhere. Besides, under the name of law
we wish to include also custom when rightly introduced.

The second qualification leads to this, that we may know that
booty, just as other things, may be conceded by a people to others
not only after acquisition, but also prior to acquisition, in such a way
that, when the capture has ensued, the claims thereby arising are
immediately united in title, as the jurists say. And this concession
can be made not only to specific persons, but also to classes, as in the
times of the Maccabees part of the spoil was given to widows, old
men, and needy wards; or even to chance persons, after the fashion
of the things thrown to the mob, which the Roman consuls made the
property of those who caught them.

2. Furthermore, this transference of a right, which is brought
about by a law or grant, is not [484] always a mere gift. It some-
times represents the fulfilment of a contract; sometimes either
a payment of what is owed, or a reimbursement for losses which some
one has suffered, or compensation for a personal contribution to the
war in money, or in service, as when allies and subjects serve either
without any pay or for such pay as does not correspond with their
service. It is for these reasons, as we see, that an assignment of the
whole booty, or a part of it, has usually been made.

XXIII.—Thus booty may be granted to allies

Our jurists, in fact, note that almost everywhere the custom has
been tacitly followed, that either allies or subjects, who wage war
without pay, at their own expense and danger,’ appropriate what
they capture. In the case of allies * the reason is evident, for naturally
one ally is bound to make good to another the losses which ensue
from a joint or public enterprise.

There is also the further consideration that it is hardly customary
for service to be rendered gratis. ‘Thus physicians’, says Seneca,
‘are paid the price of service, which they earn, because they are
called from their own affairs and are at our disposal.’ Quintilian
judges the same thing fair in the case of orators, because the very
giving of their service and time to the business of others deprives
them of the opportunity of earning in other ways. This is what
Tacitus called ‘ Neglecting the affairs of one’s house in order that

1 See Kromer, Poland, XIX [=p. 430].
: ntha makes use of it in a letter to Justinian ; [Procopius,] Gothic War, I [I. iii].

Chap. VI] On the Right of Acquiring Things taken in War 685

one may apply himself to the business of others’. ‘Therefore it is
credible that, unless some other cause should appear, as for instance
pure kindness, or a preceding agreement, the hope of enriching
oneself from the enemy was regarded as recompense for loss and
service.

XXIV.—Booty is often granted to subjects ; with illustration by means
of various examples on land and sea

1. In the case of subjects the right to booty does not follow
with equal clearness, because subjects owe their service to their
state. But this reason is offset by the fact that where not all subjects
but only a part are in service the latter are entitled to compensation
from the body of the state for having contributed more service and
expense than the others, and they are much more entitled to com-
pensation for losses. In place of this clearly defined compensation
the expectation of the whole or a part of an uncertain booty is readily,
and not without reason, conceded. And so the poet writes:

Let the booty fall to those whose labours earned it.

2. With respect to allies, there is an example? in the Roman
treaty by which the Latins were admitted to an equal share of the
booty in the wars which were waged under the auspices of the Roman
people. So in the war which the Aetolians waged with the Romans
as their helpers, the cities indeed, and the territory, fell to the Aeto-
lians, but the captives and movable property to the Romans. After
the victory over King Ptolemy, Demetrius gave a part of the booty
to the Athenians. Ambrose, in discussing the story of Abraham,
shows the fairness of this custom: ‘ He wisely asserted that a part
of the gain, as recompense for their toil, should be allotted to those
who had been with him, perhaps as allies to give him aid.’

3. With respect to subjects there is an example in the case of
the Jewish people; half of the spoil fell to those who had been
under arms. ‘The soldier of Alexander made his own the booty
which he had seized from private persons, excepting that he was
accustomed to bring certain things of special value to the king;
hence we see that those who were said to have conspired at Arbela

1 See Plutarch, Marcellus [viii=p. 302].

2 The Roman people furnished the ancient Latins with the third part of the spoil; Pliny, Book
XXXIX, v [Natural History, XXXIV. v]. The Swiss cantons divide the spoil according to the proportion
of the soldiers fumished, as Simler attests. In the war against the Turk, the Pope, the Emperor, and
the Venetians made the division on the basis of expenditures ; Paruta, VIII. Pompey granted Lesser
Armenia to Deiotarus, king of Galatia, because he had been an ally in the Mithridatic War [Eutropius,
VI. xiv].

3 ‘the Pisans gave a part of the booty to those who had guarded the houses; Chalcocondylas,

Book V [V = p. 244].

Propertius
[Elegtes,
III. iv.2rz].

Livy, IV
and XXIV
(II. xxxi11];
Dion.
Hal., VI
[xev].
Polybius,
XI [X.
XVI-—Xvii] ;
Livy,
XXXII
[x11i. ro].
Plutarch,
Demeiriuus,
[xvui=p.
896 A].

On Abra-
ham, I. iii
[17].
Numbers,
xxii [xxxi],
27, 473

r Sam.,
XXX. 22,
and later;
2 Macca-
bees, viii.
28, 30.
Plutarch,
Apo-
thegms
[=p. 180
c].

[III x1.
23 ]

2Sam ,xil.
30

Title On
the King.

Arias, De
Beilo, no.
162; Bel-
lini, pt II,
tit. xvi,
no. 3;
Doneau,
Commen-
taries, IV.
XX1;
Sylvester,
word
bellum, 1.
pr., from
Trova-
mala,
Wesen-
beck, On
Instrtutes,
II. i. § 17.
Appian,
CivilWars,
I [vi. 51].
[Pharsa-
la,] VII
(738 ff.].

Appian,
Crvil Wars,
IV [xvii.
135].

Tacitus,
Histories,
IIT [xix].

On the Law of War and Peace [Book III

686

were accused of claiming for themselves all the booty, so that they
would bring nothing into the treasury.

4. But in the case of Alexander’s army what had been the
public property of the enemy, or royal property, was exempt from
this licence. In consequence we read that, when the Macedonians
had broken into the camp of Darius at the river Pyramus, they
carried off a huge amount of gold and silver, and left nothing un-
touched except the king’s tent,1 ‘ in order that’, says Curtius, ‘ follow-
ing the traditional custom, they might receive the victor in the tent
of the vanquished king.’ Similar to this was the custom of the Jews,
who placed the crown of the conquered ruler upon the victorious
king and [485], as we read in the Digest of the Talmud, allotted to
him the royal furniture taken in the war.

In the same category is that which we read in the exploits of
Charlemagne ; when he had conquered the Hungarians, the riches of
private individuals fell to the soldiers, the riches of the king to the
public treasury. But among the Greeks the ‘booty’ was public pro-
perty, as we have shown above, and the ‘spoils seized while fighting ’
were the property of individuals. They call ‘spoils seized while
fighting’ (sxdda) what is taken from the enemy in the course of the
battle, and ‘booty’ (Addvpa) what is taken afterwards. This
distinction is observed also by some other peoples.

5. However, from what we have said before it is quite clear that
among the Romans, at least in the period of the early republic, not
so much was granted to the soldiers. In the civil wars they began
to receive somewhat greater indulgence. Thus you may read that
Aeculanum was sacked by the soldiers of Sulla. After the battle
of Pharsalus Caesar turned the camp of Pompey’s forces over to his
soldiers to plunder, according to Lucan, with these words :

Your reward for bloodshed remains.
This it is my part to point out; for I shall not call a donation
What each to himself shall give.

The troops of Octavian and Anthony pillaged the camp of
Brutus and Cassius. In another civil war, when the Flavians had
been led to Cremona, although night was at hand, they hastened to
take the rich colony by assault. ‘They feared that otherwise the
riches of Cremona would come into the possession of the prefects
and legates; for they knew that in fact, as Tacitus says, ‘ the spoil
of a city that has been stormed belongs to the soldiers; that of one
which has been surrendered, to the general’.

1 See also Diodorus, Book VI [XVII. xxxv], and Plutarch, Alexander [xx=p. 676]. See similar
accounts in Xenophon, On the Trawming of Cyrus, IT [IV. vi. 11], and Book IV of his war [Anabasis,
IV. tv. 21] and VII.

Chap. VI] On the Right of Acquiring Things taken in War 687

6. As discipline declined such looting was the more willingly
conceded to the troops, that they might not neglect the enemy
and burden their hands with spoil while there was still danger.
Disregard of such precaution has made very many victories fruitless.

When Corbulo had stormed the fort Volandum in Armenia,
“the mob unfit for war’, as Tacitus relates, ‘ was sold at auction,
and the rest of the booty fell to the victors’. According to the same
writer, in a battle in Britain Suetonius urges his men to continue
the slaughter without thinking of the booty, adding that when the
victory should be won everything would fall to their lot. Similar
accounts you may find among other authors generally. Add also
what we have just cited from Procopius.?

7. here are, however, certain things of so slight value that
they are not worth making public property. ‘These things every-
where by consent of the people belong to those who take them.
Such under the early Roman republic were spears, javelins, firewood,
fodder, water-skins, leathern money-bags, torches, and money smaller
than a silver sestertius ; for we read in Gellius that these exceptions
were added to the military oath.

Very like this concession is that which is made to sailors even
when they are paid for their service. The French call this spoliation
or pillage, and therein include clothing, and gold and silver under
ten crowns. Elsewhere a certain part of the booty is given to the
soldiers, as in Spain, where now a fifth,? now a third, and again
a half remains with the king, and a seventh, or at times a tenth,
with the commander of the army; the rest belongs to the individual
captors, with the exception of ships of war,? which fall wholly to
the king.

8. It may happen also that the division of the booty is made
after account has been taken of services, dangers, and expenses, as
among the Italians, where a third of a captured ship falls to the
master of the victorious vessel, an equal part to those whose goods
were in the ship, and the same to those who engaged in the fighting.

Sometimes, again, this occurs, that those who conduct a war
at their own risk and expense do not receive all the spoil, but owe
a part to the public authority, or to him who derives his right from
the public authority. Thus among the Spaniards, when in a war

1 He records, Vandalte War, II [II. xxi], that when Solomon was carrying on war against the
Levathae his soldiers were angry with him because he held back the spoil. He said [490] that he
did this in order that, when the war was ended, he might distribute it according to each man’s deserts.
Procopius says also, Gothic War, II [II. vii], that all the spoil from Picenum was brought to Belisarius,
who divided it on the basis of merit, and adds the reason: ‘It was not fair that some, at the cost of
much effort, should kill the bees, while others, at their ease, should feed upon the honey.’

2 This custom is attributed to the Turks also by Leunclavius, [Turkish History,] III and V.

8 So among the Goths an exception was made of engines of war for the kings; Johan Magnus,
Historia Suedica, XI. xi [Barbeyrac believes this a misquotation].

1569-27 ZA

Tacitus,
Annals,
XITI

[xxxix].
Annals,
XIV

[xxxvi].

XVI, 1v.

Constitu-
tions of
France,
XX, X11.
xo and 1x6.

Law of

Spam, IV.
XXVI1. 2.

Consolato
del Mare,
eclxxxv.

[Law of
Spaim,]
XIX
XXV1. 2.
I4.
Constitu-
tions of
France,
XX lv.
I.
Instyuc-
hones Ret
Maritimae,
XX11.

[Imstetutes
of Ovatory,]
Viiv
[V.x. r1r4].

ITI. vi. 5.

Livy, LV
XLV.
xliv. 14].

688 On the Law of War and Peace [Book ITI

ships are fitted out at private expense, part of the spoil is due to the
king, and part to the highest naval authority. According to the
French practice the latter receives a tenth, and the same [486]
is customary among the Dutch, but with them a fifth part of the
booty is first deducted by the state. On land, however, it 1s now
the general custom that in the sack of towns, or in battle, each should
have as his own what he has taken ; but what is taken in raids should
be the common property of those in the detachment, to be divided
among themselves according to their rank.

XXV.—The application of what has been said

As a result of these considerations we are to know that, if within
the jurisdiction of a nation that is not involved in war a dispute
arises with respect to something that has been captured in war, the
thing is to be adjudged to him whose case is supported by the laws
or customs of the people on whose side capture has been effected ;
if this is impracticable, then by the common law of nations the thing
is to be adjudged to the people itself, provided only that it has been
taken in an act of war.

From what we have previously said, it is abundantly clear that
what Quintilian adduces in favour of the Thebans is in general not
true, that in a matter which can be brought into court the right of
war does not hold good, and that what is taken by armed force can
only be retained by armed force.

XXVI.—W hether things which have been taken outside the territory of
either belligerent may be acquired by the law of war

1. Things which do not belong to the enemy, even if found
among the enemy,! do not become the property of the captors; for
this, as we have said already, is not in accordance with the law of
nature and has not been introduced by the law of nations. Thus
the Romans say to Prusias: ‘If this territory had not belonged to
Antiochus, clearly it would not have been made territory of the
Roman people.’?? Nevertheless if in such things the enemy enjoys
any right which is connected with possession, as a right of pledge,
restraint, or servitude, there is nothing to prevent this right being
acquired by the captors.

2. The question is also often raised whether things captured
outside the territory of either belligerent may become the property

1 See above, IIT. iv. 7.

* Thus, after Jugurtha was conquered, Bocchus did not acquire the land which had not belonged
to Jugurtha, but to the children of Bocchus [or rather Massimissa]; Appian, Selections on Embasstes,
xxvii [= Numidian Affairs, iv]. See a similar instance in Krantz, Saxomzca, XIT [XIT. vii].

Chap. VI] On the Right of Acquiring Things taken in War 689

of the captors; and this is debated with regard both to things and
to persons.

If we take into account the law of nations only, I think that
this subject need not be considered, since we have said that an enemy
may be justly slain in any place. But he who holds authority in
a place may by a law of his own prohibit any such action; and if
such an act is committed contrary to his law he can demand satis-
faction for it as for a crime. Similar to this is the ruling that a wild
animal caught on the land of another belongs to the captors, but
access to it may be prohibited by the owner of the land.

XXVII.—In what way the right of which we have spoken 1s peculiar to
a public war

Now this external right of acquiring things taken in war is so
peculiar to a war that is public according to the law of nations that
in other wars it finds no place. For in other wars with foreigners
property is not acquired by the violence of war but as compensation
for a debt which cannot otherwise be obtained.

In wars between citizens, whether these be great or small, no
change of ownership is made except by the authority of a judge.

3a2

Dig. XLI.

1. 3-
Dig. VIII.
111. I.

Sylvester,
word bel-
lum, I, §§ 3
and rr,
verse 8.

Dog. I v.
4.§ 1.

Digest,

XLIX. ¥vV.

5. § 1.
Drgest,
XLIX. xv
I2.

{II 1vin J

That
Lvery
Virtuous
Man is
Free [iu].
Orations,
xv [=p.
242].

CHAPTER VII

ON THE RIGHT OVER PRISONERS OF WAR

I.—According to the law of nations all persons captured in a war that is
public become slaves

1. By nature at any rate, that is, apart from a human act, or
in the primitive condition of nature, no human beings are slaves, as
we have said elsewhere.!_ In this sense it is correct to accept what
was said by the jurists, that slavery is contrary to nature. Neverthe-
less, as we have shown also in another connexion,’ it is not in conflict
with natural justice that slavery should have its origin in a human
act, that is, should arise from a convention or a crime.

2. But in the law of nations, which we are now discussing,
slavery has a somewhat larger place, both as regards persons and as
regards effects. For if we consider persons, not only those who
surrender themselves, or promise to become slaves, are regarded as
slaves, but all without exception who have been captured in a formal
public war become slaves from the time when they are brought within
the lines, as Pomponius says. And no crime is requisite, but the fate
of all is the same, even of those who by their ill-fortune, as we have
said, are caught in the enemy’s territory when war has suddenly
broken out.

3. Polybius says in the second book of his AMistortes: ‘ What
should these persons suffer so as to pay a fitting penalty? Perhaps,
one would say, being sold as slaves with wives and children, after
they have been conquered in war. But this is also appointed by the
law of war® for those to endure who have done no impious deed.’
Hence comes what Philo notes in these words: ‘Often at unforeseen
times many good men have lost their inherited freedom.’

4. Dio of Prusa, after enumerating the ways of acquiring
[491] ownership, says: ‘And a third form of possession is when-
ever one has taken a prisoner in war and in this way holds him as

1 TI. xxii. 11. 2 TI. v. 27.

3 Servius, On the Aeneid, I [I. 619], says of Hercules: ‘ When Laomedon tried to ward him from
this gate, he was killed, and his daughter, Hesione, was carried off in accordance with the law of war,
and delivered to Telamon, Hercules’s comrade, who had first scaled the wall; of this union Teucer was
the issue.’ Again, On the Aenezd, X [X. 91], in telling the same story : ‘ The Greeks refused to restore
Hesione to the Trojans, saying that they held her by the law of war.’

Josephus, in Book XIV [Antiquities of the Jews, XIV. xii. 2], says: ‘Since they had not been
captured in accordance with the law of war.’ ‘ By the law of captives’ and elsewhere, ‘ By the law
established for prisoners of war’, says Menander Protector [frag. 29, p. 66, edit. Dindorf].

In the preceding chapter you find much that is applicable also here, for the reason that writers
either combine, or treat identically, captured things and captive men.

690

Chap. VII] On the Right over Prisoners of War 691

a slave.’ So Oppian in his second book On Fishery calls it a law of
war to carry off into slavery boys that have been captured in war.

Il.—Also the descendants of persons captured in war become slaves

Not only do the prisoners of war themselves become slaves, but
also their descendants for ever, that is to say those who are born of
a slave mother after her enslavement. This is what Marcianus said,
that by the law of nations those become our slaves who are born of
our slave women. In speaking of the wife of a German chief, Tacitus
said that her womb was subject to slavery.

IIl.—What may be done to prisoners of war with impunity

1. Moreover the effects of this law are unlimited, just as Seneca
the Father said that there is nothing which a master is not permitted
to do to his slave. There is no suffering which may not be inflicted
with impunity upon such slaves, no action which they may not be
ordered, or forced by torture, to do, in any way whatsoever; even
brutality on the part of masters towards persons of servile status 1s
unpunishable except in so far as municipal law sets a limit and a
penalty for brutality. ‘Among all nations alike’, says Gaius, ‘ we
may see that masters have had the power of life and death over
slaves.’ Then he adds that limits have been set to this power by the
Roman law, that is on Roman soil. Here applies the note of Donatus
on Terence, ‘ What is it not lawful for a master to do to his slave? ’

2. Also everything that has been captured is acquired, along
with the person, for the master. The slave who is himself under the
power of another, says Justinian, can have nothing of his own.

IV.—The property of captives, even 1f incorporeal, belongs io their
master

On these grounds the view of those who say that incorporeal
rights are not acquired by the law of war? is refuted, or at any rate
restricted. It is true that such rights are not acquired primarily
and directly, but through the medium of the person to whom they
had belonged.

Nevertheless, we have to make exception of those rights which
have their source in a peculiar capacity of the person and are hence
inalienable, as the right of the father. For if these rights can remain,
they remain with the person; if not, they are extinguished.

1 Valerius Maximus, VI. ix. 11, says of Gnaeus Cornelius Asina: ‘ As consul he was captured by
the Carthaginians at the Lipara Islands, after he had lost everything by the law of war.’ ‘The slave
has lost the right of ownership over other things not less than over himself,’ says Philo, That Every
Virtuous Man 1s Free [vii].

[Halieu-
tica,
IT. 316 J

Dig. I. v.
5. § 1.

Annals, I
[lix]

Contro-
versies, I.
v LX. v].

Dig. I. vi.
I. § x.
Institutes,
I. viul. § 1.
[On]
Andria,
Act I,
scene i

[36].

Inst. IT.
1x. § 3.

Dig L.
XV1. 239.

§ I.

Diy. I. v.
24.

II. xiii.
26.

[xlv =p.
1073 C.]
[II. xliv.]

692 On the Law of War and Peace [Book III

V.—The reason why the law has thus been established

1. All these rights have been introduced by the law of nations,
with which we are dealing, for no other reason than this: that the
captors, mollified by so many advantages, might willingly refrain
from recourse to the utmost degree of severity, in accordance with
which they could have slain the captives, either immediately or after
a delay, as we have said before. ‘The name of slaves (serv1) ’, says
Pomponius, ‘ comes from the fact * that commanders are accustomed
to sell prisoners and thereby to save them (servare) and not to kill
them.’ I have said ‘ that they might willingly refrain’; for there
is no suggestion of an agreement whereby they may be compelled
to refrain, if you are considering this law of nations, but a method
of persuading them by indicating the more advantageous course.

2. For the same reason this right is transferred to others, just
as the ownership of things. Further, it has been agreed that owner-
ship should be extended to children; the reason is that otherwise,
if the captors had used their full right, the children would not have
been born. Whence it follows that children who were born before
the catastrophe do not become slaves, unless they are themselves
captured.

Moreover, it has been acceptable to the nations that children
should follow the status of the mother, for the reason that the unions
of slaves were regulated neither by law nor by definite oversight,
and consequently the father was indicated by no adequate pre-
sumption. In this sense we are to understand the statement of
Ulpian : ‘It is a law of nature, that he who is born outside of lawful
matrimony follows the status of his mother’; that is, the law repre-
sents a general custom which has grown up from a natural reason,
just as we have elsewhere shown that the term ‘law of nature’ is
at times employed with some inexactness.

3. The rights under consideration, moreover, have not been
introduced by the nations in vain. This we may perceive from
what happens in civil wars, in which we find that on many occasions
captives [492] have been killed because they could not be reduced
to slavery. The fact is noted by Plutarch in his Otho, and by
Tacitus in the second book of his Histories.’

4. Whether those who have been captured become the pro-
perty of the people, or of individuals, must be decided by what we
have said in regard to booty; for in this case the law of nations has

1 See also Servius, On the Aeneid, Book V [IV. 327], where he explains the origin of the word saliem.
_ 4 Also in Book III [TIT. xxxiv], regarding the captured inhabitants of Cremona, whom ‘ the united
opinion of Italy had caused to be a prey useless to the soldiers’.

Chap. VII] On the Right over Prisoners of War 693

put men in the same category as things. Gaius the jurist said in his
Daly Questions, Book II: ‘Also what is captured from the enemy
becomes at once, by the law of nations, the property of the captors,
to the extent indeed that even free men are led off into slavery.’

VI.—Whether 1t 1s permissible for those who have been captured to flee

1. Nevertheless, as regards the belief of some theologians, that
it is unlawful for those to flee who have been captured in an unlawful
war, or are born of captives, unless they flee to their own people,
I have myself no doubt that the view is erroneous. There is indeed
this difference, that if captives make their escape to their own people
while the war is still in progress they attain their freedom by right
of postliminy ;1 if they flee to others, or to their own people, after
peace has been made, they must be given up to the master who
claims them. But it does not follow as a consequence that a bond
of conscience is laid also upon the captives; there are many rights
which look only to an external judgement, and such are the rights
of war which we are now explaining.

There is, further, no reason for any one to raise the objection
that from the nature of ownership such an obligation becomes bind-
ing on the mind. For I shall reply that, since there are many forms
of ownership, it is possible that one may exist which is valid only
in a judgement that is human and at the same time continues a con-
dition which arises also in other kinds of rights.

2. Such in fact, to some extent, is also the right of nullifying
wills, on account of the lack of some formality which the civil laws
prescribe. The more acceptable view is, that what has been left by
such a will may be retained with a clear conscience, at least as long
as the will is not contested.

Not very different is the ownership of one who in accordance
with the civil laws has exercised prescription in bad faith; for his
ownership also is protected by the civil courts. By making the dis-
tinction, we easily loosen the knot which Aristotle ties in his Sophtstzcal
Refutations, Book II, chapter v: ‘Is it not right for each one to have
what is his own? But what any judge may decide according to his
opinion, even if this be false, is valid according to the law. There-
fore the same thing is both right and wrong.’

3. Inthe question before us no reason can be imagined why the
nations should have had in view anything else than that external
restraint. For the opportunity of claiming a slave and restraining

1 See below, III. ix. 5. Pliny, Natural History, VII. xxviii, says of Marcus Sergius: ‘Twice
captured by Hannibal, he twice escaped from his chains.’

Dig. XLI.
1. 5 and 7,

Lessius, I,
v, dub. 5.

Soto, De
Lusiitia et
Lure, IV,
qu. iv, art.
3; Les-
sius, IT,
xiv, dub. 3.

[Sophasit-
cal Refuta-
tions, XXV.
9-]

Digest,

XLIX. xv.

26.

Digest,

XLIX, xv.

IQ pr.

Baiiez,
On II. 14,
qu. 40.

Decretum,

II. xvi. 4.

37 £.

On the Law of War and Peace [Book IIT

694

him, and further, of putting him in bonds and retaining his property,
was enough to induce captors to spare captives. If the captors were
so ferocious as not to be influenced by these advantages, certainly
they would not have been affected by the imposition of any moral
restraint. Yet, if they believed such a restraint at all necessary for
themselves, they could have exacted an assurance or an oath.

4. However, in a law which has been established not according
to natural equity, but to avoid a greater evil, we should not rashly
adopt an interpretation which would make criminal an act otherwise
permitted. Florentinus the jurist says: ‘ It makes no difference how
a captive has returned ; whether he has been set free, or has escaped
from the power of the enemy by force or by guile.’ This is so because
the right of captivity is of such a sort, that in another sense it 1s
often also a wrong, a characterization which is applied to it by the
jurist Paul. It is a right in respect to certain effects; a wrong, if
we regard its intrinsic nature.

Hence this also is apparent. If any one who has been captured
in an unlawful war has come into the power of the enemy, his con-
science is not tainted by the crime of theft if he secretly takes away
his own property, or a recompense for his toil,” in case it is right
that any should be furnished him over and above his keep, provided
that he neither in his own name, nor in that of his state, is in any
way [493] indebted to his master, or to him whose right his
master has received. And it does not matter that such flight and
abstraction when detected are usually punished with severity. For
these things and many others are done by the more powerful, not
because they are just, but because it is to the advantage of the more
powerful to do them.

5. Certain canons * forbid any one to persuade a slave to desert
his master’s service. If you refer this to slaves who are undergoing
a just punishment, or have bound themselves by a voluntary agree-
Ment, it is a just injunction. But if you refer it to those who have

_ 3 Bembo, History, X, holds that the soul is not tainted by the crime of theft, if one removes
his own property.

* Here applies what we have quoted above from Irenaeus and Tertullian, in the notes to II. vii. 2,
where there 1s a discussion regarding the Jews after their exodus from Egypt.

To these the following relates, from Philo’s On the Life of Moses [I. xxv|: ‘Moreover when they
were being driven out and pursued, being mindful of their noble race, they began a work worthy of
freeborn men, who had not forgotten what they had suffered through injustice and deceit. [495]
For they carried forth much spoil, in part on their persons and in part on beasts of burden. Their
motive was not avarice, nor, as some calumniator has said, greed of another’s property—for whence
could this have occurred to them ?—but they desired, first, to have the pay which was necessary for so
long a period of service; and in the second place, they sought in recompense for servitude forcibly
imposed upon them a penalty, not commensurate with it, but far less.” And more that follows in the
same author.

_ There is a similar story of St. Malchus given by Jeromein his Letters, and of the Lombard Leupges,
which his great-grandson Paul Warnefrid [Paulus Diaconus] tells us in Book IV [IV. xxxix]. Add also,
if you please, the Confession published under the name Lanicius Patricius.

* From the Synod of Gangres. See above II. v. end.

Chap. VII] On the Right over Prisoners of War 695

been captured in an unlawful war, or have been born of captives, it
teaches that Christians should encourage Christians to be patient
rather than to engage in an action which, although permissible, might
yet offend minds alien to Christianity or otherwise weak.

In a similar way we may understand the admonitions of the
Apostles to slaves, except that these are seen rather to demand
obedience from slaves while in servitude. This is in accord with
natural justice; for food and service have a reciprocal connexion.

VII.— Whether it ts permissible for those who have been captured to
resist their master

But I think that it was correctly said by the theologians to whom
I have just referred, that a slave cannot resist a master who is exercis-
ing that external right without violating the duty of justice.

Between this case and that which we have just discussed there
is a manifest difference. The external right, which consists not only
in impunity of acting but also in the protection of the courts, will
be of no effect if a right to offer resistance remains on the other side.
For if it is permissible forcibly to resist a master, it will also be per-
missible forcibly to resist a magistrate who protects the master,
when, nevertheless, according to the law of nations, the magistrate
should defend the master in such ownership and the enjoyment
thereof. This right therefore is like that which we have elsewhere
attributed to the highest authorities in each state, in saying that it
is not legally nor morally permissible forcibly to resist them. Thus
Augustine also joined the two rights when he said: ‘ Princes are to
be endured by the commons, and masters by their slaves, in such
a way that temporal things may be borne in the exercise of long-
suffering, and things eternal may be hoped for.’

VIII.—The law under consideration has not always existed among all
nations

But the fact must further be recognized that this law of nations
with regard to captives has not always been accepted, nor accepted
among all nations, although the Roman jurists speak of it as universal,
designating the more prominent part by the name of the whole.
Thus among the Jews,? who by their special institutions were separated
from the common practice of other peoples, there was an asylum for
slaves ; at least, as the commentators rightly note, for slaves who had
come into this unhappy condition through no fault of their own.

From such a source it seems that there may have arisen the

1 See [Moses de Kotzi,] Precepts Forbidding, 180.

Deut.,
XXili, 15.

Bodin,
De Repub-
lea, I v.

Bartolus,
On Digest,
XLIX. xv.
24; Co-
Varruvl1as,
On Sext, V.
ult 4, pt.
II, § 11, no.
6; Vic-
toria, De
Lure Bells,
NO 42;
Bohier,
Decisions,
elxxviii;
Sylvester,
word bel-
lum, 1,
no. I.
[Grego-
ras,] IV
[1x]

Plato,
Republic,
V [xv=
469 c].

Bartolus,
On Digest,
III, v. 20;
Bohier,
Decisions,
elxxviii;
Consittu-
tiones
Regn H1s-
paniae,

VIII. xxvi.

2.

On the Law of War and Peace [Book III

696
right of claiming their freedom which is given to slaves in the country
of the Franks; although we see that this is now granted not only
to those captured in war, but also to other slaves of any sort.

IX.—The law under consideration does not now exist among Christians ;
what has been substituted for 1t

1. Christians? furthermore have as a whole agreed that those
who are captured in a war which has arisen among themselves do not
become slaves so as to be liable to be sold, constrained to labour,
and suffer the fate of slaves in other respects. In this they are surely
right, because they have been, or should have been, better instructed
in the teachings of Him who has sanctioned all charity than to be
unable to be restrained from the slaughter of unfortunate men in
any other way than by the concession of a lesser cruelty.

Gregoras * writes that this treatment of captives in former times
was handed down from ancestors to descendants among those who
professed the same religious belief, and that it was not peculiar to
those who lived under Roman rule but was also common to Thessalians,
Illyrians, Triballians, and Bulgars. And so this degree of progress at
any rate, small though it is, has been accomplished by reverence for
the law of Christ; a degree of progress which Socrates [494]
failed to secure, although he had recommended such treatment of
captives by the Greeks among themselves.

2. Moreover, the practice of Christians in this matter is followed
also by Mohammedans among themselves.? Nevertheless, even
among Christians the custom still prevails of keeping prisoners under
guard until a ransom is paid, the amount of which is decided by the
victor, unless some definite agreement has been made.

Furthermore the right of guarding captives is usually granted
to the individuals who have taken them, except in the case of persons
of high rank; for the customs of most nations give the right over
these to the state or its head.

4

1 And also the Essenes, from whom the first Christians originated. See Josephus [Antiquities of
the Jews, XVIII. 1. 5].

2 Gregoras, Book IV [IV. ix], where these words are found: ‘ This is a custom which has descended
from antiquity to posterity, and has never been corrupted, not only among the Greco-Romans and
Thessalians, but also among the Illyrians, Triballians, and Bulgars, because of a belief common to all,
that itis permissible to collect plunder, but not to make men prisoners nor to kill them after the time
of battle.’

Adam of Bremen says of Saint Ansgar: ‘Thence he returned to Hammaburg and reproved the
peoples north of the Elbe for the sale of Christians.’ Bohier also mentions this custom, Decisions, clxxviii,
and adds that it is a practice in France, England, and Spain, that if the prisoner is a duke, count, or
baron, he does not belong to the soldiers but to the ruler who is waging the war.

* Chalcocondylas, Book IJI ; Leunclavius, Books III and XVII; Busbecq, Epistolae Exoticae, iii.

CHAPTER VIII
ON THE RIGHT TO RULE OVER THE CONQUERED

I.—By war also civil authority 1s acquired, sometimes as vested in a king,
sometimes as vested in a people ; the effects of such acquisition

I. It is not at all strange if he, who can subject individuals to
himself in personal servitude, is able to subject to himself an aggrega-
tion of men—whether they formed a state, or a part of a state—in
a subjection which may be purely civil, or purely personal, or mixed.

Some one in Seneca’s Controversy about a native of Olynthus
uses the following argument: ‘ He, whom I purchased in accordance
with the law of war, is my slave. This, men of Athens, is advan-
tageous for you; otherwise your empire, in so far as it has been
acquired by war, is reduced to its ancient limits.” With similar
purport Tertullian said that empires are sought by arms and expanded
by victories. Quintilian declares that kingdoms, peoples, and the
territories of nations and cities, depend upon the law of war. In
Curtius, Alexander says that laws are laid down by the victors and
accepted by the vanquished.

In his speech to the Romans Minio asks: [496] ‘ Why do
you send a praetor every year with authority and rods and axes to
Syracuse and the other Greek cities of Sicily? Clearly, you would
say, for no other reason than this, that you have imposed these laws
upon those who have been conquered in war.’ In Caesar Ariovistus
says: ‘It is the law of war that those who have conquered should
rule those whom they have conquered, just as they please’; also:
‘The Roman people has been accustomed to rule the conquered,
not according to another’s dictation but according to its own
judgement.’

2. Justin, quoting from Trogus, relates that up to the time of
Ninus those who waged war had sought for themselves not sovereignty
but glory, and, being content with victory, had abstained from
empire; that Ninus was the first who extended the borders of his
empire, and subjugated other peoples in war; and that from him
this had passed into a general custom. Bocchus, in Sallust, declares
‘that he had taken up arms to protect his kingdom ; for the part of
Numidia, from which he had expelled Jugurtha, had become his by
the law of war.’

3. Sovereignty, furthermore, may be acquired for the victor ;
either such sovereignty merely as is vested in a king? or other ruler,

1 After the battle at Gaugamela Alexander was hailed as king of Asia [Plutarch, Alexander, xxxiv
=p. 6858]. The Romans asserted that what had belonged to Syphax was theirs ‘ according to the law

697

[Controver-
sves, X.
Vv. I5.]

Apology
[xxv].

[Inst. Or.,
V.x r13.]

[IV. v. 7.]

Livy,
XKXV
[xvi. 4].

Gallic
War [I.
XXXVI].

[T.1. 7.]

Jugurthine
War (cii.
I3].

I. 111. rz.

(VII. xiv.]

[Excerpta
ex Trag.

et Com.
Gr., edit.
Grotius,
p- 639 ]
Annals,
XIT [xi].
[A gesslaus,
i. 22.]

On the Law of War and Peace [Book III

698
and in that case the victor succeeds to the right of the ruler only,
and nothing beyond; or such as is vested in a people,* in which case
the victor holds sovereignty in such a way that he can even alienate
it, just as the people could. We have elsewhere said that thus it
has come about that certain kingdoms were held as a patrimony.

Il.—The right of a master may be acquired over a people, which then
ceases to be a state

1. Even a more fundamental change may be accomplished, so
that, for instance, what was a state may cease to bea state. In such
cases the state that was may become an accession of another state,
as the Roman provinces did; or it may not be attached to a state,
as when a king waging war at his own expense so subjects a people
to himself that he wishes it to be governed not for the good of the
people but above all else for that of the ruler, and this is the rule
of a master, not of civil authority.

In his Polttics, Book VII, Aristotle says: ‘ There is govern-
ment... for the good of the ruler, and government for the good of the
ruled. The former is the government of masters and slaves; the
latter, the government of free men.’ A people, then, which is subject
to a power of this kind, will for the future be no state, but a great
domestic establishment. It has been well said by Anaxandrides :

A state of slaves, good sir, nowhere exists.

2. The two types of authority are thus contrasted by Tacitus :
‘'To conceive himself as a governor among freemen, not as a despot
among slaves.’ Of Agesilaus Xenophon says: ‘ The states which he
brought under his authority he relieved of all the obligations which

of war’; Appian, Selections on Embassies, X. xxviii. In Agathias, Book I [I. v], the ambassadors of the
Goths said of Theodoric: ‘ Since he had conquered Odoacer, the stranger from Scyros, he held by the law
of war all that had been his.” But when the Huns claimed that the Gepidae were their subjects, because
they had captured the king of the Gepidae, the Romans denied this claim on the ground that the
Gepidae had a chief rather than a king, and that they did not form a part of his patrimony. This is
recorded by Menander Protector [frag. 28, pp. 63-5, edit. Dindorf].

2 In the same writer Menander [frag. 46, p. 92], the Persians say with regard to the territory of the
city of Daras: ‘Since the city itself had been conquered by them according to the law of war, it was
reasonable that what had been subject to it should belong to them.’ After the conquest of the Vandals,
Belisartus claimed that even Lilybaeum in Sicily should yield to the Roman authority, on the ground
that the Goths had given it to the Vandals. But the Goths denied that they had so given it; Procopius,
Vandalic War, Ii II. v].

Henry, son of Frederick Barbarossa, after having captured Sicily, laid claim to Epidamnus,
Salomki, and other places held by the Sicilians; Nicetas, On Alexts, brother of Isaac [Comnenus],
Book I [I. wii]. Baianus, Chagan of the Avars, said to the emperor with regard to Sirmium: [498
‘That that city belonged to him, seeing that 1t had belonged to the Gepidae, who had been conquered
by the Avars” [Menander, frag. 64, p 127, edit. Dindorf].

Peter, the ambassador of Justinian, said in a speech to Chosroes: ‘For how shall he who is lord
of the principal not be lord of the accessory also? For neither the Lazi nor the Suani ever raised a dis-
pute on this point, that Suania has not from antiquity belonged to the Lazi’ [Menander, frag. 11, p. 26,
edit. Dindorf]. Each of these citations is from Menander Protector. Add what is in III. viii. 4.

Chap. VIII] On the Right to Rule over the Conquered 699

slaves render to their masters, and he exacted from them only the
things in which freemen obey their rulers.’

II l.—Sometimes the two types of authority are mixed

Hence we may understand the nature of that mixed authority,
which I have said is in part civil and in part that of a master, that is
to say, an authority in which servitude is mixed with a degree of
personal liberty. Thus we read that arms have been taken from
peoples; that peoples have been forbidden to have any iron except
for agricultural purposes; and that other peoples have been com-
pelled to change their language and manner of life.

IV.—The possessions of a people, even such as are incorporeal, are also
acquired ; herewith 15 discussed the question of the written bond of
the T hessalians

1. Moreover, just as the possessions which belonged to indi-
viduals are, in accordance with the law of war, acquired by those
who place the owners in subjection to themselves, so also the posses-
sions of the aggregation of individuals as a whole become the property
of those who subject the aggregation to themselves, if they so wish.
Livy says in regard to those who have capitulated: ‘In case all
possessions have been surrendered to him who is superior in arms,"
the victor has the absolute right to decide what he wishes the van-
quished to keep, and of what he wishes to deprive them’; and this
statement holds true of those who are conquered in a public war.
Surrender in fact voluntarily permits what force would otherwise
take.

In Livy Scaptius says that ‘the land under [497] dispute
had been a part of the territory of the Coriolani; and when Corioli
was captured, by the law of war it became public land of the Roman
people.’ Hannibal, in a speech to his soldiers, recorded by the same
author, declared: ‘ All the possessions of the Romans, won and
amassed in so many triumphs, will become ours along with the masters
themselves.’ The same author makes Antiochus say: ‘ Since, when
Lysimachus was conquered, all his possessions were transferred to
Seleucus in accordance with the law of war, he thought that they

1 See above, I. iv. 8 [I. iii. 8] ; II. v.31; and ITI. v. 2, and below, III. xx. 49. Add also the follow-
ing from Polybius, Selections on Embasstes, cxlii :

‘Those who surrender themselves to the Roman authority, first give up the territory which was
theirs, and the cities within that territory, then all men and women who are in this territory or these
cities ; finally, all rivers, harbours, everything sacred and hallowed in its entirety, so that the Romans
are masters of all, but those who have surrendered themselves are masters of nothing at all.’

See what has just been said, ITI. vii. 4. Justin, in Book XXXV [XXXVI. iii. 8], speaking of the
Jews, says: ‘ Afterwards along with the Persians themselves they passed under the sway of Alexander

the Great.’

[XX XIV.
lv1i. 7.]

III {ixx.
7].

XXI
[xliti. 6].

XLII
[X XXIII.
xl. 4].

Strabo,
XIT fi
x].

Dionysius
of Halicar-
nassus, III
[xxx1].

[Inst. Or.,
V. x. 116.]

Dig. L.
xvii. 118.
Digesi,
XLVIII.
V. 22.

Cicero,
Letters to
Brutus, vi
[T. vi].

On the Law of War and Peace [Book ITI

700

were now under his rule.’ Similarly Pompey acquired for the Roman
people what Mithridates had captured in war and had annexed to
his empire.

2. Consequently, the incorporeal rights also, which had be-
longed to the aggregation as a whole, will become the property of
the victor, in so far as he wishes. Thus when Alba was conquered
the Romans claimed for themselves the rights which the Albans had
exercised.

Hence it follows that the Thessalians were entirely acquitted of
their debt of one hundred talents. Although they owed this sum to
the Thebans, upon becoming master of Thebes, Alexander the Great,
by right of victory, made the Thessalians a present of it. Nor is
that true which is adduced on behalf of the Thebans in Quintilian,
that only what the victor himself holds is his, but a right that is
incorporeal cannot be seized by force; and that the position of an
heir and that of a conqueror are fundamentally different, because
a right passes to the former, but only property to the latter. In
fact he who is master of persons is also master of their possessions
and of every right which pertains to the persons. He who is the
possession of another does not possess for himself, and he who is
not his own master does not have anything in his own power.

3. Furthermore, if any one should leave to a conquered people
the right to form a state, he might still take for himself certain things
which had belonged to the state. It rests with him to decide what
he wishes the measure of his beneficence to be. Caesar imitated the
act of Alexander by making to the people of Dyrrachium a present
of the debt which they owed to some one of the opposite party. In
this case, however, the objection might have been raised that the war
of Caesar was not of the kind in respect to which this law of nations
has been established.

1 Anthony ordered the Tyrians to restore the territories of the Jews which had not been granted
them by the Roman senate and which had not been held prior to the war of Cassius. This is recorded
by Josephus [Antiquittes of the Jews, XIV. x. 4]. See also Bizarn, Hzstory of Genoa, X.

CHAPTER Ix
ON POSTLIMINY

I.—T he origin of the word postliminy

I. Just as in regard to those things which are captured from
the enemy, so also in regard to the right of postliminy (postliminium)
no very sound view has been advanced by those who in more recent
times have laid claim to a knowledge of the law. The subject was
treated with greater painstaking by the ancient Romans, but often
rather confusedly, so that the reader could not distinguish what they
ascribed to the law of nations and what to the Roman civil law.

2. With regard to [499] the word fostliminium we must
reject the view of Servius [Servius Sulpicius], who thinks that the
latter part is a lengthening of the word without significance ; we must
rather follow Scaevola, who taught that the word was a compound
of post, which indicates a return, and amen. For limen (threshold)
and limes (boundary) differ in ending and manner of declension,
although for the rest they are identical in origin—for they come
from the ancient word limo,? which signified transversum (across)—
and in original idea, just as materia and materies, pavus and pavo,
contagio and contages,® cucumis and cucumer ; although in later usage
it developed that /zmen referred rather to private, limes to public
things. So the ancient word which meant ‘to eject from a country’
was eliminare, and the Romans called exile eliminium.*

II.—W here postliminy may occur

1. Postliminy, therefore, is a right which arises from a return
to the thréshold,® that is, to the public boundaries. Thus Pomponius
says that he who has begun to be within our fortified lines has returned

1 Whence the name Posivorta Dea [Aulus Gellius, Aztic Nights, XVI. xvii].

2 Servius, On the Aeneid, XII [XII. 120], and Donatus, On [Terence’s] Eunuch, on the phrase lémzs
oculis (III. v. 63]. Festus: ‘ Lemus, ‘‘ oblique”’, that is, “ transverse’’, whence also lumina.’

Isidore [Etymologies], XV. xiv: ‘ Limites are called from the ancient word for “ across’’, for
everything that was “‘across’’ the ancients called /zma, from which comes the lamina ositorum, through
which one goes out and in; and limites because by them one goes out into the fields.’ In the Glossary,
lumes is translated as wAdyta 686s [Corpus Glossartorum Latinorum, vol. II, p. 123].

3 Compages and compago, a word which itself was formerly compagen, as we see from its genitive
case, and the verb derived from it, just as sanguis was formerly sanguen.

4 And collimintum in Solinus [chap. xv] is what is commonly called collimiitum.

5 Hence, Tertullian, On Modesty [xv], metaphorically speaking says: ‘ The postliminy of the peace
of the Church.’

701

Cicero,
Topics
[vi1i. 36],
and Boe-
thius
thereon.

Digest,
XLIX, xv.
5. § I.

Digesi,
XLIX, xv.
19 §3.

Polybius,
III [xxv].

Plutarch,
Flamumiuus
[xui=p.
376 F]

Pompeius
Festus [on
the word
postlima-
nium].

On the Law of War and Peace [Book III

702

by postliminy; Paul defines such a return when the captive has
entered our frontier.

On similar grounds the agreement of nations has brought the
matter to this point, that postliminy occurs also if a man, or a thing
of the sort in regard to which it has been decided that postliminy
is possible, has come to our friends, as Pomponius says in the passage
cited; or, as Paul explains by offering an example, to a king who
is our ally or friend. In these passages we are to understand as
friends or allies not merely those with whom we are at peace,’ but
those who take the same side in a war. Those who come to such
friends, as Paul says, begin to be protected in the name of the state.
It makes no difference in fact whether a man or thing has come to
them or to his own people.

2. Among those who are friends, it is true, but not on the
same side, prisoners of war do not change their status unless by
a special arrangement. Thus in the second treaty drawn up between
the Romans and the Carthaginians it was agreed that if any prisoners
taken by the Carthaginians from peoples who were friends of Rome
should reach ports subject to the Romans their freedom could be
asserted, and that the friends of Carthage should enjoy an equal
right. In consequence those Romans who were captured in the
second Punic War and had come to Greece by way of sale did not
have the right of postliminy there,? because in that war the Greeks
had supported neither side, and hence it was necessary for the captives
to be ransomed in order to be set free. In Homer, too, in more than
one passage we see that those captured in war were sold in places
that were at peace, as Lycaon, Iliad, XXI [lines 35 ff.], and
Eurymedusa, Odyssey, VII [lines 8 ff. ].

ITI.—By postliminy some things return and some things are recovered

The ancient Roman mode of speech had it that free men also
were recovered by postliminy.

Aelius Gallus, in the Terms Which Apply to the Law, Book I, says that by postliminy
there is recovered (for we must adopt this reading) the freeman who has gone from one
state into another, and returns to the same state, according to the law established in
regard to postliminy. The same is true of the slave who has gone from us into the power
of the enemy, and afterwards returns to us and into the power of his former master,
according to the law of postliminy. The same reasoning is applied to a horse, to a mule,

and to a ship in recovery by postliminy (for so I think that with a slight change we may

1 That this was the view of the king of Morocco and Fez, appears from De Thou, Book CXXX
[CXXX. in]. on the year 1603.

* Valerius Maximus, V.xi.6; Diodorus Siculus, Selecitons on Embasstes, iii. So also the Rhodians
as an act of generosity restored to Athens the Athenian citizens whom they had bought during the
war of Athens with Philip ; Polybius, Selections on Embasstes, iii.

Chap. IX] On Posthminy

793

retain these three words which that incomparable student of the Roman law, Jacques
Cujas, thinks should be deleted) as to a slave ; and the same kinds of things, which return
from the enemy to us by postliminy, may return from us to the enemy.

. The later Roman jurists, however, with greater clarity have
distinguished two forms of postliminy, according as we ourselves
return, or something is recovered by us.

IV.—The right of postliminy exists in peace and in war. What is to
be done if tt has not been mentioned in time of peace ?

1. We must, further, maintain the view of Tryphoninus, who
says that the right of postliminy [500] is effective both in war
and in peace; the meaning is slightly different from that with which
Pomponius had said the same thing.

In peace postliminy, unless it is otherwise agreed, exists for
those who have not been conquered by armed force, but caught
by their ill-fortune,* as those who are found in the land of the enemy
when war has suddenly broken out. For other captives, however,
there is not postliminy in time of peace, unless this was provided
for in the terms of peace? (according to the excellent emendation
of the passage of T'ryphoninus by the learned Peter Faber, of which
Cujas approves) ; for the reason which is added and the contrasted
clause clearly decide this.

‘He made peace, releasing the prisoners, for so it had been
agreed,’ says Zonaras. Pomponius says: ‘If a prisoner, for whose
return in time of peace a guarantee had been given, remains with
the enemy of his own accord, for him there is subsequently no post-
liminy.’ Paul states the matter thus: ‘Ifa prisoner of war has fled
to his home after peace has been made, by postliminy he returns

1 See the example in Paruta, On the War in Cyprus, I.

* See Josephus, Antiquities of the Jews, XIII. ii (XIII. ii. 3]. Polybius mentions agreements
providing for the restoration of captives in the peace with Philip, with the Aetohans, although in
this case with an exception, and with Antiochus; Selecizons on Embassies, ix, xxviii and xxxv
[= Histories, XVIII. xliv; XXI. xxx; XXI. xiv]. Livy [XXXIV. xxxv. 4] furnishes the same
examples, and an additional example in the peace with Nabis.

Zosimus offers several similar instances, as, for example, the peace of Probus with the Burgundians
and the Vandals, which began thus: ‘ Upon condition that they should restore all the booty and all
the prisoners which they had,’ Book I [I. lxviii]. He records a similar peace between Julian and the
Germans [III. iv], and likewise with the Quadi, who were in Germany, Book III [III. vii].

Ammianus Marcellinus in Book XVII [XVII. x. 3-4] says of Suomarius, king of the Alemanni:
‘Qn bended knees he sought peace, and obtained it, with forgiveness for the past, upon condition
that he should restore our captives.’ Shortly afterwards [XVII. xii. 11] he says of the Sarmatians :
‘Upon being ordered to occupy without fear the lands they held, they restored our prisoners.’ In
another passage he says the same with regard to another part of the Sarmatians.

In Zonaras there are many such instances. Among others, in the history of Michael, son of
Theophilus, speaking of the Bulgarian king this author says [XVI. vi. 3]: [507] ‘He promised to
release his prisoners of war.’ Nicetasin Book II [Manuel Comnenus, II. viii] says that all the prisoners
were set free, except the Corinthians and Thebans, men and women.

Sometimes 1t was agreed that prisoners who were held by the state should be restored, as in

Thucydides, V [V. xviii].

1569.27 38

[Odserva-
tions, XI.
xx1ii.]

Digest,
XLIX. xv.
T4.

Digest,
ALIX, xv.
12.

Digesi,
XLIX. xv.
5, cited
above.

Semesiria,
I. vii.

Vol. IIT.
Digest,
XLIX. xv.
20.

Digest,
ALIX. xv.
28

[ Digest,

XLIX. xv.

12 |

(XXII,
hx 1.]

704 On the Law of War and Peace [Book III

to him who captured him in the late war, provided that it has
not been agreed in the terms of peace that prisoners should be
restored.’

2. As indicating the reason why the view just stated came to
be held with reference to those who have been captured by valour
in war, Tryphoninus quotes the following from Servius, ‘ that the
Romans preferred that their citizens should place their hope of
return in military prowess rather than in terms of peace’, for from
antiquity they were in truth, as Livy says, a state by no means merciful
to prisoners. But this reason characteristic of the Romans could
not have established the law of nations, though it might have been
among the causes that led the Romans to embrace that law which
had been developed by other nations.

The truer explanation is this, that lings and peoples who under-

take war wish that their reasons for so doing should be believed to
be just, and that, on the other hand, those who bear arms against
them are doing wrong. Now since each party wished this to be
believed, and it was not safe for those who desired to preserve peace
to intervene, peoples at peace were unable to do better than to
accept the outcome as right,’ and also to consider prisoners thus
taken in the act of defending themselves as captured for a just
reason. :
3. But the same thing could not be said with regard to those
who were caught [in hostile territory] after war had broken out ;
for in them no desire to injure could be imagined. Nevertheless it
seemed not unfair that while the war lasted they should be detained,
in order to lessen the strength of the enemy; but when the ending
of the war had been arranged no reason could be offered for not
releasing them. Consequently this was agreed upon, that with
peace such prisoners should always obtain their liberty on the ground
that they were innocent, by admission of the parties; but that over
the others each should assert what he wished to be considered
his right, except in so far as agreements should prescribe definite
stipulations.

For the same reason neither slaves? nor things taken in war
are restored with peace, unless this has been stipulated in agree-
ments, since the victor wishes it to be believed that he had the right
to seek these things. To controvert this principle would in truth
be to make wars spring up from wars.

1 See Priscus, Excerpta Legattontbus, XXVIII, and Bizarri, on the War between Genoa and Venice
[On the Venettan War], Book II.

* Totila declared to Pelagius, the deacon whom the Romans had sent to him, that he would
not discuss the question of the restoration of the slaves of the Sicilians, saying that it would be unjust
for the Romans [i.e., Goths] to give up their fellow soldiers to their old masters. The passage is in
[Procoptus,] Gothte War, ITI [III. xvi].

Chap. IX] On Postliminy 705

In the light of these considerations it is clear that the argument
in Quintilian on behalf of the Thebans was ingeniously presented,
but not in accordance with the truth, that is, that prisoners are free
if they have returned to their own country, because things won in
war may only be held by the same use of force. We have said enough
with regard to peace.

4. In war men who were free before being captured return
by postliminy ;? but slaves and certain other things are recovered.

V.—W hen a free man may return by postliminy while war is in progress

A free man returns by postliminy only when he has come to
his own people with the purpose of sharing their fortunes, as the
principle was stated by Tryphoninus. The reason undoubtedly is
that for a slave to become free he must, so to speak, acquire himself,
which is not done unless he wishes it. But it makes no difference
whether a man has been recovered from the enemy by force of arms,?
or has escaped by a ruse, as Florentinus has pointed out. It will
even be sufficient if he has been voluntarily handed over by the
enemy.

What happens if [501] a man comes to his own people after
being sold in trade by the enemy,* as the custom is? This question
is discussed by Seneca,* in the case of the Olynthian who was pur-
chased by Parrhasius. Since a decree had been issued by the Athenians
whereby it was ordered that the Olynthians should be free, he inquires
whether it was provided in the decree that they should be made
free or should be considered free; the latter of the two interpreta-
tions is More correct.

VI—W hat rights a free man returning by postliminy may recover,
and what he may not recover

1. A free man, moreover, after he has returned to his own
people, not only acquires himself for himself, but also all the posses-
sions, whether corporeal or incorporeal, which he had when the
peoples were at peace. Peoples at peace accept the fact as indicating
a right in the case of the man who has been set free just the same

1 Julian, in his oration Against the False Cynics [Oraions, vi=p. 195], says: ‘In this way even
the prisoners of war whom we set free would be slaves. But to such the laws grant freedom when
they have retumed to us.’

2 As those, who had been captured by the Slavs and were set free by the Huns, likewise in
Procopius, Gothic War, ITI [TII. xu].

3" As in the same book of Procopius [III. xiv], the young Childubius said: ‘ Since he had returned
to his own country, for the future he would be a free man im the eyes of the law.’ But Leunclavius
[Turkish History, XIV] notes that among the Turks there was formerly no right of postliminy for
prisoners of war.

4 Controversies, V. xxxiv [X. v].

3B2

[Imst, Or.,
Vix 115}

Digest,
XLIX. xv.
12 §9, and

cited
above.

Digest,
XLIX. xv.
26.

Code,
VIII. 1. 5.

Dugest,
XLIX. xv,
12 §6; 6.

Digest,
XLIX. xv.
I7.

(VI. xvizi.]

Digest,
LIX, xv,
19. § I.
Digest,
XLIX, xv.
4.

706 On the Law of War and Peace [Book IIT

as in the case of the prisoner, in order that they may show them-
selves fair to both sides. Therefore the proprietorship, which he
who possessed the prisoner by the law of war had over the prisoner’s
possessions, was not free from all limitation; it could in fact cease
against his will, if the prisoner should reach his own country. Con-
sequently, the possessor of the prisoner loses these things just as he
loses the man to whom they belonged.

2. But what if the possessor of the prisoner has alienated the
prisoner’s possessions? Will he, who has his title from the man that
was at the time owner by the law of war, be protected by the law
of nations, or will these things also be recovered? I am speaking of
the things which were with a people that did not participate in
the war.

It seems clear that we must distinguish between things which
are of such a kind that they may return by postliminy, and those
which are not of that kind. This distinction we shall shortly explain,
so that the things of the former class will seem to have been alienated
with a characteristic cause and under a condition, but the latter
absolutely. By alienated things I understand also things which
have been granted or acknowledged as received.

VII.—Rights against a free man returning by postliminy also are restored

Again, just as rights are restored to him who has returned by
postliminy, so also rights are revived against him; and, as Trypho-
ninus says, such are held just as if he had never been in the power
of the enemy.

VIII.—W by those who surrender do not have the right of postliminy

To this rule in regard to free men Paul justly adds the following
exception: ‘Those who have been conquered in battle and have
surrendered to the enemy do not possess the right of postliminy.’
This is doubtless for the reason that agreements with the enemy are
valid by the law of nations, as we shall say elsewhere, and against
such agreements no right of postliminy holds.

Thus in Gellius those Romans who had been captured by the
Carthaginians say that ‘They did not have legal postliminy, since
they were bound by their oath’. Wherefore, as Paul has properly
pointed out, there is no postliminy during the period of an armistice.
But Modestinus delivered the opinion that those who are given up
to the enemy, that is without any agreement, return by postliminy.

Chap. IX] On Postliminy 707

IX.—W hen a people may have the right of postliminy

1. What we have said in regard to individual persons holds
true, I think, in the case of peoples also; those who were free may
recover their liberty in case the power of their allies delivers them
from the rule of the enemy. But if the population, which formed
the state, has been dispersed, I think it more correct not to consider
the people as the same, nor to restore their property by postliminy
in accordance with the law of nations, for the reason that a people,
like a ship, obviously perishes by the dissolution of its parts, since its
whole nature consists in perpetual union.

That was, then, not the same state of Saguntum which previously
existed, when this site was restored, eight years later, to the former
inhabitants. It was, again, not the same Thebes, after the Thebans
had been sold into slavery by Alexander. Hence it is apparent that
what the Thessalians had owed the Thebans was not restored to the
Thebans by postliminy, and that for two reasons: first, because it
was a new people; and, secondly, because Alexander, at the time
when he was their master, was able to alienate this right and did
so. There is a further reason, that a debt is not in the number of
the things which return by postliminy.

2. With what we have said regarding a state [502] agrees
closely the fact that according to the ancient Roman law, by which
the dissolution of marriage was permitted, it was held that the
marriage relation was not restored by postliminy,’ but renewed by
a new agreement.

X.—W hat are the provisions of the municipal law in the case of those
who return by postliminy

1. From the preceding discussion the nature of postliminy may
be understood according to the law of nations, as regards free men.
But by municipal law that same right, in so far as it affects what is
done within a state, may both be restricted by the addition of excep-
tions and conditions and extended to other interests. Thus, by the
Roman civil law, deserters are excluded from the number of those
who return by postliminy, even the sons of households over whom
apparently the authority of the father, which was peculiar to the

1 Otherwise among Christian peoples. Pope Leo wrote to Nicetas, Bishop of Aquileia [Leo the
Great, Letters, clix]: ‘So that, just as postliminy is observed in the case of slaves or land, or even
in the case of houses and other property, for those who have been led into captivity and have returned
from captivity former marriages may be re-established, even if the parties have been united to others.’
See Hincmar, De Divortio Lotharii ei Tetbergae, Interrogation xiil, and the reply of Pope Stephen,
chapter xix, mn Concilia Gallae, Il.

Dugest,
XLIX. xv.
8; I4. §1.

Digest,
XLIX. xv.
19. §§ 4
and 7.

On Ends, I
[x. 35].

Demo-
sthenes,
Against
Nicostra-
tus [liu1. 12
=p 1249].

Code,
VIII, 1. 20.
Digest,
XLIX, xv.
15.

Code,
VIII. 1.
13.

Code,
VIII. 1. 7.

=P. 239.]

(=p. 242.]

Code,

VIII. 1. 18.

On the Law of War and Peace [Book IIT

708

Quirites, should have been exercised. But Paul says that this was
acceptable, because Roman parents valued the discipline of the
camp above their affection for their children. This is consistent
with what Cicero says of Manlius, that through his personal grief he
sanctioned the discipline of military authority, in order that he might
have regard for the safety of his fellow citizens, with which he per-
ceived that his own safety was bound up, and that he set the right
of public authority above nature herself and the affection of a father.

The right of postliminy is also in a measure limited by this
provision, which we read was first established by the Athenian laws,
then by those of the Romans, that the person who should be ransomed
from the enemy should serve the one who ransomed him until he
paid back the price. But this very provision appears to have been
introduced in the interest of liberty, in order that many might not
be left in the hands of the enemy because the hope of reimbursement
in the sums paid as ransom had been cut off. This kind of servitude
is in fact mitigated in many ways by the same Roman laws; and
finally by the law of Justinian it is terminated with five years’ service.
On the death of the ransomed the right of recovering the money
also is extinguished, just as it is held to be remitted by the con-
traction of marriage between the ransomer and the ransomed; and
the right is lost by the prostitution of a ransomed woman. Many
other provisions were established by the Roman law to favour those
who pay ransom, and to punish the next of kin who do not redeem
their relatives.

2. On the other hand, the right of postliminy has been expanded
by the civil law in this, that not only those things which are included
in postliminy by the law of nations, but all things, and all rights,
are treated just as if he who has returned had never been in the
power of the enemy; and this was also the practice in Attic law.
For, as we read in the fifteenth Oration of Dio of Prusa, a certain
person declared that he was the son of Callias, that he had been taken
prisoner in the defeat at Acanthus, and had been in slavery in Thrace ;
after his return to Athens by postliminy, he claimed the inheritance
of Callias from its possessors, and the only question investigated in
the trial was whether he was really the son of Callias. The same
writer records that, although the Messenians had been in slavery for
a jong time, they at length recovered both their liberty and their
and.

Further, the things which were deducted from a property by
usurpation or by liberation, or which seemed to have become extinct

1 The same provision occurs in Charles the Bald, Edictum Pistense, chap. xxxiv [Monumenia
Germantica Historica, Leges, II. vol. 11, p. 325].

Chap. IX] On Posthiminy 709

by non-use, are restored by an action for annulment; for in the
edict concerning the complete reinstatement of persons of age there
is included the man who is in the power of the enemy. This at any
rate comes from the ancient Roman law.

3. The Cornelian Law even consulted the interest of the heirs
of those who had died as prisoners among the enemy, by conserving
their property just as if the captive who did not return was already
dead at the time when he was captured. If you should annul these
civil laws, there is no doubt that as soon as any one had been captured
by the*enemy his property would have fallen to those who should
seize it,” because he who is in the enemy’s possession is held to be
non-existent. If he who had been captured returned, he would
recover nothing except those things which have postliminy by the
law of nations. However, the assignment of the goods of prisoners
to the treasury, if there should be no heir, is the effect of a special
Roman law.

[503] We have considered the persons who return; let us now
consider the things which are recovered.

X1i.—How slaves are recovered by postliminy, even those who have run
away ; how those who have been ransomed are recovered

1. Among recoverable possessions are, first, male and female
slaves, even when having been often alienated,? or after manumission
by the enemy.* The reason is that it is not possible for one of our
citizens, who is the owner of a slave, to be affected by a manumission
in accordance with the law of the enemy, as Tryphoninus well observes.
But for the recovery of a slave, it is necessary that he be actually held
by his former master, or that he should be easily obtainable. There-
fore, although in the case of other things it is enough for them to
have been brought within the frontier, in the case of a slave this
will not suffice for the right of postliminy, unless the fact is also
known ; for it is the view of Paul that such a slave who is in Rome,
‘but is hidden, is not yet recovered.

Just as a slave differs in the respect suggested from inanimate
things, so in turn the slave differs from a free man in this, that for

1 See the Visigothic Law, V. iv. 15.

* But in the Edict of Theodoric [chap. cxlviii] the rule was laid down thus: ‘ Let slaves or coloni
who have been captured by the enemy, and have returned, be restored to their masters, unless they
pave been previously acquired by another by purchase from theenemy.’ See also Cassiodorus, [Variae, |

. xiii.

By the Vzsigothtc Law, however, a slave recovered in war is restored to his master, and he who
recovered him receives a third of a fair price for him. If he has been recovered after being sold by the
enemy, he is restored to his master after return of the purchase price and the cost of improvements in
his condition (V. iv. 21).

* As those set free by Mithridates, who were brought back into slavery; Appian, Mithridaiic
Wars [ix. 61].

Dig. IV.
vi, I. § I.

Digest,
XLIX.
XiV. 31;
XV. 22. § 1.

Digest,
X LIX. xv.
12. $9.

Digest,
XLIX. xv.
30.

Digest,
XLIX. xv,
12. § 9.

Digest,
XLIX. xv.
19. § 5.

Code,
VIII, |. 12.

Digest,
ALIX. Xv.
20. § 1.

710 On the Law of War and Peace [Book ITI

his recovery by postliminy it is not required that he should come
with the intention of adopting our cause. This in fact is required
in the case of the man who is going to recover himself, not in the case
of him who is to be recovered by another; and, as Sabinus wrote,
‘Every one has a full freedom of choice with regard to his own state,
but not in relation to the right of his master.’

2. The Roman law furthermore does not exempt runaway
slaves from the operation of this law of nations. The master recovers
his former right over these also, as Paul teaches us, the intent being
that the exercise of a contrary right should not be so injurious to
him, who always remains a slave, as fraught with damage for his
master. In regard to the general treatment of slaves who are recovered
by the valour of the soldiers, the emperors have stated a principle
which some persons mistakenly apply to all possessions, that ‘ We
should regard those who have been recovered as not having been
captured, and our soldiers ought to be their defenders, not their
masters ’.

3. By the Roman law slaves who have been ransomed from the
enemy become forthwith the property of the person who ransoms
them; but when the price has been paid back they are held to
have been recovered.

To explain these things in greater detail is the business of the
interpreters of the civil law. For some points were changed by
later laws; and, to induce captured slaves to return, freedom was
offered immediately to those who had broken a limb, and to others
after the lapse of five years, as may be seen in the military laws
collected by Rufus.

XIL.—W hether subjects may be recovered by postliminy

We are more concerned with this question, whether peoples
who were subject to a foreign rule also relapse into their former
relation. °

This may be considered in the case that not he to whom the
chief command belonged, but some one of his allies, had delivered
the people from the enemy. In this case I think we must give the
same answer as in the case of slaves, unless it has been otherwise
agreed in the treaty of alliance.

XVI.—Territory 1s recovered by postliminy

1. Among things recoverable we have first to do with territory
which falls under the right of postliminy. ‘It is true’, says Pom-

Chap. IX] On Postlimny 7pat

ponius, ‘that when the enemy have been expelled from the terri-
tory which they have taken the ownership of it returns to the former
proprietors ’.

Furthermore, the enemy ought to be considered as expelled
from the time when they are no longer able to approach openly,
as we have explained elsewhere. Thus the Lacedaemonians restored
to the early proprietors’ the island of Aegina, which had been
wrested from the Athenians. Justinian and other emperors restored
to the heirs of the old possessors the lands which had been recovered
from the Goths and Vandals, and did not admit against the pro-
prietors those prescriptive rights? which the Roman laws had
introduced.

2. ‘The law regarding every right which is connected with the
soil I consider to be the same as that regarding territory. Pomponius
has written that consecrated and holy places, which have been
captured by the enemy, if they have been freed from this misfortune,
are restored to their original condition as though returned by a sort
of postliminy. With this agrees what Cicero, in the passage on the
statues in his speech Against Verres, says of the Diana of Segesta:
‘ Through the valour of Publius Africanus it recovered its veneration
together with its seat of worship.’ With the right of postliminy
Marcianus compares [504] the right by which the ground occupied
by a building is restored to the shore, upon the fall of the building.

Wherefore we shall be obliged to say that the usufruct of land
that has been recovered is restored, following the precedent set by
the response of Pomponius with regard to inundated land. By the
law of Spain, provision has been made that the holdings of counts
and other hereditary jurisdictions return by postliminy. The larger
holdings return without limitation; the smaller, if they are claimed
within four years after their recovery, with the exception that the
king has the right of retaining a castle lost in war and recovered in
any way at all.

1 That is, those who were of the Lacedaemonian faction. Cf. what has been said above, ITI. vi. 7.

2 And this in accordance with a law of Honorius, who, although he relinquished Spain to the
Vandals, would not [508] permit a prescription of thirty years to prejudice the proprietors, while
the Vandals were in occupation of 1t ; as is recorded by Procopius, Vandalic War, I [I. iii]. Valentinian,
in his Novel De Episcopalt Iudicio, says: * We have ordained that the rights which were preserved
in perpetuity or for an unlimited number of ages shall be terminated by a limit of thirty years ; with
the exception of the affairs of Africans, who shall prove that they have been subject to the constraint
of the Vandals: so that in their cases there may be deducted from the allotted thirty years such
time as shall be proven to have been passed under hostile domination.’

In the Council of Seville, cited in Decretum, II. xvi. 4 [II. xvi. 3. 13], we read: ‘ Just as by
the law of the state their former possessions are restored to those who have returned by postliminy,
after suffering the cruelty of the barbarians in an enforced captivity.’ With this agrees the canon,
Decretals, II. xxvi. 10. See also Cujas, Paratttla on Code, VII. xxxix.

Strabo,
VITl [vi.
r6].
Novels,
XXXvi.
Valentin-
ian, Novels,
De Eptsco-
pals Iuds-
cio; Pro-
copius,
Vandalic
War, I
[xii] ; Cu-
jas, Obser-
vations, X
[xii].

Deg XJ
vii. 36.

(IV xxxv.
78.)

Dig. I.
vill 6.

Digest,
VII. iv.
26.
Constiiu-
tions of
France, X.
XXIX. 2.

[LTopies,
vill. 37.]
Digest,
XLIX, xv.
2 and 4.

Digest,
XXX.1 9.

Dig. X. ui.
22 and 23.

Bartolus,
On Dig.,
XLIX. xv.
28; An-
gelus and
Saliceto,
On Code,
VIII. li. 2;
Consittu-
trones Gal-
licae, XX.
xii. 24;
Consolato
del Mare,
cclxxxvil.

On the Law of War and Peace [Book III

912

XIV.—The distinction that was formerly observed with regard to
movable things

1. With regard to movable things there is a general rule to
the contrary, that they do not return by postliminy but belong
with the spoil; thus Labeo contrasts such things. Therefore, also,
what has been acquired in trade, wherever it is found, remains the
property of him who bought it, and the former owner has not the
right to reclaim it if it is found among those who are at peace, or
brought within the frontier.

In ancient times we see that things which were of use in war
were excepted from this rule, which the nations seemed to have
sanctioned, in order that the hope of recovery might render men
more zealous in procuring them. In those times the institutions of
very many states were organized for warfare; wherefore an agree-
ment was easily reached in this matter.

Moreover those things are considered to be of use in war which
we lately cited from Aelius Gallus, but which are more specifically
designated both in Cicero’s Zopics and in Modestinus. They are
warships and transports, but not yachts and fast boats acquired for
pleasure ; mules, but only such as are pack animals; horses and mares,
which have been broken to the bit. And these are possessions which
the Romans held were legally disposed of in wills, and entered into
claims for the division of an inheritance.

2. Arms and clothing are indeed of use in war, but they do not
return by postliminy because those who lose arms or clothing in war
are by no means deserving of favour; in fact such loss was accounted
a disgrace, as is abundantly clear in the historical writings. But in
this respect, it is noted, arms differ from a horse, because a horse
may dash away without fault of his rider. We see, further, that
this distinction of movables was in force in the west, even under
the Goths, down to the time of Boethius. For he, in explaining
Cicero’s Lopics, seems to speak of this right as one which retained
its force to his own time.

XV.—W hat 1s the current law with regard to movable things ?

But in recent times, if not previously, the distinction noted
seems to have been done away with. For those who are familiar
with customs generally record that movable things do not return
by postliminy ; and we see in many places that this has been made
a rule with regard to ships.?

1 Decisiones Genuenses, Ci.

Chap. IX] On Postliminy

713

XVI.—What things may be recovered in such a way as not to need
postliminy

Things which, although seized by the enemy, have not yet been
brought within his fortifications, have no need of postliminy, because
by the law of nations they have not yet changed ownership. Also
things which pirates or brigands have taken from us have no need
of postliminy, as Ulpian and Javolenus decided; the reason is that
the law of nations does not concede to pirates or brigands the power
to change the right of ownership.

Relying upon this principle the Athenians wished to receive
Halonnesus as restored, not as given by Philip, because the pirates
had taken it from them, and Philip had taken it from the pirates.1
So things which have been captured by freebooters may be claimed
wherever they are found, excepting that, as we have elsewhere held,
on the basis of the law of nature, he who has obtained possession of
a thing at his own expense should be reimbursed in the sum which
the owner himself would have been glad to pay for its recovery.

XVII.—Charges introduced by municipal law as affecting those subject
to it

Nevertheless a different rule may be established by municipal
law. Thusby [505] the Law of Spain ships captured from pirates
become the property of those who take them from the pirates.? It
is in fact not unjust that private interests should yield to the public
advantage, especially when the difficulty of recovery is so great. But
such a law will not hinder foreigners from claiming their property.
XVIII.—How postliminy has been observed among those who were not

enemies

1. That is more surprising, to which the Roman laws bear
witness, that the right of postliminy was effective not only among
enemies, but also between the Romans and foreign peoples. But we
have said elsewhere that such laws were relics of the nomadic age,
in which the usages had dulled the natural social sense which exists
among men. In consequence even among nations which were not
waging a public war there was a certain licence of war among
individuals, proclaimed as it were by the usages themselves. To
prevent this licence from extending to the killing of men, it was
acceptable that the rights of captivity should be introduced among

1 See Philip’s very letter in the works of Demosthenes [xii].
* The Venetians had the same law, as appears from the Letters of Du Fresne de la Canaye, vol. 1.

Digest,

X LIX. xv.
24 and 27;
TQ. § 2.

Demo-
sthenes, On
Halonne-
sus [vli.
2=p. 77].

II. x. 9,
above.

XXXII.
XX1x. 2
Covarru-
vias, On
Sext, V.
ult. 4,

pt. 11. § 2,
no. 8.

II. xv. 5.

(I. xl 182.]

[Festus,
on the
word post-
laminium |

Digest,
XLIX. xv.
7,

Digest,

ALIX. xv.

5. § 2.

Observa-
trons, IX.
Xxii1.

Bodin,
De Repub-

lica, I. vii.

On the Law of War and Peace [Book III

714
them, and from this it resulted that there was also a place for post-
liminy, on a different basis than with brigands and pirates, because
this use of force led to fair agreements which are usually held in
contempt by brigands and pirates.

2. Formerly it seems to have been a disputed right whether
those from an allied people, who are in servitude among us, return
by postliminy, in case they have made their way home. Thus Cicero
presents the problem, On the Orator, Book I. Aelius Gallus indeed
speaks as follows: ‘With peoples that are free, and with peoples
in alliance, and with kings, we have postliminy just as with enemies.’
On the other hand Proculus declares: ‘I have no doubt that allied
and free peoples are foreign to us; there is no postliminy between
us and them.’

3. I think that a distinction should be made between treaties,
in order that, if there were any which were entered into for the sake
of settling or avoiding a public war, these should not for the future
stand in the way of captivity or of postliminy. If, on the contrary,
there were treaties containing this provision, that whoever should
come from one side to the other should be protected in the name of
the state, then with the abolition of captivity postliminy also should
cease. It seems to me that Pomponius indicates this, when he says :

If with any people we do not have relations of friendship or hospitality, nor a treaty
made for the sake of friendship, they are not indeed enemies ; but whatever of our belong-
ings goes to them becomes theirs, and a free man of our people captured by them becomes
also their slave. It is the same if anything comes to us from them ; and so in this case
also postliminy is recognized.

When Pomponius said a ‘ treaty for the sake of friendship ’, he
showed that there could be other treaties also, in which there is no
right of hospitality or friendship. ‘That by peoples in alliance with
one another are to be understood those who have promised friend-
ship or secure hospitality, is also made abundantly clear by Proculus,
when he adds: ‘ For what need then is there of postliminy between
us and them, when they in our country retain both their liberty and
the proprietorship of their own possessions as fully as among them-
selves, and we have the same privileges in their country?’ There-
fore what follows in Aelius Gallus, that ‘There is no postliminy
with the nations which are under our sway’, as Cujas correctly reads
it, must be supplied with the addition, ‘ nor with those with whom
we have a treaty establishing friendship’.

XIX.—W hen the right of postliminy may be enforced at the present day

I. In our times, however, not only among Christians but also
among most Mohammedans, both the right of captivity apart from

Chap. IX] On Postliminy 715

war, and likewise that of postliminy, have disappeared, since the
necessity for either was removed by the restoration of the force of
the relationship which nature has wished to prevail among men.

2. Nevertheless that ancient law of nations could be applied if
there should be an affair with a people so barbarous that without
declaration or cause it should consider it lawful to treat in a hostile
manner all foreigners and their possessions.

While I was writing these words, a judgement to that effect
was rendered in the highest chamber at Paris, under the presidency
[506] of Nicholas of Verdun. The decision held that goods which
had belonged to French citizens, and had been captured by the
Algerians, a people accustomed in their maritime depredations to
attack all others, had changed ownership by the law of war, and
therefore, when recaptured by others, became the property of those
who had recovered them. In the same suit this decision was recorded,
to which we just now referred, that to-day ships are not among the
things which are recovered by postliminy.

III iv.

[333 f.]

(Zust. II.
xxiii. § 1.]

[Declama-
tons,
eclxxiii.]

[Fasit, I.
249 f.]

Works
[Works
and Days,
to2 ff.].

CHAPTER X

CAUTIONS IN REGARD TO THINGS WHICH ARE DONE IN AN
UNLAWFUL WAR

I.—With what meaning a sense of honour may be satd to forbid what the
law permits

1. I must retrace my steps, and must deprive those who wage
war of nearly all the privileges which I seemed to grant, yet did not
grant to them. For when I first set out to explain this part of the
law of nations I bore witness that many things are said to be ‘ lawful’
or ‘permissible’ for the reason that they are done with impunity,
in part also because coactive tribunals lend to them their authority ;
things which, nevertheless, either deviate from the rule of right
(whether this has its basis in law strictly so called, or in the admoni-
tions of other virtues), or at any rate may be omitted on higher
grounds and with greater praise among good men.

2. In the Trojan Women of Seneca, when Pyrrhus says :

No law the captive spares, nor punishment restrains,

Agamemnon makes answer :
What law permits, this sense of shame forbids to do.

In this passage the sense of shame signifies not so much a regard for
men and reputation as a regard for what is just and good, or at any
rate for that which is more just and better.

So in the Institutes of Justinian we read: ‘ Bequests in trust
(jidercommissa) were so called, because they rested not upon a legal
obligation, but only upon the sense of honour in those who were
asked to take charge of them.’ In Quintilian the Father, again:
“The creditor goes to the surety, without violating his sense of honour,
only in case he is unable to recover from the debtor.’ With this
meaning you may often see justice associated with the sense of honour.
[Thus Ovid] :

Not yet had justice fled before men’s guilt;
Last of divinities she left the earth,

And sense of honour in the place of fear
[509] Ruled o’er the people without force.

Hesiod sang :

Nowhere a sense of honour, nowhere golden Justice ;
The base assail the better wantonly.

716

Chap.X] Things which are done in an Unlawful War 717

The sentence of Plato, in the twelfth book of his Laws, ‘ For
Justice is called, and truly called, the virgin daughter of Honour’
(wapGévos yap aidods Aixn éyerai te Kai dvrws eipnra), I would
emend by adpedpos, so that the sense would be: ‘Justice is called
the councillor of honour, and this has been said with truth.’ For
in another place Plato also speaks thus: ‘The deity, fearing for
the human race, lest it should utterly perish, endowed men with
a sense of honour and justice, in order that there might be adorn-
ments of cities and bonds of friendship.’

In like manner Plutarch calls ‘justice’ a ‘house-companion of
the sense of honour,’ and elsewhere he connects ‘sense of honour’
and ‘justice’. In Dionysius of Halicarnassus, ‘sense of honour and
justice’ are mentioned together. Likewise Josephus also links ‘sense
of honour and equity’. Paul the jurist, too, associates the law of
nature and the sense of honour. Moreover Cicero draws the boundary
line between justice and a sense of reverence (verecundia) in this
way, that it is the function of justice not to do violence to men,
that of the sense of reverence not to offend them.

3. The verse which we quoted from Seneca is in complete
agreement with a statement in his philosophical works: ‘ How
limited the innocence to be innocent merely according to the letter
of the law?? How much more widely extend the rules of duty
than the rules of law? How many things are demanded by devotion
to gods, country and kin, by kindness, generosity, justice, and good
faith? Yet all these requirements are outside the statutes of the
law.’ Here you see ‘law’ distinguished from ‘ justice’, because he
considers as law that which is in force in external judgements.

The same writer elsewhere well illustrates this by taking as an
example the right of the master over slaves: ‘In the case of a slave
you must consider, not how much he may be made to suffer with
impunity, but how far such treatment is permitted by the nature
of justice and goodness, which bids us to spare even captives and those
bought for a price.” Then: ‘Although all things are permissible
against a slave, yet there is something which the common law of
living things forbids to be permissible against a human being.’ In
this passage we must again note the different interpretations of the
term ‘ to be permissible’, the one external, the other internal.

1 Seneca, On Benefits, V. xxi; says also: ‘Many good things are not covered by any law, and
find no form of procedure in court, but yet they are protected by the practice of human society, which
is more potent than any law.’

Quintilian, Instztutes of Oratory, III. viii [III. vi. 84], declares: ‘For there are certain things
which are not naturally praiseworthy, but are permitted by law, as the provision in the Twelve Tables
that the body of a debtor could be divided among his creditors, a law which public practice repudiates.’

Cicero, On Dunes, TIT [TII. xvii. 68], writes: ‘For the laws dispose of sharp practices in one way,
and philosophers in another; the laws in so far as they can apply physical force, but philosophers
in so far as they can apply reason and intelligence.’

[Laws, xii.
2=P. 943
E.]

Protagoras
[xi =p
322 C]

To an Un-
lettered
Prince

[iv =D. 781
BC].
Theseus
[vi=p. 3]
VI [xxxvi].
Antiguittes
ofthe Jews,
XIII xix
[XIII x1.
3].

Digest,
AXITI. uw
[r4. § 2]
On Duites,
I (xxviii.
99].

On Anger,
I. xxvii [TT
XXVI11i].

On Cle-
mency, I
XViii.

Livy,
XXVI
[XXX1. 2].

Politics, I.

Vi,

III [Ixvi].

Digest,

XLIX. Xv.

19 pr.
Letters,
XXXii
[xxxl.

rr]
XXVIII
[XXIX. i.
16-17].
Ovations,
xv [=p.
242].

[Divine
Institutes,
VI. vi].

On the Law of War and Peace [Book III

718

I].—The principle stated 1s applied to the things which we said were
permitted by the law of nations

1. Of the same effect is the distinction which was drawn by
Marcellus in the Roman Senate: ‘ What I have done does not enter
into the discussion, for the law of war defends me in whatever I did
to the enemy, but what they deserved to suffer’; that 1s, according
to the standard of that which is just and good.

Aristotle approves the same distinction when he is discussing
whether the slavery which originates in war ought to be called just :
‘Certain people, regarding only a part of what is just (for a law is
something just),? declare that slavery arising through war is just.
But they do not say absolutely just; for it may happen that the
cause of war was not just.’ Similar is the saying of Thucydides in
the speech of the Thebans: ‘We do not thus complain regarding
those whom you slew in battle; for that fate befell them in accord-
ance with a kind of law.’

2. ‘Thus the Roman jurists themselves at times characterize as
a wrong what they often define as the right of captivity; and they
contrast it with natural right. Seneca, having in mind what often
occurs, says that the name of slave has sprung from a wrong. In
Livy also the Italians, who retained the things which they had taken
in war from the Syracusans, are called stubborn in retaining their
wrongful gains. Dio of Prusa, having said that those captured in
war recovered their liberty if they returned to their own people,
[510] adds, ‘ just as those who were wrongfully in servitude’.

Lactantius,? in speaking of philosophers, says: ‘ When they are
discussing the duties that belong to the military life their whole
argument is adapted not to justice, nor to true virtue, but to this
life and to the practice of states.’ Shortly after, he says that wrongs
have been legally inflicted by the Romans.

Ill.—W hat is done by reason of an unjust war is unjust from the point
of view of moral injustice

In the first place, then, we say that if the cause of a war should
be unjust, even if the war should have been undertaken in a lawful

1 Seneca, To Heluta, vi [On Consolation, vii], says: ‘Some have acquired for themselves by force of
arms a right over territory belonging to others.’ There seems to be a conflict between ‘right’ and
, besonging to others’. But they may be reconciled, as the text here shows. Consult what is above
in ITI. iv. 2.

* However, Augustine in his fourth letter, which is addressed to Marcellinus [Letters, cxxxviii. 14],
writes: ‘ And therefore, if this earthly commonwealth should observe the teachings of Christ, even wars
would not be waged without kindness.’ In deahng with the diverse practices of the Church the same
writer says [cf. Decretum, IT. xxiii. 1. 6]: ‘Among the true worshippers of God even wars are brought
to a state of peace.’ | !

Chap.X] Things which ave done in an Unlawful War 719
way, all acts which arise therefrom are unjust from the point of view
of moral injustice (interna iniustitia). In consequence the persons
who knowingly perform such acts, or co-operate in them, are to be
considered of the number of those who cannot reach the Kingdom
of Heaven without repentance. True repentance, again, if time and
means are adequate, absolutely requires that he who inflicted the
wrong, whether by killing, by destroying property, or by taking
booty, should make good the wrong done.!

Thus God says He is not pleased with the fasting of those who
held prisoners that had been wrongfully captured’; and the king
of Nineveh, in proclaiming a public mourning, ordered that men
should cleanse their hands of plunder, being led by nature to recognize
the fact that, without such restitution, repentance would be false
and in vain. We see that this is the opinion not merely of Jews?
and Christians, but also of Mohammedans.*

IV.—W ho are bound to make restitution, and to what extent

Furthermore, according to the principles which in general terms
we have elsewhere set forth, those persons are bound to make restitu-
tion who have brought about the war, either by the exercise of their
power, or through their advice. Their accountability concerns all
those things, of course, which ordinarily follow in the train of war;
and even unusual things, if they have ordered or advised any such
thing, or have failed to prevent it when they might have done so.

Thus also generals are responsible for the things which have
been done while they were in command; and all the soldiers that
have participated in some common act, as the burning of a city, are
responsible for the total damage. In the case of separate acts each
is responsible for the loss of which he was the sole cause, or at any
rate was one of the causes.

V.—W hether things taken in an unjust war are to be restored by him
who took them

I. I should not think that we ought to admit the exception,
which some introduce with regard to those who furnish their services

+ Numbers, v. 6 [and 7]. Jerome, To Rusticus, says: ‘The pronouncement of vengeance is not
cancelled unless the whole is restored.’ Augustine, in a letter to Macedonius, which is liv [ Letters, cliii.
20], writes: ‘ If the property of another, for the sake of which the sin was committed, can be returned,
and it is not returned, repentance is not felt but pretended.’ This is cited by Gratian, in the Decretum,
IT. xi. 6 [II. xiv. 6. 1].

4 There is a significant passage in Isaiah, lvill. 5,6 and 7. You find it in Greek in Justin Martyr,
Dialogue with Trypho [xv].

3 See the penitential canons of Moses Maimonides, ii. 2. Also Moses de Kotzi, Precepis Bidding, 16.

4 See Leunclavius, Turkish H1story, V and XVII.

1569-27 3¢

r Cor., vi.
Io.

Jonah, 11.
ro [iii. 8].

Precepts of
the Law,
Precepis
Bidding,
16,

Sylvester,
word
bellum, 1,
nos. Io, rr
andi2;
Covarru-
vias, On
Sext, V.
ult. 4, pt.
11, § 2, no.
8; Lessius,
Il. xiii,
dub. 4.
Add Dzg.
XLVITI, 11.
2I.§9.

Sylvester,
loc. ctt.,
no, 10.

Vazquez,

Controver-
siae Illus-
tres, I 1x.
17; Mo-

lina, disp
118, § wé

vero

IX fi. 5].

VIII
[xxxix.
ro].

See above,
II. x1.

See above,
II. ix,

VI, ¥.

On the Law of War and Peace [Book III

720

to others, in case some blame should attach to them. Fault without
evil intent is in fact sufficient to warrant restitution. There are
some who seem to think that things captured in war, even if there
was not a just cause for the war, should not be restored. ‘The reason
they allege is that those who fight with one another, in entering
upon war, are understood to have given these things to the captors.
But no one is presumed to risk his property rashly ; and war of itself
is far removed from the nature of contracts.

However, in order to give to peoples that were at peace a certain
rule to follow, that they might avoid being involved in war against
their will, it was sufficient to introduce the idea of legal ownership
(externum dominium) of which we have spoken, which may exist along
with the moral obligation (interna obligatio) of restitution. ‘The
writers themselves seem to enunciate this in connexion with the law
of the captivity of persons. Thus in Livy the Samnites say: ‘We
have restored the property of the enemy taken in the spoil, which
seemed to be ours by the law of war’; ‘seemed’, he says,
because that war had been unjust, as the Samnites had previously
acknowledged.

2. A not unlike case is that arising from a contract entered
into without fraud, in which there is an inequality. In such a case
by universal common law there arises a power of some sort to compel
him who has made the contract to fulfil his agreements; neverthe-
less, in accordance with the duty of an upright and honourable man,
he who has contracted for more than is right is none the less bound
to reduce the transaction to an equality.

VI.—W hether things taken in an unjust war are to be restored by him
who holds them

1. But he who has not inflicted the loss himself, or has inflicted
loss without any fault of his own, and has in his possession a thing
taken from another in an unlawful war, is under obligation to return
it, because there is no naturally just reason why the other should
go without it [511] —neither his consent, his deserving of evil, nor
recompense. In Valerius Maximus there is a story which bears on
this point :

After Publius Claudius had sold at auction the people of Camerina, captured under
his leadership and auspices (he says), the Roman people, although they saw that the
treasury had been enriched with money and their land increased by an accession of

territory, nevertheless with the greatest care sought out and redeemed these people,
and assigned to them a site on the Aventine to dwell upon, and restored their estates,!

1 Antony compelled the Tyrians [512] to restore all that they held belonging to the Jews.
He ordered that the men whom they had sold should be set free, and that goods should be restored

Chap.X] Things which are done in an Unlawful War 721

because it seemed that the good faith of the commander in this exploit was not beyond
reproach.

In like manner by a decree of the Romans the Phocaeans received
back both their freedom as a state and the lands which had been
taken from them. Afterward the Ligurians,! who had been sold by
Marcus Pompilius, recovered their liberty through the return of the
purchase price to their buyers, and care was taken to restore their
possessions. ‘The Senate passed a similar decree with regard to the
people of Abdera, adding as a reason that an unlawful war had been
waged against them.

2. Still, in accordance with the principles which have been
elsewhere explained, it will be possible, if the person who holds the
thing has incurred any expense or labour, to deduct as much.as the
thing was worth to the owner, to recover the possession of which he
had despaired. But if the possessor of the thing has, through no
fault of his own, consumed or alienated it, he will not be held respon-
sible except in so far as it may be held that he has been thereby

enriched.

to their owners; Josephus, Antzguzties of the Jews, XIV [XIV. xii. 5]. To the Parthians Macrinus
restored the prisoners and booty, because there had been no reason for the Romans breaking the
peace: Herodian, Book XIV, end [IV. xv. 6]. The Turk Mahomet ordered the liberation of those
who had been in the city of St. Mary in Achaia; Chalcocondylas, Book IX [=p. 479, ed. Bekker].

1 See Diodorus Siculus, Excerpia Pezrescrana [p. 298].

302

Livy,
XXVIII
[XXXVITI.
XXXIX. 12]

Livy,
XLII
[vuii. 7]
[Livy,]
LXIII
[XLIII. iv
13]

fII. x. 9]

Lucan
[Pharsala,
I. 349].

On Duties,
I [xi. 33].

On Duties,
IT [vizi.
26].

On Cle-
mency, IT.
iv.

li=p. 94
A.]

From the
Pontus,
IX [1. viii.
rg f.].

[Platazc,
Vill=p.
298 B ]

CHAPTER XI

MODERATION WITH RESPECT TO THE RIGHT OF KILLING IN
A LAWFUL WAR

I.—In a lawful war certain acts are devotd of moral gustice ; a condition
which 15 explained

1. Not even in a lawful war ought we to admit that which is
said in the line,
He, who refuses what is just, yields all.

Cicero’s point of view is better: ‘ There are certain duties which
must be performed even toward those from whom you have received
an injury. There is in fact a limit to vengeance and to punishment.’ *
The same writer praises the ancient days of Rome, when the issues
of wars were either mild or in accordance with necessity.

Seneca calls those persons cruel who ° have a reason for punish-
ing, but observe no limit’. Aristides, in his second speech On Leuctra,
says: ‘Men may, men may indeed be unjust in avenging them-
selves, if they carry vengeance beyond measure. He, who in punish-
ing goes so far as to do what 1s unjust, becomes a second wrongdoer.’
Thus, in the judgement of Ovid, a certain king,

Avenging himself to excess,
And slaughtering the guilty, guilty himself became.

2. In a speech of Isocrates the Plataeans ask, ‘ Whether it is
just to exact so severe and unjust penalties for so trivial wrong-

1 [525] See what hasbeen said above, II. xx. 2 and 28, and the passages of Augustine, which we have
just cited [on ITI. x. 2. 2], on the benevolence of Christians even in warfare. Aristotle, Poltizcs, V. vi,
relates penalties harsher than was just, which ‘as a consequence of partisan zeal’ were exacted at
Thebes and Heraclea. Thucydides, ITI [ITI. lxxxii], mentions ‘ punishments greater than was just’.
Tacitus, Annals, III [III. xxviii], says: ‘Pompey did more harm with his remedies than did the
wrongs which he tried to correct.’ The same writer in the same book [chap. xxiv] blames Augustus
because, in his punishment of adultery, he transgressed ancestral clemency and his own laws. Juvenal
[Sattres, x. 314 ff.] writes:
Sometimes, again, resentment more exacts
Than any law to it concedes.

_ Quintilian declares [Declamaizons, VI. x]: ‘It is only from the extreme parricide that punishment
is exacted beyond human measure.’ The Emperor Marcus [Aurelius] Antoninus, according to Vulcacius
in the Life of Autdtus Cassius [chap. x1], said: ‘I shall write to the senate to prevent any too serious
proscription or too cruel punishment.’ Ausonius said [Cupido Cruci Affixus, Il. 93, 94]:
And greater than his crime
His punishment appeared.

_ Ammianus, XXVI [XXVI. x. 6], writes: ‘Vengeance was meted out to many more bitterly than
their errors or their crimes demanded.’ There is a similar passage in Agathias, Book III [TV. vi].

722

Chap. XI] The Right of Killing in a Lawful War 723
doings?’ The same Aristides, whom we have cited above, in his
second oration On Peace, says: ‘Do not merely consider the
causes for which you are going to exact punishment, but also who
they are from whom the punishment is to be exacted, [513] whowe
ourselves are, and what is the just limit of punishments.’ Minos is
praised in Propertius because,

Although a victor, just to the foe he was; 1+

and also by Ovid:

Lawgiver most upright,
He laws imposed upon his conquered foes.

IIl.—Who may be killed in accordance with moral gustice

When it is just to kill—for this must be our starting point—in
a lawful war in accordance with moral justice (tustitia interna) and
when it is not just to do so, may be understood from the explanations
which were given by us in the first chapter of this book.

Now a person is killed either intentionally or unintentionally.
No one can justly be killed intentionally, except as a just penalty or
in case we are able in no other way to protect our life and property ;
although the killing of a man on account of transitory things, even
if it is not at variance with justice in a strict sense, nevertheless is
not in harmony with the law of love. However that punishment
may be just, it is necessary that he who is killed shall himself have
done wrong, and in a matter punishable with the penalty of death
on the decision of a fair judge. But we shall here say less on this
point, because we think that what needs to be known has been sufii-
ciently set forth in the chapter on punishments.

III.—No one may rightly be killed because of his wll-fortune ; for example,

those who take sides under compulsion

1. Previously, in discussing suppliants—for there are sup-
pliants in war as well as in peace—we distinguished ‘ill-fortune’
(ardvynua) and ‘wrong’ (d8tcnua). Gylippus, in the passage of
Diodorus Siculus which we then quoted in part, asks in which
class the Athenians should be placed, in that of the unfortunate or
that of the unjust. He declares that they cannot be regarded as
victims of ill-fortune, seeing that, of their own accord, and unpro-
voked by any wrong, they had waged war upon the Syracusans. He

1 Ovid, Trista, I. viii [I. ix. 35}
Even to the wretch is justice due, and toward a foe
*Tis praised.

(=p. 77 A4.]

[Elegzes,
III. xix.
27 f.]

[Metamor-
phoses,
VIII. ror
f]

Victoria,
On the Law
of War,
nos. 36
and 45.

(II. xxi.
5. I.]

[XIIT.
xxix.]

IT [xxi].

XXVI
[XXVII.
XV. 13}.

For
Quinivus
[1i. 6].

bi. 5]

AAI [xu

20].

724 On the Law of War and Peace [Book III

concludes that, since of their own initiative they had undertaken the
war, they must also in their own persons endure the evils of the war.

An example of the victims of ill-fortune are those who are in
the ranks of the enemy without hostile intent, as the Athenians were
in the time of Mithridates. Of these Velleius Paterculus speaks
thus:

If any one blames the Athenians for this period of rebellion, when Athens was stormed
by Sulla, he is indeed ignorant both of the truth and of antiquity. So steadfast was the
loyalty of the Athenians to the Romans, that at all times and in every matter the Romans
declared that whatever was carried out in good faith was done with Attic loyalty. But
at that time, oppressed by the forces of Mithridates, the men of Athens were in a most
pitiable condition. While they were in the grasp of the enemy, they were besieged
by their friends, and they had their hearts outside the walls while their bodies, by con-
straint of necessity, were within.

The end of the quotation may seem to have been adapted from
Livy ; in this author the Spaniard Indibil says that, although his body
was with the Carthaginians, his heart was with the Romans.

2. ‘Beyond doubt’, as Cicero says, ‘all men whose lives are
placed in the power of another more often think what he, under
whose authority and sway they are, is able to do, than what he ought
todo.’ The same author, in his speech For Ligarius, declares: ‘ There
is a third time, when he remained in Africa after the arrival of Varus ;
but if that is criminal, it is a crime of necessity, not of will.’ The
principle was applied by Julian in the case of the Aquileians, as we
learn from Ammianus. ‘This author, after recounting the punish-
ment of a few persons, adds: ‘ All the rest departed unharmed ;
necessity, not intention,’ had driven them into the madness of
strife.’

1 Shortly after he adds: ‘ For so the mild and kindly emperor, considering what was fair, had
decided.’ Thucydides, Book ITI [ITI. xxxix], n the speech of Cleon, says: ‘I pardon those who
deserted us under pressure from the enemy.’ This is called a consideration of extreme necessity by
Paul, in his Sententtae, V.i[V.i. 1]; for surely, as Synesius says, ‘ Necessity is something strong and
violent.’ Juvenal says of the Calagurritani [Sanves, xv. 103 f.]:

For who of men or gods forgiveness would refuse
To men who had such dire and dreadful sufferings endured ?

On the necessity imposed by famine, see Cassiodorus, [Variae,] IX. xiii. Pertinax says of Laetus
and others: ‘ They obeyed Commodus unwillingly, but, when they had the opportunity, they revealed
what they had always wished’ [Capitolinus, Life of Pertimax, v]. Cassius Clemens in Xiphilinus’s
narrative of Severus [LX XIV. ix] declares: ‘I knew neither you nor Niger; but, being left in the
region which he had seized, I did what was necessary ; I obeyed the actual ruler, not with the intention
to make war upon you, but to drive out Julian.’ When Aurelian entered Antioch, where many had
sided with Zenobia, he issued an edict ‘ attributing what had transpired rather to the necessity imposed
upon unwilling persons than to their real desires’ [Zosimus, I. li].

In Procopius, Vandalzc War, I [I. xx], Belisarus says: ‘ For all the Africans were subject to the
Vandals against their will.’ In the same wnter. Gothite War, ITI [III. vii], Totila says to the Neapoli-
tans that he knows that they have been unwillingly subject to the enemy. Moreover, Nicetas, or
the continuator of his history, in speaking of [526] Henry, the brother of Baldwin, writes [U7bs
Capia, xii]: ‘He gave orders that the inhabitants of the city be slaughtered, as though they were
cattle or sheep, and not Christians who were being put to death, and particularly such as had yielded
to the Blachi under constraint and not by persuasion, and who had not voluntarily obeyed them.’

Chap.XI] The Right of Killing in a Lawful War 725

On the passage of Thucydides regarding the Corcyraean prisoners
who had been sold, an ancient commentator remarks: ‘ He reveals
a clemency worthy of the Greek character; for it is cruel to kill
prisoners after a battle, especially slaves, who do not wage war of
their own will.” In the speech of Isocrates, already mentioned, the
Plataeans assert: [514] ‘ We served them’ (the Lacedaemonians)
‘not willingly, but under compulsion.? The same writer says of
others of the Greeks: ‘These were compelled to follow their side’
(that of the Lacedaemonians) ‘in body, but in spirit they were with
us.” Herodotus had previously said of the Phocians: ‘ They sided
with the Medes, not willingly, but by force of necessity.’

As Arrian relates, Alexander spared the Zelites ‘ because they
had been compelled to serve on the side of the barbarians’. In
Diodorus, Nicolaus of Syracuse says in his speech on behalf of the
prisoners: * The allies are compelled to take the field by the power
of those who have authority over them; therefore, as it is fair to
punish those who do wrong with intention, so it is right to pardon
those who do wrong against their will.’ Similarly, in Livy the Syra-
cusans, in clearing themselves before the Romans, say that they had
broken the peace because they were confused by fear and treachery.
For a like reason Antigonus declared that he had been at war with
Cleomenes, not with the Spartans.

IV.—No one may rightly be killed on account of a fault that 1s tnter-
mediate between l-fortune and deceit ; the nature of such a fault
1s explained

I. But it must be observed that between absolute wrong and
unmitigated ill-fortune a mean may often intervene which is com-
posed, as it were, of both elements. In such a case the action cannot
be called purely that of a man having knowledge and intent, nor
purely that of a man not having knowledge or acting against his will.

2. To this class of actions Aristotle applied the term “ fault ’
(dpdprnpa), which may be rendered in Latin by culpa. Thus, in the
fifth book of the Ethics, the tenth chapter, he speaks as follows :

Of those things which we do of our own accord, some we do deliberately, others
without premeditation. Those are said to be done deliberately which are done after
a certain previous mental consideration; what is done otherwise is done without pre-
meditation. Since, therefore, in human intercourse the infliction of injury may occur
in three ways, that which proceeds from ignorance is called a mistake; as when a person
has done something not against him whom he had in mind, or has done what he did
not have in mind, or not in the way he thought, or not with the expected result ; as if
some one thought that he was striking not with this instrument, nor this man, nor for
this cause, but there happened what he had not intended. An example would be if
a man wished to prick, not to wound, or not to do it to this man, or not in this way.

I [lv].

[Platatc,
Rii = p.299
A.]

IX [xvi].
IT [xvii].
XIII

[xxvii].

XXV
[xxix. 3].

Justin,
XXVIII
liv. 13.]

[Rhetorzc,
I. xiu.]

On the Ni-
comachean
Ethics,
VIL. ii,

720 On the Law of War and Peace [Book III

Now when the hurt 1s done contrary to expectation it will be a mishap. But if
the injury could have been in any way expected, or foreseen, and yet is not inflicted
with evil intent, there will still be a degree of fault; for he is very near to a fault who
has in himself the origin of the action, while he is unfortunate if the origin is outside
of him. Whenever a person acts with full consciousness of what he does, yet not after
deliberation, we must admit the presence of wrong, as in the acts which men are wont
to commit under the influence of anger and similar natural or unavoidable emotions.
For those who inflict injury when stirred by anger, and admit their fault, are not cleared
from wrong, but yet they are not said to be unjust or wicked. But if any one commits
the same act deliberately he will rightly be styled wicked and unjust.

3. Consequently, what is done under the influence of anger is correctly held not to
have been done with premeditation. For it is not he who does something from anger,
but he who has caused the anger, that started the trouble. Hence it often happens that
in trials of this sort the inquiry is directed not to the facts but to other rights of the
parties; for anger arises from that which any one thinks has been wrongfully done to
him. Therefore the question under discussion is not whether this or that has been done,
as in dealing with contracts—for in the case of a contract, unless there has been forget-
fulness, the one of the two parties who has not fulfilled his obligation is clearly in the
wrong—but the purpose is to discover whether what has been done has been done
justly.

Now a person who first plotted treachery did nothing in ignorance; wherefore it
is not strange if the one should think that he has been wronged, and the other should
not think so. Nevertheless, it is possible that he who in turn inflicts an injury on such
a ground should be considered unjust, particularly if he exceeds the rule of equality
and proportion in his reprisal. Therefore he is just who acts justly from deliberate
purpose, although any one may act justly [515] if he merely acts voluntarily, without
deliberation,

4. But of the things which are not done on the spur of the moment, some are deserving
of pardon, and others not. Deserving of pardon are those which are not only done by
ignorant persons, but also done in consequence of their ignorance. If something is
done by ignorant persons, yet not because of their ignorance, but from such a diseased
mental state as goes beyond the common limits of human nature, it is not deserving of
your pardon,

This passage, which is truly notable and has been much used,
I have rendered into Latin in its entirety, because in most cases it
is not correctly translated and therefore not adequately understood.

5. In interpreting ‘this passage Michael of Ephesus gives as an
example of that which could not have been expected the case of
one who injured his father when opening a door, and of one who
wounded somebody when training himself in throwing the javelin
in a deserted spot. As an example of what could have been foreseen,
but happens without malice, is the case of him who has thrown his
javelin on a public road. The same writer gives as an example of
what is done under necessity the case of him who is compelled to do
something by hunger or thirst ; of what is done from natural emotions
are cases of love, grief, fear. He says that something is done through

1 Dionysius of Halicarnassus, I [I. lviii], says: ‘ Everything that is not done voluntarily is worthy
of pardon.’ And Procopius, Gothic War, III [III. ix]: ‘If any persons have caused trouble to others,
either because they have been under the domination of ignorance, or by reason of some forgetfulness,
it is right that those very persons who have suffered the injuries should grant them forgiveness.’

Chap.XI] Lhe Right of Killing in a Lawful War 727

ignorance when one is ignorant of a fact, as if some one should not
know that a woman is married. Something is done by one who is
ignorant, but not through ignorance, when one is ignorant of the
law. However, to be ignorant of the law is at times pardonable, at
times unpardonable; and this agrees very well with the sayings of
the jurists.

A passage not unlike this Aristotle himself has in his book on the
art of oratory: ‘ Justice demands that we should not treat alike
wrongs and faults, nor faults and misfortunes. Now misfortunes are
things which could not have been foreseen, and are not committed
with evil intent ; faults, things which could have been foreseen, yet
are not done with evil intent; wrongs, things done purposely and
with evil intent.’ The ancients also noted these three things, and in
the verse of Homer on Achilles, in the last book of the Iliad, we
read :

Not ignorant is his mind, nor evil, nor imprudent.

6. Marcianus makes a similar division :

Men do wrong either purposely, or on impulse, or by accident. Robbers, who form
a band, do wrong purposely ; those who resort to blows or to weapons when intoxicated
do wrong on impulse; and when in hunting a missile cast at a wild beast kills a man
the wrong is done by accident.

The two former classes of wrongs, those done purposely and
those done on impulse, are distinguished by Cicero in the following
manner: * But in every act of injustice it is of the greatest moment
whether the wrong is done from some mental excitement, which is
usually brief and temporary, or designedly and upon reflection.
For what happens from some sudden impulse is less serious than what
is inflicted after meditation and preparation.’ Philo,? moreover, in
his interpretation of the Special Laws, speaks thus: ‘ The crime is
lessened by half where it has not been preceded by long deliberation.’

7. In this class are, in particular, those things which necessity,
if it does not justify them, at least excuses.* In fact, as Demosthenes

1 Seneca, On Anger, I. xvi [I. xix], says: ‘ He frequently discharges [the culprits] if he perceives
that their wickedness does not dwell in the depths, as they say, of the heart, but on the surface.’ And
then: ‘Sometimes he punishes great crimes more leniently than lesser ones, if the great crimes have
been committed from error and not from cruelty, while in the lesser crimes there is ingramed cunning,
both secret and open.’

The same author says also: ‘A crime will not affect people in the same way in the case of two
persons if the one has done wrong through carelessness, and the other has laid plans for his guilty deed.’

2 On Special Laws, IT [TII. xvii].

* Add what is above in II. xx. 29, and in this chapter, ITI. xi. 3, above. In Thucydides, Book III
[III. xxxii], the Samians said to Alcidas the Lacedaemonian, when he put to death the Chian prisoners,
that ‘ he did not speak the truth in saying that he had come to set Greece free, seeing that he put to
death men who did not actively oppose him, and were not hostile in spirit, who were in fact allies of the
Athenians, but had been driven to that course by necessity’.

Chrysostom, On Providence, V, says: ‘ Private enemies know how to pardon private enemies,
and public enemies public enemies, whenever these commit some wrong, however serious, against them

Digest,
XXII vi
Code, I.
[Rhetorte, ]
I [xi1.]

[XXIV
157 and
186.]

Digest,
XLVIII.
xix. II

[§ 2].

On Duties,
I [viii. 27].

[xxii 148
=pp 668-
9]

[xlv 67
=p 1122]
[IV xcviu ]

VII fxx.
5

VIII fh.
TO}.

[Porphyry,
On Ab-
staining,

III xvuti.]
[=p. 145
c.]

[Lives of
the So-
phasis, II.
XV. 2.]

[Nic. Eth.,
VII xi]

[Oratrons,
Vu= p. 93.]

728 On the Law of War and Peace [Book ITI

says, Against Aristocrates: ‘ Impulses arising from necessity prevent
deliberation regarding that which ought or ought not to be done.
Wherefore these actions must not be judged with too much strict-
ness by those who would judge fairly.’ This view is expressed at even
greater length by the same orator in his speech on false testimony,
Against Stephanus. ‘Thucydides, Book IV, says :

We may well believe that with [516] deity also there is pardon ready for those
who do wrong under the constraint of war or some similar necessity. For the altars
of the gods are open as a refuge for unintentional faults ; and the term injustice is applied

to those who are wicked of their own volition, not to those who are driven by extremity
to desperate deeds.

In Livy the people of Caere say to the Romans: ‘ They should
not term counsel what should be called compulsion and necessity.’
Justin writes: ‘ The act of the Phocians, although it was condemned
by everybody on the ground of sacrilege, nevertheless aroused greater
animosity toward the Thebans, who had reduced them to this
extremity, than toward themselves.’ Similarly, in the opinion of
Isocrates, the person who, to save his life, commits an act of plunder,
‘has necessity as a cloak for his wrongdoing’. Aristides, in his
second speech On Leuctra, says: ‘Hard times give some excuse to
those who revolt.’

Regarding the Messenians who had been accused of not having
received the exiles from Athens, Philostratus writes as follows:
‘Their defence rests on a request for pardon; their excuse is
Alexander, and the fear of him which was felt by every part of
Greece.’ Such is the man whom Aristotle describes as ‘half bad,
but not unjust ; for he plotted no evil’.?

In his praises of the Emperor Valens, Themistius applies these
distinctions to the requirement of our subject as follows:

You have distinguished between wrong, error, and misfortune.® Although you are

not learning the words of Plato, nor perusing Aristotle, nevertheless in fact you are
following their precepts. For you did not hold that equal punishment was deserved

unwillingly and contrary to their own desires.’ In Agathias, III [IV. xx], the Misimiani declared that
‘ they were not altogether unworthy to be spared and pardoned, when, after having suffered a multitude
of wrongs, they had consequently been impelled to take revenge with true barbanc vehemence’.

1 Deuteronomy, xxii. 26; Moses Maimonides, Gurde of the Perplexed, III. xli.

* ‘On this charge Cleon attacks the cause of the Mityleneans, in Thucydides, III [III. xl]: ‘ They
did not injure us unwillingly, but they plotted against us purposely. That alone is deserving of pardon
which one does against his will.’ Philo, in his book De Constttutsone Principts [xii], says: ‘ If he must
proceed to take vengeance, he knows how to distinguish between those who lead a life of intrigue
and those who are of a far different spirit. For to proceed to slaughter all, even those who have
committed the least sins [or none at all], is characteristic of a fierce and savage mind.’

> [527] Seneca, Natural Questions, II. xliv, where he discusses thunderbolts, says: ‘ They
wished to warn those, whose duty it 1s to thunder against the sins of men, that all things are not to be
struck in the same way ; some ought to be demolished, some shattered and separated, and some warned.’

* Such a one was Trajan, one of the notable Roman emperors: ‘ He was not master of that exact
learning which is expressed in words, but its content he both knew and practised’ ; Xiphilinus [LXVIII.

. 4]. »
Herodian [I. ii. 4] writes of Marcus Aurelius: ‘He was the only one of the emperors to reveal

Chap. XT] The Right of Killing in a Lawful War 729
by those who had advocated war from the first, those who were later caught in the rush
to arms, and those who submitted to him who seemed already to be master of the situa-
tion; but the first you condemned, the second you reproved, and the last you pitied.

8. The same author, in another connexion, expresses the desire
that an emperor in his youth should learn, ‘ What is the difference
between misfortune, error, and wrong; and how a king should pity
the first, correct the second, and visit with vengeance the last alone.’
Thus, in Josephus, Titus punishes the single leader in a criminal
act ‘in reality’, and his following ‘in speech’, with mere verbal
castigation.

Mere misfortunes neither deserve punishment nor create a
liability to restoration of damage. Unjust actions do both. Fault,
lying between the two, although it renders the responsible party
liable for restitution, yet often does not deserve punishment, especially
capital punishment. To this the lines of Valerius Flaccus are
applicable :

If fortune cruel, kin to fault, o’ertakes
Those ill-starred ones whose hands are stained with blood
Against their will, their conscience vexes them

In divers ways, and in their idle hours
Their deeds torment them.

V.—Those who are responsible for a war are to be distinguished from
those who follow them

The counsel of Themistius, who warns us that we must dis-~
tinguish between those who were responsible for a war! and those
who followed the leadership of others, is supported by numerous
historical examples. Herodotus relates that the Greeks exacted
punishment from those who instigated the Thebans to desert to the
Medes. So too, as Livy relates, the leaders of the revolt of Ardea
were beheaded. In the same author, Valerius Levinus, ‘ after the
capture of Agrigentum, scourged and executed the leaders, [517]
but sold the rest of the people and the booty’. In another passage
Livy says: ‘The surrender of Atella and Calasia was accepted ;
and there also those who had been in control were punished.’ In
still another passage: ‘Since those responsible for the revolt have
received the punishment they deserved from the immortal gods and
from you, conscript Fathers, what do you wish should be done with
the innocent populace?’ ‘At length they were pardoned, and were

his wisdom, not by words or the knowledge of doctrines, but by sound morality and a life of moderation.’
Of Macrinus, Xiphilinus [LX XVIII. xi. 2] writes: ‘ His conscientiousness in the execution of the laws
surpassed the accuracy of his knowledge of them.’ Grant, O Lord, such princes to our time!

1 See Gail, De Pace Publica, IT [I1. ix], no. 18.

(x= p.
123.]

Jewish
War V
[ii1. 5].

(III. 392 ff.

IX
(ixxxvili].

IV [x. 6].
XXVI [xl.
13].

[XXVI.
xvi 5]

(VIII. xx.
II.]

AXVIII
{xxvi 3].

[Sup-
plants,
878 £ |]

ili
[xxxvl].

(XXI. x]

Victoria,
On the Law
of War,
no. 59.

II [xvi.
25].

On Cile-
mency, II.

VII [xx 2].

(Appian,
Syrian
Wars, lv.
21.]

(= p. 135
BC]

[I. xi. 35.]

(Plutarch,
Demetrius,
vV=p. 8or
A]

III [vi. 4].

On the Law of War and Peace [Book III

739

granted citizenship, with the purpose’, no doubt, as he elsewhere
says, ‘that the punishment might remain where the guilt arose.’
In Euripides, Eteocles the Argive is praised because—

When he was judge, the culprit bore the blame,
And not his native city, which ofttimes
Bears the reproach for misdeeds of the ruler.

The Athenians, according to Thucydides, repented of their decree
against the inhabitants of Mitylene, ‘that they should put to death
the whole city rather than merely the instigators of the revolt’.
Diodorus relates that Demetrius, after taking Thebes, executed only
the ten persons responsible for its defection.

VI.—With regard to those who are responsible for a war we must dis-
tinguish between causes which may be and those which may not be
approved

1. Further, in considering those who are responsible for a war,
we must distinguish between the causes of their action; for there
are some causes which are not indeed just, but still are such that
they may deceive persons who are by no means wicked. The author
of the 4d Herennium suggests this as a perfectly equitable reason for
pardoning : when any one has done wrong not from hatred or cruelty,
but moved by a sense of duty and righteous zeal. Seneca’s wise man
‘will dismiss his enemies safe and sound, at times even with praise,
if they have taken the field on honourable grounds, on behalf of
loyalty, a treaty obligation, or liberty’.

In Livy the people of Caere seek pardon for their error 1 because
they gave aid to their kinsmen. ‘The Phocians, Chalcidians, and
others, who had supported Antiochus on the ground of a treaty,
received pardon from the Romans. Aristides, in his second speech
On Leuctra, says that the Thebans, who had followed the leadership
of the Lacedaemonians against the Athenians, ‘had shared in an
action unjust indeed, but one which they could cloak with some
plea of justice, that of loyalty to the heads of their league’.

In his first book On Duties Cicero says that we must spare those
who were not cruel, not inhuman, in war; then, that wars, in which
the prize is glory of empire, should be waged with less bitterness.
In this sense King Ptolemy informed Demetrius that ‘ They were
fighting not for existence, but for empire and glory’. In Herodian ?

1 © Sometimes one should pardon a ruler who has been conquered, if he did not know what was
just.’ Copied from Isocrates by Ammianus, Book XXX [XXX. viii. 6].

* The Greek words are these: wai Nivpy uty moAcpotyres ovx otTws ebAdyous elxopey airias
€xOpas, ws dvarykalas, ob yap wap’ july mpovndpxovoay dpxyiy tpaprd(ay peplonro, tv péow dé
éppippevny Kat Gypnpicroy obcav, éxarepos hui ef iooripov gidotipias els abroy avOetAxer.

Excellently said.

Chap. XJ] The Right of Killing in a Lawful War

731

Severus says: ‘When we waged war against Niger, we had not in
fact such specious grounds for enmity; for each of us with equal
ambition sought to secure for himself the principate, which lay
open to all and was still an object of dispute.’

2. Often there occurs what we find stated in Cicero regarding
the war between Caesar and Pompey: ‘There was some uncer-
tainty; there was a contest between the most eminent generals ;
many were in doubt as to what it would be best to do.? The same
author says elsewhere: ‘Even if we are guilty of some fault arising
from human error, we are certainly guiltless of crime.’ Evidently,
as in Thucydides, those acts are said to deserve pardon which are
done, ‘ not from wickedness, but rather from an error of judgement ’.

Cicero says also of Deiotarus: ‘He did not act from hatred
of you, but he went astray through a common error.’ Sallust writes
in his Aistortes: ‘Of the rest of the crowd, after the fashion of
a mob rather than prudently, the one followed the other as wiser
than himself.’ What Brutus wrote with regard to civil wars might,
I should think, well be referred to most other wars: ‘ More zeal
should be shown in preventing them than in giving vent to wrath
against the vanquished.’ *

VIl.— Punishment may often be remitted justly even to enemies who
have deserved death

I. Even where justice does not demand the remission of punish-
ment, this is nevertheless often in conformity with goodness, [518]
with moderation,? with highmindedness. ‘The greatness of the
Roman people has been augmented by pardoning,’ says Sallust.
From Tacitus we have: ‘We ought to make use of as great kindness
towards suppliants as tenacity against an enemy.’ Seneca says: ‘It
is characteristic of wild beasts, though not of the higher types, to
bite and worry those that have been struck down. Elephants and
lions pass by what they have thrown over.’ These words of Virgil
are often timely,

Not here undone the Trojan’s victory,
Nor will one life decide so great an issue.

2. On this point there is a notable passage in the fourth book
of the Ad Herennium :

Our ancestors did well in establishing this practice, not to put to death any king
whom they had made prisoner in war. Whyso? Because it was unjust to take advantage

1 Bembo, IX.

* King Theodoric mm Cassiodorus, [Varrae,] II. xli: ‘Those wars have tumed out successfully
for me which have been terminated without resort to extreme measures; for he conquers effectively
who knows how to exercise moderation in all things.’

For M
Marcellus

(x. 30].

[v.23 ]

(I. xxxii ]

[For King
Deiotarus,
111, I0.]

[To Caesar
on Public
Adminis-
tration, I.
li. 4.]
Cicero,
Letters to
Brutus, it
(I iia].

[Speech of
Phasltp, vi.]

Annals,
XIT [xx].

On Cle-
mency,
I v.

[A enerd,
X 5281.3

[IV

XV1. 23.]

[Eume-
nius,
Panegyric,
vi. 10 J

See
Plutarch,
Aemilius
Paulus
[Xxxvli

=p. 274F].

[Jewish
War, VII.
v 6]

On the Law of War and Peace [Book III

732
of the opportunity which fortune had given us for the punishment of those whom that
same fortune had but shortly before placed in a most exalted station.

What of the fact that he led an army against us? I cease to recall it. Why so?
Because a brave man holds as enemies those who strive for victory, but considers as men
those who have been conquered, in order that courage may lessen war, and humaneness
enrich peace. But if he had conquered, he would not have done the same, would he?
Why then do you spare him? Because I have been accustomed to despise such folly,
not to imitate it.

If you take this with reference to the Romans (a point that is
uncertain, since this writer uses foreign and imaginary examples), it
is in direct opposition to what we find in the panegyric addressed to
Constantine, the son of Constantius :

He may be more prudent who binds his adversaries to him by pardon, but he is
stronger who tramples upon those that are angry. You, Emperor, have received that
ancient trust of the Roman Empire, which was wont to exact the vengeance of death
from the captured leaders of the enemy. In those days captive kings, after having adorned
the chariots of those celebrating triumphs, from the city gates to the forum, as soon
as the victorious general began to turn his chariot toward the Capitol were dragged off
to prison and put to death. Perseus alone, at the personal intercession of Paulus, wha
had received his surrender, escaped the severity of this law. The rest, chained in dark
dungeons, furnished an object lesson to other kings, that they would find it preferable
to cultivate the friendship of the Romans rather than to rouse their sense of justice.

But this writer also speaks too sweepingly. Josephus, in his
account of the death of Simon Barjoras, makes the same point regard-
ing the severity of the Romans, but he is speaking of leaders like
Pontius the Samnite, not of those who had the title of king. The
substance of his narrative in translation is as follows:

The end of the triumph came after the arrival at the temple of Jupiter on the Capi-
toline hill; for the ancient custom of the state required that victorious generals should
wait there until the death of the leader of the enemy should be reported to them. This
leader was Simon, son of Joras, who was led among the captives in the triumphal pro-
cession ; then, with a noose about his neck he was dragged into the forum, being mean-
while scourged by his guards. It is the Roman custom to exact punishment in this place
from those who have been condemned of capital offences. When it was reported that
Simon was dead, there followed the announcement of favourable omens and then
sacrifices.

* I should not like to have this custom resurrected. Nevertheless even Joshua put captured
kings to death ; Josephus, Antigquiizes of the Jews, V.1[V.i. 19]. Dio Cassius [XLIX. xxii. 6] says of
Sossius: “He crucified Antigonus and scourged him with rods’; but he takes pains to add: ‘a
thing which no other king had suffered at the hands of the victorious Romans.’ The same story is
in Josephus, Book XV [Antiquities of the Jews, XV. 1. 2].

Eutropius, Book X [X. 1], says of Maxmian Herculius [rather of Constantine I]: ‘ When the
Franks and Alemanni had been slaughtered, and their kmgs taken prisoner, he cast the kings to the
wild beasts, in a magnificent spectacle which he had prepared as a distinction of his office.’ See
Ammianus, XXVII [XXVII. ii. 9], on the king of the Alemanni who was hung fromagibbet. Theodoric,
king of the Visigoths, beheaded Athiulf, king of the Suevi, in Spain, as is recorded by Jordanes,
History of Goths (xliv],

Verily, these instances furnish proof to kings that they should practise moderation, and that they
should reflect that they too are subject to human vicissitudes, if God so wills ; and that, according to
the saying of Solon, which Croesus remembered when in like peril, one cannot pass judgement upon
a man’s good fortune until he is dead. ;

Chap.XI] The Right of Killing in a Lawful War 733

Cicero gives an almost identical account in the passage on
punishments in his speech Against Verres.

3. Of commanders who met such a fate we have numerous
examples; of kings, a few, as Aristonicus [Aristobulus],* Jugurtha,
Artabasdus. But yet, besides Perseus, Syphax,” Gentius, Juba, and, in
the time of the Caesars, Caractacus, and others, escaped such punish-
ment, so that it appears that the Romans took into account both the
causes of war and its manner of conduct, although Cicero and others
admit that when victorious they were unjustly severe. Soin Diodorus
Siculus, Marcus Aemilius Paulus, in the case of Perseus, gives good
advice to the Roman senators when he says: ‘If they had no fear
of men, yet they should fear the divine vengeance which hangs over
those that make too insolent a use of victory.’ [519] Plutarch
records ® that in the wars among the Greeks even the enemies of the
Lacedaemonians did no violence to their kings, through respect for
the royal dignity.

4. An enemy therefore who wishes to observe, not what the
laws of men permit, but what his duty requires, what is right from
the point of view of religion and morals, will spare the blood of his
foes; and he will condemn no one to death, unless to save himself
from death or some like evil, or because of personal crimes which
have merited capital punishment. Furthermore, from humanitarian
instincts, or on other worthy grounds, he will either completely
pardon, or free from the penalty of death, those who have deserved
such punishment.

The same Diodorus Siculus, whom I have mentioned, has
an excellent statement: ‘The storming of cities, the winning of
battles, and all other successes in war, are more often due to fortune
than to valour. But for those in the highest authority to show mercy
to the vanquished is the work of wisdom alone.’? In Curtius we
read: ‘ Although Alexander could justly have been angry with those
who were responsible for the war, still he gave pardon to all.’

VIII.—One must take care, so far as is possible, to prevent the death of
innocent persons, even by accident

Again, with regard to the destruction of those who are killed by
accident and without intent, we must hold fast to the principle
which we mentioned above. It is the bidding of mercy, if not of
justice, that, except for reasons that are weighty and will affect the

1 See Appian, Mithridatic Wars, at the end [xvii. 117].

2 Historians differ in regard to him. Many relate that he died in the neighbourhood of Rome
before the triumph; Polybius [XVI. xxii], that he was led in the triumph; Appian [Punic Wars,
v. 28], that he died of disease, while his fate was under consideration.

* [528] Agis [xxi=p. 804 E].

[V xxv
66 ]

[On Duties,
I. x1; IIT.
x.]
Selections
[xxxi. 2].

XXVII
[X VII.
xxxviiil.

(TX.1. 22.]

[V. x1.]

[On
Anger. |

ITT. xxiv.
Deut , XX.

4.

Numbers,
xxx. 18,

Jonah,
iv. 2 fiv.
II].

734 On the Law of War and Peace [Book III

safety of many, no action should be attempted whereby innocent
persons may be threatened with destruction. Polybius is of the same
opinion as ourselves, and in his fifth book speaks thus: ‘It becomes
good men not to wage a war of annihilation even with the wicked,
but to proceed only so far that crimes may be remedied and corrected ;
and not to involve the innocent in the same punishment as the guilty,
but even to spare those who are guilty for the sake of the innocent.’

IX.—Children should always be spared ; women, unless they have been
guilty of an extremely serious offence ; and old men

1. With these principles recognized, the defining of provisions
to cover the more special cases will not be difficult. ‘Let the child
be excused by his age, the woman by her sex,’? says Seneca in the
treatise In which he vents his anger upon anger. In the wars of the
Jews God himself desired that women and children be spared even
after peace had been offered and rejected—apart from a few peoples
that were excepted by a special law, and against whom the war was
not a war of men, but of God, and was so called. When He desired
that the women of the Midianites should be put to death because of
their particular crime, he excepted the maidens who were virgin.
Indeed when He had sternly threatened the Ninevites with destruc-

1 Pliny, Natural History, VIII. xvi: ‘When the lion is enraged, he attacks men before women,
and children only when very hungry.’ On these Imes of Horace, Odes, IV. vi [IV. vi. 18 ff.],
describing Achilles :

Children as yet untaught to speak would he consume
Tn the Achaeans’ fires, even those that lay
In their mother’s womb,

the Scholiast comments thus: ‘He bitterly inveighs against the cruelty of Achilles, who, if Apollo
had permitted him to hve, was so cruel that he would have spared neither infants nor babes still
unborn.’

Philo, De Constttuione Principrs [xiii], says: ‘ But let maidens and women go free,’ and gives as
the reason: ‘It is cruel to make women the accessories of men, who devise wars.’ The samé author,
On Specral Laws, II [III. xx], writes: ‘For against men of ripe age there may be found a thousand
reasonable pretexts for differences and quarrels. But against children, who have just come into the
light and life of men, not even calumny has anything to say, for they are clearly innocent.’

Josephus, Anitquities of the Jews, Book IX [IX. xi.], says of Manahem: * By not even sparing
infants he reached the extreme of cruelty, or rather ferocity. For he committed against his fellow
countrymen acts which would not deserve pardon if they had been done to foreigners conquered in
war.’ Josephus also relates [Antiquatzes of the Jews, XII. vii. 3 and 5] that Judas Maccabeus, upon taking
Bosra and Ephron, slew ‘all males and those capable of fighting’. And elsewhere [Anitzquitzes of the
Jews, XIII. xiv. 2] he calls the penalty which Alexander, sumamed the Thracian, exacted from the
women and children of the Jews, ‘an inhuman vengeance’. Agathias, III [IV. xix], says: ‘Since
indeed it was impious thus to give vent to anger and to rage against newborn infants ignorant of
their fathers’ crimes, these deeds of theirs did not go unpunished.’

Nicetas, or the writer who continued his history to the times of King Henry, in speaking of the
Scythians, who had taken Athira, says [Urbs Capta. xiv]: ‘Not even infants still at the breast
escaped destruction, but even these were so to speak harvested in their early growth, or withered as
a flower, through the deeds of men untouched by pity, and who Imew not that he who stretches his
anger beyond the conquest and subjugation of his enemies sins against nature and violates the moral

w of men.’ .

Add what Bede has in Book II, chap. xx, on the ferocity of Caraevolla ; and the good law of the
Swiss in Simler [Book II, p. 302, ed. Elzevir] ; and the pious ordinances of Queen Elizabeth, in Camden
on the year 1596.

The Right of Killing in a Lawful War 735

tion for their very heinous crimes He suffered Himself to be diverted
by compassion for the many thousands of the age which would be
ignorant of the distinctions of right and wrong.

In Seneca there is a point of view which resembles this: ‘ Does
any one become angry with children whose age is not yet able to
comprehend distinctions?’ Also in Lucan :

Chap. XI]

For what crime could little ones have deserved death ?

If God has so done and so ordained—He who is able to kill justly
any persons of whatever age or sex without cause, seeing that He is
the Giver and Lord of life—what right have men, to whom He has
assioned no right over men, to do anything not necessary for the
preservation of human safety and human society?

2. In the first place, with regard to children we have the
judgement of those peoples and ages over which moral right has
exerted the greatest influence. [520] ‘ We have arms’, says Camillus
in Livy, ‘ not against that age which is spared even when cities are
taken, but against men in arms.’ He adds that this has a place among
the laws of war, that is the natural laws.

In dealing with the same incident Plutarch says: ‘ Among good
men even war has certain laws.’ Note here the phrase ‘ among
good men’, that you may distinguish this law from the law which
is based on custom and impunity. Thus Florus says that a certain
course of action was inevitable, if honour was not to be violated.
In another passage of Livy we read: ‘An age from which even
enraged enemies would withhold their hands’; in still another,
‘Their cruel rage led them to slay even the infants.’

3. Again, that which is always the rule in respect to children
who have not attained to the use of reason is in most cases valid
with regard to women. This holds good, that is, unless women have
committed a crime which ought to be punished in a special manner,
or unless they take the place of men. For they are, as Statius says,
‘a sex untrained and inexperienced in war’. When Nero in the
tragedy calls Octavia a foe, the prefect replies :

Does a woman receive this name ?2

In Curtius Alexander says: ‘ I am not accustomed to wage war
with prisoners and women; he whom I am to hate must be in
arms.’ Gryphus, in Justin, declares that “ None of his ancestors, in
all their numerous civil and foreign wars, had after a victory ever
displayed cruelty to women, whose very sex exempts them from the

1 And so Tucca and Varus thought that we should delete from the second book of the Aeneid
the verses [567-88] in which Aeneas deliberates whether he shall kill Helen.

1569.27 3D

On Anger,
II. ix [fT
x].

(II. r08.]

Victoria,
On the Law
of War,
no. 36.

[V. xxvii.
7.]

Camillus
{x==p. 134
B}.

I xi].

XXIV
[xxvi. r1].

(XXVIII.
xx. 6.]

[Siluae,
I. vi. 53-]

[Seneca,]
Octavia
[864].

V [Iv.
xi. 27).

XX XVIII
(XX XIX,
ii. 7].

[Annals,
I. lix.]

IX. 1
(IX. ii. 4].

XITI
vir].
XIV
[XIII.
lvu).

[Panegyric
of Theo-
dostus,
Xx1x ]
[Thebard,
v. 258 £.]

Victoria,
On the
Law of
War,

no. 36.
XXVIII
[xxiii. r].
Antiquities
of the Jews,
XII. iii
[rx].

Livy, V
[xxi. 13].

Greek
Questions
[xxi =p.
296 B-D].

VIII [iii.
33).

On the Law of War and Peace [Book III

736

dangers of war and the savagery of the victors.’ In Tacitus another
says that ‘ He is not waging war against women, but openly against
armed men.’

4. Valerius Maximus calls the cruelty of Munatius Flaccus
against infants and women ferocious, and intolerable even to hear
about. In Diodorus it is related that the Carthaginians at Selinus
slew old men, women, and children, ‘uninfluenced by humane
feelings’; elsewhere he calls this conduct ‘cruelty’. +>Latinus
Pacatus refers to women as ‘ the sex which is spared by wars’. Papinius
[Statius] has a similar statement about old men:

Old men, a throng

Inviolate in war.

X.—Those also should be spared whose occupations are solely religious
or concerned with letters

1. The same principle is in general to be applied to men whose
manner of life is opposed to war. ‘ By the law of war armed men
and those who offer resistance are killed,’ as Livy says; that is, by
that law which is in harmony with nature. Thus Josephus says that
it is right that in war those who have taken up arms should pay the
penalty, but that the guiltless should not be injured. When Veii
was stormed, Camillus gave orders that the unarmed should be spared.

In this class must be placed first, those who perform religious
duties. From ancient times among all nations it has been customary
that such men should abstain from the use of arms; and so in turn
men refrained from violence toward them. Hence the Philistines,
the enemies of the Jews, did not harm the school of the prophets +
which was at Gaba, as one may see in r Samuel, x. 5 and 10. And
so David in company with Samuel fled to another place where there
was a similar school, that was removed, as it were, from all harm at
the hands of armed forces (z Samuel, xix. 18). The Cretans, Plutarch
tells us, when engaged in internal strifes, refrained from doing any
harm to priests,” and to those in charge of cremating the dead, whom
they called ‘cremators’. ‘This explains the force of the Greek
proverb, ‘ Not even a fire-bearer was left.? Strabo notes? that in

1 [529] Hyrcanus, while besieging Jerusalem, sent victims to the Temple, as the Jews relate.
The Goths are likewise praised by Procopius, Gothic War, IT [II. iv], because they spared the priests
of Peter and Paul outside the walls of Rome. See the supplement of Charles the Great to the Bavarian
Law [no. 2], and the Lombard Law, I. m. 14.

7 Servius, On the Aeneid, VII [VII. 442], says: ‘For he was excluded from war, if not by his age,
at least by the sanctity of his priesthood.’

Also Polybius, Book IV [IV. lxxiti], and Diodorus Siculus in the Excerpta Pezresciana [p. 225].
In like manner also those who went to compete at the Olympic, Pythian, Nemean, and Isthmian
Games in time of war enjoyed ‘safe conduct and security’. This we learn from Thucydides, V [V.
xlix} and VITI [VIII. x] ; and Plutarch, Aratus xxviili=p. 1040 B].

Chap. XJ] The Right of Killing in a Lawful War 737

olden times, when the whole of Greece was ablaze with war, the
Eleans, as sacred to Jupiter, and those enjoying their hospitality,
lived in deep peace.

2. In the same class with the priests are deservedly ranked those
who have chosen a similar manner of life, as monks and novices, that
is, penitents; these the canons, in accordance with natural justice,
order men to spare just the same as priests. [521]

To priests and penitents you may properly add those who direct
their energies to literary pursuits, which are honourable and useful
to the human race.

XI.—Farmers should be spared

In the second place farmers, whom the canons also include,
should be spared. Diodorus Siculus relates with praise of the
inhabitants of India that ‘in wars indeed enemies kill one another,
but they leave the tillers of the soil unharmed, for the reason that
these render a common service.’ Of the ancient Corinthians and
Megarians Plutarch says: ‘ No one harmed the farmers in any way.’
Cyrus ordered that notice be given to the king of the Assyrians ‘ that
he was ready to release those who tilled the soil, and not to harm
them’. Of Belisarius Suidas says: ‘He spared the tillers of the soil
to such a degree, and exercised so great care for them, that when
he was in command none of them at any time suffered injury.’

XII.—Merchants and like persons should be spared

The canon adds merchants; and this provision is to be taken as
applicable not only to those who make a temporary sojourn in hostile
territory, but also to permanent subjects; for their life also is foreign
to arms.

Under this head are included at the same time artisans and other
workmen, whose pursuits love peace, not war.

XIII.—Prisoners of war also should be spared

1. To come to those who have borne arms, we have already
mentioned the remark of Pyrrhus in Seneca, who says that a sense
of shame, that is, respect for what is right, forbids us to deprive
a prisoner of his life. We have adduced the similar view of Alexander,
which included prisoners with women. We may present also this
statement of Augustine: ‘Let necessity, not inclination, cut off?

1 Gratian suggested deprimai (let it crush). Plutarch says in his Marcellus [Comparison of Peloptdas
and Marcellus,i=p.316D]: ‘Epaminondas and Pelopidas never put any one to death after a victory,
nor reduced states to slavery ; and it is believed that, if these men had been present, the Thebans would
not have acted as they did to the people of Orchomenos.’ Marcellus followed the same practice at the

3D2

Deer etals
I. xxxiv.

Library,
II [xxxvi

[Greek
Questions
XVil=pPp.
295 C.]
Xenophor
Traiming
of Cyrus,
V —iv. 24]
[On the
word BeAv
gapios.}

fIII. x. z.

(III. xi.
9. 3.]
Letter i,
Lo Boni-
face
[Letiers,

[A gestlaus
1, 21.]

XTII
[xxiv].

AXVIT

[xuil}.

[xci. 6-7.]

V [ix].

Histories,
IV
[xxxix].
On Peace,
in [=p.
80 c},

2 Kings,
v1 [22].

{line 965.]

[line rorr.]

On the Law of War and Peace [Book III

738

the enemy who is fighting. Just as violence is done to him who
fights and resists, so pity is now due to the vanquished or captive,
especially in the case of him from whom no disturbance of the peace
is feared.’

Xenophon writes of Agesilaus: ‘ He instructed his soldiers not
to punish prisoners of war as guilty of crime, but to guard them
as men.’ In Diodorus Siculus we find: ‘All [the Greeks] fight
those who resist, but spare the vanquished.’ In the judgement of
the same writer, the Macedonians who were under Alexander ‘ treated
the Thebans more harshly than the law of war allowed’.

2. In his history of the Fugurthine War Sallust, having related
that youths had been killed after surrendering, says that that was
done contrary to the law of war; this is to be interpreted as against
the nature of justice and the usage of more civilized peoples. In
Lactantius we read: ‘ The vanquished are spared, and room is found
for mercy in the midst of strife.’ Tacitus praises Antonius Primus
and Varus, the Flavian generals, because they had vented their rage
on no one except in battle. Aristides says: ‘It befits men of our
character to constrain with arms those who resist, but to treat leniently
those who have been overthrown.’

In regard to prisoners the prophet Elisha addresses the king of
Samaria as follows: ‘ Wouldst thou smite those whom thou hast
taken captive with thy sword and thy bow?’ In the Children of
Hercules by Euripides, when the herald inquires :

Then does your law forbid to slay a foe?

the chorus replies :
Yes, one whom Mars has suffered to survive the fray.

[522] In the same play the captive Eurystheus says,
The hands which me shall slay will not be guiltless.

capture of Syracuse, as Plutarch says in the same passage [xix = p. 308D]. See the same wniter in
his life of Cato of Utica [luiii=p. 787 c Dj.

‘When Cabades, the Persian king, had taken Amida by storm, and had caused a great slaughter,
an aged priest told him that 1t was not befitting for a king to kill those who were already prisoners.’
This is told by Procopius, Persian War, I [I. vii], who also says in the Persian War, II [II. ix]: ‘It is
contrary to piety to be cruel to prisoners.’ In the same writer there is a notable speech of Belisarius
to his soldiers at the capture of Naples ; Gothic War, I [I. ix].

To one who advised him to kill his Scythian prisoners, the Emperor Alexius in Anna Comnena
[VIII. vi] replied: ‘Even though they are Scythians, still they are men; even though they are
enemies, still they are deserving of pity.” Gregoras, Book VI [VI. viii], says: ‘Those deeds which
are done in battle and actual warfare, whatever they may be, secure pardon for the doer, on the
ground that his mind 1s beset at such a time, and that his hand in a fit of intoxication does not take
reason as the guide and controller of 1ts actions. But when the extreme danger 1s over, when the mind
has the time freely to examine and decide everything, surrender of the control of action to the hand
indicates a man’s base purpose, if anything unseemly occurs.’

Add the other passage from the same Gregoras, which we included in the notes at the end of
Chapter VII, of this book, and Chalcocondylas, Book V [=p. 259, ed. Bekker], on a laudable custom
of the Poles. Julian, in the second panegyric on Constantius [Ovatons, ii = p. 86c], m his person
describes the good ruler: ‘ Once victorious in battle he put an end to the work of the sword, thinking
it a crime to take the life of a man who has ceased to defend himself.’

The Right of Killing in a Lawful War 739

In Diodorus Siculus, the Byzantines and Chalcedonians, because
they had put to death a large number of prisoners, are branded
with this characterization: ‘They perpetrated crimes of extra-
ordinary cruelty.’ The same writer elsewhere speaks of sparing
prisoners! as ‘a law common to all’; those who do otherwise, he
says, beyond question do wrong. ‘To spare prisoners is commanded
by the nature of goodness and justice, as we just now heard Seneca
say in his philosophical treatises. We see that in history those are
praised who, when they might have been burdened or endangered
by an excessive number of prisoners, preferred to release all rather

than kill them.

Chap. XI]

XIV.—The surrender of those who wish to yteld upon fair terms should
be accepted

1. For the same reasons the surrender of those who yield upon
condition that their lives be spared ought not to be rejected, either
in battle or in a siege.? Thus Arrian says that the slaughter by the
Thebans of persons who had surrendered was not in accordance with
Greek custom, ‘ not a Hellenic killing’. Likewise Thucydides in his
third book says: ‘ You have taken us into your power willingly and
with outstretched hands. It is the Greek custom not to kill such
persons.’ In Diodorus Siculus, the senators of Syracuse declare:
‘It is worthy of a noble mind to spare the suppliant.’ Similarly
Sopater: ‘It is customary to spare suppliants in times of war.’

2. In the case of besieged cities the acceptance of surrender was
the rule among the Romans before the battering-ram had shaken the
wall. Caesar informed the Adratuci that he would save their city
if they would surrender before the ram should have touched the wall.
The custom even now obtains in the case of unfortified places, before
cannon fire is opened; and, in the case of more strongly fortified
places, before an assault is made upon the walls. But Cicero, looking
not so much to what is done as to what is right according to nature,
declares himself upon this point as follows: ‘ You must both be
merciful to those whom you have overcome by force, and accept
the surrender of those who lay down their arms and take refuge in
the good faith of generals, even though the battering-ram has already
battered the wall.’

The Jewish interpreters note that it was a custom among their

1 Capitolinus says in his Marcus [Aurelius] Antoninus [xxiv]: ‘ He observed justice, even with
regard to prisoners taken from the enemy.’

4530] In [Procopius,] Gothte War, IV [TV. xii], the Romans say to the Persians, who were
in the citadel of Petra: ‘We, however, pity you who cast the yoke from your necks, and we wish
to spare you who seek death, and to save you although you lightly despise life, as becomes Christians
and citizens of the Roman Empire.’ See De Serres in his Life of Francis I and Life of Henry Il.

XII
(Ixxxii].

(XIII.
XXVi.]

On Bene-
fits, V.
xviii
[On Cle-
mency, I.
xviii].

[A sabasis
of Alexan-
der, I. ix.

ro ]

(III. Iviii.]

[XI. xcii.]

Gallic
War, II
[xxxii].

On Duties,
I [xi. 35).

Annals,
XII [xvii].

Jugurthine
War [xci.
6-7].

On Public
Adminis-
Eration, I
fiv. x].

(XXVIII.
xxiii. r.]
XLV
(XLII.
xxi. 3].

fPlutarch,
Brutus,
xxvVl= Dp.
996 A.]

See
Victoria,
On the Law
of War,
nos. 49
and 60.

On the Law of War and Peace [Book III

740

ancestors that, when they were besieging a city, they would not
completely encircle it, but would leave a sector open for those who
wished to escape,} in order that the issue might be determined with
less bloodshed.

XV.—Those also who have surrendered unconditionally should be spared

The same sense of justice bids that those be spared who yield
themselves unconditionally to the victor, or who become suppliants.
‘To butcher those who have surrendered is savage’ is the judgement
of Tacitus. Likewise in the case of the Campsani, who had sur-
rendered to Marius, Sallust, after relating that those who had reached
the age of puberty were slain, adds that this was a crime against the
law of war, that is, the law of nature. The same author says else-
where: ‘ Not armed men were slain in battle, according to the law
of war, but suppliants, after battle.’

In Livy, as we have said already, ‘ By the law of war armed men,
and those who resist, may be slain’; in another passage we read,
‘who, contrary to law and right, had made war upon those that had
surrendered.’ Effort should be directed to this, that men should
rather be driven to surrender through fear, than that they should
be slain. Praise is given to the conduct of Brutus, who ‘ did not
permit a charge to be made upon his opponents, but surrounded
them with cavalry, ordering that they be spared, on the ground that
they would soon be on his side.’

XVI.—W hat has been stated 1s true, provided that no serious crime has
preceded ; how this 1s to be understood

I. Against these precepts of justice and the law of nature
frequently exceptions are offered, which are by no means just; as,
for example, if retaliation is required, if there is need of inspiring
terror, if too determined a resistance has been offered. Yet he who
recalls what has previously been said in regard to valid reasons for
putting to death will easily perceive that such exceptions do not
afford just [523] grounds for an execution.

There is no danger from prisoners and those who have sur-
rendered or desire to do so; therefore in order to warrant their
execution it is necessary that a crime shall have been previously
committed, such a crime, moreover, as a just judge would hold

+ So Scipio Aemilianus, when about to destroy Carthage, proclaimed: ‘Let those who wish,
flee’; Polybius [Appian, Punic Wars, xix. 130].

The Right of Killing in a Lawful War 741

punishable by death. And so we sometimes see anger vented upon
prisoners or upon those who have surrendered, or a surrender upon
guarantee of life refused, if any who were convinced of the injustice
of a war have still remained in arms; if any have injured the good
name of their enemies with monstrous slanders ; if they have violated
their plighted word, or another right of nations, such as that of
ambassadors ; if they were deserters.

2. But nature does not sanction retaliation except against those
who have done wrong. It is not sufficient that by a sort of fiction the
enemy may be conceived as forming a single body ; this may be under-
stood from our foregoing discussion on the sharing of punishments.
In Aristides we read: ‘Is it not absurd to wish to imitate, as if they
were right, the things which you attack and say it is wicked to do?’
Plutarch accuses the Syracusans on this ground, that they slew the
wives and children of Hicetas for the sole reason that Hicetas had
killed the wife, sister, and son of Dion.

3. Even the advantage, which is anticipated for the future from
frightfulness, does not suffice to give the right to kill; but if the
tight already exists it may be among the reasons for not waiving
the right.

Furthermore a quite obstinate devotion to one’s own party,
provided only that the cause is not altogether dishonourable, does
not deserve punishment, as the Neapolitans claim in Procopius. Or,
if such devotion is punished in any way, the penalty should not be
carried so far as death; for no just judge would so decide. When,
in a certain town, which had resisted with unusual fierceness, Alexander
had ordered that all above the age of puberty should be slain, he
seemed to the Hindoos to be waging war after the manner of brigands ;
and dreading the effect of such a reputation the king began to make
a milder use of victory.

The same Alexander did better in wishing to spare certain
inhabitants of Miletus, ‘ because he saw that they were noble and
faithful to their cause’, to cite the words of Arrian. Phyto, the
commander of the people of Rhegium, when hurried to torture and
death by Dionysius because of his too obstinate defence of the city,
cried out that he was being punished for refusing to betray the city
and that the deity would in a short time exact retribution for the
mistreatment. Diodorus Siculus calls this punishment wicked,
‘lawless punishment ’.

I am greatly pleased with the prayer which is found in Lucan:

Chap. XT]

Be he the conqueror, who sees no need

To draw the ruthless sword against the vanquished,
Who does not think an impious deed was done,
Because his countrymen took arms against him,

Il. xxi. 18.

On Peace,
ii [= Pp.

75 Cl.
Plutarch,
Timoleon
[xxxi1—
p. 252 C] ;
Don [Ivi1
=p.983E].

Gothic
War, I
[x].

Polyaenus,
IV {iii.

30]

[4 nabasis
of Alex-
ander, I,
xix. 8.]

[XIV.
cxii.]

(VII.
312 £.]

(Litad,
XXITI.
r76.]

(Deut., xx.
ro. ]

On Anger,
II. x,

(TI. 198 ff.]

For Cluen-
tus [xlvi,
128].

[On Public
Adminis-
tration, I.
vi. 4.}

742 On the Law of War and Peace [Book III

provided, nevertheless, that under the name of countrymen we under-
stand not those of this or that district, but fellow-citizens of that
common society which embraces all mankind.

5. Much less even is slaughter justified by resentment at some
loss that has been sustained, as we read that Achilles, Aeneas, and
Alexander avenged their friends with the blood of prisoners or of
those who surrendered. Appropriately, therefore, Homer chants

this verse :
An evil deed he pondered in his heart.?

XVIIL.—It ts right to spare those who are guilty, if their number is very
great

Even where the crimes are such that they may seem worthy of
death, it will be the part of mercy to give up something of one’s full
tight because of the number of those involved. Such clemency, we
see, began with God Himself; for He desired that the Canaanites
and their neighbours, by far the most wicked of peoples, should have
the offer of a peace, [524] which would grant them their lives
upon condition of their payment of tribute. Here applies the saying
of Seneca: ‘ The severity of the general is directed against individuals,
but pardon is necessary where the whole army has deserted. What
takes away a wise man’s anger? The crowd of wrongdoers.’? Per-
tinent also are these verses of Lucan:

Famine, the frenzy of the sea, and swift disaster,
Or pestilence of earth and sky, or war’s slaughtering,

Have oft laid low so many youths in hateful death,
But never punishment.

‘The drawing of lots was devised that an undue number might
not suffer punishment,’ says Cicero. Sallust says to Caesar: ‘ Let
no one summon you to cruel punishments or harsh judgements,
by which the state is more afflicted than remedied.’

XVITI.— Hostages should not be put to death unless they have themselves
done wrong

1. What decision according to the law of nature should be
rendered in regard to hostages may be gathered from what we have

? That to later ages this seemed cruel is noted by Servius, On the Aeneid, X [X. 519]-

* ‘The sin that 1s committed by many goes unpunished,’ says the Scholiast on Juvenal [ii. 46],
citing Lucan [V. 260]. In Xiphilinus, who quotes from Dio [LV. xx], Livia says: ‘If any one
wishes to punish all such deeds rigorously, he does not see that he is thereby led to slay the great
majority of men.’ Augustine writes in his Letters, lxiv [2xdi. 5]: ‘Rather by admonition than by
threats. In this way in fact one must deal with a multitude of sinners ; but severity is to be exercised

inst the crimes of a few.’

Add Gail, De Pace Publica, II. ix. 36 [II ix. 37].

Chap. XI] The Right of Killing in a Lawful War 743

said already. In former times it was commonly believed that each
person had over his own life the same right which he had over other
things that come under ownership, and that this right, by tacit or
expressed consent, passed from individuals to the state. It is, then,
not to be wondered at if we read that hostages who were personally
guiltless were put to death for a wrong done by their state, either as
though done by their individual consent, or by the public consent in
which their own was included. But now that a truer knowledge has
taught us that lordship over life is reserved for God, it follows that
no one by his individual consent can give to another a right over life,
either his own life, or that of a fellow-citizen.

Consistently with this point of view Agathias relates that to the
good general Narses it seemed atrocious to exact punishment from
innocent hostages. Other writers say the same of other generals.
They cite also the example of Scipio, who said that he would not be
severe with innocent hostages, but with the individuals themselves
who had been guilty of defection,! and that he would exact punish-
ment not from an unarmed foe, but from a foe in arms.

2. Furthermore some of the modern jurists, men not without
standing, say that such agreements are valid if they are confirmed
by custom. This I admit, if by right they mean mere freedom from
human punishment, which in the discussion of this subject often
passes under such a name. If, however, they consider that those
who take the life of any one on the justification of an agreement
alone are exempt from wrongdoing, I am afraid that they are both
deceived themselves and by their dangerous authority deceive others.

It is clear that if he who comes as a hostage is, or previously
was, of the number of great criminals, or has subsequently broken his
pledge given in an important matter, it may be that his punishment
will not be unjust.

3. But when Cloelia, who had come as a hostage, not of her
own accord? but by the command of the state, made her escape by
swimming the Tiber, her ‘ courage was not only pardoned, but even
honoured by the Etruscan king’, to use the words of Livy in his
account of the incident.

XIX.—All useless fighting should be avoided

This remains to be added, that all engagements, which are of no
use for obtaining a right or putting an end to a war, but have as their

1 Julian says the same in Eunaptus, Selections on Embassies, ix [=Fragmenta Historicorum Grae-

corum, IV, § 12, p. 18].
4 Cf. the story of the hostages who tried to withdraw from this obligation, and were therefore
punished, in Nicetas, Book II [Zsaac Angelus, II. vi].

Victoria,
On the Law
of War,
no 43.

I [xi].

Livy,
XXVIII
[xxxiv. 9].

Menochio,
De
Arbitrartis
Iudicum
Quaestion-
4bus, Vii.

II [xiii. 9].

Acr. V
[Arrian,
Anabasis,
I. xx11].

[Jugur-
thine War,
XCll. 4 ]
(Germany,
Xxx ]

744 On the Law of War and Peace [Book III

purpose a mere display of strength, that is, as the Greeks say, ‘an
exhibition of strength rather than a combat against the enemy ’, are
incompatible both with the duty of a Christian and with humanity
itself. Consequently rulers, who must render account of the useless
shedding of blood to Him in Whose name they bear the sword,
should strictly forbid such combats. In fact, Sallust praised the
generals who achieved victory without staining their army with
blood. ‘Tacitus says of the Chatti, a people of known courage: ‘ Raids
and chance encounters ? are rare among them.’

* Plutarch censures Demetrius [Demeirius, xl=p. 908 C], ‘ because he thrust his soldiers into danger,
and exposed them to battles, rather from zeal for fame than for the sake of a real advantage.’

CHAPTER XII
MODERATION IN LAYING WASTE AND SIMILAR THINGS

I.—W hat devastation may be lawful, and in what degree

1. In order that any one may be able to destroy another’s
property without doing wrong, it is requisite that one of these three
conditions should precede :

A necessity, such as should be understood to have been excepted
in the first institution of ownership. An example would be that
a person in order to escape imminent danger should cast into a river
the sword of a third party, which 2 madman is about to use. In
this case, however, we have elsewhere said that, in accordance with
the better view, there remains an obligation to make good the loss.

Or, a debt arising from an inequality, it being understood that
the thing destroyed is reckoned as received for that debt, since other-
wise the right would not exist.

Or, a deserving of evil, for which such punishment may be an
equivalent, or the measure of which is not exceeded by the punish-
ment, [531] for, asa theologian of sound judgement observes, equity
does not suffer a whole kingdom to be laid waste because flocks have
been driven off or some houses burned. This was recognized also
by Polybius, who does not wish punishment in warfare to be carried
beyond all bounds, but only so far as necessary that crimes may be
expiated in a Just way.

These reasons, which are applicable only within proper limits,
cause the absence of wrong in the destruction of another’s property.

2. But, unless a motive of utility commends such a course, it
would be foolish to injure another without securing any good for
oneself. Those, therefore, that are wise are usually influenced by
considerations of utility. Of such considerations the most weighty
is that which was pointed out by Onesander: ‘ Let him remember
to ruin the enemy’s country, to burn and devastate it. For a lack
of money and crops causes war to slacken 1 as much as an abundance
causes it to flourish.” In accord with this is the saying of Proclus :
‘It is the duty of a good general to weaken the resources of the enemy

1 Philo, On the Contemplative Life [ii=p. 891 D]: ‘Enemies are accustomed to lay waste hostile
territory and to denude it of trees, in order that the enemy may yield the more readily through lack
of necessities.” The same writer says in his On Curses [i]: ‘They bring upon themselves a twofold
misfortune, want for their friends, abundance for their foes.’

745

Il. ii. 9.

Victoria,
On the Law
of War,
nos. 52
and 56.

V oJ

Straie-
gicus, Vi.

{On Plato’s

Republic,
III. iij.]

[IV. ix. 8]

Herodo-
tus, I
(xvit].
Polybius,
IV [xlv].
Frontinus,
Stratege-
mata, III
1v.

Livy,

V [xu 5] 5
VII;
XXXIV
(xvit]; XL
[xxxvii1]}.
Caesar,
Gailic
War, VI
[1i1 and vi].

[Deut., xx.
19, 20.)

On the
Creation of
Magis-
trates [xi11].

On the Law of War and Peace [Book III

740

in every way.’ Curtius says of Darius: ‘ He believed that an enemy,
who had nothing except that which he had seized by pillage, could
be defeated by lack of supplies.’

3. In fact that kind of devastation must be tolerated which
compels the enemy to sue for peace in a short time. This method
of warfare was employed by Alyattes against the Milesians, by the
Thracians against the Byzantines, by the Romans against the Cam-
panians, the Capenates, the Spaniards, the Ligurians, the Nervii, and
the Menapii.

Nevertheless, if you examine the matter aright you will find that
such depredations are ordinarily committed from motives of hatred
rather than from considerations of prudence. It usually happens
either that those conditions which justify devastation are lacking, or
that there are other more cogent reasons which advise against it.

II.—Devastation should be refrained from if the area 1s profitable for us
and out of the power of the enemy

1. This will happen, first, if our occupation of fruitful ground
is such that it cannot yield produce for the enemy. That is the
particular point of the divine law, which ordains that wild trees be
employed in making walls and military structures, but that fruit-
bearing trees be preserved for purposes of food, with the explanation
that trees, unlike men, cannot rise up against us in battle; a restric-
tion which Philo,? by similar reasoning, extends to fields under cultiva-
tion, adding to the law these words :

Why will you be angry with inanimate things, which are both mild and productive
of wholesome fruits? Do trees, like men who are enemies, show signs of hostility, so that
they must be uprooted for the things which they are doing or threaten to do? On the
contrary, they are of use to the victors, and furnish them with a supply of the things
which necessity demands, yes even those things which contribute to their pleasure.
It is not man alone that pays tribute, for trees at fixed seasons bear richer tribute, such
that without it man cannot live.

? Another passage of the same writer, De Humanitate [De Cartiate, xx f.], is also worthy of being

transcribed here :

[537] Moses, in dispensing justice even more freely, makes a very ample and hberal use thereof,
in descending from persons endowed with reason to dumb animals, and from dumb animals, again,
to the things which spring from the ground ; and of these we must now speak, since we have already
discussed men as being of the most importance, and other creatures which are capable of feeling.
Moses wisely forbade the cutting down of cultivated trees, or the ruinous cutting down of crops
before they are ripe, or the destruction of any products of the soil whatsoever, to the end that the
human race may be supplied with an abundance of food; and not only an abundance of necessities
but also of the things which contribute to a more luxurious life. The crops of the field are in fact
a necessity, designed for the nourishment of men; while all the varied fruits of the trees contribute
to their luxuries, although these often, when other things fail, take the place of nourishing foods.

Proceeding further, Moses refuses to sanction even the devastation of hostile territory; especially
does he command enemies to refrain from cutting down trees, because he considers it unjust that
the anger which has been aroused against men should be expended upon those things which are
the cause of no evil. By this very thmg he teaches us not to have regard to the present time only,

Chap. XII] Moderation in Laying Waste and Similar Things 747

Moreover, in discussing the same passage, Josephus says that, if
trees could speak, they would cry out that since they are not the
cause of war it is wrong for them to bear its penalties. Unless I am
mistaken, this is the source of the Pythagorean maxim in Iamblichus :
* Let it be unlawful to injure or cut down a cultivated and fruitful
tree.’

2. Furthermore, in describing the customs of the Jews, in the
fourth book of his work On Abstaining from Animal Food, Porphyry 1
extends this rule (interpreted, as I think, in the light of custom)
even to living things employed in agricultural work. He says that
Moses commanded that these too should be spared in war; the
writings of the Talmud and the Hebrew interpreters add that this
law is to be extended ? to anything whatever which may be destroyed
without cause, as touching the burning of buildings, or the destruc-
tion of supplies which can be eaten or drunk.

In harmony with this law is the wise moderation of the Athenian
general Timotheus, who, as Polyaenus relates, ‘did not permit
a house or a homestead to be destroyed, or [532] a fruit-bearing tree
to be cut down’. There is also the law of Plato, in the fifth book
of the Republic: ‘ Let not the land be ravaged, nor the houses set

on fire.’
3. Still more binding will this restriction be after a complete

victory. Cicero disapproved of the destruction of Corinth, even

for the reason that nothing remains in the same condition, but all things are subject to vicissitudes
and changes ; hence it may easily happen that those, who are at present enemies, may again become
allies, after they have joined in conferences and treaties. But it is a harsh thing to deprive friends
of the necessities of life, when, in view of the uncertainty of the future, those things which may be
useful should have been preserved for them.

It has been most truly said by the ancients that friends should be treated as though it were
thought that no enmities could arise, and that offences should beso dealt with that friendship may
be hoped for ; that is, that each one should have in his mind, for his own protection, some measure
of reserve, and not be obliged soon to repent of his excessive violence, through having revealed
his purposes too openly in words and deeds; [538] and not be obliged to accuse himself, when
the matter can no longer be remedied.

This wise saying, furthermore, should be observed by states, that in time of peace they should
prepare the things which are necessary for war, but in time of war the things necessary for peace ;
and that they should neither place excessive confidence in their friends, as if these could not be
diverted to the opposite side, nor utterly distrust their enemies, as if these could never be restored
to friendship. But even if nothing ought to be done for an enemy in the hope of effecting a recon-
ciliation, certainly none of the things which the soil bears is hostile, but all are friendly, and all
are useful ; indeed the cultivated plants are particularly necessary, seeing that their fruits are either
nutritive or take the place of something nutritive.

War should not be waged on things that have nothing to do with war; one should not cut,
nor burn, nor tear up by the roots the things which nature has tenderly reared with its streams of
water and its summer skies, that they might bear tribute to men as to kings. For she, as the
excellent and common ruler of all things, has taken care to secure undamaged force and vigour
not only for animals, but also for the offspring of the soil, especially for cultivated plants, because
they require greater care, and are not so prolific as wild plants, but require skilled cultivation to
attain a vigorous growth.

1 His words are [On Absiaining from Animal Food, IV. xiv]: ‘ The law also commands us to spare
animals that are man’s associates in toil, even on the land of the enemy; so that it is not permitted
to kill them.’

2 But, on the other hand, they wish to restrict it by adding the exception: unless trees situated
in the suburbs should interfere with the javelin-throwers.

[Ant. of
the Jews,
IV. viu.
42]
[Life of
Pythago-
vas, XXi.
99-]

[III. x. 5]

[V. xvil=
471 A,]

On Duties,
I [xi. 35].
On His
House
[xxui. 60].

XXVI
[xvi].

Trojan
Women
[285 ff.].

Joshua, vi.

2 Kings,
ili. 19

XI [vi. x].

748 On the Law of War and Peace [Book III

though Roman ambassadors had been shamefully treated there ;
and he also characterizes as horrible, criminal, and steeped in the
depths of hatred, a war which is waged against walls, roofs, columns,
and doors. Livy praises the leniency of the Romans after the conquest
of Capua, because they did not by fire and destruction vent their

anger upon innocent buildings and walls! In Seneca, Agamemnon
says :

For my part I will confess (thy pardon, Argive land }),

I wished to see the Phrygians brought low and undone ;

But Troy destroyed and razed to earth—such fate

I should have censured.

4. It is true that sacred history teaches us that certain cities
were doomed to destruction by God, and that even contrary to the
general law it was ordered that the trees of the Moabites should be
cut down. This, however, was not done out of hatred of the enemy,
but to show a just abhorrence of their crimes, which were either
publicly recognized as such, or in the judgement of God were worthy
of such punishment.

Ill.—Devastation should be refrained from if there is good hope for
a speedy victory

1. In the second place, what we have said will hold good even
where the possession of Jand is in doubt, if there is good hope of
a speedy victory, of which the prize will be both the land and its
fruits. ‘Thus, as Justin relates, Alexander the Great prevented his
soldiers from devastating Asia, ‘saying that they must spare their

1 Qn this subject there is a notable letter of Belisarius to Totila [in Procopius], Gothic War, III
[TIT. xxii] :

Previously it was thought that to construct works of beauty was characteristic of wise men
and those versed in civilized life ; that to destroy them, after they had been erected, was the act of
fools and persons who did not blush to leave to posterity marks of their stupidity. It is agreed
that Rome Is the greatest and most worthy of admiration of all the cities which the sun beholds.
This pitch of greatness and splendour it has not attained by the labour of one man alone, nor in
a brief time; but very many kings and emperors, a vast line of eminent men, many centuries, and
a marvellous accumulation of wealth, have brought together here, among other conditions, the
leading workmen; and so by the gradual construction of so great a city [539] they have left
monuments of their worthiness to succeeding generations. To destroy this city, therefore, would
be to do a wrong to the human race of all ages, by taking from those who have gone before the
memory of the praise that is due to them, and from those who are to come the pleasure of this spectacle.

Since this is so, reflect that one of two things is inevitable, either you will be conquered by the
Emperor in this war, or your fortune will be the better. If you are victorious, and the city has been
destroyed, you will have lost what is not another’s but your own. If it has been saved, you will
enjoy the most beautiful of all possessions. If the lot has been cast against you, and Rome, through
your efforts, is safe, a feeling of gratitude toward you will remain with the victor; but if Rome
shall have been destroyed your lot will lie beyond hope of mercy. Not only will you gain nothing
by the act, but the reputation which it deserves from all men will follow you. Such reputation is
ready for you, according to your choice; for the repute enjoyed by those in power corresponds
with their actions.

See also the law of Frederic I in Conrad, Abbot of Ursperg ; and, with regard to Frederic Count
Palatine, the Chronicles of Melanchthon.

Chap. XII] Moderation in Laying Waste and Similar Things 749

own property,” and not destroy the things which they had come to
take possession of.” So Quintius, when Philip was traversing Thessaly
with a band engaged in plundering, for his part exhorted his troops,
as Plutarch says, to pursue their march as though through a district
which had been given up and already made their own. When urging
Cyrus not to turn Lydia over to his soldiery to lay waste, Croesus
said: ‘ You will not plunder my city, nor my possessions, for in no
way do these things now belong to me; they are yours—yours are
the things they will destroy.’

2. ‘To those who do otherwise, the words of Jocasta to Polynices
in Seneca’s Women of Thebes are not ill suited:

Seeking to win your country you destroy it;

To make it yours, you wish to make it nothing;
Your cause is harmed by this, with hostile arms
You burn the land, lay low the ripened crops,
And terror spread

Through all the fields. No one so wastes his own.
What you bid ruin with fire, with sword to reap,
You hold to be another’s,

There is a similar thought in these words of Curtius: ‘ What-
ever they had not ruined, they confessed belonged to the enemy.’
Not far different are the arguments urged by Cicero in his Letters to
Atticus against Pompey’s plan of destroying his own country by
starvation. On this ground Alexander the Aetolian censures Philip
in the seventeenth book of Polybius, whose words, according to the
Latin version of Livy, are as follows:

In war he (Philip) does not fight in the open field, nor engage in pitched battles,
but he burns and plunders cities as he flees, and when vanquished spoils the victor’s
prizes. Such was not the custom of the ancient kings of Macedon; they were wont
to fight on the field of battle, and to spare cities, so far as they could, in order that they
might have a wealthier empire. What sort of a policy is it, to destroy the things the
possession of which is at stake, and to leave for himself nothing except the war?

[533] IV.—Devastation should be refrained from tf the enemy bas

means of subsistence from other sources

1. In the third place, the same thing will happen if the enemy
can have means of subsistence from another source, for instance,

1 When Gelimer and the Vandals were besieging Carthage, they neither plmdered nor laid waste
the land, but took care of it as of their own; Procopius, m the opening of the second book of the
Vandalie War [II. i].

I read in Helmold, I. lxvi: ‘Is not the land which we lay waste our Jand, and the people whom
we assail our people? Why, therefore, are we found to be our own enemies, and wasters of our own
revenues ?’

With this agrees what Bembo has in Book IX, fol. 149 verso. See Paruta, again, against the
Germans, History, Book VI.

Flamintus
[v = 37ID].

Herodo-
tus, I
Pixxxviil".

[Phoeni-
clan
Women,
558 ff.]

[IV. xiv.
2.]

IX. vis [4],
ix [2],
x [3].

(XVII. iii.]
XXXIT
[xxxii,
II-I3].

[I. Ixxx
and |xxxi.]

[Training
of Cyrus,
V.iv 24.)

[IIl. x. 5
and 9]
Economtcs,
II fii. 23).
[Spanish
Wars, xi.
64.]

Decretals,
I. xxxiv. 2.

Code,
VIII. xvi.

On the Law of War and Peace [Book III

750

if the sea, or if other boundaries, shall be open. According to
Thucydides, Archidamus, in the speech in which he tried to dissuade
his fellow Lacedaemonians from war against the Athenians, asks what
hopes they have in waging war: Do they perhaps hope that, because
they enjoy military superiority, it is easy for them to lay waste the
land of Attica? But, he said, the Athenians have other lands under
their sway (meaning Thrace and Ionia) and can obtain what they
need through importations by sea.

Under such conditions, therefore, it is best to leave agriculture
undisturbed even along the common frontier. This we see in recent
times was the arrangement for a considerable period in the war of
the Netherlands against the Empire, with the payment of tribute to
either party.

2. This is in accord with the ancient custom in India, where,
as Diodorus Siculus! says: ‘The farmers are undisturbed and,
as it were, held sacred; in fact even in the vicinity of camps and
armies they pursue their tasks secure from danger.’ He adds: ‘ Men
neither burn the enemy’s fields, nor cut down the trees.’ Later:
‘No enemy inflicts harm upon any farmer, but this class of men, as
being common benefactors, is accorded protection from all wrong-
doing.’

3. Xenophon says that it was agreed also between Cyrus and
the Assyrian king that ‘there should be peace with the farmers,
war with those who bore arms’. So Timotheus? rented the most
fertile part of the land to husbandmen, as Polyaenus relates; nay
more, as Aristotle adds, he even sold the crops to the enemy, and paid
his soldiers with the money. Appian bears witness that this was
done also by Viriathus in Spain. As we have seen, in the war of the
Netherlands and the Empire which we have mentioned, this arrange-
ment was carried out with the highest degree of reason and profit,
and evoked the admiration of foreigners.

The canons, teachers of humanity, established these practices
for the imitation of all Christians, as those who ought to exercise
and who profess a greater degree of humaneness than others; and so
they seek to protect from the perils of war not merely the farmers,
but also the animals which they use in cultivation and the seeds
which they keep for sowing. The reason is assuredly the same as
that for which the civil laws forbid that things useful for ploughing

1 Book II [II. xxxvi].

4 Plutarch gives the same information with regard to the Megarians, in his Greek Questions [xvii=
p- 295 BC.]. Of Totila, when he was besieging Rome, Procopius says, Gothic War, III [III. xiii]: ‘In
the meantime he did no harm to the farmers throughout the whole of Italy, but ordered them to till
their lands continuously, without fear, just as they had been accustomed, provided that they paid
tribute to him.’

Cassiodoms says, [Variae,] XII. v: ‘ It is the chief glory of the defenders if, while they seem to
be protecting the appointed districts, the farmers do not cease to cultivate their inherited possessions.’

Chap. XII] Moderation in Laying Waste and Similar Things 751

be taken as a pledge. In ancient times among the Phrygians and
Cyprians, and later among the Athenians and Romans,} it was con-
sidered a crime to kill a plough-ox.

V.—Devastation should be refrained from tf the thing itself is of no use
in furnishing resources for war

In the fourth place, it happens that certain things are of such

a nature that they are of no value for making or waging war. Such

things reason wishes us to also spare, during the continuation of the

war. Here applies the speech of the Rhodians to Demetrius,? the

taker of cities, on behalf of the portrait of Ialysus, at it appears in
the Latin translation of Gellius :

What is your reason for wishing to destroy that likeness by setting fire to the temple?

If you conquer us all, and take this whole city, by your victory you will obtain that

portrait also, safe and intact. But if you prove to be unable to conquer us, we ask you

to consider, lest you incur the bad repute of having waged war against the dead Proto-
genes because you were unable to conquer the Rhodians.

Polybius says it is a sign of an infuriated mind to destroy those
things which, if destroyed, do not weaken the enemy, nor bring gain
to the one who destroys them ; such things are temples, colonnades,
statues, and the like. Marcellus, whom Cicero praises, ‘ spared all
the buildings of Syracuse, public and private, sacred and profane,
just as if he had come with his army to defend them, not to capture
them.’ The same author later says: [534] ‘Our ancestors left
to them the things which seemed agreeable to the vanquished, but
of small value to us.’

VI.—The principle stated is particularly applicable to things that are
sacred or connected with things that are sacred

1, While what has been said holds true of other things of
artistic value, for the reason which we have already given, there is
a particular reason in the case of those things which have been devoted
to sacred uses. Although such things also, as we have said elsewhere,
are public in their own way, and so, according to the law of nations,
are violated with impunity, nevertheless, if there is no danger from
them, reverence for divine things urges® that such buildings and

* Also in the Peloponnesus; Varro, On Farmng, IT [II. v. 4]; Columella, VI, beginning. To these
add Pliny, [Natural Hrstory,] VIII. xlv; Aelian, History of Antmals, II, last chapter; Porphyry,
On Abstaining, II [II. xxviii] ; Vegetius, On the Vetertnary Art, III [prolegomena, vil].

* See on this topic Phny, Natural History, VIII. xxxviii [VII. xxxviii], and XXXV.x; and
Plutarch, Demetrius [xxit=p. 898 E]. The same idea is found in the letter of Belisarius which we have
just quoted [IITI. xdi. 2. 3, note].

* Polybius says in the Excerpia Pezresciana [p. 45]: ‘ It is a mark of supreme folly to act impiously
toward the gods because you are with men.” Rightly, beyond question ; for Severus also, as
Lampridius reports [Life of Alexander Severus, xlix], declared in a rescript: ‘It is better that God

1569-27 3E

Nicholas
of Damas-
cus [frag.
19, p. 148,
edit. Din-
dorf].
Aelian,
[Var.

Hist ,]

V. xiv;
Dio Chry-
sostom,
Orattions,
Ixv [=p.
592].

[Attic
Nighis,]
AV. xxxi.

V [xi].

Against
Verres,
Act ITI
[IV. liv.
120].
IV [lx.
134].

[III. v. 2.]

Sylvester,
word
bellum,
Ill, Do 5.

[IV. xevu.]

[T. xxix.
6 ]

(XIII.
316 ff ]

XLIT fii.
9}.

[Livy,]

XLIV [vit

2).

IV fi. 13].

II [ij.

On the Law of War and Peace [Book III

752

their furnishings be preserved, particularly among those who worship
the same God, in accordance with the same law, even if perhaps
they disagree in respect to certain doctrines or points of ritual.

2. Thucydides says that it was the law among the Greeks of
his time ‘that those, who made an attack upon hostile territory,
should refrain from doing harm to sacred places’. When Alba was
destroyed by the Romans, Livy says that they spared the temples of
the gods. Of the Romans at the taking of Capua, Silius, in his
thirteenth book, speaks thus:

Lo, through their breasts there creeps a silent feeling
Of sudden awe, and soothes their savage hearts,
That they wish not for fire and torch, nor now
That temples fall in ashes in one pyre.

Livy recounts that it was said in criticism of Quintus Fulvius
the censor, ‘ That he involved the Roman people in irreverence by
building temples with the ruins of temples, as though the immortal

ods were not everywhere the same, but some were to be wor-
shipped and adorned with the spoils of others.?- But Marcius Philippus,
upon arriving at Dium, ordered his encampment to be laid out in
the shadow of the temple itself, in order that nothing in the sacred
place might be profaned. Strabo relates that the Tectosages, who
with others had carried off the treasures from Delphi, consecrated
these at home with an addition, in order to appease the deity.

3. ‘To come now to Christian peoples, Agathias records that the

should be worshipped there in any way at all, than that the place should be turned over to keepers
of cook-shops.’

Pliny, Natural History, XVI. xi [XVI. xl], says of Hannibal: ‘He was led by a feeling of reverence
to spare the temple of Diana of Saguntum.’ ‘And we have not deprived our foreign foes of their temples,’
is a remark found in Appian, Civil Wars, II [II. xix. 140].

The Latin author of the life of Agesilaus [Nepos, Agesilaus, iv] says of him: ‘Not only on Greek
soil did he make it a practice to mamtain the sanctity of the temples of the gods, but even in the
country of the barbarians he preserved the images and altars with the greatest reverence. He used
to say that he wondered [540] that those who harmed their suppliants were not included in the
number of the sacrilegious, or that those who caused reverence to decline were not punished more
heavily than those who plundered temples.’

Regarding the scrupulosity of Agesilaus in this matter see also Plutarch [Agestlaus, xix =p. 606 A].
The same writer, in his Sulla [xii=p. 459 cD], accords this praise equally to many Romans: ‘Some
called to mind Flaminius, others Manius Aquilius and Aemilius Paulus; of these the former, when
he had driven Antiochus from Greece, and the latter, when they had subdued the kings of Macedon,
not merely spared the temples of the Greeks, but enriched them with gifts and increased their reputation
and sanctity.’

Add also Vitruvius, Book IT [II. viii. 8]; Dio Cassius, XLII [XLII. xlvin]; Plutarch, Caesar [xxvi
=p. 720]; Brodeau, M:scellanea, V [V. xxix]. Gabaon, the Moor, although not himself a Christian,
wished honour to be shown to the churches of the Christians ; this was contrary to the conduct of the
Vandals, with whom he hoped that the God of the Christians, whoever He might be, would be angry.
This is vouched for by Procopius, Vandalic War, I [I. viii], who says also, Perstan War, II [II. ix], that
Chosroes, a Persian and not a Christian, spared the church of the Christians of Antioch.

Even Justinian, as the same author relates, Vandalic War, II [II. ix], did not dare to keep in his
possession the objects which Vespasian had carried off to Rome from the Temple at Jerusalem, and
which Genseric had found in Rome and transported to Africa. Benjamin the Jew, in his Itinerary, bears
Witness to the reverence which was manifested by the Mohammedans for the place in which the bones
of Ezechiel and the three companions of Daniel had been interred.

Chap. XII] Moderation in Laying Waste and Similar Things 753

Franks spared the temples, seeing that they were of the same religion
as the Greeks. In fact it has been customary also to spare men on
account of religious edifices, conduct which (not to mention pagan
peoples, which afford many examples, since, in fact, writers call this
custom ‘ a law common to the Greeks ’) in the case of the Goths who
captured Rome? is praised by Augustine as follows :

To this 2 the places of the martyrs and the basilicas of the Apostles, which in the
midst of the sack received the vanquished that fled to them, both Christian and pagan,
bear witness. So far the gore-stained enemy raged; there the madness of butchery
was stayed. hither were led by pitying enemies those whom (for ‘ those whom (gutbus) ’
I should prefer ‘who (gut)’,® for he distinguishes the milder from the more savage)
they had spared outside these places, that they might not be attacked by those who
did not have the same feelings of mercy. Nevertheless, after those, who themselves
elsewhere were savage and raged in the manner of enemies, came to these places * where
that was forbidden which was elsewhere permitted by the law of war, all their savage
frenzy was checked, and their desire to take captives was assuaged.

VII.—The principle is applicable also to consecrated things

1. What I have said of sacred things must also be understood
of consecrated things, also of structures erected in honour of the
dead; for these cannot be violated without contempt for human
feeling, even though the law of nations does accord impunity to the
venting of anger against them. ‘The jurists say that that is the
highest reason which acts in defence of religion. The pious utter-
ance of Euripides in his Trojan Women relates as much to consecrated

as to sacred things :

Mad is the man who cities devastates,
[535] With temples and the Manes’ consecrated seats.
For him there waits the doom of like destruction.

Apollonius of Tyana thus interpreted the fable of the giants assaulting
the sky ®: ‘ That they did violence to the temples and seats of the
gods.’ In Statins, Hannibal is termed sacrilegious because ‘ he set
torch to the altars of the gods’.

1 Under the Arian Alaric. The following notable deed is recorded of him by Cassiodorus, [Variae, ]
XII. xx: ‘ When King Alaric had received the vessels of the Apostle Peter from his men who brought
them, he held an inquiry; having learned the state of affairs, he ordered that they should be carned
back to the sacred portals by the hands of those who had carried them off, that the greed, which from
lust of plunder had committed the crime, should expiate its excess by the most lavish devotion.’

2 Isidore has quoted this passage in his Gothic Chronicles, on the year 447- |

Orosius, in relating the story, VII. xxviii, shows conclusively that this should be the reading
[in which case the English should be: ‘*Thither they were led by pitying enemies who had spared,’ &c.].

« These same churches of the Apostles were spared by the Goths under Witiges, when they were
besieging Rome, as Procopius testifies, Gothic War, IT [II. iv]. Even for barbarians and non-Christians
flight to such places brought protection ; see Zosimus, TV [IV. xl], on the barbarian Tomitani.

Add the Swiss law in Simler [p. 302, ed. Elzevir]; Nicetas, Alexis, son of Manuel [v]; and
the same author, Andronicus, I [I. ix], where he blames the Sicilians for having violated the churches

of Antioch.
5 As Diodoms Siculus [Excerpta from Book VII] also interpreted another fable'regarding Epopeus.

3E2

Diodorus,
XIX
{lxxiii].
City of
God, I [i].

Dig. XI.
vil. 43.

[lines
95 ff]

[Philostra-
tus, Life
of Apollo-
nius, V.
xvi ]
[Stlvae,
IV. v1. 82.]

Punic
Wars

[xx. 133].

XLII
fxIviil].

[IV. lv
122]

[On
Dwina-
tion, I.
XXXV1
8x]
[XXIX.
XVI1i. 4 |
XIV
(ixiv].
[XXXII
XXV1 II;
XXX. 4;
XXX1 3.]
[II. vii.)
[V. xi}

[I. lxxxii]

On the Law of War and Peace [Book III

754

2. Scipio, having taken Carthage, bestowed gifts upon his
soldiers, ‘ excepting’, says Appian, ‘ those who had sinned against
the temple of Apollo’. As Dio relates, Caesar ‘did not dare to
overthrow’ the trophy erected by Mithridates, ‘ because it was
consecrated to the gods of war’. Marcus Marcellus, being restrained
by religious scruples, did not touch the things which victory had
made profane, says Cicero in his fourth Against Verres; and he
adds in the same passage that there are some enemies who in time of
war observe the laws of religion and custom. The same author
elsewhere said that the war waged by Brennus against the shrine of
Apollo was wicked.

The action of Pyrrhus, who plundered the treasures of Proser-
pina, is called by Livy disgraceful and insulting to the gods. Diodorus
characterizes a similar act of Himilco as ‘impiety’ and ‘a crime
against the gods’. Again, Livy calls the war of Philip wicked, as
though waged against the gods of the upper and the nether worlds ;
also madness, and an aggregate of crimes. Of the same war Florus
says: ‘Philip exceeded the rights of the victor in his violence to
temples, altars, and tombs.’ Touching the same affair, Polybius
adds this judgement: ‘ Who will deny that, to set to work to destroy
what will neither prove useful to us in waging war, nor disadvan-
tageous to the enemy, particularly temples and the statues and
similar ornaments which they contain, is the work of a mind that is
wicked and maddened with rage?’ In the same passage he does not
accept the excuse of revenge.

VIUL.—The advantages which follow from such moderation are pointed
Out

1. It is, in truth, not strictly a part of our purpose to inquire
at this point what is advantageous; we desire rather to restrict the
unrestrained licence of war to that which is permitted by nature, or
to the choice of the better among the things permitted. Neverthe-
less virtue itself, in low esteem in the present age, ought to forgive
me if, when of itself it is despised, I cause it to be valued on account
of its advantages.

In the first place, then, such moderation, by preserving things
which do not delay the war, deprives the enemy of a great weapon,
despair. There is a saying of Archidamus in Thucydides: ‘ Think
of the enemy’s land as nothing else than a hostage, the better the more
it is cultivated; therefore it must be spared, so far as is possible,
that despair may not make the enemy harder to conquer.’ The

1 A similar act of Prusfas is censured by Polybius, whose words are preserved by Suidas on the
word Prusias, and in the Excerpia Peiresctana [De Viriutibus et Vitis, I, p. 290].

Chap. X11] Moderation in Laying Waste and Similar Things 755

same policy was followed by Agesilaus} when, contrary to the view
of the Achaeans, he let the Acarnanians sow their crops in freedom,
saying that the more they sowed the more desirous of peace they
would be. This is what the satire says: ‘ For those, who have been
plundered of everything, weapons still remain.’ Livy, in relating the
capture of the city of Rome by the Gauls, says: ‘ The chiefs of the
Gauls had decided that all the houses should not be burned down,
in order that what remained of the city might serve them as a pledge
to break the morale of the foe.’

2. There is the further consideration that, in the course of
a war, such moderation gives the appearance of great assurance of
victory, and that clemency is of itself suited to weaken and to con-
ciliate the spirit. According to Livy, Hannibal did no damage in the
territory of Tarentum: ‘It appeared’, he says, ‘that this course
was pursued not because of the moderation of the soldiers or their
general, but [536] in order to conciliate the feelings of the
Tarentines.’

For a similar cause Augustus Caesar refrained from pillaging the
Pannonians. Dio gives the reason: ‘He hoped that in this way he
would win them over to himwithoutcompulsion.’ Polybius [Polyaenus]
says that ‘Timotheus, with that care of which we have already spoken,
above all else ‘ sought to win great good-will from the enemy them-
selves’. Regarding Quintius? and those Romans who were under
his orders, Plutarch, having narrated what we have said above, adds :
‘Not long afterward he received the fruit of this moderation ; for,
when he arrived in Thessaly, the cities went over to him. Then in
fact the Greeks who dwelt within Thermopylae also ardently longed
for Quintius; and the Achaeans, renouncing the friendship of Philip,
entered with the Romans into an alliance against him.’

The state of the Lingones escaped the devastation which they
had dreaded in the war waged by the general Cerealis, under the
authority of Domitian, against Civilis the Batavian and his allies ;
regarding it, Frontinus narrates the following: ‘ Because the state
had not lost any of its possessions, owing to the fact that contrary
to expectation it had not been laid waste, when brought back to its
allegiance it furnished to him seventy thousand armed men.’

3. Opposite results have attended the opposite policy. Livy
gives an example in the case of Hannibal: ‘ His spirit, inclined to
avarice and cruelty, was prone to despoil what he could not protect.
This policy was destructive both in its inception and in its result.
For it alienated the minds not only of those who suffered undeserved

1 This is recorded also by Plutarch, Agesilaus [xxti=p. 608 B].
3 Naturally Titus Quintius Flaminius [Flamininus].

Xenophon,
Affairs of
Greece, IV
[vi. x3].
[Juvenal,
Vill, 124.]
[V. xlii.
I-2.}

XXXIV
(XXIV.
xx. ro].

XLIX
[xxxvii]

III [x. 5].

(Flamt-
NiNUS, V=
Pp. 371 D,
cited
above, ITT.
Xil. 3. 2.]

V. iii
[Stratege-
mata, IV.
ili. 14].

XXXVI
[xxxviil.
3-4].

Aepidius
Regius, De
Actibus
Superna-
turalebus,
disp. 31,
dub. 7,
no. 127,

(Plutarch,
Alexander,
Xu=—p.
671 B.]

On the Law of War and Peace [Book III

756

wrong, but of others also, since more persons were affected by the
example than by the disaster.’ :

. Moreover, that which has been observed by certain theo-
logians I hold to be true, that it is the duty of the highest authorities
and commanders, who wish themselves to be regarded as Christians
both by God and by men, to forbid the violent sack of cities and other
similar actions. Such actions cannot take place without very serious
harm to many innocent persons, and often are of little consequence
for the result of the war; so that Christian goodness almost always,
and bare justice very often, shrinks from them.

Surely the bond which unites Christians is greater than that
which united the Greeks of old, in whose wars a decree of the Amphi-
ctyons provided against the blotting out of a Greek city. And the
ancients relate that Alexander of Macedon repented of nothing that
he had done more than that he had completely destroyed Thebes.

[541] CHAPTER XIII

MODERATION IN REGARD TO CAPTURED PROPERTY

I.—The property of enemy subjects which has been captured in war ts
to be held, up to the amount of their debt

I. ‘THE capture of enemy property in a lawful war is not to be
thought devoid of wrong, or exempt from the obligation of restitu-
tion. In fact, if you consider what may justly be done,? it is not
permissible to take or to hold property of greater value than the
equivalent of the enemy’s indebtedness, with this exception, that
over and above that amount one may retain things necessary for
a guarantee. When the danger is over, however, there should be
a restoration, either of the things themselves or of their value, accord-
ing to our discussion in the second chapter of Book IJ. What would
be permitted in the case of property of persons at peace is much
more permissible in regard to the property of enemies. There
is, then, a certain right of seizure, without a complete right of
ownership.

2. Now since a debt may be due to us either because of an in-
equality of possessions, or as the result of a punishment,” the property
of enemies may be acquired for either reason, but still with a dis-
tinction. For we have previously said that by a debt of the former
sort not merely the property of the debtor, but also that of his
subjects, according to the accepted law of nations, is made liable, as
though in the case of surety.

This right of the law of nations, indeed, we hold to be of another
kind than that which exists in mere impunity or the external power
of courts of law. For just as he with whom we have completed
a transaction by our private consent acquires not only a legal but
also a moral right to our property, so also a right is acquired by a kind
of common consent, which through a certain force contains in itself
the consent of individuals, in the sense in which a law is called ‘a
common agreement of the state’. It is the more credible that such
a basis of right was approved by nations in the kind of affair under
consideration because the law of nations was introduced not only
for the sake of avoiding greater evil but also to secure to each one

his right.

[543] See the decision of Pope Innocent, in Bembo, I.
The Romans ordered Prusias both to make restitution to Attalus and to pay a penalty in addition.

757

Victoria,
On the Law
of War,
nos. 55;
56,

Cajetan,
Summula
Peccato-
rum, words
bella dam-
num; Co-
VaITuvias,
On Sexi,
V. ult. 4,
previously
cited, pt.
Il, moO. II;
Victoria,
On the Law
of War,
nos. 39
and 41 ;
Molina,
tract. ii,
disp. 117.

ITI. is [3]

Sylvester,
word bel-
lum, Do.
to; Vic-
toria, no.
51; Bar-
tolus, On
Digest,

XLIX. xv.

28.
XXVII

[XXXVII.

XXXV. 7].

On the Law of War and Peace [Book III

758

Il.—The property of enemy subjects which has been captured in war 1s
not to be held as punishment for the crime of another

But in the other form of indebtedness, which is penal, I do not
see that by the agreement of the nations such a right has been extended
to the property of subjects. Such an obligation imposed upon the
property of others is hateful, and consequently ought not to be
extended further than the practice has clearly been. The advantage,
furthermore, is not the same in the latter as in the former kind of
indebtedness; for the former consists in goods, but the latter does
not, and so its exaction can be omitted without loss.

This position is not controverted by what we said above about
the Attic law. For according to its provisions men were held liable
not in reality because the state could be punished, but rather to
compel the state to do what it ought to do, that is, to render judge-
ment against the guilty. This obligation arising from duty is to be
referred to the former, not to the latter, sort of indebtedness. For
it is one thing to be under an obligation to punish, and another to
be subject to or liable to punishment, although the latter condition
usually results from failure in respect to the former, but in such a way
that one is distinctly the cause and the other the effect. Therefore
the property of the subjects of enemies cannot be acquired on the
ground of punishment, but only that of those who have themselves
done wrong ; among these are included also the magistrates who fail
to punish the crimes.

Ill.—Here we must understand as debt also indebtedness which arises
in time of war. Examples

Moreover the goods of subjects may both be seized and acquired,
not only [542] for the exaction of the original debt which gave
rise to the war, but also for the exaction of indebtedness which
develops subsequently; this is according to what we said at the
beginning of this book. In such a sense we must take what certain
theologians write, that captures in war are not to be set off against
the principal debt; for it is to be understood that such captures
are an offset up to the point where, according to a sound judgement,
satisfaction has been obtained for the loss occasioned by the war
itself.

Thus in the dispute with Antiochus the Romans, as Livy relates,
held it to be just that the king should pay all the expense which had
been incurred for the war,! since it was through fault of his that the

_ 1? This is mentioned by Polybius, Selecitons on Embassies, xxiii. And the Asiatics were condemned
in the same way by Sulla, as Appian records in his Mzthridatic War [ix. 61 ff.]. The King of Poland

Chap. XIII] Moderation in regard to Captured Property 759

war had arisen. In Justin is the phrase, ‘ ready, according to a just
law, to assume the expenses of the war.’ In Thucydides the Samnians
are condemned ‘ to pay the expenses of the war’. And so, frequently,
in other instances. However, what is justly imposed upon the con-
quered may also be justly exacted by a war.

IV.—In this matter it is an obligation of humaneness not to make the
fullest use of one’s right

I. But we must keep in mind that which we have recalled
elsewhere also, that the rules of love are broader than the rules of
law. He who is rich will be guilty of heartlessness if, in order that
he himself may exact the last penny, he deprives a needy debtor of
all his small possessions ; and even much more guilty if the debtor
has incurred the debt by his goodness—for instance, if he has gone
surety for a friend—and has used none of the money for his own
advantage, ‘ for’, as Quintilian the Father says, ‘ the peril of a bonds-
man is worthy of commiseration’.1 Nevertheless so hard a creditor
does nothing contrary to his right according to a strict interpretation.

z. Therefore humanity requires? that we leave to them that
do not share in the guilt of the war, and that have incurred no obliga-
tion in any other way than as sureties, those things which we can
dispense with more easily than they, particularly if it 1s quite clear
that they will not recover from their own state what they have lost
in this way. Here applies what Cyrus said to his soldiers after the
capture of Babylon: ‘ What you have, you will hold not unjustly ;
but if you do not take away anything from the enemy that will be
an evidence of your humanity.’

3. This also is to be observed. The right over the goods of
innocent subjects has been introduced as a subsidiary means; and as
long as there is hope that we can obtain what is ours with sufficient
ease from the original debtors, or from those who by not rendering
justice voluntarily make themselves debtors, to come to those who
are free from blame, even though it is granted that this is not in
conflict with our strict right, nevertheless is to depart from the rule
of human conduct.

4. Instances of such humanity are found everywhere in history,

claimed this custom in his favour, according to De Thou, LXXIII [LXXIII. ix], for the year 1581. So
in Homer, Zltad, III [III. 286], the word reuzdy is interpreted by the Scholiast as ‘an estimation of the
war; namely half of the property which was in the city.’

1 He adds that a creditor can honourably approach a bondsman only in case he cannot recover
from the debtor. The ‘honourably’ is well said; for it seems that there was a certain ‘stigma’ attached
to calling on bondsmen, as Cicero says, Letters to Atticus, XVI. xv.

4 Ptolemy returned to Demetrius, the son of Antigonus, his tent and other things which served
his personal use, and also the money he had captured, saying that they were not fighting with one
another for objects of all sorts, but for empire and glory. The story is told by Plutarch, Demetrius
{v=p. 891 A]. See also the act of Sancho, king of the Basques, in Mariana, XI. xvi.

XXXII
fi. 5].

(I. cxvii.]

[Declama-
tions,
eclxxi.]

[Xeno-
phon,
Traming
of Cyrus,
VIT. v.
73-]
Aegidius
Regius,
De Actibus
Superna-
turalibus,
disp. 31,
dub. 7,
no, 117.

Dig. XLI,
1 16.

Dig. XLI.
i. 16;

Dig VI.
1,15 § 2;
Victoria,
On the Law
of War,
no 40;
Sylvester,
word bel-

IIT [xvii].

On the Law of War and Peace [Book III

760

particularly in the history of Rome. Examples are when lands have
been ceded to the conquered enemy on the condition that they should
pass to the state, that is, that they should fall to the conquered
state; or when a part of the land was left to the ancient possessor 1
as a mark of respect. Thus Livy records that the inhabitants of
Veii were penalized by Romulus with the loss of part of their land.
Similarly Alexander the Macedonian granted to the Uxii under
tribute the lands which they had possessed.

So you may often read that surrendered cities were not sacked ;
and we have said above that it is praiseworthy, and in accordance
with the pious precepts of the canons, to spare not only the persons,
but also the property, of the tillers of the soil, subject at any rate
to tribute. Upon condition of a similar tribute, immunity from war
is usually granted to merchandise also.

1 Appian, Civil Wars, II [II. xix. rqo], says: ‘Not even from conquered enemies did the ancient
Romans take all their territory, but they divided it with them.’ The historians inform us that the
Vandals in Africa, and the Goths in Italy, did likewise.

CHAPTER XIV
MODERATION IN REGARD TO PRISONERS OF WAR

I.—To what extent, in accordance with moral justice, it is permissible to
take men captive

1. Iw those places where custom sanctions the captivity and
slavery of men, this ought to be limited primarily, if we have regard
to moral justice, in the same way as in the case of property; with
the result that, in fact, such acquisition may be permitted so far as
the amount of either an original or derivative debt allows, unless
perhaps on the part of the men themselves there is some special
crime which equity would suffer to be punished with loss of liberty.
To this degree, then, and no further, he who wages a lawful war
has a right over the captured subjects of the enemy, and this right
he may legitimately transfer to others.

z. Furthermore in this case also it will be the task of equity
and goodness to employ those [544] distinctions which were
noted above, when we discussed the question of killing enemies.
Demosthenes, in his letter For the Children of Lycurgus, praises Philip
of Macedon for not having enslaved all who were among his enemies.
§ For’, said Demosthenes, ‘ he did not consider the same punishment
for all either fair or right, but, examining the case in the light of
what each had deserved, he acted in such matters as a judge.’

Il.—W hat is permissible against a slave according to the moral power of
Justice .

1. Now in the first'place it must here be noted that that right,
which originates in a kind of surety on behalf of the state, can nowhere
extend so widely as the right which arises from a crime against those
who become slaves as a penalty. Hence a certain Spartan.said that
he was a prisoner, not aslave?; for, if we regard: the question properly,
this general right against prisoners captured in a lawful war is equiva-

1 His son Alexander, after capturing Thebes, exempted from slavery both the priests and those
,who had not assented to the decrees published against him; so Plutarch records in his Alexander
‘[xi=p. 670 E].

2 Philo has Every Virtuous Man Is Free, vi] says: ‘For both fathers have often paid a ransom for
their sons, and sons for their fathers, who had either been violently carried off by brigands or captured
according to the custom of war, but whom the laws of nature, more valid than those which are made
upon earth, declare free.’ In fact, as Helen said in the play of Theodectes fin Aristotle, Potsttes, I. vi}:

‘Who would dare to call me slave,
Me, child of the gods by either line ?.
761

Victoria,
On the Law
of War,
no. 41;
Decio
[Lessius],
II. v, dub.
4; Covar-
ruvias, On
Sext, V.
ult. 4,

pt. II,

§ Ir;
Molina,
disp. 120
and r21;
Valentia,
Disp., iii,
qu. xvi,

[Letters,
ili, r2.]

[Plutarch,
Laconic

A pothegms,
xl=p. 234
c.]

Plataic
Oration
(xvi =
300 Al].

Seneca,
On Bene-
fits, III
XXu.

On Cle-
mency, I.
XVill.

[Stobaeus,
Ixii. 28.]

Letters,
xivii [1].

[Saturn-
aha, I. xi.J

Coloss1ans,
iv. I.

Epistles
[Ephe-
stans],
Vi. 9.

VII. xiv.

The In-
structor,
end [ITT.
X11. 92].
[Son of
Sirach,
xxxiii. 3x.]

On the Law of War and Peace [Book III

702

lent to that right which masters have over those who, under constraint
of poverty, have sold themselves into slavery; only the misfortune
is even more to be pitied of those who have met this fate not by
their own particular act, but through fault of their rulers. ‘To be
captured by the law of war is a most bitter fate,’ as Isocrates bore
witness.

2. This servitude, then, is a perpetual obligation of services
for maintenance that is likewise perpetual. The definition of
Chrysippus well suits this class of slaves: ‘A slave is a perpetual
mercenary.” The Hebraic Law expressly compares to a mercenary
the man who has sold himself under constraint of want (Deuteronomy,
xv. 18, 40, 53), and in case of his redemption the law wishes his
services to be credited to him just as crops gathered from land that
has been sold would be credited to the former owner (Deuieronomy,
XVill. 50). |

3. Therefore that which may be done to a slave with impunity
according to the law of nations differs widely from that which
natural reason permits to be done. From Seneca we previously
quoted this: ‘Although against a slave all things are permissible,
there are some things which the common law of living things forbids
to be done against a human being.’ This saying of Philemon is to
the same effect :

He, Master, who is born a man, though he may serve
In slavery, still ceases not to be a human being.

Elsewhere Seneca says also: ‘ They are slaves, nay rather men ;
they are slaves, nay rather comrades; they are slaves, nay, humble
friends; they are slaves, nay rather fellow slaves.?’ What you may
read in Macrobius has clearly the same sense as the saying of the
Apostle Paul: ‘ Masters, render unto your servants that which is
just and equal, knowing that ye also have a Master in heaven.’ In
another place the apostle wishes masters not to deal threateningly
with their slaves, for the reason which we have just stated, that they
also have a Master in heaven, who pays no regard to such differences
of status. In the Constitutions, which are usually ascribed to Clement
of Rome, we read: ‘Beware of commanding a slave or a handmaid in
bitterness of heart.’ 4

Clement of Alexandria wishes us to treat our slaves as second
selves, since they are human beings no less than we are. He is follow-
ing the saying of the wise Jew: ‘If you have a slave, treat him as
a brother, for he is such as you are.’

1 So also we read'in the Epistle of Barnabas [chap. xix]: [549] ‘Command not harshly thy
slave nor thy handmaid, who hope in Christ, lest thereby thou show that thou dost not fear the Lord
who ts common to thee and to them.’.

Chap. XIV] Moderation in regard to Prisoners of War 763

IIT.—I¢t is not permissible to kill an innocent prisoner

Therefore the right, which is called the right of life and death
over the slave, causes the master to have domestic jurisdiction, which,
indeed, is to be exercised with the same conscientiousness as public
jurisdiction, This is what Seneca meant when [545] he said:
‘Tn the case of a slave you must consider, not how much he can suffer
with impunity, but how much is permitted to you by the nature of
justice and goodness, which bids you to spare even prisoners of war
and those who have been bought for a price.’

Elsewhere Seneca says: ‘ What does it matter by what power
any one is held, if he is held by a power that is absolute?’ In this
passage he compares a subject to a slave, and says that on different
grounds it is permissible to treat them alike; a statement that is
certainly most true in respect to the right of taking away their life,
and whatever approximates this. ‘Our ancestors’, says the same
Seneca,! ‘ considered our household to be a diminutive state’; and
Pliny writes: ‘ For slaves the household is a sort of republic, and, as
it were, a state.’ Cato the Censor, in Plutarch’s account, did not
inflict punishment upon a slave, who appeared to have committed
a capital crime, until after he had been condemned, and that by the
judgement of his fellow slaves. With this should be compared the
words in Fob, xxxi. 13, and following.

IV.—It is not permissible to puntsh with severity

But in regard to minor punishments also, as the beating of
slaves, we must apply fairness, and further, clemency. ‘ Thou shalt
not oppress him, thou shalt not rule him harshly,’ ? says the divine
law in regard to the Jewish slave—a rule which should now be extended
to all slaves, through extension of the force of relationship (Deu-
teronomy, XV. 17, 45, 53). On this passage Philo comments thus :

Slaves in respect to fortune, indeed, are inferior, but by nature they are equal to

1 Seneca, Letters, xlvii [xlvii. 14].

2 See Moses de Kotzi, Precepts Bidding, 147,175 and 178, and the Collatio Legum Mostis et Roma-
norum, tit. ii. Priscus, in the Selections on Embassies [Fragmenta Historicorum Graecorum, IV, p. 88],
where he puts the Romans above the barbarians, says :

‘The Romans treat their slaves in a much better fashion, and act toward them as fathers or
teachers ; for to turn them from the things which, according to their customs, are forbidden, they
punish them when they do wrong, bke their own sons. And they have not the right to kill them,
as do the Scythians. Moreover there are very many kinds of liberty which the masters bestow
upon them, not only when living, but also at the moment of their death ; whatever disposition they
make of their property when dying has the force of law.’

Add the Law of the Visigoths, VI. i. 12.

3 On Special Laws, II [IIT. xxxv]- ;

Cyprian writes To Demeirianus [chap. viii]: ‘ Unless you are served according to your caprice,
unless you are obeyed in compliance with your pleasure, imperiously, and with excessive demands for
subservience, you scourge, you beat, you afflict with hunger, thirst, nakedness, frequently with fetters
and imprisonment, and, wretch that you are, you do not recognize that God is your Lord, since you
yourself so exercise your authority over man.’

On Cle-
mency, I.
xviii.

On Bene-
fits, IIT.
XVill.

Leiters,
xl
[xlvii. 14].

(Letters,
VIII. xvi J
{Plutarch,
Cato the
Elder,
xxi=p.
349 A]

[On Clem-
ency, I.
XVi. 4.]

(I. xvii 1.)

Exodus,
xxi. 26, 27.

Exodus,
XxX. 10;
Xxil. 12;
Deut., X.
14 [xvi.
14].
[Leiters,
V. xx.]

[Odyssey,
IT. 47 and
234.]

Letters,
xivii [14].

[Orations,
i=p 5.]

On the Law of War and Peace [Book III

794

their masters; for in the divine law the rule of justice is not that which accords with for-
tune, but that which accords with nature. Hence masters ought not to use their power over
slaves wantonly, nor in consequence of the possession of such power to indulge in pride,
insolence, and savage wrath. For these are manifestations of a spirit that is not calm,
but is ill-controlled and rages against those subject to it with a sort of tyrannical despotism.

‘Js it in fact right’, asks Seneca, ‘ that orders should be given
to a man with greater severity and harshness than to dumb animals?
Now a groom who is a skilful tamer does not frighten a horse with
repeated blows; for the horse will become timid and balky unless
you stroke him with a caressing touch.’ And soon after: ‘ What is
more foolish than to blush to vent one’s anger upon yoke-animals
and dogs, while the worst condition is that of man?’

Whence it comes that by the Hebraic law liberty was owed to
a male or female slave not only for the loss of an eye, but also for that
of a tooth,! wrongfully injured, of course.

V.—Ii ts not permissible to impose upon slaves tasks that are excessively
severe

I. But services also are to be exacted with moderation * and
the health of slaves is to receive humane consideration. Besides
other things the Hebraic law aimed to accomplish this result through
the institution of the Sabbath, presumably in order that slaves might
have some time to rest from their labours. There is also a letter
of Gaius Pliny to Paulinus, which begins thus: ‘I see how leniently
you handle your slaves, therefore I will the more frankly admit to
you with what indulgence I treat mine. I have always in mind that
saying of Homer, “But the stepfather was as kind as a father,”’ and
this is our term for the father of the household (paterfamilias).’

2. In connexion with the same word Seneca also notices the
humanity of the ancients: ‘Do you not even see this, how our
ancestors protected masters from all ill-will, and slaves from all
insolence? ‘They called the master the father of the household
(paterfamtlias), the slaves members of the household (familiares) ’.
In describing a most excellent king, Dio of Prusa says: ‘So far is
he from usurping the title of master over free men, that he refrains
from the use of it even in relation to slaves.’

1 Philo, in the passage cited [On Spectal Laws, II]. xxxv], says: ‘Thus he will pay a twofold penalty
for his act, in losing both the services and the value of the slave ; in addition to these there is a third
penalty, more severe than these two, that the master is forced to benefit in the highest degree one
whom he hates, and whom he had hoped that he could always abuse. But the other will have a twofold
solace for the wrong which he has suffered, not only in obtaining his freedom, but also in being freed
from so fierce and savage a master.’

| § See chap. xiv, in the letter of the bishops to King Louis, which is included in the Cagiiulary of
Charles the Bald [Mon. Germ. Hist., Leges, II, vol. 11, p. 437]. Seneca, Letters, xlvii [xlvii. 5), Says:
“We abuse them, not as men, but as though they were oxen.’ However, with regard to the leniency
ot the Athenians towards slaves see [Pseudo-]Xenophon, On the Constitution of Athens [I. ix ff.].

* Epicurus called them friends ; Seneca, Letters, cvii [cvii. 1].

705

In Homer Ulysses} says that the slaves whom he found faithful
will have in his house the same place as if they were brothers of
Telemachus, his own son. Tertullian declares: ‘ The name of piety
is more gracious than that of power®; the heads of households [546]
are called fathers rather than masters.’ Jerome or Paulinus writes to
Celantia: ‘So rule and order your household that you may wish to
appear the mother rather than the mistress of your slaves, and from
these exact respect by kindness rather than by severity.’

Augustine says :

The peace of the household was in olden times so directed by just fathers that with
regard to these temporal goods they distinguished the lot of sons from the status of
slaves, but in the worship of God they consulted with equal care the interests of all
members of their household. This is in accordance with the prescription of the order
of nature, so that from this source the name ‘ father of the household ’ arose and became
so widely current that even those who rule unjustly are glad to be called by this name.
However, those who are true fathers of the household aid all in their household just
as sons to worship and propitiate God.

Chap. XIV] Moderation in regard to Prisoners of War

.3. In commenting on the verse of Virgil, ‘ Now, boys, close up
the rivulets ’, Servius observed a similar instance of piety in the use
of the word ‘ boys’ (guert), which men applied to slaves. In the same
spirit the Heracleots called their Mariandynian slaves ‘ gift-bearers
(Swpoddpor) ’,® thus ‘sparing the bitterness of the name’, as the
ancient interpreter Callistratus remarked in a note on Aristophanes.
Tacitus praises the Germans, because their slaves were treated as
tenant farmers. Theano says in a letter: ‘ This is the just way to
use slaves; not to let them be worn out with toil, nor be too weak
to endure labour because of poverty.’

Vi.—Under what circumstances the savings of a slave belong to the master,
and under what circumstances to the slave

1. As we have said, maintenance is due to the slave * for his
work. Cicero says: ‘ Those make wise suggestions who bid us use
slaves just as men who serve for hire, declaring that work is to be

1 Whose fatherly kindness toward himself Eumaeus proclaims, Odyssey, XIV [XIV. 138 ff.].

2 This is also observed by Cyprian, Testimonzes, III [III. bexii], To Qutrinus: ‘ Masters should be
more gentle to their slaves, when they have embraced the faith’ ; and he proves this by the words
of the Apostle Paul to the Ephesians [vi. 9]. Lactantius, V. xv, writes: ‘There is no reason why we
mutually apply to one another the name of brothers other than this, that we believe that we are equals.
For if we measure all human beings not according to the body, but according to the spirit, although their
bodily condition may be different, yet [550] they are not slaves to us; but we both consider them, and
call them brothers according to the spirit, fellow slaves in religion.’

Augustine, On the Customs of the Catholtc Church, X. xxx [I. xxx. 63], says: ‘ You teach slaves to
cleave to their masters, not so much from the necessity imposed by their condition, as from delight in
their duty. You make masters easily appeased by their slaves, from regard to the supreme God, who
is indeed their common master, and more prone to advise than to coerce.’

Add also Isidore of Pelusium, Letiers, 1. cccclxxi. Refer to what we have just quoted from Priscus
[p. 763, n. 2]. . ;

3 Athenaeus, VI. xviii [VI. lxxxiv].

« Son of Sirach [Ecclestasticus], xxxili. 25, says: ‘ Bread, discipline and toil, are for the slave.’

Odvssey,
V ([XXI.
215 ff.).
[A pologs,,
XXXIV |}

[ Jerome,
Letters,
exlvili.
25]

City of
God, XIX.
EVI.

[On
Eclogues,
VI. r4]

[Germany,
xxv.]

(Letters,
ili. pr.]

On Duties,
I [xuii. 43].

Economics,
I. v.

[On
Farming,
V.1i.]

On Bene-
fits, III
(xx1. 2]
[On
Terence’s |
Phormio,
I 1 [43]
Dig XV.
1 40.
Thucy-
dides, VII
[Ixxxvil] ;
Diodorus,
AIT [x1x]
[On
Benefits,
TIT. xix.]

Institutes,
IV vu.

Dig, XV
1.5 § 1.

On the Law of War and Peace [Book III

766

required of them, but that they are to be furnished with what they
deserve.’ Says Aristotle: ‘The slave’s pay is his maintenance.’
And Cato: ‘ Let him see to it that his slaves fare well, that they
are neither cold nor hungry.’

‘'There are some things ’, says Seneca, ‘ which a master should
furnish to his slave; as rations and clothing.’ The rations included
four bushels of grain monthly, which, according to Donatus, were
supplied to slaves. Marcianus the jurist says that there are some things
which it is necessary for the master to supply to a slave, as tunics and
the like. The cruelty of the Sicilians,? who killed the Athenian
prisoners by starvation, is condemned by historians.

2. Seneca, moreover, in the passage cited proves that in relation
to certain matters the slave is free, and that he has also the means of
conferring a benefit, if he does something which exceeds the measure
of his duty as a slave, something which is tendered not at a command,
but voluntarily, where there is a transition from the obligation of
service to the affection of a friend; this Seneca explains at length.
It is in harmony with these ideas that if a slave, as in Terence,? in
his leisure hours, has saved something by cheating his own soul, or
by his industry, this is in some way his own.

Theophilus does not do badly to define the slave’s savings
(peculium) as ‘a natural patrimony ’,* as you might define ‘ the
union of slaves (contuberntum)’ as ‘a natural marriage’. Ulpian
also calls the slave’s savings a diminutive patrimony. It does not
matter that the master can at his discretion take away or lessen the
patrimony, for if he does this without cause he will not do what is
just. By cause, however, I understand not only punishment, but
also the master’s necessity; for the advantage of the slave is sub-
ordinate to the advantage of his master, even more than the interests
of citizens are subordinate to that of their state. On this point

1 The same author, On Tranquzllity [viii. 8], writes: ‘The slaves ask for clothing and food.’
In Procopius, Gothic War, III [III. xvii], the Romans say to Bessas: ‘ At least give us food, since we
are your captives, I shall not say sufficient food, such as our need demands, but enough to ward off death.’
Chrysostom comments, On Ephesians, v. 21 [Homily XIX, v]: ‘When he peiforms his bodily
services, you indeed feed him, and see to it that, n addition to his food, he has clothing and shoes, and
this, too, is a sort of servitude: for unless you also perform this service of yours, he will not render his,
but will be free, and no law will compel him to render his services, if he is not nourished.’
* Also that of Isaac Angelus to the Sicilian prisoners, as 1s recorded by Nicetas. Book I [Isaac
Angelus, I. ini], who quotes also the letter of the king of Sicily to the Greek emperor on this subject.
3 Phorm, 1.1 [I.i. 44].
“ Eumaeus in the Odyssey, XIV [XIV. 63 f.], says:
Such things as a generous master gives to a bondsman,
The ties of wedlock, land, and a habitation.

Ulysses himself, Odyssey, XXI [XXI. 214 f.], says to Eumaeus and Philaetius :

To each of you shall I give wives and possessions,
And houses near to my own.
Varro [On Farming, I. xvii. 7] says of slaves: ‘They are rendered more zealous in their work by more

generous treatment, by greater liberality in respect to food or clothing, or by the remission of a task,
or by the permission to pasture on the estate some cattle of their own.’

Chap.XIV] Moderation in regard to Prisoners of War 767

Seneca * appositely remarks : ‘ It is not true that the slave has nothing
merely because he will have nothing if his master is unwilling that
he should have anything.’

3. Hence it is that a master does not seek to recover anything
which was owed to a slave during slavery, and which was paid to the
slave after emancipation. The reason, as Tryphoninus says, is that
the ground for indebtedness or non-indebtedness is seen naturally in
the claim of restitution; the master may naturally be indebted to
his slave. And so we read that, just as clients [547] have made
contributions for the use of patrons, and subjects for the use of
kings, so slaves have made contributions for the use of their masters,
as on the occasion of giving a dowry to a daughter, or ransoming
a captive son, or some similar occurrence.

Pliny, as he himself records in his letters, even allowed his slaves
to make wills of a sort, that is to divide, donate, and leave their
belongings within the household. We read that among some peoples
slaves were allowed an even fuller right of acquiring property, just
as we have elsewhere said that there are several degrees of slavery.

4. Among many peoples the laws have reduced even the
external right of masters to this moral justice, which we are explain-
ing. For among the Greeks slaves who had been too harshly treated
were permitted ‘to demand their sale’, and at Rome to take refuge
at statues, or to seek the aid of the magistrates against cruelty or
starvation or intolerable wrong. Furthermore it will happen, not
from a strict interpretation of law, but from humanity and kindness,
that at times a slave will be given his freedom, which is due to him
on the ground of Jong or very great services.

5. After slavery was introduced by the law of nations, there
followed the benefit of emancipation, says Ulpian. Let us take as
an example the lines of Terence:

From a slave I made you my freedman,
Because like a free man you served.”

Salvianus says that it was a frequent custom for slaves to be given their
liberty, even when their service had not been of the best, at any rate
if it had not been wicked; he adds, ‘and they are not forbidden to
take from their masters’ house those things which they have acquired
when in a servile condition’. Many instances of this sort of kindness
appear in the martyrologies.

1 In the same passage of the same author is this: ‘Is there any doubt that the slave, along with
his savings, belongs to his master? But yet he can give a gift to his master.’

2 Thus the manuscripts, correctly. Varro [Servius, On the Aeneid, VITI. 564] relates that in the
grove of Feronia it was customary to say to slaves: * Let the well-deserving slaves be seated. Let them
arise free.’ In certain places it was the custom to set slaves free when they had acquired eight times
their purchase price,

1569-27 3F

On Bene-

fits, VII.

1vV.

Dig. XII.
vi. 64.

Dionysius,
II [x].

Letters,
VIII. xvi.

II. iii (IT.
Vv. 27 ii.].

Institutes,
I. viii. § 2.

Dig. I. i.
4.

[Andria,
I. i. ro f.]

[Against
Avarice,]
IIT [vii].

Deut., xv.
r3.

[Cato the
Elder, v
== p. 338E.]

Sylvester,
word ser-
vitus, § 3;
Fortunius,
On Dig., I
1.4; Aegi-
dius Re-
gius, De
Actibus
Superna-
turvalibus,
disp. 31,
dub. 7,
no. I19.

II. v [29].

Lessius,
II, v,
dub. 5.

9

Deut., Xv.
13 [xx. 14].

708 On the Law of War and Peace [Book III

In this respect also we must praise the lenity of the Hebraic
law, which ordained that the Jewish slave should be completely
emancipated after the lapse of a fixed time, and not without gifts.+
The prophets bitterly complain of the disregard of this law. Plutarch
censures Cato the Elder for selling slaves who were worn out from
old age, unmindful of that common nature in which all men share.

VIL—W hether 1t 15 permissible for slaves to attempt to escape

The question here arises, whether it is right for a person who
has been made a prisoner in a just war to attempt to escape; we are
not dealing with him who has deserved this penalty by his own
crime, but with him who has come into such a condition by a public
act. The sounder view is that it is not right, because, as we have
said, by the common consent of nations such a captive owes his
services on behalf of his state.

This view nevertheless is not to be understood as valid in a case
where intolerable cruelty imposes the necessity of escape upon the
captive. On this subject one may consult the response of Gregory
of Neocaesarea, xvi.

VIIL—Whether the children of slaves are bound to the master, and to
what extent

1. In another connexion we raised the question, whether and
to what extent the offspring of slaves are bound to the master by
moral justice. ‘This question should not be passed over here,
because it particularly concerns prisoners of war. If the parents
had merited death by their own crimes, then for the preservation of
their lives the offspring which was expected of them could be bound
to slavery, because otherwise these would not be born. As we have
said elsewhere, parents may in fact sell their children into slavery if
otherwise they would face starvation. Such is the right which God
granted to the Jews over the descendants of the Canaanites.

2. However, children that were already born, no less than their
parents, as part of the state could have been made liable for a debt
of the state; but with regard to those who have not yet been born
this reason does not seem sufficient, and another appears to be required.
Either the obligation in question may arise from the express consent
of the parents, along with the necessity of supporting the children,
and then it may exist without end; or it may arise from the mere
furnishing of sustenance, in which case it exists only up to the time
[548] when their services shall have cancelled all that has been
expended for them. If any further right over the children is given

* Custom interpreted this as requiring a gift of not less than thirty shekels; see Precepts
Brdding, 84.

709

to their master, apparently it arises from the civil law, which to
masters is more generous than just.

Chap.XIV] Moderation in regard to Prisoners of War

IX.—W hat 1s to be done in countries where the enslavement of prisoners
of war 15 not customary

1. Among those peoples who do not avail themselves of the
right of slavery which arises from war, the best course will be to
exchange prisoners ; the next best, to release them at a price that is
not unfair. What that price is cannot be set forth in exact terms ;
but humanity teaches that it should not be raised to the point where
its payment would place the prisoner in want of the necessities of
life. Such indulgence is in fact granted by the laws of certain coun-
tries to many who have fallen into debt by their own acts.

In some places the price put upon captives is fixed by agreements
or by custom; as the sum of a mina among the Greeks of antiquity,
and at present among soldiers at a month’s pay. Plutarch relates
that formerly wars between the Corinthians and Megarians were
waged ‘humanely and as became peoples of the same race’. If any
one were taken prisoner, he was treated by his captor as a guest and,
upon his promise to pay his ransom, dismissed to his home; and from
this arose the name ‘ war-guests (Sopv€evor) ’.

2. The saying of Pyrrhus, which is praised by Cicero, reveals
a nobler spirit :

I ask for myself not gold,* nor shall you pay me a ransom; [...]
With steel, not with gold, on each side fight we for life. [. . .]

To them whose valour the fortune of war has spared,
Their liberty I am resolved to grant.

There is no doubt that Pyrrhus believed that he was waging a just
war; yet he thought that he ought to spare the liberty of those
whom worthy reasons had led into war.

Xenophon lauds a similar act of Cyrus; Polybius, the course
taken by Philip of Macedon after his victory at Chaeronea; Curtius,
the conduct of Alexander in relation to the Scythians; Plutarch,
that of King Ptolemy and Demetrius, who rivalled each other fully
as much in their kindness toward prisoners as in military operations.
Dromichaetes, king of the Getae,? made Lysimachus, who had been
taken prisoner, his guest, and by causing him to witness at the same
time both the poverty and the civility of the Getae he induced
Lysimachus to prefer to have the friendship of such people rather
than their enmity.

1 [551] In the war between the French and Spaniards in Italy, a cavalryman was ransomed for a
quarter of a year’s pay. But this did not include leaders of detachments or higher officers, nor those
who fell into the enemy’s power in a pitched battle or in the storming of a city; Mariana, XXVII. xvni.

* Menander Protector [frag. 60, p. 115, edit. Dindorf] praises the like generosity of the Christian
Emperor Tiberius toward the Persians; Mariana, that of Sisebut [VI. iii], and also of Sancho, king
of Castile, Book XT [XI. v].

* This is also recorded by Diodorus Siculus, in the Excerpia Peiresciana [pp. 257 and 258].

3 F2

[Reading
largiente
for larg
entibus.]

Greek
Questions
[xvii =p.
2095 B.

[On
Duties,
I. xii. 38 ]

Training
of Cyrus,
II [III. i.
28 ff.}.
[Polybius,
V. x.)
[Curtius,
VII. ix.
x8]
[Plutarch,]
Demetrius
[v= p.
Sgr a].
Strabo,
VII [iii. 8].

Victoria,
On the Law
of War,
nos. 38
and 59.

[Letiers,
II. iv=

p. 409 ]

jugurthine
War [Con-
spiracy of
Catiline,
xii. 4].
[On Pub.
Ad.,I vi.2]
Republic
[Politics],
VII. xiv
and xv;
Nic. Eth.,
X. vil.

On Duties,
T [xxii.80].
(I. xi 35]
Thomas,
FT.i, qu. 40,
art.1,ad 3;
Wilhelmus
Matthaei,
De Bello,
§ requis.,
qu. 7.
[Justin,
I.i 3.]

CHAPTER XV
NODERATION IN THE ACQUISITION OF SOVEREIGNTY

1.—To what extent moral justice permits sovereignty to be acquired

THE equity which is required, or the humanity which is praised,
in respect to individuals, is so much more required and praised in
respect to peoples or parts of peoples in the degree that wrong or
kindness toward a large number of persons becomes more notable.
As other things may be acquired in a lawful war, so there may be
acquired both the right of him who rules over a people and the
right which the people itself has in the sovereign power; only in so
far, however, as is permitted by the measure of the penalty which
arises from a crime, or of some other form of debt.

To these reasons should be added the avoidance of extreme
danger. But this reason is very often confused with the others,
although both in establishing peace and in making use of victory it
deserves particular attention for its own sake. It is possible to forgo
other things from compassion ; but, in case of public danger, a sense
of security which exceeds the proper limit is the reverse of com-
passion. Isocrates wrote to Philip: ‘The barbarians must be sub-
jugated to a point which will enable you to make your country
perfectly secure.’

Il.—It is praiseworthy to abstain from the exercise of the right to acquire
soverertgnty over the vanquished

1. Sallust says of the ancient Romans: ‘ Our ancestors, being
most scrupulous persons, used to deprive the vanquished of nothing
save the power to do harm.’ This is a view which could worthily
have been uttered by a Christian; and with it accords another
sentence of the same writer: ‘ Wise men wage war to secure peace,
and endure toil in the hope of ease.? More than once Aristotle said :
‘War was originated for the sake of peace, and business for the sake
of leisure.’ Cicero supports the same idea, and his is this exalted
maxim: ‘Let war be so undertaken that nothing else than peace
may seem to be sought after.’ Fram the same author comes this
similar saying: ‘So wars are to be undertaken for this reason, that
men may live in peace without being wronged.’

2. These views differ in no respect from those which theologians
of the true faith set forth to the effect that the end of war is the
removal of the things which disturb peace. Before the time of Ninus,
as we began to say elsewhere, following Trogus, it was the custom

779

Chap.XV] Moderation in Acquistiton of Sovereignty 79T

to protect rather than to advance! the frontiers of one’s empire;
each one’s realm was limited to his own country; kings sought not
empire for themselves but [552] glory for their peoples, and,
being content with victory, they abstained from acquiring dominion.

So far as he can, Augustine recalls us to this condition: ‘ Let
them see to it, nevertheless, that it may not concern good men to
delight in the extent of their dominion.’?* He adds also this: ‘It
is a greater good fortune to live in harmony with a good neighbour
than to subdue a bad neighbour who wages war on us.’ Furthermore,
the prophet Amos severely reproves in the Ammonites this zeal for
extending their borders by armed force.

IIl.—Either by mingling them with the conquerors—

To this ideal of old-time innocence the closest approach is in
the wise moderation of the ancient Romans. ‘ What would our
empire be to-day ’, says Seneca, ‘ had not salutary foresight mingled
the vanquished with the conquerors?’ ‘Our founder Romulus’,
says Claudius in Tacitus, ‘ displayed so much wisdom that on the
same day he had many peoples as enemies, and then as citizens’.
He adds that the cause of the downfall of the Lacedaemonians and
Athenians was nothing else than the exclusion, as foreigners, of those
whom they had conquered. Livy says that the Roman power grew
through the admission of enemies into the state. Examples are to
be found in the history of the Sabines, Albans, Latins, and other
Italian peoples ; until, at last,

Caesar in his triumph led the Gauls, and into the Senate, too.

Cerialis, in his speech to the Gauls, which is found in Tacitus,
declares: ‘ You yourselves often command our legions; you your-
selves govern these and other provinces; there is nothing shut off
from you or closed to you.’ And shortly after: ‘ Then love, then
cherish, the peace and life which we, conquerors and conquered,
enjoy by the same right.’ At length came that most admirable
step; in accordance with a constitution of the Emperor Antoninus
[Caracalla] all those within the Roman world were made citizens of
Rome, as Ulpian says. In consequence, as Modestinus declares,
Rome became the common fatherland. And of Rome Claudian
wrote :

To the peace-promoting customs of this city,...
Due it is that we are all one people.

1 The Emperor Alexander said to Artaxerxes the Persian: ‘Each one should remain within his
own borders, causing no disturbance, and no one, elated by an uncertain hope, should undertake wars,
but each should rest content with his own possessions’ [Herodian, VI. ii. 4].

2 See Cynil, Against Julzan, Book V, where he praises the Jewish kings for the reason that they were
content with their own frontiers.

City of
God, IV.
xv.

Amos, 1.
13.

On Anger,
II. xxxiv
[4].
Annals, V
(XI. xxiv}.

IT (VIII.

xii. 16].

(Suetoni-
us, Caesar,
Ixxx.]}
[Hestortes,
IV. lxxiv.]

Dig. I. v.
I7.

Dig. L.i.
33-

[On the
Consulship
of Stilacho,
ITT. 154,
159.]

Seneca,
Trojan
Women
[725 ff].

Aelian,
[Vartous
Esiory,]
IV. v.
Herodo-
tus, VII
(TIT. xv].
[Xeno-
phon,
Tramug
of Cyrus,
III. 1.

33 ff.]
[Seneca ]
On Cle-
mency, I.
xxi [3]

[Polybius,

V ix.]

Livy,
XXXII

[XXXVII.

liv, 26].
Mithrida-
tic Wars

[xvii. Ir4].

[Livy,
XXXII.
xii g.]
Annals,
XII [xix].

On the Law of War and Peace [Book III

7/2

IV.—Or by leaving the sovereign power to those who had held 1t—

1. Another form of moderation in victory is to leave to con-
quered kings or peoples the sovereign power which they had held.
So Hercules with Priam :

Vanquished by his young foe’s tears,
‘Take up’, he said, ‘ the ruler’s reins ;

Sit elevated on your father’s throne,
But with better faith the sceptre wield.’

Hercules, also, after conquering Neleus, committed the kingdom to
Neleus’s son, Nestor. Similarly the Persian kings used to leave the
royal authority to conquered kings; thus Cyrus to the Armenian
king. Thus Alexander left royal power to Porus.t Seneca * praises
this practice of ‘ taking nothing but glory from a vanquished king’.
Polybius celebrates the goodness of Antigonus, who, although he
had Sparta in his power, left the Spartans ‘their ancestral con-
stitution and their freedom’; and by this act, it is narrated in the
same passage, Antigonus obtained the highest praises throughout
Greece.

z. In the same way the Romans allowed the Cappadocians to
use whatever form of constitution they wished, and to many peoples
their freedom was left after a war. ‘ Carthage is free and has its own
laws,’ say the Rhodians to the Romans after the second Punic War.
Pompey, says Appian, ‘left some of the conquered peoples free’.?
When the Aetolians declared that there could be no sure peace
unless Philip of Macedon were driven from his kingdom, Quintius
said that they had stated their opinion without thinking of the
Roman custom of sparing the vanquished. [553] Headded: ‘ Who-
ever is mildest to the conquered has the loftiest mind.’ In Tacitus
we read: ‘ From the vanquished Zorsines nothing was taken away.’

V.—Sometimes by the imposition of garrisons—

Sometimes, with the concession of sovereign power, provision
is made for the security of the victors. Thus Quintius ordered 4
that Corinth should be restored to the Achaeans, yet upon the
condition that there should be a garrison in Acrocorinthus; also

2 And so Pepin to Aistolf the Lombard.

2 The whole passage deserves examination. It contains also this notable saying: ‘This is
to triumph even in accordance with one’s victory, and to bear witness that one has found nothing
among the vanquished which was worthy of the victor.’ Pompey left to Tigranes a part of his realm;
Eutropius, VI [VI. xii].

§ For a knowledge of their condition see Polybius, Selections on Embassies, vi [xix] ; Suetonius,
in his life of Caesar, where he discusses Gaul [Divus Julius, xxv]. Guilleman has also something worth
reading in his history of Switzerland [I. viii].

* Nevertheless this was afterwards remitted; Polybius, Selections on Embassies, xi; Plutarch,
Flaminius (Flamininus, x=p. 374 C]. |

Chap.XV] Moderation in Acquisition of Sovereignty 773

that Chalcis and Demetrias should be retained, until the anxiety
with regard to Antiochus should be over.

VI.—Or even by tributes and similar burdens

Often the levying of tributes also has for an object not so much
the restitution of the expenses that have been incurred as the security,
in the future, of both victor and vanquished. Cicero says of the
Greeks: ‘ At the same time let Asia reflect on this, that if it were
not held by this Empire there is no disaster of foreign war or domestic
strife that would fail to assail it; and since, moreover, this Empire
can in no way be maintained without taxes, let Asia with a part of
its produce contentedly purchase for itself eternal peace and rest.’

In Tacitus Petilius Cerealis speaks to the Lingones and other
Gauls on behalf of the Romans in the following words: ‘ Although
we have been so often provoked, this is the only burden we have
laid upon you by right of victory, wherewith we might keep the
peace; for there is no quiet for the nations without armed forces,
and armed forces cannot be had without pay, and pay cannot be had
without tribute.’

To this same problem apply also the other conditions which we
mentioned when discussing unequal treaties—the surrender of arms,
of a fleet,t of elephants, not to maintain an army ready for battle
nor an armed force.

VII.—The advantage derived from such moderation 1s pointed out

1. Moreover to leave to the vanquished their sovereign powers
is not only an act of humanity, but often an act of prudence also.
Among the institutions of Numa there is praised that which aimed
to exclude any shedding of blood from the rites of Terminus, indicat-
ing that nothing is more useful in securing quiet and a sure peace
than to remain within one’s own frontier. Florus well remarks: ‘ It
is more difficult to keep provinces than to win them; they are won
by force, they are retained by justice.’

Not unlike this is the comment in Livy: ‘It is easier to gain
things one by one than to hold all together’; also, the remark of
Augustus in Plutarch: ‘A greater task... than winning a great empire
is the governing of an empire already in existence.’ ‘’he ambassadors
of King Darius said to Alexander: ‘ A foreign empire is a dangerous
thing ; it is difficult to hold what you may not be able totake. Some
things it is easier to conquer than to defend; by Hercules, how much
more readily do our hands receive than retain ! ’

1 Regarding the Persians, see Agathias, Book IV [IV. ix].

Letters to
his Brother
Quintus, I.

i[rr. § 34).

Histortes,
IV [lxxiv].

IT. xv. 7.

Plutarch,
Roman
Questions,
xv [= p.
267 Cc].

[IV. xii.]

XXXVIT
[xxxv. 6].

[A po-
thegms,

Pp. 207 D.]
[Curtius,
IV. xi. 8.]

[Aristides,
in Praise
of Rome,
P. 353 f.]
Livy,
XXVIII
(XXXVI,
xxx. 6].

[III x=
690 E.]
[Preface,
vui.]
Valerius

Maximus,
IV. i [ro]

Thucy-
dides, I
[xix] ; Iso-
crates, Pan
athenatc
Oratton
[p. 243].
Demo-
sthenes,
On the
Cherso-
NESUS $
Diodorus,
XIII and
XV.
[Stobaeus,
xiii. 27.]

Annals,
VI [xiii].

On the Law of War and Peace [Book III

774

2. This difficulty of holding an empire together 1s what Calanus
of India! and, before him, Oebares the friend of Cyrus explained
by the comparison of a dried hide, which rises up in one spot as soon
as you press another spot with your foot; and Titus Quintius in
Livy by comparison with a tortoise,” which is immune to blows
when gathered into its shell, but exposed and weak as soon as it has
thrust out a part of its body. Plato, On Laws, Book III, applies to this
situation the saying of Hesiod: ‘ The half is better than the whole.’

Appian observes that not a few peoples who wished to come
under the rule of the Romans were rejected by them; while for
other peoples kings were appointed. In the judgement of Scipio
Africanus, in his time Rome already possessed so much that it would
be greedy to seek for more; and she would be richly fortunate if she
lost nothing of what she held. The formula for making the lustral
sacrifices, in which the gods were entreated to make the resources of
Rome better and greater, he altered in such a way that he prayed
that they might preserve Rome’s resources in safety forever.®

VIII.—Examples ; with a discussion of a change in the form of govern-
ment among the vanquished

The Lacedaemonians, and, at first, the Athenians, claimed for
themselves no sovereignty over the cities they had captured. They
wished merely that these should use a form of government modelled
on their own; the Lacedaemonians, in fact, a government under
the influence of the aristocrats, the Athenians one subject to the will
of the people, as we learn from Thucydides, Isocrates, Demosthenes,
and even from Aristotle himself in the fourth book of his Politics,
[554] chapter xi, and the fifth book, chapter vii. This very thing
is indicated in a comedy by Heniochus, a writer of those days, in the
following manner :

Then drew near to them two women,
Who turned all things to dire confusion ;

The one called Aristocracy, Democracy the other,
Through whose solicitation the cities were driven to madness.

A similar course is that which, according to Tacitus, was pursued
by Artabanus at Seleucia: ‘He placed the commons under the
aristocracy *, he says, ‘in accordance with his own interest: for the

* Plutarch has this in his Alexander [Ixv=p. 701 E].

* Plutarch [Flamininus, xvii = p. 378 D] relates it thus: ‘When he wished to dissuade the Achaeans
who were seeking the island of Zacynthus, he said that they would run into danger if, like a tortoise,
they extended their heads beyond the Peloponnese.’

* [556] The consul Claudianus Julianus makes use of this story in his letter to Pupienus and
Balbinus [Capitolinus, Life of Maximus and Balbinus, xvii]. It was imitated by Augustus, who, as Dio
[LIV. ix] says, ‘was praised because he wished to acquire no new territory, but thought that that,
which was already held, was enough.’ |

‘Chap.XV] Moderation in Acquisition of Sovereignty 9775

rule of the people is close to liberty, but the despotism of the few
1s nearer to the licence of a king.’ But the question whether changes
of this sort make for the safety of the conqueror does not belong to
our investigation.

IX.—If sovereignty is to be assumed, it 1s right to leave a part of it to
the conquered

If it is not safe to refrain from assuming any dominion over the
conquered, the action may still be limited in such a way that a portion
of the sovereign power may be left to them or to their kings. Tacitus
calls it the practice of the Roman people ‘ to have kings also as instru-
ments of subjection’. To the same author it seemed that ‘ Antiochus
was the richest of the subject kings’. ‘ Kings subject to the Romans’
is the phrase in the Commentaries of Musonius; also in Strabo, near
the end of Book VI. Lucan writes :

And all the royal purple which serves the Latin sword.

Thus among the Jews the sceptre remained in the Sanhedrin,
even after the confiscation of Archelaus. Evagoras, king of Cyprus,
as we read in Diodorus, said that he was willing to be subject to the
Persian king, but as one king to another. Alexander at different times
offered to the conquered Darius this condition, that Darius should
tule over others, but should obey Alexander.?

We have elsewhere spoken of the ways of dividing the sovereign
power. To some peoples a part of their governmental power has
been left, as to former possessors a part of their lands.

X.—Or, certainly, some degree of liberty should be left to the conquered

But when all sovereignty is taken away from the conquered with
respect to their private affairs and minor public matters it is still
possible to leave to them their own laws,® customs, and officials.
Thus in the pro-consular province of Bithynia the city of Apamaea
had the privilege of governing itself as it pleased; * we are so in-

1 See the Panegyric addressed to Maximian [Eumenius, chap. x].
2 Such were also in Italy, in former times, the kings under the authority of other kings ; Servius,
On the Aenetd, X [X. 655]. Soin the Persians [24] of Aeschylus there are mentioned :

Kings, subjects of the great king.
So also among the Turks, on the authority of Leunclavius, Book XVIII.

? Philo, in the Embassy to Gaius [xuii], says: ‘ Augustus gave no less attention te preserving
the laws peculiar to each people than to those of the Romans.’

« See Pliny, Letters, xciii, and the followimg letter of Trajan in Book X [X. xcii and xciii]. Under
the Persians Sinope had a democratic form of government; Appian, Mithridaiic Wars [xi. 83, but
referring to Amisus, not Sinope]. Such was the shadow of liberty among the Greeks under Roman rule.
See Cicero, Letiers to Atticus, V1.1; Pliny, Letiers, VIII. xxiv. The Cypriots could not be summoned
out of their island ; Cicero, Letiers to Aiticus, V. xxi [V. xxi. 6].

[A gricola,
xiv.]

Histories,
II [Ixxxi].
[Stobaeus,
xvii. 67.]

[VI. iv. 2.]
[Pharsalia,
VII. 228.]

XV [ix].

[Diodorus,]
XVII [liv].

I. iil, x7
III. viii. 3.

Letters, X.
lv1, Ixxxiv,
cxi and
exili [X.
xlvii,lxxix,
cxli and
Cxiv].
rbid.,

xelil [X.
Xcli].

[Embassy
to Gaius,
XXXVI |

[Jewssh
War, V.
ix. 4; VI.
lj. I.]

Xenophon,
Training
of Cyrus,

IV [iv. ro].

{Jugur-
thine War,
cii. 6]
Agricola
{xiii].

On the Law of War and Peace [Book III

776
formed by the letters of Pliny, who says also that the Bithynians
have their own officials and their own senate. And so in Pontus the
state of the Amiseni [Amisus] enjoyed its own laws through the
kindness of Lucullus. The Goths left the Roman law to the con-
quered Romans.

XI.—Some degree of liberty should be left to the conquered, especially in

the matter of religion

1. A part of this indulgence is not to deprive the conquered of
the exercise of their inherited religion,! except by persuasion. ‘This
Agrippa, in his speech to Gaius, which Philo quotes in his report of
his embassy, proves to be as devoid of harm to the victor as it is gratify-
ing to the vanquished. In Josephus, both Josephus himself and the
Emperor Titus reproach the rebels of Jerusalem with the fact that,
through the generosity of the Romans, the rights they enjoyed in the
exercise of their worship were so complete that they could exclude
foreigners from the Temple, even upon pain of death.

2. If, however, a false religion is practised by the vanquished,
the victor will do right in taking steps to prevent the oppression of
the true faith, as Constantine did, when he crushed the faction of
Licinius, and, after him, the Frankish and other kings.

XII.—Azt any rate the conquered should be treated with clemency ; and
why

1. Last of all is this word of caution. Even under the fullest
and, as it were, despotic sovereignty, the conquered should be treated
with clemency, and in such a way that their advantage should be
combined with that of the conquerors. Cyrus bade the conquered
Assyrians be of good cheer, saying that their lot would be the same
as it would have been if they had only changed [555] their king;
that they would retain their houses, their lands, their rights over
their wives and children, which they had had up to that time ; indeed,
if any one should wrong them, he and his men would be their avengers.

In Sallust we read: ‘ The Roman people thought it better to
gain friends than slaves; and held it safer to rule over willing than
over compulsory subjects? The Britons, in the time of Tacitus,

_ + “It is better that some God should be worshipped there than none,’ as we have just said [III.
xii. 6. x, note] in the words of Severus. So the Goths, in Procopius, Gothic War, II [II. vi], say that
they have constrained no one to join their faith.

* In Thucydides, V [IV. xix], the Lacedaemonians say: ‘ And so we think that great enmities
may thus be transformed into lasting concord, not if any one, in avenging himself and making use of
@ more favourable situation, imposes upon others the necessity of swearing to unequal terms, but if,
when he could do this, he handles the matter as temperately as possible, displaying not less justice

than courage in conquering.’

777

would patiently have endured the levy and tribute and the additional
burdens of the Roman domination if they had not been subjected
to wrongs; these they bore impatiently, for they were subdued to
the point of obedience, but not yet to that of slavery.

2. ‘The ambassador from Privernum, when asked in the Roman
senate what sort of a peace the Romans were to expect from his
people, said: ‘If you should have given to them a good peace, then
you may expect it to be reliable and perpetual; if a bad one, brief.’
As the reason, there was added: ‘Do not believe that any people,
or any man, will remain longer than is necessary in a condition with
which he is dissatisfied.’

Similarly, Camillus said that that authority was the most secure
with which those who obeyed were pleased. ‘The Scythians said to
Alexander: ‘ There is no friendship between master and slave; even
in time of peace the rights of war are maintained.’ Hermocrates, in
Diodorus, declares: ‘It is not so glorious to conquer as to make
a mild use of victory.” Tacitus has a wholesome opinion regarding
the use of victory: ‘ Wars have noble endings, whenever they are
terminated by pardoning.’ In a letter of the dictator Caesar are the
words: ‘ Let this be a new method of conquering, to fortify our-
selves with mercy and generosity.’

Chap.XV] Moderation in Acquisition of Sovereignty

Livy,
VIII
(xx1. 4].

Livy,

VIII [xiii.
16].
Curtius,
VII [viu.
28].

XIII [xix].

[Annals,
XII, x1x.]

(Cicero,
Letters fo
Aitttcus,
IX. viic.]

Dig. IX.
iv. 27, § 1.
Dig. XLI.
i. 20.

On Bene-
fits, V. xii.

Digest,
XLIX., xv.
27.

Aegidius
Regius, De
Actibus
Superna-
turalibus,
disp. 31,
dub. 7,
no. 122.

[Epistola]
Canonica,
xX.

CHAPTER XVI

MODERATION IN REGARD TO THOSE THINGS WHICH BY THE LAW
OF NATIONS HAVE NOT THE RIGHT OF POSTLIMINY

I.—Moral justice requires that the things which our enemy has taken
from another in an unlawful war shall be restored

I. We have explained above to what extent things become the
property of the captors by a lawful war. From such things we must
deduct those which are recovered by right of postliminy; [557]
for these are regarded as not having been captured.

But we said that that which was taken in an unlawful war must be
restored, not only by those who took it, but also by others to whom
the thing has come in any manner whatsoever. For no one, the
authorities of the Roman law declare, can transfer to another more
right than he himself has. This Seneca briefly explains thus: ‘ No
man can give what he does not have.’ The person who first took
the thing did not have moral ownership (dominium tnternum), there-
fore the person who obtains his right from him will not have it;
hence the second or third possessor takes an ownership which, for
the sake of explanation, we call legal (externum), that is, an ownership
which has the advantage of being everywhere protected by the
authority and power of the courts. Nevertheless, if the possessor
uses this advantage against him from whom the thing was taken by
an act of injustice, he will not act rightly.

2. We may here cite as pertinent the opinion which the worthy
jurists gave with regard to a slave who had been captured by robbers
and had afterward reached the enemy ; it was true that he had been
stolen, and neither the fact that he had been in the power of the
enemy nor that he had returned by postliminy nullified the right of
the original owner. On the basis of the law of nature a similar opinion
must also be rendered with regard to him who was captured in an
unlawful war, and afterward, through an unlawful war, or from
other causes, came into the power of another; for in moral justice
there is no distinction between an unlawful war and brigandage.
Gregory of Neocaesarea? gave answer in conformity with this opinion
when he was consulted regarding the fact that certain men of Pontus
had acquired goods of their fellow citizens which had been captured
by barbarians.

+ [559] He is followed by Petrus, De Potestate Principis, chapter iii, qu. 4, and Bruningius, De
Homagits, concl. 241.

778

Chap.XVI] Moderation in case of No Postliminy 779

Il. —Examples

I. Such things, then, must be restored to those from whom
they were taken; and we often see that this has been done. Livy,
after relating that the Volscians and Aequians were defeated by
Lucius Lucretius Tricipitinus, says that the spoil was exposed in the
Campus Martius, in order that each might take home what belonged
to him within three days. The same author, having told of the rout
of the Volscians by the dictator Posthumius, adds: ‘ Part of the
booty was given back to the Latins and Hernicans upon their recogniz-
ing what was theirs; part the dictator sold at auction.’ Elsewhere
he has: ‘Two days were allowed to the owners for identifying their
property.’ Livy, again, after describing the victory of the Samnites
over the Campanians, writes: ‘ What most delighted the victors was
the recovery of seven thousand four hundred prisoners of war, and
a huge booty belonging to their allies; and the owners were sum-
moned by proclamation to identify and recover their belongings on
an appointed day.’ Afterward he recounts a similar act on the part
of the Romans:

The Samnites attempted to seize the Roman colony of Interamna, but did not
take the city. After pillaging the fields, they were thence driving off another booty
composed of both men and cattle and also the captured colonists, when they fell in with
the consul returning from Luceria, and not only lost their spoil, but, owing to being in
disorder in a long and encumbered column, they were themselves cut to pieces. The
consul by proclamation called together the owners of Interamna to identify and recover

their property, and leaving his army there, he set out for Rome because of the meeting
of the assembly.

In another passage, dealing with the spoil which Cornelius Scipio
had taken at Ilipa, a city in Lusitania, the same writer speaks thus :
‘This was all set out outside the town, and owners were given the
right to identify what was theirs. The rest was turned over to the
quaestor to be sold; what was realized therefrom was divided among
the soldiers.? After the battle fought by Tiberius Gracchus near
Beneventum, we further read in Livy: ‘ All the booty, except the
prisoners, was given to the soldiery ; there were also excepted such
cattle as their owners should identify within thirty days.’

2. Of Licius Aemilius, who conquered the Gauls, Polybius
writes: ‘He restored the booty to those from whom it had been
seized.’ Plutarch and Appian relate that Scipio did likewise, when
upon capturing Carthage he found there many temple offerings

1 Also Diodorus Siculus, in the Excerpta Petresciana [p. 345].

Valerius Maximus, I. i. 6 [V- i. 6]: ‘The humanity of the later Africanus also was notably and
widely in evidence. For when he had taken Carthage he sent letters around to the cities of Sicily,
that they might send representatives to recover the omaments of their temples which had been carried
off by the Carthaginians, and to see that these should be restored to their former places.’

Til [x. x].

fIV. xxix.
4.]

[V. xvi. 7.]

X [xx, 15].

[X. xxxvi.
16 ff]

[XXXV.

i. 12.]

XXIV
[xvi. 5].

Histortes,
II [xxxi].

Plutarch,

A pothegms
[=p. 200 B].
Appian,
Punic
Wars

(xx. 133].

[Il. xxxv.
86.]

[IV.
xxx. 73 ]

Livy,
XXXI
[xv. 5].

Livy,
X XXIII

[xiii. xz f.].

Strabo,
XIII
{XIV. i.
26].

II. x. 9.

Genesis,
xiv. 16.

780 On the Law of War and Peace [Book III

which the Carthaginians had carried thither from the cities of Sicily
and other places.

Cicero in his oration Against Verres, dealing with the administra-
tion of justice in Sicily, says: ‘The Carthaginians had at one time
taken the town of Himera, which was a particularly famous and rich
city of Sicily. [558] When the war was ended, Scipio, who thought
it worthy of the Roman people that our allies, in consequence of
our victory, should recover what was theirs, took pains that, so far
as possible, what had been taken by Carthage should be restored to
all the Sicilians.’ The same writer gives a sufficiently lengthy dis-
cussion of this act of Scipio when treating of the statues in his oration
Against Verres.

The Rhodians restored to the Athenians four of their ships
which had been taken by the Macedonians and recaptured. So
Phaneas the Aetolian thought it right that what the Aetolians had
had before the war should be returned to them; ‘Titus Quintius
did not deny that this would be just, if it were a question of cities
taken in war,! and if the Aetolians had not broken the terms of the
alliance. ‘The Romans even restored to their ancient condition
the treasures once dedicated at Ephesus, which kings had made
their own.

Ill.—W hether anything may be deducted from that which 1s restored

1. If a thing of the sort under consideration has come into
any one’s hands by way of trade, will he be able to charge the person
from whom it was originally taken the price which he has paid?

It is consistent with what we have said elsewhere that the possessor
may charge as much as the recovery of the thing despaired of would
have been worth to him who had lost it. But if such an outlay may
be recovered, why not also an evaluation of the labour and danger,
just as if by diving some one had recovered another’s property which
was lost in the sea? Pertinent to this question, it seems to me, Is
the story of Abraham, when he returned to Sodom as victor over the
five kings. ‘He brought back all the goods’, says Moses; that is,
the goods which, as he had previously related, had been captured by
the kings.

2. Again we are not to attribute to any other cause the arrange-
ment which the king of Sodom proposed to Abraham, that he should
restore the prisoners, but keep the other things for himself in return

1 Pompey restored Paphlagonia to Attalus and Pylaemenes; Eutropius, VI [VI. xi].

In the alliance of the Pope, the Emperor Charles V, and the Venetians against Soliman, it was
agreed that each party should recover what had been his; Paruta, VIII [IX=p. 650, ed. 1605]. In
consequence, when the Spaniards had taken Cephallenia, they restored it to the Venetians.

Pertinent to this question is also a passage in Anna Comnena [XI. vi], dealing with Godefroy.

Chap. XVI] Moderation in case of No Postlimny 781

for his toil and danger. Abraham, however, being a man not only
of a pious but also of a lofty mind,* wished to take nothing at all for
himself ; but from the things that were recovered (for this narrative,
as we have said, relates to them) as though by his own right he gave
a tenth to God, deducted the necessary expenses, and desired that
a share be assigned to his allies.

IV.—£ven subject peoples or divisions of peoples are to be restored to
those to whom they belonged, tf they have been unjustly taken over
by the enemy

Furthermore, just as goods are to be restored to their owner, so
peoples also,” and divisions of peoples, are to be restored to those who
had the right of dominion over them, or even to themselves, if they
had been independent prior to suffering the unjust violence. Thus
we learn from Livy that, in the time of Camillus, Sutrium was
recovered and restored to the allies of the Romans. The Lacedae-
monians restored the Aeginetans and the Melians to their cities.
The Greek states, which had been invaded by the Macedonians,
were restored to freedom by Flaminius.

Flaminius also, in a conference with the ambassadors of Antiochus,
declared it was right to set free the cities of Asia, which bore Greek
names and which had been captured in war by Seleucus the great-
grandfather of Antiochus, which had been lost and recovered by the
same Antiochus; ‘for’, he said, ‘the colonies were not sent to
Aeolia and Ionia to be subject to a king, but to increase the race,
and to spread a very ancient people throughout the world.’

V.—At what time the obligation to make restoration ceases

Usually the question is raised also regarding the period of time
in which the moral obligation to restore a thing may cease. But in

1 This observation is well made by Iacchiades, On Daniel, v.17. Sulpicius [Sulpicius Severus,
Sacred History, I. v] says of Abraham: ‘ He restored the rest to those from whom it had been seized.’
Ambrose, on the Patriarchs, I [On Abraham, I. xii], writes: ‘And so, since he sought not for himself
a reward from men, he received it from God.’

Very similar to this was the conduct of Pittacus and Timoleon. ‘ Pittacus of Mitylene, when with
the consent of all he was offered the half of the territory recovered, turned his mind away from the
gift, because he deemed it unworthy to dim the glory of his valour by the greatness of the spoil’ ;
Valerius Maximus, VI. v.i. Of Timoleon Plutarch [Comparison of Timoleon and Aemilius Paulus,
ii= p.277 B] says: ‘Under such circumstances it is not base to receive, but it is better not to receive ;
such self-restraint implies a certain superabundance of virtue, which shows that it can do without
those things which are permitted.’ ;

Cf. what was previously said, in IT. xiv. 6 and IIT. iv. x.

2 The exiles from Saguntum after six years were restored by the Romans. Antony ordered that
all those who had been made slaves in the war with Cassius should be liberated, and that property
should be restored to its owners. Likewise Calatrava was restored by the king of Castile and others
to the soldiers from whom it had been taken by the Moors; Mariana, XI [XI. xxv]. Cf. what is above

in III. x. 6.

Verses 20~
4 [Genests,
XIV. 20-4].

Livy,

VI fii.
ro}.

Livy,
XXXII
[xxxii].
Xenophon,
A ffatrs of
Greece, ITT
(II. ii. 9].

XXXIV
{ivobi. 13].

II. 1v.

Cicero, On
Dutves, II
(xxiii. 82].

782 On the Law of Wav and Peace [Book III

the case of citizens under the same government the question is
answered according to their laws, provided that these admit a moral
right and do not consist in a legal right only; this may be gathered
from the language and scope of the laws by a careful examination.
In the case of those, however, which are foreign in relation to one
another, the question is to be answered in accordance with conjecture
as to abandonment, which we have discussed elsewhere, so far as our

purpose requires.

VI—W bai is to be done in a doubtful case

If, however, the lawfulness of the war is seriously open to ques-
tion, the best course will be to follow the counsel of Aratus of Sicyon,?
who on the one side persuaded the new possessors to accept payment
and to give up what they held, and on the other persuaded the former
owners to consider it more advantageous to have paid to them the
value of their property than to recover it.

1 This was done by King Ferdinand, as Mariana records, XXIX. xiv.

CHAPTER XVII
ON THOSE WHO ARE OF NEITHER SIDE IN WAR

I.—From those who are at peace nothing should be taken except in case
of extreme necessity, and subject to the restoration of tts value

Ir might seem superfluous for us to speak of those who are not
involved in war, since it is quite clear that no right of war is valid
against them. But since in time of war on the pretext of necessity
many things [560] are done at the expense of those who are at
peace, especially if they are neighbours, we must briefly repeat here
what we have said elsewhere, that the necessity which gives any right
over another’s property must be extreme; furthermore, that it is
requisite that the owner himself should not be confronted with an
equal necessity ; that even in case there is no doubt as to the necessity
more is not to be taken than the necessity demands; that is, if
retention is sufficient, then the use of a thing is not to be assumed ;
if the use is sufficient, then not the consumption ; if consumption is
necessary, the value of the thing must then be repaid.

II.— Examples of self-restraint and precepts

1. When Moses and his people were pressed by the extreme
necessity of passing through the land of the Edomites, he said, first,
that he would pass along the royal road, and would not turn off into
the ploughed fields or vineyards, and if he should have need of their
water he would pay its price. Famous Greek and Roman generals
assumed the same obligation. In Xenophon, the Greeks who were
with Clearchus promised the Persians that they would march through
without causing them any damage; and if they would have supplies
for the Greeks to purchase these latter would not seize things to eat
or drink from any one.

2. Dercyllides, as the same Xenophon relates, ‘led his forces
through peaceful territory in such a way that his allies suffered no
loss.? Livy says of King Perseus: ‘ He returned to his kingdom
through Phthertis, Achaia, and Thessaly, without causing damage or
injury to the lands through which he marched.’ Of the army of Agis
of Sparta, Plutarch says: ‘ They were a marvel to the cities as they
traversed the Peloponnesus quietly, without injury and almost without
noise.’ 2

1 Plutarch offers the same testimony to Titus Quintius Flaminius [Flamininus, v=p. 371 DJ].
1569-27 3c 783

II. ii. ro.

[Numbers,
xx. 17 ff]

[An abasis,
II. iii.
23 ff].

[Greek
History,
III. i. ro ]
(XLI.
xxi. 6.]

[Agis, xiv.
=p.
801 D.]

JI [xxv].

For the
Manilian
Law [xiii.
39]
Stratege-

[Alexander
Severus,

1]

[Latinus
Pacatus,
Panegyric,
xxxii.}

[On the
Consulship
of Stilicho,
I. 163 £.]

On the Law of War and Peace [Book III

784

Velleius says of Sulla: ‘ You would think that he had come into
Italy not to avenge in war, but to establish peace, with so great quiet
did he lead his army through Calabria and Apulia into Campania,
showing exceptional care for crops, fields, cities, and men.’ Of
Pompey the Great Cicero* affirms that ‘ his legions came to Asia in
such a way that not only the hands of so vast an army, but even
its footprints could be said to have done no harm to any one at
peace’. Of Domitian Frontinus thus speaks: ‘When he was estab-
lishing forts in the lands of the Ubii, he ordered that the value should
be paid for the crops of the places which he incorporated in the
fortifications ; and by the report of this act of justice he bound to
himself the allegiance of all.’

Of the Parthian expedition of Alexander Severus, Lampridius
writes: ‘He conducted it with so great discipline, demanding so
high respect for himself, that not soldiers, but senators, might be
said to be passing by ; wherever the soldiers were on the march, the
tribunes were under arms, the centurions respectful, the soldiers
gentle. Himself, however, the provincials received as a god, because
of these great and numerous benefits.’ Of the Goths,’ Huns, and
Alans, who were in the service of Theodosius, the Panegyrist says :
‘There was no rioting, no disturbance, no plundering, as is usual
with barbarians ; indeed, whenever there was a shortage of supplies
they bore the want with patience, and by their abstinence they
augmented the grain which they diminished by their number.’

Claudian attributes the same conduct to Stilicho :

So great the peace, so great the fear, the guardian of right,

’Neath your command, that no plundering of vineyard nor of grain field
Cheated the farmer of his harvest.

Similar conduct is attributed by Suidas to Belisarius.*

1 Also Plutarch [Pompey, x= p. 624 A]: ‘When he heard that his soldiers were acting too
licentiously on the march he put a seal on their swords ; and, if any one broke this, he was punished.’

2 With regard to the moderation of this people we find much in Cassiodorus, as in [Vartae,] V. x,
and II, xiii [V. x, xi and xiii]. Besides, in letter xxv of the same book [V. xxvi] is this: ‘Lay waste
neither the fields nor the meadows of the landholders, but hasten with all self-restraint, that your
coming may cause us delight. Because for this we willingly undergo the expenses imposed by the
army, that civilization may be preserved intact by those under arms.’ Also in IX. xxv: ‘No losses
to the owners were occasioned by his arms.’

% This virtue in Belisarius is often acclaimed by Procopius, the companion and witness of his
actions. See his noble speech, which is pertinent here, delivered to his soldiers in Sicily when he was
on the way to Africa, and the description of his march through Africa, in the Vandalic War, I [I. xii
and xvii]. I shall cite in full the following passage from the Gothie War, III [III. i]:

He acted with such care and forethought toward the peasants that none of them suffered violence
while Belisarius led the army. On the contrary, all became nch wherever he arrived with a large
body of troops; [563] for they sold their goods to the soldiers at their own price. And when the
crops were mpe he took anxious care that they should not be spoiled by the cavalry ; in addition,
no one at all was allowed to touch fruit hanging on the trees.

See the similar praise of the Germans in their expedition to the Holy Sepulchre, in Nicetas,
On Manuel Comnenus [I. iv]. Gregoras also lauds the same conduct in the Venetians, LX [TX. v]:
«There was no one who was not struck with admiration for the discipline of the Venetians, and their

Chap. XVII] On those who are of netther side in War 785

3. This condition was brought about by scrupulous painstaking
in providing for necessities by the regular payment of troops, and
by vigour in enforcing discipline, a rule of which you hear in Am-
mianus”?: ‘’The lands of those at peace must not be trampled upon.’
In Vopiscus, Life of Aurelian, we read: ‘ Let no one seize another’s
fowl; let no one touch a sheep ; let no one carry off a bunch of grapes,
let no one destroy grain, let no one requisition oil, salt, or wood.’
Likewise in Cassiodorus: ‘ Let them live with the provincials under
the civil law; [561] let not the spirit of him, who feels that he is
armed, become insolent, because our army as a shield should guarantee
quiet to the Romans.’ These rules may be supplemented by the
saying of Xenophon, in Book VI of the Anabasis: ‘A friendly
city should not be compelled to give anything against its will.’

4. In the light of these sayings you would aptly interpret that
admonition of a great Prophet, nay, a greater than a Prophet:
‘Extort from no man by violence, neither accuse any one wrong-
fully ;? and be content with your wages.’* Similar to this is the
order of Aurelian in the passage of Vopiscus which has been cited:
‘Let each one be satisfied with his allowance, let him live by the
spoil of the enemy, not by the tears of the provincials.’

No one should think that, while it is fine to say these things,
they cannot be carried into effect; for neither would the Divine
Man urge them, nor the wise authors of laws prescribe them, if they
believed that such rules could not be enforced. In fact, we must
grant that that can be done which we see done.’ Therefore we have
adduced examples, to which may be added the notable example
which Frontinus records of Scaurus,® that an apple-tree, which the

magnanimity combined with justice. For no one of their army wished to go out and take anything
without paying the price.’

1 Pliny, Natural History, XXVI. iv: ‘Else why have the Roman generals always devoted their
first attention to commerce when waging war ?’

Cassiodorus, [Variae,] IV. xiii: ‘Let him have something to buy, that he may not be compelled
to think of what he can carry off.’ He has something similar in V. x and xiii.

2 See also Book XXTI [XXI. v. 8].

2 You might translate ‘ from pillage’, in which sense this word is taken in the Greek version in
Job, xxxv. 9; Psalms, cxviii. 21 [cxix. 122]; Proverbs, xiv. 33 [xiv- 31], xxii. 16, cxviti. 3 [xxvin. 3];
Ecclesiastes, iv. 1; and also Leviticus, xix. 11. The Vulgate translator of Luke, xix. 8, renders the
same Greek word by defraudare (‘ defraud ’*).

«On this passage of Luke, Ambrose [On Luke, II. lxxvii] says: ‘For this purpose pay was
instituted for military service, that the soldier, in seeking his subsistence, might not act as a robber.’
This is copied by Augustine in his sermon xix, On the Words of Our Lord according to Maithew
[Sermones, lxxxii. 1, really not the work of Augustine ; see Appendices, V. lxxxvii. 1, Migne].

On this subject there are notable edicts in Gregory of Tours, IT. xxxvii; in the Capitularzes of Charles
and his successors, V, tit. cloxxix; in the Councils of France, 11; in the Capitularies of Louis the Pious,
II. xiv, and in vol, III; in the Council of St. Macra.

‘Add the Bavarian Law, II. v. Gunther [Ligurinus, VII. 299 ff.] thus reports a law of Frederic 1:

If one has bumed the farms or homes of folk
At peace, with shaven head he will be marked,
And after many blows from camp will he be chased.

’ And so Guicciardini states, in Book XVI.
¢ On the severity of Niger, because of the theft of a cock, see Spartianus [Pescennius Niger, x].

3G2

XVIII
fii. 7].

Aurelian
[viij.

(Variae,
VII. iv.)

EVI. i1. 6.]

Luke iii.
14.

[Aurelian,
vii.]

IV.i
[Stratege-
mata, IV.
iii, 13].

XXVIII
[xxiv. 9].

AL (xx,
1oO-1T].

Annals,
XII [xlix].
Histories,
III f11).

(I. xxi.
56.}

Aegidius
Regius, De
A ctibus
Superna-
turalibus,
disp. 3I,
dub. 7,

No. 95.

ITT. i.

I [xxxv].

786 [Book III

survey had included in the lines of the camp, was left on the following
day, when the army had marched off, with its fruit untouched.
Livy, after relating that the Roman soldiers in the camp at
the Sucro had behaved themselves with too great licence, and that
some of them had gone at night to pillage in the neutral land about
them, adds that everything was done through the greed and licence
of the soldiers and nothing according to regulation and discipline.
There is another notable passage of the same writer, when he describes

the march of Philip through the land of the Denseletae:

They were allies, but from lack of supplies the Macedonians plundered their territory
just like that of the enemy; for, plundering on all sides, they first devastated homesteads,
and then even some villages, to the great shame of the king, when he heard the voices
of his allies calling in vain upon the gods, who are the guardians of treaties, and upon
his own name,

On the Law of War and Peace

In Tacitus, the reputation of Pelignus is one of shame, since he
plundered allies rather than enemies. ‘T’he same author observes that
the soldiers of Vitellius were in idleness throughout the Italian
municipalities, and a source of dread to their hosts alone. Also, in
Cicero’s passage on the city praetorship, in his Against Verres, is
this accusation: ‘ You gave your attention to the plundering and
harassing of the peaceful towns of the allies, and of our friends.’

6. At this point I cannot pass without mention the opinion of
the theologians, which I think is very true, that a king, who has not
paid what he owes to his soldiers, is responsible for the losses which
in consequence have ensued, not only to the soldiers, but also to his
own subjects and their neighbours, whom the soldiers under pressure
of want have treated badly.

IIl.—W hat the duty of those at peace 1s towards belligerents

I. On the other hand it is the duty of those who keep out of
a war to do nothing whereby he who supports a wicked cause may
be rendered more powerful, or whereby the movements of him who
wages a just war may be hampered, according to what we have said
above. In a doubtful matter, however, those at peace should show
themselves impartial to either side in permitting transit, in furnish-
ing supplies to troops,t and in not assisting those under siege. In
Thucydides the Corcyreans say that it is the duty of the Athenians,
if they wish to be impartial, either to prevent the Corinthians from
hiring troops on Attic soil, or to allow them the same privilege.
Philip, king of Macedon, was charged by the Romans with having
violated his treaty in two ways, both in having done injury to the

1 See the noble example in Paruta, Book VIII.

Chap. XVII] 787
allies of the Roman people, and in having aided the enemy with
soldiers and money.

The same points are stressed by Titus Quintius in a conference

with Nabis :

‘Still’, you say, ‘ I have not, strictly speaking, done violence to you and your friend-
ship and alliance.’ How many times do you wish me to prove that you have done this?
I do not wish to do so at greater length, and I shall sum up the gist of the matter. By
what things, then, is friendship violated? In very truth by these [562] two things,
by treating my allies as enemies, and by allying yourself with the enemy.

On those who are of neither side in War

2. In Agathias we read that an enemy is one who does what
the enemy wishes; and in Procopius, that he is counted in the ranks
of the enemy* who supplies a hostile army with what is directly
useful for war. Demosthenes long ago said: ‘He who creates and
devises the means whereby I may be captured is my enemy, even if
he does not strike me nor hurl a javelin at me.’ Marcus Acilius told
the Epirotes, who had not supported Antiochus with troops, but
were accused of having sent him money, that he did not know whether
he should class them as enemies or those at peace. The praetor
Lucius Aemilius censured the people of Teos for having aided the
fleet of the enemy with supplies, and for having promised them wine ;
adding, that he would treat them as enemies unless they gave the
same to the Roman fleet. And there is recorded a saying of Caesar
Augustus: ‘A state, which receives an enemy, loses the right of
peace.”

3. It will even be of advantage to make a treaty with either
party that is waging war, in order that it may be permissible to
abstain from war while retaining the goodwill of either, and to
render to each the common duties of humanity. We read in Livy:
‘Let them desire peace with either side, as befits impartial friends ;
let them not intervene in the war.’ Archidamus, king of Sparta,
when he saw that the Eleans were leaning to the side of the Arcadians,
wrote a letter containing only this: ‘It is a good thing to remain
quiet.’

* On the other hand he nghtly says that we must call ally and friend not only him who takes
his post beside us in battle, but also him who openly supplies all the things necessary for waging war ;
this is in the letter of Amalasuntha to Justinian [Procopius, Gothic War, I. iil].

[Livy,
XXXIV.
XXX11. I4.]

IIT [Iv.
iv].
Gothic
War, T
[uti].
Philippics,
III [ax. 17
=p. 115].
[Livy,]
XXXVI
[XXxV. 9].

XXXVIL
[xxvill. 2].

Plutarch,
Brutus
[v=p.
IorIry].

XXXV
[xlviii. 9].

[Plutarch,
Apoth.,
Pp. 219 A.]

[I. xi. 36.]

Plutarch,
Roman

Marcellus
(Comp. of
Pelopidas
and Mar-
cellus, i=
P. 327 Dj.
On Anger,
ix [I.

x. 2].

III. vi.

Digest,
XLIX.
Xvi. 3.

§ 15.
Livy, VII
(VIII. vii.
22}.

[564] CHAPTER XVIII

ON ACTS DONE BY INDIVIDUALS IN A PUBLIC WAR

[.—The question whether 1t 1s permissible for individuals to do harm
to a public enemy is discussed with special regard to the law of
nature, the law of nations, and municipal law

1. Wuat I have heretofore said applies chiefly to those who
either possess the supreme command in war or are carrying out
public orders. We must also consider what is permissible for an
individual in war, not only according to natural and divine law, but
also according to the law of nations.

In his first book On Dutzes, Cicero says that the son of the Censor
Cato had served in the army of the general Pompilius, but that the
legion in which he was serving was disbanded; nevertheless, since
the youth from love of warfare remained in the army, Cato wrote
to Pompilius that he ought to oblige the young man to take the
military oath a second time, if he wished him to remain in the army.
Cato gave as a reason that after the first oath had been cancelled
his son could not lawfully fight with the enemy. Cicero adds the very
words of Cato from a letter to his son, in which he warns the youth
to avoid engaging in battle, for the reason that it is not right for one
who is not a soldier to fight with an enemy.

Similarly we read that Chrysantas, a soldier of Cyrus, received
praise because, in an attack on the enemy, he drew back his sword
as soon as he heard the signal for retreat.1 Also Seneca said: ‘He
who disregards the signal for retreat is called a worthless soldier.’

2. But those are deceived who think that the principle thus
stated has its origin in the law of nations. This becomes clear if you
consider that, just as any one is permitted to seize the property of
an enemy, so also, as we have shown above, it is permissible to kill
an enemy. For according to the law of nations enemies are held to
be entitled to no consideration. The advice of Cato, therefore,
comes from Roman military discipline, which, according to Modes-
tinus, contained the provision that one who had not obeyed orders
should be punished with death, even if what he had done turned
out successfully. But one who had fought an enemy outside the ranks
and without the command of the general was understood to have
disobeyed orders, as the instructions of Manlius teach us. The
reason is that, if such disobedience were rashly permitted, either the
outposts might be abandoned or, with increase of lawlessness, the

+ See Xenophon, Training of Cyrus [IV. i. 2].
788

Chap. XVIII] On Acts done by Individuals in a Public War 789

army or a part of it might even become involved in ill-considered
battles,* a condition which ought absolutely to be avoided.

Consequently Sallust, describing the Roman discipline, says:
‘In war punishment is more often inflicted on those who have fought
against the enemy contrary to orders than against those who have
withdrawn from battle too slowly when recalled.’ A certain Spartan,
who was on the point of slaying an enemy, heard the signal for
retreat and held back his stroke, giving as the reason, ‘ It is in fact
better to obey the commander than to kill an enemy.’ The reason
why a discharged soldier cannot kill an enemy is thus stated by
Plutarch: he is not bound by the military laws, by which those who
are going to fight ought to be bound. According to Arrian, Epictetus,
referring to the deed of Chrysantas just mentioned, said: ‘It seemed
to him so much better to obey the will of his commander than his
own.’

3. If, however, we regard the law of nature and moral justice,
it is apparent [565] that in a lawful war any person is allowed to
do whatever he trusts will be of advantage to the innocent party,
provided he keeps within the proper limits of warfare; nevertheless
he is not allowed to make captured property his own, because nothing
is due to him, unless indeed he is enforcing a legal penalty according
to the common law of mankind. From our previous discussion we
can understand how this last right has been restricted by the law of
the Gospel.

4. Now, a command may be either general or particular.
A general command is exemplified in the words which the consul
was accustomed to utter in the presence of the Romans in case of
an uprising: ‘ Let those who wish the safety of the state follow me.’
Individual subjects, moreover, in addition to the right of self-pro-
tection, are sometimes given the right to kill in case this is to the
advantage of the state.

I]._—W hat in respect to the enemy 1s permitted by moral qustice to those
who are serving in the army, or fitting out ships, at their own expense

1. A special command may be given not only to those who
receive pay, but also to those who serve at their own charges; and
——a more important consideration—to those who support a part of
the war with their own expenditures, such as those who fit out and
maintain ships at private cost. Such contributors, in lieu of pay,
are generally allowed to hold captured property as their own, as we
have said elsewhere. How far this practice may be extended without

1 Thus Avidius Cassius gave, as a reason for the sentence he imposed, ‘that there might have
been an ambuscade’ ; so Vulcacius [Avidius Cassius, iv].

(Catiline,
1X. 4.]

(Plutarch,
Apoth.,
Ixxi= Pp.
236 E |

[Roman
Questions,
xXXXIZ=D),
273 E.]

II. vi [r5].

II. xvii
(II. xx.
To].

Servius,
On the
Aeneid,
VITI
{line x].
Code, ITT,
Xxvii. I
and 2.

III. vi
[24].

790 On the Law of War and Peace [Book ITI

the violation of moral justice and love, is a proper question for dis-
cussion.

2. Justice has regard either for the enemy or for the state
itself with which an agreement is made. We have said that posses-
sion of all things, which can support war, may be taken from the
enemy for the sake of security, but under the condition of making
restitution. Indeed absolute ownership may be acquired in com-
pensation for that which is due to a state waging a lawful war, either
from the beginning of the war or from a later act, whether the pro-
perty belongs to the hostile state or to individuals, even though the
individuals themselves be guiltless; the property of the guilty may
be taken away and acquired by the captors as a means of imposing
a penalty. Enemy goods will therefore become the property of those
who are conducting at their own expense a part of the war, so far as
this affects the enemy, provided that the limit which I have men-
tioned be not exceeded ; whether the limit has been reached ought
to be decided by a fair-minded judgement.

Ill._—W hat in respect to their own state 1s lawful for those who are
serving in the army, or fitting out ships, at their own expense

As regards their own state the arrangement with such contributors
will be just, according to the standard of moral justice, if there
shall be equality in the contract, that is, if the expenses and dangers
shall be as great as the chance of booty. For if the expectation of
booty shall be much greater, whatever shall be acquired in excess
ought to be restored to the state. The case is like that of a man
who has bought at a very low price a cast of the net, which is, indeed,
of uncertain value, but is easy to make and warrants the expectation
of a great catch of fish.

IV.—W hat the rule of Christian love demands of such persons

Even when justice, strictly speaking, is not violated, one may sin
against the duty which consists of loving others, especially the duty
prescribed by the Christian law. A case of this character might arise
if it should be apparent that plundering by such persons would not
be especially harmful to the enemy as a whole, nor to the king, nor
to those who are in fact guilty, but would harm innocent persons,
and in fact to such an extent that it would plunge them into the
greatest misfortunes, into which it would be the negation of mercy

Sylvester, tO Cast those who are privately indebted to us. Now if to this is
word added the consideration that such plundering will have no notable
no. a effect in ending the war, or in weakening the public strength of the
verse 5. enemy, then gain acquired solely in consequence of the unhappy

Chap. XVIII] On Acts done by Individuals in a Public War 791

condition of the times? ought to be considered unworthy of a just
man, and especially of a Christian.

V.—How a private war may be mingled with a public war

Sometimes it happens that a private war arises in connexion with
a public war; as, for example, if a person has fallen among enemies
and his life or property is endangered. In such cases the rules should
be observed which we have elsewhere stated in regard to the limit
permissible in self-defence.

Public authority, again, is wont to be joined with private advan-
tage; a case would be if a person who had suffered a great loss at
the hands of the enemy [566] should obtain the right of collecting
damage from the enemy’s property. The right in that case must
be defined in accordance with the principles stated above in regard
to the taking of security.

VI.—The obligation resting upon a person, who has done barm to the
enemy without orders, 1s set forth with a distinction

But if a soldier or any other person, even in a just war, has burned
houses belonging to the enemy, has devastated fields, and caused
losses of this character without orders, when, furthermore, there was
no necessity or just cause, the theologians rightly hold that he is
bound to make good the losses. J am, however, justified in adding,
what was omitted by them, ‘when there was no just cause’; for if
there is such a cause he will perhaps be answerable to his own state,
whose laws he has transgressed, but not likewise to the enemy, to
whom he has done no legal wrong.

This is not unlike the reply made by a certain Carthaginian to
the Romans who were demanding the surrender of Hannibal :

I consider that the question at issue is not whether Saguntum was attacked in accord-
ance with a decision of an individual or of the state, but whether it was attacked right-
fully or wrongfully. For the question whether our citizen acted In accordance with
our decision, or his own, is our business, and to us belongs the punishment of a citizen
of ours. The subject of discussion between you and us is merely, whether under our
treaty the attack was permissible.

1 Plutarch accuses Crassus also on this account [Crassus, ii=p. 543 B]: ‘ Most of this property
he amassed through fire and war, taking advantage of the common misfortunes as his greatest means

of gain.’

II. i [3].

IIT. ii [2].

Sylvester,
word
bellum,
pt. x.

[Livy,
XXI.
Xvili. 6.}

XXV
[XIV.
169 £f.].

[V. xxii.
63.]

[Declama-
tions,
cclxvii.]
[eeexliii.]

[On
Duties,]
IT, xxix
{I. xxix.
I40].
Letters, ccv
{clxxxix.
6], To
Boniface.

6.]

CHAPTER XIX
ON GOOD FAITH BETWEEN ENEMIES

I.—Good faith 1s to be kept with enemies of every description

1. We have said that, in respect to character and extent, what
is permissible in war is considered either absolutely or with refer-
ence to a previous promise. The first part of the subject has now
been finished ; there remains the latter part, which concerns the good
faith of enemies with one another.

Silius Italicus, a Roman consul, has well said :

[567] And best is he

In military service, who from first to last
Maintains good faith in wars.1

Xenophon in his oration On Agesilaus says: ‘So great and excellent
a thing it is in all men, to be sure, but especially in the case of generals,
to be and to be considered respecters of good faith.’

In his fourth speech On Leuctra Aristides says: ‘ I’hose who are
devoted to justice are especially revealed in the maintenance of peace
and other public agreements.’ As Cicero, in fact, rightly declared in
his On Ends, there is no one who does not approve and praise the
quality of mind by which not only is no advantage sought but good
faith is kept even to one’s disadvantage.

2. Public faith, as Quintilian the father remarks, makes truces
between armed foes and preserves the rights of states that have
surrendered. In another passage the same author says: ‘ Good
faith is the strongest bond in human affairs; good faith is held in
sacred esteem between enemies.’ Similarly Ambrose also: ‘ There-
fore it is clear that even in war good faith and justice ought to be
preserved.’ Again, Augustine? declares: ‘ When faith is pledged,
it must be kept even with an enemy against whom war is being
waged.’

Those who are enemies do not in fact cease to be men. But
all men who have attained to the use of reason are capable of posses-
sing a right which has its origin in a promise. In Livy Camillus
says that he had such an alliance with the Faliscans as nature had
produced.

1 According to Appian, Civil Wars, IV [IV. ix. 68], Archelaus the philosopher said: ‘ You
have sworn to the treaties and have given the pledge of your right hands, which even enemies hold
inviolate.’ Diodorus Siculus, in the Excerpta Petresciana [p. 342== XXXII. vii], praises Africanus the
Younger on account of this virtue.

2 He treats extensively of the same subject in Letters, ccxxv [cxxvi].

792

Chap. XIX] On Good Faith between Enemies

793

3. From the association of reason and speech arises that bind-
ing force of a promise with which we are dealing. Because we have
previously said that, in the opinion of many, lying to an enemy is
either permissible, or free from wrong, it must not be thought that
this view can be extended with like reason to pledged faith. For
the obligation to speak the truth comes from a cause which was
valid before the war, and may, perhaps, in some degree, be removed
by the war; but a promise in itself confers a new right.

Aristotle recognized this distinction when, treating of veracity,
he said: ‘We are not speaking of the person who is truthful in
agreements and in those matters which have to do with justice and
injustice. For these belong to a different virtue.’

4. Of Philip of Macedon Pausanias says: ‘No one would
rightly call him a good general who habitually disregarded oaths,
broke treaties at every opportunity, and dishonoured good faith
more than all other men.’ Valerius Maximus has this characteriza-
tion of Hannibal: ‘He declared war openly on the Roman people
and Italy, but he waged war more bitterly against good faith herself,
having delight in lies and deception as if in noble virtues. For this
reason it has come to pass that, though otherwise he might have left
the memory of a noble name, it is doubtful whether he ought to be
considered an extraordinarily great or extraordinarily bad man.’
According to Homer the ‘Trojans, troubled in conscience, thus
accuse themselves :

Now breaking sacred pledges
And sworn good faith we fight; for us a crime is war.

IIl.—Refutation of the view that faith ought not to be kept with prrates
and tyrants

1. Already in our previous discussion we have said that we ought
not to accept the principles laid down by Cicero: ‘ We should have
no relations with tyrants, but rather the most absolute separation ’ ;
again, ‘A pirate [568] is not classed in the number of regular
enemies ; with him there is no bond of good faith, and he does not
respect a common oath.’ Seneca, too, said of a tyrant: “When
the relationship of human rights was broken off, every bond, that
bound him to me, was severed.’

From such a source arose the error of Michael of Ephesus, who in
his commentary on the Nicomachean Ethics said that the violation of
the wife of a tyrant did not constitute adultery. By a like error

2 Seneca in the Excerpts [Controversies], IV. vii, says: ‘ Not thinking it adultery to debauch the
wife of a tyrant, as it is not murder to kill a tyrant.’ Julius Clarus in the section Hom#cidium, no. 56,
believes that adultery could with impunity be committed with a banished woman.

(III. i. x8]

machean
Ethics,
IV. xix
[IV. xiii}.

[VITT.

Vii. 5.

{IX. vi.
ext. 2.]

Iliad, X
(VII. 351
ff.].

ITI. xiii. 15.

[On
Duties,
ITI. vi. 32;
Xxix. I07.]

On Bene-

fits, VII

[xix. 8].

[V. x.]

(Plutarch,

Pompey,
XXvVli=p.
633.]

(III. xix.
2.]

[III. xxv
=P. 322.]

[XXXVI.
i]
LVI [xiii].

[Above,
III. xx.
2, I.]

{iI. xx. 8.]}

On Duties,
III [vi.
32].

On the Law of War and Peace [Book II

794

certain teachers of the Jews? have made a similar statement about
foreigners, whose marriages they considered void.

2. Nevertheless Gnaeus Pompey finished the war with the Pirates
in great part by means of treaties,” promising to them their lives, and
places in which they might live without plundering. Sometimes also
tyrants have restored liberty after having agreed toimmunity. In the
third book of the Civil War Caesar writes that the Roman commanders
made an agreement with the brigands and deserters who were in the
Pyrenees mountains. Who will say that, if an agreement of any sort
had been made, no obligation would have arisen from it?

Such agreements do not in fact share in that special community
of legal obligations which the law of nations has introduced between
enemies engaged in a formal and complete war. But because their
authors are human beings they have a common share in the law of
nature, as Porphyry has rightly maintained in his work On Abstarning
from Animal Food. From this follows the consequence that the
agreements must be kept. Thus Diodorus relates that Lucullus kept
faith with Apollonius, a leader of runaway slaves, and Dio writes that
Augustus, in order not to violate good faith, paid to the brigand Coro-
cotta, who had delivered himself up, the reward placed on his head.

II].—Answer to the argument drawn from the fact that such persons
deserve punishment, and the proof that this 1s not taken into account
when they have been treated with

1. But let us see if a more plausible view can be presented
than that expressed by Cicero.

The first consideration is that, as we have elsewhere explained,
if we take into account the law of nature, atrocious criminals, who do
not belong to any state, can be punished by any person whatsoever.
But those who can be punished with the loss of life can also be deprived
of their property and rights, as the same Cicero rightly said: ‘ It is
not contrary to nature to despoil, if you can, the person whom it is
lawful to kill.’ Among the rights of such a person is the right arising
from a promise. This right, therefore, can also be taken from him
as a penalty.

I answer that the reasoning would hold good if one had not
treated with the person in question as a malefactor; but if at any
time we have treated with such a person as such * we ought to consider

1 Rabbi Levi Ben Gerson and Rabbi Salomon, On Leviticus, xx. 10.

* So there was disapproval of the faithlessness of Didius towards the Celtiberians, who lived by
plunder [Appian, Spanish Wars, xvi. 100].

5 Terence, Adelphi [II. i. 34 f.], says:

I own I am a pander, a common bane of youths,
| A perjured wretch, a pest; yet you I have not wronged.

On this subject refer to the author, who has written on the terms of peace between the princes and
orders of the [Holy Roman] Empire. |

Chap. XIX] On Good Fatth between Enemies 795

that we have been treating in regard to the remission of the punish-
ment belonging to his condition. The fact is, as we have said else-
where, that that explanation must always be assumed which pre-
vents an act from becoming without effect.

2. According to Livy, Nabis made an apt reply when Quintins
Flamini[n]us reproached him with being a tyrant: ‘ As regards this
title, I can reply that, whatever I am, I am the same that I was
when you yourself, Titus Quintius, made the alliance with me.’
Later he says: ‘I had already done these deeds, whatever they are,
when you made the alliance with me.’ He adds: ‘ If I had changed
in anything, then I ought to offer an explanation of my lack of con-
sistency ; but since you are changing, you ought to offer an explana-
tion of your inconstancy.’

In an address of Pericles to his fellow-citizens, according to
Thucydides, there is a passage of similar purport: ‘ We shall permit
the allied states to be free, if they were so at the time when the
treaty was mace.’

IV.—The fact that a promise has been extorted through fear presents no
obstacle, if the fear was not felt as a personal fear by him who made
the promise

Next, the objection, which I mentioned elsewhere, may be
brought forward, that the person who has caused a promise to be made
through fear is bound to free the promisor, for the reason that he
has caused the loss unjustly; that is, by means of an action opposed
to the nature both of human liberty and of an act which ought to
be free.

Though we admit that this is sometimes the case, yet it does
not cover all promises made to brigands. For in order that the
person, to whom a promise has been made, should be bound to free
[569] the promisor, it is necessary that he himself should have
caused the promise by an unjust fear. If therefore any one has pro-
mised a ransom in order to release a friend from captivity, he will
be bound to pay; for the fear did not affect the person who came
of his own free will to make the agreement.

V.—Or, if an oath has been given, the fact that a promise bas been
extorted through fear presents no obstacle, although in the case of
a brigand such an oath is violated with impunity so far as men are
concerned

There is the further consideration that a person who has made
'a promise under the compulsion of an unjust fear can be obligated

(II. xvi.
6.]

[XXXIV
XXX1. I2,
13, 15.]

[I. exliv.]

II. xxi
[II. xi. 7].

IIT. iv. xo
(XI. xu.

15].

I. iv.

Aelian,
[Vartous
Estory,)
VI. vii
[4]. XI
{ixxxix].

796 On the Law of War and Peace [Book III

if the sanction of an oath has been added. For, as we have said else-
where, a man is thereby bound not only to man but also to God,
and in relation to Him fear makes no exception. Nevertheless it is
true that the heir of the promisor is not held by such a bond alone,
because, according to the primitive law of ownership, those things
which belong to the commercial relations of life pass to the heir,
but these do not include a right sought from God, as such.

This, again, must be repeated from an earlier statement, that if
any one violates a sworn or unsworn pledge given to a brigand he
will not on that account be liable to punishment among other nations.
For because of the hatred of brigands the nations have decided to
overlook illegal acts committed against them.

VI.—The same rules are applicable in relation to rebellious subjects

What shall we say regarding wars of subjects against their kings
and other sovereign authorities?

That subjects do not have the right to employ force, even though
they have a cause which in itself is not unjust, we have shown else-
where. Sometimes even the injustice of their cause, or the baseness
of their resistance, may be so great that they may be punished severely.
Nevertheless, if they have been treated with as one would treat
deserters or rebels, punishment cannot be inflicted contrary to a
promise, as we have just stated.

In their scrupulousness the ancients held that faith must be
kept even with slaves; in fact it was believed that the Lacedae-
monians had drawn down upon themselves divine anger because
they had killed the Taenarians, their slaves, contrary to agreement.
Also Diodorus Siculus notes that the faith pledged to slaves at the
shrine of the Palici had never been violated by any master. More-
over it will be possible to nullify here also the exception allowed in
case a promise was made by reason of fear, if the promise has been
confirmed by an oath; so the plebeian tribune, Marcus Pomponius,"
kept the promise which had been made to Lucius Manlius under the
influence of fear, because he was bound by an oath.

VIL—The special difficulty presented by promises made to subjects under
the right of eminent domain

At this point, in addition to the difficulties previously met with,
a special difficulty is presented by the right of passing laws and the
right of eminent domain over the property of subjects; this right

1 ‘The tribune took the oath and did not practise deception, but gave to the assembly this reason
for dropping the accusation [action]. No one else has been permitted to restrain a tribune with
impunity’; Seneca, On Benefits, II]. xxxvii.

Chap. XIX] On Good Faith between Enemies 797

belongs to the state, and is exercised in its name by the one who
holds supreme authority. If in fact this right covers all the posses-
sions of subjects, why does it not cover also the right arising from
a promise in war? If this be conceded, it appears that all such
agreements will be void, and therefore there will be no hope of ending
a war excepting through victory.

But, on the contrary, we must note that recourse is had to the
right of eminent domain, not indiscriminately, but only in so far as
this is to the common advantage in a civil government, which, even
when regal, is not despotic. But in most cases it is to the common
advantage that such agreements be kept; and what we have said
elsewhere about the preservation of the existing government applies
here also. An additional point is that, when circumstances demand
the enforcement of this right, compensation ought to be given, as

will be explained later.

VITI.—J:t ts shown also that such promises may be confirmed by an oath
of the state

1. Moreover treaties may be sanctioned by an oath taken not
only by a king or a senate, but also by the state itself. Thus Lycurgus [Piutareb,
made the Lacedaemonians take oath to his laws, and Solon the es
Athenians ; and in order that the oath might not become invalid on 572; —
account of the change of persons it was repeated annually. Solon, >.
If such repetition is in fact kept up, there will be no necessity 928]
of withdrawal from the promise, even for the sake of the public
advantage; for not only may a state yield its own right, but [570]
words can be made so clear as to admit of no exception. Valerius y ii
Maximus thus addresses Athens: ‘ Read the law which holds you _ [ezt. 3}.
bound by oath.’ This kind of laws, by which the Roman people
was itself in conscience bound, as Cicero explains in the speech
For Balbus, the Romans called ‘ sacred ’.* xv. 35.]
2. A rather obscure discussion bearing upon this subject 1s
found in the third book of Livy, where he says that in the opinion [lll
of many interpreters of the law the tribunes were inviolable, but not °7+
likewise the ediles, judges, and decemvirs; yet, if harm should be
done to any of the latter, an unlawful act was committed. The
reason for the distinction is that the ediles and the others were
protected by the law alone; moreover, what the people had voted
last prevailed, and so long as the effect of the law lasted no one could
lawfully act in opposition to it. The tribunes, on the contrary,
were protected by a public religious obligation of the Roman people ;
for an oath had been taken which could not be annulled by those

2 See Manutius, De Legibus.

(VI.
ixxxix. 2.]

Livy,
XXXIX
[xxni. 6].

I, iti.
17 ff.

798 On the Law of War and Peace [Book III

who had sworn it, without violating religious scruple. Dionysius of
Halicarnassus says: ‘ Brutus summoned an assembly and advised the
citizens to make this magistracy inviolable, not only by law but also
by an oath, and all so voted.’ ‘hat is the reason why the law is
called sacred.

In consequence good men disapproved of the act of Tiberius
Gracchus ! when he removed Octavius from the tribuneship, though
he declared that the tribunician power received its inviolability from
the people and not against the people. Therefore, as I have said,
both a state and a king can be bound by an oath, even in the case
of subjects.

IX.—Or, promises are binding tf a third person, to whom the promise
is made, enters into thé case

But also a promise will be made with binding force to a third
person, who has not inspired fear. We shall not investigate how or
to what extent he may be interested in the promise; these are subtle
distinctions belonging to the Roman law. By nature, in fact, it is
important for all men to have regard for other men. Thus we read
that by the peace made with the Romans Philip was deprived of
the right of visiting cruelty upon those Macedonians who had revolted
from him in war.’

X.—How the political character of a state may be changed

Further, we have shown elsewhere that states of mixed character
sometimes exist; and just as by agreement states may pass from one
pure form into another, so they may pass also into a mixed form.
Similarly those who had been subjects may begin to hold sovereign
power, or at any rate some part of it, together with the free right to
defend that part by force.

XI.—Fear does not justify an exception in respect to a war that 1s formal
according to the law of nations

1. A formal war, that is a war publicly declared on both sides,
has not only other characteristics in respect to legal right but also this
characteristic in particular, that all promises made in the course of the
war, or for the purpose of terminating it, are valid to the extent that
they cannot be made void by reason of a fear unjustly inspired, except
with the consent of the party to whom the promise has been made.
For just as many other things, though they may not be devoid of

1 See Plutarch, in his life [Tiberius Gracchus, xv-xvi=p. 831 D], for this story in full.
* There is a similar example in Paruta, Book V1. :

Chap. XIX] On Good Faith between Enemies 799

fault in some degree, are considered lawful according to the law of
nations, so also the fear which in such a war? is inspired on both
sides.

Unless this rule had been adopted, no limit nor termination could
have been fixed for such wars, which are extremely frequent. Yet
it is to the interest of mankind that such bounds be set. This may
be understood to be that law of war which Cicero says must be
observed with an enemy. Elsewhere Cicero declared that an enemy
retains rights in war, obviously referring not only to rights arising
from the law of nature, but also to certain rights which have arisen
from the general consent of nations.

2. From this nevertheless it does not follow that the party
who has extorted some such promise by an unlawful war can retain
what he has received without violating the honour and duty of
a good man, or even can compel the other to hold to the agreement,
whether sworn to or not. For essentially and in its [571] nature
the transaction remains unjust. This essential injustice of the action
cannot be removed except through a new and absolutely free consent.

XII.—W hat is to be understood regarding such a fear as the law of
nations recognizes

But my statement that the fear inspired by a formally declared
war is considered Jawful ought to be understood of such a fear as is
not disapproved by the law of nations.” For if anything has been
extorted by the fear of rape, or by terrorizing of any other sort which
involves violation of pledged faith, it will be nearer the truth to say
that the case has been brought within the scope of the law of nature ;
the force of the law of nations does not extend to such a fear.

XIII.— Faith must be kept even with the faithless

1. I have previously said, in the general treatment of promises,
that faith must be kept even with the faithless. Ambrose, too, holds
the same opinion; he thinks that beyond question the maintenance
of good faith should be extended even to treacherous enemies, such
as the Carthaginians, with whom the Romans kept faith inviolably.
On this point Valerius Maximus remarks: ‘The Senate did not
take into consideration those to whom the obligation was being dis-
charged.’ Sallust, again, says: ‘In all the Punic wars, although
the Carthaginians both in time of peace and in periods of truce had

1 See the writer as referred to above, on the treaty of peace. . .
2 Soa promise extorted from a captured ambassador is of no value to the one extortingit ; Mariana,

XXX XXX. xii and xix].
1569:27 3H

On Duties,
III [xxix.
ro7].
Against
Verres, IV
(lv 122].

II. xiii. 16.

[On
Duties,
I. xxix.]

VI. vi [3].

[Catsline,
h. 6.]

[Spanish
Wars,
x. 60 ]

VIII. ii

[VIII 1 2].

Cicero,
On the
Oration, I
On the
Orator, I.
li. 228],
and
Brutus
[xx @o].

Livy, I.
xx. 7.]

Digest,
XVII,
ll. 14.

J. vil. 2

(II. vii. 2].

[Book ITI

800 On the Law of War and Peace

committed many atrocious wrongs, the Romans themselves never
took advantage of an opportunity to do such deeds.’

2. Of the treaty-breaking Lusitanians, whom Sergius Galba
had deceived by a new treaty and then slaughtered, Appian says:
‘In avenging perfidy with perfidy he imitated the barbarians in
a manner inconsistent with the dignity of Rome.’ On this charge
the same Galba was afterward accused by the plebeian tribune Libo.
In giving an account of the matter, Valerius Maximus says: ‘ Pity
and not justice ruled? that trial, since the acquittal, which could not
have been granted to innocence, was given out of regard for his
children.’ Cato had written in the Origins that Galba ‘would have
been punished if he had not made use of his children and his tears’.

XIV.—Faith does not have to be kept if the condition changes ; and thts
takes place if the other does not keep his part of the agreement

At the same time the fact should be recognized that in two ways
one may be free from breach of faith and yet not do what was pro-
mised—if the condition ceases, and if compensation is given. The
cessation of the condition does not in reality free the promisor, but
the result shows that there is no obligation, since this was entered
into only under the condition.

To this principle we must refer the case which arises if the other
party has not fulfilled what he on his part was bound to carry out.
For the individual items of one and the same agreement seem to be
related in respect to the two sides after the manner of a condition,
as if it had been stated in this way: I will do thus and so if the other
does what he has promised. Thus Tullus, replying to the Albans,
‘ calls the gods to witness, which of the two peoples first rejected and
dismissed the envoys demanding restitution, in order that they may
visit on that people all the losses of the war’. Ulpian says: ‘He
will not be liable as a partner who has renounced a partnership for
the reason that a certain condition, on which the partnership was
formed, is not complied with in relation to him.’ For this reason,
whenever the intent is different, it is usually expressly stated that
if anything is done contrary to this or that provision the others
nevertheless will remain valid.

XV.—Faith does not have to be kept in case a just compensation 15
tendered in return

The origin of compensation I indicated elsewhere,’ when I said
that if anything is ours or is due to us, and we cannot otherwise obtain
1 Textt (covered) is a typographical error for vexit (ruled).

2 I. vi 2. Tertullian, Scorpiace [vi], says: ‘No one should object to compensation, in which
regard is had alike for favour and for injury.’ J ,

Chap. XIX] On Good Faith between Enemies 8or

it from him who has it or owes it to us, we can accept an equivalent
amount in something else. From this it follows the more clearly
that we may keep what is in our possession, whether it be corporeal
or incorporeal. ‘Therefore what we have promised will not have to
be fulfilled if the value involved is no greater than that of our pro-
perty which is wrongfully in the possession of the other.

In the sixth book On Benefits Seneca says : +

So a creditor often loses his suit to his debtor when on another account he has taken
more than he tries to secure from the debt. For the judge sits between the creditor and
the debtor to say, ‘ You have loaned him money; what then? ... You have possession
of a field which [572] you did not buy; after an adjustment of values, you, who
came as a creditor, depart as a debtor.’

XVI.—Faith does not have to be kept im case a just compensation 15
tendered in return, even if this 1s on another contract

The same principle will hold if the party with whom I have
dealings owes as much or more under another agreement, and I am
not able otherwise to secure what is due to.me. In the law courts,
as the same Seneca says,” different actions are separated, and the
causes of action are not mixed. But, as noted in the same passage,
those cases are guarded by definite statutes which it is necessary to
observe: a law must not be mixed with a law; we must go whither
we are led. The law of nations does not recognize those distinctions ;
in the cases which fall within its scope there is no other hope of
acquiring one’s right.

XVII.—Faith does not have to be kept in case damage has been done

The same principle will have to be applied if the party who
insists on the fulfilment of a promise has not carried out his part of
the agreement, but has inflicted damage. In the passage just cited
Seneca says: * ‘A landowner who has trampled down the crop or
cut down the trees of his tenant has no legal right over the tenant,
even though the lease is uncancelled, not because he has received
what had been agreed upon, but because he himself was the cause
of his not receiving it.’ Presently Seneca adds other examples:
‘You have driven away his cattle and killed his slave.” And again: *
‘It is permissible for me to compare how much each one has assisted
me, how much he has injured me, and then to declare whether he
is more indebted to me or I to him.’

1 Seneca, On Benefits, VI. iv. 4. 2 Ibdid., vi, vii [v. 6, 7]. 3 Ibid., iv. « Jbid., vi.

3H2

[On Bene-
fits, VI v.]

IT. in [rx].

802 On the Law of War and Peace [Book III

XVIII. —Furthermore, faith does not have to be kept when something 1s
due as a penalty

Finally, what is due as a penalty can be taken in lieu of what
has been promised. This is explained at length in the passage already
uoted: ‘On the one hand favour is due for a benefit, on the other
vengeance for an injury. Gratitude is not due to him from me, nor
punishment to me from him; the indebtedness on both sides is
cancelled.’ Presently Seneca adds:* ‘ After a comparison has been
made between the favours and the injuries, I shall see whether any-
thing more is due to me.’

XIX.—How these principles become applicable in war

1. Just as in case an agreement has been made between con-
testing parties, while the suit is in progress, neither the action which
gave rise to the suit, nor the losses and damages of the suit, can be
used as an offset for what was promised, so, while a war lasts, com-
pensation cannot be given for what originally caused the war, nor
for what is customarily arranged in accordance with the laws of war
among nations. For the nature of the business, that it be not void
of effect, shows that the agreement was made without consideration
of the controversies which led to the war. Otherwise, in fact, there
would be no agreement which could not be lightly set aside.

To this conclusion I may not inaptly apply the observation of
the same Seneca,” whom I have several times quoted: ‘ Our ancestors
accepted no excuse, in order that men might know that good faith
must by all means be preserved. It was in fact better that even
a just excuse from a few should not be accepted, than that any sort
of an excuse should be tried by all.’

2. What, then, can be used as an offset to that which was
promised ? Undoubtedly whatever the other party owes, even under
the terms of another agreement entered into during the war; or,
it may be reckoned as an offset if he has caused damage during a truce,
or has failed to respect the inviolability of ambassadors, or has done
anything else which the law of nations condemns between enemies.

3. Nevertheless the observation should be made that the
adjustment is arranged between the same parties, and in such a way
that the right of a third party is not infringed; yet so that the goods
of subjects, as we have said elsewhere, are held by the law of nations
to be liable for the debt which the state owes.

4. We add this also, that it is characteristic of a noble mind
to abide by treaties even after an injury has been suffered. For this

1 Tbid., vi * Ibid., VIL, xv (VIL. xvi. 2].

Chap. XIX] On Good Fatth between Enemies 803

reason the wise Hindu JIarchas praised the king who, although
wronged by an allied neighbour, ‘ did not withdraw from: his sworn
pledge, saying that he had sworn in so holy a manner that he would
not harm the other even after suffering wrong’.

Almost all the questions which are wont to arise concerning
the faith accorded to an enemy can be settled if we follow the rules
already laid down in our discussion not only of the force of promises
of all kinds, or of a special oath, or of a treaty and sponsions, but also
of the rights and obligations of kings, and the interpretation of
ambiguous statements. Nevertheless, in order that the application
of the foregoing principles may be more plain, and that our dis-
cussion may be extended to cover whatever else is in dispute, [573]
I shall not hesitate to touch on the special questions which are more
common and which more generally demand attention.

Philo-
stratus,
III. vi
[Life of
A pol-
lontus of
Tyana,
III. xx}.

II. x ff

See IT.
XV 3

See I
i. 24.

[574] CHAPTER XX

ON THE GOOD FAITH OF STATES, BY WHICH WAR IS ENDED; ALSO
ON THE WORKING OF PEACE TREATIES, ON DECISION BY
LOT, ON COMBAT BY AGREEMENT; ON ARBITRATION,
SURRENDER, HOSTAGES, AND PLEDGES

I.—Division of good faith between enemies, according to the order of
what follows

[575] Uwnperstanpincs between enemies rest upon a promise
expressed or implied.

An express promise is either public or private. If public it is
imputed either to the supreme authority or to subordinate powers.
That which is imputed to the supreme authority either puts an end
to war or maintains its force while the war lasts.

Among the factors which terminate a war some are looked
upon as principal, others as accessory. ‘Those are principal which
themselves end the war by their own action, as treaties, or by the
consent to refer to something else, such as the drawing of lots, the
issue of combat, or the decision of an arbitrator. Of the last three
the first rests on pure chance, while the other two combine chance
with strength of mind or body, or with capacity of judgement.

Il.—In a monarchy the right to make peace belongs to the king

Those who have the right of initiative in conducting a war have
the right to enter into treaties for the purpose of ending it. Each,
in fact, is the manager of his own affairs. From this it follows that
in a war which is public on both sides the right to end it belongs
to those who have the right to exercise supreme power. In a true
monarchy, therefore, this will belong to the king,* provided also the
king has unrestricted power.

TlI.—W bat tf the king is an infant, insane, a captive, or in exile ?

1. A king who is of such an age that he does not possess maturity
of judgement (in some kingdoms such an age is defined by law, else-
where it will have to be determined by a more probable estimate)
or a feeble-minded king cannot make peace.

The same principle will apply to a king in captivity,? provided
he possesses a kingly authority which had its origin in the consent

1 Mariana, XXI. i.
+ See Guicciardini, Books KVI and XVIII; more than a single reference.

804

Chap. XX] On Good Faith in Ending War 805

of the people. It is, in fact, not credible that sovereignty was con-
ferred by a people on such terms that it could be exercised by one
who is not free. Therefore in this case also not the undivided sove-
reignty indeed,’ but the exercise, and, as it were, the guardianship
of it, will belong to the people, or to the one to whom the people
has entrusted it.

2. Nevertheless, if a king even in captivity has pledged anything
of his own private possessions, the pledge will be valid, in accordance
with the principle set forth in what we shall state concerning private
agreements.

But if a king shall be in exile,” will he be able to make peace ?
Surely so, if it be established that he is not living under constraint ;
otherwise his condition will differ too little from that of a captive,
for there are captives also who are loosely guarded. Regulus refused
to give his opinion in the senate, saying that he was not a senator
so long as he was bound by an oath to the enemy.

IV.—In an aristocracy or a democracy the right of making peace belongs
to the majority

In accordance with what we have said elsewhere, in aristocratic
or democratic governments the right of making treaties will belong
to the majority; in the former case, the majority of the public
council, in the latter, the majority of the citizens who according to
custom have the right to vote.

Accordingly, treaties so made will be binding even on those who
have voted against them. Livy says: ‘ When a treaty has once been
voted it will have to be defended as a good and advantageous treaty
by all, even by those who were previously opposed to it.’ Dionysius
of Halicarnassus states the case thus: ‘ What the majority has voted
must be obeyed.’ Appian says: ‘ All, without admitting any excuse,
are bound to obey the decree.’ Says Pliny: ‘ All had to observe
what the majority had approved.’ Peace, moreover, is of advantage
also to those whom it obligates, if they so wish.

V.—Now the sovereignty, or a part of the sovereignty, or the property
of the realm may be validly alienated for the sake of peace

1. Let us now see what the things are which may be made
subject of a treaty.

1 Arumaeus in his Discourses on the Golden Bull says: ‘Rudolph of the Palatinate had fled to
England in fear, and Henry of Mayence had been expelled by force from Tréves; yet they did not
lose their votes as Electors.’

* Lucan says [V. 28 f.]:

And while Camillus dwelt in Veti’s walls,
There too was Rome.

See Chassanaeus in the Caialogus Gloria Mundi, pt. v, consid. 89 [49].

Cicero,
On Duites,
II [III
EXViL.100].

II. v. 17.

XXXII
[xx. 6].

XI [Ivij.

VI [Poly-
bius, V.
xix, 7].
Letters,
VI. xiii [4].

Vazquez,
Cont. Ill.,
I. iv, cites
many,
and v.

See above,
II. vi. 3 f£

II. xii
[II. vi. 13].

Il. xiv.
ro ff.
Vazquez,
aforemen-
tioned,

I. v, no. 9.

806 On the Law of War and Peace [Book IIT

Kings, such as the majority now are, are not able to alienate by
treaty either the whole sovereignty or a part of it, since they hold
their royal authority not as a patrimony, but as if in usufruct. [576]
Even before they receive the kingship, while the people are still
superior to them, such acts can be rendered entirely void for the
future by a public statute, so that they cannot give rise to any obliga-
tion in the king’s interest. And it is to be believed that the people
have so willed; for otherwise, if the act were binding on the con-
tracting party to his interest, the goods of subjects might be taken
for the king’s debts, and it would follow that the provision against
the alienation of the sovereignty would be in vain.

2. In order, therefore, that the undivided sovereignty may be
transferred in a valid manner, the consent of the whole people is
necessary. This may be effected by the representatives of the parts
which are called the estates.

In order to validly alienate any part of the sovereignty there 1s
need of a twofold consent, that of the whole body, and in particular
the consent of that part of which the sovereignty is at stake, since
without its consent it cannot be separated from the body to which
it has belonged. Yet in case of extreme and in other respects un-
avoidable necessity the part itself will probably transfer the sovereignty
over itself in a valid manner without the consent of the whole people,
because it is to be believed that that power was reserved when the
body politic was formed.

3. In patrimonial kingdoms, however, there is nothing to
prevent a king from alienating his crown. Yet it may happen that
such a king would not be able to alienate a part of the sovereignty,
if indeed he has received the kingdom as his property on the con-
dition of not dividing it. But the property described as royal may be
included in the patrimony of the king in two ways, either separately,
or indivisibly united with the kingdom itself. If included in the
latter way, it may be transferred, but only with the transfer of the
crown itself; if separately, it may be transferred separately.

4. But kings who do not hold their kingship in patrimony seem
hardly to have been granted the right of alienating the property
of the realm, unless this right plainly appears as arising from some
early law, or has never been considered contrary to custom.

VI.—How far the people, or his successors, are bound by a peace made
by a king
We have elsewhere stated how far the people, and at the same
time also the successors of the king, are bound by his promise, to
wit: so far as the power of creating binding obligations was included
in his sovereignty. This ought neither to be given unlimited range,

Chap. XX] On Good Faith in Ending War 807

nor to be confined within too narrow limits,1 but ought to be so
understood that what is based on good reason may be accepted as
valid.

The case will plainly be different if a king is at the same time the
absolute master of his subjects, and has received a sovereignty akin
to that of a household rather than to that of a state. Such are kings
who have reduced to slavery people conquered in war; or a king
who does not indeed have ownership of persons but of their pro-
perty, as Pharaoh in the land of Egypt, in consequence of purchase ;
and others, who have taken strangers into their private possession.
For here the right added to the royal power establishes the validity
of that which could not be maintained as valid by the right of the
king alone.

VII.—Jn arranging peace the property of subjects can be given up for
the sake of the public advantage, but with the obligation of making
good the loss

1. This question also is frequently discussed: in the effort to
secure peace, what conclusion regarding the property of subjects
may be adopted by kings who have no other right over the property
of their subjects * than that inhering in the royal power ?

I have said elsewhere that the property of subjects belongs -to
the state under the right of eminent domain; in consequence the
state, or he who represents the state, can use the property of sub-
jects, and even destroy it or alienate it, not only in case of direct
need, which grants even to private citizens a measure of right over
others’ property, but also for the sake of the public advantage; and
to the public advantage those very persons who formed the body politic
should be considered as desiring that private advantage should yield.

2. But, we must add, when this happens, the state is bound
to make good at public expense the damage to those who lose their
property ; and to this public levy the person himself who suffered
the loss will contribute, if there is need.

The state, furthermore, will not be relieved of this burden if
perchance it is not equal to the payment at the time; but whenever
the means shall be at hand the obligation will reassert itself as if
merely held in suspense.

[577] VII—What in regard to property already lost in war ?
I do not admit without modification the statement of Fernando
Vazquez, that the state ought not to take upon itself the loss already

1 See Reinkingk, Book I, class m1, chap. v, no. 30 [I. v. iti. 19]. See also above, II. xiv. 7 and 12.
2 Gail, II, obs. 57.

Above,
III. vii. 2.

Vazquez,
I. v [15].
Romanus,
Conszla,
310.
Sylvester,
word
bellum,

I. 43.

Cont. Iil.,
IIT. iii.
end

[IT iv. end}.

III vi.
2 and
x. 5.

Digest,
XVIT 11.
52 § 4.

III. 11.

II. xv. 12
(II. xvi.
12].

808 On the Law of War and Peace [Book III

caused by a war, for the reason that the law of war permits such
damages. For that law of war has reference to other peoples, as
I have explained elsewhere, and in part applies to the relationships
of enemies but not to those of citizens with one another. Since
citizens of a state are associates, it is right that they should share
the common losses which are suffered by reason of their association.
Obviously, also, the municipal law may expressly provide that there
shall be no right of action against the state for property lost in war,
to the end that each individual shall defend his property with greater
energy. :

IX.—No distinction is here made between property acquired under the
law of nations and under the municipal law

Some make a broad distinction between property which belongs
to citizens by the law of nations and that which belongs to the same
persons by municipal law; in consequence they grant to the king
a more unrestricted right over property owned under the law of
nations, even to the extent of taking it away without cause and
without compensation, while they admit no such right in the case
of property held by the law of nature.

This distinction is wholly erroneous, for ownership, no matter
from what cause it has arisen, always has effects originating in the law
of nature; consequently it cannot be taken away except as the result
of causes which are inherent in ownership by its very nature, or
arise from an act of the owner.

X.—From the point of view of foreigners public advantage is presumed

Now this doctrine, that the property of individuals should not
be given up except for the public advantage, has reference to the
king and his subjects, just as the other doctrine regarding com-
pensation for loss has reference to the state and individuals. The
act of the king is in fact sufficient for foreigners, who make agree-
ments with him, not only by reason of the presumption established
by the dignity of his person, but also in accordance with the law of
nations, which permits the property of subjects to be made liable by
the act of the king.

XI.—General rule for the interpretation of peace covenants

1. In the interpretation of peace covenants the observation
should be made that, as we have previously stated, the more favour-
able a condition is, the more broadly it is to be construed, while the

Chap. XX] On Good Faith in Ending War 809

further a condition is removed from a favourable point of view the
more narrow is the construction to be placed upon it.

If we have in view the law of nature, the most favourable con-
dition seems to rest on this principle, that each shall obtain what
belongs to him, which the Greeks have expressed by éxacrov yew
7a é€avrov; hence the interpretation of ambiguous clauses ought to be
directed to the end that the party who had a just cause of war should
obtain that for which he took up arms, and should likewise recover
for damages and costs, but that he should not also recover anything
by way of penalty, for that would arouse more hatred.

2. Since, however, it is not customary for the parties to arrive
at peace by a confession of wrong, in treaties that interpretation
should be assumed which puts the parties as far as possible on an
equality with regard to the justice of the war.

This is usually accomplished in one of two ways; either the
possession of property, which has been disturbed by war, is adjusted
in accordance with the former right of ownership? [status quo ante
bellum], the expression used in the speech of Menippus where he
discusses the different kinds of treaties; or, things remain as they
are [uti possidetis|, and this the Greeks call ‘holding what they

ave’.

XII.—In doubiful cases it is believed that the understanding 1s that
things remain as they are; how this ought to be interpreted

I. Of the two ways mentioned, in case of doubt the presump-
tion is in favour of the second, because it is easier and does not intro-
duce a change. Hence the rule laid down by Tryphoninus, that in
peace the right of postliminy applies only to those captives who have
been expressly mentioned in the treaty, as we have stated above,
where it was shown by sound arguments that Faber’s emendation of
the text was correct. So also deserters will not be surrendered unless
that 1s in the agreement. For we receive deserters by the law of
war ;* that is, according to the law of war we are allowed to admit
and enrol on our side the one who changes allegiance. Under such
an agreement the other things remain in the hands of the possessor.

2. In such cases, however, the word possession is understood
not according to municipal law but according to the law of nature.
For in wars the fact of possession suffices, and nothing else is con-
sidered. Moreover we have said that lands are so held if they have
been enclosed by fortifications ; for temporary possession, as in the

1 See Paruta, Book V.
4 See above, III. i. 22. In peace this agreement is generally made, that deserters shall not be
received ; see the peace of Justinian with Chosroes in Menander Protector [frag. r1, p. 10, edit. Dindorf],

Livy,
XXXIV
flvii. 8].

Digest,
XLIX.
xv. 12.

Above,
III. ix [4].

Dig. XLI.
1. 51.

Above,
ITT. vi. 4.
Decio,
Consilia,
ITI. lxxrv.

[On the
Crown,
XVI. 26 =
P 234.)
Above,
III vii. 4

Livy,
XXXIII

[x1ii. 12]

Sro On the Law of War and Peace [Book III

case of a stationary camp, is here not to be taken into account. [578]
In his speech for Ctesiphon Demosthenes says that Philip hastened
to seize what places he could, knowing that, as matters stood, after
the conclusion of peace he would retain what he held.

Incorporeal possessions are not retained except through the things
to which they belong, as the servitudes of lands, or through the
persons who possess them, provided that the rights do not run with
land which formerly belonged to the enemy.

XITI.—W hat tf an agreement has been made, that all things are to be
restored to the condition in which they were before the war ?

In the first kind of agreement, in which possession disturbed
by the war is restored, we must note that the last possession,
which existed before the war, is meant; nevertheless with the under-
standing that private persons who have been dispossessed may
institute legal proceedings either by possessory action or by a claim
for damages.

XIV.—JIn such cases those who previously were free and of their own
accord became subject to another are not restored

But if any free people has of its own will yielded to one of the
belligerents, restitution will not be applicable to it; for restitution
applies only to those things which are accomplished by force, or fear,
or in other ways through deceit permissible only against an enemy.
5o when peace was made among the Greeks the Thebans retained
Plataea,* saying ‘that they held that place not by force, nor by
betrayal, but by the free choice of those to whom it belonged’.
With equal right Nisaea remained in the possession of the Athenians.
Titus Quinctius made use of the same distinction in relation to the
Aetolians, saying ‘ That is the rule for captured cities ; of their own
accord the cities of Thessaly came under our sway ’.

XV.—In case of doubt damages caused by war are considered as remitted

If no other agreement has been made, in every peace it ought
to be considered settled that there shall be no liability on account
of the damages which have been caused by the war. This is to be
understood also as to damages suffered by private persons; for such
damages also are the result of war. In case of doubt it is presumed
that the belligerents intended to make such an agreement that
neither would be condemned as guilty of injustice. |

+ This passage is from Thucydides, V [V. xvii]; a similar one had preceded in Ul [III. li]:
* That Plataea ought not to be given back, since the men of that city had yielded of their own accord.’

Chap. XX] On Good Faith in Ending War 81I

XVI.—T he principle stated does not apply to what was owed to individuals
before the war

Nevertheless we ought not to consider that debts, which were
owed to individuals at the outbreak of war, have been cancelled.
For cancellations of debts are not obtained by the law of war, but
their collection has only been hindered by the war. When, therefore,
the hindrance has been removed, they retain their full force. Although
we should consider that no one ought easily to be deprived of the
tights which he possessed before the war (for, as Cicero rightly says,
commonwealths and states were established especially on this account,
that individuals might be secure in holding what belonged to them),
yet this must be understood in the case of those rights which arise
from the inequality of things.

XVII.—In case of doubt also punishments, which were publicly due

before the war, are considered as remitted

The same principle does not apply to the right to inflict punish-
ment.! For this right, in so far as it concerns kings or peoples, ought
to be considered as held in abeyance, from fear that the peace will
not be a perfect peace if it leaves the old causes for war.

Wherefore acts not known will also here be included under the
general terms, as the case of the Roman traders who, as Appian
relates, were drowned by the Carthaginians without the knowledge
of the Romans. Dionysius of Halicarnassus declares that the best
reconciliations are those which do away with the anger and the
remembrance of the injuries. In his Platatc Oration Isocrates says :
‘In: peace it is not fitting to follow up former wrongs.’

XVIIL.—W hat of the right of private persons to inflict puntshments ?

As to the right of private persons to inflict punishment, the
reason is not so strong for thinking that it should be held in abeyance,
because it can be enforced through the courts without war. Never-
theless, since this right is not so clearly ours as that which arises
from inequality, and punishments always cause hatred, a slight
extension of the scope of the words will suffice to suggest that this
right also may be understood to have been given up.

XIX.—A right, which was publicly alleged before the war, but was in
dispute, 1s easily understood to be in abeyance

What I have said, that a right which existed before the war
ought not easily to be considered annulled, should be firmly main-

1 Gail, De Arresiis, chap. Xiv, nO. 7-

Decio,
Cons., |xi.

On Duties,
II [xxi.
73].

[Punte
Wars, i. 5.]

(III. viii.
4.]

[xiv = p.
299 B]

III [ix. 3].

[xxv =p.
164 C.]

Alciati,
Responsa,
V xvii.

Cicero,

On Duttres,
II [xxii.
8x].

Appian,
Cival

Wars, V
fix. 77].

812 On the Law of War and Peace [Book III

tained with respect to the rights of individuals; [579] but as to
tights of kings and peoples it is easier to understand that some con-
donation has occurred, if only statements, or not improbable in-
ferences, are in evidence. ‘This is above all the case if the right in
question was not clear, but had been in dispute. It is, in fact, the
part of kindness to believe that the right was suffered to fall into
abeyance in order that the seeds of war might be eradicated.

The same Dionysius of Halicarnassus, whom I quoted above,
says: ‘ We ought not so much to consider the renewing of our friend-
ship for the present, as to take care that we may not be involved in
war a second time; for we have come together for the purpose not
of putting off the evils but of putting an end to them.’ The latter
part of this statement was taken almost word for word from the
oration of Isocrates On Peace.

XX.—Things captured after the making of peace must be restored

It is well established that things which have been captured
after the conclusion of a treaty of peace must be restored. The right
of war had, in fact, already expired.

XXI.—Some rules bearing upon the agreement to restore things captured
1n War

In treaties which deal with the restitution of things captured in
war, first, those provisions which apply equally to both sides ought
to be interpreted more broadly than those which are one-sided.
Again, the provisions that are concerned with persons are construed
more favourably than those that treat of things. Among provisions
treating of things those that deal with land are construed more
favourably than those dealing with movables, and those dealing with
public property more favourably than those that treat of private

roperty. Also among provisions treating of private possessions those
which order the return of things possessed under a saleable title allow
greater latitude than those possessed under a burdensome title, as

property held under bills of sale or as dowry.

XXII.— Regarding income

A person to whom a grant of property is made on the conclusion
of a peace is entitled to receive the income of it also from the time
of the grant, but not before that time. This principle was rightly
maintained by Caesar Augustus against Sextus Pompey who, after
the Peloponnesus had been granted to him, at the same time claimed
also the taxes which were due for the previous years.

Chap. XX] On Good Faith in Ending War 813

XXIII.—On the names of regions

The names of regions must be accepted according to the usage
of the present time, and according to the usage of experts rather
than of the common people; for such matters are usually treated
by experts.

XXIV.—Concerning reference to a former treaty ; and concerning him
through whom the fatlure to perform has come

The following rules also are of frequent application. As often
as reference is made to a former or ancient treaty, the qualifications
or conditions of the former agreement are in each case considered
as repeated. Also the party, who was willing to do an act, must be
considered as having done it, if he was hindered from doing it by
the other party with whom the dispute occurred.

XXV.—Concerning delay

However, the statement of some writers, that delay for a brief
period is excusable, is not true unless an unforeseen necessity has
proved a hindrance.? It is, in fact, not strange that some canons
favour the excusing of such delay, since it is their duty to influence
Christians to that view which is consistent with love for one another.
But in this investigation concerning the interpretation of treaties we
are not now inquiring what is the better course nor what religion
and honour demand of each, but to what limit the application of
a principle, based wholly on that right, which we have called legal,

ean be carried.

XXVI.—In case of doubt that interpretation should be adopted which 15
contrary to the interest of the party that made the terms

In case the meaning is doubtful, an interpretation is preferably
to be adopted contrary to the interest of him who dictated the
conditions,* because ordinarily he belongs to the stronger party.
Hannibal says that the dictation of the terms of peace belongs to the

1 See Guicciardini, Book V [on the contest for Capitanata between the French and Spaniards ;
the former insisted it was a part of the Abruzzi, the latter, of Apulia].
* See Albert of Strassburg.
8 Plautus, The Rersian [line 586]:
The merchandise is yours, so you must price it.

In a matter of this sort the one who is more powerful generally speaks first ; but when terms are being
sought the one who is weaker is wout to speak first. Plutarch, Sulla [xxiv=p. 467], says: ‘It
is their part to speak first who have need of peace; it is sufficient for the victor to be silent.’

Quin-
tilian,
Declama-
tions,
ecxlviii
[cecxlin].

[Livy,
XXX.
Xxx. 24.]

Dig Ii,
XV. 39.

[N1co-
machean
Ethws,
VIII. xv ]

(I. exxiir.]

814 On the Law of War and Peace [Book III

man who grants peace and not to the one who asks for it. So likewise
an interpretation is adopted against the seller; for he has himself
to blame for not speaking more plainly.

The other party, however, could rightly accept, to his own
advantage, a condition which admitted of several interpretations.
[580] This is in harmony with what Aristotle said: ‘ Where friend-
ship exists for the sake of advantage, there the advantage of the one
who receives is the measure of what is due.’

XXVII.—Distinctions are drawn between furnishing a new cause for
war and breaking a treaty

Of daily occurrence is the discussion of the question, when
should a treaty of peace be considered broken? This the Greeks call
a ‘breach of faith’. It is, in fact, not the same thing to furnish
a new cause for war and to break a treaty; but there is a great differ-
ence as regards both the penalty incurred by the one at fault and
the relieving of the innocent party from his pledge in other matters.

A treaty of peace is broken in three ways: by acting either
contrary to what is involved in every peace, or against what was
expressly stated in the treaty of peace, or against what ought to be
understood from the nature of every peace.

XXVITI.—How a treaty of peace may be broken by acting contrary to

what 15 contained in every peace

A violation of what is involved in every peace will take place if
a warlike attack is made, especially when no new cause is presented.
If the fact can be alleged with probability, it is better to believe
that the wrong was committed without faithlessness than with it.
This statement of Thucydides hardly needs mention: ‘ Not those
wha ward off force with force break the peace, but those who are
the first to make the attack.’ }

Having established this point, we must see by whom, and against
whom, the armed attack which breaks the peace is made.

1 See Ammianus Marcellinus, beginning of Book XXIX [XXIX. i. 3]. He speaks thus of the
Romans; ‘Intentionally retreating, that they might not be the first to do hurt to any one of the
enemy with the sword and be judged guilty of having broken the treaty, they joined combat only
under the stress of absolute necessity.’

According to Procopius, Persian War, Book II [II. iii=p. 94 B], the Armenians said in their speech
to Chosroes: ‘They do not destroy peace who are first in arms, but they who, in time of peace, are
first detected plotting against the others.’ In the same author, Vandalic War, Book II [II. xi=
p- 259 C], the Moors say: [590] ‘They do not break treaties of peace who have been oppressed by
Injuries and after making complaint openly transfer their allegiance to others, but they who do
violence to those that wish to live as allies. If under such conditions any take their possessions and
go over to the other side, they do not make God their enemy ; but those do who seize the property
of others and force the owners into the perils of war.’

Chap. XX] On Good Faith in Ending War 815

XXIX.—W hat if allies have made an attack ?

I see that there are some who think that if those, who have been
allies, make such an attack, the treaty of peace is broken. And I do
not deny that an agreement can be made on such terms, not, to be
sure, that one people should be subject to punishment for another’s
act, but that peace should not seem to have been finally made, but
should remain subject to a condition depending partly on intention,
partly on chance.

We ought not, however, to believe that a peace has been made
in this way, unless the fact is perfectly clear. Such an arrangement
is irregular, and not in harmony with the common desire of those
who are making peace. Therefore those who made the attack without
the aid of others will be responsible for breaking the treaty, and the
tight to wage war will exist against them and not against the others.
In opposition to this view the Thebans formerly spoke against the
allies of the Spartans.

XXX.—W hat if subjects have so acted? How their action should be
considered as approved

If subjects do anything by armed attack without public orders,
it will be necessary to see whether the act of individuals can be said
to have been publicly approved.

From what we have said above, it can easily be understood that
to show public approval three requisites are necessary: knowledge of
the act, power to punish, and neglect to punish. Knowledge is
shown by the fact that the acts are manifest, or have been made
subject of complaint. Power is assumed, unless the lack of it is
apparent. Neglect is evidenced by the expiration of the period of
time ordinarily taken for the punishment of crimes in each state.
Such neglect is equivalent to a decree; and in this sense the state-
ment of Agrippa in Josephus should be taken, ‘ that the king of the
Parthians would consider the peace broken if his subjects should take
up arms against the Romans’.

XXXI.—W hat tf subjects should engage in warfare under the command
of others ?

The question is frequently raised, whether the rule just given
holds if subjects do not take up arms on their own account but serve
under others who are carrying on war. Certainly according to Livy
the people of Caere, in offering an excuse for themselves, say that
their citizens did not serve with the public consent. Also the Rhodians
had the same defence.

1569-27 31

Pausanias,
IX fi 5].

II xm.
2 ff.

[Jewish
War,
IT. xvi. 4.]

VII [xx.
5].

Gellius,
VII. ii
[VI. iii. 5].

XVII [iv.
5].

[XXXII.
Xxxiv. 5 ]

Livy,
V [xvii. 9].

Digest,
XLII.
XVI.I.§ 17,

816 On the Law of War and Peace [Book III

It is nearer the truth to consider that such service ought not
to be permitted, unless it is made apparent, by plausible arguments,
that a different point of view has been adopted. This sometimes
happens now in accordance with the ancient example of the Aetolians,
who held it right to take plunder from a plunderer.* Polybius ?
says that the force of this custom was that, though they were not
themselves at war, but others, their friends or allies, were warring,
it was nevertheless [581] lawful for Aetolians without a public
decree * to serve on both sides and to take plunder from both. Of
the same people Livy says: ‘ They permit their young men to serve
against their own allies, omitting merely the public authorization ;
and often opposing armies have Aetolian auxiliary troops on both
sides. Formerly the Etruscans, though refusing aid to the Veientes,
did not hinder any of their youth from going as volunteers to that
war.’

XXXII —W hat if harm has been done to subjects ? Herein a distinction

15 made

I. Again, a treaty of peace ought to be considered broken,
not only if an armed attack is made on the whole body of the state,
but also if such an attack is made on its subjects, of course without
a new cause. For peace is made in order that all subjects may be
safe. Peace, in fact, is an act of the state on behalf of the whole
body and on behalf of its parts. Even more, if a new cause arises,
by the peace it will be permissible for them to defend themselves
and their property. For, as Cassius says, it is natural to repel arms
with arms. Consequently among equals it is not to be thought easy
to give up this right. But it is not permissible to punish, or to recover
stolen property, by force, except after judgement has been refused ;
for these matters admit of delay, while self-defence does not.

2. But if subjects commit wrongs so continuously,‘ and in
a Manner so contrary to the law of nature, as to warrant the belief
that they are acting wholly without the approval of their rulers, and
if they cannot be brought into court, as in the case of pirates, it will
be lawful both to recover property from them and to take vengeance
on them, as if on persons who had been surrendered to us. But it
is in truth contrary to the conditions of peace on that account to
attack others who are innocent.

1 Plautus, Truculentus [line 567]:
Plunder from plunder I take.
* See the same author in the Excerpia [Excerpia de Virtuithus et Vints, 6=IV. iii. 1~2].
; Be ane: Book TV [V. xiii}, tells the same of the Sabirian Huns in his own time. |"
* So Augustus decided on of Herod against Syllaeus; Josephus, [Antiquities of the Jews,]
AVL xvi [XVI. x. 8].

Chap. XX] On Good Faith in Ending War 817
XXXTII.—What if harm has been done to allies? Herein likewise

a distinction 1s made

1. Also an armed attack made upon allies breaks a treaty of
peace,* but only an attack upon those allies who have been included
in the terms of peace, as I showed in examining the controversy over
Saguntum. Qn this principle the Corinthians insisted in the speech
which is found in the sixth book of Xenophon’s Affairs of Greece :
‘We have all taken oath to all of you.’

Further, if the allies themselves have not made the compact,
but others for them, the same rule will nevertheless have to be applied,
after it 1s fully settled that those allies have ratified the treaty of
peace. For so long as it is still uncertain whether they wish to
ratify it they are to be considered as enemies.

2. The case is different with other allies, such as those united
by ties of blood and marriage, who are neither subjects nor named
in the treaty of peace. Yet it does not follow, as I have said above,
that war cannot be undertaken on that account, but it will be a war
from a new cause.

XXXIV.—How a treaty of peace may be broken by acting contrary to

what has been stated in the peace terms

As I have said, a treaty of peace is broken also by acting contrary
to what has been stated in the peace terms. Under action, moreover,
is included the failure to do what one should, and when one should.

XXXV.—W hether a discrimination ought to be made between the articles
of the treaty of peace

I shall not here admit a differentiation of the terms of peace
into those that are of greater and those that are of less importance.
For everything that has been included in the treaty of peace ought
to seem important enough to be kept. Goodness, nevertheless, and
especially Christian goodness, will more easily pardon lighter faults,
especially if repentance is added, so that the following is in point :

Who sin regrets, is almost innocent.

But in order that peace may be still more securely safeguarded it
will be wise to add to the topics of minor importance ® the provision
that the treaty of peace is not to be broken by anything done in viola-
tion of these, or that arbitration should be tried before it is per-
missible to take up arms, as was provided, according to Thucydides, in
the Peloponnesian treaty.

1 De Thou, Book LXV, year 1578. There is also something pertaining to this in Haraeus, in his
history of Brabant, vol. II, for the year 1556.

* See an excellent example in the peace treaty of Justinian, between Justinian and Chosroes.
Menander Protector has it [frag. 11, p. 10, edit. Dindorf].

3.12

Il. xvi. 13.

[VI. v. 37.]

Caepolla,
Constlia,
dexc.
Decio,
Consilta,
dxxxi.

Seneca,
Agamem-
non [243].

See above,
II. xv. 55.

VII [V.
Ixxix].

IIT. xix.
13-14

See above,
III. xix
[13 f£.].

818 On the Law of War and Peace [Book III

XXXVI.—W hat tf a penalty has been added ?

And I am fully of the opinion that this seems to have been the
intention, if any special penalty [582] has been added;* not
because I do not know that a contract can be so made that the one,
to whom the injury has been done, may have a choice, whether he
prefers the penalty or withdrawal from the agreement, but because
the nature of the business requires what I have said. This principle
indeed is agreed upon, and has both been stated by us above and
approved by the authority of history, that a treaty of peace is not
broken by the party who fails to stand by it after the other has broken
it; for he was only bound conditionally.

XXXVIL.—W hat if necessity has hindered fulfilment ?

But if necessity is the cause why one party has not fulfilled his
promise, as, for example, if the thing has been destroyed or lost, or
the act rendered impossible by some chance, the treaty of peace will
not be considered as broken; for, as I have said, a treaty is usually
not dependent on a chance condition. But the other party will
have his choice, whether he prefers to wait, if there is any hope
that the promise may be carried out later, or to receive an equivalent
in estimated value, or to be freed from mutual engagements corre-
sponding with that item or of equal value.

XXXVITI.—Peace continues, if the one injured so desires

Certainly even after a broken agreement it is within the power
of the injured party to preserve peace, as Scipio did after many
treacherous acts of the Carthaginians ; no one frees himself from an
obligation by acting contrary to it. And if the provision has been
added, that the treaty of peace should be considered broken by such
an act, this provision ought to be considered as added merely for the
benefit of the innocent party, in case he wishes to take advantage of it.

XXXIX.— How peace may be broken by acting contrary to what belongs
to the special nature of every peace

Lastly we said that a treaty of peace is broken by doing what is
contrary to the special nature of the peace.

XL.—W hat falls under the term friendship ?
1. Accordingly, acts that are contrary to friendship break a

treaty of peace which was entered into under the terms of friendship.

* As in the treaty of the Goths with the Franks ; see Procopius, Gothic War, I [I. xii=p. 342 B].

Chap. XX] On Good Faith in Ending War 819

For whatever the duty of friendship by itself demands of other men
ought by the right of the agreement to be performed in such a case
as this also. To treaties of friendship (since Pomponius teaches us
that there is also a kind of treaty not made for the sake of friendship),
and not to every kind of treaty, I refer many matters arising out of
injuries inflicted without force of arms, and insults, which are fre-
quently discussed by legal experts; and to such treaties I refer the
statement of Cicero: ‘ If any wrong has been committed after a return
to friendly relations, it should be thought not due to neglect but
a violation, and imputed not to imprudence but to faithlessness.’
But in such cases also the motive of ill-will should as far as possible
be eliminated from the act.

2. Consequently, if a wrong has been done to a person inti-
mately connected with the party with whom the peace was made,
or to a subject, it will not be considered as done to the party himself
unless the wrong was done openly as an affront to him.

This principle of natural justice is followed by the Roman laws
in cases of cruelty in the treatment of slaves. Adultery, also, and
violation of chastity, will be referred rather to lust than to rupture
of friendly relations, and the seizure of another’s property will make
the aggressor guilty of a new act of greed rather than of the breaking
of faith.

3. When no new cause is presented, threats that are truly
savage are inconsistent with friendly relations. To this head I shall
refer also the building of fortresses on the boundaries, not for defence
but for the purpose of inflicting harm; and an unwonted levying
of troops, if it shall be apparent, from satisfactory indications, that
these are being levied against no one else than the party with whom
the peace has been made.

XLI—W hether it 15 contrary to friendship to receive subjects and
exiles

I. It is not contrary to friendship to admit individual subjects *
who wish to migrate from one government to another. Such liberty
in fact, as I have said elsewhere, is not only natural but also advan-

tageous.

1 Solon says [Plutarch, Solon, xxiv=p.91 F]: ‘He did not allow any strangers to be enrolled in
the list of citizens except those who had been banished for ever from their own country, or had moved
to Athens with their entire household in order to practise some trade.’ According to Appian, Selections
on Embassies, no. xxv [== Macedonian Affairs, xi. 6], Perseus said: ‘I have done this in accordance with
the common right of mankind, as you also receive those who have been expelled from other places.’
This common right is usually confirmed and strengthened by treaties.

See the peace of Antiochus in Polybius, Selectzons on Embassies, no. xxxv [=XXI. xlii. 18], and in
Livy (XXXVI. ae ; the peace between the Romans and Persians in Menander Protector (frag.
II, p. 10, edit. Dindorf]; and Simler concerning the treaties among the Swiss. Strabo, Book XVI
[XVI. ii. 14], bears witness: ‘While the kings of Syria were fighting with each other, the Aradians
obtained the right to admit fugitives, but not to permit their departure.’

Digest,
XLIX,
XV. 5.

For
Gabinwus
[see
Jerome,
Apology
against
Ruf, I 1.

Digest,
XLVII.

x. 15

§ 35.
Inst., IV.
iv. § 3.
Alexander,
Constlia,
II, no 3.

IT, v. 24

(II. v. 25 ]

XLII
(xl. 7].

[i=p
105 c]

(III. vit.
8.]

II. xxl.
3 ff

Pausanias,
V [iv. 2].
[Livy,

I. xxiv.]
[Stobaeus,
Florile-
gium, vii.
67.)

820 On the Law of War and Peace

[Book III

Under the same principle I include the granting of asylum to
exiles. For over exiles the state has no right, as I have noted else-
where, quoting Euripides. In Livy Perseus rightly inquires: ‘ What
is accomplished by sending any one into exile, if there is not going
to be a place anywhere for the person exiled?’ In the second speech
On Leuctra, Aristides says: [583] ‘It is a common right of mankind
to admit exiles.’

2. As I have said elsewhere,’ it is clearly not permissible to
admit towns or large aggregations, which constitute an integral
part of a state. It is equally unpermissible to admit those who, by
reason of an oath or in some other way, are under an obligation of
service or of slavery. Moreover we have previously stated that
among certain peoples the same rule has been introduced by the law
of nations concerning those who are slaves by fortune of war. But
also we have treated elsewhere of the surrender of those who, though
not driven into exile, are seeking to escape a justly deserved penalty.

XLII.—How war may be ended by drawing lots

The result of a war cannot in all cases be made subject to the
chance of drawing lots, but only in those cases in which the issue
is one over which we have full power. For the obligation of the
state to protect the life, chastity, and other rights of its subjects,
and of the king to protect the welfare of the state, is too great to
permit the disregard of those considerations which stand in the
most natural relation to the defence of themselves and others. Never-
theless, if on a careful estimate the party attacked in an unjust war
is so far inferior that there is no hope of resistance, it is apparent
that a decision by lot can be offered, in order that a certain peril
may be avoided by recourse to an uncertain one. This, in fact, is
the least of the evils.

XLITI.—How war may be ended by a set combat ; and whether this is
lawful

1. There follows a much disputed question concerning combats
which are agreed upon with definite numbers, for the sake of ending
a war; such combats, for example, with one on each side, as that of
Aeneas and Turnus, or Menelaus and Paris; with two on each side,
as that between the Aetolians and the Eleans; with three on each
side, as that between the Horatii, who were Romans, and the Curatii,
who were Albans; or with thirty on each side, as that between the
Lacedaemonians and the Argives.

1 II. v.24. See also Bizarri, Book XII.

Chap. XX] On Good Fatth in Ending War 821

2. If we consider only the law of nations, in a strict sense,
there should be no doubt that, according to it alone, such contests
are lawful; for this law permits the killing of enemies without dis-
tinction. If, again, the opinion of the ancient Greeks and Romans,
and of other nations, were true, that each man is the master of his
own life without restriction, then such combats would not lack moral
justice also. But I have already several times said that this opinion
is in conflict with true reason and the precepts of God. Elsewhere
I have shown, both by reason and by the authority of the Sacred
Writings, that whoever kills a man on account of things which we
can do without sins against the law of love for his neighbour.

3. Let us now add that a man sins also against himself, and
against God, who values so cheaply the life which was granted to him
by God as a great favour. If the issue at stake, such as the safety
of many innocent persons, 1s worthy of war, we must strive with all
our strength to win. To use a set combat as an evidence of a good
cause, or as an instrument of divine judgement, is unmeaning, and
inconsistent with the true sense of duty.

4. There is only one condition which can render such a combat
just and patriotic, from the point of view of one side merely; that
is, if otherwise the expectation is in all respects warranted that the
party supporting the unjust cause 1s going to be the victor with
great slaughter of innocent persons. He, in fact, should be subject
to no censure who prefers to fight in the way that will give to him
the greatest probability of success. But this also is true, that some
acts, which are not done rightly, are not approved as right by others,
but are held permissible for the avoidance of more serious evils
which cannot otherwise be escaped; as in many places base usurers
and prostitutes are tolerated.

5. Therefore, as I previously said, when it is a question of
avoiding war, if two persons, who are striving for the sovereignty,
have prepared to contend with arms against each other, the people
can allow such a combat in order that a greater calamity, otherwise
imminent, may be avoided; so the same thing will have to be said
when it is a question of ending a war. Thus [584] Cyrus chal-
lenged the Assyrian king ;* and, according to Dionysius of Halicar-
nassus, Mettius said that it would not have been an unfair thing
for the leaders themselves of the peoples? to decide the question

1 Long before that time Hyllus challenged Eurystheus. See Euripides, Children of Hercules [800 ff.].

* Such is the reply which the inhabitants of Adrianople made to Mahomet, referring to him and

to Musa Zeleb; Leunclavius, Book XI. So Cunibert, king of the Lombards, challenges Alachis ;

Paul Warnefrid, V [V. xl]. Thus Pharnacus wished to fight with the leader of the Sauromatae for

the fortress of Cherso, in order that the populace might not be subjected to peril on account of their

dispute, as eS Porphyrogenitus relates in the chapter on the fortress Cherso [De Admmintstrando
Imperto, lili, p. 150}.

See Pontanvs, Danish History [Book V, p. 151], for an example of a single combat -[s91]

II xix. 5
and xxl 1
[xx1. rr].
II.1. 12 £f

Thomas,
IT. i1. qu.
95; art. 8,
and Ca-
jetan
thereon.

Cajetan,
as cited
above.

II, xxi

[xo].

Aegidius
Regius,
disp. 32,
dub. 2,
no. r8.
(Xen.,
On the
Training
of Cyrus,
V. ili. 5.]
III [xii. 3}.

III fi. 3].

Hero-
dotus, I
[Ixxxi1].

Thucy-
dides, I
fli and

liv}.

XVI [i].

822 On the Law of War and Peace [Book III

by fighting with each other, if the contest had been for their own
power or rank and not for that of their peoples. So we read that
the Emperor Heraclius 1 fought in single combat with Chosroes, the
son of the Persian king.

XLIV.—W hether the act of kings in such cases binds their peoples

On the other hand, those who thus refer a controversy to the
outcome of a combat can indeed deprive themselves of whatever
right they themselves possess, but in those kingdoms which are not
patrimonial they cannot also give a right to another who does not
possess it. In such cases, therefore, in order that a treaty may be
valid, it is necessary to add the consent both of the people and of
those persons, already born, who have the right to the succession.
In fiefs which are not free the consent of the lord or seigneur of the

fief also is required.

XLV.—Zn such combats who ts to be judged the victor ?

1. Often in such combats the question is raised, which of the
two should be considered the victor.?, Only those can be considered
vanquished on whose side all have either fallen or taken to flight.
So, according to Livy, withdrawal to one’s own territory or towns
is a sign of defeat.®

2. In three famous historians, Herodotus, Thucydides, and
Polybius, three disputes about victory are presented, and of these
the first refers to a set combat. But if any one views the evidence
correctly he will find that in all these contests the parties separated
without a true victory. For the Argives were not put to flight by
Othryades, but had gone away at the coming of night, thinking that
they were victors, and intending to report the victory to their people.
Neither had the Corcyraeans put to flight the Corinthians, who,
after having fought successfully, had perceived a strong Athenian
fleet and had gone away in good order without making any test of
strength with the Athenians. Philip of Macedon had indeed captured
a ship belonging to Attalus, after it had been deserted by its men,
but he had completely failed to put the fleet to flight; and so, as
Polybius remarks, he conducted himself, rather than considered him-
self, as a victor.

for the kingdom. See also what the historians relate concerning the challenges between the Emperor
Charles V and Francis I, king of France.
1 See Aimoin, IV. xxi, and Fredegarius, lxiv.
* Ennius [frag. 330, in Servius, On the Aeneid, XI. 307]:
Who conquers is not victor, if the vanquished owns it not.

See Scaliger on the words of Festus, herbam do.
* And in Guicciardini, Book II.

Chap. XX] On Good Fatth in Ending War 823

3. The other evidences—the collecting of spoils, the giving up
of dead for burial,’ and challenging to battle a second time, which
in the passage cited and in Livy you sometimes find mentioned as
signs of victory—prove nothing in themselves, excepting in so far
as, IN connexion with other signs, they bear witness to the flight of
the enemy. Surely in case of doubt the one who has retired from the
field of battle may be presumed to have fled. When, however, there
are no sure proofs of victory, the issue remains in the same condition
as before the battle, and must be referred either to battle or to new
agreements.

XLVI.—How war may be ended by arbitration ; and here arbitration
1s understood to be without appeal

1. Proculus teaches us that there are two kinds of arbitrators.
One is of such a sort that we ought to render obedience, whether
he is just or unjust; and this kind of arbitration, he says, is found
when the parties resort to an arbitrator under mutual promises to
abide by his decision. ‘The other deals with matters of such a kind
that they ought to be referred to the decision of a just man; and of
this type we have an example in the reply of Celsus: ‘ If a freedman’,
he says, ‘ has sworn to give as many services as the patron has judged
proper, the decision of the patron will not be valid, unless the freed-
man has thought it fair.’

While it was possible for this interpretation of an oath to be
introduced by the Roman law, it is not in harmony with the simple
meaning of the words viewed by themselves. Nevertheless this
remains true, that an arbitrator can be chosen in either of two ways.
Either he is charged with the task of reconciliation only, as we read
that the Athenians were when selected as arbitrators between the
Rhodians and Demetrius; or he serves as one whose decision must
be absolutely obeyed. It is the latter class with which we are here
dealing, and of which we said something above, when we spoke of
the methods of avoiding war.

2. Although municipal law may make provision for arbitrators
to whom resort is had under promises on both sides, [585] and
in some places has provided that it shall be lawful to appeal from
them and to make complaint of injustice, nevertheless such a pro-
cedure cannot become applicable in relation to kings and peoples.”

1 Plutarch, Agesilaus [xix=p. 606 B], says: ‘ But after the enemy had sent to ask permission to
bury their dead he granted it, and having in that manner obtained a testimony of victory he went
away to Delphi.’ Likewise in the Nicias [vi=p. 527 AB]: ‘ And yet according to established and accepted
custom those who had received permission to bury their dead were thought to have given up all claim
to the victory, and those who had obtained such a request did not have the right to set up a trophy.’

2 Mariana, XXTX. xv; Bembo, IV [fol. 62]. There are many examples of peace made by
arbitration in Kromer’s Poland, Books X, XVI, XVIII, XXI, XXTV, XXVIT, XXVIII. There is one
also in the second book of the Danish History by Pontanus. Cf. also above, II. xxii, 18 [II. xxiii. 8].

XAIX
and XL.

Digest,
XVII.
il. 76.

Digest,
XXXVIII.
1. 30.

II xxii
(TI, xxiii.
8]

Natural
Mstory,
preface
[19]

On
Benefits,
II wii

{Iil. vit.

5]

Rhetorte,
I, xx

[I. xi.
IQ].

824 On the Law of War and Peace [Book III

For here there is no higher power, which can either hold fast or
loosen the bond of the promise. Under such conditions, therefore,
the decision of arbitrators, whether just or unjust, must stand abso-
lutely, so that one may rightly apply here the saying of Pliny: ‘ Each
makes the man whom he chooses the supreme judge of his case.’ It
is, in fact, one thing to make inquiry concerning the duty of the
arbitrator, and another to inquire concerning the obligation of those
who promise.

XLVII.—In case of doubt 1t 1s understood that arbitrators are bound to
decide according to law

1. In respect to the duty of an arbitrator, the point must be
considered, whether he has been chosen in the place of a judge, or
with somewhat larger powers. Seneca seems to think the latter charac-
teristic of an arbitrator, when he says:

The condition of a good case seems to be better if it is referred to a judge rather
than to an arbitrator; for the rules of law apply to the former and set certain limits,
which he may not pass. In the case of the arbitrator, a religious scrupulousness, free and
unchecked by restraints, can both take away and add to, and direct the decision not as
the law or justice advises, but as humanity and pity move.

Aristotle also says that ‘it is the part of a fair and kindly man
to prefer to have recourse to an arbitrator rather than to go to
law’; and he adds as the reason, ‘ For the arbitrator has regard
to what is fair, but the judge follows the law. Indeed the arbitrator
was brought into existence for this very purpose, that equity might
prevail,’

2. In the passage just quoted equity does not properly mean,
as elsewhere, that division of Justice which interprets more narrowly
the general import of law according to the intention of the lawgiver,
for such interpretation has been committed to the judge also; rather
it means everything which is better done than left undone, even
outside of the rules of justice properly so called.

Such arbitrators, however, as are common between private
persons and citizens of the same country are especially recommended
also to Christians by the Apostle Paul (z Corinthians, vi). Yet
in a case of doubt it ought not to be understood that so great
power has been granted; in doubtful cases, in fact, we follow the
narrowest interpretation. But this statement is especially in point
in respect to those who hold sovereign power; for since they have
no common judge, we must consider that they have restricted the
arbitrator by those rules by which the office of a judge is usually
restricted.

Chap. XX] On Good Faith in Ending War 825

XLVIII.— Arbitrators ought not to decide concerning possession

Nevertheless this observation should be made, that arbitrators
chosen by peoples or by sovereigns? ought to render a decision
regarding the main point at issue, but not in regard to possession.
For decisions regarding possessions belong to municipal law; by the
law of nations the right of possession follows ownership. Conse-
quently, while the case is under advisement, no change ought to be
made, not only to avoid prejudice, but also because recovery is difficult.
In his account of those who served as arbitrators between Carthage
and Masinissa, Livy says: ‘The commissioners made no change in
the right of possession.’

XLIX.—wW hat 1s the force of surrender pure and simple ?

I. The acceptance of an arbitrator is of a different sort when
any one entrusts the decision regarding himself to an enemy; for
this is pure surrender, which makes the one who surrenders a subject,
and confers the sovereign power on him to whom the surrender is
made. The Greeks call this ‘ yielding the power over oneself’. So
we read that the Aetolians were asked in the senate, whether they
would leave the decision regarding themselves to the Roman people.
According to Appian the advice of Publius Cornelius Lentulus in
regard to the Carthaginian state at the end of the Second Punic
war was as follows :

Let the Carthaginians entrust themselves to our decision, as conquered peoples are
accustomed to do, and as many have done heretofore. We shall then look into the matter,
and if we shall have granted anything to them they will be grateful tous; [586] for
they will not be able to call it a treaty.

That, furthermore, makes a very great difference. So long as we make treaties with
them they will always be finding pretexts, as if wronged in respect to some point of the
treaty, in order that they may break it. For openings for controversy always remained,
since many points are of doubtful interpretation. But when we have taken away their
arms from them as having surrendered, and have brought their very persons under our
power, then at length they will understand that they have nothing that is their own ;
then they will lose heart, and whatever they may have received from us they will gladly
accept as if bestowed from another’s bounty.

z. But here we ought also to distinguish what the conquered
ought to endure; again, what the victor can do lawfully, what even
in conformity with the full discharge of duty, and finally, what it
is most fitting for him to do.

After the surrender there is nothing that the vanquished may
not have to suffer. He is, in truth, already a subject; and, if we
consider only the strictly legal rights of war, he is in such a position that

1 The Duke of Savoy said this in the contest about Saluzzo. See de Serres [or rather, his con-
tinuator] on Henry IV.

(XL. xvii.
6]

Livy,
XXXVII
[xlix. 4].
XIV
[Appian,
Punic
Wars,
XIV.

ix. 64].

XXXVII
[vui. x].

TIT. vi 4.

VI, 1
IXXVIII
XXXIV. 7]

III. xi.
18 [16].

III. xv. 12.

AITI
[xx 6].

(XIII.
xxiil. 5.]

[Crvil
Wars, V.
Vv. 45.]

826

everything can be taken from him—his life, his personal liberty, and
the property not only of the state but also of individuals.

In another passage Livy says: ‘The Aetolians, having sur-
rendered at discretion, were afraid that vengeance would be wreaked
upon their persons.’ Elsewhere I have cited the following: ‘When
all things have been surrendered to him who is the more powerful
in arms, it is for the victor to judge, and to decide, what he wishes
the conquered to have, what he wishes them to give up by way of
punishment.’ The following statement of Livy bears upon the same
point :

On the Law of War and Peace [Book III

It was an ancient custom of the Romans not to assume sovereignty over a people
as conquered—a people with which they were not united in friendship either by treaty
or by common laws—until all things, divine and human, had been surrendered, hostages
had been accepted, arms taken away, and garrisons placed in the cities.

Also we have shown that the putting to death of those who had
surrendered was sometimes lawful.

L.—W hat is the duty of the victor toward those who make an uncon-
ditional surrender ?

1. But in order that the victor may not do anything unjustly
he ought first to see to it that he kill no one, unless this fate is deserved
by the prisoner’s own act; again, that he take nothing from any one
except as a lawful penalty. Moreover within this limit,’ so far as
one’s own safety allows, it is always the part of honour to incline to
clemency and generosity; sometimes, in consideration of the cir-
cumstances, such a course is even made necessary by the rule of
custom.

2. As I have said elsewhere, wars are well ended when they
terminate with pardoning. According to Diodorus, Nicolaus of
Syracuse says: ‘ They surrendered themselves with their arms,
relying on the clemency of the victor. Therefore it would be shameful
for them to be deceived in their expectation of humane treatment
on our part.’ Afterward he adds: ‘ Who of the Greeks ever thought
that those ought to be punished relentlessly who entrusted them-
selves to the clemency of the victor?’

In Appian Octavius Caesar, addressing Lucius Antony, who had
come in order to surrender, says :

If you had come to make a treaty, you would have found me both a conqueror and
a man incensed. by wrong-doing. Now, since you yield yourself, your friends, and your
army to my decision, you take away my anger, you take away also that power which you
would have been forced to yield to me in a treaty. For now I am obliged to take into

__} See the famous example of Ferdinand, king of Leon, in Mariana, XI. xv. Also recall what I have
said above, ITT. xi. 14-15.

Chap. XX] On Good Faith in Ending War 827

account, along with what you ought to suffer, also a second consideration, what it is right
for me to do; and I shall give preference to the latter.

3. In the Roman histories the expression ‘ to surrender oneself
to the good faith’, or ‘ to surrender oneself to the good faith and
clemency ’, is often found. So in Livy, Book XXXVIT: ‘Ina kindly
manner he listened to the embassies from neighbouring peoples
surrendering their states to his good faith.’ Also in Book XLIV,
where the narrative concerns [587] King Perseus, we read:
“Since Paulus was insisting that he should surrender himself and
his possessions to the good faith and clemency of the Roman people.’
Still the fact should be recognized that by these words nothing else
is understood than absolute surrender; and the word translated
good faith * in these passages does not suggest anything else than the
probity of the victor, to which the vanquished commits himself.

4. In Polybius and Livy there is a famous story ? about Phanaeas,
the ambassador of the Aetolians, who in his speech to the consul
Manius yielded as far as to say: ‘ Therefore the Aetolians have
resolved to surrender themselves and their possessions’, as Livy
states, “to the good faith of the Roman people.’ In response to
a question of the consul, he affirmed this a second time; then the
consul demanded that certain persons who had stirred up the war
should be surrendered to him without delay. Phanaeas took excep-
tion to this and said: ‘ We have surrendered ourselves to your good
faith, and not to slavery,’ adding that what was ordered was not
consistent with Greek custom. The consul replied that he did not
care what the custom of the Greeks was; that according to Roman
custom he had power over those who had surrendered to his dis-
cretion; and he gave orders that the ambassadors be put in chains.
In the Greek author is the question: ‘ Are you here discussing duty
and propriety, when you have already surrendered yourselves to our
good faith?’

From these words it is clear with how great impunity, and
without violating the law of nations, he can act to whose good faith
a people has surrendered. Yet the Roman consul did not take advan-
tage of this power, but both dismissed the ambassadors and gave to
the council of the Aetolians an opportunity of deliberating anew.

Similarly the Romans are said to have replied to the Faliscans,
that they had been given to understand that the Faliscans had sur-
rendered themselves not to the power, but to the good faith of the

1 Polybius says [Selections on Embassies, xiii XX. ix]: ‘Among the Romans the same force is
found in the expressions “‘ to entrust oneself to another’s faith” and “ to give to the victor unrestricted

power of deciding concerming oneself”’.’ ; .
The Greeks say, ‘to surrender themselves to justice’, as in Thucydides, Book III [III. lxvii],
or ‘ to yield the power over themselves’, as in Diodorus Siculus, Book XIV [XTV. cxi].
4 Selecitons on Embassies, no. xiii [= XX. x].

[ix. 7.]

tiv. 7.]

Livy,
XXXVI
[xxviir 1x]

Valerius
Maximus,
VI. iv
(VI. v rz].

Livy,
VIII

ii x3].

On
Clemency,

IT, vii [4].

I iil. 17

828 On the Law of War and Peace [Book III

Romans. We read also of the Campanians, that they had come into
the good faith of the Romans not by treaty, but by surrender.

5. You would, in truth, not ineptly apply to the duty of him
to whom a surrender has been made this passage of Seneca:
‘Clemency possesses unlimited right of decision. It judges not
according to the letter of the law, but according to what is just and
good; and it may acquit, or assign a penalty as great as it will.’
And I do not think that it makes any difference whether the one
who surrenders says that he surrenders himself to the wisdom, or to
the moderation, or to the mercifulness of the victor. All these
words are merely gracious expressions. The fact remains, that the
victor becomes absolute master.

LI.—Concerning conditional surrender

Nevertheless there are also conditional surrenders. These either
safeguard the interests of individuals, that the safety of their lives,
or the freedom of their persons, or even certain property may be
reserved; or they make provision for the whole body of the people.
Such surrenders in some cases may even introduce a sort of mixed
sovereignty, as J have explained elsewhere.

LII—Who can, and should, be given as hostages ?

Hostages and pledges are accessories of treaties. I have said
that hostages are given? either of their own will, or by him who
holds the power and authority. For in the supreme civil authority
is included the right over the acts as well as over the property of the
subjects. But the state or its ruler will be obligated to compensate
the person who suffers, or his relatives, for the inconvenience.

If there should be several persons, and it should make no differ-
ence to the state which of these should go as a hostage, it seems
clear that pains should be taken to have the choice settled by lot.

The lord of a fief does not possess the right to select a vassal as
a hostage unless the vassal is also a subject. For the fealty and duty,
which the vassal owes, do not go so far.

LITI.—W hat the right over hostages 1s

I have said that according to the strict law of nations a hostage
can be put to death ; but that is not also in accord with moral justice,
unless there is a fault on the part of the hostage meriting such punish-
ment. Hostages, moreover, do, not become slaves. Furthermore, by
the law of nations they can both hold property and leave it to their

In this work, III. iv. 14; see also III. xi. 18.

Chap. XX] On Good Faith in Ending War 829

heirs ; although the Roman law provided that their property should
go to the state treasury.

LIV.—Whether a hostage may lawfully escape

Is the question raised whether a hostage may lawfully make his
escape? It is agreed that he may not,if [588] at the beginning,
or afterward, he gave a pledge, in order that he might have more
liberty. Under other conditions it seems to have been the intention
of the state not to bind its citizen not to try to escape, but to give
to the enemy the power to guard him as it might wish.

Thus the deed of Cloelia can be defended. But, although she
had not herself done wrong, yet the state could not receive and
retain the hostage.’ So Porsenna said: ‘If the hostage is not sur-
rendered, the treaty will be considered as broken’; then we read:
‘The Romans restored the pledge of peace in accordance with the
treaty.’

LV.—W hether a hostage may be lawfully detained for any other reason

The obligation arising from the use of hostages, moreover, is
distasteful, not only because it infringes liberty, but also because it
arises from the act of another. Consequently, a narrow interpreta-
tion is here in point. Hence it follows that hostages given on one
account cannot be detained on another. This is to be understood as
applying in case some other promise has been made without the
addition of hostages.

If, however, good faith has already been violated in another
matter, or a debt contracted, the hostage can then be retained, not
as a hostage, but in accordance with the law of nations, according
to which subjects can be detained ‘ by reprisal’ (xar’ avdpodnpiar)
on account of an act of their rulers. Nevertheless provision may be
made that this should not happen, by adding an agreement regarding
the return of the hostages when the matter on account of which
they were given has been closed up.

LVI.—A hostage ts set free at the death of the one for whom he came as
hostage

One who has been given as a hostage, merely to take the place
of a captive or hostage, is set free at the death of the latter. For
Ulpian says that at the moment the latter dies the right of pledge

1 See Plutarch, Publicola [xix=p. 107 A] on this matter. To the verse of Virgil [Aeneid, VII. 651]:
And Cloelia broke her bonds and swam,
Servius adds, ‘bonds of the treaty’.

Digest,
XLIX,
XIV. 31

Livy,
TI [xiu.
6 ff.].

See
above,

I, v. ITT
(III. 11 3].

Digest,
XLIX.
xV. I5.

Syrian
Wars
(vin. 49].

XXXIV
fi 6]

II. xvi. 18
[II. xvi.
16].

II. xv 18
(II.xv 16].

Alberico
Gentili, De
Iure Belli,
II. xix.

On the Law of War and Peace [Book III

830

is destroyed, as in the case of a ransomed captive. Therefore, as in
Ulpian’s inquiry the ransom, which was to take the place of the
person, is not due, so here the person who was made the substitute
of another will not remain bound.

Thus according to Appian Demetrius not unjustly demanded
that he be released by the Roman senate, since he had been given
as a hostage in the place of Antiochus, and Antiochus had died.
Justin, following Trogus, says: ‘Demetrius, a hostage at Rome,
having learned of the death of his brother Antiochus, came before
the senate saying? ‘ that he had come as a hostage when his brother
was living, but, now that his brother was dead, he did not know for
whom he was a hostage.’

LVII.—Whether a hostage may be retained after the death of the king
who gave him

The decision whether a hostage may still be held after the death
of the king who made the treaty is dependent on the question treated
by us elsewhere, whether the treaty should be considered personal
or real. For accessories cannot cause us to withdraw from the rule
in the interpretation of the main articles, the nature of which the
accessories themselves ought to follow.

LVIII.—Sometimes hostages are under obligation as principals, and one
ts not bound for the act of the other

It should be added, in passing, that sometimes hostages are not
mere accessories to the obligation, but are in fact the principal party.
This would be the case, for example, when any one has promised
under contract to perform an act not his own, and because he is
bound for the resulting damage, if the act is not performed, his
hostages are bound in his place; and I have said elsewhere that
this seems to have been the decision regarding the Caudine treaty-
compact. On the other hand the opinion of those who hold that
hostages without their consent can be mutually bound for each
other’s acts is not only severe but also unjust.

LIX.—Of what sort is the obligation arising from pledges of property ?

Pledges of property have certain points in common with hostages,
and certain points peculiar to themselves. It is a characteristic
common to both, that they are retained even on account of another
debt, unless faith has been pledged to the contrary. It is a charac-
teristic peculiar to pledges of property that an agreement made

1 This word needs to be restored in the text to make the sentence grammatical.

Chap. XX] On Good Faith in Ending War 83r

concerning them is not taken as strictly as one concerning hostages.
For the matter is not equally distasteful, since things are made to
be held, but men are not.

LX.—When the right of redemption ts lost

This also I have mentioned elsewhere, that no length of time
can bring it about that a pledge of property should not be redeem-
able, if that is performed for which the pledge was given. For an
act, which has an old and familiar cause, is not supposed to arise
from anew cause. Thus the patience of the debtor should be ascribed
to the old contract, and not to the abandonment of ownership,
[589] unless inferences that are warranted suggest another inter-
pretation; as if a person, prevented at the time when he wished to
redeem a pledge, had allowed the matter to pass without mention for
so long a time that it might warrant the presumption of consent.

1569-27 3k

II. iv.
r7 [II iv.
r5].

[A enerd,

X. 532.]
Annals,
XIV
[xxx111],
and Hzs-
torres,

IIT (Ixxx1].
[Ihad,
XXII,
261 |
(VIII. i. 4.]

Nic. Eth.,
(I. 1115]
VIII [vi].

[On Nte
Eth , I.
xiv.]

[VI. i.]

Horace,
Satires,
I. 1ii
[129-32].

[I. xxv. 4.]

fix]

[s92] CHAPTER XXI

ON GOOD FAITH DURING WAR; HEREIN ALSO CONCERNING
A TRUCE, THE RIGHT OF SAFE-CONDUCT,
AND THE RANSOM OF PRISONERS

1.—What a truce is, and whether this interval is to be considered as
peace or war

1. Even during a war the sovereign authorities are accustomed
to grant certain rights, which, with Virgil and Tacitus, [ may call
‘intercourse of war ’, or with Homer, ‘ solemn agreements’. Among
these are included the truce, the right of safe-conduct, and the ransom
of prisoners.

A truce is an agreement by which warlike acts are for a time
abstained from, though the state of war continues. I say, ‘ though
the state of war continues ’, for, as Cicero says in the eighth Philippic,
there is no middle ground between war and peace. War, further-
more, is the name of a condition which can exist even when it does
not carry forward its operations.

Aristotle says: ‘It may happen that a man may be endowed
with virtue, and either sleep or pass his life in inactivity.’ Elsewhere
the same author says: ‘ Distance between places does not destroy
friendship, but hinders the exercise of it.” Andronicus of Rhodes
remarks: ‘An accomplishment may so exist that it accomplishes
nothing.’ Eustratius comments thus on the sixth book of the Nzco-
machean Ethics: ‘Skill considered in relation to power simply is
spoken of as potentiality ; but if compared with the action itself or
its exercise it is called a power, as the surveyor’s art in a sleeping

surveyor.’
Just as Hermogenes, though silent,! yet remains
A singer and the best of players; and Alphene,
Sly fellow, when his tools of trade were cast
Aside, and closed his shop, was still a cobbler.

2. In like manner, then, as Gellius also says: ‘ A truce is not
peace, for, though [593] fighting ceases, the war continues.’
Also in the Panegyric of Latinus Pacatus we read: ‘ A truce suspends
the acts of war.’ This I say that we may know that, if an agreement
has been made which is to be valid in time of war, this will be valid
also in a truce, unless it 1s clearly apparent that the agreement applies
not to the state of war but to its acts.

1 [599] Seneca, On Benefits, V. xa [IV. xxi. 4]: ‘ He is even eloquent who is silent.’
2 In the passage just cited, Seneca says: ‘He also is an artisan who is not supplied with the
tools for practising his trade.’

832

On Good Faith during War 833

On the contrary, if anything has been said in regard to peace,
this will not be applicable in time of truce; although Virgil spoke
of a truce as a mediatress of peace, and Servius, on the same passage,
as a temporary peace. So the Scholiast on Thucydides calls a truce
“an ephemeral peace in travail of war’; and Varro, a respite of military
operations, lasting a few days. All these are not definitions but
descriptions, and that, too, figurative. In the same class also is the
characterization of Varro, when he called a truce the vacation of
war; he might likewise have called it a slumber of war. Thus
Papinius Statius called the holidays, which were free from lawsuits,
peace. Aristotle called sleep the chain of the senses, and following
his example you may rightly call a truce a chain of war.

3. Gellius rightly criticizes the explanation of Marcus Varro,
which Donatus also follows, because Varro added the words ‘ lasting
for a few days’; he shows that truces are frequently given also for
hours, and I may add likewise for twenty, thirty, forty, and even
for one hundred years. There are examples of such truces in Livy,
and they disprove the following definition of Paul the jurist also:
‘A truce exists when, for a brief period and for the present time, an
agreement is made that the two sides refrain from attacking each
other.’

4. Nevertheless, if it shall be apparent that the sole and only
determining cause of an agreement was the cessation of warlike acts,
it may happen that what has been said of a time of peace will in that
case apply during the truce, not from the force of the word, but
from a sure inference as to the intention, regarding which we have
spoken elsewhere.

Chap. XXJ]

II.—T he derivation of the word

Moreover, it seems clear that the word imduciae (truce) is not,
as Gellius thinks, derived from inde uit 1am (then as now); nor
from endottu, that is, introgressu (an entering in), as Opilius proposes,
but [from znde otium] because inde, that is, ‘from a certain time’,
there may be otium (rest), just as the Greeks call a truce éxeyeipia
(a holding of hands).

It is, in fact, apparent, even from Gellius and Opilius, that the
ancients wrote this word with the letter ¢ and not ¢; and, though
now used as a plural, it was formerly without doubt also a singular.
The old spelling was indottia, for then they pronounced otsum as
oitium, from the verb oz#, which we now spell w#z, just as from poina
(now written poena) punio* is derived, and from Poinus (now Poenus)
Punicus comes.

1 See Servius, On the Aeneid, X [X. 24], on the word moerorum.
3K2

[A ened,
XI. 133 J

(I. xl.]
[Aulus
Gellius, I.
XXV. I.]

[Siuae,
IV. iv. 40.]

[On Sleep
and Vigil,
1, iii.]

I xx

[I. xxv].
On Te-
rence’s
Eunuch,
I.1. [line
6o].
Digest,
XLIX.
KV. 19 §1.

III. xvi.
2o [II.
XV. 20].

Gellius,
XIX. viii
[13].

XIX, viii.

On Te-
rence’s
Eunuch
[line 60]

Livy [X.
xlvi 14],
Plutarch,
Justin.

Angelus,
On Dig.,
II xiv

27. § I.
Martinus
Laudensis,
[De Bello,]
qu. 29.

IV [xxx.
I4].

On the Law of War and Peace [Book III

834

Just as from the plural ostia, osttorum has been derived the
singular Ostia, Ostiae,* so from indottia, indgitiorum has come indottia,
indoitiae ; hence indutia, the plural of which, as I have said, is now
in use. Formerly, as Gellius notes, it was also used in the singular
number. Donatus was not far out of the way when he wished to
explain imduciae from the fact that a truce furnished a rest for some
days.

A truce, then, is a period of rest in war, not a peace. And so
the historians use the term properly in saying, as they frequently
do, that a peace was refused, a truce was granted.

IIl.—A4 new declaration of war after a truce 15 not necessary

In consequence, after a truce there will be no need of a new
declaration of war. For when the temporary obstacle is removed
the state of war, which was not dead but sleeping, asserts itself, just
as the right of ownership and the power of the father assert them-
selves in a man who has recovered from insanity.

Nevertheless, we read in Livy that, in accordance with the decision
of the treaty priests, war was declared upon the termination of a truce.
The fact is, however, that the ancient Romans wished by those
unnecessary precautions to show how much they loved peace, and
how just the causes were by which they were drawn into war. This
is implied by Livy himself :

They had fought recently near Nomentum and Fidenae with the Veientes. [594]
A truce, not a peace, had been made, the limit of which had expired, but before that date
of expiration the Veientes had again taken up arms. Nevertheless heralds were sent, but

when on oath they demanded restitution, in the manner of our ancestors, their words
were not listened to.

IV.—How the period of time fixed for a truce ought to be reckoned

1. The duration of a truce is commonly made either a con-
tinuous period, as for one hundred days, or with the designation of
a fixed limit, as up to the first of March. In the former case the
calculation must be made exact to the minute. ‘This, in fact, is in
accord with nature; for the reckoning of time by civil days arises
from the laws and customs of peoples. In the other case doubt is
generally raised, whether the day, the month, or the year, which
has been fixed for the duration of the truce, should be understood
as reckoned inclusively or exclusively.

2. By nature, at any rate, there are two kinds of boundaries,
one within the thing, as the skin is the boundary of the body, and

1 And osirea, ostreae, was formed from ostrea, ostreorum.

Chap. XXT] On Good Faith during War 835

the second outside of the thing, as a river is the boundary of a country.
Boundaries which are fixed according to choice can be established
by both methods. But it seems more natural that the boundary,
which is a part of the thing,’ should be assumed. Aristotle says :
ett is called the boundary which is the extreme part of each
thing.

Such an assumption, furthermore, is not inconsistent with
practice. ‘If any one has said that something will happen before
the day of his death, that day also, on which he has died, is counted.’
Spurina warned Caesar of a danger which would not be delayed
after the fifteenth of March. When accosted on the fifteenth, he
said that the day had come, but had not yet passed.” This interpreta-
tion, then, is all the more to be adopted when the extension of time
contains an advantage in itself, as in the case of a truce, which spares
human bloodshed.

3. But the day ‘from’ which a certain measure of time is said
to begin will not be included in the measure, for the force of that
preposition is to separate, not to unite.

V.—W hen a truce begins to be binding

Incidentally I may add this, that a truce, and everything else of
the kind, is binding on the contracting parties immediately after the
agreement is completed. The subjects on both sides, however, begin
to be bound as soon as the truce has taken the form of a law, and
this requires some sort of publication abroad. As soon as the publica-
tion has been made, it begins to have a binding force on the subjects.
Nevertheless, if the publication has been made in one place only,
that force does not manifest itself at the same moment throughout
the whole area under governmental control, but only after a sufh-
cient time for carrying the news to the different places. Therefore
if in the meantime subjects have done anything contrary to the
truce, while they will not be liable to punishment, the contracting
parties will, nevertheless, be bound to make good the loss.*

VI—W bat ts lawful during a truce

1. What is lawful, what is not lawful in a period of truce, may
be understood from the very definition. For all acts of war are
unlawful, whether against persons or against property, that is, what-

1 Baldus, De Statutis, on the word usque; Bartolus, On Digest, XXXII. ili. 35, and On Digest,
I. ix. 12. Archidiaconus, On Decretum, II. xiii. 1. 1; Hieronymus de Monte, in his book De Fimibus,
chap. xxii.

2 Dio Cassius [XLIV. xviti] quotes the saying: ‘It is here, but has not yet passed.’ Appian
[Civil Wars, II. xxi. 149]: ‘The Ides are here, but have not yet . .

* As in the case of Scion in Thucydides, IV [IV. cxxii]. Therefore what Mariana (XXVIII. vit)

relates was done by the Spaniards in Italy cannot be defended.

Meta-
physics,

V. xvii [IV.
xvul].

Dig. L.
XV1. 133.

Suetonius,
Caesar, V
(Ixxxz].

Bartolus,
On Dig.,
Ii 9g,
Panorm.,
On De-
cretals, I.
ii. 2 (?),
and there-
on, Felinus,
no. 7.

[XL
XXVl1 9.]

{ Dagest,

XLIX xv.

19 §1]

XXXI
{xxxvill.
10].
Frontinus,
[Stratege-
maia,| II.
xiii [8].

[XLII
xivi. 9.]

836 On the Law of War and Peace [Book III
ever is done by force against the enemy. In a period of truce, in,
fact, all such acts are contrary to the law of nations; it was thus,
according to Livy, that Lucius Aemilius explained the matter in
a speech to his soldiers.

2. Even property of the enemy, which has come into our
hands by chance, will have to be restored, although it had been ours
before. For as regards the legal right, according to which such matters
have to be judged, the property in question has become theirs.

This is what Paul the jurist had in mind when he said that in
a time of truce the right of postliminy does not exist ; for postliminy
requires, as antecedent, the right of capture in war, but this right
does not exist in a truce.

3. On both sides it is lawful to go and to return, but with
such equipment only as does not suggest peril. This was noted by
Servius on the verse of Virgil,’

And with impunity the Latins mingled.

There Servius also relates that when Rome was besieged by Tarquin
a truce was made between Porsenna and the Romans; and during
the celebration of the Circensian games in the city [595] the
leaders of the enemy entered and contended in the chariot race, and
were crowned as victors.

VII.—W hether during a truce it 1s lawful to retreat and repair walls,
and the ltke

It is not inconsistent with a truce to withdraw with the army
further inland, as we read in Livy that Philip did. Again, a truce
does not prevent the rebuilding of walls, nor the enrolment of
soldiers, unless some special agreement has been made.?

VIII.—A distinction regarding the seizure of places in time of truce

1. Without doubt it is a violation of a truce to bribe garrisons
of the enemy and seize places which they were holding. Such an
acquisition, in fact, cannot be lawful except by right of war. The
same principle must be applied in case subjects wish to revolt to the
enemy. There is an example in Livy, Book XLII:

The people of Corona and Haliartus, who had a kind of natural predilection for
kings, sent envoys into Macedonia asking for a garrison with which they might be able
to defend themselves against the unrestrained arrogance of the Thebans. To this embassy
the king made answer, that he could not send a garrison to them on account of his truce
with the Romans.

1 Servius, On the Aeneid, XI [XI. 134]. 2 As in Paruta, Book IIL

Chap. XX] On Good Faith during War 837

According to Thucydides, Brasidas in time of truce received
the city of Mende, which revolted from Athens to Sparta; but the
excuse is added, that he in turn had charges to make against the
Athenians.

z. It is indeed lawful to take possession of ownerless property,
provided this has been really abandoned, that is, with the intention
that it should no longer belong to those to whom it had belonged ;
but it is not lawful if the property is merely unguarded, whether
the guard was removed before the truce was made, or afterward.
Continuance of ownership in one renders possession by another
unlawful. And by this rule the quibble of Belisarius against the
Goths is refuted; for under such a pretext he had seized places
which had been stripped of their garrisons * in time of truce.

IX.—W hether, at the end of the truce, one can return who bas been
detained by force majeure

I. The question is raised, whether a person, who has been
hindered by force majeure from returning, and is arrested within
the territory of the enemy after the expiration of the truce, has the
right to return.

If we consider the strict law of nations, I do not doubt that this
person is in the same position as one who, although he had come in
time of peace, by his own misfortune is caught among the enemy by
a sudden outbreak of war. We have noted above, that such a person
remains a captive until the conclusion of peace. Nor is moral justice
opposed to this, since the property and acts of the enemy are liable
for the debt of the state and are taken in payment. The case in
question does not in reality furnish more ground for complaint than
that of so many other innocent persons upon whom the misfortunes
of war fall.

2. In this connexion, moreover, no comparison can be made
with merchandise in a case of confiscation, nor with the illustration
given by Cicero in the second book On Invention; he there speaks
of a war vessel as having been driven into port by a storm, which the
quaestor wished to confiscate according to law. In such cases force
majeure frees from the penalty. But in the case of the person forcibly
detained after a truce it is not, properly speaking, a question of

enalty, but of a right, which was suspended during a certain time only.
N evertheless, there is no doubt that the releasing of such a person
is a more kindly, yes, also a nobler, act.

1 Portus, Centumcellae, Albanum.

[IV.
cxxili.]

Procopius,
Gothic
War, II
[vii].

III. ix [4].

Digest,
XXXIX,
iv. 15 and
16.§ 8.
[Il, xxxii.
98.]

ITI. xix.
ro [xix
14] and
xx. 36.

Livy, [X
[xli. 7]
and XI
[X. xxxvii
ff.].

838 On the Law of War and Peace [Book III

X.—Of special agreements in truces and the questions wont to arise
therefrom

Certain acts are unlawful during a truce on account of the special
nature of the agreement; for example, if a truce has been granted
only for the purpose of burying the dead, no deviation from that
condition ought to be made. So if a truce has been given to those
who are besieged, with the provision merely that they are not to be
attacked,! it will not be lawful to admit auxiliary forces and sup-
plies. For, while such a truce is advantageous to the one side, it ought
not to make the situation harder for the other side which granted it.

Sometimes also the agreement is made, that it shall not be lawful
to go back and forth. Sometimes, again, provision is made for persons
and not for things. In the latter case, if persons are injured while
property is being defended, the truce will not be violated. For
since it is permissible to defend property, then personal safety must
be referred to the main provisions, and not to what is derived from
the consequences of some one provision.

XI.—W hen the terms of a truce have been violated by the one side, the
other may begin war

If the good faith of the truce has been violated by the one party,
it should not be doubted that the party injured [596] is free to
take up arms even without declaring war. For the main points of
the agreement are implied in the manner of a condition in the agree-
ment, as I have said a little above.

In the histories you may indeed find examples of those who
have endured wrongs till the end of the truce. But you may also
read that war was declared against the Etruscans and others, because
they had acted contrary to the truce. This difference is proof that
the law is as I say, but that it is at the option of the injured party
to use, or not to use, the right which he has.

XII].—What if a penalty, in case of violation of the truce, has been
added ?

This is established, that if the penalty agreed upon is demanded,
and is paid by the one who has done the wrong, the right to make
war no longer remains. The penalty, in fact, is paid with this in
view, that all else may remain in safety. On the contrary, if war is
begun, it is necessary to consider that, since the choice was given,

the idea of paying the penalty has been abandoned.

; Such as was given to the people of Naples by Totila, in Procopius [Gothic War, III. viii].
See Decretals, V. vi. 11. There are examples of truces with exception of places in Procopius
and Menander Protector.

Chap. XXT] On Good Faith during War 839

XIIL—When the acts of private citizens break the truce

Private acts do not break a truce unless in addition there is
a public act, that is, through command or approval.

Private acts are understood to be in accordance with public
command or approval if the guilty parties are neither punished nor
surrendered, and if restitution is not made.

XIV .—W hat interpretation ought to be put on the right of safe-conduct
outside of the period of truce

The right of safe-conduct outside of the time of truce is a kind
of privilege. In its interpretation, therefore, the rules which are
laid down in regard to privileges ought to be followed. This privilege,
however, is neither harmful to a third party nor very burdensome
to the one who grants it. Consequently, within the natural meaning
of the words a loose rather than a strict interpretation ought to be
admitted, and so much the more in case the favour has not been
granted in response to a request, but has been offered voluntarily ;
so much the more, also, if a public advantage of some sort is con-
nected with the business outside of private gain. A strict inter-
pretation, therefore, even according to the meaning of the words,
ought to be rejected, unless otherwise some absurdity would ensue,
or very probable inferences as to intention seem to require it.

On the other hand, a freer interpretation than is afforded by
the natural meaning of the words will be in point, in order that
a like absurdity may be avoided, or because of very cogent inferences.

XV.—Who may be classed under the term combatants

From what has been said we draw the inference that the right
of safe-conduct granted to combatants extends not only to inferior
officers but also to officers of the highest rank; for the natural mean-
ing of the word admits of this interpretation, although there is
another interpretation that is narrower. Similarly a bishop is in-
cluded under the term clergy.

Sailors also, who are serving in fleets, are understood to be com-
batants, and in fact all are who have taken the military oath.

XVI.—How, in this connexion, we are to understand the terms go, come,
and depart

A provision in regard to going is considered to cover also the
return, not from the meaning of the word, but to avoid an absurdity ;
for a favour ought not to be void of use. And a safe departure should
be understood to hold good until the person has reached a place

See
above, II.
XV1. 12,

Canon in
Decretals,
I, vi. 7. § 2.
Digest,
XXXVIT.
xiii. x. § 1.

Diodorus
Siculus,
XVII
fixxxiv].

Digest,
XLITI.
XXVi. 27,

Abbas,

Decretals,

V. vi. 10.

840 On the Law of War and Peace [Book III

where he is in safety. For this reason the good faith of Alexander *
was under accusation; for he had ordered that those to whom he
had granted the right to depart should be killed on the way.

However, a person to whom permission has been granted to depart
cannot also return. Again, a person who has received permission
to come himself will not be able to send another; and the reverse
of this also holds. Such, in fact, are different matters, and in such
cases reason does not compel us to go beyond the meaning of the
words. Nevertheless, this principle is applicable with the under-
standing that, though an error confers no right, it at any rate relieves
from the penalty, if a penalty formed a part of the agreement.

Also the person who has received permission to come will come
only once, and not a second time unless the allocation of time supplies
a different interpretation.

XVII.—On the extension of this to persons

The son does not follow his father, nor the wife her husband,
otherwise than in accordance with the right of residence. For we
are accustomed to live with our family, but to travel abroad without
it. Nevertheless it will be understood, even if not expressly stated,
that one or two servants are included in the case of a person for
whom it would be unbecoming to travel without such attendance.
For he who grants a favour grants that which of necessity follows.
However, in such cases, necessity must be understood in a moral
sense.

[597] XVIIIl.—On the extension of safe-conduct to baggage

Similarly, not all kinds of goods will be included in the safe-
conduct, but only such as are ordinarily taken on a journey.

XIX.—Who are included under the terms attendants and nationality

If the term attendants is used, those ought not to be under-
stood whose case is more provocative of hatred than that of the one
for whom-the safe-conduct is arranged. Such are pirates, brigands,
deserters, and fugitives. The designated nationality of the attendants
indicates clearly enough that the right is not extended to others.

_ 7 Plutarch, Alexander [lix=p. 698 Cc]: ‘This remained as a blot upon the warlike exploits of the
king, who in other warlike deeds was accustomed to act both justly and in a manner befitting a king.’
You find in Leunclavius, Book VI, a similar deed of Bayezid against the Vidynenses in Servia.

Chap. XXT] On Good Fatth during War 841

XX.—W hether a right of safe-conduct is annulled by the death of the

grantor

Since the right of safe-conduct is derived from the force of
authority, in case of doubt it is not annulled by the death of the
one who granted it. This is in accordance with the rules which
I have stated elsewhere in regard to favours granted by kings and
other rulers.

XX1.—What if a right of safe-conduct has been granted subject to the
pleasure of the grantor ?

There is usually a discussion regarding a safe-conduct granted
with the restriction, ‘so long as I wish’.

The opinion of those is nearer the truth who think that a favour
of this kind continues even if no new act of will occurs; in case of
doubt the presumption is that that remains in force which is sufficient
for the validity of the right. But the force of the safe-conduct does
not continue when the one who granted it has ceased to be able to
wish it,* a condition brought about by death. When in fact the
person is removed, the assumption of continuance also will cease,
just as the accident ends with the destruction of the substance.

XXII.—Whether security outside of the territory alse 1s due

Moreover, safe-conduct is due to the person to whom it has
been granted even outside of the territory of the grantor. For it 1s
granted in derogation of the right of war, which in itself 1s not con-
fined to a territory, as we have said elsewhere.

XXIII.—The favour of ransoming captives

The ransoming of captives is in large measure an act of favour,
especially among Christians, to whom the divine law especially
commends this kind of compassion. ‘ ‘The ransoming of captives is
a great and glorious function of justice,’ says Lactantius. The
ransoming of captives, especially from a barbarous enemy, is called
by Ambrose a characteristic and supreme generosity. Likewise he
defends his own act and that of the Church, because they had broken
up even the consecrated vessels of the Church? in order to redeem

1 Digest, XX XIX. v. 32, as corrected by the eminent scholar Antoine Favre, substituting voluero
for voluerts [Conject. Jur. Cxv., Book II. xix}.

Add Digest, XIX. ii. 4; see Cardinal Toschi, Practtcae Conclusiones, 751, lit. p; Reinkingk,
Book II, class 11, vili. 30.

2 Augustine imitated this act of Ambrose, as Possidius relates [Life of Augustine, xxiv]; he says
that this was done against the worldliness on the part of some persons. Deogratias, a bishop in the
same Africa, also imitated the act of Ambrose, as Victor of Utica relates, I [Victor Vitensis, I. viii].

Hincmar, in the Life of Remigzus [chap. v], relates that a consecrated vessel, which had belonged

II xiii
[II. xiv.
IY1-I2].

Canon in
Sext,
I. in. 5.

III. iv [8].

Matthew,
xxv. 36.
39.

VI [xit].
On Duties,
II xxviii
[II xv 71x].
On Duizes,
Il. xviii
(II. xxviii}.

Livy,
XXII

flix 1r~2].
Livy,
XXII

{ix1 x]

(Odes, III.
v. 14-16.]

(Polstics,
II. 1x;
VII. xiv.]

I. xxv. 3.

On the Law of War and Peace [Book III

842

captives. ‘The ransom of captives is the adornment of sacraments,’
he says, and he uses many other expressions to the same effect.

XXIV.—W hether ransom may be forbidden by law 1s explained with the
help of a distinction

1. These considerations lead me not to venture to approve
without discrimination the laws which forbid the ransom of captives,
such as existed, we read, among the ancient Romans. Some one said
in the Roman Senate, ‘In no state are captives rated more cheaply
than in our own.’ ‘The same state is said by Livy to have had the
least consideration for captives, even from early times. There is a
familiar ode of Horace which touches on this subject, in which he
calls the ransoming of captives disgraceful terms and a precedent
dragging ruin with it, a loss added to disgrace.

What Aristotle criticizes in the institutions of Sparta is likewise
ordinarily held to be faulty in those of the Romans. As a matter of
fact all their energies were directed to matters of war, as if on these
alone the safety of the state depended. But if we should only have
regard for considerations of humanity it would in many cases be
better that a right which is sought in war should be lost, than
that a great many men,’ our relatives, in fact, or fellow countrymen,
should be left in the most pitiable condition.

2. Such a law, therefore, does not seem just, unless the need
of such severity is plain, with the purpose in view that greater evils,
or the largest possible number of evils, which are otherwise with
moral certainty inevitable, may be avoided. In case of such necessity,
since the captives themselves, in accordance with the law of love,
ought to bear their lot with resignation, the injunction not to set
themselves in opposition can be laid upon them and upon others
in accordance with the principles which we have laid down elsewhere
in regard to the surrender of a citizen for the public good.

XXV.—Can the right to a captive be transferred ?

According to our customs, it is true, those who are captured in
war are not slaves. Yet I do not doubt that the right to collect
the price of ransom from [598] a captive can be transferred from
the party who holds the captive to another. For nature allows
a transfer of ownership, even in things which do not have corporeal
existence.

to Remigius, was given to ransom captives from the Norsemen. A similar act of Rimbert, archbishop
of Bremen, is praised by Mark Adam of Bremen in his Ecclesiastical H.: tstory, chap. xxxii. The sixth
General Council of the Church approved this in a decree inserted in Decreium, II. xii. 2. This ought
to be added to what I have said above, III. v. 2.

7 [600] See Zonaras [XIV. xiii. 77-8] on the very late repentance of the Emperor Mauritius
for stich a deed.

Chap. XXT] On Good Faith during War 843

XXVI.—A ransom can be owed to several by one person

Further, the same person can owe a ransom to more than one
person if he has been let go by the first and captured by another
before the first ransom has been paid. Such, in fact, are different
debts, arising from different causes.

XXVIT.—W hether an agreement can be annulled on the ground that the
wealth of the captive was unknown

An agreement in regard to the amount of ransom cannot be
annulled on the ground that the captive is understood to be richer
than was believed. By the strict law of nations, which we are in-
vestigating, no one is compelled to make good what he has promised
in a contract at less than a fair price, if there has been no deception.
This can be understood from the explanations previously made con-
cerning contracts.

XXVIII.—W hat goods of the captive belong to the captor

From what we have said, that captives are not our slaves, it
follows that there is no room for the complete acquisition which, as
we have said elsewhere, is the essential condition of ownership over
the person. No other property, therefore, will be gained by the
captor than what he has actually taken.

In consequence, if the captive has something concealed on his
person, it will not be acquired, since it has not been taken. Just so
Paul the jurist made answer, in opposition to Brutus and Manlius,
that a man, who has taken possession of a farm, has not taken into his
possession a treasure which he does not know is on the farm; for
a person cannot possess what he does not know of. The conclusion
from this is that property concealed on the person of a captive can
be used in paying the price of the ransom, since ownership has in
effect been retained.

XXIX.—W hether the heir owes the price of ransom 1s explained, with
the help of a distinction

1. This question is also commonly raised, whether a ransom
agreed upon, but not paid before death, is due from the heir.

The answer seems to me void of difficulty. The ransom is not
due if the captive died in prison. There was, in fact, a condition
attached to the promise, that the captive should be set free; but
a dead man is not set free. On the contrary, if the captive died
when at liberty, the ransom is due; for he had already gained that
in return for which the ransom had been promised.

II. 26 [TI.
x11. 26].

ITT. vii. 4.

Dig. XLI,
il. 3. § 3.

II. xi. 22

and xv. 16.

III. xx.
58.

Dig. XIX.

v. 5-§ I.
Deg. XII.
iv. 16.

844 On the Law of War and Peace [Book III

2. I admit that obviously the agreement can be made also with
different conditions, so that the ransom may be unreservedly due
from the very moment of the contract, the captive being retained
no longer as a prisoner of war, but as security for himself. On the
contrary, the contract can be so drawn up that the payment of the

rice shall only be made if on the appointed day the captive is alive
and free. But these conditions, as being less natural, are not to be
assumed without clear proofs.

XXX.—W hether a person, who has been released in order to free another,
ought to return if the other has died

Again, the question is proposed for discussion, whether a return
to prison is obligatory for a man who has been released under the
agreement that he should cause another to be freed, where the other
has anticipated release by dying. .

I have said elsewhere that the act of a third party, if fairly
promised, is satisfactorily performed if nothing on the part of the
promisor is omitted, but that in the case of burdensome promises
the promisor is obligated only to an equivalent amount. So, in the
question under discussion, the one who has been released will not be
bound to restore himself to custody ; for this was not the agreement,
and the presumption in favour of liberty does not allow a tacit agree-
ment to be understood. But the person who has been released ought
not to get his freedom as clear profit; he will pay the estimated
value of what he cannot furnish. For this is more in accord with
natural simplicity than what the interpreters of the Roman law set
forth in an action according to prescribed formulas and on a formal
claim for restitution of a thing given for a cause, when the cause did
not follow.

1 Paul Balioni did not do this, when released on the condition that he restore to liberty Carvajal,

since Carvajal died before being set free. On this account he is criticized by Mariana, Book XXX
(XXX. xxi]. But Paruta, Book II, relates the circumstances of the deed somewhat differently.

CHAPTER XXII
ON THE GOOD FAITH OF SUBORDINATE POWERS IN WAR

I.—The kinds of military leaders

As onE form of public agreement, Ulpian reckons this: ‘ When-
ever the leaders of the war make agreements with each other.’

I have said that after considering the good faith pledged by the
highest authorities I must treat of that which subordinate officials
pledge to one another, or to others. Either the subordinate officials
are next to the highest authority, such as have properly been called
generals, to whom this expression of Livy must be applied, ‘ And
we recognize as a general only the officer under whose auspices the
war is waged’; or they are officers of lower rank, whom Caesar
distinguishes as follows: ‘ A lieutenant-general (legatus) has one set
of duties, a commander-in-chief (tmperator) another. The one ought
to carry out orders; the other, to deliberate freely on the conduct
of the whole campaign.’

II.—How far an agreement made by military leaders 1s binding on the
supreme authority

In dealing with the promises of military leaders the subject
must be viewed under two aspects ; for the question is raised whether
such promises impose a binding obligation on the supreme authority,
or only on the leaders themselves.

The first point should be settled in accordance with the prin-
ciple which I have elsewhere stated,’ that an obligation is imposed
on us also by the person whom we have chosen as agent to execute
our wishes, whether our wishes have been stated in express terms or
are inferred from the nature of the responsibility. For the one who
grants a power grants the means necessary for the exercise of that
power, so far as he possesses them; and this ought to be understood
morally in matters pertaining to morals. In two ways, therefore,
subordinate authorities will be able to bind the supreme authority
by their actions, either by doing that which is thought on probable
grounds to lie within their field of duty, or even outside their field
of duty, in accordance with a special responsibility, known to the
public, or to those whose interest in the matter is at stake.

1 See Camden [p. 630], on the year 1594, relative to the sentence of Count Miranda in the case
of Hawkins.

845

Dg II.
X1V. 5.

IV (xx. 6].

Com-
mentary,
ITI (Cavzl
War, III.
ln. 4].

II. xi. 12.

II iv 5
and xv. f7.

II, x 2.

IX xvi
[IX. vi.
3].

II, xi. 12
and 13.

Dig. XIV.

lll. 5. § 125
iii Ir.
§§ 2, 3, 4.

On the Law of War and Peace [Book II1

846

Il] —How far such an agreement furnishes occasion for an obligation

There are also other ways in which the supreme authority is
obligated by a previous act of its agents, but not in such a way that
this act should be, properly speaking, a cause, but rather an occasion,
of obligation. This may happen in two ways, either by consent, or
by reason of the act itself. Consent is revealed by ratification, not
only express but also implied, that is, when the supreme authority
knew what had been done and permitted the accomplishment of the
acts, which cannot with probability be referred to another cause.
We have explained elsewhere how this matter proceeds.

By reason of the thing itself states are bound to this extent, that
they should not become richer through another’s loss, that [601]
is, that they should either carry out the agreement, from which they
wish to acquire gain, or renounce the gain. In regard to this prin-
ciple of equity, also, I have spoken elsewhere. And to this extent,
and not beyond, can we accept the maxim, that whatever has been
done to our advantage is valid. On the contrary those cannot be
acquitted of injustice who disapprove of the agreement and yet
retain what they would not have had without the agreement. Such
a case arose when, as Valerius Maximus relates, the Roman senate
was unable to approve of the act of Gnaeus Domitius, and yet was
not willing to disavow it. Many such instances occur in history.

IV.—W hat, tf anything, has been done contrary to instructions ? Heretn
distinctions are presented

1. Also we must repeat what has been said above, that whoever
has appointed an agent is bound, even if the agent, while yet within
the limits of his public function, has acted contrary to secret in-
structions.

This rule of equity was rightly followed by the Roman praetor
in an action relating to agents, that not everything done by an agent
is, in fact, binding on the one who appointed him, but only that
which, within the limits of his responsibility, was done in the interest
of the principal. If now public notice has been given, that agreements
should not be made with him, then he will not be considered as an
agent. If, however, the notice has been given, but is not generally
known, the one who appointed the agent is bound.

Also the conditions of the appointment must be observed. For
if any one has wished that an agreement be made under a certain
condition, or with the intervention of a certain person, it will be most
fair that the conditions under which the agent received his appoint-
ment shall be observed.

Chap. XXII] On Good Faith of Subordinate Powers 847

2. The consequence of this is, that some kings or peoples are
put under greater obligation by the agreements of their military
leaders, others under less, in case their laws and customs are adequately
known. But if there is doubt on these points we must follow the
line of inference, in such a way as to understand that that is conceded
without which there can be no proper discharge of responsibility on
the part of the official.

3. Ifa lesser official has exceeded the limit of his instructions,
in case he is unable to make good what he has promised, he will
himself be liable for the equivalent of the loss, unless such recovery
is precluded by some law sufficiently well known. But if in addition
there is deceit, that is, if the official pretended to have greater power
than he did have, he will then both be liable for the loss caused by
his fault and also, on account of his criminal conduct, he will be
subject to a penalty commensurate with the crime. In the former
case his property is liable, and, if that is not sufficient, also his work,
or the liberty of his person. In the second case his person, or his
property, or both are liable, according to the magnitude of the
crime.

Moreover, what we have said regarding deceit will be in point,
even if any one has declared beforehand that he is unwilling to make
himself liable, because the debt due both for the loss occasioned and
as a just penalty is associated with the offence by a natural and not
by a voluntary connexion.

V.—W hether in such a case the other party will be under obligation

But since either the supreme authority, or its agent, is always
bound, this also is certain, that the other party to the agreement is
under obligation, and it cannot be said that the agreement is one-

sided.

We are done with the relation of lesser officials to their superiors.

VI.—What generals or magistrates are able to do with regard to those
of lower rank, or on behalf of them

Let us see also what higher officials are able to do with regard
to those of lower rank.

We ought not, I think, to doubt that a general may place
a binding obligation on his soldiers, or magistrates on their fellow
townsmen, within the limits of those powers which they are accus-
tomed to exercise; beyond those limits, consent would be necessary.

On the other hand, a compact of a commander or of a magistrate
will, in general, be advantageous to those of lower rank in respect
to matters merely expedient; such arrangements, in fact, are sufli-

1569-27 31

Alciati,
Constlia,
VIII. xl.

II. x. rz

[II. x1 24].

[Plutarch,
Agesilaus,
x=p. 601
B.]
Jugurtha

[xxxix. 3].

XXXVII
[xix. 2].

[II. xv.
16~r7].

[Livy, IX.
ix. 7.]

XXIV
[xix],

On the Law of War and Peace [Book III

848
ciently understood as in their power. In respect to conditions which
have a burden attached, the obligation is absolute within those rights
which they are accustomed to exercise, but, beyond those, only if
accepted.

These provisions are in accord with the principles which we
have elsewhere discussed, growing out of the law of nature regarding
a stipulation in behalf of a third party. The general statements
will now be made clearer by the presentation of particular instances.

VII.—Generals do not have the power to make peace

It does not fall within the province of the general to conduct
negotiations with regard to the causes or the consequences of a
war;* [602] the terminating of war is, in fact, not a part of the
waging of it. Even though the general has been placed in command
with absolute power, that must be understood to apply only to the
conduct of the war. The reply of Agesilaus to the Persians was:
‘ The right of decision regarding peace belongs to the state.’ Sallust
says that the senate rescinded the peace which Aulus Albinus had
made with king Jugurtha, because he had made it without the authority
of the senate.

Also we find in Livy: ‘ How will that peace be valid which we
shall have concluded without the authority of the senate, without
the decree of the Roman people?’ For that reason the Caudine
agreement and the agreement in regard to Numantia did not bind
the Roman people, as I have explained elsewhere. And up to this
point the statement of Posthumius is correct: ‘ If there is anything
which can be made a binding obligation on the people, all things
can’; that is to say, things which do not belong to the conduct of
warfare. That this is the meaning is shown by the preceding state-
ments concerning surrender, concerning an agreement to abandon or
to burn a city, and concerning a change in the form of government.

VIIL—W hether generals may make a truce ; herein a distinction

Not only generals in command but also officers of lower rank
have the power to make a truce,’ but only with those against whom
they are fighting, or whom they are holding in a state of siege. This
applies only to themselves and to their troops; for other officers of
equal rank are not bound by such a truce, as is clear from the story
of Fabius and Marcellus in Livy.

_ _ } Belisarius said to the Goths [Procopius, Gothic War, II. vi=p. 403 a]: ‘For I do not have the
right to manage the affairs of the Emperor.’
* See Paruta, Book V.

Chap. XXII] On Good Faith of Subordinate Powers 849

[X.—What security of persons, and what property, can be given by
generals

I. Likewise it is not within the province of generals to dispose
of men, dominions, and territories taken in war.

In accordance with this law Syria was taken away from Tigranes,
although Lucullus had given it to him. In regard to Sophonisba,
who had been captured in war, Scipio said that the judgement and
will of the senate and the Roman people would decide; and so
freedom could not be given to her by Masinissa, the general by
whom she had been captured. Over other matters, which fall under
the head of booty, we see that some rights are granted to commanders,
not so much by reason of the strength of their authority as by the
customs of each people. But in regard to that subject we have said
enough previously.

2. However, it is quite within the power of generals to grant
things which have not yet been taken, because in many cases towns
and men surrender in war on the condition of preserving their lives,
or of keeping also their liberty or even their property. In such
matters circumstances generally do not afford opportunity to request
the decision of the sovereign authority.

For a like reason this right ought to be granted also to com-
manders not of the highest rank, within the limits of the matters
entrusted to their administration. When Hannibal was far away,
Maharbal had promised to certain Romans, who had escaped from
the battle near Trasimenus, not only their lives—‘ their safety’, as
Polybius too concisely remarks—but also, if they should have given
up their weapons, the privilege of departing with one suit of clothes
each. But Hannibal detained them, alleging that ‘it was not in the
power of Maharbal, without consulting him, to give to those who
surrendered his pledge that he would leave them uninjured and
unharmed ’.1 The judgement of Livy on this act is, ‘ The pledge
was kept by Hannibal with Punic faith.’

3. Consequently, in the case of Rabirius we ought to consider
Cicero as a lawyer and not as a judge. He maintains that Rabirius
had rightly killed Saturninus, whom the consul Gaius Marius had
persuaded to leave the Capitol by giving a pledge to him. ‘ How
could a pledge be given’, says Cicero, ‘ without a decree of the
senate?’ And so he treats the matter as if that pledge bound Marius
only. But Gaius Marius had received authority by a decree of the
senate to see to it that the sovereignty and majesty of the Roman
people should be preserved. In this power, which according to

1 No more plausible was the evasion used in a similar case by Bayezid against the Servians of
Crattovo, as Leunclavius relates, Book VI.

3L2

Justin,
XL fii. 3].

Livy,
xX
[xiv. ro].

Castrensis,
De Iusi

et Iure,
Tu.

III. vi. 15.

[IIT.
lxxxiv.
14.]

[XXII.
Vi. I2.]

[For Ra-
birtus, X.
28 |

Appian,
Illyrian
Wars,
ii.g]
[Livy,

XLV. vi.

ro ]

Livy,
XXIV.

iv [i.]-

850 On the Law of War and Peace [Book III

Roman custom was the highest,» who would deny that the right of
granting immunity was included, if in that way every peril might be
warded off from the state?

X.—Such agreements should be interpreted narrowly ; and why

For the rest, in dealing with the agreements made by generals,
because these are concerned with a matter outside their field, the
interpretation must be restricted so far as the nature of the agree-
ment allows, lest indeed [603] by their act either the sovereign
power be obligated to a greater degree than it wishes, or they them-
selves suffer injury in the discharge of their duty.

XI.—How a surrender accepted by a general 1s to be interpreted

In consequence, one who is received in unconditional surrender
by a general is considered to have been reccived on such terms that
the decision in regard to him belongs to the victorious people or
king. There is an example of this in the case of Genthius, king of
Illyria, and in that of Perseus, king of Macedonia; the former sur-
rendered to Anicius, the latter to Paulus.

XII.—How to understand the proviso, ‘if the king or the people has
approved ’

Thus the added proviso, ‘ Let this be valid, in case the Roman
people shall have ratified it’, which is often found in treaty com-
pacts, will have the effect that, if the ratification does not follow,
the general will himself in no respect be bound, unless in some way
he has thereby been made richer.

XIII.—How to understand the promise to surrender a town

Also those who have promised to surrender a town can allow
the garrison to withdraw, as we read that the Locrians did.

1 See Sallust, Catilinarian War [xxix. 3]. Not unlike this Ciceronian sophistry is that of
Gonsalvo against the Duke of Valentinois ; Guicciardini, Book VI [p. 339, edit. Genev., 1645].

CHAPTER XXIII
ON GOOD FAITH OF PRIVATE PERSONS IN WAR

I.—Refutation of the opinion, which holds that private persons are not
bound by a pledge given to the enemy

SUFFICIENTLY well known is this statement of Cicero: ‘ Also
if, under the pressure of circumstances, individuals have promised
anything to the enemy, faith must be kept in that very matter.’
Whether the individuals are combatants or civilians—it matters not
as regards keeping faith.

It is strange that legal authorities have been found who would
teach that the obligation was binding when an agreement was made
publicly with the enemy, but that agreements made by private
persons were not binding in like manner. For since private citizens
have private rights, which they can place under obligation, and
enemies [604] are capable of acquiring right, what can stand in
the way of the obligation ? Add that, unless this rule is established,
opportunity is given for slaughter, an impediment is set to liberty.
For captives in many cases will not be able to guard against the
former, or to obtain the latter, if the good faith of private persons
has been done away with.

Il.—Iz is shown that private persons are bound even to a pirate and
a brigand ; and to what extent

Still further, not only is a pledge, which has been given to an
enemy, recognized by the law of nations, but also a pledge to a brigand
or to a pirate, just as we have said above in regard to public faith.
There is this difference, that if an unjust fear inspired by the other
has induced the promise the promisor can demand restitution, or
if the other party is unwilling to make restitution he can take it ;
such a procedure has no place in case of a fear arising from a public
war, according to the law of nations.

If an oath also has been added to the promise, then what has
been promised will have to be made good by the promisor, if he
wishes to avoid the crime of perjury. If such a perjury has been
committed against a public enemy, men are accustomed to punish
it; but if against brigands or pirates, it is overlooked, because of the
hatred of those whose interest is at stake.

IIl.—Wo exception 1s here made for a minor

Also in this aspect of the good faith of private persons we shall
make no exception for a minor who has sufficient intelligence to
851

[On
Duties, 1.
xili. 39 ]

Bartolus,
On Dig.,
II. mv.5;
Zasius,

A pology
against
Eck.

II]. xix. 2.

II. xi. 7
and III.
xix. 5.

Oldradus,
Cons., vii.
Covar-~
ruvius,
De Matri-
mono,

II. iii. 4,
DO. 21.

II. x. 6.

[TIT] xxii.
7°

Punic
Wars

[xii1. 94].

I. iv. 7, 21
[I. iv. 7,
2~3]; IT.
XIV. 12.

852 On the Law of War and Peace [Book ITI

understand his act. For the privileges which favour minors arise
from municipal law, but we are treating of the law of nations.

IV—W bhether an error gives release

Also as regards an error, we have said elsewhere that it gives
the right to withdraw from an agreement only if that which was
erroneously believed had the force of a condition in the mind of the
promisor.

V.—Answer to the objection ratsed from the point of view of public
advantage

1. It is more difficult to decide how far the power of individuals
may extend in making an agreement. That public property cannot
be alienated by an individual is well established. For if this right
is not permitted even to generals in war, as I have just shown, still
less will it be permitted to private citizens. But in regard to their
own acts and property the question can be raised because it is evident
that these also cannot be put at the service of the enemy without
some degree of damage. For this reason such agreements on the part
of citizens may seem unlawful on account of the state’s right of
eminent domain, and on the part of enrolled soldiers on account of
their military oath.

2. It must be understood, however, that agreements which
avoid a greater or more certain evil ought to be considered advan-
tageous rather than harmful to the public interest, because a lesser
evil assumes the appearance of an advantage. ‘ Of evils one ought
to choose the lesser ’, a certain speaker says in Appian. In fact neither
an act of sincere good faith, by which one does not yield absolute
power over himself and his possessions, nor the public advantage
without the authority of law, can render void and deprive of all
legal effect that which has been done, even if it is granted that this
was done contrary to duty.

3. A law may indeed deprive either permanent or temporary
subjects of such power. But the law does not always do this, because
it spares the citizens ; and it cannot do this in all cases, for the reason
that human laws, as I have said elsewhere, have the power of imposing
obligation only if they have been passed in a humane manner, and
not if they impose a burden which is plainly inconsistent with reason
and nature. And so special ordinances and orders, which openly
claim some such right, ought not to be considered as laws. Moreover,
general laws ought to be received with so benevolent an interpreta-
tion as to exclude misfortunes arising from extreme necessity.

Chap. XXIII] On Good Faith of Private Persons 853

4. But if the act of the private person, which had been for-
bidden by law or by an order and prevented from becoming valid,
could rightly have been forbidden, then the act of the individual
would be void. Nevertheless he could be punished on this account,
because he promised what was not within his right ; and especially,
if he promised it on oath.

[605] *VI—The previous statements are applied to a pledge given of
return to prison

The promise of a captive to return to prison is properly allow-
able; for it does not render the condition of the captive worse.
Therefore Marcus Atilius Regulus did not merely act nobly, as some
think, but also as his duty required. Cicero says: ‘It was the duty on Dutws,
of Regulus not to disturb by perjury the conditions and agreements 1h,/***
of war.’ And no obstacle to his return was presented by this con-

sideration :

But yet he knew what tortures Horace
The barbarous executioner was making ready ; ae ae
4 .

for he had known when he made the promise that this might happen.
Likewise, also, of the ten captives, as Gellius tells the story from = VI. aviti
ancient authors, ‘ Eight replied that they had no right to postliminy, My 1. xvinl.

since they were bound by oath.’ ?

VII.—The pledge not to return to a certain place; the pledge not to
serve as a soldier

1. It is also customary for prisoners to promise not to return
to a certain place, and not to take up arms against the one who had
them in his power. An example of the former kind of pledge is found
in Thucydides, where the people of Ithome promise the Lacedae- [1 cit]
monians that they will leave the Peloponnesus never to return.
Instances of the second kind of pledge are now frequent. An
ancient example is to be found in Polybius, where the Numidians I [ixxvii.
are released by Hamilcar on the condition that none of them will **
bear hostile arms against the Carthaginians. Procopius* in the 111 [xxxwi
Gothic War records a similar agreement. 2 ge
2. Some writers declare such an agreement void, because it 1s
contrary to the duty due to the country of allegiance. But whatever
is contrary to duty is not at once also void, as I have said just above

and elsewhere. Then, too, it is not contrary to duty to obtain

1 [In the 1646 edition, sections 6, 7, 8.9, ro and rx are numbered 7, 8, 9, 10, 11 and 12, and
section r2 is run in in the last of those here enumerated.]

2 That is, lacking civil rights, as Horace [Odes, ITI. v. 42] says of Regulus.

8 Gothic War, II [II. xiv], about the Herulians.

III. vi.
23 ff.

VIII. viii
(VI. xvii.

11}.

854 On the Law of War and Peace [Book III

liberty for oneself by promising what is already in the hands of the
enemy. The cause of one’s country is, in fact, none the worse thereby,
since he who has been captured must be considered as having already
perished, unless he is set free.

VIII.—The pledge not to run away

Some prisoners also promise not to run away. Contrary to the
opinion of certain writers, such a pledge is binding on them, even
though they made the promise when in chains. For in this way
either lives are ordinarily saved, or milder captivity secured. If,
however, the prisoner shall be put in chains afterward, then he will
be released from the promise, if 1t was made on the condition that he
should not be put in chains.

TX.—One who has been captured cannot surrender to another

Rather foolishly the question is raised, whether one who has
been captured can surrender to another.

It is quite certain that no one by his own agreement can take
away aright gained by another. But the captor has gained a right,
either by the law of war alone, or partly by the law of war and partly
by the consent of him who is waging the war, as I have explained
above.

X.—W hether private persons should be compelled by their rulers to carry
out what they have promised

Regarding the effect of agreements an important question 1s,
whether private persons, in case they are negligent, ought to be com-
pelled by their rulers to fulfil their promises.

It is nearer the truth to say that they should be compelled to
do so only in regular warfare, on account of the law of nations by
which those who wage war are bound to render justice to each other,
even in regard to the acts of individuals; a case in point would be
if envoys of the enemy should be injured by private citizens.

Thus, according to the statement of Gellius, Cornelius Nepos
wrote that many in the senate voted* that those of the ten captives
who were unwilling to return should be put under guard and taken

back to Hannibal.

1 In like manner already earlier the senate had obliged those to return whom Pyrrhus had released
conditionally ; Appian, Selections on Embassies, vi [=Samntte History, x. 5).

Chap. XXIII] On Good Faith of Private Persons 855

XI.—What kind of an interpretation ought to be applied in agreements
of this sort

In the matter of interpretation, the rules should be observed
which have already been mentioned several times, to wit: that we
should not depart from the natural meanings of the words except in
order to avoid an absurdity, or from some quite satisfactory surmise
as to the intention; and that in case of doubt we should be more
ened to interpret the words against the one who made the con-

tion.

XII.—Jn what way we are to interpret the terms life, clothing, and the
arrival of aid

One who has made an agreement regarding his life does not
have the right to liberty also.

Arms are not included under the term clothing; for these are
different things.

Aid is rightly said to have arrived if it is in [606] sight,
although it is doing nothing; for its very presence has an influence.

XITI.—W ho ought to be said to have returned to the enemy

One who has returned secretly, so as to depart immediately,
will not be said to have returned to the enemy. For returning ought
to be understood as coming a second time under the power of the
enemy.

Cicero held the opposite interpretation to be disingenuous and
foolishly crafty, since it involves deceit and perjury. CGéeellius called
it fraudulent cleverness, branded with disgrace by the censor; and
he characterizes those who had practised it as odious and detestable.

XIV.—W hat are adequate reinforcements in the case of a surrender
made conditionally ?

In the case of an agreement to surrender,’ which shall not hold
if adequate reinforcements have arrived, the reinforcements ought
to be understood to be such as will cause the danger to cease.

1 There are four examples of a treaty of this kind in the Gothic War of Procopius, ITI [III. vii,
xii, xxx, xxvii]. There is another in Agathias, I [I. xii=p. 23 a], concerning Luca, Another concerning
a castle in Corsica is in Bizarri, History of Genoa, Book X; others in Book XVIII and in the war against
the Moors. Kromer, Book XI, also has a similar instance.

II. xvi. 2;
III. xx.
26.

On Duties,

YI [xxxii.
113].

VIII. xix.

[VI. xviii.

to].

III xx.
58.

856 On the Law of War and Peace [Book III

XV .—W hatever pertains to the execution of an agreement does not con-
stitute a condition

This also must be noted, that if any covenant has been made
regarding the method of execution this adds no condition to the
agreement. ‘The case is as if they said that payment is to be made
in a certain place, which afterward changed ownership.

XVI.—Regarding hostages given for such agreements

In regard to hostages the position must be maintained which
we stated above, that in most cases they are merely accessory to the
principal act. Nevertheless the agreement can be so made that the
obligation shall present an alternative, that is, either that something
shall be done, or that the hostage shall be retained. But in case of
doubt we must maintain what is most natural, that is, that the
hostages shall be believed to be only accessory.

CHAPTER XXIV
ON IMPLIED GOOD FAITH

I.—How good faith may be tacitly interposed

It was well said by Javolenus, that certain things are agreed to
by silence; and this is found to be the case in public agreements,
in private agreements, and in mixed agreements.

The reason is that consent, no matter how indicated and accepted,
has the power of transferring a right. But there are also other signs
of consent besides spoken and written words, as we have already
more than once indicated. And certain signs by nature form a part
of the act.

II.—An example, in the case of a person who desires to be received under
the protection of a people or a king

An example may be found in the case of the person who comes
either from the enemy or from a foreign country and entrusts him-
self to the good faith of another people or king. For there ought to
be no doubt that such a person tacitly binds himself to do nothing
against that government under which he seeks protection.

[607] Consequently we ought not to follow those who say that
the act of Zopyrus was free from blame; for his faithfulness toward
his king did not excuse his treachery toward those to whom he had
fled. ‘The same should be said of Sextus, the son of Tarquin, who
fled to Gabii. About Sinon Virgil says :

Hear now the plots of Greeks, and from the crime of one
Learn to know all Greeks.

Ill.—An example, in the case of one who asks or grants a parley

Likewise the person who asks or grants a parley tacitly promises *
that it will be without hurt to those who take part in it.

Livy declares that the law of nations is violated by doing harm
to the enemy under the pretence of a parley; he adds, that the
good faith of a parley was treacherously violated (for the reading
‘through faith’ (per fidem) in that passage is faulty), because Gnaeus
Domitius placed in chains Bituitus, king of the Averni, after Domitius
had invited him to a pretended conference and had received him

1 [608] Deservedly Agathias, Book II [II. xiv=p. 50 c], censures the Hun Ragnaris, because
he tried to kill Narses with a spear as Narses was going away from a conference.
857

Digest,
XIX. 1i.
Si.

Il. iv. 4;
III, ii. 8
(III. i 8].

[Herodo-
tus, IIT.
cliv.]
[Justin,
J. x. 15.]

I [liti. 5].
A ened, II
[65-6].

XXXVIII
(xxv. 8].

X. vi (TX.
vi, 3).

(VIII.
xxiii. 3.]

Livy,
XLII
{xlvii 1 ff.]

III ii. 6 ff.
(III. 1.
6 ff]

Livy,
XXVI
[xvi1] and
XXX
fiv].

I. v [x7].

858 On the Law of War and Peace [Book III
in hospitality. ‘This judgement is passed on Domitius by Valerius
Maximus: ‘ His excessive desire for fame made him treacherous.’
Wherefore one must wonder why the writer of the eighth book
of Caesar’s Gallic War, whether Hirtius or Oppius, in referring to
a similar deed of Titus Labienus adds, ‘ He judged that the faith-
lessness of this man’, that is, Commuus, ‘ could be suppressed without
any act of treachery,’ unless the explanation is that this is the opinion

of Labienus rather than of the writer.

IV.—Nevertheless he who asks or grants a parley ts not hindered from
promoting his own interests, provided that he does not harm the other

party to the conference

But that implied consent must not be extended beyond what
I have said. For, provided that the parties to the conference suffer
no harm, it is not treacherous, but reckoned among honourable
artifices, to divert the enemy from warlike plans by the pretext of
a parley, and in the meantime to promote one’s own advantage.

Those, therefore, who maintained that King Perseus was deceived
by the hope of peace, took into consideration not so much right
and good faith as highmindedness and warlike glory; and this can
be well understood from what we have said concerning stratagems
inwar. Of the same general character was the ruse by which Hasdrubal
saved his army from the Ausetanian defiles, and that by which Scipio
Africanus the Elder learned the location of the camp of Syphax ;
both of these instances are related by Livy. Their example was
followed by Lucius Sulla? also in the Social War, near Esernia, as
we read in Frontinus.

V.—Of mute signs which by custom have some meaning

There are also certain mute signs which have a significance
arising from custom. Such were in ancient times the use of fillets
and olive branches; among the Macedonians the raising of spears,
among the Romans the placing of shields over the heads,” all signs
of a suppliant surrender,* which in consequence imposed the obliga-
tion to lay down arms. But whether one who indicates that he

1 Also the Dictator Caesar against the Tencteri and Usipetes; Appian, Selections on Embassies, xvi
[= Gallic History, xviii}.

* Appian, Civil Wars, II [vi. 42].

* Among the Persians the hands were clasped behind the back; Ammianus Marcellinus, Book
XVITI [XVIITI. viii. 4]; see also the notes of Lindenbrog on this passage. The same Ammianus,
Book XXVI [XXVI. ix. 7], notes that the shields and standards were reversed among the Romans.
Latinus Pacatus, Panegyric [xxxvi], says that they lowered the flags.

The ancient Germans and others, following their example, offered grass, as Pliny states, Book XXII
{CXL iv. 8]. Servius, On the Aeneid, I [I. 487], says that those who surrender themselves as con-
quered lay down their arms as suppliants. |

Chap. XXIV] On Implied Good Faith 859

accepts such a surrender is under obligation, and how far, should
be inferred from what I have said above.

At the present time white flags * are the implied sign of a request
for a parley; they will, therefore, be no less binding than if the
parley had been requested by word of mouth.

VI.—On the implied approval of a treaty compact

How far a treaty compact made by generals ought to be con-
sidered as impliedly approved by the people or king, I have already
stated above, to wit: when both the action was known and some-
thing was done or not done for which no other cause could be assigned
except the wish to ratify the treaty.

VIIL—W hen a punishment is impliedly remitted

The remission of a penalty * cannot be inferred from the sole
fact of its being disregarded. There is need, besides, of some such
act as either in itself may show friendship, as a treaty of friendship,
or such as will express so high an opinion of the virtue of the party
subject to punishment that his previous deeds ought deservedly to
be pardoned ; whether that opinion is expressed in words, or through
acts, which customarily have such significance.

2 Among the northern peoples the lighting of a fire was a sign that a parley was requested, as
Johan Magnus and others state. Pliny, in Book XV. xxx [XV. xxx. 133], says of the laurel: “It
is itself the bringer of peace, so that, when it is presented, it becomes also a sign of cessation of hostilities
between armed foes.’ _

2 Polybius, in a passage preserved in the Selecttons on Embassies, xxii [=XCXIII. vi], discusses
the question whether punishment is remitted to those who committed the act at the same time that
it 15 remitted to the instigators. I do not think that it is, for individuals are answerable for their own

misdeeds.

III. iv. 12
and xi 15.

II. xv 17
and III.
XX11. 3.

On Duties,
III [TI.
xxiv. 84].
Rhetorre,
I. xv [22].

For
Quintus
Roscius
[vi. 16].
Letters,
Ixxxviii
[29].

CHAPTER XXV

CONCLUSION, WITH ADMONITIONS ON BEHALF OF GOOD FAITH AND
PEACE

I.—Admonitions to preserve peace

Ar this point I think that I can bring my work to an end, not
because all has been said that could be said, but because sufficient
has been said to lay the foundations. Whoever may wish to build
on these foundations a more imposing structure will not only find
me free from envy, but will have my sincere gratitude.

Yet before I dismiss the reader I shall add a few admonitions
which may be of value in war, and after war, for the preservation
of good faith and of peace ; just-as in treating of the commencement
of war I added certain admonitions regarding the avoidance of wars,
so far as this can be accomplished.

And good faith should be preserved, not only for other reasons
but also in order that the hope of peace may not be done away with.
For not only is every state sustained by good faith, as Cicero declares,
but also that greater society of states. Aristotle truly says that, if
good faith has been taken away, ‘ all intercourse among men ceases
to exist’.

Rightly the same Cicero says that ‘it is an impious act to destroy
the good faith which holds life together’. ‘To use Seneca’s phrase,
it is ‘the most exalted good of the human heart’. And this good
faith the supreme rulers of men ought so much the more earnestly
than others to maintain as they violate it with greater impunity ;
[609] if good faith shall be done away with, they will be like wild
beasts,’ whose violence all men fear. Justice, it is true, in its other
aspects often contains elements of obscurity ; but the bond of good
faith is in itself plain to see, nay more, it is brought into use to so
great an extent that it removes all obscurity from business transac-
tions.

It is, then, all the more the duty of kings to cherish good faith
scrupulously, first for conscience’s sake, and then also for the sake of

Ch 1 According to Procopius, Persian War, II [II. x], the ambassadors of Justinian thus address
OSTOeS :

Unless, O king, this address were being made to you in person, we should never have believed
that Chosroes, son of Cabades, would have entered Roman territory in arms after first scorning the
sworn oaths, which are believed to be the highest and strongest pledge of truth and good faith among
men; and besides, after breaking the treaty, in which rests the only hope left for those who are
not living in safety on account of the evils of war.

What else should we say that this is, than to exchange the life of men for the life of wild beasts ?
For when treaties have been done away with it will follow that all peoples will wage unending
wars with one another. But unending wars have the effect, that they keep men continuously estranged
from their own nature.

860

861

the reputation by which the authority of the royal power is sup-
ported. Therefore let them not doubt that those who instil in them
the arts of deception are doing the very thing which they teach.
For that teaching cannot long prosper which makes a man anti-
social with his kind and also hateful in the sight of God.

Chap, XXV] Conclusion

II.—In war peace should always be kept in view

Again, during the entire period of administration of a war the
soul cannot be kept serene and trusting in God unless it is always
looking forward to peace. Sallust most truly said, ‘ The wise wage
war for the sake of peace.” With this the opinion of Augustine
agrees: ‘ Peace is not sought that war may be followed, but war is
waged that peace may be secured.’ Aristotle himself more than once
condemns those nations which made warlike pursuits, as it were,
their end and aim. Violence is characteristic of wild beasts, and
violence is most manifest in war; wherefore the more diligently
effort should be put forth that it be tempered with humanity, lest
by imitating wild beasts too much we forget to be human.

Ill.—And peace should also be accepted even at a loss, especially by
Christians

If, then, it is possible to have peace with sufficient safety, it 1s
well established by condonation of offences, damages, and expenses ;
this holds especially among Christians, on whom the Lord has bestowed
His peace. And His best interpreter wishes us, so far as it is possible
and within our power, to seek peace with all men. It is characteristic
of a good man, as we read in Sallust, to be unwilling to begin war,
not gladly to pursue it to the bitter end.

IV.—The consideration stated 1s useful to the conquered

This one consideration ought to be sufficient. However, human
advantage also often draws in the same direction, first, those who
are weaker, because a long contest with a stronger opponent is
dangerous, and, just as on a ship, a greater misfortune must be
avoided at some loss, with complete disregard of anger and hope
which, as Livy has rightly said, are deceitful advisers. The thought
is expressed by Aristotle thus :* ‘ It is better to relinquish something
of one’s possessions to those who are stronger, than to be conquered
in war and perish with the property.’

1 Philo, De Constitutione Principis [On Justice, xiii], says: ‘Peace, even though with great loss,
is better than war.’

To Caesar
On Pub.
Admin.
[I. vi, 2].
Letters, i
[clxxxix.
6],

To
Boniface.
Poltitcs,
VII. ii [9}
and xiv

[xx].

Romans,
xi. 18.

[= Cicero,
Letters to
Friends,
IV. vii. 2.]

(VII. xl.
19.]
[Rhetoric
to Alex-
ander, ii.]

[XXX.
xxx. 18.]

[Rhetoric
to Alex-
ander, \1 ]

[XIIT.
lu J

Civil War,
I (III xj.

[For
Gabinwus,
frag., In
Jerome,
Apology
against
Rufinus,
T.1.]J

On the Law of War and Peace [Book III

862

V.—The consideration stated is also useful to the conqueror

Again, human advantage draws in the same direction also the
stronger. The reason is, as the same Livy no less truly says, that
peace is bounteous and creditable to those who grant it while their
affairs are prosperous; and it is better and safer than a victory that
is hoped for. It must be kept in mind that Mars is on both sides.
As Aristotle says, ‘In war men ought to consider how many and how
unexpected changes are wont to occur.’ In a certain oration for
peace in Diodorus Siculus those are censured who magnify the great-
ness of their exploits, as if it were not evidently customary for the
fortune of war to bestow favours alternately. And especially must
the boldness of the desperate be feared;* wild beasts bite most

fiercely when dying.

V1.—The consideration stated is useful likewise to those whose fortunes
are in doubt

But, if both sides seem to be equal to each other, this in truth,
as Caesar says, is the best time to treat of peace, while each has con-
fidence in himself.

VII.—Peace, when made, must be kept with the utmost scruple

Moreover peace, whatever the terms on which it is made,
ought to be preserved absolutely, on account of the sacredness of
good faith, which I have mentioned; and not [610] only should
treachery be anxiously avoided, but everything else that may arouse
anger. What Cicero said about private friendships you may apply
to public friendships no less correctly: not only should all friend-
ships be safeguarded with the greatest devotion and good faith, but
especially those which have been restored to goodwill after enmity.

VIIL—A prayer, and the end of the work

May God, who alone hath the power, inscribe these teachings
on the hearts of those who hold sway over the Christian world.
May He grant to them a mind possessing knowledge of divine and
human law, and having ever before it the reflection that it hath
been chosen as a servant for the rule of man,” the living thing most

dear to God.

1 [Plutarch, Martus, xlv=p. 432 C:]
We even have to fear the dying lion’s den.
4 So Chrysostom in his sermon On Alms [beginning]: ‘Man is the being dearest to God.’

APPENDIX

FROM THE LIFE OF ST. LOUIS, KING OF FRANCE, BY JOINVILLE,
CHAPTER LXXXIX

Tost who were in the Great Council of the king would often
reprove him because he expended so much labour upon the restora-
tion of peace among those outside his realm, saying that he was
making a mistake in not permitting them to wage war, and that
later this would result in their being dealt with more easily.

The king would reply that they were wrong. ‘If’, he said,
‘the princes and rulers, who are my neighbours, should see that
I readily allowed them to wage wars with one another, they would
say to one another, “ The king of France allows us to wage war with
evil intent ”’, and in consequence they would conceive a hatred of
me and at some time would attack me; and from this source mis-
fortune would result for my kingdom. Besides, it could happen that
I should bring upon myself the wrath of God, since God says that
those are blessed who strive to recall the hostile to peace and har-
mony.’

I am able to affirm that the Burgundians and Lotharingians,
perceiving the goodness and justice of the king, were so devoted to
him and so respected him, that they settled in his presence the causes
of controversy which arose between them. I saw them often coming,
now to Paris, now to Rheims, now to Melun, and again to other places,
where the king was.

FROM THE LIFE OF THE SAME, IN CONNEXION WITH THE INJUNCTIONS
OF ST. LOUIS THE KING GIVEN TO HIS SON

From the records of the Collegium Rattonalium tn the city of Paris

If any suit or action at law is commenced against you, inquire
as fully into the truth against you as for you.

If you perceive that you have anything belonging to another,
which it is established that you or your ancestors have taken, cause
it to be restored immediately.

Do not wage war against any Christian except on the advice

1569-27 3M 863

864 Appendsx

of many, and only if you cannot avoid war. But if you are at war,
refrain from injuring the clergy and those who have done you no
harm.
If war or quarrellings arise among your subjects, bring them back
to harmony, as soon as this can be done.

Examine often, what your bailiffs, prefects, and other officials
are doing, and inquire into their acts, in order that you may correct
whatever ought to be corrected. See to it that no disgraceful sin

hold sway in your kingdom.

COMMENTARY

OF

HUGO GROTIUS

ON

THE EPISTLE OF PAUL THE APOSTLE
TO PHILEMON

3M2

[6124] THE PRINTER TO THE READER

Since about this time there came into our hands the commentary
of the same author on the Epistle of Paul to Philemon, we thought
best to give it a place here, not only that it might be preserved along
with the larger work, but also because it contains some matter not
foreign to the subjects which are treated in that work, in Book I,
chapter ii, and Book ITI, chapters vu and xiv.

INOTES

ON
THE EPISTLE OF PAUL TO PHILEMON]

I. Tlavdos d€optos Xpiorod “Incod, ‘ Paul, a prisoner of Jesus
Christ *»—At Rome, living under guard of a soldier, who was bound
with the same chain; Acts, xxviii. 16. The genitive here indicates
cause; so also below, verse 9, Ephesians, iti. 1, and 2 Timothy, i. 8. In
Ephesians, iv. 1, déopuos év Kupio, ‘ prisoner in the Lord’, instead.

kat TydGeos 6 adekdds, ‘and brother Timothy ’.—The Chris-
tians called one another ‘ brother ’ because of a common regeneration.
Timothy—almost always a companion of Paul, as may be seen in
2 Timothy, iii. 1o—was with him also in Rome; Ephesians [Phili-
pians|, i. 1, Colossians, i. 1.

Diurypovt To ayarnt@, ‘to Philemon dearly beloved ’.—The
name Philemon is Greek. This was the name also of a poet of merit,
and of a writer on natural history who is mentioned by Pliny. Philemon
seems to have lived at Ephesus, where Onesimus afterward held the
office of bishop, as Ignatius in his Letters and other writers bear
witness. Paul calls him ‘ dearly beloved’, or ‘ most dear’, because
he considered Philemon, as an exceedingly devout man, in a relation
of more intimate friendship.

Kal cvvepy@ yuav, ‘and our fellow-worker ’.—That is, as one
of the presbyters, of whom there were several at Ephesus; Acts,
xx. 17. The Apostles applied the term ‘ fellow-workers’ to all the
presbyters (ape Bvrepo.) and also to the elderly women (ape Burtdes)
who sought to bring women to Christ; Romans, xvi. 3, 9, Philippians,
ii. 25, Colosstans, iv. 11.

2. Kal "Ardia ry ayarnry, ‘and to Appia dearly beloved ’.—
The name Appia is Roman, a being changed to @ according to
Hebrew usage.

kai “Apyimr@ To ovotparidry jar, ‘and to Archippus our
fellow-soldier ’.—He seems to have served as an evangelist, now at
Ephesus, now at Colossae [613] ; Colossians, iv.17. ‘The testimony
of Ambrose indicates that Archippus afterward took up his residence
‘at Colossae, and so was made a bishop. Paul was wont to call his
helpers ‘ fellow-soldiers* on account of the burdensomeness of the
task, as may be seen by referring to Philipprans, u. 25.

kat TH Kat’ olkdy wou éxxdnoig, ‘and to the church which
is in thine house ’.—The reference: must be to Philemon, to whom

867

868 Notes on the Epistle of Paul to Philemon

this epistle is chiefly addressed. In his house there were several
Christians. According to Tertullian even three Christians constitute
a church. Similarly, those who were in the house of Aquila and
Priscilla are called a church, Romans, xv. 15 [xvi. 5], and r Corinthians,
xvi. 19; also, those who were in the house of Nymphas, Colosstans,
iv. 15.
3. xdpis tiv, Kal elpyvn dws Ocovd warpos yuar, kai Kupiov
"Inoot Xpuotod, ‘grace to you and peace from God our father,
and the Lord Jesus Christ’—He prays for the favour of God
and of Christ on their behalf, and for prosperity in all things, which
the Jews are accustomed to designate by the word “ peace’. Paul
frequently uses this prayer, as Z Corinthians, i. 3, 2 Corinthians, 1. 2,
Galatians, i. 3, Ephesians, i. 2, Colossians, 1. 2, I Thessalonians, 1. 1.

. Ebyapiord 76 ch pov, ‘I thank my God’ —We ought to
give thanks to God for gifts conferred not only on ourselves but also
on others; Romans, i. 8, 7 Corinthians, i. 4, Ephesians, i, 16.

TavTore puvelav cou Trovovpevos ert TAY MpoctEvXGy pov, * always
making mention of thee in my prayers ’.—We find the same words
in the verse last referred to, Ephesians, 1. 16; whence we may
learn that under rpocevyat, ‘ prayers’, here are included all utter-
ances addressed to God, even those in which no petition 1s offered
but thanks are given.

dxovav cov THY aydTnv Kal THY ToT, ‘hearing of thy
love and faith ’.—He states the reason for the giving of thanks, such
as you will find also in the verses already referred to: Romans, 1.8;
x Corinthians, i. 4; Ephesians, i. 16. Here a noble pair is named,
love and faith. See x Corinthians, xiii; Galatians, v.63; Ephesians,
vi. 23; 2 Thessalonians, iii. 6; x Timothy, i. 14 and vi. 11; 2 Timothy,
i, 13 and il. 22.

Av fyes mpds tov Képiov “Inoody, ‘which thou hast toward
the Lord Jesus ’.—This has reference to faith.

Kat eis mévras Tovs aylous, ‘and toward all the saints ’.—
This has reference to love. All Christians are called ‘ saints’, as
Ephesians, i, 1, and frequently elsewhere.

6. dras } Kowovia THs TicTews Cod evepyys yerynras ev emvyvace
mavros Epyou ayabod rod & ipiv eis Xpiordv “Inoodv, ‘that the
fellowship of thy faith may become effectual in the knowledge of
every good work which is in you unto Christ Jesus ’.—First, there
is a transposition here. For the words eis Xpicrév ‘Incody, * unto
Christ Jesus’, relate to the preceding words rijs wiorews ood, ‘ of thy
faith’. Then, xowwvia rhs miorews, ‘the fellowship of faith’, was
put in place of ‘the faith which was common’ to Philemon and
the other Christians. And & émriyvdce, ‘in the knowledge’, is
here to be taken raOyrixa[s], ‘in a passive sense’, and carries the

Notes on the Epistle of Paul to Philemon 869

signification of becoming known. The meaning, then, is: Thy love
had this in view, that the faith, which thou hast in common with the
other saints, should become effectual, and thus should be made known
through the good works which proceed from thee and from others.
"Evepyns yévytat, ‘should become effectual’, is here used with
the same implication as rious 51° aydans évepyoupeérn, ‘ faith working
through love’, Galatians, v. 6. Thence follows ériyvwais, that is,
the making known of the same faith; for faith is shown through
works, ‘Fames, u. 18.

7. Xapav yap exouev trohdnpy Kat rapaxdyow, ‘ For we have
great joy and comfort ’.—Justly, he says, we thank God for those
virtues of yours, because from that source come to us our greatest
joy and [614] a solace in the evils which we endure for the sake
of the Gospel. So also 2 Corinthians, vu. 4,13; 1 Thessalonians, ii. 7.

OTL Ta omhayxyva ToV ayiwy avaméravTaL dia Gov, adeddeé,
‘because the bowels of the saints have been refreshed through thee,
brother ’.—ahayyva, ‘ bowels’, is here used instead of the word for
‘soul’, as Sirach |Ecclesiasticus, XXX. 7, Xxxlli. 5. Consequently,
dvaméravTa, Ta omhdyyva, ‘the bowels have been refreshed’, and
dvdmavody pov Ta omAdyyva, ‘ refresh my bowels ’, in verse zo below,
have a meaning similar to avéravorav 7d euov mvedpa, * they refreshed
my spirit ’, in r Corinthians, xvi. 18. The poor, he says, are of tranquil
mind, because they have learned by experience that in thy riches a
resource has been provided against their necessities.

8. Aid rod év Xpiot@ wappynoiay exav éemitraccev cot 70
avyxov, ‘ Wherefore, though I have much boldness in Christ to enjoin
that which is thy duty.’—The calling of an Apostle laid upon me by
Christ gives me this right, to be able to enjoin upon thee and other
Christians the things that it is your duty todo. The word rappyota,
‘boldness’, went over from Greek speech to Syrian with a broader
meaning, so that it often signifies ‘ right ’, ‘ authority ’.

9. Sid riv aydarny paddov mapaxaho, ‘on the ground of love
rather I beseech ’.—I prefer to entreat as a friend, by reason of the
close relation of our friendship.

roovTos ov, ‘since I am such’.—That is, I have recourse to
entreaty, since I am such as you now me to be.

css Iaddos, ‘ Paul, to be sure ’.—Founder of so many churches.

apex Burns, ‘an old man ’.—One already advanced in years, to
whom even strangers concede many things.

pov 8¢ kat Séopios “Inood Xpworov, ‘and now moreover a
prisoner of Jesus Christ ’—that is, a prisoner on account of Christ,
as we said above [note on verse 1]. Great consideration is due to
those who suffer hardships for very honourable causes; Colossians,
iv. 18; Epbesians, iv. I.

870 Notes on the Epistle of Paul to Philemon

10. mapaxah@ oe, ‘1 beseech thee’.—Ilapaxako oe here has the
connotation of entreating, or rather of interceding. If slaves had
committed any fault they were wont to arrange for an intercessor on
their behalf, as Donatus suggests in a note to Terence [On Terence’s
Phormio, line 140]. Similar to this intercession is that of Pliny on
behalf of a freedman of Sabinianus ; Letters, IX. xx.

rept Tov euod réKvov, by eyévvnoa ev Tois decpois pov, ‘on
behalf of my child, whom I have begotten in my bonds ’.—Whom
here at Rome, while I was a prisoner, J made a Christian. The rebirth
of a man is the work of God. But so great is His goodness that He
admits His servants to a participation in His name; rz Corinthians,
iv.15; Galatians, iv. 19. So likewise the Apostles are said ‘to save’,
odtew, Romans, xi. 14, and elsewhere, and z Corinthians, vil. 16.

[11.] tov woré oor dypnorov, ‘who once was of no use to
thee ’.—It is the practice of intercessors to soften the harshness of
the offence by words. Onesimus had not merely been ‘ of no use’
to Philemon, he had also caused a loss to him. Flight and theft are
commonly associated. Thus in the Code of Justinian the title On
runaway slaves (VI. i] is followed by that On thefts [VI. uJ. Says
Martial [Egigrams, XI. liv. 5-6]:

The froward hands from feet have learned to sin;
No marvel is the thief who was a runaway.

And those who were offering a slave for sale were accustomed to
give assurance that he was notathief norarunaway; [615] Dugesz,>
XVIII. i. 13 and 34.3; XLVI. vi. 1 and 3; XITX.i. 11.7 and 13.1;
Varro, On Farming, Book II [II. x. 5]; Seneca, Controversies, III. xxi
(VII. vi. 23].

12. vuvt dé oot, Kai éuol evypnorov, ‘ but now useful to thee
and to me’.—Because he was useful to Paul, he was useful also
to Philemon. For ‘the possessions of friends’, ra trav didwv, are
in common. ‘There is a word-play on the name Onesimus [the
Greek name ’Ovyjotpos means ‘ profitable ’, ‘ helpful ’].
év avéreuwba, ‘whom I have sent back’.—Doubtless with this
Epistle.

od 8 abrdv, rovréott Ta ua oTrhdyxva, TpoodaBov, ‘do thou,
then, receive him that is mine own bowels ’.—IIpochapPaveoOat
has various meanings, all of which refer to kindly feeling and acts
of kindness, as is clear from Acts, xvii. 26, Romans, xiv. I, 3, and
xv. 7. Here I should take it in the sense to receive kindly into one’s
house, as in Acts, xxvill. 2. Ta éud owhdyyva, ‘ mine own bowels’,
that is, as dear to me as my own bowels. So in Plautus [Caszna,
line 837], ‘ my little heart’.

_ 7 [Grotius gives eight references to the Digest; two are correct, but the others appear to be
mistakes. The references given above are to the passages he evidently had in mind.]

e

Notes on the Epistle of Paul to Philemon 87I

__ 13. ov éya éBovhouny mpds euavrdv Karéxyew, ‘whom I was
wishing to keep with me’.—The indicative mood is here used in
place of the subjunctive, in accordance with Greek usage. I should
have wished to keep him with me, if indeed other considerations,
which will now follow, had not opposed. In regard to this manner
of speaking, see what I have said On Matthew, xxvi. 39.

wa vmrép cov Siaxovy pot, ‘in order that he might minister to
me in thy place ’.—That he might render to me in all things the
service which thou wouldst be rendering if thou wert here.

év Tous Seopots Tov Evayyedlov, ‘in the bonds of the Gospel’.
—In these bonds, which I bear for the sake of the Gospel. The
manner of speaking is the same that we found above in verse 9.

I4. ywpis dé THs ons yropuns ovder AOA yoa Trornoa, ‘but I
wished to do nothing without thy consent .—I was unwilling to
make use of him except with thy full approval.

iva, Ma) WS KaTa avdcyKny 76 dyabdv cov, dhAG Kara. Exovaror, ‘ that
thy goodness might not be as it were from constraint, but from free
will ’.—If Paul should have kept him, the desire of Philemon would
not have become so apparent as it would be if he should have been
sent to Philemon, and Philemon should send him back to Paul; Seneca,
On Benefits, II. iv: ‘ If you wish to know whether I am willing, make
it possible for me to be unwilling’. “Exovorov, ‘of free will’, and
dvaykatov, ‘necessary’, or, To Kar dvdyKnv, ‘that which is from
constraint’, are used in contrast, asin r Peter, v.2. So Paul the jurist
sets over against each other performance from free will and from
constraint, Digest, III. v. 18. 2. Praise, moreover, is not due except
to free actions.

15. Tdya yap Sua tovro, ‘For perhaps on this account ’.—As
if he were to say, ‘ Perchance that was the plan of God, when He
permitted him to run away’. Compare Genesis, xlv. 5.

éxopioOn, ‘he went away ’.—Here also you see what we said
above, that a thing harsh in reality is softened in statement ; he said
‘went away’, éywpioby, instead of ‘ran away’. Such expressions
the Greeks call eidynpicpoi, ‘ euphemisms ’.

mpos apay, ‘for a time ’—That is, for a short time. The same
type of expression is found in 2 Corinthtans, vil. 8; Galatians, u. 5 ;
and r Thessalonians, 11. 17.

iva aidvioy avrov éyys, ‘that thon mayest have him back
forever ’.—That, reformed by me, he may be permanently useful to
thee. Aidvov, ‘forever’, is here used as in Horace, ‘will serve
forever’ [Fptstles, I. x. 41]. |

Evangelical teaching does not remove differences of status and
the authority of masters over slaves, as is clear from I Timothy, vi. 1,25
Titus, ti. 9; 1 Peter, ii. 10 [ii. 18]; Epbestans, vi. 5,6; Colossians,

872 Notes on the Epssile of Paul to Philemon

iii. 22. [616] There is therefore no reason why a Christian, who as
a master is able to have full authority over slaves, may not as a ruler
have full authority over subjects. Similar are the master in his house,
the king in his kingdom. Says Seneca, On Benefits, III. xvii: ‘If
a slave is hindered from attaining merit [as a benefactor of his
master] by necessity, and the fear of suffering to the utmost, the
same obstacles will hinder both him who is subject to a king and him
who is under a commander, since, although under different names,
they are similarly subject to authority.’ And so Peter places on an
equality the authority of kings and that of masters. For without
having recourse to a magistrate masters were able to torture slaves
who had misbehaved, and even to put them to death; Digest, I. vi. 1;
Institutes, I. vii. 1. This, moreover, was the law not only at Rome
but also in Greece; see Seneca, Controversies, V. xxxv [X. xxxv].
This in fact came from the law of nations, as we learn from the texts
of law just cited. .

In what way masters ought to apply this law, from the time that
they became Christians, Paul taught them; and he would have said
the same things to kings if at that time kings had been Christian, as
many of the masters were. Both Nicodemus and Joseph of Arimathea
were councillors, possessing authority and power to punish. For the
public council of the people as well as that of the city of Jerusalem
had the right of scourging, as is clear from Matthew, x.17; Acts, v. 48
[v. 40]; 2 Corithians, xi. 24. Furthermore, it had also the right of
punishing with death, if the Romans at any time should permit this,
as the Jews had a general permission to lull a foreigner who should
enter the enclosure of the Temple. Nevertheless, Christ never bade
these councillors, His disciples, to withdraw from that office. If He
had done so, He would undoubtedly have broken a law by which
those that had been in a lawful manner called to this office were
ordered to discharge its duties. But such procedure was far from
Him. While He passed the life of a mortal, He was ‘ under the law’,
Galatians, wv ; and He did not break the law in any particular Himself,
nor instigate others to break it.

16. obk ert as Soddoy, ‘ not now as a slave ’.—Supply ‘ merely’,
as is indicated by what follows. Frequently in the speech of all
peoples, but especially in Hebrew, this particle is understood. Again,
TpochaBov, ‘ receive ’, is to be repeated from what has gone before.

GhN’ vrép Soddoy, ‘but as more than a slave ’—Belonging to
thee not by the law of the master alone, but etc.

ddekdov ayamntév, ‘a beloved brother ’—Assuredly to all
Christians.

padurra not, * especially to me’.—To me who have made trial

of his faithful service.

Notes on the Epistle of Paul to Philemon 873

Toow d€ pahdov coi, ‘but how much more to thee ’,—He ought
to be much more dear to thee than to me, because he will be always
in thy service, so long as thou shalt desire.

kat év capt, ‘both in the flesh’.—The body of Onesimus belongs
not so much to himself as to thee, xryjoet kal yproet, ‘in respect to
possession and use’. In Aristophanes, Cario says [Plutus, 6-7]:

Mastery of the body Fortune gives not to the master,
But to him who by a purchase makes it his.

Lap&, ‘flesh’, and odpa, ‘body’, are often used one for the
other, as is clear from the Hebrew; Zephaniah [Sophontab], i. 17 3
Ezekiel, x. 12; and other passages, with comparison of the Greek
and Latin translations.

[617] 17. e oby eye eyes Kowwvdr, ‘if, then, thou countest
me a partner ’.—If thou countest me a friend, and as such sharing
in thy concerns.

TpoohaBod abrév, ‘receive him ’.—Not only refrain from the
punishment which by thine own right thou wert able to inflict, but
also receive him kindly. ‘You received into your house, unto your
heart ’, said Pliny in regard toa matter quite similar ; Letters, LX. xxiv.

os éud, ‘as myself ’—For since Onesimus was a friend of Paul,
whatever was done for him seemed to be done for Paul himself.

18. Ei 8€ 71 Hdinnoé oe, ‘Moreover if he hath wronged thee
in any respect ’.—If he carried off something when he ran away.

7H Odetder, ‘or owes [thee]’—Or if according to thy accounts
he was a defaulter. A general term is here used instead of the par-
ticular term.

TovTo éuolt édAdyet, ‘ charge this to me’.—Charge that to my
account. Make me instead of him thy surety.

19. "Eya Tlathos éypawa 7H éun yept, ‘I Paul have written
with my own hand’.—That thou mayest be certain, thou hast here
my handwriting. Thou wilt be able to bring action against me at
any time by reason of the autograph. This is what the Scholiast on
the Digest, XX. iii. 4, calls ‘to write a note of hand’. Add Digest
[Code], IV. ii, and Digest, XXXIV. i. 3. Oo

éya dotiow, ‘I will repay ’.—This, in Latin, is said to con-
stitute a pecuniary obligation, and there is a title on the subject in
the Digest [XIII. v]. The formula itself is contained in the words
éya amotio, or satisfactam tibi, ‘ I will satisfy you ’, as V ovels, cxv. 6,
has it; this is ordinarily inserted in the Code, under the title ‘On
constituting a pecuniary obligation’ [IV. xviii]. Similarly in Digest,
XIII. v. 5. 3, this formula is found: ‘I have written in accordance
with the commission of Seius, that if any debt to you has been
approved I will guarantee it to you and will pay it without con-
troversy.” And there is another formula in the same title, Drgest,

874 Notes on the Epistle of Paul to Philemon

XIII. vy. 26: ‘The ten [pieces of money] which Lucius Titius had
received as a loan from your money-chest you have, Sir, in my posses-
sion, with full reckoning of interest.’

Moreover, an obligation can be created even in respect to money
which is owed only according to the law of nature (Digest, XIII.
vy. 1.§ 7). Slaves can owe their masters, not indeed by municipal law,
but by natural law (Digest, XLV. iii. 1). So also a surety is rightly
accepted for an obligation arising by nature (Digest, XLVI. 1. 8. § 3).

iva pr héyo cou OTL Kal weavTdy pol Tpocopetders, “not to sa
to thee, that thou owest to me thy very self’.—It is a ‘figure’,
oyjpa, of ‘ passing over in silence’, tapaciaanots, or of “keeping
silent’, when we say that we wish to omit that which we are saying
with the utmost emphasis. I could say, Paul remarks, that thou
art in debt to me not only for what thou hast but also for thy very
self; with reason, for without Paul Philemon would have been, and
would have remained, in dense darkness and in sin, far from the hope
of salvation.

20. Nat, ddeddé, ‘ Yes, brother ’—Nai is here the utterance of
one entreating, as in Hebrew.

éyd cov dvainnv év Kupig, ‘Let me have joy of thee in the
Lord ’.—That is, may it be permitted to me to rejoice by reason of
thy progress in Christ. Compare Sirach [keclestasticus|, xxx. 2,
6 mawevwv Tov viov avrov, dvicerat émt avr@, ‘ whoso teacheth
his son shall have joy in him’. Ignatius, To the Magnesians [i],
says: Suaxdvov Swrlovos, of eyed dvainny, ‘of the deacon Sotion,
in whom may I have joy’; and To the Ephesians |i. 2): dvatynv
tay Sid, ravrds, ‘May I have joy of you always’.

dvdrravoov pov 74 omhdyyva év Kupig, ‘refresh my bowels in
the Lord ’.—That is, for Christ’s sake cause me to be at peace in
regard to this matter.

21. [erodes Ty vraKxon cov eypaybd oot, ‘ Having confidence in
thine obedience [ have written unto thee ’—My confidence has been
inspired by the knowledge of that obedience of thine which thou
renderest to the Gospel. [618] So wraxoy, ‘ obedience’, is taken
in Romans, 1. 5, xv. 18, xvi. 19 and 26; 2 Corinthians, vil. 15, xX. 5
and 6; x Peter, i. 14 and 22.

cidds ort Kal Umep 6 éyea troijoeis, ‘ knowing that thou wilt do
even beyond what I say’.—I count it certain that thou wilt do more
than I should dare to demand.

22. “Apa o€ kal éroiwalé pos Eevtay, ‘ At the same time moreover
prepare me also a lodging ’.—Prepare a lodging; so fevia, ‘lodging’,
is used in Acts, viii. 23 [xxvili. 23], and by Josephus and others.

extrile yap or dia TY TpoTEvy oY Duar xapicOncopas dpiv, ‘for

I hope that through your prayers I shall be granted to you ’.—I hope

Notes on the Epistle of Paul to Philemon 875

that in answer to your prayers God will vouchsafe me to you, that is
my coming to you. Some think that this hope of Paul was fulfilled
and that, freed from his bonds, he went to Asia; that he returned
to Rome.

23. Aomdlovrai oe "Exadpas, ‘ There salute thee Epaphras .. .’
—The full name is "Ezadpdderos (Epaphroditus) ; Philippians, il. 25 ;
iv. 18. The contracted form "Evadpas is found in Colossians, 1. 7 5
iv. 12. Many contracted names of this sort, in as, we have brought
together at the beginning of Luke.

6 cvvatypddwrds pov, ‘my fellow-prisoner ’.—One of those of
whom mention is made in Acts, xxvii.

év Xpiora@ “Inood, ‘in Christ Jesus ’.—That is, on account of
Jesus Christ, as in verse 20 above.

Mdpxos, ‘ Mark’.—He of whom mention is made in Acts, xu. 12
and 25; xv. 37 and 39; Colossians, iv. 10.

24. Anpas, ‘ Demas ’.—Whose full name was Demetrius. He is
mentioned in Colossians, iv. 14; 2 Itmothy, iv. 10.

Aovxas, ‘ Luke’.—A physician who gave to us the Gospel and
the Acts. See Colossians, iv. 14; 2 Timothy, iv. II.

of cuvepyot pou, ‘ my fellow-workers ’.—See on verse 1 above.

[25.] “H ydpis rod Kupiov Apav “Inood Xpiorod, ‘the grace of
our Lord Jesus Christ ?.—The favour of Christ.

peera& TOU mvevpatros tpov, ‘with your spirit ’—That is, be
with you. The same phrase is used in Galatians, vi. 18. Elsewhere in
place of this phrase he said: pe? tudr, cat pera wavrav vpar,
‘with you ’, ‘and with you all’.

"Apny, ‘ Amen ’.—This is the word with which the Church made
response after the reading of the Epistles. In consequence it began
to be added to all the Epistles of Paul. See what I have said On
Matthew, vi. 13.

LIST OF EDITIONS AND TRANSLATIONS OF
THE DE JURE BELLI AC PACIS:

1. Hvgonis Grotii de ivre Belli ac Pacis libri tres. In quibus
ius nature & Gentium: item iuris publici precipua explicantur.
Parisiis; Apud Nicolavm Bvon, in via Iacobza, sub signis
S. Claudij, & Hominis Siluestris. M.DC.XXV. Cvm Privilegio
Regis. 4°. [Not all the copies of this edition are alike, in
consequence of changes made by Grotius during printing. |

2. Hvgonis Grotii . . . explicantur. Moeno-Francofvrti,
Typis & Sumptibus Wechelianorum, Danielis & Dauidis Aubrio-
rum & Clementis Schleichii, Anno M.DC. XXVI. 8°.

3. Hvgonis Grotil ...explicantur. Editio secunda emen-
datior, & multis locis auctior. Amsterdami, Apud Gvilielmvm

Blaevw. CIO IOC XXXxI. Cum privilegiis 8. Cesarez Maj. &

Christianissimi Galliarum Regis. fol.
4. Hugonis Grotiit . . . explicantur. Editio tertia emen-

datior, & multis locis auctior. Amsterdami, Apud Joannem

Tansonium. CIO IOC XXXII. 8.

5. Hvgonis Grotil...explicantur. Editio nova ab Auctore
ipso recognita & correcta: de qua vide pagina sequenti. Amster-
dami, apud Gvilielmvm Blaev. CIO JOC XXXIJ. Cum privi-
legiis S. Ceesareze Majestatis, & Christianissimi Galliarum Regis.
8°.

6. Hvgonis Grotii . . . explicantur. LEditio nova cuni
Annotatis Auctoris. Accesserunt et Annotata in Epistolam
Pauli ad Philemonem. Amsterdami, apud Ioh. & Cornelivm
Blev. CIOIOC XLII. 8°.

7. Hvgonis Grotii . . . explicantur. Editio nova cum
Annotatis Auctoris, Ex postrema ejus ante obitum cura multo
nunc auctior. Accesserunt & Annotata in Epistolam Pauli ad
Philemonem. Amsterdami, apud Iohannem Blaev. MDC
XLVI. 8°.

8. Hugonis Grotii .
bus Henrici Laurentii.

.» Philemonem. Amsterdami, sumpti-
MDC XLVII. fol.

1 Reprinted in summary form, by permission of Jacob ter Meulen, Librarian of the Peace
Palace at The Hague, from his elaborate bibliographic list in the Bibliotheca Vissertana,
volume v (Leyden, 1925), pages 159-99. No. 342 was discavered by Dr. ter Meulen after the
publication of his list.

877

Paris 1625.

Frankfort-on-

the-Main
1626.

Amsterdam
1631.

Amsterdam
1632.

Amsterdam
1632.

Amsterdam
1642.

Amsterdam
1646.

Amsterdam
1647.

Amsterdam
1650.

Amsterdam
1651.

Amsterdam
1651.

Amsterdam
1660.

Amsterdam
1663.

Amsterdam
1667.

Amsterdam
1670.

Jena 1673.

Amsterdam
1680.

The Hague
1680.

Jena 1680,

878 List of Editions and Translations

. Hvgonis Grotii ... Philemonem. Amsteledami, apud
Ioannem Blev. MDCL. 8°.

10. Hvgonis Grotii... Philemonem. Amsteledami, apud
Toannem Blev. MDCLI. 8°.

11. Hugonis Grotii... Philemonem. Amstelodami, Apud

Toannem Janssonium. CIO IOCLI. 8°.

12. Hvgonis Grotii... Philemonem.
Ioannem Blaev. MDCLX. 8.

13. Hvgonis Grotii . . . Philemonem.
Joannem Blaev. MDCLXIII. 8.

14. Hvgonis Grotii... Philemonem, et Dissertatio de Mari
libero. Amsteledami Apud Ioannem Blaev. MDC LXVII. 8°.

15. Hvgonis Grotii... Mari libero. Amsteledami, Apud
Joannem Blaev. MDC LXX. 8°.

16. Hugonis Grotii . . . explicantur, Cum ejusdem I.
Annotatis ex postrema ante obitum cura, IJ. Commentatione
in Epistolam Pauli ad Philemon et III. Dissertatione de Mari
Libero Publicé ad Disputandum propositi, novis Animadver-
sionibus illustrati, Indiceque Rerum ac Verborum locupletissimo
adornati, Dirigente Johanne Georgio Simone, . . . Jena Apud
Johann. Theodor. Fleischern. Typis Samuelis Adolphi Miller.
M.DC, LXXIII. 4°.

17. Hugonis Grotii ...explicantur. Editio novissima cum
Annotatis Auctoris, ex postrema ejus ante obitum cura. Acces-
serunt Annotata in Epistolam Pauli ad Philemonem, Dissertatio
de Mari libero, & Libellus singularis de Aequitate, Indulgentia
& Facilitate, quem Nicolaus Blancardus Belga Leidensis é codice
Autoris descripsit & vulgavit. Nec non Joann. Frid. Gronovil
V. C. note in totum opus de Jure Belli ac Pacis. Amsteledami,

Apud Janssonio-Wesbergios, M DC LXXX. 8°.

18. Hugonis Grotil... explicantur. Editio novissima...
vulgavit. Nec non Joann. Frid. Gronovii V. C. note in totum
opus de Jure Belli ac Pacis. Hage Comitis, Apud Arnoldum
Leers, MDC LXXX. 8°.

19. Hugonis Grotii . . . explicantur. Cum ejusdem I.
Annotatis ex postrema ante obitum cura, IJ]. Commentatione
in Epistolam Pauli ad Philemon. III. Dissertatione de Mari
Libero, IV. Epistola de Studiis instituendis, ad Benjaminum

Amsteledami, Apud

Amsteledami, Apud

Maurerium, Legatum Regis Gallie &, V. Excerpto ex alia de

juris studio. Publicé olim ad Disputandum propositi, nunc vero

List of Editions and Translations 879

novis Animadversionibus & adjectionibus locorum concor-
dantium illustrati, allegatione Scriptorum distinctiori, Indicéqve
pariter Rerum ac Verborum locupletissimo adornati, Dirigente
Johanne Georgio Simone, ... Jenz, Sumtibus Johannis Theodori
Fleischeri, Bibliopol. Rudolphstadii, Literis Christophori Flei-
scher1, Anno MDC LXXX. 8°.

20. Hugonis Grotii . . . explicantur. Cum Annotatis
Auctoris, ex postrema ejus ante obitum cura. Accesserunt
Annotata in Epistolam Pauli ad Philemonem, Dissertatio de
Mari Libero, & Libellus singularis de Aequitate, Indulgentia &
Facilitate quem Nicolaus Blancardus Belga-Leidensis é codice
Auctoris descripsit & vulgavit. Nec non Joann. Frid. Gronovii
V. C. Notz in totum opus de Jure Belli ac Pacis. Amstelodami.
Sumptibus Janssonio~-Wesbergiorum, M DC LXXXIX. 8°.

21. Hugonis Grotii . . . explicantur. Cum Annotatis...
vulgavit. Nec non Joann. Frid. Gronovii V. C. Note in totum
opus de Jure Belli ac Pacis. Amstelodami. Sumptibus Abrahami
4 Someren, M DC LXXXIX. 8°.

22. Hugonis Grotii ... explicantur, cum Annotatis Autoris
ex postrema ejus ante Obitum cura: Accesserunt Excerpta
Annotationum Variorum Virorum Insignium in totum Opus,
edente Joh. Christoph. Becmano. . . . Francofurti ad Viadrum,

Impensis Jeremie Schrey/M.DC.XCI. 4».

23. Hvgonis Grotii de Jure belli et pacis libri tres, cum
annotatis Ipsius Autoris, & clarissimi Gronovii; tum noviter
accuratis commentariis perpetuis Joh. Tesmari JCti Celeb€rrimi.
Opus vt mvltorvm annorvm, ita Academiis, Aulis, Dicasterus, diu
multumque desideratum ; Theologis, Jure-Consultis, Philosophis,
Oratoribus, omnibusque adeo solide eruditionis studiosis perquam
utile & necessarium ; quippe in quo textus Grotianus fideliter
exhibetur, obscuriora perspicué illustrantur, dubia rationibus &
auctoritatibus tam veterum quam recentium Scriptorum solide
confirmantur, Paradoxa modesté diluuntur, omissa sedul6é sup-
plentur, aliorumque interpretationes solicité perpenduntur &
inter se conferuntur. Ad calcem operis accessere Ulrici Obrechti,
JCti Excellentissimi, Observationes ad eosdem Libros, cum
Indicibus plenissimis. Francofurti ad Moenum Sumptibus Joan.

Davidis Zunneri, Typis Joannis Bauer, M DC XCVI. fol.

24. Hugo Grotius de Jure belli ac pacis In quibus Jus
Naturae & Gentium, item Juris publici praecipua explicantur.
Cum annotationibus Auctoris, & Notis eruditissimis Variorum.
Ex accuratissima recensione & cum animadversionibus viri

1569°27 3.N

Amsterdam
1689.

Amsterdam
1689.

Frankfort-on-
the-Oder
169gI.

Frankfort-on-
the-Oder

1696.

Leyden 1696.

Utrecht 1696~

1703.

Frankfort-on-

the-Oder
1699.

Amsterdam
L701,

Amsterdam
170 I es

Amsterdam
1702.

Amsterdam
1704.

Amsterdam
1712.

{

880 List of Editions ana 1 vanstanons

desideratissimi Gothofredi Spinaei, In Academia Lugd. Batava,
(dum viveret) Professoris ordinarii. Editio plane nova. Lugduni

Batavorum, Ex Officina Johannis du Vivié, Bibliopolae 1696. 4°.

25. Hugonis Grotii . . . explicantur, Cum commentariis
Gulielmi vander Muelen ... Accedunt Et Authoris Annotata,
ex postrema ejus ante obitum cura nec non Joann. Frid. Gronovii
V. C. Note in totum opus. Ultra Jecti, Prostant apud Guliel-
mum vande Water [Gulielmum Broedelet], Bibliopol. CIO
IDC XCVI[MDCC][MCDCITT]. 3 v. fol.

26. Hugonis Grotii... explicantur, Cum Annotatis Autoris
ex postrema ejus ante obitum cura: Accesserunt Excerpta
Annotationum variorum Virorum Insignium in totum Opus,
edente Joh. Christoph. Becmano. Editio secunda correctior ...
Francofurti ad Viadrum, Impensis Jeremie Schrey / & Joh.
Christoph. Hartmann /M.DC.IC. 4°.

27. Hugonis Grotii . . . cura. Accesserunt Annotata in
Epistolam Pauli ad Philemonem, Dissertatio de Mari Libero,
& Libellus singularis de Aequitate, Indulgentia, & Facilitate,
quem Nicolaus Blancardus Belga-Leidensis e codice Auctoris
descripsit & vulgavit. Nec non Joann. Frid. Gronovii V. C.
Note in totum opus de Jure Belli ac Pacis. Editio novissima,...
Amstelodami, Apud Janssonio-Waesbergios. MDCCI. 8°.

28. Hugonis Grotii . . . ostendit. Amstelodami, Apud
Viduam Abrahami a Someren. MDCCI. 8°.

‘29. Hugonis Grotii . . . ostendit. Amsteledami, Apud
Henricum Wetstenium, ut & Rodolfum & Gerhardum Wet-
stenios, H. FF. CIOIOCCII. 8.

30. Hugonis Grotii . . . explicantur. Cum Commentariis
Gulielmi vander Muelen, Domini d’Oudt-Brouckhuysen, Decani
D. Marie, Aggerum, qui inferiorem Lecce partem coércent,
Prefecti; &c Accedunt Et Auctoris Annotata, ex postrema ejus
ante obitum cura; & Joan. Fred. Gronovii Note in totum opus.
Amsteledami, Apud Janssonio-Waesbergios & Wetstenios. CIO
IO CCIV. ... 3 v. fol.

31. Hugonis Grotii . . . explicantur. Cum Annotatis
Auctoris, ex postrema ejus ante obitum cura. Accesserunt
ejusdem Dissertatio de Mari libero, & Libellus singularis de
equitate, indulgentia, & facilitate, Nec non Joann. Frid. Gronovii
V.C. Notz in totum opus de Jure Belli ac Pacis. Editio novis-
sima, . . . Amsteledami, Ex Officina Wetsteniana. CIO IO
CCXIT ... 8°.

List of Editions and Translations 881

32. Hugonis Grotii . . . ostendit. Amsteledami, Apud
Janssonio-Waesbergios. CIO IO CCXII... . 8°.

33. Hugonis Grotii... cura. Accesserunt Excerpta Anno-
tationum variorum virorum insignium in totum opus edente
Joh. Christoph. Becmano. Editio Secvnda Correctior. . . .
Francofurti ad Viadrum Apvd Jeremiam Schrey. MDCCXVIII.
4°.

34. Hugonis Grotii .. . cura. Accesserunt ejusdem Dis-
sertatio de mari libero, & Libellus singularis de equitate, indul-
gentia, & facilitate, Nec non Joann. Frid. Gronovii V. C. Note
in totum opus de Jure Belli ac Pacis. Editio novissima [n.p.].

Anno CIO ID CCXIX. . .. 2 v. 4°.

34a. Hugonis Grotii . . . cura. Accesserunt ejusdem
dissertatio de mari libero, et libellus singularis de zxquitate,
indulgentia, et felicitate, nec non Joann. Frid. Gronovii V. C.
note in totum opus de jure belli ac pacis. Editio novissima.
Augustaeé 1719-1723. 2. 4°. |

35. Hugonis Grotii . explicantur. Cum Annotatis
Auctoris, ejusdemque Dissertatione de Mari libero, ac Libello
singulari de Aequitate, Indulgentia, & Facilitate: Nec non
Joann. Frid. Gronovii V..C. Notis in totum opus de Jure Belli
ac Pacis. Editionem omnium, que hactenus prodierunt, emen-
datissimam, ad fidem priorum & optimarum recensuit;...
Notulas denique addidit Joannes Barbeyrac, . . . Amsteledami,
Ex Officina Wetsteniana’'CID ID CCXX. .-. . 8°.

36. Hugonis Grotii . . . addidit Joannes Barbeyrac, Jc. &
Publici Privatique Juris Antecessor Groninganus. Amsteledami,
Apud Janssonio-Waesbergios. CIO JO CCXX. ... 8°.

37. Hugonis Grotli .. . cura, et Prefatione Christiani
Wolfii. .Marburgi Cattorum, Apud Phil. Casimir. Millerum.
M DCC XXXIV. 8°.

38. Hugonis Grotii . . . explicantur. Cum Annotatis
Auctotis, ejusdemque Dissertatione de Mari libero; Ac Libello
singulari de Aequitate, Indulgentia, & Facilitate; Nec non
Joann. Frid. ‘Gronovii V. C. Notis in totum opus de Jure Belli
ac Pacis. Ex altera recensione Joannis Barbeyracii, . . . Cum
Notulis ejusdem nunc auctioribus, pluriumque locorum, ex
Auctoribus quibusvis landatorum, adcuratiori indicatione. Am-
steledami, Apud Janssonio-Waesbergios. CIO IO CCXXXV.
2v. 8°.

3N2

Amsterdam
1712.

Frankfort-on-~
the-Oder
1718.

Place un-
known 1719.

Place ?
1719-23.

Amsterdam
1720.

Amsterdam
1720.

Marburg
1734-

Amsterdam
1735-

Amsterdam
1735-

Breslau 1744,
1740, 1747,
1752.

Lausanne
1751-2.

Lausanne

1758, 1759

Leipzig 1758.

Utrecht 1773.

882 List of Editions and Translations

39. Hugonis Grotii . . . indicatione. . . . Amsteledami,

Sumptibus Gasparis Fritsch. CIO IO CCXXXYV. 2 v. 8°.

40. Henrici de Cocceji Sacre Regize Majestati Borussicz
quondam a consiliis secretioribus Grotius illustratus seu Com-
mentarii ad Hugonis Grotii de Jure belli et pacis libros tres in
quibus Jus Nature & Gentium, item Juris Publici precipua
explicantur. Adduntur Annotata Authoris ex postrema ejus
ante obitum cura. In commentario id precipue agitur, ut
Grotius ex ipso Grotio illustretur, defectus circa principia
Grotiana notentur; et vera juris nature principia, inprimis
quatenus ad interpretationem juris romani pertinent, pro-
ponantur. Accedunt Observationes 8. d.C.H.F.... Wratislavie
sumtibus Johannis Jacobi Korn. Bibliopol. Anno 1744, (1746),
(1747), (1752). 4v.-fol. [The title-page of the fourth volume

enumerates other writings of Grotius. |

41. Hugonis Grotii de Jure belli ac pacis libri tres, Cum
Annotatis Auctoris, nec non J. F. Gronovii Notis, & J. Barbey-
racii Animadversionibus ; commentariis insuper locupletissimis
Henr. L. B. de Cocceili . . . insertis quoque observationibus
Samuelis L. B. de Cocceii Henrici filii . . . Adduntur tandem
ipsius Grotii Dissertatio de Mari libero, ac Libellus singularis de
Aequitate, Indulgentia et Facilitate. Lausanne, Sumptibus
Marci-Michaelis Bousquet, & Sociorum. MDCCLI, [MDCCLT]
[MDCCLIT] [MDCLIT]. 5 v. 4°.

42. Hugonis Grotii ... Facilitate. Cum quibusdam notis
criticis. Lausanne. Sumptibus Marci-Michaelis Bousquet, &
Sociorum. MDCCLVIII. [MDCCLVIIT] [MDCCLIX]
[MDCCLIX] [MDCCLIX]. 5 v. 4°.

43. Hugonis Grotii . . . explicantur. Cum Annotatis
Auctoris eiusdemque Dissertatione de Mari libero; Ac Libello
singulari de Aequitate, Indulgentia, et Facilitate; Nec non
Jo. Fr. Gronovii v. c. Notis in totum opus de Jure belli ac pacis.
Ex altera recensione Joannis Barbeyracii. . . . Cum Notulis
ejusdem nunc Auctioribus, pluriumq. locor. ex Auctorib. quib.
laudat. adcuratiori indicatione. . . . Lipsie Impensis Ioannis

Pauli Krausii bibliop. Vienn. MDCCLVIII. 2 v. 8°.

44. Hvgonis Grotii de Ivre belli ac pacis libri tres, cum
adnotationibus selectis Joann. Frid. Gronovii, & auctioribus
Ioannis Barbeyracii. Accedit H. Grotii Dissertatio de Mari
libero; Et Libellus singularis de Aeqvitate, Indvlgentia, &
Facilitate. Edidit atque prefatus est Meinardvs Tydeman.

List of Editions and Translations 883

Traiecti ad Rhenvm. Ex officina Ioannis a Schoonhoven & Soc.

CIO ID CC LXXTIT. 2 v. 8°.

45. Hugonis Grotii de jure belli et pacis libri tres accom-~
panied by an abridged translation by William Whewell .. .
Edited for the Syndics of the University Press. Cambridge :
M. DCCC. LITI. John W. Parker, London. 3 v. 8°.

46. Hugonis Grotii... Philemonem. Volume one. Re-
production of the Edition of 1646, Carnegie Institution of
Washington, 1913. 4°. [For Volume Two see No. 76, post.]

47. Hugonis Grotii...explicantur. Cum annotatis auctoris
edidit P. C. Molhuysen. Prefatus est C. van Vollenhoven.
Lugduni Batavorum Apud A. W. Sijthoff. MCMAIX. 4.

Translations

Dutch

48. Drie boecken Van Hvgo de Groot, Nopende het Recht
des Oorloghs Ende des Vredes. In dewelcke het Recht der
Natuere, der Volckeren, mitsgaders de principaelste stucken van
’t Burgelijcke Recht verklaert werden. Eerst in ’t Latijn uyt-
gegeven, Ende nu ten dienste van alle Bedienaers vande Bancken
der Justitie/ende andere weet-suchtige Lief-hebbers onses
Vaderlands / In’t Neder-duyts vertaelt Door H.V. Ghedruckt
te Haerlem, by Adriaen Roman / Boeckdrucker, woonende inde
Groote Houtstraet, inde Vergulde Parsze. Anno 1635. 4°.

49. Drie Boecken Van ’t Recht des Oorloghs en Vredes. . . .
overgheset Door B. D. Seer . . . t? Amsterdam, Gedruckt by
Iacob Colom, Boeckverkooper op het Water, in de vyerighe
Colom, Anno 1651. 4°.

50. Drie Boecken Van ’t Recht des Oorloghs en Vredes ...
overgheset Door B. D. Den tweeden Druck. Seer... t’
Amsterdam, By Ian Hendricksz En Willem van Beaumont,
Boeck-verkoopers. 1657. 4°.

51. Hugo de Groot Van ’t Regt des Oorlogs en Vredes, . . .
met de beste verklaringen en tegenwerpingen van de Hr. Joh.
Frid. Gronovius, en anderen : nooit op die wijze in onze spraake
aan ’t ligt gebragt. Door Jan van Gaveren. Met een zeer
wijdloopig register. t? Amsterdam, By Frangois van-der Plaats,
Boekverkoper in de Gaper-steeg, by de Beurs. £705. 4°.

Cambridge
1853.

Washington
1913.

Leyden 1919.

Haarlem

1635.

Amsterdam
1651.

Amsterdam
1657.

Amsterdam.
1705.

Amsterdam
1732.

Paris 1687.

Amsterdam
‘The Hague
1688.

The Hague
1703.

Amsterdam
1724.

Amsterdam
1729.

Basel 1746.

Leyden 1759.

Basel 1768.

Leyden-Lyons

1768.

Paris 1865-7.

884. List of Editions and Translations

52. Hugo de Groot van ’t Regt des Oorlogs en Vredes, . . .
Tweeden druk. t’? Amsteldam, By Salomon Schouten, Boekver-
kooper in de St. Luciesteeg. 1732. 4°.

French

53. Le Droit de la guerre et de la paix, par M. Grotivs :
divisé en trois livres, Ou il explique le Droit de Nature, le Droit
des Gens, & les principaux Points du Droit public, ou qui
concerne le gouvernement public d’un Etat. Traduit du Latin
en Francois, par Monsieur de Courtin. .. . A Paris, Chez Arnould
Seneuze,... M. DC. LXXXVII.... 2 v. 4°.

54. Le Droit de la guerre et de la paix, .. . Traduit du
Latin en Francois, par Monsieur De Courtin.... A Amsterdam,
Chez Abraham Wolfgang; et 4 la Haye, Chez Adrian Moetjens.
M. DC. LXXXVIII. 3 v. 12°.

55. Le Droit de la guerre et de la paix, .. . Traduit du
Latin en Francois, par Monsieur De Courtin. Augmenté dans
cette Edition de la Dissertation de la Liberté de la mer, &c.
A La Haye, Chez Adrian Moetjens. M.DCCIII. 3 v. 12°.

56. Le Droit dé la guerre et de la paix. Par Hugues
Grotius. Nouvelle traduction, par Jean Barbeyrac, . . . Avec
les Notes de Auteur méme, qui n’avoient point encore paru en
Francois; & de nouvelles Notes du Traducteur. A Amsterdam,

Chez Pierre de Coup. MDCCXXIV. 2 v. 4°.

57. Le Droit de la guerre et de la paix; par Hugue
Grotius. Nouvelle traduction ; Par Jean Barbeyrac,...A Am-

sterdam, Chez Pierre de Coup. M. DCCXXIX. 2 -v. 4°.

58. Le Droit de la guerre et de la paix... .A Basle, Chez
Emanuel Thourneisen, MDCCXLVI. 2 v.:4°.

59. Le Droit de la guerre et de la paix par Hugues Grotius.
...A Leide, Aux Dépens de la Compagnie. MDCCLIX 2 v. 4°.

6o. Le Droit de la guerre et de la paix par Hugues Grotius.

Nouvelle traduction, Par Jean Barbeyrac, . . . A Basle, Chez
Emanuel Tourneisen, MDCCLXVIII. 2 v. 4°.

61. Le Droit de la guerre et de la paix, .. . A Leyde, chez
J. de Wetstein : Et se trouve, A Lyon; Chez Jean-Marie Bruyset,
Imprimeur-Libraire. MDCCLXVIII. 2 v. 4°.

62. Le Droit de la guerre et de la paix . . . Nouvelle tra-
duction Précédée d’un Essai biographique et historique sur
Grotius et son temps accompagnée d’un choix de notes de
Gronovius, Barbeyrac, etc. complétée par des notes nouvelles.

List of Editions and Translations 885

Mise au courant des progrés du Droit public moderne et suivie
d’une table analytique des matiéres par M. P. Pradier-Fodéré,
... Paris Guillaumin et C®. .. . 1865 (1867) (1867). 3 v. 8°. 12°.

German

63. Hugonis Grotii Drey Biicher vom Rechte des Krieges
und des Friedens / darinnen das Recht der Natur und der Volcker /
wie auch die vornehmsten Sachen desjenigen Rechtes / welches
von der Regierung eines Staates handelt / erklaret/ und die
Anmerckungen des Verfassers hinzugeftiget werden. Aus dem
Lateinischen ins Deutsche iibersetzet durch P. B. S. g. Schutz /
.... Leipzig / verlegts Friedrich Grogchuff/im Jahr Christi /
1707. 4°.

64. Hugonis Grotii Drey Biicher von Kriegs- und Friedens-
Rechten . . . Ins Teutsche tibersetzet und herausgegeben von
J.N.S.... Franckfurt am Mayn / Zu finden bey Notar. Fischern /
neben dem Schonburger Hof. Und daselbst gedruckt bey
Johann Bauern / MDCCIX. fol.

65. Hugonis Grotii Drey Biicher von Kriegs- und Friedens-
Rechten, .. . Ins Teutsche tibersetzet und herausgegeben von
J. N.S... . Franckfurt am Mayn, Zu finden bey Wolffgang
Christoph Multzen. Den‘ Laden gegen dem neuen Caffee-
Haus tiber. MDCCXXI. fol.

66. Hugonis Grotii Drey Biicher von Kriegs- und Friedens-
Rechten, .. . Ins Teutsche iibersetzet und herausgegeben von
J. N.S... . Franckfurt am Mayn, Zu finden bey Wolffgang
Christoph Multzen MDCCXXVIII. fol. .

67. Des Hugo Grotius drei Biicher tiber das Recht des
‘Krieges und Friedens, .. . Aus dem Lateinischen des Urtextes
iibersetzt ... von J. H. v. Kirchmann. Berlin, 1869. Verlag
‘von L. Heimann. 2 v. 8°.

English
68. The illustrious Hvgo Grotius of the Law of Warre and
Peace with annotations. III parts. And Memorials of the
Author’s Life and Death. . . . London, Printed by T. Warren,
for William Lee, And are to be sold at his shop, at the signe of
the Turks-head in Fleet-street, M. DC. LIV. 8°.

69. idem, M.DCLV. 8°.

70. The most excellent Hugo Grotius his three Books
Treating of the Rights of War & Peace. . . . Translated into

Leipzig 1707.

Frankfort-on-
the-Main
1709.

Frankfort-on-
the-Main
1721.

Frankfort-on
the-Main
1728.

Berlin 1869.

London 1654.

London 1655.
London 1682.

London 1715.

London 1738.

Pontefract
1814.

Cambridge
1853.

Washington,
London 1901.

Oxford 1925.

Madrid 1925.

886 List of Editions and Translations

English by William Evats, B.D. London, Printed by M. W.
for Thomas Basset at the George in Fleetstreet, and Ralph
Smith at the Bible under the Piazza of the Royal Exchange in
Cornhill. MDCLXXXII. fol.

71. H. Grotius of the Rights of War and Peace, In three
volumes. ... Done into English by several Hands; ... London:
Printed for D. Brown in Exeter Exchange in the Strand; T.
Ward in the Inner-Temple Lane; and W. Meares at the Lamb
without Temple Bar. MDCCXYV. 3 v. 8°.

72. The Rights of War and Peace, in three books... .
London: Printed for W. Innys and R. Manby, J. and P. Knap-
ton, D. Brown, T. Osborn, and E. Wicksteed. MDCCXXXVIII.
fol.

73. The Rights of War and Peace, including the Law of
nature and of nations, translated .. . by the Rev. A. C. Camp-
bell. Pontefract: Printed by B. Boothroyd, and sold by F. and
C. Rivington; Gale, Curtis, and Co., Paternoster Row; Cadell
and Davies, Strand; and Stockdale, Piccadilly, London. 1814.
3 v. 8°,

74. Grotius on the rights of war and peace: an abridged
translation. By William Whewell . . . Edited for the Syndics of

the University Press. Cambridge: MDCCCLIII. John W.
Parker, London. 3 v. 8°. |

75. The rights of war and peace... translated ... by
A. C, Campbell, A.M. With an introduction by David J. Hill,
...M. Walter Dunne, Publisher Washington & London. [1901.]
8°, [An abridged reprint of No. 73.]

76. De Jure Belli ac Pacis Libri tres by Hugo Grotius.
Volume Two: The translation by Francis W. Kelsey with the
collaboration of Arthur E. S. Boak, Henry A. Sanders, Jesse 5.
Reeves and Herbert F. Wright and an introduction by James
Brown Scott. Oxford: at the Clarendon Press, 1925. 4°.
[Publication of the Carnegie Endowment for International
Peace, Division of International Law. For Volume One see

No. 46, supra.]
Spanish

77. Del Derecho de la Guerra y de la Paz de Hugo Grocio.
Version directa del original Latino por Jaime Torrubiano Ripoll

. .. Editorial Reus (S.A.). Madrid, 1925. 4 v. 16°.

INDEXES

NOTE

An attempt has been made to give the full name, date of birth and death or
floruit, nationality, and field of labour of each author and the title of each work
referred to by Grotius. The translated title is given first where the English
translation helps to disclose the subject-matter of the work, in which case it is
followed by the original title in parentheses. If the original title is in some other
language than Latin, it is omitted or the Latin title under which it is commonly
cited is substituted. The Loeb Classical Library and the Oxford Classical Texts
have been used to verify the references where available. Otherwise a place and
date is added inside the parentheses to indicate the edition used to verify Grotius’s
citations. Where the former were not available and no other edition has been
specified, the reference has not been verified in the original. References to the
authors and works contained in the Corpus Iurts Civils or the Corpus Iuris
Canontict are listed only under the particular.part of the Corpus unless mentioned
specifically by Grotius under their own name. Grotius almost invariably cites
examples in support of his statements ; references to these will be found under
the subject which they exemplify. In the verification of the references and in
the preparation of the indexes, invaluable assistance has been rendered by Mr.
Walter H. Zeydel of the Division of International Law of the Carnegie Endow-
ment.—H. F. W.

INDEX OF AUTHORS CITED

Abarbanel, see Abrabanel.

Abbas Panormitanus, see Panormitanus.

Aben-Ezra, or Ibn’Ezra, Abraham-ben-
Méir (1119-c. 1194), Spanish Jewish
exegete, 613.

On Genesis, 371.

On Fob, 488.

Abrabanel, Isaac (1437-1508),
rabbi, 516.

On Deuteronomy, 62.

Abulensis (ie. of Avila), see Tostado,
Alonso.

Accolti, Francesco (1418—-c. 1485), Italian
canonist, of Arezzo, hence sometimes
cited as Aretinus.

Constlia, 99.

On Sext, 627.

Accursius (c, 1182-1260), Italian glossator.

On Digest, 323.

Achilles Tatius (3d or 4th century), Greek
romance-writer.

On Aratus (Isagoge ad Arati Phaenomena),

311 (bis), 312.

Acominatus, see Nicetas Acominatus.

Acosta, José de (c. 1539-1600), Spanish
Jesuit.

On Securing the Salvation of the Indians

(De Procuranda Indorum Salute), 506.

Acron, Helenius (2d century), Roman
grammarian.

On Horace’s Satires, 15.

Acts of the Apostles, see Brble.

Adam of Bremen (11th century), historian.

Ecclesiastical History (Gesta Hamburgen-

sis Ecclesiae Pontificum, vel Historia
Ecclesiastica), 279, 696, 842.

Ado, St. (c, 800-875), Archbishop of Vienne,
85.

Chronicon, 119.

Adrian VI (1459-1523), Pope, Dutch theo-
logian.

Quaestiones Quodlibeticae XII, 195, 592.
Aegidius Regius, see Regius, Aegidius.
Aelian, Claudius (fl. 200), Greek historian,

248.

: Various History (Varia Historia, Leipzig,
1887), 38, 144, 169, 233, 449, 450 (bis),
456, 513, 514, 530, 541, 577, 581, 620,
621, 657, 751; 772, 790-

Spanish

History of Animals (De Natura Animalium,
Leipzig, 1884), 751.
Aelianus Tacticus (fi. 100), Greek writer on
war.
Tactica, 634.
Aelius Gallus, see Gallus, Aelius.
Aemilius, Paulus, see Emilio, Paolo.
Aeneas Sylvius, see Sylvius, Aeneas.
Aeschines (389-314 3.c.), Athenian orator.
Concerning the Badly Conducted Embassy,
528, 653, 665, 667.
Against Ctesiphon, 458, 562.
Aeschylus (525-456 B.c.), Greek tragic poet,
458.
Agamemnon, 371.
Choephorae, 231.
Furies, 250.
Perstans, 126, 775.

Prometheus Bound, 126, 139, 613.
Supplianis, 107, 108, 246 (bis), 371, 534-
Afflictis, Matthaeus de (1448-1528), Italian

lawyer.
Dectsiones Sacri Regit Constlit Neapolttant,
252, 389.
De Natura Succedend1, 294.
On the Feuds (Commentarius super tres
libros Feudorum), 213-
Agapetus (6th century), deacon of St.
Sophia at Constantinople.
Paratnetica, 524.
Agatharchides (2d century B.c.), Greek
grammarian, 123.
Agathias (c. 5 30-c. 582), Greek historian.
Histories (edit. Dindorf, in Mtstorece
Graect Minores, Leipzig, 1871, vol. ii),
19 (bis), 26, 81, 131, 135, 173, 215,
286, 387, 402, 454, 462, 483, 487, 519,
521, 546, 548, 556, 564, 654, 665, 698,
722, 728, 734, 743. 752s 773s 7872 816,
855, 857. ;
Aggenus Urbicus (1st or 2d century), Latin
grammaticus.
Commentary on Frontinus (In fulium
Frontinum Commentarius), 217, 300.
Aguirre, Miguel d’ (d. 1588), Spanish juris-
consult.
Apologia pro Successione Regni Portugailiae
pro Philippo Secundo Htsp. Rege, 294,
388.

890

Index of Authors Cited

Aimoin (d. 1008) of Fleury-sur-Loire,
French monk and historian.

History of the Franks (Htstorta Francorum),
114 (bis), 118, 292, 386, 438, 449, 531,
675, 822.

Aimone, see Cravetta, Aimone.

Alberico de Rosate, see Rosate, Alberico de.

Albert of Strassburg (4. 1349).

Chrontcon, 813.

Albertus Argentinensis, see Albert of Strass-
burg.

Alciati, Andrea (1492-1550), Italian lawyer.

Constlia, 429, 847.

On Decretals (Commentaria in Aliquot
Furis Canonici Rubricas et Capitula),
426,

Paradoxa, 565.

Praetermissa, 325.

Responsa, 413, 812.

Alemanni, Niccolé (1583-1626), Italian
antiquarian.

Procopis Historia Arcana, 224.

Alexander (Alessandro Tartagni, c. 1424-
1477), of Imola, hence called Imolensis,
Italian jurist.

Constlia, 340, 819.

On Decretals (Comm. in Lib. III Decre-
talium), 373.

On Digest, 670.

Alfenus Varus (Ist century), Roman jurist.

Digesta, 311 (ter), 312.

Digesta a Paulo Epitomata, 537.

Ambrose, St. (c. 340-397), Bishop of Milan
and Father of the Church, 86, 89, 237,
589.

On Abraham (De Abraham), 237, 238,
612, 685, 781.

Against Auxentius (Sermo contra Auxen-
tum de Basthicts Tradendis\, 145.

On Cain and Abel (De Cain et Abel),

554-

On the Death of Theodosius (De Obitu
T heodosit Oratzo), 387.

Defence of David (Apologia Prophetae
David), 127, 466.

On Duties (De Offictis Ministrorum), 13,
83, 86, 93 (bis), 142, 162, 177, 202, 203,
204, 275, 277, 347, 353, 357, 367 (bis),
368 (bis), 401, 456, 473, 481, 499, 569,
581, 582, 583, 602, 654, 792, 799, 841
(bis),

Hexaemeron, 199, 211.

Letters (Epistolae), 145 (bis), 247, 250,
370, 473 (bis), 570, 618.

On Luke (Exposttio Evangelss secundum
Lucam), 93, 96, 785.

On Naboth (De Nabuthe Fezraelita), 211.

On Psalms (Expositio 1n Psalmos\, 466,
481, 483.

On Romans (Commentaria in Epistolam ad
Romanos), 400, 557.

On Tobtas (De Tobia), 454.

On Virginity (De Virginitate), 588.

On Virgins (De Virginibus), 460.

Ammianus Marcellinus (d. c. 395), Roman
historian.

History (Res Gestae), 114, 117, 118, 184,
214, 291, 313, 317, 344, 419, 420, 432,
454, 463, 469, 518 (bis), 521, 523, 540,
543s 547, 5555 559, 582, 588, 606, 627,
637, 643, 648, 654, 655, 656, 678, 703
(bis), 722, 724, 730, 732, 785 (bis), 814,
858 (bis).

Amos, see Bible.
Anaxandrides (fl. 376 8.c.), Greek comic
poet.

Fragments, 402. See Athenaeus,

Ancharano, Petrus de (c. 1330-1416),
Italian canonist.
On Sext (Lectura super Sexto), 627.
Andocides (439-c. 390 8.c.), Attic orator.

Orations (Orationes, Leipzig, 1880), 242,
394, 522.

Andrea, Giovanni d’ (d, 1348), Italian
civilist, 217.

Andreae, Joannes, see Andrea, Giovanni d’,

Andronicus (fl. 80 B.c.), of Rhodes, hence
called Rhodius, peripatetic philosopher.

On Aristotle's Nicomachean Ethics, 43,
131, 361 (bis), 458, 497, 548, 557, 508,
§72, 610, 832.

Angelus de Clavasio (Angelo Carletti, d.
1493), Italian theologian.

Summa Casuum sive Summa Angelica, 225,
359, 556.

Angelus de Ubaldis (1328-1407), Italian
jurist.

Constlia, 201.

On Code, 712.

On Decretals, 213.

On Digest, 383, 426, 834.

On Institutes, 670.

Anna Comnena (1083~1148), daughter of
Alexis I, Emperor of Constantinople.

Alextad, 119, 166, 218, 262, 659 (bis),

738, 780. |
Anthology, 313.
Anthology, Greek, 460.

Index of Authors Cited

8gI

Antigonus Carystius (fl. 240 B.c.), Greek
writer,

Collection of Marvelous Stories (Historia-
rum Mtrabilium Collectanea), 241.
Antiphanes of Rhodes (b. 408 3.c.), Greek

comic poet, 498, 585, 665.
Antiphon (480-411 B.c.), Attic orator.
Orations, 530, 560.
Antisthenes (b. c. 440 B.c.), Greek philo-
sopher, 511 (bis), 585, 665.
Antoninus, Emperor, see Aurelius Anto-
ninus.
Antoninus Liberalis (fl. 150), Greek mytho-
logical writer.
Collection of Metamorphoses, 363.
Antoninus, St. (1389-1459), Archbishop of
Florence, hence called Archiepiscopus
Florentinus.
Summa theologica, 333, 397) 506.
Apocalypse, see Bible.
Apocrypha, see Bible.
Apollodorus (b. c. 140 3.c.), Greek gram-
marian.
Library, 58, 117 (bis), 175, 178, 197, 207
C3), 249, 259, 273, 283 (bis), 498, 532,
580.
Apollonius Rhodius (fl. 196 3.c.), Greek
epic poet.
Argonautic Expedition (Argonautica), 249,
560, 622.
Apollonius of Tyana (Ist century), Pytha-
gorean philosopher, see Philostratus,
Apostolic Canons, see Canons, Apostolic.
Appian of Alexandria (2d century), Greek
historian, 396, 691, 698.
Civil Wars, 19 (bis), 100, 118, 122, 136,
162, 170, 174, 249, 356, 364, 373, 449,
454, 546, 659, 670, 672 (bis), 678 (bis),
686 (bis), 752, 760, 792, 812, 826, 835,
858.
Gallic History, 449, 527 (bis), 858.
Hannibalic Wars, 649.
Illyrian Wars, 216, 445, 632, 850.
Concerning Italy, 681.
Macedonian Affairs, 395, 446, 533, 819.
Mithridatic Wars, 118 (bis), 131, 213,
280, 428, 456, 527, 546, 590, 630, 657,
659 (bis), 669 (bis), 680 (bis), 709,
733. 7585 772) 775-
Numidian Affairs, 688.
Preface, 104, 213, 774
Punic Wars, 418, 447, 455, 655, 682, 733,

740, 754, 779, 811, 825, 852.
Samnite History, 215, 406 (bis), 854.

Of Sicily, 404.

Spanish Wars, 615, 648, 750, 794, 800.
Syrian Wars, 216, 243, 669, 730, 830.
Apuleius, Lucius (b, c. 130), Roman writer.

Apologia, 297.

On Plato (De Platone et Eius Dogmaie),
330, 470.

Aquila Romanus (3d century), Latin rhe-
torician.

De Figurts Sententiarum, 378.
Archidiaconus, see Baysio, Guido de.
Archiepiscopus Florentinus, see Antoninus,

St.
Arethas (fl. 914), Archbishop of Caesarea.

On Revelation (Synopsis Scholastica in
Apocalypsim), 187.

Aretinus, Franciscus, see Accolti, Francesco.
Argentré, Bertrand d’ (1519-1590), French
jurist.

Histoire de Bretagne, 285.

Arias de Valderas, Franciscus (f. 1533),
Spanish jurist.

De Bello et Eius Iustitia (in Tractatus
IVustrium ...Iurtsconsultorum, vol. xvi,
Venice, 1584), 22, 401, 686.

Aristides, Aclius (b. c. 117), Greek sophist
and rhetorician, 213, 569.

On the Allance, 556.

On Concord, 559, 632.

For the Four, see Platonic.

On Leuctra, 185, 404, 474; 494, 499, 531;
722, 728, 730, 792, 820.

Panathenatc, 215, 450, 451, 505, 531.

On Peace, 474, 5725 5755 723 738, 741:

Platonic, 473, 562, 574.
In Pratse of Rome, 774.

Sicilian, 573.
Aristophanes (b. c. 444 8.C.), Greek comic
poet.
Acharnians, 380.
Birds, 198, 200, 247, 370.
Clouds, 380.
Frogs, 161, 602.
Kmgbts, 602.
Aristotle (384~322 8.c.), Greek philosopher,
17, 270, 352
(Unless otherwise noted, references have
been verified in Opera Omnia, ed.
Didot, Paris, 1848-1857.)
Analytics (Analytica Postertora), 172.
De Caelo, 512.
Economics, 353, 626, 628, 750, 766.
Endemian Ethics, 43.
On Generation and Decay, 191.

892

Index of Authors Cited

Aristotle (continued)

History of Animals, 241.

On Interpretation, 608.

Magna Moralta, 425, 499, 557.

Metaphysics, 835.

De Mirabthibus Auscultationsbus, 241.

On the Movement of Animals, 572.

Nicomachean Ethics, 14, 35, 36 (bis), 37
(bis), 38, 40, 42, 102, 140, 165, 231
(bis), 234, 252, 253, 271, 275, 276, 334,
345, 351, 358, 401, 431, 449 (bis), 458,
469, 495, 498 (bis), 508, 547 (bis), 557
(bis), 558, 565, 566, 570, 591, 610 (bis),
620, 725, 728, 770, 793, 814, 832 (bis) ;
see also Andronicus of Rhodes and
Michael of Ephesus.

On the Parts of Animals, 53.

Politics (ed. Jowett, Oxford, 1885), 17,
29, 44, IOI, 102 (bis), 103 (bis), 105,
107, 108, 112, 113, 125, 126, 133, 231,
250 (bis), 253, 265, 311, 312, 313, 314-
15, 315, 345» 353, 359, 380, 394, 465,
467, 506, 509, 510, 535, 551, 552, 593,
632, 665, 666, 698, 718, 722, 761, 770,
774 (bis), 842 (bis), 861 (bis).

Problems, 1§1, 250, 500, 559, 564.

Rhetoric, 260, 329, 343, 469, 522, 548,
565, 566, 725, 727, 824, 860.

Rhetoric to Alexander, 164, 277, 567, 861,
862.

Rights of War, 22.

On Sleep and Vigil, 833.

Sopbistical Refutations, 693.

Topics, 43, 491, §12 (bis), §59, 566.

Arnobius (d. c. 327), African rhetorician.

Against the Heathen (Adversus Gentes),
71, 241, 356, 518, 524, 637.

Arnold of Liibeck (d. 1212), German Bene-
dictine, continuator of Helmold.

Derelictorum Helmold: Supplementum, 652.

Arrian (Flavius Arrianus, fl. 136), Greek
historian.

Anabasis of Alexander (edit. Abicht,
Leipzig, 1889), 128, 170, 279, 403,
445-6, 536 (bis), 620 (bis), 648, 657,
725, 739> 7415 744, 760.

Epictetus (edit. Hercher, Leipzig, 1885),

- _ 40, 789.

Indica (edit. Hercher, Leipzig, 1885),
115.

Arrianus (2d century), Roman jurist, 247.
Artemidorus the Daldian (fl. 160), Greek
dream-interpreter.

Onetrocritica, 235.

Arumaeus, Dominicus (1579-1637), Dutch
jurist.

Discourses on the Golden Bull (Discursus
Academict ad Bullam Auream Caroli
IV Imperatoris), 805.

Aschaffenburg, see Lambert von Aschaffen-
burg.

Asconius Pedianus, Quintus (c. 3-c. 88),
Roman commentator.

On Circero’s Agatnst Verres, 589, 661, 673,

679.

On Cicero’s For Mtlo, 251.

Aspilcueta, Martin, see Navarrus.

Asterius (c. 340~c. 410), Bishop of Ama-
sea.

Homilies, 507.

Athanasius, St. (c. 293-373), Greek Father
of the Church.

Letter to the Monks, 517, 520, 552.

Synopsis of Holy Scriptures (Synopsis S.
Scripturae), 50.

Athenaeus (fl. 200), Greek antiquary.

Banquet of the Learned, 237, 255 (bis),
256, 402, 765.

Athenagoras (fl. 177), Greek philosopher.

Apology for the Christians (Legatio pro
Christianis), 83.

Attahates, Michael (11th century), Byzan-
tine statesman and historian.

Pragmatica, 211.

Synopsis, 209, 272.

Auctor Imperfectus (6th century), Latin
Arian,

On Matthew (work appeared erroneously
under the name of St. John Chryso-
stom), 400,

Augustine, St. (354-430), Latin Father of
the Church, 93, 718.

Against the Academics (Contra Aca-
demicos), 491.

Against Adimantus (Contra Adimantum),
412,

De Bono Conjugali, 248, 368.

On Christian Doctrine (De Doctrina
Christiana), 12, 15, 36, 234 (ter), 277,
563, 608.

On the Crty of God (De Crvitate Dei), 111,

. 141, 154, 170, 204, 235, 239, 244, 246,
262, 351, 460 (bis), 486, 506, 521, 548
(bis), 556, 557, 565 (bis), 574, §76,577,
590, 591, 631, 632, 633, 650, 657, 661,
753, 765, 771.

Contra Cresconium Grammaticum, 64,

Confessions (Confessiones), 25 (bis), 139.

Index of Authors Cited

893

Augustine, St. (continued)

De Congugiss Adulterinis ad Pollentium,
481, 642 (ter).

On the Customs of the Catholic Church (De
Moribus Ecclesiae Catholicae), 622, 765.

Enchiridium, 470, 611, 614.

Contra Epistolam Manichaet, 520.

Evangelical Questions (Quaestiones Evan-
geliorum), 482.

Exporsitio Quarundam Propositionum ex
Epistola ad Romanos, 146.

On Faith and Works (De Fide et Operibus),
83, 248, 320.

Against Faustus (Contra Faustum Mani-
chaeum), 69, 98, 237, 556, 591, 642.
On Free Will (De Libero Arbitrw), 93,175,

182, 464, 584, 591.

Against Gaudenttus (Contra Gaudentium),
460.

Questions on Heptateuch (Quaestiones in
Heptateuchum), 96, 154, 172, 197 (bis),
475; 523, 534, 606, 607, 618 (bis).

On the Gospel of Fobn (In Foannis Evan-
geliusm), 147, 553.

Letters (Eprstolae), 25 (bis), 64, 68 (ter),
76, 77, 86, 93, 154, 231, 327, 357, 364
(bis), 372, 373, 376, 460, 484 (bis), $01
(ter), 501-2, 518, 519, 538, 539, 568,
569, 576, 588, 590, 599 (bis), 601, 613,
718, 719, 737, 742, 792 (bis), 861.

Against Lying to Consentius (Contra Men-
dacium ad Consentium), 607, 618.

On Lying (De Mendacto), 610 (ter).

De Magistro, 619.

On Order (De Ordine), 558.

Against Pettlanus (De Unico Baptismo
contra Petiltanum), 489.

, Principles of Rhetoric (Principia Rbe-
torzces), 410.

On Psalms (Enarrationes in Psalmos), 154,
3525 479, 524, 617.

Questions on the Old and New Testaments
(Quaestiones Veteris et Novt Testa-
MEntt), 492.

De Rebus in Arelatenst Conctlto Gestts, 82.

Retractions (Retractiones), 463.

On the Sermon of Our Lord on the Mount
(De Sermone Domini in Monte), 76.

Sermones, 86, 147 (bis), 269, 270, 320, 372,

. 522 (ter), 586, 611, 785.
On the True Religion (De Vera Religione),

25,497: 7
On the Utility of Belief (De Utelttate
Credendt), 519.

Aulus Gellius, see Gellius, Aulus.

Aurelius Antoninus, Marcus (121-180),
Roman Emperor, commonly called
Marcus Aurelius, the Philosopher, 249,

540.
Meditations, 11, 12 (ter), 14, 16 (ter), 18,

38-9, 379» 4955 498, 521, 530.
Aurelius Victor, Sextus (f. 350), Roman
historian, 460.
On the Caesars (De Caesaribus), 388.
Epriome de Caesartbus, 111, 145, 246,
562.
On Famous Men (De Viris Illustribus
Urbis Romanae), 281, 407, 655, 676.
Origo Genits Romanae, 287.
Ausonius, Decimus Magnus (c. 309-394),
Latin poet,
Cupido Cructatur, 722.
Technopaegnion, 538.
Authenticum, see Corpus Luris Cioslis:
Novels.
Averroes, or Ibn-Roshd (d. 1198), Arabian
philosopher.
Commentary on Aristotle's Metaphysics,
146.
Ayala, Balthazar de (c. 1548-1584), Spanish
jurist.
De Iure et Officits Bellscts et Disciplina
Milttart, 22, 23, 98, 551, 553, 639.
Aymo, see Cravetta, Aimone.
Aymoinus, see Aimoin.
Aymus, Baptista (fl. 1570), Italian jurist.
De Alluvionum Iure Universo, 229.
Azor, Juan (1533-1603), Spanish Jesuit and
theologian, 506.
Moral Institutes (Institutcones Morales),

158, 375, 552.
Azpilcueta, Martin, see Navarrus.

Baba Kama, a Talmudic treatise, 273, 329,
369, 393, 434, 544.
Balbus, Joannes Franciscus (fl. 1510), Jurist.

De Praescriptionibus, 224, 228.

Baldus de Ubaldis (1327-1400), Italian post-
glossator, 213, 428. ,

On Code (Commentarius in Codicts Libros
Novem Priores\, 171, 172, 175 (bis),
252, 333, 384, 038.

Consilia, 197, 261, 592, 626, 652.

On Decretals (Commentarius in Decretales),
261, 288.

On Digest (Commentarius in Drgesta), 137,
184, 213, 326, 331, 348, 383, 384, 385,
628, 646.

894

Index of Authors Cited

Baldus de Ubaldis (continued)

On Feuds (Lectura super Libros Feudorum),
303.

De Siatutts, 835.

Balsamon, Theodore (A.
canonist.

On Photrus’ Nomocanon, 87, 215 (b25), 326,
484.

Bafiez or Bannez, Domingo (1528-1604),
Spanish Jesuit and theologian.

On II. 1 (Scholastica Commentaria in
Secundam Secundae Thomae Aquinatts),
173, 175, 593, 694. .

Barbatia, Andreas (c. 1400-1479), Italian
canonist.

Constlia, 415.

Barclay, William (c. 1540-1606), Scotch
jurist.

De Regno et Regali Potestate... adversus
Moanarchomachos, 150 (bis), 157.

Barnabas, see Bible.
Bartolus of Sassoferrato (1313-1357), Italian
jurist, 213.

On Code (Commentarius in Libros IX
Codtcts Priores), 428.

On Digest (Commentarius in Tria Digesta),
98 (bis), 165 (bis), 172, 228 (bis), 252
(bis), 264, 341, 385, 414, 551, 670, 696
(bis), 712, 758, 835 (ter), 851.

On Reprisals (De Represalits), 98, 268,
626, 628, 620.

Tybertiad (Tractatus de Fluminibus seu
Tyber1adts), 299.

Basil I (c. 820-886), surnamed the Mace-
donian, Emperor of the East.

Paraeneticon ad Leonem Filium, 488.

Basil, St. (c. 329-379), commonly called
Basil the Great, Bishop of Caesarea, go.

Hexaemeron (Homiliae Novem in Hexae-
meron), 199.

Homilies on Psalms (Homiliae in Psalmos),

1193), Greek

357-
Letters to Ampbilochius (Epistolae Cano-
nicae ad Amphilochium, 94, 247, 367,

577:
Basilica, Greek code of law, 210 (bis).
Batrachomyomachta (Battle of the Frogs and
Mice), an epic poem falsely attributed
to Homer, probably written by Pigres,
636.
Bavarian Law, see Law of the Bavarians.
Baysio, Guido de (fl. 1290), cited as Archi-
diaconus, Italian canonist,
On Decretum (Rosarium Decretorum), 835.

Bede, Venerable (c. 674-735), English his-
torian and commentator.

Ecclestastical History (Atstoria Ecclesias-

tica Gentis Anglorum), 287, 517, 594,

734+
On Galatians, 568.
Bellay, Martin du (d. 1559), French his-
torian.
Historic Memowrs from 1513 to 1547
(Mémorres), 441. ‘

Belli, Pierino (1502-1575), Italian jurist,
sometimes cited as Bellini.

De Re Militarz et de Bello, 585, 686.

Belluga, Pedro (15th century), Spanish
jurist.

Speculum Principis, 263, 390.

Belvisio, Jacobus de (c. 1270-1335), Italian
civilist.

On Authenticum (Casus Breves in Authen-
ticum), 627.

Bembo, Pietro (1470-1547), Italian car-
dinal and scholar.

History of Venice (Historia Veneta), 104,
119, 192, 198, 199, 254, 636, 646, 647,
652, 659, 694, 731 749) 757, 823.

Ben Gerson, see Gersonides.

Ben-Israel, see Manasses Ben-Joseph-Ben-
Israel, ,

Benjamin of Tudela (12th century), French
rabbi.

Itinerary, 752.

Bernard, St. (1090-1153), of Clairvaux,
French ecclesiastic.
Letters (Epistolae), 553.
Bertachinus, see Firmanus.
Bezarrus, see Bizarri.

Bible: Old Testament :

Genesis, 35, 40, 41, 54, 57, 58, 59 (bis),
6o, 186, 188, 189 (bis), 239, 244 (bis),
265, 274 (bis), 336, 365, 370, 371, 372,
397 (bis), 399, 4525 459, 515, 538, 593,
Gor, 607, 613, 663 (quater), 780, 781.

Exodus, 37, 46, 48, 55, 56, 60, 62 (quin-
quies), 71, 76, 77,92, 103, 127, 151, 180,
233, 247, 250, 251, 351, 365, 366, 372,
422, 478, 481, 482, 498, 499, 500, 530,
541 (bis), 764. (ter)

Leviticus, 37, 46 (bis), 60 (bis), 62 (ter), 75
(bis), 235, 242, 243, 246, 349, 365, 369,
372; 398, 432, 456, 478, 493, 515, 785.

Numbers, 46, 48, 60, 62 (bis), 76, 197, 222,
232, 233 (bis), 240, 276, 331, 365, 369,
499; 457, 4595 4753 477; 482, 570, 577,
664, 685, 719, 734, 783.

Index of Authors Cited 895

Bible: Old Testament (continued)

Deuteronomy, 45, 46 (bis), §5, 62 (quater),
95, 107 (bis), 127, 140 (bis), 151, 181,
235 (ter), 240, 266, 277 (bis), 320, 366
(ter), 397 (ter), 398, 399 (bis), 400, 407,
4575 464, 467, 477, 482, 499 (bis), 511,
515 (ter), 530 (bis), 542, 577, 594, 635,
648 (bis), 657, 661, 664, 695, 728, 734,
742, 746, 762 (bis), 763, 764, 767, 768.

Foshua, 117, 140, 365, 366 (quater), 367,
400, 541, 578, 609, 664, 748.

Fudges, 55, 75, 162, 205, 220, 399, 473,
527 (bis), 632, 668.

1 Samuel or 1 Kings, 55, 107 (quater),
II5, 140, 147, 150 (bis), 151, 152, 226,
327, 368, 399 (bis), 459, 588, 594, 608,
618, 664, 668, 677, 685, 736 (bis).

2 Samuel or 2 Kings, §5, 107, 115, 235,
367, 398, 399 (bis), 400, 449, 457, 541,
570, 686.

1 Kings or 3 Kings, 46, 107, 111, 115, 116,
117, 200, 365, 367, 386, 398, 399 (bis),
400, 453, 530, 541, 588, 617.

2 Kings or 4 Kings, 111, 163, 185, 365,
371 (bis), 401, 441, 530, 541, 542, 588,
594, 618 (bis), 668, 738, 748.

I Chronicles or Paralipomenon, 127, 577,
664.

2 Chrontcles or Paralipomenon, 117, 122
(bis), 127 (bis), 161, 286, 400 (quin-
quies), 573, 664.

Nehemiah or 2 Esdras, 162, 331.

‘Fudith, 95 (bis), 244.

Fob 60, 269, 365, 378, 452, 459, 515,
75.

Psalms, 45, 49, 60, 62, 64, 107, 127 (bis),
356 (bis), 365, 374, 466, 610, 648, 785.

Proverbs, 60, 75, 187, 277, 331, 384, 401
(quater), 467, 495, 563, 610 (bis), 785
(ter).

Ecclesiastes, 188, 452, 785.

Song of Songs or Canticle of Canttcles, 371.

Wisdom, 187, 360, 371, 491.

Ecclesiasticus or Son of Sirach, 187 (bis),
266, 762, 765.

Isarab, 40, 70, 745 96, 278, 365 (bis), 400,
401, 467, 719.

Feremiah, 40, 74, 110, 128, 181, 365, 373,
454, 573, 607.

Ezekiel, 40, 235, 356, 373, 496, 542.

Daniel, 122, 134, 365 (ter), 543, 555, O61.

Hosea, 365 (bis).

Amos, 771.

Fonah, 76, 365 (bis), 719, 734:

Micah, 40, 504.

Habakkuk, 365.

Zachariah, 362.

1 Maccabees, 107, 148, 384, 399 (ter), 477
(bis), 651, 661 (bis).

2 Maccabees, 46, 460, 684, 685.

3 Maccabees, 478.

Bible : New Testament :

Matthew, 46, 61, 65 (bis), 66 (quinquies),
67, 71 (bis), 72 (bis), 73, 75 (bis), 76
(bis), 93 (bis), 95, 156, 163, 235 (bis),
298, 312, 366, 369, 371 (bis), 377, 378,
384, 401, 403, 479, 480, 481, 482, 486,
508, 517 (bis), 553, 601, 612 (bis), 620
(bis), 841.

Mark, 66 (ter), 312, 471, 504, 517, 608.

Luke, 65, 66 (sexties), 76, 94, 95 (bis), 107,
128, 156, 354 459, 464, 481, 493, 508,
517 (ter), 552, 571, 608, 612, 785 (bis).

Fobn, 46, 66, 81, 95 (bis), 312 (bis), 398
(bis), 465, 517, 553, 612 (bis).

Acts of the Apostles, 46 (ter), 48, 64 (bis),
65 (bis), 66 (bis), 67 (bis), 68, 69 (bis),
71, 312 (bis), 398, 478 (bis), 482 (bis),
515, 587, 608, 612.

Romans, 40 (bis), 47, 49, 50, 62 (bis), 64
(bis), 69, 76 (ter), 93 (bis), 95, 96, 141,
147, 377 (bis), 432, 466, 482, 497, 515,
517, 557 (bis), 567, 861.

1 Corinthians, 69, 72, 76, 235, 238, 242,
257, 331 (bis), 360, 402, 403, 482 (bis),
551, 553, 586, O41, 719, 824.

2 Corinthians, 73, 78, 187, 272, 377 (bis),
378 (bis), 402, 482, 483.

Galatians, 48, 50, 208, 401, 517, 520, 615.

Ephesians, 48, 69, 78, 234, 242, 257, 360,
481, 569, 587 (bis), 588, 762, 765.

Philtpptans, 69, 377.

Colosstans, 257, 481, 610, 762.

1 Thessalontans, 95, 331, 377.

2 Thessalontans, 95, 331, 402.

1 Timothy, 63, 73, 76, 359, 377s 493, 554-

2 Timothy, 68, 331.

Titus, 187, 258.

Hebrews, 50 (bis), 55, 62 (bis), 64, 33%
(bis), 365 (bis), 372, 399, 482 (ter), 493
(bis), 513, 517, 663.

James, 78, 79, 378, 494-

1 Peter, 69, 95, 143, 147, 149, 153, 156,
258, 595.

I Fobn, 61, 96, 471, 495-

Revelation or Apocalypse, 69, 96, 187
(bis), 378, 498, 595.

arnabas, 762.

1569'27 30

896

Index of Authors Cited

Bizarri, Pietro (fl. 1550), Italian historian,
History of Genoa (Senatus Populique
Genuensts Rerum Domi Fortsque Ges-
tarum Hustoriae atque Annales, Ant-
werp, 1629), 105, 115, 158, 163, 403
(bis), 445, 543, 562, 635, 700, 820, 855
(bis)

On the Pisan War (De Bello Pisano, Ant-
werp, 1629), 119, 647.

On the Venetian War (De Bello Veneto,
Antwerp, 1629), 704.

Bocer, Henry (16th century), German jurist.

De Collectis, 426.

Bodin, Jean (1530-1596), French political
writer.

On the Republic (De Republica, Frank-
fort, 1609), 29, 228, 267 (bis), 381, 382,
384, 389, 419, 436, 500, 696, 714.

Boerius, see Bohier.

Boethius, Anicius Manlius Severinus (c.
480-524), Roman philosopher.

Arithmetic (Institutto Aritmetica), 311.

On Crcero’s Topics (In Ciceronis Topica),
309, 701, 712.

On Geometry, 300.

Bohier, Nicolas de (1469-1539), French
jurist.

Decistons (Dectstones tn Senatu Burdigalen-
sium Diseussae ac Promulgatae), 252,
659, 696 (ter).

On Decretum, 124.

Bonfini, Antonio (1427-1502), Italian lit-
térateur.

History of Hungary (Rerum Ungaricarum
Decades), 159, 684.

Boreo, John (Johann Borcholten, 1535-
1593, German jurist, or Vincentius
Boreus ?), 299.

Bossius, Aegidius (1488-1546), jurist.

De Aquas et Fluminibus, 213.

Practica Criminalia, 659.

Bridget, St. (1302-1373), of Sweden.

Revelationes Brigittae, 267, 280.

Brocardus, see Burchard.

Brodeau, Jean (1500-1563), French com-
mentator.

Miscellanea, 752.

Bruning, Johann (17th century), German
jurist.

De Homagits Subsectivis, 778.

Brutus, Junius (Pseud. of Hubert Languet,
1518-1581), French Protestant poli-
tical writer.

Vindiciae contra Tyrannos, 146.

Buchanan, George (1506-1582), Scotch
historian.
History of Scotland (Rerum Scoticarum
Historia), 263.
Burchard (d. 1025), of Worms, German
theologian.
Canonum Volumen, 481.
Burgundian Law, see Law of the Burgundians.
Busbecq, Ogier Ghislain de (1522-1592),
Flemish scholar.
Epistolae Exoticae, 344, 696.
Letters of the Turkish Embassy (Epistolae
Lurcicae Legationis IV), 255.
Butrio, Antonio de (c. 1338-1409), Italian
canonist,
On Decretals (Commentaria in Quingue
Libros Decretalium), 252.

Cabedo de Vasconcellos, Jorge (1559-1604),
Portuguese jurist.
Decstones Lusttaniae Senatus, 298, 604.
Cacheranus, Octavianus (fl. 1590), Italian
jurist.
Dectsiones Sacri Senatus Pedemontani, 102,
213, 420.
Caecilius Statius (d. c. 166 3.c.), Latin
comic poet.
Fallacia, 74.
Caepolla, Bartholomaeus (d. 1474), Italian
jurist, 213.
Consilta, 405, 817.
On Digest, 341.
De Seruttutibus Rusticorum Praediorum,
301.
Caesar, Gaius Julius (100-44 8.c.), Roman
historian.
Civil War (De Bello Civili), 375, 440,
644, 794, 845, 862.
Gallic War (De Bello Gailico), 112, 135
(bis), 198, 204, 214, 393, 632, 645, 697,
739; 746, 858.
Cajetan, Cardinal (Thomas de Vio, 1469-
1534), Italian theologian, 397.
On II. 11 (Commentarium in 8. Thomae
Summam Theologicam), 99, 173, 269,

299, 322, 326, 327, 336, 369, 373, 40I,
431, 433, 465, 556, 563, 575, 581, 618,
633, 821 (bis).

On Matthew (Commentarii in Evangelia),
244.

Summula Peccatorum, 757.

Calderinus, Joannes (d. 1365), Italian

canonist.

Consilia, 684.

Index of Authors Cited

897

Callistratus (2d century s.c.), Alexandrian
grammarian.
On Aristophanes, 765.
Callistratus (fi. 200), Roman jurist.
De Cognitionibus (in the Digest), 542.
Camden, William (1551-1623), English an-
tiquary and historian.
Annals of the Reign of Elizabeth (Annales
Rerum Anglicarum et Htbernicarum
Regnanie Elizabetha), 210, 214, 289,

387, 389, 419, 427, 440, 443, 445, 527,
533 (bis), 604 (quater), 605, 734, 845.
de la Canaye, Philippe, Sieur du Fresne

(1551-1610), French statesman and
diplomatist.
Letters (Mémotres ou Recueil de Lettres),
447, 713.
Canibus, Joannes Jacobus de (d. c. 1494),
Italian jurist.
On Sext, 627.
Canon Law, see Canons, Apostolic ; Corpus
Turis Canonict ; Council; Synod.
Canons, Apostolic, 88, 96, 245.
Canticle of Canticles, see Buble.
Capitolinus, Julius (3d or 4th century),
Latin biographer, 65, 316.
Albinus (Vita Clodit Albini), 316.
Maertnus (Opellius Macrinus), 317.
Marcus Antoninus the Philosopher (Marcus
Antoninus Philosophus), 116, 451, 501,

535, 739-
Maximus and Balbinus (Maximus et Bal-

bonus), 774.

Maxtmint (Maximini Duo), 317.
Periinax (Helvtus Pertinax), 388, 724.
Capitularies of the Franks (Capitularta

Francica), 248, 460 (bis); see also
Charlemagne; Charles the Bald;
Louis the Pious.
Cardinal, see Zabarella, Francesco.
Carletti, Angelo, see Angelus de Clavasio.
Carneades (c. 215-129 3.c.), Greek philo-
sopher, founder of the New Academy,
10, 15 (ter), 347.
Carthagena, Joannes de (d. 1617), Spanish
theologian.

Propugnaculum Catholicum de fure Bells
Romani Pontificis adversus Ecclestae
Fura Violanies, 22, 399.

Cassian, John (c. 361-c. 435), monk and
theologian, 610.

Cassiodorus, Senator, Flavius Magnus
Aurelius (c. 470-c. 570), Latin his-

torian.

Chronica, 280.

On Friendship, see Peter of Blois.

Institute of Holy Writ and On Dialectic
(Instttutiones Divinarum et Saecularium
Litterarum), 27, 37.

On the Soul (De Anima), 53.

Variae, 12, 87, 91, 110 (bis), III, 120,
121, 127, I71 (ter), 203, 211, 239, 246,
247, 257, 260, 267, 299 (bis), 3d2, 322,
353 (tet), 437, 466, 474, 475, 501, 517,
533 5545 561, 563, 623, 659, 709, 724,
731, 750, 753, 784 (quater), 785 (ter).

Cassius Dio, see Dio Cassius Cocceianus.

Cassius Longinus, Lucius (fl. I10 3.c.),
Roman judge, cited by Aggenus Urbi-
cus, 300.

Castaldus, Restaurus (d. 1564), Italian
civilist.

Tractatus de Imperatore, 228, 384.

Castrensis, Paulus (d. c. 1441), Italian jurist.

Consilta, 385.
On Code, 428.
On Digest, 165, 185 (?), 326, 592, 849.

Castro, Alphonsus de (1495-1558), Spanish
Franciscan theologian.

De Potestate Legis Poenalis, 387, 565.

Cato, Marcus Porcius, surnamed Censorius
(234-149 B.c.), Roman statesman, 356.

Origins (De Originibus), 202, 800.
On Farming (De Re Rustica), 766.

Cedrenus, Georgius (11th century), Greek
monk,

Histortes (Synopsis Histortarum), 121, 299.

Celsus, Aurelius Cornelius (Ist century),
Latin writer on medicine.

De Medicina, 194.

Celsus, Publius Juventius (2d century),
Roman jurist, cited in Digesi, 209, 210
(bis), 622, 667, 672, 823.

Chalcocondylas, Laonicus (fl. 1450), Byzan-
tine historian.

Histories (Historiae, ed. Bekker, Bonn,
1843), 114, 118 (ter), I19, 128 (ter),
129, 528, 639, 647, 650, 685, 697, 721,

730.
Charlemagne (742-814), King of France
and Emperor of the West.
Capitularses (Capitula), 180, 785.
Supplement to Bavarian Law (Addita-
mentum ad Legem Baioariorum), 736.
Charles the Bald (823-877), King of France.
Capitularies (Capitula), 88, 119, 144, 166,
200, 318 (bis), 525, 563, 564, 764.
Edictum Pistense, 257, 306, 708.

302

898

Index of Authors Crted

Charondas (fl. 650 3.c.), Greek legislator,

449:

Chassaneus (Chasseneux), Barthélemy de
(1480-1541), French jurist and states-
man.

Catalogus Gloriae Mundi, 228, 422, 552,

805.
Consuetudines Ducatus Burgundtae ac fere
Totus Galltae, 227.

Chifflet, Jules (d. c.1670), French historian.

Le Voyage de Prince Don Fernand Infant

d’ Espagne (?), 301.

Choniates, Nicetas, see Nicetas Acomina-
tus.

Choppin, René (1537-1606), French lawyer
and antiquarian.

De Domanio Franctae, 201, 291.
Christian Writer, sze Pseudo-Justin Martyr.
Chronicles, see Bible.

Chrysippus (280-208 3.c.), Stoic philo-
sopher, 14, 189, 240, 372 (bis), 420,
509, 762.

Chrysostom, Dio, see Dio Chrysostom.

Chrysostom, St. John (344-407), Greek
Father of the Church, 438, 610.

On Alms (De Eleemosyna Sermo), 136, 862.

Against Those Who Anathematize (De

Non Anathematizandts Vivis vel De-
functts), 520.

On the Acts of the Apostles (Commentarius
in Acta Apostolorum), 554.

To the Belsewing Father (dd Patrem
Fidelem), 66, 81, 482.

That Christ 1s God (Adversus ‘Fudaeos et
Genitles Demonstratio), 43, 70.

On First Corinthians (Homiliae XLIV tn
Eptstolam Primam ad Corinthtos), 14,
342 46, 50, 70, 76 (bis), 80, 147, 231,
234, 239, 320, 326, 357, 469, 483, S19,
588, 609 (bis), 642.

On Second Corinthians (In Secundam ad
Corinthios Eptstolam Commentarius),
732 74s 78, 471, 476, 495, 4975 522.

On the Devil as Tempter (De Diabolo
Tentatore), 50.

On the Earthquake (Iu Terrae Motum et

in Divitem et Lazarum), 464. «

On Ephestans, 11, 17, 50, 142, 231 (bis),

306, 479, 479, 4955 521, 554, 557 587,

On F asting (Septem Sermones de Fejunio),

50, 357.
That Faults are the Result of Neglect, see

On the Deutl as Tempter.

On Galatians (In Epistolam ad Galatas
Commentarius), 460, 497, §19, §38, 615.

On Genests, 541.

On Gentleness (De Clemenita), 569.

Against the Fews (Adversus Fudaeas
Orationes), 76, 144, 484, 522.

Commentary on Fohn (Commentarius in
Sanctum Foannem Apostolum et Evan-
geltstam), 349, 517.

On Lazarus, see On the Earthquake.

On Matthew, 483.

On the Obscurity of the Prophectes (De
Prophetiarum Obscurtiate), 494.

On Penitence (De Poenttentia), 464, 482,
486, 617, 642 (bis).

Prasse of St. Eustathws (Laudatio 8.
Pairis Nostrt Eustathiit Antiochiae
Magnae Archtepiscopi), 508.

On the Priesthood (De Sacerdotte), 497,
554 (ter), 606, 607, 609, 612, 617, 618.

On Providence (De Fato et Providentia),
498, 590, 727.

On Romans (Commentartus in Eptstolam
ad Romanos), 11, 41, 46 (bis), 47 (ter),
49, 50 (bis), 65, 74, 76, 141, 142, 495,
497 (bis), 504 (bis), 522, 642.

That the Son Is Equal to the Father (Contra
A nomoeanos), 63.

To Stagtrius (Ad Stagirium de Tristitia),

449.

On the Statues (Homiltae XXI de Statuts),
39. 42, 43, 46, 53,74, 86, 142 (bis), 362,
379 (ter), 493, 494, 522, 523, 525 (bis),
535, 508, 569.

To Stelechius (Ad Stelechium de Compune-
tione), 199.

On First Thessalonians, 554.

On First Timothy In Epistolam Primam
ad Timotheum Commentarius), 152,234,

277.
On Second Timothy (in Kptstolam Secun-
dam ad Iimotheum Commentarius), 144.
On Titus (In Epistolam ad Titum Com-
mentarius), 554.
To the Unbelseving Father (Ad infidelem
Pairem), 587.
On Virginity (De Virginttate), 49, 63.
Chytraeus, David (1530-1600), German
Protestant theologian and historian.
History of Saxony (Chronicon Saxontae),
159.
Cicero, Marcus Tullius (106-43 3.c.),
Roman philosopher and orator, 159,

356, 491, 531, 582.

Index of Authors Cited

899

Cicero (continued)

Academics (Academicae Quaestiones), 410,
515.

On the Agrarian Law agatnst Rullus (De
Lege Agraria contra P. Servilium Rul-
lum), 118, 119, 225, 314, 665.

For Balbus (Pro L. Cornelio Balbo), 9, 254,
379, 380, 408, 643, 797.

Brutus, 422 (bis), 800.

For Caecina (Pro A. Caecina), 259, 412,

414, 422 (quater), 467, 529.
For Cluentius (Pro A. Cluentio), 144, 242,

558, 742.

On the Commonwealth (De Republica), 39,
129, 170, 631.

On the Consular Provinces (De Provincits
Consularibus), 126, 460.

For King Detotarus (Pro Rege Detotaro),
225, 380, 645, 731.

On Dromation (De Divinatione), 754.

On Duties (De Offictts), 17, 335 345 36, 39,
41, 54 (bis), 105, 110, 131, 164, 173,
189 (bis), 190 (bis), 195, 196, 220, 221,
225, 275; 276, 277 (quater), 300, 321,
322, 328, 330, 332, 347, 348 (quater),
350, 362 (bis), 363, 364 (bis), 368, 373
(ter), 374, 398, 409, 410, 426 (bis), 436,
445, 480, 503, 548, 558 (bis), 560, 562,
570 (bis), 572, §82 (bis), 607, 613, 614,
633, 652, 658, 665, 717 (bis), 722 (bis),
727, 730, 733 (bis), 739, 748, 765, 769,
770 (bis), 782, 788, 793 (bis), 794 (bis);
799, 805, 811, 812, 851, 853, 855,
860.

On Ends (De Finibus Bonorum et Ma-
lorum), 51, 80, 170, 186, 277, 509, 580,
582, 631, 708, 792.

For Flaccus (Pro L. Flacco), 661.

For Gabinius (Pro A. Gabinio), 819,
862.

On Hts House (De Domo Sua), 672, 747.

On Invention (De Inventione), 422, 427,

453, 472, 514, 530, 574, 680, 837.
On Laws (De Legibus), 104, 115, 452, 453,

544-
Letters to Atticus (Eptstulae ad Atticum),

162, 573 (bis), 575, 749 (ter), 759 775
(bis), 777.

Letters to Brutus (Epistulae ad M.
Brutum), 494, 524, 537, 700, 731.

Letters to Friends (Epistulae ad F amiliares),
14, 17, $4, 115, 162, 251, 358, 607, 632,
676, 861.

Letters to bis Brother Quintus (Epistulae

ad Quintum Fratrem), 106, 490, 491,

773-

For Ligarius (Pro Q. Ligario), 568, 570,
611, 646, 724.

For the Mantlian Law (De Imperio Cn.
Pompei), 44.9, 578, 784.

For Marcellus (Pro M. Marcello), 645,
731 (bis).

For Milo (Pro Milone), 55, 56, 94, 175,
503, 607, 643.

For Murena (Pro Murena), 490.

On the Nature of the Gods (De Natura
Deorum), 509, 513, 514, 543.

On the Orator (De Oratore), 333, 422 (bis),
529 (bis), 714, 800.

Paradoxes (Paradoxa Stoicorum), 410.

Philippics (Philipptcae Orationes), 109,
161, 194, 432, 439, 443, 630, 832.

Against P1so (In L. Calpurnium Pisonem),
523.

For Gnaeus Planctus (Pro Cn. Planeto),
431, 607.

For Publius Sestius (Pro P. Sestso), 580,
654.

For Ouintius (Pro P, Quinctzo), 451, 724.

For Rabirius (Pro C. Rabirio Perduellionis
Reo), 849.

For Rabirius Postumus (Pro C. Radberio
Postumo), 643.

On the Response of the Soothsayers, 438,

30.

F ” Roscius the Comte Actor (Pro Q. Roscio
Comoedo), 379, 860.

For Sextus Roscius Amerinus (Pro Sex.
Roscio Amerino), 500. :

Apainst Rullus, see On the Agrarian Law.

For Sulla (Pro P. Sulla), 496.

Topics (Loptea), 529, 701, 712.

Tusculan Disputations (Tusculanae Dis-
putationes), 43, 452, 476, 643.

Apainst Verres (In C. Verrem), 351, 427,
438, 578, 589, 650, 658, 660, 683, 711,
733, 751 (bis), 754, 780 (bis), 786, 799.

Cirier, Jean le, see Lecirier, Jean.

Clarus, Julius (1525-1575), Italian jurist,
339, 426, 793.

Claudian (Claudius Claudianus, c, 370-c.
404), Latin epic poet.

On the Fourth Consulship of Honortus
(Panegyricus de Quarto Consulatu
Honortt Augusti), 126, 643.

On the Sixth Consulship of Honortus
(Panegyricus de Sexto Consulatu Honortt
August), 317, 621.

goo

Index of Authors Cited

Claudian (continued)

On the Consulship of Manlius Theodorus
(Panegyricus Dictus Manlio Theodore
Consult), 480.

On the Consulship of Sitlicho (De Con-
sulatu Stilachoms), 213, 317, 653, 771,

84.

Ageins Eutropius (In Eutropium), 144,
317.

Against Rujinus (In Rufinum), 81.

W ar with Gildo (De Bello Gildontco), 450,
456, 652.

Clavasio, Angelus de, see Angelus de
Clavasio.

Clement of Alexandria (Titus Flavius
Clemens, d.c.217), Greek Father of the
Church, 47, 610.

The Instructor (Paedagogus), 84, 469, 762.

Miscellanies (Stromata), 55, 84, 379, 588,
609, 616, 642, 665.

Exhortation to the Pagans (Protrepticum),
5II.

Clement, St. (Clement of Rome, d. c. 100),
Pope, reputed author of Constitutiones
Apostolorum, 63, 72, 84 (bis), 111, 143,
144, 248, 400, 401, 479, 508, 517, 762.

Cleobulus (6th century 3.c.), one of the
Seven Wise Men of Greece, 610.

Code of Fustinian, see Corpus Turis Civils.

Code of Theodosius, see Theadostan Code.

Colossians, see Bible.

Columella, Lucius Junius Moderatus (rst
century), Latin writer on agriculture.

On Farming (De Re Rustica), 211, 642,

751. "
Comines, Philippe de (1445-1509), Flemish
historian.

Mémotres, 185, 388.

Comnenus, Manuel, see Manuel Comnenus.
Connan, Francois de (1508-1551), French
jurist.

Commentaria Furis Crvilis, 299, 306, 307,
328 (ter), 329 (bis), 331, 427.

Connestagio, Girolamo de Franchi (d.
1635), Archbishop of Capua.

On the Union of the Kingdoms of Castille
and Portugal (Dell? Unione del Regno
dt Portogallo alla Corona di Cast
glia), 561.

Conon (fi. 250 3.c.), Greek astronomer, 311,
312,

Conrad of Lichtenau (d. 1240), Bavarian
chronicler.

Chronicon Urspergense, 99, 748.

Conrad Vicerius, German historian of un-
certain date.

Life of Henry VII (Libellus de Rebus
Gestts Henrici VID), 292.

Gonsolato del Mare, 14th-century code of
sea-laws, 603, 667, 668, 687, 712.
Constantine VII (905-959), Emperor of the
East, surnamed Porphyrogenitus.

On Baba Kama, 369, 481 (bis).

On the Government of the Empire (De
Administrando Imperio), 217, 287, 821.

On the Provinces (De Provinciis Regni
Byzantimt), 213.

See also Selection on Embassies.

Constitutions of St. Clement, see Corpus
Luris Ganontect,
Constitutions of France (Constitutiones Gal-
ltae), 437 (bis), 667, 687, 688, 712.
Constitutions of Sicily (Comstitutiones in
Sicilia Fridertct), 299.

Constitutions of Spain (Constitutiones Regus
Hispantae), 696, 711.

Corinthians, see Buble.

Corippus, Flavius Cresconius (6th century),
African epic poet.

De Laudtbus Iustina Minorts, 387.

Corpus Lurts Canonict (Leipzig, 1879-1881):

Decretum Gratiant, 76, 89, 94, 98, 145,
147, 166 (bis), 182, 237 (bis), 238 (bis),
247, 248, 257, 258, 270 (bis), 319, 320,
353» 357, 364, 365, 368 (ter), 369, 371,
372 (bis), 388, 466, 479, 481, 483 (bis),
484, 486 (ter), 489, 493, 501, 516, 518—
20, 5245 554 (bis), §57, 565, 568, 586,
590, 591, 607 (bis), 611, 617, 642 (bis),
694, 711, 718, 719, 737, 842.

Decretals (Decretales Gregorit P. IX), 87,
89, 96 (bis), 180, 182, 248, 249, 267,
271, 284, 374, 375, 3755 377, 380 (bis),
386, 387, 389, 426, 430, 481, 502, 543,
554 (quater), 602, 603 (bis), 608, 623
(bis), 711, 737, 750, 838, 839.

Sext (Liber Sextus Decretalium Bonifacii
P. VII1), 252, 386, 623, 671, 841.

Extravagantes tum Viginti Foannis P.
XXII tum Communes, 603 (bis). See
also commentators updn the various
parts of the Corpus.

Corpus Iurts Crvtlis (Berlin, 1906, 1911,
1912):

Institutes of ‘Fustinian (Iustiniant Institu-
tiones), 103, 157, 209 (bis), 233, 270,
272, 285, 308 (bis), 309, 329, 349, 522
(bis), 624, 666, 691, 716, 767, 819.

Index of Authors Cited

QOI

Corpus Iuris Civilis (continued)
Digest of Fustiman (Iustiniani Digesta),

14, 34, 39 (bis), 54, 56 (quater), 57
(bis), 72, 85, 91 (bis), 97 (bis), 116 (bis),
129, 131 (ter), 132, 140, 142 (ter), 157,
164, 181 (ter), 190 (bis), 193 (quater),
196, 201, 206, 209 (ter), 210 (quinquies),
211, 212, 216, 217, 218 (bis), 221, 222
(nonies), 223 (bis), 224, 227 (bis), 238
(bis), 240 (ter), 248, 249, 250 (ter), 252
(octies), 253, 254 (bis), 265, 267, 268
(quinquies), 269, 270 (bis), 271, 272
(quater), 285, 287, 288 (bis), 293, 296
(ter), 297 (bis), 298, 299 (quater), 301
(quinquies), 302 (sexties), 303 (quater),
305 (bis), 307 (quinquies), 308 (ter),
309 (quinquies), 311 (decies), 313 (bis),
321, 322 (quinquies), 323 (sexties), 325
(octies), 326 (ter), 327, 329 (quater),
335, 338, 339 (quater), 344 (bis), 345,
346, 347, 348, 349, 351, 352, 354
(quater), 355 (bis), 356 (ter), 357, 359,
360 (ter), 361 (ter), 371, 374 (ter), 375,
376, 378 (bis), 383, 384 (ter), 387 (quater),
391, 394, 410, 411, 412, 418, 423 (bis),
425, 428 (bis), 430, 432 (bis), 433, 434,
438 (bis), 447, 451 (bis), 457 (bis), 465,
470, 494, 500, 501, 502 (bis), 507 (bis),
509 (bis), 514, 524 (decies), 529 (bis),
535. 537 (quinquies), 539 (bis), 542, 543,
5445 548, 552, 564, 582, 589, 590 (quin-
quies), 606 (bis), 607, 608 (bis), 622,
623, 627 (bis), 630 (quater), 632, 642,
647, 654, 658, 659 (ter), 662 (bis), 665,
666 (quinquies), 667 (ter), 668, 671
(quater), 672 (quater), 673, 683 (bis),
689, 690 (ter), 691 (bis), 692 (bis), 693
(bis), 694. (bis), 700 (bis), 701, 702, 703
(quinquies), 705 (ter), 706 (quater),
707 (quater), 708, 709 (quinquies), 710
(ter), 711 (ter), 712 (octies), 714 (bis),
717, 718, 719, 727 (bis), 753, 760 (ter),
766 (bis), 767 (bis), 771 (bis), 778 (ter),
788, 800, 808, 809 (bis), 814, 816, 819
(bis), 823 (bis), 829, 830, 833, 834, 835,
836, 837 (bis), 839, 840, 841 (bis), 843,
844 (bis), 845, 846 (quater), 857.

Code of Fustinian (Codex Iustinianus), 28,
85 (bis), 86, 89, 97, 125 (bis), 138, 142,
160, 164, 165 (bis), 213, 231, 238, 252
(ter), 267 (bis), 268, 270 (bis), 271, 274,
276 (tet), 309 (ter), 325, 333, 338, 339,
341, 353, 355, 356, 361 (Dis), 374, 383
(bis), 387 (bis), 414, 428 (bis), 457, 465,

471, 476 (bis), 487, 508, 510, $19, 539,

540, 543, 623 (quater), 627, 671, 679,

es 708 (quater), 710, 727, 750, 789
is).

Novels (Iustiniani Novellae), 28, 224, 267,
272, 270, 293, 358, 374, 623, 627, 711.

Edicts (Justuntani XIII Edita Quae
Vocantur), 224.

Corsetti, Antonio (d, 1503), Italian canonist.

De Excellentia Regia, 228, 264.

De Prole Regali, 290.

Costa, Manuel de (d. 1604), Portuguese
canonist.

De Rebus seu Dispositionibus Dubits, 293.

Cothmann, Ernest (1557-1624), German
jurist,

Consilia, 120, 311, 426, 441, 659.

Council of :

Africa, 68.

Ancyra, 497.

Arles, 89 (bis).

Carthage, 83.

Chalcedon, 144, 552.

Elvira, 87.

Tlerda, 368 (bis).

Nicaea, 87, 588.

Orleans, 86, 460.

St. Macra, 785.

Seville, 711.

Soissons, 144.

Toledo, 89, 144, 365, 387, 543, 544, SSI.

Councils of France (Conciltia Galliae), 368
(bis), 389, 531, 707, 785.

Council, Trullan, 144.

Covarruvias y Leyva, Diego de (1512-
1577), Spanish canonist, 29.

De Contractibus, 333.

On Clementines, 175, 178, 180, 556.

On Decretals, 340, 342, 363, 375.

On Sext, 192 (bis), 193, 195, 227, 228,
229, 298, 299, 324, 326, 327, 333, 334s
347, 431, 435 (bis), 508, 509, 551, 552,
565, 592, 618, 628, 684, 696, 713, 719,
757> 761.

De Matrimoniis, 486, 558, 851.

Practicae Quaestiones, 286, 287.

De Praescriptionibus, 224.

Variae Resolutiones ex pontificio regio et
caesareo jure, 203, 339-40, 359 (bis), 414.

Crantz, see Krantz.
Cravetta,Aimone (1504-1569), talian jurist.

Consslia, 264.

De Antiquitatibus Temporum, 227, 228,
389.

902 Index of Authors Cited

Cromer, s¢¢ Kromer.
Cujas, Jacques (1520-1590), French jurist.

Paratztla on Code (Parantla wn Libros 1X
Codies Fustintant Repetitae Praelec-
j10nis), 357, 711.

Observations (Libri XXVIII Observa-
tionum), 211, 703 (bis), 711, 714.

Curius Fortunatianus, see Fortunatianus,
C. Chirius.
Curtius, Rochus (. 1515), Italian canonist.

De Consuetudine, 263, 457.

Curtius Rufus, Quintus (Ist century),
Roman historian.

Histories (Historiarum Alexandr. Magm
Libr Decem, Leipzig, 1919), 10, 128
(ter), 152, 170, 172, 176, 194, 195, 212,
250, 281, 316, 379, 446, 459, 530, 541,
543, 548, 655 (bis), 656, 675, 686, 697,
733» 735s 749s 749, 769, 7739 777:

Curtius, Junior, Franciscus (d. 1533),
Italian civilist.
Constha, 383, 389 (bis).
Cyprian, St. (Thascius Caecilius Cyprianus,
c. 200-258), bishop of Carthage.
To Demetrianus (Ad Demetrianum), 153
is), 763.

On the Lapsed (De Lapsts), 89, 357.

Letters (Eptstolae), 82, 85, 87, 89 (quin-
quies), 153, 170, 490, 508 (bis), 517,
645.

On Mortality (De Mortalitate), 658.

On Patience (De Bono Patientiae), 72.

Testimonies (Ad Qutrinum, Testimonzo-
rum contra Fudaeos Libre IID), 73, 765.

On the Umty of the Church (De Unitate
Ecclesiae), 508.

On the Vanity of Idols (De Idolorum
V anttate), 512, 517.

Cyril, St. (d. 444), bishop of Alexandria and
Doctor of the Church.

On Fohn (Gommentartus in ‘Foannem), 154.

Against Fultan (De Stncera Religuone
Christtanorum adversus Isbros Athet
Fuliant), 18, 76, 126, 511, 521, 5265,
615, 771.

Damian, Peter (c, 1006-1072), Italian theo-
logian.
Letters (Epistolarum Libri VIID), 533.
Daneau, Lambert (1530-1596), French
Calvinist theologian.
Pelitical Aphorisms (Aphorismt Politiet),

146,
Daniel, see Bible.

Dante Alighieri (1265-1321), Italian poet.
On Monarchy (De Monarchia), 552.
d’Argentré, see Argentré, Bertrand d’.
David, Rabbi, see Kimchi, David.
Decianus, Tiberius (1508-1581), Italian
jurist.
Consilta, 397.
Responsa, 252.
Decio, Filippo (1454-1535), Italian jurist.
Constlta, 405 (bis), 419, 628, 809, 811,
817.
Deetstones Genuenses, ‘712.
Decretals, see Corpus Iurts Canontect.
Decretum Gratiant, see Corpus Iurts Cano-
N61.
Decretum, On, 387 ; see also individual com-
mentators.
Democritus (b. between 490 and 460 B.c.),
Greek philosopher, 165, 453, 465, 476,
477, 616.

Demosthenes (c. 382-322 B.c.), Greek ora-
tor, 579.
On Affatrs in the Chersonese (De Cher-
soneso), 18, 774.
Against Aphobus (Adversus Aphobum),

530.
Against Artstocrates (Adversus Aristo-

cratem), 179, 473, 625 (bis), 727-8.

Against Aristogerton (Adversus Artstogi-
tonem), 329.

Against Conon (In Cononem), 4.74.

For the Crown of the TIrierarchy (Pro
Corona Trierarchtas), 626.

On the Crown (De Corona), 810.

On the Freedom of the Rhodtans (De
Rhodiorum Libertate), 395.

On Halonnesus (De Halonneso), 207, 212,

17, 713.
To Leochares (In Leocharem), 240, 245.
Against Leptines (Adversus Leptinem), 215
is), 613.
Letier of Philip (Philippt Epistola), 439,
665, 713.
Letters (Epistolae), 494, 531, 761.
Against Macartatus (In Macartatum),

273.
For Megalopolis (De Megalopolztis), 4.04.
Against Metdias (Contra Midtam), 74.
Against Neatras (In Neaeram), 476.
Against Nicostratus (In Nicostratum), 708.
Olynthiacs (Olynthtacae), 169.
Against Panitaenetus (In Pantaenetum),

357-
Philsppics (Philtppica IL), 212, 787.

Index of Authors Cited

903

Demosthenes (continued)

Against Stephanus (In Stephanum), 494,
728.

Against Timocrates (Aduersus Timocra-
tem), 92, 180, 181, 498, 500,

Deuteronomy, see Bible,
Dexippus, Publius Herennius (3d century),
Greek historian.

Fragments of Scythica (edit. Dindorf, in
ftstorict. Graect Muinores, Leipzig,
1870, vol. i), 634.

Diaconus, Paulus, see Paulus Diaconus.

Dicaearchus (fl. 300 B.c.), Greek peripatetic
philosopher, 188.

Didymus (b. 63 B.c.), Greek grammarian.

On Homer’s Odyssey, 638.

Digest, Fustinian, see Corpus Iuris Civilis.
Dio Cassius Cocceianus (b. 155), Greek
historian, 65, 213, 316.

Roman History (Historia Romana), 85,
107, 143, 170, 174, 214, 511, 525, 538,
546, 568, 638, 649, 650 (bis), 665, 732,
742 7525 754 7559 774) 794s 835-

Selections on Embassies (Excerpta de Lega-
tronibus), 114, 407, 444, 449.

Selections on Virtues and Vices (Excerpta
V alesiana), 407.

Dio Chrysostom (b. c. 50), of Prusa, Greek
thetorician, 244, 526.

Orations (Orationes, edit. Dindorf, Leip-
zig, 1857), 19, 44, 107, 135, 188, 202,
207, 214, 219, 241, 255, 256, 267, 300,
332, 353, 438, 450, 455, 456, 458, 460,
491, 505, 512, 514, 529, 539. 545 547;
563, 567, 573, 585, 621, 632 (bis), 634,
690, 708 (bis), 718, 751, 764.

Diodorus Siculus (ist century 3.c.), Greek
historian.

Historical Library (Bibliotheca Historica,
edit. Vogel, Leipzig, 1888), 106, 110,
112, 117, 121 (bis), 122 (quinquies),
132,134,169 (quater),172, 201,202,215,
217, 221, 237, 244, 255, 268 (bis), 270,
283, 292, 313 (quater), 314, 315, 321
(bis), 360, 372, 374, 380 (bis), 393 (bis),
398, 407, 417, 434, 446, 447, 451, 456
(ter), 460, 484, 488 (ter), 490, 496, 501,
505 (bis), 506, 511, 512, $21, 527, 528,
530, 538, 543, 562, 563, 568 (bis), 574
(bis), 576 (bis), §80, 582, 585, 625, 633
(bis), 634, 651 (ter), 657, 659, 665, 675
(bis), 686, 702, 721, 723, 725, 730, 733
(bis), 736 (bis), 737 (bis), 738 (bis), 739
(ter), 741, 750, 753 (bis), 754, 766, 769,

774, 775 (bis), 777, 779, 792, 794, 796,
826 (bis), 827, 839, 862.

Diogenes (404-323 3.c.), of Sinope, cynic
philosopher, 240.
Diogenes Laertius (fl. 225), Greek bio-
grapher.
De Vita, Dogmatibus et Apophthegmati-
bus Clarorum Philosophorum Libri X,

80, 115, 187, 188, 271, 312, 353, 379
(bis), 441, 503, 510, 661.

Dionysius of Halicarnassus (c. 70-7 B.c.),
Greek historian and critic.

On Isocrates, 221.

Roman Antiquities (Antiquitates Romanae,
81, 101 (ter), 108, 113 (bis), 125, 129
(bis), 135, 169, 202, 213, 250 (ter), 287,
295, 316, 368, 372, 419 (ter), 506, 511,
527, 540, 542, 561 (bis), 628, 634, 650,
651, 669 (ter), 675, 677 (bis), 678 (bis),
680 (octies), 681, 682 (ter), 685, 700,
717, 726, 767, 798, 805, 811, 812, 821.

Selections on Embassies, 449, 560, 636, 678,
682,

Diphilus (fl. 300 B.c.), Attic comic poet,
611.

Doctors, commentators on the civil and
canon law in general,

On Code, 179, 192.

On Decretals, 383.

On Digest, 164, 179, 268, 333.

Dominicus de Sancto Geminiano (fl. 1407),
Italian canonist.

On Sext (Commentaria in Libros Decreta-
lium et Sextum), 627.

Donatus, Aelius (b. c. 333), Latin gram-
marian.

On Terence (In Terentium Commentarium),
238, 240 (bis), 297, 331, 364, 427, 440,
446, 516, 561, 611, 649, 691, 701, 766,
833, 834

Doneau, Hughes (Hugo Donellus, 1527-
1591), French jurist.
Commentaries (Commentaria de Lure
Civil), 686,
Douaren, see Duaren.
Driedo, or Dridoens, John (c. 1480-1535),
Belgian polemic theologian.
De Libertate Christiana, 570.
van den Driesche, Jan (1550-1616), Dutch
Protestant exegete.

On Acts (Annotationes in Novum Testa-
mentum seu Praeterstorum Libri XII),
587.

Drusius, see van den Driesche.

904 Index of Authors Cited
Duaren, Francois (c. 1509-1559), French | Eugraphius (6th century), commentator on
jurist. Terence.
On Digest, 371. On the Andria, 239.

Dubraw, Johann (d. 1§53), Bohemian
historian.
History of Bohemia (Htstorta Bohemiae),
158.
Dufresne, see de la Canaye, Philippe.
Dumoulin, Charles (Carolus Molinaeus,
1500-1566), French jurist.
Additions to Alexander's Constlia (Anno-~
zationes in Alexandri Tartagni Con-

stlta), 179, 340.
Ad Consuetudines Paristenses, 113, 333,

426, 552.
Duns Scotus, John (c. 1265-1308), English
theologian, 183.
On the Sentences of Peter Lombard (Opus
Oxoniense), 39.
Durandus, William (c, 1237-1296), French
canonist.
Speculum Fudictale, 227.

Ebenesdras, see Aben-Ezra.
Ecclestastes, see Bible.
Ecclestasizeus, see Bible.
Eginhard, see Einhard.
Einhard (c. 770-840), French historian,
Life of Charlemagne (Vita Caroli Magni),
272.
Embassies, Selections on, see Selections on
Embassies.
Emilio, Paolo (d. 1529), Italian historian.
History of France (De Rebus Gestis
Francorum), 318.
Ennius, Quintus (239-169 8.c.), Roman
poet, 9, 633, 822.
Ephesians, see Bible.
Epictetus (b. c. 50), Stoic philosopher.
Manual (Enchiridion), 144, 513.
Epiphanius (c. 310-403), bishop of Salamis.
Against Heresy (Panarion), 393, 520 (?).
On the Twelve Stones (De Duodecim
Gemmts), 47.
Episcopus, Joannes, see Joannes Episcopus.
Erasmus, Desiderius (1465-1536), Dutch
scholar, 20.
Praise of Folly (Encomium Moriae), 618.
Esdras, see Bible.
Eubulus (8. 375 B.c.), Greek comic poet.
Fragments, 255 (bis).
Eucherius, St. (d. c. 449), bishop of Lyons,

154, 155.

On the Self-tormentor, 325.

Eumenius (fl. 290), Roman rhetorician.

Panegyrics, 732, 775 (2).

Eunapius (b. 347), Greek rhetorician, con-
tinuator of Dexippus.

Selections on Embasstes, 743.

Euripides (480-406 3.c.), Athenian tragic
poet, 371.

Alcestis, 265.

Andromache, 23 (bis), 236 (bis), 237, 238,
240, 270,

Antigone, 455.

Children of Hercules (Heraclidae), 108,
254, 444, 532 (bis), 533, 583, 647, 738
(bis), 820, 821.

Cyclops, 139.

Dictys, 270.

Electra, 246, 250.

Erechtheus, 579.

Fragments, 174, 274, 532, 583, 647.

Hecuba, 611.

Helena, 9, 39, 126, 267, 560.

Hippolytus, 363, 583.

Hypsipyle, 452.

Lon, 283, 532, 644.

Iphigenia in Aulis, 476, 550, 561.

Iphigenia among the Taurans, 250,
283.

Madness of Hercules (Hercules Furens),
281.

Orestes, 58, 250, 474.

Phoenician Mazdens, 17, 23, 139, 561,
563, 588.

Rhesus, 621, 675.

Suppliants, 107, 108, 200, 392, 450 (bis),
451 (bis), 455, 461, 505 (bis), 560, 561,
571, 582, 636, 730.

Trojan Women, 525, 678 (ter), 753.

Eusebius Pamphili (264~c. 349), bishop of

Caesarea, 483.

Chronicle (Chronicon Bipartitum), 118.

Demonstrations (Demonstrationis Evan-
gelicae Libri X), 88.

Ecclestastical History (Historia Ecclesias-
tica), 450, 460 (bis), §87.

On the Life of Constantine (Vita Con-
stantint), 86, 87, 88, 520.

Preparation (Praeparationts Evangelicae

Libri XV), 70.

Eustathius (d. c. 1200), archbishop of Thes-

salonica,

Index of Authors Cited

905

Eustathius (continued)
On the Iliad (Commentarius ad Homeri

Iliadem), 224, 245, 331, 345, 370, 380,
606

On the Odyssey (Commentarius ad Odys-
seam), 128, 246, 272, 380 (bis), 611.
Eustratius (12th century), commentator on
Aristotle.
On Nicomachean Ethics, 468, 618, 832.
Euthymius Zigabenus (c. 1100), Byzantine
monk,

Commentarium in Quatuor Evangelia (?),
96.

Eutropius (4th century), Latin historian,
460, 538.

Breviartum Historiae Romanae ab Urbe
Condita (Eton, 1793), 106, 118, 655,
685, 732, 772, 780.

Evenus (fl. 450 8.c.), Greek poet, 360.
Everard, Nicholas (1461-1532),Dutch jurist.

Topica wuris sive loct argumentorum

legales, 411, 412 (bis), 421 (bis).

Excerpta de Legationtbus, see Selections on
Embasszes.

Excerpta Petresciana, see Selections on
Vurtues and Vices.

Excerpta de Virtutibus et Vitis, see Selec-
tions on Virtues and Vices.

Exodus, see Buble.

Ezekiel, see Bible.

Faber, Antonius, see Favre, Antoine.
Faber or Lefévre, Jean (d. 1340), French
jurist.

On Code, 428.

Faber, Peter, se¢ Faur, Pierre du.
Faur, Pierre du (Petrus Faber, c. 1530-c.
1615), French classical scholar.
Semestria, 22, 409, 703.
Favorinus (2d century), Greek writer, 49I.
Favre, Antoine (Antonius Faber, 1557-
1624), French jurist.
Codex Sabaudtcus, 252.
Consilium pro Ducatu Montisferratenss,
224.

De la Furtsprudence de Savore, 426.

De Conjecturts Furts Crvilts, 841.
Felinus, see Sandeo, Felino Maria.
Fenestella (Ist century), Roman historian,

129.
Fernandez Messia, Tellus (16th century),
Spanish jurist.
Taurinenses Quaestiones (In Primas

XXXVILI Leges Tauri ?), 269.

Ferus, Joannes, see Wild, Johann.
Festus, Rufus (fl. 369), Latin historian.

Abridged History of Rome (Brevtarium
Rerum Gestarum Popult Romant), 135.

Festus, Sextus Pompeius (3d or 4th cen-
tury), Latin grammarian.

De Verborum Significatu, 132, 212, 309,
314, 361, 367, 370, 378 (bis), 701, 703,
714, 822.

Feuds, On (De Feudts), 376, 404 (bis),
581.

Fice, John, see Fichard, Johann.

Fichard, Johann (1512-1581), German
jurist.

Consiha Latina, 252.

Firmanus, Joannes Bertachinus (d. 1497),
Italian canonist.
De Gabellis, Tributis et Vectigalibus, 201.
Firmicus Maternus, Julius (4th century),
Sicilian astrologer.

Matheseos Libri, 212.

Flaccus, Siculus (1st century), Roman land-
surveyor.

On the Condstion of the Fields (De Con-
dicionibus Agrorum), 207, 301, 667.

Flodoard (894-966), French historian.

Historia Ecclesiae Remensts, 403.

Florentinus (3d century), Roman jurist.
Institutiones, 14, 34, 56, 57, 694, 705.
Florus, L. Annaeus (2d century), Latin
historian.

Epitome Rerum Romanarum (Zweibri-
cken, 1783), 118, 130, 141, 159, 199,
200, 213, 214, 221, 314, 406 (bis), 575,
578, 653, 735, 754: 773

Fortescue, Sir John (d. c. 1485), English
lawyer.

On the Praises of the Laws of England (De
Laudibus Legum Angliae), 257.

Fortunatianus, C. Chirius (fl. 450), Latin
thetorician.

Art of Rhetoric (Ars Rhetortca), 240.

De Quantitatum Comparatione, 251.

Fortunius Garzia de Erzilla (fl. 1514),
Spanish jurist.

Tractatus de Ultimo Fine Utriusque Furis
Canonict et Civilis, 486.

On Digest, 768.

Franciscus Aretinus, see Accolti, Francesco.
Franciscus 4 Ripa, Joannes (d. 1534), Italian
jurist.

On Digest, 684.

Fraxinus Canaeus, see de la Canaye,

Philippe.

906

Index of Authors Cited

Fredegarius, surnamed Scholasticus (fl. c.
660), French chronicler.

Chronzcon ab anno Christ: usque ad annum
642 libr: V and its continuation, 118,
531, 584, 822.

Freher, Marquard (d. 1614), German his-
torian.

Epitome of Aimoin’s History, 675.

Freitas, Seraphinus de (d. 1622), Portu-
guese canonist.

On the Fust Asiatic Empure of the Portu-
guese (De Lusto Imperto Lusitanorum
Astatico), 604.

Fresne, du, se¢ de la Canaye, Philippe.
Frider Mindanus, Peter (d. 1616), German
jurist.

De Processibus, 135.

Froissart, Jean (1338-c. 1410), French
chronicler.

Chronicles (Chronsques), 263.

Frontinus, Sextus Julius (c. 40-106), Roman
military writer, 106, 667.
De Agrorum Qualttate, 216.
Stratagems (Stratagematon Libri Tres),

412, 618, 653, 746, 755, 784, 785, 836,
59.

Fulgosius, Raphael (1367-1427), Italian
jurist.
On Code, 627.
On Digest, 565.
Fulvius Ursinus, see Ursinus, Fulvius.

Gabrieli, Antonius (d.1555), Italian canonist.
Communes Conclustones, 390.
Gail, Andreas (1525-1587), German jurist.
De Arrestss Imperit, 103, 375, 811.
Observationes Practicae, 123, 135, 228,
333, 375, 388, 807.

De Pace Publica, 99, 261, 368, 481, 563,
589, 627, 729, 742.

De Pignorationibus, 628.

Gaius (fl. 138-161), Roman jurist, 344.

Dazly Questions (Rerum Cottidiarum sive
Aureorum Libri VIL), 354, 666, 693.
Ad Edtctum Provinciale Libri XXX, 56,

181 (bis), 331.
rf vine (Insitutionum Libri IP), 691
is).

Galatians, see Bible.

Galen, Claudius (131-201), Greek medical

writer and philosopher, 194, 360, 471,
491, 519, 631.

é Semine, 306,

On the Teachings of Htppocrates and
Plato, 103, 510.

On the Use of Parts, 53 (bis).

Gallicanus, Vulcacius, see Vulcacius Galli-
canus.

Gallus, Aelius (Ist century 3.c.), Roman
jurist.

Terms Which Apply to the Law (De Ver-
borum Quae ad Ius Pertsnent Signiftca-
tioné), 132, 702, 712, 714.

Gamaliel, Rabbi (d, 88), Pharisee and doc-
tor of Hebrew Law, 588.

Gellius, Aulus (2d century), Latin gram-
marian,

Attic Nights (Noctium Atticarum Libri
XX, Leipzig, 1903), 9, 26, §1, 103, 174
(bis), 187, 191, 214, 237, 251, 313, 360,
367, 392, 423 (bis), 458, 469, 472, 481,
484, 491, 503, 542, 559, 576, 588, O11,
619, 624, 633, 652, 656, 676, 683 (bis),
687, 701, 706, 751, 815, 832, 833 (tex),
834, 853, 854, 855.

Gemara, collection of discussions concern-
ing the Mishna, 544.

Genesis, see Bible.

Gentili, Alberico (1552-1608), Italian jurist,

23.

On Embassies (De Legationibus Ltbri
Tres, Hanau, 1594), 443.

On the Law of War (De Iure Belli Libri
Tres, Oxford, 1877), 22, 184, 185, 565,
639 (bis), 830.

Pleas of a Spanish Advocate (Hispanicae
Advocationts Libr1 Duo, Amsterdam,
1661), 213, 647, 667, 668.

Gersonides (Levi Ben Gerson, 1288-1370),
French rabbi.

On Leviticus, 794.

On Samuel, 129.

Glossators, commentators on Roman law.

On Digest, 414.

Goeddaeus, Johannes (1555-1632), German
jurist.

Constlia Marpurgensia, 99.

Goldast, Melchior (1576-1635), Swiss his-
torian and jurist.

Collectzo Constituttonum Impertalrum, 213.

Gomara, Francisco Lopez de (1510-c.
1560), Spanish historian.

Historia Generalis Indiae Occidentalss,
274,

Gomez, Antonio (fl. 1550), Spanish civilist.

Variae Resolutiones Furts Civilis Com-
munis et Regit, 338.

Index of Authors Crted

907

Gomez, Luis (1494-1553), Spanish jurist.

On Lustitutes, 180, 552.

Gorionides, Josephus (Joseph Ben Gorion,
gth century), Jewish historian, 458.

Gorkum, Henry of, see Henry of Gorkum.

Gratian (d. c. 1158), Italian canonist.

Concordia Discordantium Canonum, cited
as Decretum, 76, 94, 98, 145, 166 (bis),
237 (bis), 238, 247, 270 (bis), 319, 320,
353» 357> 305, 369, 371, 493, 5575 565,
568, 590, 591, 607, 611, 612, 617, 642
(bis), 718, 719, 737.

Gregoras, Nicephorus (c. 1295-c. 1360),
Byzantine historian.

Byzantina Historia, 79, 114, 118, 122,
216, 226, 231, 279 (ter), 310, 373, 542,
555, 563, 629, 668, 696 (bis), 738 (bis),
784.

Gregory I, Pope, surnamed the Great
(c. 540-604).

Letters (Epistolae), 83, 145, 520.

Gregory IX, Pope (d. 1241), compiler of
Decretals, 248.

Gregory Nazianzen, St. (c. 328-c. 389),
Greek Father of the Church.

Against Fulian (In Fulianum Impera-
torem), 146 (bis).

Orations (Orationes), 235, 517.

Gregory of Neocaesarea (c. 213—c. 270), sur-
named Thaumaturgus, Greek bishop,
768,

Epistola Canonica, 778.

Gregory of Nyssa, St. (c. 332-c. 398), Greek
Father of the Church.

Letter to Letoius (Episiola Canonica ad
Letojum), 454.

Gregory of Tours (544-594), French his-
torian.

History of the Franks (Htstoria Eccle-
siastica Francorum Libri X), 110, 175,
183, 675 (bis), 785.

Grotius, Hugo (1583-1645), Dutch jurist,
author of the work here translated, in
which there are over 330 cross refer-
ences.

Mare Liberum, 189, 199.

Selection from Greek Tragedies and
Comedies (Excerpta ex Tragoedss et
Comoedits Graeca), 698.

Gryphiander, Johann (d. 1652), German
historian.

Tractatus de Insulis ex Furisconsulns,
Politicis, Historicts et Phtlologss Col-
lectus, 299.

Guicciardini, Francesco (1482-1540), Italian
historian.

History of Italy (La Htstorta d'Italia),
261, 263, 289, 337, 413, 428, 441, 444,
494, 576, 785, 804, 813, 822, 850.

Guido Papae, see Pape, Guy de la.
Guilleman, Franciscus (fl. 1610), Swiss
historian.

History of Swrtzerland (Helvetia seu de
Rebus Helvetsorum), 154 (bis), 772.
Gunther (fl. 1205), French Cistercian monk,

reputed author of :

Ligurinus, 113, 380, 388 (bis), 554, 574,
585, 653, 785.

Habakkuk, see Bible.
Haraeus, Franciscus (d.
historian.
Annales Brabantiae Totiusque Belgit, 261,
817.
Harmenopulus, Constantine (1320-1380),
Greek jurist.
Promptuarium Juris Ctvtlis, 211, 297,
498.
Harpocration, Valerius (2d century), Greek
rhetorician.
Lexicon in Decem Oratores, 626.
Hebrews, see Bible.
Hegesippus (d. c. 180), ecclesiastical his-
torian, 458 (bis).
Heige, Peter (1558-1599), German jurist.
Quaestiones Illustres (Quaestiones Luris
Civilis et Saxontct ?), 426.
Heliodorus (4th century), bishop of Tricca.
Ethtopica, 175.
Helmold (d. c. 1183), German historian.

Chronica Slavorum et Venedorum, 279,

1632), Dutch

749:
See also Arnold of Liibeck.
Heniochus, Greek poet of Middle Comedy,

774
Henriquez, Henricus (1536-1608), Portu-
guese Jesuit and theologian.
De Irregularitatibus in his Theologtae
Moralts Summa, 178.
Henry of Gorkum (c. 1386-1431), Dutch
theologian.
De Bello Iusto, 22.
Henry of Segusio, Blessed, see Hostiensis.
Heraclitus (c. 535—-c. 475 B.c.), Greek philo-
sopher of Ephesus, 42.
Ad Herennium, a treatise on rhetoric as-
cribed to Cicero or Q. Cornificius, 340,

427, 455s 491, 739% 731.

908

Index of Authors Cited

Hermogenianus (4th century), Roman
jurist.

Furis Epitomarum Libri VI, 57.

Herodian (3d century), Greek historian.

Histories (Ab Excessu Divi Mares Libri
Octo, Leipzig, 1855), 19, 131, 148 (bis),
184, 215, 224, 237, 314 (bis), 317 (bis),
5355 571, 721, 728, 730 771.

Herodotus (b. 484 B.c.), Greek historian,
611.

Historrarum Libri IX, 47, 106, 107, 110,
202 (bis), 262, 264, 279, 280, 283, 291,
362, 446, 449, 451, 457, 532s 54 543,
561, 564, 622, 674, 678, 725, 729, 749,
749, 772, 822, 857.

Herrera y Tordesillas, Antonio de (1559-
1625), Spanish historian.

Historia General de los Hechos de los
Castellanos en las Islas y T1erra Firme
del Mar Océano, 564, 630.

Hesiod (fl. 800 3.c.), Greek poet.

T heogony (Iheogonia), 110, 362.

Works and Days (Opera et Dies), 41, 42,
524, 558, 716.

Hierax, Greek philosopher.

De Fustitia, 462.

Hierocles (fl. 450), New Platonist.

On the Golden Verses of Pythagoras (In
Aureum Pythagoreorum Carmen Com-
mentarius), 14, 277, 379, 462, 488.

Hieronymus, see Jerome, St.
Hieronymus de Monte, of Brescia.

De Finibus Regundts, 835.

Hilary of Arles, St. (c. 401-449), Gallic
archbishop, 553.

Hilary of Poitiers, St. (d. 368), Gallic
bishop and exegete.

On Matthew (Commentarius in Evan-
gelium S. Matthaet), 46.

Hincmar of Reims (806-882), Frankish
archbishop, 368.

De Divortio Lotharit Regis et Tetbergae
Reginae Epistola Praenetica ad Carolum
Crassum, 364, 368 (bis), 481, 707.

Life of Remigius (Vita Sanctt Remigit),
84I.

Hipparchus (4th century), a Pythagorean
philosopher.

De Animi Tranquillitate, 243.

Hirtius, Aulus (d. 43 3.c.), Roman general,
continuator of Caesar.

African W ar (De Bello Africo Liber), 649.

Book VIII of Caesar’s De Bello Gallzco,
858.

Homer, Greek epic poet, 458.

Thad, 37,79, 110, 117 (ter), 152, 219, 264
(ter), 282, 344 (quater), 345, 378, 412
(ter), 444, 452 (bis), 456, 468 (quater),
610, 616, 627, 628, 648, 649 (bis), 674
(quater), 675, 678, 702, 727 (bis), 742,
759» 793s 832.

Odyssey, 139, 171, 188, 219, 259, 265,
273, 364, 394, 453 (bis), 457, 475, 510
(bis), 591, 605, 630, 631, 638, 653, 678,
702, 764, 765 (bis), 766 (bis).

See also Batrachomyomachia.

Honorius, Philippus (Giulio Belli, 17th
century), Italian secretary of Cardinal
Dietrichstein and editor of Thesaurus
Poltticus, 319.

Horace (Quintus Horatius Flaccus, 65-8
B.c.), Latin poet, 491. *

Art of Poetry (De Arte Poetica), 10, 38,
189, 409.

Epistles (Epistulae), 17, 35, 525, 649.

Epodes (Epodt), 197.

Odes (Carmina), 107, 187, 191, 201, 210
(bis), 282, 330, 331, 476, 617, 621, 734,
842, 853 (bis).

Satires (Sermones), II, 16, 35, 38, 425 53,
347, 355, 463 (ter), 494, 832.

Hosea, see Bible.

Hostiensis (Blessed Henry of Segusio, d.
1271), cardinal-bishop of Ostia, Italian
canonist.

On Decretals, 288, 297, 325.

Hotman, Francois (1524-1590), French
jurist.

Anti-Tribonianus, 29.

Quaestiones Illustres, 115, 290, 291.

Iacchiades, or Joseph bar Chijah (4th cen-
tury), Biblical exegete.
On Daniel, 122, 272, 781.
Iamblichus (d. c. 330), Chalcidian Neo-
Platonic philosopher, 379.
Letter to Dyscolion (Epzstola ad Dyscolium),

143.
Life of Pythagoras (De Vita Pythagorae),
592, 747:
On the Mysteries of the Egyptians (De
Mysterits Liber), 514.
Protrepticon ad Philosophiam, 80, 471,
509, 620.
Ibn’ Ezra, see Aben-Ezra.
Tllescas, Gonzalo de (d. c. 1580), Spanish
historian.
Historta pontifical y catholsca, 294.

Index of Authors Cited

909

Immanuel ben Salomo, Ziphronaeus (13th
century), Italian rabbi.
On Proverbs (Comm. in Proverbia Salo-
montis), 467.
Imola, see Alexander of Imola.
Innocent IV, Pope (d.1254), Italian canonist.
Apparatus seu Commentaria in Quinque
Libros Decretalium, 98 (bis), 165 (bis),
192, 252 (bis), 506, 627.
Institutes of Fustinian, see Corpus Iurts
Croths.
Instructiones Ret Marttimae, 688.
Trenaeus, St. (c. 140-202), bishop of Lyons.
Agawmst Heresies (Libri V adversus
Haereses, anonymous Latin transla-
tion of Greek original), 50 (bis), 72,
I10, 268, 462, 610, 694.
Isaeus (fl. 385 3.c.), one of the ten Attic
orators, 245.
On the Inheritance of Pyrrbus (De Pyrrhi
Hereditate), 423.
De Nicostratt Hereditate, 277 (bis).
De Phtloctemonts Hereditate, 272,
De Regno Admonttiones, 501.
Isaiah, see Bible.
Isidore of Pelusium, St. (c. 370-c. 440),
Alexandrian theologian.
Letters (Eptstolae), 127, 450 (bis), 765.
Isidore of Seville, St. (c. 560-636), Spanish
historian and theologian.
Etymologies (Originum sive Etymolo-
giarum Libri XX), 633, 636, 679, 701.
Gothie Chronscles (Historia de Regibus
Gothorum, Wandalorum et Suevorum),

517, 753-

De Summo Bono or Sententiarum Libri III,
364.
Isocrates (436-338 3.c.), Attic orator, 611,
728.
Archidamus, 220, 395.
Areopagiticus, 47.
De Bugis, 254.
Busiris, 542.
Against Callimachus, 225, 409.
Evagoras, 105, 380.
Praise of Helen, 451, 505.
Letters to Philip, 770.
To Nucocles, 501.
Panathenaic Oration, 130, 212, 215, 451,
461, 506, 550, 774.
Panegyric, 134 (ter), 191, 395, 396, 451.
On Peace, 135, 310, 812.
Plataie Oration, 451, 722, 725, 762, 811.
Israel ben Mose, Rabbi (16th century), 481.

Jamblichus, see Iamblichus.

Fames, see Bible.

Jarchi, Solomon Ben Isaac (c. 1040-1105),
French Jewish exegete.

On Genesis, 613.

On Leviticus, 794.

Jason Mainus or de Maino (Giasone del
Maino, 1435-1519), Italian jurist.

On Code, 552.

Constlia, 228, 297, 385.

On Digest, 165, 323, 380, 384, 670,
684.

On Institutes, 180.

Javolenus, Priscus (b. c. 79), Roman jurist.

Epistularum Libri XIV, cited in Digest,
857.

Ex Postertortbus Labeonis Libri X, cited
in Digest, 713.

Feremiah, see Bible.

Jerome, St. (Sophronius Eusebius Hierony-
mus, c. 340-420), Latin Father of the
Church, §52, 610.

Apology against Rufinus (Apologeticum ad-
versus Rufinum), 819.

Chronicle of Eusebius (Chronicon Eusebii
Caesariensis), 118.

On Daniel, §21, 555.

On Epbestans, 587.

On Ezekiel, 356, 486, 618.

On Galatians, 520.

On Isaiah, 618.

On Feremiah, 47.

On Fonab, 460.

Against Fovinianus (Adversus Fovinia-
num), 80, 240, 460, 476, 508, 642.

Letters (Epistolae), 14, 61, 89, 127, 235,
483, 507, 539, 554 (bis), 588, 590, 615,
642 (bis), 694, 719, 765.

On Leviticus (Homiliae Origents), 320.

On Luke, 785.

Life of Malchus Vita Malcht, Monacht
Capitit), 182.

On Nahum, 483.

On the Parables, 522.

Against Pelagius (Dialogi contra Pela-
gianos), 72, 75.

On Perpetual Virgincty, against Helordius
(De Perpetua Virginitate B. Mariae
adversus Helvidium), 642.

Joannes Antiochenus, se¢ John of Antioch.

Joannes de Carthagena, see Carthagena,
Joannes de.

Joannes Chrysostomus, see Chrysostom, St.
John.

QIO

Index of Authors Cited

Joannes Episcopus Euchaitensis (d. c. 1054),

bishop of Euchaitae, poet.
Versus Lambict, 213.

Joannes Leo, see Leo of Africa.

Joannes de Lignano, see Legnano, Giovanni
de.

Joannes Magnus, see Magnus, Johan.

Joannes Sarisberiensis, see John of Salis-
bury.

‘Fob, see Bible.

Johannes, see Joannes and John.

‘Fobn, see Bible.

John of Antioch (7th century), Greek
chronicler, quoted in the Excerpta
Petresciana, 156, 50%, 590.

John Chrysostom, St., see Chrysostom, St.
John.

John Leo, see Leo of Africa.

John Magnus, see Magnus, Johan.

John Major, see Major, John.

John of Salisbury (c. 1115-1180), English
philosopher and historian.

Policraticus, 36, 183, 297, 653.

Fonah, see Bible.

Jordanes or Jornandes (6th century), Gothic
historian.

History of the Goths (De Origine Acti-
busque Getarum), 233, 279, 287, 732.

Josephus (37-95), Jewish historian, 65, 398,

478, 515, 834.

Antiquities of the Fews (Antiquitates
Fudaicae, Amsterdam, 1726), 19, 43,
49, 47, 55,59, 79 (bis), 82, 83 (ter), 115,
118 (bis), 122 (quater), 126, 128, 132,
133, 136, 140, 149, 151 (ter), 166, 172,
187, 188, 213, 235 (bis), 245 (ter), 290
(bis), 367, 399, 400, 438, 439, 456, 457
(bis), 459, 473. 475) 477, 481, 482, 491,
522, 538, 540, 542, 544, 569, 577, 587,
593, 624, 633, 635, 648, 649, 654, 661,
663, 677, 690, 696, 700, 703, 717,
72> 732 (bis), 734 (quater), 736, 747,

16,

Against Apion (Contra Aptonem, Loeb

ed.), 235, 371, 379, 398, 509 (bis), 518,

567, 589, 657, 661.
Fewsh War (Bellum Fudaicum, Amster-

dam, 1726), 46, 56, 94, 213, 230 (bis),

280, 378, 450, 457, 458, 459 (bis), 552,

59 645, 662 (bis), 729, 732, 776 (bis),
I

5.
Life (Fosepht Vita, Loeb ed.), 83, 516.
Josephus Gorionides, see Gorionides, Jo-
sephus.

Foshua, see Bible.

Josippus, see Gorionides, Josephus.

Fudges, see Bible.

Fudith, see Bible.

Julian the Apostate (Julianus Flavius
Claudius, 331-363), Roman emperor.

The Caesars (Caesares), 269.

Letters (Eptstolae), 310.

Misopogon, 152, 312.

Ovations (Orationes), 39, 170, 212, 281,
471, 490, 512, 536, 540 (bis), 705, 738.

Julian, Salvius (b. c. 100), Roman jurist,
cited in the Dzgest.

Digestorum Libri XC, 387.

Junius Brutus, see Brutus, Junius.

Justin (Marcus Junianus Justinus, 2d cen-
tury), Latin historian.

Hastortes (Htstoriarum Philippicarum et
Totius Mundi Originum et Terrae Situs
ex Trogo Pompeo Excerptarum Librt
XLIP), 79 (bis), 80, 105, 117, 118, 119
(bis), 120, 121, 122, 130, 144, I5I, 170,
186, 187, 279, 280 (quater), 281, 283,
290, 292, 394, 417, 419, 446, 472, 500,
508, 510, 516, 521, 543, 548, 632 (bis),
654, 656 (bis), 665, 669, 697, 699, 725,
p28 735, 748, 759, 770, 830, 849,

57:

Justin Martyr (c. 103-c. 165), Greek apo-
logist of Christianity.

Dialogue with Trypho (Dralogus cum Try-
phone Fudaeo), 43, 45, 47 (bis), 48, 481,
710.

Furst Apology (Apologia Prima pro Chris-
tianis), 63, 69, 70, 73 (ter), 170, 481,
518.

Letter to Zena (Epistola ad Zenam et
Serenum), 61.

Second Apology (Apologia Secunda pro
Christians), 24, 509.

See also Pseudo-Justin Martyr.

Justinian I (483-565), Emperor of the East,
ordered revision and compilation of
Roman law, see Corpus Iurts Crvelis.

Fustinian, Code of, see Corpus Iuris Civili.

Fustinian, Digest of, see Corpus Iurts Civils.

Fustinian, Edicts of, see Corpus Iurts Crvilts.

Fustinian, Institutes of, see Corpus Iuris
Crvtlss.

Fustinian, Novels of, see Corpus Iuris Crvilts.

Juvenal (Decimus Junius Juvenalis, c. 40-c.
125), Latin satirist.

Satires (Saturarum Libri V), 11, 41, 52,

362, 398, 468, 722, 724, 742, 755.

Index of Authors Cited

QII

Kimchi, David (c. 1158-c. 1235), French
Jewish rabbi.
Roots (Liber Radscum s. Lexicon), 613.
Kings, see Bible.
Knichen, Andreas von (1560~1621), Ger-
man jurist.

De Fure Territori, 224.

De Vestiturarum Pactionibus, 426.

Kotzi, Moses de (Moses Mikkozzi, 13th
century), Spanish rabbi.

Collatto Legum Mosts et Romanorum, 763.

On the Precepts of the Law (De Praecepias
Legs), 233, 251 (bis), 320, 349, 351
(bis), 366 (bis), 372, 582 (quater), 695,
719 (bis), 763 (ter), 768.

Krantz, Albert (c. 1450-1517), German
historian.

Danish History (Chronica Regnorum Aqui-
lonarium Danae, Suectae et Norwegiae),
119, 124, 287 (bis).

History of Saxony (Saxonta sive de
Saxonicae Gentrs Vetusta Origine), 131,
154, 198, 204, 225, 319, 380, 440, 445;
562, 633 (bis), 641, 668, 688.

History of Sweden, see Danish Hrstory.

Vandalica (Vandalia, swe Historia de
Vandalorum Vera Origine), 123, 267
(bis), 310 (bis), 605, 633.

Kromer, Martin (1512-1589), Polish his-
torian.

History of Poland (De Origine et Rebus
Gestis Polonorum Libri XXX), 123,
185, 263, 267, 291, 387, 389, 438, 439,
441, 447, 636, 655, 656, 659, 660, 684,
823, 855.

Lactantius, Lucius Caecilius Firmianus
(d. c. 325), Latin apologist of Christia-
nity, 610.

On the Anger of God (De Ira Det), 363,
462, 478, 492, 510, 513.

Epitome of the Dione Institutes (Epitome
Divinarum Institutconum), 357, 507.
Divine Institutes (Divinarum Institu-

ttonum Libri VIL), 24, 25, 26, 39, 41,
59, 71, 84, 153, 165, 170, 194, 235, 347,
451 (quater), 452, 454, 469, 471, 480,
481, 495 (bis), 510, 521, 614, 621, 646,
718, 738, 765, 841.

Laertius, Diogenes, see Diogenes Laertius.

Lambert von Aschaffenburg (fl. 1077),
German historian.

Annales, 123, 158, 438, 592.

1569°27

Lampridims, Aelius (3d or 4th century),
Latin biographer, 316.

Alexander Severus, 23, 211, 299, 672, 680,

753, 784.

Elagabalus (Antoninus Heliogabalus), 318.
Languet, Hubert, see Brutus, Junius.
Laonicus Chalcocondylas, se¢ Chalcocon-

dylas, Laonicus.

a Lapide, Cornelius (Cornelis Cornelissen
van den Steen, 1567-1637), Flemish
Jesuit and exegete.

On Genesis (Commentarit in Sacram

Scripturam), 667.

Latinus Pacatus, see Pacatus, Latinus
Drepanius.

Laudensis, see Martinus de Caraziis.

Law of the Bavarians (Lex Basoariorum),
785.

Law of the Burgundians (Lex Burgundsonum),
274) 275; 320.

Law of France, 603 (bis), 668 (bis).

Law of the Lombards (Leges Langobardorum),
197, 200, 247 (ter), 279, 297, 432, 433,

522, 590, 591, 667, 736.
Law of Portugal (Leges Portugalliae), 668.

Law, Salic (Lex Salica), 247.
Law of Stcily (Leges Siculae), 623.
Law of Spain (Leges Hispanicae), 687, 688,

713,

Law of the Visigoths (Lex Wisigothorum), 56,
86 (bis), 180, 257 (quinquies), 259, 309,
320, 325, 338, 339, 350, 359, 463, 481,
524 (bis), 542, 591 (ter), 709 (bis),
793.

Laymann, Paul, author of Pacis Composttio
inter Principes et Ordines Imperii
Romani Catholicos atque Augustanae
Confesstont Adhaerentes, 794, 799.

Lecirier, Jean, French jurist of uncertain
date.

De Iure Primogeniturae, 291.

Leges, see Law.

Legnano, Giovanni da (d. 1383), Italian
canonist.

Tractatus de Bello, de Repraesaliis et de
Duello, 22.
Leo of Africa (Joannes Leo Africanus, f.
1526), Moorish geographer.
Description of Africa (Africae Descriptio
IX Libris Absoluta, Leyden, 1632),
114, 118 (bis), 200, 257, 271, 310, 475,
27.
Leo I, Pope, called the Great (d. 461).
Letters (Epistolae), 88 (bis), 707.

3 P

QI2

Index of Authors Cited

Leo I, Flavius (d. 474), Emperor of Con-
stantinople.

Novels (Novellae), 211, 450, 464.

Léry, Jean de (1534-1611), French Protes-
tant minister and traveller,

Itinerary (Historia Navigationis in Brasi-
ham quae et America dicitur), 243.
Lessius, Leonard (1554-1623), Flemish

Jesuit.

De Fusiitia et Fure, 159, 175, 180 (bis),
182 (bis), 194, 257, 260, 324, 359 (bis),
426, 431 (tet), 433, 434 (tet), 435
(quater), 437, 564, 580, 583, 618, 692,
693, 719, 761, 768.

Leunclavius, Johann (1533-1593), German
historian.

Turkish History (Pandectae Historiae
Turcicae), 118 (sexties), 280, 310, 321,
438 (bis), 531, 555, 678, 687 (bis), 696
(bis), 705, 719 (bis), 775, 821, 840,
849.

Leviticus, see Bible.
Lex, see Law.
Libanius (314-c. 390), Greek rhetorician,

199, 380, 542.
Orations (Orationes), 72, 246, 418, 535,

536, 542, 560, 568.
Liber de Laudibus Legum Angliae, see For-
tescue, Sir John.
Lignano, Joannes de, see Legnano, Giovanni
a.
Ligniacus (Caesar de Ligny, 16th century,
French secretary to Cardinal de Per-
ron ?), 428.
Lindebrog, Fridericus (1573-1648), Ger-
man jurist and critic.
On Ammianus Marcellinus, 637, 858.
Littleton, Sir Thomas de (c. 1420-1481),
English jurist.
On Tenures (De Tenuris Angliae), 257,

339-
Livy (Titus Livius, 59 8.c.-17 a.v.), Latin
historian, 397.

Ab Urbe Condsta, 19 (quater), 57, 73, 98,
99 (bis), 100, 104 (ter), 105, 106
(sexties), 108 (bis), 132, I14, 115
(quater), 116 (bis), 117, 119, 126, 129
(ter), 131 (ter), 132 (bis), 133, 134, 135
(quater), 136 (bis), 142, 143, 144, 161,
169, 171 (ter), 172, 174, 185, 191, 195,
203, 204 (bis), 213, 216, 221 (bis), 224,
225, 226 (bis), 246, 248, 255, 258, 279
(bis), 280 (bis), 282, 287 (bis), 313, 315
(ter), 342, 359, 367, 370 (bis), 391, 392

(bis), 393, 394, 395, 396 (bis), 397, 404,
405, 406 (ter), 407 (bis), 408, 409, 410,
415, 416 (bis), 417, 418, 419, 420, 421,
428, 438, 439 (bis), 440 (bis), 441 (bis),
442, 444 (ter), 445 (ter), 446 (quin-
quies), 447 (bis), 452, 456 (ter), 473,
503 (bis), 523 (ter), 525, 526, 527 (ter),
528 (bis), 532, 533 (bis), 546, 547
(bis), 548 (bis), 549, 550, 558, 561,
562 (quater), 564 (bis), §71 (bis), 575
(bis), 578 (bis), 580, 584, 585, 609,
615, 616 (bis), 621, 624 (ter), 626,
628, 633, 636 (bis), 637 (bis), 638
(bis), 639, 644, 645 (quater), 646 (bis),
647 (bis), 650 (bis), 651, 652, 654 (ter),
655 (bis), 657, 658, 659, 660 (ter), 665
(ter), 667, 669, 671, 675 (bis), 676 (bis),
677 (octies), 678 (bis), 679 (quater),
680 (sexties), 681 (sexties), 682 (sexties),
683, 685 (bis), 688, 697, 699 (quater),
703, 704, 718 (bis), 720 (bis), 721 (ter),
724, 725, 728, 729 (quater), 730 (bis),
735 (ter), 736 (bis), 740 (bis), 743 (bis),
746 (quater), 748, 749, 752 (ter), 754
(quater), 755 (ter), 758, 760, 771, 772
(bis), 773, 774, 777 (bis), 779 (septies),
780 (bis), 781 (ter), 783, 786 (bis), 787
(quater), 788, 791, 792, 795 (ter), 797,
798, 800, 805, 809, 810, 813, 816 (ter),
819, 820 (bis), 822, 823, 825 (bis), 826
(bis), 827 (ter), 828, 829, 834 (bis), 836”
(ter), 838 (bis), 842 (bis), 845, 848 (ter),
849 (bis), 850 (bis), 857 (bis), 858 (ten),
861, 862.
Ab Urbe Condita Epitome Librorum, 118
(ter), 216, 449.
Loazes, Fernando (d. 1568), archbishop of
Tarragona and Valencia, 264.
Lombards, Law of the, see Law of the Lom-
bards.
Longinus, Dionysius Cassius (c. 213-273),
Greek rhetorician.
On the Subleme (De Sublemitate), 591.
Lopez or Lupus, Joannes (d. 1496), Spanish
theologian.
De Bello et Bellatoribus, 22, 684.
Lopez, Ludovicus (d. c. 1595), Spanish
canonist.
De Contractibus et Negotiationsbus sive
Instructorium Negotiantium, 178.
Lorca, Petrus de (1554-1606), Spanish
Cistercian monk and theologian.
Commentaria in Secundam Secundae D.

Thomae, 99, 565 (bis), 569.

Index of Authors Cited

913

Louis I, surnamed the Pious (778-840),
Emperor of the West and King of
France.

Capitulartes, 785 (bis).

Lucan (Marcus Annaeus Lucanus, 39-65),
Latin epic poet.

Pharsahia (De Bello Civilt Librt Decem,
ed. Hosius, Leipzig, 1905), 10, 79, 126,
162, 170, 176, 191, 225, 241 (bis), 279,
3053 394, 420, 450, 455, 547, 548, 573;
574; 592, 646, 653, 676, 679, 686, 722,
7353 741, 742 (bis), 775, 805.

Lucian (b.c. 120), Greek writer of dialogues.

Abdtcatus, 271.

Philopseudes, 605.

Lucretius (Titus Lucretius Carus, c. 96-55
B.c.), Latin poet and philosopher.

De Rerum Natura, 53, 453, 473, 614, 616.

Luke, see Bible.

Lupus, Joannes, see Lopez, Joannes.

Lycophron (fl. 250 B.c.), Greek poet.

Alexandra, 212.

Lycurgus (d. c. 323 B.c.), Athenian orator.

Against Leocrates, 532, 535.

Lysias (c. 458-378 3.c.), Athenian orator.

Orattons, 276, 353, 450, 451, 505, 530.

Maccabees, see Brble.
Macrobius, Ambrosius Theodosius (4th
century), Latin grammarian.

On the Dream of Scipio (Commentartus ex
Cicerone in Somnium Scopionis), 187,
249, 458.

Saturnalta (Saturnaliorum Convivi0rum
Libri VIL), 92, 190, 225, 301, 660, 763.

Maes, Andreas (1515-1573), Belgian Biblical
exegete.

On Foshua (Fosue Imperatoria Historta),
618.

Magnus, Johan (1488-1544), archbishop of
Upsala.

History of Sweden (Historta Gothorum
Suevorumgue), 124, 675, 687, 859.

History of the Archbishops of Upsala (His-
toria Ecclesiae Metropolitanae Upsalen-
StS), 212.

Magnus, Olaus (c. 1490-1568), archbishop
of Upsala.

Astoria de Gentibus Septentrionalibus,

Maimonides (Moses ben Maimon, 1135-
1204), Spanish Jewish exegete and
philosopher, 128, 182, 366, 481, 544.

Canones Poenttentiales, 231, 719.

On Deuteronomy, 45, 46, 465.

On Gemara, 544.

Guide of the Perplexed, 38, 351, 384, 467,
477, 500, 502, 515, 539, 728.

Halakot Toubal, 622.

On Idolatry (De Idololatria), 46.

On Leviticus, 243.

To Misnajoth, 46.

On the XIII Articles (Ad XIII Articulos),

Mainus, Jason, see Jason Mainus.
Major, John (c. 1470-c. 1540), Scotch theo-
logian.
On the Sentences of Peter Lombard (In IV
Libros Sententiarum Quaestiones), 157.
Majorian (Julius Valerius Majorianus, d.
461), Roman emperor of the West.
Novels (Novellae), 317.
Malchus (4. 600), Byzantine historian, 484,

530.
Malderen, Johann van (1563-1633), Bel-
gian theologian.
Commentarium in Primam Secundae D.
T homae, 397.
Mamertinus, Claudius (fl. 362), Latin
panegyrist.
Panegyric of Fulian (Panegyricus [ultant),
620.
Manasses Ben-Joseph-Ben-Israel (c. 1604-
1659), Spanish rabbi.
Conciliator seu de Convenientia Locorum
Sanctae Scripturae quae pugnare inter
sé videntur, 612.
Mantica, Franciscus (d. 1614), Cardinal,
Italian jurist.
Lucubrationes Vaticanae seu de Tactits et
Ambiguts Conventionibus, 123.
Manuel Comnenus (c. 1120-1180), Greek
Emperor, 422.
Manutius, Paulus (Paolo Manuzio, 1512-
1574), Italian printer and critic.
De Legibus Romanis, 797.
Marcellinus, Ammianus, see Ammianus
Marcellinus.
Marcellus, Nonius, see Nonius Marcellus.
Marcellus Ulpius (fl. 150), Roman jurist,
cited in the Digest.
Digestorum Libri XX XI, 712.
Marcianus, Aelius (3d century), Roman
jurist, cited in the Digest.
Institutionum Libri XVI, 647, 691, 711.
De Iudscits Publicis Libri II, 727.
Regularum Lbri V , 422, 766.

3P2

QI4 Index of Authors Cited
Marcus Aurelius, see Aurelius Antoninus, | Medina, Juan de (1490-1547), Spanish
Marcus. theologian.

Mariana, Juan (1536-1624), Spanish Jesuit
and historian.

History of Spatn (Histortae de Rebus H1s-
paniae Libri XXX), 114, 116, 119
(quinquies), 120 (sextles), 122, 158,
217, 227, 253, 287, 288, 289, 290, 291
(bis), 292 (bis), 294 (septies), 337, 388,
389 (ter), 404, 406, 438, 440, 441, 517
(bis), 527, 531 (bis), 532, 533, 562 (bis),
634, 635, 759, 769 (ter), 782 (bis), 799
(bis), 804, 823, 826, 835, 844.

Marius Victorinus, see Victorinus, Marius.

Mark, see Bible.

Marsa, Antonius, an unidentified writer on
alluvial deposits, 299. .

Marsilius of Padua (Marsiglio Menandrino,
d. 1328), Italian jurist.

Defensor Pacts, 659.

Martial (Marcus Valerius Martialis, 43-c.
104), Latin writer of epigrams.

Epigrams (Epigrammaton Libri XIV,

Loeb ed.), 53, 145, 211, 592.

Martinus de Caraziis (Garatus) Laudensis
(fl. 1440), Italian civilist, 22.

De Bello, 98, 670, 834.

Martyr, Justin, see Justin Martyr.

Martyr, Peter, see Peter Martyr.

Martyrology, Roman, 155, 594.

Masius, see Maes, Andreas,

Mastrillus, Garsias (d. 1620), Italian jurist.

De Magistratibus, 228.

Matesilano, Matteo (15th century), Italian
jurist.

Notabilia, 180.

Matthaei, Wilhelm (15th century), Dutch
ecclesiastic, 22.
De Bello Iusto et L1ctto, 171, 770.
Matthew, see Bible.
Maximus of Turin, St. (c. 380-c. 465),
Italian bishop and theologian.

Homulses (Homiltae), 357.

Maximus of Tyre (2d century), Greek
philosopher.

Dissertations (Dtssertationes), 80, 468,
474, 481, 577, 616.

Mazzolini, Sylvester, see Sylvester Mazzo-
lini.

Medina, Bartholomew (1527-1581), Spa-
nish Dominican and theologian.

On II, 1 (Commentaria in Primam Se-
cundae of Thomas Aquinas), 433,

558.

De Reststutione et Contractibus, 324, 327,

333.

Megasthenes (fl. 300 3.c.), Greek historian,
cited by Strabo, 459.

Meibom, Heinrich (1555-1625), German
historian.

Opuscula Historica Rerum Germantcarum,
290, 318, 319.

Meichsner, Johann (16th century), German
jurist.

Decistones Camerales, 223.

Mela, Pomponius (fl. 50), Latin geographer.

De Situ Orbrs Librt III, 156, 213, 344
(bis).

Melanchthon, Philipp (1497-1560), Ger-
man reformer and scholar.

Chronicles (Chronicon Carionts), 748.

Menander (b. 342 B.c.), Greek comic poet,
165, 273 (bis), §30, 610.

Menander Protector (6th century), Greek
historian, 838.

Fragments (edit. Dindorf, in Histortcs
Graect Minores, Leipzig, 1871, vol. it),
370, 387, 419, 438, 441, 501, 518 (bis),
548, 622, 690, 698 (quater), 769, 809,
817, 819.

Menchaca, see Vazquez Menchaca, Fer-
nando.

Mendoza, Bernardino de (16th century),
Spanish diplomat and historian.

Commentaries (Comentarios de lo Sucedt-
do en los Patses Bajos desde 1567 4 1577),
198.

Menochio, Jacopo (1532-1607), Italian
jurist.

De Arbitraris Fudicum Quaestionibus et
Causis Libri Duo, 743.

On Code, 269.

Constlta, 224, 552.

De Praesumptionibus, 325.

Meurs, Jan de (1579-1639), Dutch historian.

Danish History (Historia Danica), 605,
668.

Meyer, Jacob (1491-1552), Flemish his-
torian.

Annals of Belgrum (Annales sive Historiae
Rerum Belgscarum), 158-9.

Micah, see Bible.
Michael of Ephesus (11th century), Byzan-
tine monk and philosopher.

On Nicomachean Ethics, 36, 241, 244,

354, 434, 465, 726, 794.

Index of Authors Cried

915

Micosi, Samson, Jewish exegete of uncer-
tain date, 366.
Mindanus, Frederick, see Frider, Peter.
Modestinus, Herennius (fl. 240), Roman
jurist, cited in the Dagest.
Differentiarum Libri IX, 535.
Excusationum Librs VI, 272.
De Manumisstonibus Liber Singularts, 77%.
Ad Quintum Mucium Libri XX XIX, see
Pomponius, Ad Quintum Muctum.
De Poents Libri IV, 683, 788.
Regularum Libri X, 529, 706, 712.
Responsorum Libri XIX, 451.
Molina, Luis (1535-1600), Spanish Jesuit
and theologian.
De Fustiira et Fure, 92, 98, 204, 205, 338,
376, 397, 401, 425, 506, 563, 565, 569,

575, 593, 600, 624, 667, 720, 757, 761.
Molina, Luis de (16th century), Spanish

jurist.
De Hispanorum Primogenitorum Origine et
Natura, 286, 287, 291 (bis).

Molinaeus, Carolus, see Dumoulin, Charles.

Monstrelet, Enguerrand de (c. 1390-1453),
French chronicler.

Chroniques, 263.

Monte, Hieronymus de, see Hieronymus de
Monte.

Montferrat, Guillaume de (15th century),
French jurist.

De Successtonibus Regum et praecipue
Galliae, 285.

Moschion, Greek tragic poet of uncertain
date, 452, 458.

Mouliard, Jean de (17th century), French
historian, continuator of De Serres.

Supplement, 444, 448.

Musaeus (6th century), Greek grammarian
and epic poet, 238.

Musonius Rufus, Gaius (fl. 70), Stoic philo-
sopher, cited in Stobaeus, 468, 481,
588, 643, 775-

Mysinger a Frundeck, Joachim (1514-1588),
Brunswick chancelor.

Centurtae Observationum Cameralium,
380.
Constliorum Decades, 428.

Naevius, Gnaeus (c, 270-c. 199 B.c.), Latin
epic and dramatic poet, 673.
Natta, Marco Antonio (16th century),
Italian jurist.
Consilia, 137, 252 (bis), 264.

Navarra, Petrus de (fl. 1594), Spanish theo-
logian.
De Ablatorum Restitutione in Foro Con-
sctentiae, 173, 178.
Navarrus (Martin Azpilcueta, 1493-1586),
Spanish theologian.
Consilta seu Responsa, 178 (bis), 324, 333,

334 (bis), 341, 359 (bis), 366, 434, 578,
2

Nazarius (fl. 321), Latin panegyrist.

Panegyric of Constantine (Panegyricus

Constantint), 593.
Nectarius (d. 397), Patriarch of Constanti-
nople.

Letter to Augustine, 484.

Nehemiah, see Bible.
Neostadius, Cornelius (1549-1606), Dutch
jurist.

De Pacts Antenuptialibus, 428.

Nepos, Cornelius (c. 100-c. 24 3.c.), Latin
historian.

Exempla, 854.

Liber de Excellentibus Ducibus Exterarum

Gentium :

Agesilaus, 108 (bis), 752.
Epaminondas, 620.
Hannibal, 112.
On the Kings (De Regibus), 108.
Pelopidas, 438, 444.
T hemistocles, §7, 533.
Thrasybulus, 225.
Timotheus, 212.

Neratius Priscus (2d century), Roman
jurist, 339.

Membranarum Libri VII, 210.
Neubrigensis, see William of Newburgh.
Nicephorus Gregoras, see Gregoras Nice-

phorus.
Nicetas Acominatus (d. 1216) of Chonae,
Byzantine historian.
History of the Greek Emperors from 1117
to 1203, 166; also:
Alexis, 221, 364, 380, 460, 588, 580,
653, 698, 753.
Andronicus, 267, 525, 753.
Isaac Angelus, 12, 198, 254, 403, 484,
743, 766.
Foannes Comnenus, 280, 484.
Manuel Comnenus, 118, 280, 282, 287,
432, 633 (bis), 654, 703, 784.
Urbs Capta, 724, 734.
Nicholas of Damascus (b. 74 B.c.), Greek
historian.
Fragments (edit. Dindorf, in Hustorict

916

Index of Authors Cited

Nicholas of Damascus (continued)
Graect Minores, Leipzig, 1870, vol. i),
2595 283, 287; 448, 474-5, 499, 514,751.
Nicolaus Alemannus, see Alemanni, Niccols,
Nonius Marcellus (4th century), Latin
grammarian.
De Compendiosa Doctrina, 19, 74 (bis),
38.
N onitus (sth century), Greek poet of Egypt.
Dionysiaca, 212.
Numbers, see Btble.

Oderborn, Paul (A. 1585), German Lu-
theran minister.

Life of Bastlides Vita Ioannis Bastlidts),

33.

Olaus Magnus, see Magnus, Olaus.

Oldendorp, Johann (c. 1480-1567), German
jurist.

Consiha Marpurgensia, 224, 228.

Oldradus de Ponte (d. 1335), Italian civilist.

Constlta, 397, 851.
On Decretals, 261.

Olympiodorus (5th century), Greek his-
torian of Egypt, 458.

Onesander (1st century), Greek philosopher.

Strategicus, 745.

Onkelos, Chaldean writer of uncertain date,
author of a paraphrase of the Penta-
teuch, 613 ; see also Targum, Chaldean.

Opilius, Aurelius (Ist century 3.c.), Latin
philosopher.

Musae (cited by Aulus Gellius), 833 (bis).

Oppian (2d century), Greek poet of Cilicia.

On Fishing (Halteutica), 214, 270, 653,
691.
On Hunting (Cynegetica), 241, 270.

Oppius, Caius (Ist century B.c.), reputed
author of pseudo-Caesarian treatises,
858.

Optatus, St. (c, 315-c. 386), Bishop of
Milevis, hence called Milevitanus.

De Schtsmate Donatistarum, 151, 451, 455.

Origen (185-c. 253), Greek exegete and
theologian of Egypt, 610.

Against Celsus (Contra Celsum), 42, 47,
81, 187, 379, 480, 519, 594.

On Leviticus, 320.

On Matthew, 96.

Philocalia, 61.

Orosius, Paulus (fl. 410), Latin historian and
Christian apologist.

Histortarum adversus Paganos Libri VII,

202, 406, 599 (bis), 753.

Osorius (Jerédnimo Osorio, 1506-1580),
Portuguese bishop, 287, 517.

Otto of Freising (c. 1111-1158), German
bishop and historian, 653. See also
Radevicus.

Ovid (Publius Ovidius Naso, 43 B.c.-c. 17
a.D.), Latin poet.

Art of Love (Ars Amatoria), 54, 196, 297.

Fastt, §75, 716.

Piscation (Halteutica), $2.

Heroides, 282, 363 (bis), 428.

Metamorphoses, 16, 196, 213, 245, 297,
298, 331, 477, 525, 540, 583 (bis), 723.

From the Pontus (Epistulae ex Ponto), 652,

22.
Remedy for Love (Remedta Amoris), 371.
Tristia, 723.

Pacatus, Latinus Drepanius (fl. 389), Latin
thetorician.

Panegyricof Theodosius (Panegyricus T heo-
dostt), 736, 784, 832, 858.

Pacuvius, Marcus (c. 220-c. 130 B.c.), Latin
tragic poet.

Periboea, 74.

Pandects, see Corpus Turis Crvilis: Digest.
Panormitanus (Niccolé Tedeschi, 1386-
1445), Italian canonist and archbishop
of Palermo, sometimes cited as Abbas.

Consilia, 228.

On Decretals (Lectura in Decretales), 98,
165, 182, 192, 365, 380, 387, 402,
457, 552, 627, 670, 835, 840.

On Decretum, 481.

De Homicidits, 182.

Pape, Guy de la (c. 1400-c. 1475), French
jurist, 628.
Papinian (Aemilius Papinianus, d. 212),
Roman jurist.
Definitionum Libri IT, 494.
Quaestionum Libri XXXVITI, 240, 272,

323.
Responsorum Librt XIX, 212.
Papinius, Statius, see Statius,
Paralipomenon, see Bible.
Pareus, David (1548-1622), German re-
formed theologian.
On Romans (In Divinam ad Romanos S.
Pauli Epistolam Commentarius), 146.
Paruta, Paolo (1540-1598), Italian his-
torlan, 213.
History of Venice (Historia Venettana,
Venice, 1605), 119, 198 (ter), 199 (bis),
213, 230, 403, 418 (bis), 445, 447 448

Index of Authors Cited

917

Paruta, Paolo (continued)
(bis), 562 (bis), 602, 685, 749, 780, 786,
798, 809, 836, 844, 848.

On the War in Cyprus (Della Guerra ds

Cipro, Venice, 1605), 635, 703.
Paschal, Carlo (1547-1625), Italian anti-
quary.

Legatus, 424.

Paterculus, Caius Velleius (b. c. 20 3.c.),
Roman historian.

Historiae Romanae ad M. Minucium Con-
sulem Librt Duo, 112, 211, 314, 406,
438; 474, 475, 548, 676, 724, 784.

Patricius, Lanicius.
Confession, 694.
Paul of Venice, see Sarpi, Paolo.
Paul, St. (d. c. 66), Apostle of the Gentiles.

Epistle to the Ephesians, 187.

Epistle to Trtus, 187.

See also Bible: New Testament.

Paul the Jurist (Julius Paulus, d. c. 235),
Roman jurist cited in the Digest (q.v.).

Ad Edictum Libri LXXVIII, 39, 3°7,
308, 311 (ter), 325, 608, 660, 662, 671,
717, 843.

De Lure Codicillorum Liber Singularis, 269.

Ad Legem Iuliam et Papiam Libri X, 537.

Pithanon Labeonis a Paulo Ep1tomatorum
Libri VIII, 704, 709.

Ad Plautum Libri XVIII, 470, 539, 544-

De Portiontbus quae Liberis Damnatorum
conceduntur Liber Singularis, 272.

Quaestionum Libri XXVI, 323, 329 (bis),

344, 627.
Ad Sabinum Libri XVI, 630, 666, 694, 702
(bis), 706 (bis), 708, 710, 713, 833, 836.
Sententiarum Libri V, 97, 175 (bis), 247,
331 (bis), 457, 524, 591, 671, 724.
Paulinus, St. (c. 353-431), Bishop of Nola.
Letters, 765.
Paulinus of Gotha (Laurentius Paulinus,
1565-1646), Archbishop of Upsala, 647.
Paulus Diaconus (Paul Warnefrid, c. 720-
c. 798), Lombard historian.
History of the Lombards (De Gestis Lango-
bardarum), 114, 280, 304, 368, 564 (ter),
654, 694, 821.
Paulus, see Paul.
Paulus, Aemilius, see Emilio, Paolo.
Pausanias (fl. 175), Greek geographer.
Description of Greece (Periegests Graeciae),
106, 107, 108, 202, 273, 279, 283, 290,
292, 313, 448, 451, 456, 527, 528, 531,
549, 567, 653, 659, 660, 793, 815, 820.

Pedius, Sextus (2d century), Roman jurist,
cited by Ulpian, 418.

Peiresc, Nicholas Claude Fabri de (1580-
1637), French patron of learning, 156,
283; see also Selections on Virtues and
Vices.

Peregrinus, Marcus Antonius (d. 1616),
Italian jurist.

De Furibus et Privilegis Fisct, 201, 228,
285 (bis).
Pesichta, a Talmudic treatise, 235.
Peter of Blois (d. 1200), French theologian.
On Friendship and on the Love of God and
Newhbor (De Amicitia Christiana et
Carttate Det et Proximi), 25, 94, 177,
467, 617.
Letters (Epistolae), 183.

Peter, see Brble.

Peter Martyr (Pietro Vermigli, 1500-1562),
Italian Protestant theologian.

On Fudges (Comment. in Librum Iudicum),
146.

Petra, Petrus Antonius de (fi. 1600), Italian
jurist.

Tractatus de Potestate Principis, 778.

Petronius, Gaius (d. 66), Latin satirist.

Satires (Satyricon), 297, 4.54, 552.

Petrus de Navarra, see Navarra, Petrus de.

Petrus, see also Peter.

Philargyrius Iunius, an early Vergilian com-
mentator.

On Vergil’s Georgics, 126.

Philippians, see Bible.

Philo Byblius or Herennius Byblius (2d
century), Roman grammarian.

History of Sanchontathon, 117.

Philo Judaeus (b. c. 25 B.c.), Greek philo-
sopher, 450.

On Abraham (De Abrahamo), 510, 522,

544.
On the Cherubim (De Cherubim), 618.
On Circumetston (De Caircumetsione), 47.
De Constitutione sive Creatione Principum,

509, 728, 734, 746, 861. .
On the Contemplative Life (De Vita Con-

templativa), 79, 745.

On the Creation of the World (De Opificta
Mundt), 187, 188.

On Courage (De Fortttudine), 509.

On Curses (De Exsecrattonibus), 664, 745.

On the Embassy to Gatus (De Legatione
ad Gatium), 155, 199 (bis), 213 (bis),
224, 233, 273, 459, 485, 505, 511, 515
(bis), 518, 552, 775, 776.

g18

Index of Authors Cited

Philo Judaeus (continued)
On Humanity (De Humanitate), 543, 657,
6.
Agana Flaccus (In Flaccum), 140, 213,
452, 455 (bis), 457, 480, 525.
On the Indestructibility of the World (De
Aciernitate Mundt), 43, 311 (bis), 312,

313.

On Foseph (De ‘Fosepho), 451, 507, 617.

On the Fudge (De Fudzce), 37, 530.

Leges Allegortarum, 372.

On the Life of Moses (De Vita Moss), 272,
465, 488, 577, 579, 613, 694.

On Monarchy (De Monarchta), 478, 5009,

12,

On Noah’s Planting (De Plantatzone), 36,
207, 212.

On Nobthty (De Nobilttate), 540, 568.

On Priests (De Sacerdotibus), 235.

On Sobriety (De Sobrietate), 35.

On Spectal Laws (De Specialibus Legibus),
33, 181, 239, 240 (bis), 243, 368, 369,
370, 378, 422, 477, 499, 502, 503, 531,
540, 542, 543, 727, 734, 763, 764.

On the Ten Commandments (De Decalogo),
II, 14, 43, 56, 80, 170, 378, 379, 495
(bis), 515, 548.

That Every Virtuous Man is Free (Quod
Omnis Probus Liber Szt), 38, 43, 70,
591, 620, 690, 691, 761.

That God ts Immutable (Quod Deus Sit
Immutabilts), 311.

On Those Who Offer Sacrifices (De Sacrifi-
cantibus), 478, 518.

Philostratus, Flavius (b. c. 170), Greek
sophist.

Life of Apollonius of Tyana, 72, 105 (bis),
126 (bis), 191 (bis), 215, 233, 270 (bis),
238 (ter), 370, 398, 567, 569, 587, 753,

03.

3
Lives of the Sophists, 299, 444, 585, 728.
Photius (c. 820-c. 891), Greek scholar,
patriarch of Constantinople.
Lexicon, 514.
Ltbrary (Bibliotheca), 123, 349, 361, 514.
Nomocanon, 484.
Piccolomini, Alessandro (1508-1578), Italian
philosopher.
Philosophia Civilis, 565.
Pigres, Greek poet of Halicarnassus, reputed
author of Batrachomyomachta, q.v.
Pindar (b. 522 B.c.), Greek lyric poet.
Isthmaean Hymns, 605.
Pirke Aboth, a Talmudic treatise, 141, 558.

Pisander (b. c. 650 B.c.), Greek epic poet,
611.

Pisci, Franciscus (Fridericus Piscina ?),
jurist of uncertain date,

De Statu Excellentium Feminarum (Dis-
putatio an Statuta Foeminarum Ex-
clustva porrigantur ad Bona Forensia ?),
269.

Pius, Antoninus (86-161), Roman emperor,
cited in Digest, 223.

Plato (428-347 3.c.), Athenian philosopher,
162, 483, 509, 634.

Alctbtades, 171.

Apology (Apologta), 138, 587.

Cratylus, 312.

Crittas, 313.

Crito, 481.

Euthypbhro, 462.

Gorgias, 16 (bis), 467 (bis), 468, 469.

Laws (De Legibus), 14, 58, 97, 124, 143,
171, 180, 194, 244, 275, 277, 298, 348,
449, 466 (bis), 470, 512, 514, 521, 542,
582, 585, 664, 717, 774.

Protagoras, 514, 717.

Republic (De Republica), 16, 225, 330,
475, 521, 550, 600, 610 (ter), 614, 617
(bis), 618, 696, 747.

Sophist, 664. (quater).

Plautus (Titus Maccius Plautus, c. 254—-
184 B.c.), Roman comic poet.

Amphitruo, 258, 636, 659 (bis).

Asinaria, 358.

Ihe Iwo Bacchises (Bacchides), 585,
676.

Captives (Captivi), 139, 676.

Casina, 247, 255.

Mercator, 236.

The Persian (Persa), 813.

Poenulus, 246, 630.

Rudens, 164, 375.

Trinummus, 298, 470, 655.

Truculentus, 816.

Pliny the Elder (Gaius Plinius Secundus,
23-79), Roman naturalist.

Natural History (Htstoria Naturalis,
Leyden, 1669), 42 (bis), 56, 59, 80,
106 (ter), 115, 129, 188, 189, 200, 211
(ter), 214 (bis), 215, 217, 241, 256, 270,
295 (sexties), 301, 313, 344, 345, 351
(ter), 352, 353: 358 (bis), 394, 422, 452
(ter), 453 (bis), 458, 472, 475, 499, 506,
576, 577, 608, 636 (bis), 637, 652, 659,
675, 676, 685, 693, 7345 751 (tex), 752,
785, 824, 858, 859.

Index of Authors Cited QI9

Pliny the Younger (Gaius Plinius Caecilius
Secundus, 62-c. 114).
Letters (Epistulae, Loeb), 134, 251 (bis),
269 (ter), 301, 388, 500, 518, 558, 576,
589, 616, 643, 655, 763, 764, 767, 775

(bis), 776 (quinquies), 805.
Panegyric (Panegyricus, London, 1716),
36 (bis), £21, 148, 207.
Plotinus (20 5-270), Greek philosopher, 458.
Plutarch (c. 5o-c. 120), Greek philosopher
and biographer, 356, 508, 834.
Amatorius, 512.
De Animae Procreatione, 311.
Apothegms (Apophthegmata Lacontca), 18,
197 (bis), 335, 606, 761, 787, 789.
Apothegms (Regum et Imperatorum Apo-
phthegmata), 10 (bis), 125, 516, 536,
685, 773» 779-

On the Bravery of Alexander, see On the
Fortune of Alexander.

Against Colotes (Adversus Colotem), 509.

Conjugal Precepts (Conjugalia Praecepta),
306.

Consolation (Consolatio ad Uxorem Suam),
12.

Consolation (Consolatioad Apollonium),459.

On the Contradictions of the Stoics (De
Repugnantris Stoicts), 14, 79, 420, 610.

On the Delayed V engeance of the Deity (De
Hits Qut Sero a Numine Puntuntur), 312,
469, 470, 471, 516, 536, 541 (bis), 542,
543, 544-

On Education of Children (De Luberss
Educandts), 620.

On Extle (De Extlio), 462.

On Fate (De Fato), 160.

On the Fortune of Alexander (De Alex-
andrt Magni Fortuna aut Virtute), 10,
232, 505 (bis), 657.

Greck Questions (Quaestiones Graecae),
108, 298, 531, 564, 736, 7375 750 769.

On the Life and Poetry of Homer (De Vita
et Poest Homert), 266.

Lives of Ten Orators (De Vitis Decem Ora-
torum), 245, 460, 543.

On the Love of Brothers (De Fraterno
Amore), 121, 290.

On the Love of the Offspring (De Amore
Prolts), 269.

On the Malice of Herodotus (De Herodott
Malignitate), 536.

On Matters of Common Knowledge (Ad-
versus Stoicos de Communibus Notttzs),
188, 513.

On Monarchy (De Untus in Republica
Dominatione), 122, 125.
Narrationes Amatortae, 528.
On Noble Tratts of Women (Muherum
Vurtutes), 458, 651.
Parallel Lives (Vitae Parallelae) :
Aemilius Paulus, 439, 676, 732.
Agesilaus, 17, 197, 198, 314, 321, 615,
616, 619, 625, 674, 7525 755, 823,
848.

Agis, 152, 156, 733, 783-

Alexander, 45,79, 412, 535, 621, 665
Oi), 675, 686, 697, 756, 7615 774

40,

Antony, 456, 547, 564.

Aratus, 135, 468, 472, 473, 730-

Aristides, 620, 674.

Artanerxes, 112, 290.

Brutus, 162, 459, 740, 787-

Caesar, 10, 474, 752.

Camillus, 19, 527, 571, 575, 735.

Cato the Elder, 41, 162, 384, 679, 763,
768.

Cato of Utica, 738.

Cimon, 197, 215 (bis), 436, 489, 526,
629, 631.

Cleomenes, 108, 458.

Compartson of Cleomenes and the
Gracchi, 576.

Comparison of Lycurgus and Numa,
576.

Comparison of Lysander and Sulla, 156.

Comparison of Peloprdas and Marcellus,

737,738; 788.
Comparison of Philopoemen and Titus,

107, 476.

Comparison of Solon and Publicola, 160.

Comparison of Theseus and Romulus,
495, 505.

Comparison of Timoleon and Aemilius
Paulus, 781.

Cortolanus, 129, 678.

Crassus, 170, 791.

Demetrius, 137, 198, 243, 395 456,
569s 605, 685, 730, 744, 751, 759,

799:

Dton, 468, 741.

Eumenes, 380.

Fabius Maximus, 407, 660.

Flamininus, 161, 702, 749, 755, 772
774, 783.

Galba, 388, 546.

Gracchus, Tiberius, 157, 406, 590, 660,

798.

920

Index of Authors Cited

Plutarch (continued)
Parallel Lives (continued)

Lucullus, 211, 527, 680.

Lycurgus, 161, 224, 797.

Lysander, 156, 197, 373, 606, 674.

Marcellus, 108, 456, 606, 685.

Marwus, 10, 175, 393, 862.

Nictas, 172, 823.

Numa, 35, 511, 562, §70-I.

Otho, 574, 692.

Pelopidas, 177, 321, 444, 476.

Pertcles, 201, 203, 541.

Philopoemen, 476, 606.

Phocion, 580.

Pompey, 10, 43, 213, 507, 562, 605,
784; 794-

Publicola, 160, 639, 654, 829.

Pyrrbus, 17, 117, 122 (bis), 292, 456,
549; 652.

Romulus, 281, 473, 527, 669.

Sertorius, 118.

Solon, 16, 106, 164, 194, 255, 265, 271,
488, 521, 562, 605, 797, 819.

Sulla, 141, 606, 659, 752, 813.

T hemtstocles, 122 (bis), 152.

Theseus, 108, 311, 451, 456, 717.

Tamoleon, 557, 659, 741.

Parallels (Parallela Graeca et Romana),
657.
Polttscal Precepts (Praecepia Gerendae
Retpublicae), 4.76.
Roman Questions (Quaestiones Romanae),
239, 370, 516, 773, 788, 789.
On Supersistoon (De Superstztione), 509.
Sympostacs (Conviviales Disputationes),
196, 412, 429.
To an Unlettered Prince (Ad Principem
Ineruditum), 717.

Whether Water or Fire Is More Useful
(Aquane an Ignis Sit Utsltor), 199.
Pollio, Trebellius (3d or 4th century), Latin

biographer.
Thirty Tyrants (Lyrannt Triginta), 318.
Pollux, Julius (c. 130—c. 188), Greek
rhetorician.
Onomasticon, 626,
Polyaenus (fl. 160), Greek writer of Mace-
donia.
Strategemata, 410 (bis), 741, 747, 750
(bis), 755.
Polybius (b. c. 206 3.c.), Greek historian,

81, 397; 443, 475.
Histories (Htstoriae), 17, 41, 108, 112,

125, 136, 149, 169, 215 (bis), 279, 370, |

395, 404 (bis), 407, 408, 410 (ter), 415,
416 (bis), 436, 441, 494, 526 (bis), 528,
546 (bis), 567, 605, 606, 621, 636, 651
(bis), 654, 658, 671, 677, 683, 685, 690,
702, 733, 734, 736, 745, 746, 749, 751,
754 769, 772, 779, 805, 816, 822, 849,

Selections on Embassies, 106, 133, 251 (bis),
279 (bis), 374, 406, 416, 445, 449, 530,
546, 562 (ter), 622 (ter), 627 (bis), 659,
660, 669, 675, 699, 702, 703 (ter), 751,
754 758, 772 (bis), 816, 819, 827 (bis),
859.

Pompeius Trogus, see Trogus, Pompeius.

Pomponio Leto, see Pomponius Laetus.

Pomponius, Sextus (2d century), Roman
jurist, 666 (cited by Ulpian), 711
(erroneously for Paulus), quoted in
Digest.

Enchiridit Liber Singularts, 129, 514, 667,
602.

Ad Quintum Mucium Libri XX XIX, 438,
446, 630, 658, 662, 666 (bis), 671 (bis),
690, 701, 702, 703, 711, 714, 819.

Ex Plauto Libri VII, 201, 210.

Ad Sabinum Libri XXXVI, 190, 311,
360, 672, 703, 710.

Pomponius Laetus, Julius (1425-1497),
Italian antiquary.

Compendium of Roman History from the
Death of Gordian to ‘Fustinus III
(Compendium Hu1stortae Romanae ab
Interitu Gordiant usque ad Fustinum
ITD), 460.

Pomponius Mela, see Mela, Pomponius.
Pontanus, Johan Isaac (c. 1570-1639),
Danish historian.

History of Denmark (Htstorta Danica),
124, 279, 285, 562, 821, 823.

Discussiones Historicae (ed. 1637), 434,
528.

Porphyry (Porphyrius, 233-304), Neo-
Platonic philosopher.

On Abstaining from Animal Food (De

Abstinentia), 12 (bis), 18, 42, 43, 53,

79 (bis), 110, 187, 370, 477 (ter), 495;
728, 747 (bis), 751; 794-

Homertc Questions (Homericae Quaes-
tiones), 224.
Life of Pythagoras (De Vita Pythagorae),
187.
Portuguese Law, see Law of Portugal.
Posidonius (fl. 63 B.c.), Stoic philosopher.
Histories, 255.

Index of Authors Cited

Q2I

Possidius, St. (fl. 397-437), Bishop of Ca-
Jama in Numidia.

Life of Augustine (Vita Sancti Augustini),
277, 841.

Precepts of the Law, Precepts Bidding, Pre-
cepts Forbidding, see de Kotzi, Moses.

Prierio, Sylvester of, see Sylvester Mazzo-
lini,

Priscian (fl. 525), Latin grammarian.

Instttuttones Grammaticae, 683.

Priscian (Theodorus Priscianus, 5th cen-
tury), physician.

Gynaecia, 194.

Priscus (d. c. 471), Byzantine historian.

Fragments, 765.

Selections on Embassies (Excerpta de
Legationibus), 318 (bis), 527, 653, 704,
763.

Probus, Marcus Valerius (fl. 100), Roman
literary critic, cited for Nepos, 620.
Proclus (412-485), Neo-Platonic philo-
sopher, 616,
On Plato's Republic, 745.
On Hestod’s Works and Days, 525.
Procopius (c. 495-c. 565), Byzantine histo-
rian, 838.

On the Buildings of Fustintan (De Aedifi-
cits Imperatoris Fustiniant Libri VI),
118, 213, 262.

Gothic War (De Bello Gothico Libri IV),
19 (ter), 76 (bis), 114, 136, 169 (bis),
189, 199, 213, 262, 286, 287, 320, 357,
423 (bis), 432, 438, 441 (bis), 444, 459,
488, 506, 520, 530, 531, 533, 548, 5553
562 (bis), 570, 571, 5725 574, 602, 651,
653, 657, 670, 684, 687, 704, 705 (bis),
724, 726, 730, 738, 739, 741, 748, 750,
753, 766, 776, 784, 787, 818, 837, 838,
848, 853 (bis), 855.

Persian War (De Bello Persico Libri II),
122 (bis), 136 (bis), 198, 270, 276, 372,
387, 396, 416, 460, 546, 555, 576, 578,
657, 660, 738 (bis), 752, 814, 860

Secret History (Anecdota swe Historta Ar-
cana), 215 (bis), 224, 317, 345, 353, 517-

Vandalic War (De Bello Vandatsco Librt
IT), 19 (bis), 114, 118 (bis), 279, 287,
292, 409, 420, 445, 462, 473, 520, 570,
571, 584, 599, 631, 656, 657, 672, 680,
687, 698, 711 (bis), 724, 749, 752 (bis),
784. (bis), 814.

Proculus, Sempronius (Ist century), Roman
jurist, cited in Imstetutes and Digest,

254, 306, 322.

Epistolarum Lrbrt, 131 (ter), 132, 714
(bis), 823.
Propertius, Sextus (c. 50-c. 16 B.c.), Roman
elegiac poet.
Elegies (Elegiae), 593, 685, 723.
Proverbs, see Bible.
Prudentius Clemens, Aurelius (348-c. 405),
Christian Latin poet.
Against Symmachus (Contra Symmachum),
250 (ter).
Hymns (Cathemerinon), 451, 453.
Psalms, see Bible.
Pseudo-Justin Martyr.
Responsa ad Orthodoxos (Responsiones ad
Orthodoxos de Quibusdam Necessaris
Quaestionibus, Migne ed.), 511, 519,

544.
Publilius Syrus (fl. 43 3.c.), Roman writer
of mimes.

Sententrae, 74, 144, 467.

Quintilian (Marcus Fabius Quintilianus,
c. 35-c. 100), Roman rhetorician.

Declamations, 152, 175, 190, 239, 251,
265, 277-8, 361, 421, 422, 423, 425,
427, 453, 454, 457, 474, 485, 487, 528,
5 89 (bis), 643, 716, 722, 759, 792 (bis),

13.

Institutes of Oratory (Institutto Oratorta,
Loeb), 42-3, 435 56, 159, 174 (bis), 270,
421, 451, 484, 558, 566, 570, 610, 611
(bis), 614, 615, 617, 618, 642, 684, 688,
697, 700, 705, 717.

Quintus Mucius, see Scaevola, Quintus
Mucius.

Radevicus (12th century), continuator of
Otto of Freising, 230, 405, 438.

Regino of Priim (d. 915), German chroni-
cler.

Chronicon, 318, 650.

Regius, Aegidius (Giles de Coninck, 1571-
1633), Belgian Jesuit theologian.

De Moralitate, Natura et Effectibus
Actuum Supernaturalium, 204, 325,
563, 569, 587, 593, 629, 756, 759, 768,
778, 786, 821.

Reidanus, Everardus, see Van Reyd, Everard.
Reinkingk, Theodor (d. 1664), German
jurist.

Tractatus de Regimine Seculari et Eccle-
stastico (Marburg, 1641), 217, 224 (bis),
228, 252, 291, 315, 386, 389, 635, 807,
841.

922

Index of Authors Cited

Revelation, see Bible.
Rhedanus, Everardus, see Van Reyd, Eve-
rard,
Ripa, Franciscus a, see Franciscus a Ripa.
Rochus de Curte, see Curtius, Rochus.
Roderick of Toledo (Rodrigo Ximenes,
c. 1170-c. 1245), Spanish archbishop
and historian.
History of the Arabs (Htstorta Arabum),
287,
History of Spain (Chronica Htspantae),
563.
Roderick, see also Sanchez de Arevalo,
Rodrigo.
Romans, see Bible.
Romanus, Ludovicus (1409-1439), Italian
jurist.
Consilia, 807.
Rosate, Alberico de (d. 1354), Italian jurist.
On Decretals, 264.
De Statutis, 420.
Rosella, Summa, see Trovamala, Baptista.
Rosenthal, Henricus a (17th century), Ger-
man jurist.
De Feudts or De Fure Feudorum (Synopsis
Totius Iuris Feudalist), 301, 426.
Rufinus (d. c. 1192), canonist of uncertain
nationality.
Summa in Gratiant Decretum, 87.
Rufus, Latin author joined with Vegetius in
Plantin’s edition of 1607.
Leges Mihtares, 140.
Rugerius, Bonifacius (d. 1591), Italian
jurist.
Constlia, 264.
Rupert (Rupertus Tuitiensis, d. 1135),
abbot of Deritz, German Benedictine
exegete, 618.

Sabinus, Masurius (1st century), Roman
jurist, cited by Tryphoninus in the
Digest, 710.

Salic Law, see Law, Salsc.

Saliceto, Bartholomaeus de (d. 1412), Ita-
lian jurist.

On Code, 428, 627, 673, 712.

Salisbury, John of, see John of Salisbury.

Sallust (Gaius Sallustius Crispus, 86~34
B.c.), Roman historian.

Catiline or Conspiracy of Catiline or
Catilinarian War (Bellum Cazttlina-

rium), 139, 210, 660, 770, 789, 799,
850,

Histories (Histortae), 126 ; also the follow-

ing excerpts :

Speech of Philtp (Oratio Philippi in
Senatu), 731.

Oration of Macer (Oratio Macrt Tr.
Pl. ad Plebem), 172.

Letter of Mithridates (Epistula Mithri-
datis), 270, 556, 582.

Fugurtha or ‘Fugurthine War (Bellum
Fugurthinum), 139, 140, 162, 213, 280,
392, 394, 441, 442, 448, 473, 527, 697,
738; 740, 744, 776, 848.

On Publec Administration (Ad Caesarem
Senem de Re Publica Oratio), 731, 740,
742, 770, 861.

On Public Admimstration (Ad Caesarem
Senem de Re Publica Eptstula), 644.
Salmasius, Claudius (Claude Saumaise,

1588-1653), French scholar.
On Solanus (Plintanae Exercttationes in
C.F. Solint Polyhistorem), 301.
Salomon, Rabbi, see Jarchi, Solomon Ben
Isaac.
Salvianus (d. c. 490), priest of Marseilles.

Against Avarice (Adversus Avaritiam),
119, 767.

On the Government of God (De Guberna-
tione Det), 83, $19, 524, 525.

Samuel, see Bible.

Sanchez de Arevalo, Rodrigo (Rodericus
Sanctius, 1404-1470), Spanish bishop
and historian.

History of Spain (Htstoria Hispanica),

517.

Sanchez, Thomas (1550-1610), Spanish
Jesuit and theologian.

De Sancti Matrimonit Sacramento D1s-
putatrionum Libri X, 341.

Sanction des Eaux et Foréts, 300.

Sanctius, see Sanchez.

Sandeo, Felino Maria, cited as Felinus
(c. 1444-1503), Italian canonist.

On Decretals, 213, 252, 333, 387, 835.

Sarisberiensis, Joannes, see John of Salis-
bury.

Sarpi, Paolo (Father Paul or Paul of Venice,
1552-1623), Italian Servite and theo-
logian.

De Fure Asylorum Liber Singularis,
32.

Saturninus, Claudius (2d century), Roman
jurist, cited in the Digest.

De Poents Paganorum Liber Singularts,
§OI, 502.

Index of Authors Cited

923

Saturninus, Venuleius (3d century), Roman
jurist.

Stipulationum Librt XIX, 659.

Saumaise, Claude, see Salmasius, Claudius.
Saxo Grammaticus (d. c. 1184), Danish
historian.

History of Denmark (De Gestis Danorum
or Historia Danica), 86, 119, 280 (bis),
304, 393, 402, 554, 631.

Sayrus, Gregorius (1570-1602), English
Benedictine and theologian.

Clavis Regia Sacerdotum Casuum Con-
scientiae stve Theologiae Moralis The-
saurt Locos Omnes Aperiens, 487.

Scaevola, Quintus Cervidius (2d century),
Roman jurist.

Digestorum Libri XL, 423.

Responsorum Libri VI, 308.

Scaevola, Quintus Mucius (d. 82 B.c.),
Roman jurist.

Cited by Cicero in his Topics, 701.

Cited by Pomponius in the Digest, 529.

Cited by Ulpian in the Digest, 56.

Scafnaburgensis, see Lambert von Aschaf-
fenburg.

Scaliger, Joseph Juste (1540-1609), French
critic and scholar.

On Festus, 822.

von Schaffenburg, Lambert, see Lambert
von Aschaffenburg.

Scholiast on Apollonius Rhodius, 622.

Scholiast on Aristophanes, 198, 380 (bis),
602 (bis).

Scholiast on Euripides, 281.

Scholiast on Homer, 264.

Scholiast on Horace, 35 (bis), 42, 189, 197,
331, 347, 463, 491, 617, 621, 734.

Scholiast on Juvenal, 742.

Scholiast on Sophocles, 366.

Scholiast on Thucydides, 631, 725, 833.

Schutz, Caspar (fl. 1561), German historian.

Prussian Htstory (Historta Prussica), 604.

Scriptores Historiae Augustae, see Capi-
tolinus ; Lampridius ; Pollio; Spartia-
nus ; Vopiscus ; and Vulcacius.

Segusio, Henricus de, see Hostiensis.

Seissel, Claude de, see Seyssel, Claude de.

Selden, John (1584-1654), English lawyer.

Mare Clausum (London, 1636), 189.

Selections on Embassies (Excerpta de Lega-
tonibus or Ursiniana), a collection of
selections from various writers com-
piled under the direction of Constan-
tine VII Porphyrogenitus and first

published by Fulvio Orsini (1582), 198,
423, 669 ; see also names of authors of the
selections.

Selections on Virtues and Vices (Excerpta de
Virtutibus et Viteis or Petresciana or
V alestana), a collection of selections
from various writers compiled under
the direction of Constantine VII
Porphyrogenitus and first published
from a manuscript of Peiresc by Henri
de Valois (1634), see names of authors
of the selections.

Seneca, Lucius Annaeus (c. 3 B.c.-65 A.D.),
Roman philosopher, 244.

Agamemnon, 635, 817.
On Anger (Ad Novatum de Ira Librt IIL,

Leipzig, 1905), 34542 (bis), 170, 446,463,
466 (ter), 467 (bis), 468 (quater), 470
(bis), 471, 477 (bis), 483 (bis), 485, 488
(sexties), 503, 521, 540, 547, 548, 582,

639, 717, 7275 734, 735s 7425 771, 788.
On Benefits (De Beneficus ad Aebutium

Liberalem, Zweibnicken, 1782), 10,
12, 36, 56, 73, 105, 142, 170, 171, 175,
177 (ter), 186, 196, 199, 207 (ter), 219
(bis), 233, 256 (bis), 257, 275, 300, 331,
333, 351 (bis), 352, 361, 376, 398, 426
(bis), 449, 451, 454, 483, 489 (bis), 490,
503, 505, 506, 514, 521 (bis), 582 (bis),
584, 589, 602, 615 (bis), 619, 623 (ter),
664, 684, 717, 762, 763, 766 (ter), 767
(bis), 778, 793, 796, 801 (quinquies),
802 (ter), 824, 832 (bis).

On Chance Remedies (Ad Gallionem de
Remedius Fortuttorum, Leipzig, 1902),
466.

On Clemency (Ad Neronem de Clementia,
Zweibriicken, 1782), 76, 152 (bis), 177,
311, 475, 485, 488, 490, 491, 492, 501
(bis), 547, 568 (bis), 569, 570, 575, 582,
601, 717, 722, 730, 731, 739, 762, 763,
764. (bis), 772, 828.

On Consolation (Ad Heluiam Matrem de
Consolatione, Leipzig, 1905), 718.

On the Happy Life (De Vita Beata ad
Gallionem Fratrem, Leipzig, 1905), 97,
251.

Hercules Oetaeus, 368.

Hercules Raging (Hercules Furens), 499,
521, 548.

Hippolytus (or Phaedra), 241, 556.

On the Leisure of the Wise Man (De Ozzo
aut Secessu Saptentis, Zweibriicken,

1782), 486.

924

Index of Authors Cited

Seneca, Lucius Annaeus (continued)

Letters (Ad Lucilium Eptstulae Morales,
Loeb and Zweibriicken, 1782), 19, 34,
42, 43, 51 (bis), 52 (bis), 56, 63 (ter),
107, 129, 146, 170, 187, 188, 203, 228,
251, 311 (bis), 312, 313, 331, 459, 488,
495, 509, 513 (bis), 547, 568, 577, 590,
645, 718, 762, 763 (bis), 764 (ter), 860.

Medea, 140.

Natural Quesitons (Naturales Quaestiones,
Zweibricken, 1782), 115, 188 (bis),
203, 301, 313 (bis), 365, S11, 585 (bis),
728.

Octavia, 735.

Oedipus, 656.

Phoenician Women (Phoentssae), 749.

On the Steadfastness of the Wrse Man (De
Constantia Saptentis, Leipzig, 1905),
74 (ter), 201.

T byestes, 147.

On Tranquillity (Ad Serenum de Tran-
guillstate Animi, Leipzig, 1905), 766.

Trojan Women (Troades), 645, 649, 716,
73757483 772-

Seneca, Marcus (or Lucius) Annaeus (c. 60
B.C.-C. 37 A.D.), Latin rhetorician,
father of the preceding.

Controversies (Controversiae, Vienna,
1887), 58, 80, 157, 165, 193-4, 194,
211, 231, 250, 252, 335, 367, 392, 421,
422, 425, 433, 450, 488, 489 (quater),
503, 551, 588 (bis), 591, 643, 660, 691,
697, 705, 793-

Suasortae (Vienna, 1887), 115, 191, 496,

67.

Septuagint first Greek translation of He-
brew Old Testament, 613; see also
Bible: Old Testament.

Serranus, Joannes, see de Serres, Jean.

de Serres, Jean (c. 1540-1598), French
historian.

Inventaire Général de P Histoire de France
de Pharamond jusqu’a Charles VI, 261
(bis), 285, 286, 292, 293 (bis), 319, 388,
444, 448, 739 (bis), 825.

Servin, Louis (1555-1626), French magis-
trate, 604.

Servius, Marcus Honoratus (4th century),
Roman grammarian ({n Vergilii Car-
mina Commentarit, Leipzig, 1878-
1902).

On the Aeneid, 33 (bis), 59 (ter), 92, 101,
117 (bis), 129, 166, 172, 190, 197, 201
(bis), 202, 215, 247, 253, 261, 277, 279

(ter), 281, 313, 337, 339, 392 (bis),
393 (ter), 410, 438, 440, 454, 456 (bis),
458, 464 (ter), 516, 531, 575, 605, 606,
036 (ter), 637 (quater), 641 (bis), 645,
660 (quater), 673, 675, 690 (bis), 692,
701, 736, 742, 767, 775, 789, 822, 829,
$33 (bis), 836 (bis), 858.

On the Eclogues, 117, 199, 217, 344, 660,
765.

On the Georgics, 126, 189-90, 199, 344,
362, 452.

Servius Sulpicius, see Sulpicius, Servius.
Severus, Sulpicius (4th century), of Aqui-
tania, ecclesiastical historian.

Sacred History (Historia Sacra), 87, 89
(quater), 520 (bis), 781.

Sext, see Corpus Furis Canonict.

Sextus Aurelius, see Aurelius Victor, Sex-
tus.

Sextus, Empiricus (fl. 200), Greek philo-
sopher and physician.

Against the Mathematicians (Adversus
Mathematicos), 42.

Pyrrbhonewa, 233, 256.

Seyssel, Claude de (c. 1450-1520), French
bishop and historian,

Dela Monarchie de France, 228.

Siculus Flaccus, se¢ Flaccus, Siculus.

Sidonius Apollinaris, Gaius Sollius Modes-
tus (c. 431-c. 482), bishop of Clermont
and poet.

Letters (Epistolae), 387.

Sigebert of Gembloux (c. 1035-1112),
Belgian Benedictine and historian.

Chronicon stve Chronographia, 290.

Silius Italicus, Gaius Catius (c. 25-100),
Roman epic poet.

Punica, 374, 450, 509, 548, 560, 605, 606,

653 (bis), 752, 792.

Silvester, sce Sylvester.

Simeon Magister (Simeon Sethus, 12th
century), Greek writer.

Syntagma de Cibariorum Facultate, 87.

Simler, Josias (1530-1576), Swiss Protestant
minister and historian.

History of the Swiss Republic (De Re-
publica Helvetiorum), 253, 533, 581,
585, 672, 675, 685, 734, 753, 819.

Simonides, early Greek poet cited by Plato
and Plutarch, 330, 468.

Simplicius (d. 549), peripatetic philosopher
of Cilicia.

On the Manual of Epictetus, 144, 234.

Sirach, Son of, see Bible.

Index of Authors Cited

925

Sirmond, Jacques (1559-1651), French
Jesuit and antiquary.
Appendix to Theodostan Code (Appendix
Codicts Theodostant), 438.
Carols Calvi et Successorum Aliquot
Franciae Regum, 318.
Councils of France (Concilia Antiqua
Galliae), 364, 368.
Sisenna, Lucius Cornelius (fl.c. 119-67 B.c.),
Roman annalist, cited by Servius, 202.
Sixtinus, Regnerus (1577-1617), German
jurist.
De Regalibus, 301.
Smith, Sir Thomas (1512-1577), English
statesman.
English Commonwealth (Latin translation
called De Republica Anglorum), 263.
Socinus, Bartholomaeus (1436-1507), Ita-
lian jurist.
Consilia, 223.
Socrates (b. c. 379), ecclesiastical historian
of Constantinople.
Ecclestastical History (Htstoria Ecclesias-
t1ca), 520.
Solinus, Gaius Julius (fl. 275), Roman
geographer.
De Memorabilibus Mundi or Polyhtstor,
112, 701.
Solon (c. 638—-c. 558 3.c.), Athenian legis-
lator and poet, 16, 256, 379, 394, 732.
Fragments (of poems), Igo.
Song of Songs, see Bible.
Sopater (f. 534), Greek sophist, 256, 488
(ter), 491, 503, 589, 739.
Controversies, 454, 455-0.
Scholia ad Hermogenis Status, 267.
Sophocles (c. 495-405 B.c.), Greek tragic
poet.
Ajax, 139, 450, 453, 455, 458.
Antigone, 107 (ter), 125,140,450 (bis), 453.
Creusa (cited by Stobaeus), 610.
Hippodamia, 362.
Oedipus at Colonus (Oedipus Coloneus),
366, 379, 531, 534-
Oedipus the King (Oedipus Rex), 656.
Philoctetes, 611, 621.
Trachinian Women (Trachiniae), 56, 265.
Soto, Domingo (1494-1560), Spanish Do-
minican and theologian, 493.
De Fustitia et Fure Libri X, 173, 175,
176 (bis), 178, 179, 180, 182, 193, 260,
269, 324, 326, 363, 369, 373, 431 (bis),
432, 433, 565, 579 (bis), 580, 592 (bis),
618, 627, 693.

De Rattone Tegend: et Detegend: Secre-
tum, $92.

Sozomen (Sozomenos Hermias, b. ¢. 400),
Greek ecclesiastical historian.

Ecclestastical History (Historia Ecclestas-
t1¢@), 109.

Spanorchius, Horatius, author of:

De Interregno Polontae Anno 1587 Divs-
natzo (tn Philippus Honorius, Thesaurus
Poltttcus, 1617), 319.

Spartianus, Aelius (3d or qth century),
Latin biographer, 316.

Caracalla (Antoninus Caracalla), 451.

Hadrian (De Vita Hadriant), 85, 121,
217, 299.

Pescennius Niger, 561-2, 785.

Septimius Severus (Severus), 299, 645, 680.

Speculum, see Durandus, William.

Speculum Saxonicum, 257, 267, 299, 308, 326.

Statius, Caecilius, see Caecilius Statius.

Statius, Publius Papinius (c. 61~c. 96),
Roman epic poet.

Achilleid (Oxford), 593.

Siluae (Oxford), 147, 735, 753, 833.

Thebaid (Oxford), 438 (bis), 439, 450,

45% 452, 455, 4575 531, 593, 636, 645,

739.

Stephen VI, Pope (d. 891), cited in the
Concilia Galhae, 707.

Stobaeus, Joannes (fl. 500), Greek antho-
logist, 14, 17, 143, 165 (ter), 241, 255,
270, 272, 332, 353, 362, 372, 379, 449;
452, 455, 458, 462, 465, 468, 475, 476,
477, 483, 488, 490, 491, 498, 501, 530,
532, 538, 585 (bis), 588, 605, 610 (bis),
611, 616, 643, 762, 774, 775, 820.

Strabo (c. 60 B.c.-c. 24 A.D.), Greek geo-
grapher.

Geography (Geographica, Leipzig, 1895),
47,79 (bis), 103 (bis), 105, 106 (quater),
112, 116 (bis), 119 (bis), 121, 123, 125,
132, 137, 198, 200 (bis), 201, 202, 204,
214 (bis), 215 (bis), 217, 219, 237, 253
(bis), 256, 273, 279 (bis), 287, 297, 302,
313, 353, 434s 449, 459, 484, 499, 510,
SII, 527, 542, 563 (ter), 564 (bis), 571,
631, 653, 675, 700, 711, 736, 752, 769,
7753 780, 819.

Straccha, Benevenutus (fl. 1550), Italian
jurist, 325.

Suarez, Francisco (1548-1617), Spanish
Jesuit and theologian.

De Legibus ac Deo Legislatore, 159, 223,

383, 565.

926

Index of Authors Cited

Suarez, Rodericus (fl. 1494), Spanish jurist.

De Usu Maris, 668.

Suetonius Tranquillus, Gaius (b, c. 70),
Roman historian.

Lives of the Twelve Caesars (Vitae Duo-
decim Caesarum, Loeb) :

Augustus, 97, 213 (bis), 357, 380, 575.
Fulius Caesar, 546, 678, 771, 772, 835.
Caligula, I12, 324.

Claudius, 358.

Domttian, 145.

Nero, 658.

Tiberius, 376.

Titus, 388.

Grammarians (De Illustribus Grammatiets
et de Clarts Rhetortbus, Loeb), 255.

Suidas (fl. 970), Greek lexicographer.

Lextcon, 81, 149, 169, 737, 754, 784.

Sulpiciuns Rufus, Servius (c. 106-43 8.c.),
Roman jurist, cited by Cicero, 701,

O4.

Sylvester Mazzolini (also Mozolini and
Prierias, 1460-1523), Italian Domini-
can and theologian.

Summa Sylvestrina, Quae Summa Sum-
marum merito nuncupatur: On the
word bellum, 91, 98, 99, 165, 166, 171,
172, 176, 179, 182, 268, 350, 402, 403,
404, 552, 556, 585, 592, 594, 600, 607,
609, 686, 689, 696, 719 (bis), 752, 758,
760, 790; 791, 807.

On the word commodatum, 426.

On the word homicidrum, 175, 178.
On the word iuramentum, 365.

On the word metus, 334.

On the word Papa, 506.

On the word repressalia, 628.

On the word restttutto, 324, 334, 603.
On the word sepultura, 457.

On the word servitus, 768.

On the word soctetas, 359.

On the word vindicta, 467.

Sylvius (Piccolomini), Aeneas (1405-1464),
later Pope Pius II, Italian historian.

History of the Counctl of Basel (Atstoria
Conctlit Bastliensts), 252.

Symmachus, Quintus Aurelius (d. c. 402),
Roman orator and statesman.

Letters (Eptstulae), 207, 367, 380, 387
(bis), 492.

Synesius of Cyrene (378-c. 430), bishop and
neo-Platonist, 724.

Letters (Epustolae), 148, 483.

Synod of Seville, 486.

Syrianus (d. c. 450), Greek philosopher.
On Hermogenes (Scholia ad Hermogenis
status), 267.
Syring, Petrus (d. 1653), German philo-
sopher.
De Pace Rehgionts in Imperio Romano
contra Franciscum Burckhardum, 386.
Syrus, Publilius, see Publilius Syrus.

Tacitus, Publius Cornelius (c. 55—after 117),
Roman historian.

Agricola (Loeb), 277, 279, 775, 776.

Annals (Annales, Oxford), 47, 112, I15,
118, 129 (bis), 139, 144, 187, 202, 221,
235, 245, 299, 312, 318, 422, 440, 446,
450, 451, 455, 463, 465, 470, 472, 497,
508, 532 (ter), 548, 561, 575, 591 (bis),
612, 622, 632, 636, 645, 648, 650 (bis),
651, 652, 656, 658, 659, 660, 684, 687
(bis), 691, 698, 722 (bis), 731, 736, 740,
771; 7725 7745 777 786, 832.

Germany (Oxford), 105, 112, 115, 126,
128 (ter), 130, 217 (bis), 219, 237, 255,
287, 300, 3445 393, 549, 632, 651, 7445
795-

Aistories (Historiae, Oxford), 69, 74, 106,
II0, 126, 135 (ter), 142, 144, 151, 162,
197, 198, 201, 312, 364, 388 (bis), 398,
449, 452, 473, 511, 547 (bis), 550, 556,
571, 573, 575, 612 (bis), 632, 645, 650
(bis), 654, 661 (ter), 686, 692 (bis), 738,
771, 773» 775, 786, 832.

On Orators (Dralogus de Oratoribus,
Oxford), 476.

Tacticus, Aelianus, see Aelianus Tacticus.
Talmud, compilation of the Jewish Mzshna
and Gemara, 747.

On the King, 46, 672, 686.

On Marriage Deeds (Ketuboth), 482.

On the Sanhedrin, 46.

Tanchuma bar Alba, a rabbinical commen-
tator, 587.

Targum, Chaldean, paraphrase of the Old
Testament, 399 ; see also Onkelos.
Tartagni, Alessandro, see Alexander o.

Imola.
Tatian (b. c. 120), Syrian apologist.

Oratio adversus Graecos (Migne), 84.
Tatius, Achilles, see Achilles Tatius.
Tedeschi, see Panormitanus.

De Tenuris Anglhiae, see Littleton, Sir
Thomas de.

Terence (Publius Terentius Afer, c. 195-
159 B.c.), Latin comic poet.

Index of Authors Cried

927

Terence (continued) -
Brothers (Adelphi), 74, 559, 613, 649,

794:

Andria, 568, 767.

Hunuch, 297, 331, 446, 516, 560, 561, 630,
701.

Hecyra, 144, 440, 469.

Phormzio, 766 (bis).

Self-Tormentor (Heauton Tsmorumenos),
104, 325.

Tertullian (Quintus Septimius Florens
Tertullianus, c. 160-c, 240), Latin
Father of the Church, 610.

Against the Nations (dd Nationes), 518,
592, 660.

An Answer to the Fews (Adversus fudaeos),
10, 25, 47, 517.

Apology (Apologeticum), 84 (bis), 85 (bis),
144, 145, 153, 160, 371, 487, 518, 592,
658 (bis), 697, 765.

Exhortation to Chastity (De Exhortatione
Castitatts), 82, 642,

On Fastings (De Fezunits), 338.

The Flight in Persecution (De Fuga in
Persecutione), 89.

Prescription against Heretics (De Prae-
scriptionibus adversus Haerettcos), 43.
On Idolatry (De Idololatria), 82 (ter), 83,

87, 89, 588.

Against Marcion (Adversus Marcitonem),
75s 77» 242, 208, 401, 479, 512 (bis),
541, 615 (bis), 642, 694.

On Modesty (De Pudicttra), 49, 411, 617,

701. ,

On Monogamy (De Monogamia), 77, 82,
542.

De Oratione, 464.

On the Pallium (De Pallid), 313.

On Patience (De Patientia), 77, 96, 479.

On’ Penitence or Repentance (De Poent-
tentia), 143, 482.

On the Resurrection of the Flesh (De
Resurrectione Carnts), 20, 311, 411,
453, 522, 589.

To Scapula (Ad Scapulam), 82, 145.

Scorpiace (Adversus Gnosticos Scorpiace),
518, 800.

On the Soldser’s Chaplet (De Corona
Militis), 38, 82 (bis), 83, 85, 563.

On the Soul (De Anima), 25, 82, 187, 194,
589.

De Spectaculis, 81-2.

To His Wife (Ad Uxorem), 247, 497, 498,
642.

1569°27

Tessaurus, Anthony, see Thesaurus, Caspar
Antonius.
Testament, New and Old, see Bible.
Theano (fl. 540 3.c.), Greek philosopher
and wife of Pythagoras.
Letters (Eptstolae), 765.
Themistius (c. 315-c. 390), Greek rhetori-
clan.
Orations (Orationes), 18, 213, 214, 492,
570, 591, 728, 729.
On the Soul (in Paraphrases Aristotelis

Librorum Quae Supersunt, Leipzig,
1866), 459.

Theocritus (fl. 270 3.c.), Greek pastoral
poet.

Idyls (Loeb), 213 (bis).
Theodoret (c. 393-c. 457), bishop of Cyrus,
theologian and historian, 47.
Ecclesiastical History (Historia Ecclesias-
tica), 109, 145, 314.
Graecarum Affectionum Curatio, 468.
On Providence (De Divina Providentia),

199.

Theodoric the Great (c. 454-526), King of
the Ostrogoths.

Edict (Edictum Theodorict of 512, a code
of criminal law), 91, 348, 405, 522 (bis),
799:

Theodosian Code (Codex Theodostanus), com-
pilation of imperial constitutions or-
dered by Theodosius IT and published
in 438, superseded by Code of ‘Fustintan
in Corpus Lurts Civilis, 28, 76, 249
(ter), 248, 249, 252, 355, 438, 474.

Theophanes, one of two Byzantine his-
torians (d, 578 or c. 758-817), 215, 659.

Theophilus (6th century), Roman jurist,
one of the compilers of the Dzgest and
Institutes of Justinian.

Institutes (Paraphrasis Institutionum, a
Greek version of Justinian’s Instztutes),
107, 209 (bis), 531, 666, 766,

Theophrastus (c. 374-287 B.c.), Greek
philosopher,

On Laws, 142 (cited in Digest), 332.

Theophylactus (fl. 1078), Greek exegete.

On St. Matthew, 96.

Thesaurus, Caspar Antonius (fl. 1626),
Italian jurist.

Thesaurus Quaestionum Forensium, 252,

Thessalonians, see Bible.

Thomas Aquinas, St, (1227-1274), Italian
Dominican philosopher, theologian and
doctor of the Church, 493.

3 .Q

928

Index of Authors Cited

Thomas Aquinas, St. (cont:nued)

Summa Theologica (the second part of the
second part is cited as Secunda Secun-
dae), 39, 162, 166, 173, 193, 223, 257,
268, 299, 327, 347» 350 365, 309, 373;
376, 3875 397» 431; 432, 433 (bis), 465,
467, 470, 518, 556, 563, 600, 601, 607
(ter), 611, 618 (bis), 624, 770, 821.

Thomas Grammaticus (16th century),
Italian jurist.
Decisiones Neapolttanae, 291, 670, 673.
de Thou, Jacques Auguste (1553-1617),
French historian.

History of His Own Time (Historiae Sut
Temporis), 158 (bis), 203, 216, 220,
264, 287, 289, 419, 443, 533, 555, 603,
605, 650, 667, 670, 702, 759, 817.

Thuanus, Jacobus Augustus, see de Thou,
Jacques Auguste.

Thucydides (471-c. 401 B.c.), Greek his-
torian.

De Bello Peloponnesiaco Libri VIII, 9
(bis), 17, 19, 59, IOI, 104, 106, 113,
I15, 130 (bis), 134 (bis), 136, 142, 173,
174. (bis), 191, 192, 201, 213 (bis), 215,
225, 249, 283, 316 (ter), 360, 394 (bis),
395, 403, 405 (bis), 410, 411, 412, 415,
416 (bis), 417, 440, 445 (ter), 466, 473,
488, 496 (bis), 521, 526, 546 (quin-
quies), 562 (quater), 571 (bis), 581
(bis), 583, 584, 606, 631, 634 (bis), 637,
646 (bis), 648, 649, 659, 678, 703, 718,
722, 724, 727, 728 (bis), 730, 731, 736
(bis), 739, 750 (bis), 752, 754, 759, 766,
7745 776, 786, 795, 810 (bis), 814, 817,
822 (bis), 827, 835, 837, 853.

Tiberius Decianus, see Decianus, Tiberius.
Tibullus, Albius (c. 54-c. 19 B.c.), Roman
elegiac poet.

Carmina (Loeb), 79, 211.

Timothy, see Bible.
Tiraqueau, André (Andreas Tiraquellus,
c. 1480-1558), French jurist.

De Legibus Connubtalebus et de Fure
Marztalz, 414.

De Fure Primogenitorum, 290, 291.

Titus (d. c. 371), bishop of Bostra in Arabia
and exegete, 96.
Titus, see Bible.
Toledo, Francisco (1532-1596), Spanish
Jesuit and theologian.
Summa Casuum Conscientiae Absolutissima,

373» 397, 618.
Toledo, Roderick of, see Roderick of Toledo.

Toletus, Franciscus; see Toledo, Francisco.

Torquemada, Juan de (1388-1468), Spanish
Dominican and canonist.

On Decreials, 388.

Toschi, Domenico, Cardinal (1535-1620),
Italian jurist.

Practicae Conclusiones Furis in Omnt Foro
Frequentiorum, 99, 131, 261, 285, 420,
552, 841,

Tostado, Alonso (c. 1400-1455), Spanish
exegete and bishop of Avila (hence
called Abulensis), 618.

On Matthew, 355, 553.

Trebatius (Caius Trebatius Testa, 1st
century B.c.), Roman jurist, cited by
Gaius in the Digest, 297.

Trebellius Pollio, see Pollio, Trebellius.

Treutler, Hieronymus (d. 1607), German
jurist.

Disputationes Selectae ad Ius
Fustinianeum, 386.

Trogus, Pompeius (Ist century B.c.), Roman
historian, whose work is extant only in
the epitome of Justin (q.v.), 280 (bis),
283, 472, 510, 697, 770, 830.

Trovamala, Baptista (d. 1484), Italian
canonist, also called de Salis and de
Rosellis.

Summa Baptistiniana or Summa Rosella,
556.

Tryphoninus, Claudius (3d century), Ro-
man jurist, cited in Digest.

Disputationum Libri X XI, 254, 321 (ter),

323, 374, 425, 673, 703, 704, 705 (bis),
706, 709, 767, 809.
Tudeschis, Nicolé de, see Panormitanus.
Tullius, see Cicero, Marcus Tullius.
Turrecremata, Joannes a, see Torquemada,
Juan de.
Tuschus, Dominicus, Cardinal, see Toschi,
Domenico, Cardinal.

Civile

Ulpian (Domitius Ulpianus, c. 170-228),
Roman jurist, cited in the Digest.

Ad Edictum Libri LXXXI, 39, 54, 56,
72, 181, 193, 222, 223, 307 (bis), 326,
387, 391, 410, 418, 432, 451, 507, 537
(bis), 590, 623, 771, 845.

Institutionum Libri If, 248, 249, 257,
309, 630, 632, 659, 713, 767.

De Officto Proconsulis Libri X, 438, 457.

Opinionum Libri VI, 209, 216, 630.

Ad Sabinum Libri LI, 222, 272, 311, 322,
371, 642, 692, 800, 829.

Index of Authors Cited

929

Ulpian (a. 310), Greek rhetorician.
On Demosthenes, 181, 215.
Urbicus, Aggenus, see Aggenus Urbicus.
Ursinus, Fulvius (Fulvio Orsini, 1529-
1600), Italian scholar, editor of Selec-
trons on Embassies, 251.

Valdes, Spanish theologian, perhaps Alfonso
or Juan de Valdés, 397.

Valens (c. 328-378), Roman emperor of the

ast.

Cited in the Code, 97.

Cited by John of Antioch, 156.

Valentia, Gregorio de (1551-1603), Spanish
Jesuit and theologian.

On II. 1 of Thomas Aquinas (Commen-
tarit Theologtct), 173, 624, 761.

Valentinian (419-455), Roman emperor.

Cited in the Code, 248, 252.

Novel, 711 (bis).

Valerius Flaccus (Gaius Valerius Flaccus
Balbus Setinus, d. before 90), Latin
epic poet.

Argonautica, 139, 729.

Valerius Maximus (Ist century), Roman
historian.

Factorum et Dictorum Memorabilium
Libri, 118, 120, 122, 130, 133, 202, 211,
213, 225, 269, 272, 335, 347, 407, 412,
422 (bis), 447, 451, 456, 503, 505, 528,
§29, 576, 652, 654, 655, 683, 691, 702,
720, 736, 7745 779, 781, 7933 7972 799s
800, 827, 846, 857.

Van Reyd, Everard (1550-1602), Dutch
historian.

Dutch History (in Dutch ; Latin version
by Dionysius Voss), 604 (bis).

Varro, Marcus Terentius (116-28 B.c.),
Latin author, 19, 833 (bis).

Age Modo, 189-90.

On Farming (De Re Rustica Libri III),
187, 211, 217, 241, 680, 751, 766.

On the Latin Language (De Lingua
Latina), 255, 309, 430, 438, 638, 667.

Vazquez, Gabriel (1551-1604), Spanish
Jesuit and theologian.

On II. ¢ of Thomas Aquinas (Commen-
tarius et Disputationes), 558 (bis), 559.

Vazquez Menchaca, Fernando (d. c. 1559),
Spanish jurist, 29.

Illusirium Controversiarum Aliarumque
Usu Frequentium Libri VI, 44, 176,
177, 179, 220, 228 (bis), 229, 263, 264,
344, 383 (bis), 384, 385, 385-6, 426,

486, 493 (bis), 506, 579, 627, 720, 805,
806, 807 (bis).
De Successtonum Creatione, 376, 426.
Vegetius, Flavius Renatus (5th century),
Latin writer.
Ret Militarts Instituta, 86, 371, 410.
On the Veterinary Art (Mulomedicina),
I.
Velleius Paterculus, Caius, see Paterculus,
Caius Velleius.
Venuleius, se¢ Saturninus, Venuleius.
Vergil, see Virgil.
Vicerius, Conrad, see Conrad Vicerius.
Victor, Aurelius, see Aurelius Victor, Sextus.
Victor Vitensis (b.c. 430), an African bishop.
Persecution of the Vandals (Historia Per-
secuttonis Africanae Provinciae, Tem-
portbus Geisertct et Hunerict Regum
W andalorum), 87, 287, 520, 841.
Victor of Utica, see Victor Vitensis.
Victoria, Franciscus de (c. 1480-1546),
Spanish Dominican and theologian,
22, 205.
Relectiones Lheologicae XII:
De Indts (Classics of Int. Law), zo1,

204, 401, 506, 550 (ter), 551, 553,
558, 581, 584 (bis).

On the Law of War (De Iure Belli,
Classics of Int. Law), 98, 99, 103, 178,
540, 556, 558, 560, 563, 564, 565;
567, 587; 590, 592 (bis), 599 (quater),
600, 628, 696, 723, 730, 735, 735
749, 743, 745 (bis), 757 (quater),
758, 760, 761, 770 (bis).

De Potestate Civil, (Salamanca, 1565),
159, 249-

De Potestate Papae et Concilit (Sala-
manca, 1565), 387.

Victorinus, Marius (Gaius Marius Victori-
nus Afer, 4th century), Latin rhetori-
cian, Commentarius in Ciceronis Libros
de Inventione, 427.

Virgil (Publius Vergilius Maro, 70-19 B.c.),
Roman epic poet.

Aeneid, 104, 156 (bis), 169 (bis), 196, 201,
202, 214, 243, 247, 283, 395: 43% 454
455, 456, 525, 564, 583, 605 (ter), 606,
649 (quater), 660 (bis), 673, 674, 675,
578, 731, 735, 829, 832, 833, 857.

Ciris, 649.

Eclogues, 378.

Georgtcs, 126, 189, 190, 203, 212, 452.

Visigoths, Law of the, see Law of the Vist-
goths.

3Q2

930

Index of Authors Cited

Vitruvius Pollio, Marcus (Ist century B.c.),
Roman writer on architecture.
De Architectura Libri X, 189, 313, 752.
Vopiscus, Flavius (3d or 4th century), Latin
biographer, 316.
Auvelian, 785 (bis).
Probus, 123, 317 (bis).
Tacitus, 119.
Vulcacius Gallicanus (3d or 4th century),
Latin biographer.
Avidius Cassius, §40, 570, 722, 789.
Vulgate, Latin version of the Bible from
the Hebrew, 76, 618.

Wacher, Martin (Matthaeus Wacker von
Wackenfels, 17th century), German
jurist.

Consilia Caesarea in Controversia Saxo-
Nila, 252.

Warnefrid, Paul, see Paulus Diaconus.

Wehner, Paul Matthias (d. 1612), German
jurist.

Constlia Francontca, 647.

Wesenbeck, Matthaeus (1531-1586), Fle-
mish jurist.

Commentarwus in Pandectas, 252.
Tsagoge 1n Institutiones, 686.

Wild, Johann (Joannes Ferus, 1494-1554),
German Scriptural exegete, 20.

Wilhelmus Matthiae, see Matthiae, Wil-
helm.

William of Newburgh (1136-1198), English
Augustinian and historian.

History of England (De Rebus Anglicis),
114,

Wipo (Wippo or Wibo, 11th century),
Burgundian chronicler,

Life of Conrad Salicus (Gesta Chuonradt
II Imperatoris), 318 (bis).

Wisdom, see Btble.

Wittekind (roth century), German chroni-
cler.

History of Saxony (Res Gestae Saxontcae),

279, 290, 291, 318, 319, 449, 649.

Xenophon (c. 444-c. 357 8.c.), Athenian
historian and general, 453.
Agesilaus (Loeb), 698, 738, 792.
Anabasts (Loeb), 106, 143, 174, 194, 195;
197, 217, 250, 445, 471, 686 (bis), 783,
8

7°5-
The Cavalry Commander (Hipparchicus,
Loeb), 605.

On the Constitution of Athens (Respublica
Athensenstum), 764.
Greek History (Hellentca, Loeb), 261, 321,

348, 395, 451, 531, 569, 574, 625, 666,

755, 781, 783, 817.
Memorabtlia of Socrates (Loeb), 240, 241,

272, 514, 610, 616, 618, 664.
Sympostum (Loeb), 514.
On Tames (De Vectigalibus), 667.
Training of Cyrus (Cyropaedia, Loeb),
37, 52, 73, 122, 230, 283 (bis), 509, 562,
605, 616, 618, 635, 664, 665, 681, 686,
7375 750, 759, 759, 772s 779; 788, 821.
Ximenes, Rodrigo, see Roderick of Toledo.
Xiphilinus (11th century), Greek monk,
epitomizer of the History of Dio Cas-
sius, 85, 106, 107, 110, 144, 148 (bis),
152, 314, 320, 388, 496, 550, 563, 588,
648, 657, 724, 728, 729, 742.

Zabarella, Francesco (1360-1417), Italian
canonist, archbishop of Florence and
cardinal, hence cited as Cardinal.

On Clementines (Lectura super Clemen-
tints), 175.

Constlia, 201.

Quaestiones, 173.

Zachariah, see Bible: Old Testament:
Zachariah.

Zasius, Ulrich (1461-1536), German jurist.

Apology against Eck (Apologetica Defensto
contra ‘foannem Eckium), 851.

On Decretals, 426.

On Digest, 252, 426.

Singularia Responsa, 123.

Ziegler, Caspar (1621-1690), German
jurist.

Conclusiones ad Auream Praxim Calvolt,
135.

Zoanettus, Franciscus (16th century), Italian
jurist, professor at Ingolstadt.

De Imperio Romano Eiusque Iurisdvctcone,
264. ,
Zonaras, Joannes (d. 1130), Byzantine

theologian and historian, 87.

History (Epitome Hustoriae), 86, 118, 121
(bis), 185, 253, 290, 291, 299 (bis), 314
(bis), 317, 318, 388 (bis), 400, 440, 460,
493, 506, 518, 528, 531, 535, 549, 575

577 579, 654, 703 (bis), 842.
Zosimus (sth century), Greek historian.

History (Historiae), 276, 283, 364, 368,
3975 440, 447, 518, 555, 648, 654 (ter),
703 (ter), 724,753.

SUBJECT INDEX

Abandoned property:

acquisition of, 218-9, 225-6

definition of, 223-4

presumptions of, 221-2
Abdication:

effect of, upon right to make war, 157

of throne succession, 288-9
Acceptance of promise necessary for vali-

dity, 338

Accession, Roman principle of, 306-7
Acquisition, derivative. Sze Alienation
Acquisition, original:

by law of nations, 295 ff.

character of, 206
Acquittal, right of, 250
Acts:

division of, 343

indispensable for human life, 203

of mixed character, 346

reciprocal, 343-4
Acts, permissible. Sze Permissible acts
Adoption of children, right of, 255
Adultery:

damage incurred by, 434-5

law of Christ regarding, 235
Aiding enemy. See Supplying the enemy
Air, control of use of, 190, 209
Alienation:

by legal compensation, 267-8

consent of people necessary for, 263-4

effect of, upon right to make war, 137

of right, 260

of sovereignty, 261-2

public domain not subject to, by king, 264
Alliance, unequal:

definition of, 130

leadership of, 134-5
Alliances. See also ‘Treaties:

aid rendered under, 404

breach of, 405

effect of, upon right to make war, 417

future, 415-6

of Christians, 403

renewal of, 405
Allies :

attack on, 817

breach of treaty by, 815

killing of unwilling, 723 ff

meaning of term, 415-6

share in booty, 684-5

Allodial land, succession of, 284.
Alluvial deposits:
belong to people in case of doubt, 302-3
distinguished from islands, 304.
law of nature regarding, 300-1
rights of those nearest to, 303
Roman law regarding, 299-300, 305
when property of vassals, 304-5
Ambassadors. See also Embassy; Legation
admissibility of, 440-1
defence against, 444
inviolability of, 438, 441 ff, 445-6
legal status with regard to enemy destina-
tion, 446
legal status with regard to friendly des-
tination, 445-6
' retaliation against, 447
rights of, extended to suite, 447-8
rights of, extended to movable goods, 448
safe-conduct of, 840-1
Ambuscade, threat of, and the right to kill,
174
Animals, liability of owner for damages
caused by, 437
Animals, wild:
acquisition of ownership of, 192
considered as king’s property, 297-8
ownership of, in parks, 296
possession acquired by appliances, 297
recovery of ownership of, 296-7
right to kill, 476
Aptitude, defined, 35-6
Arbitration:
to end war, 823 ff.
to obviate war, 185, 561-2
Armistice. See Truce
Arms. See Weapons
Assassins, use of, against an enemy, 653-4
Associations:
dividing and joining of opinions in, 250—1
order of rank in, 252
right of majority in, 249-50
voting In, 252-3
Asylum. See also Refuge:
granting of, to exiles, 820
Authority, civil:
acquired by war, 697-8
mixed, 699
Authority, intermediate governmental,
when held absolutely, 120

934

Subject Index

Baggage, extension of safe conduct to, 840
Bailment, gratuitous, 343
Beginnings of war, 169
Birds, acquisition of ownership of, 192
Blood relations, marriages of, 242 ff.
Booty. See also Plundering:
acquisition of, 672 ff., 684 #.
disposal of, by commanders, 675 ff.
peculation in distribution of, 682-3
Brigands, See also Pirates:
distinction between state and, 631-2
transformation of, into a state, 632-3
Brothers and sisters, illegality of marriage
of, 242
Buying and selling, right of, 203~4

Canons, synodical :
bearing of, upon law of nations, 27
Capital punishment:
a proof of the legality of war, 66-7, 69
attitude of Christian emperors toward,
85-6
legality of, 78, 84
Captives:
enslavement of, 690 ff.
escape of, 693-4
law of nations regarding, 695-6
pledges of, 853-4
property of, 691, 699-700, 843
ransoming of, 841 ff.
right to injure, 649, 650
sparing of, 737-8
Capture:
after peace, 812
of movable property, 666-7, 672 ff.
of territory, 667
Captured property. See Enemy Property
Causes of war:
distinction between just and unjust,
730-1
distinction between justifiable and per-
suasive, 546-7
distinguished from beginnings, 169
doubtful, 559 #f.
efficient, 164-5
justifiable, 169 ff.
persuasive, 547-8
Causes of war, just:
defence, 171
injury received, 170
punishment, 171
recovery of property, 171
Causes of war, unjust:
advantage apart from necessity, 549

desire for freedom among subject people,
I
desire for richer land, 550
desire to fulfil prophecies, 555
desire to obtain something not legally
owed, 555-6
desire to rule others against their will,
551
discovery of property of another, 550
effect of, upon justice of entire war,
718-9
fear of neighbouring power, 549
refusal of marriage, 550
title to universal empire of Church,
553
title to universal empire of Roman em-
peror, 551-2
Chastity:
comparable to life, 175
defence of, justifiable, 175
of celibacy, more praiseworthy than mar-
Tlage, 642
suicide to preserve, 460
Children:
of slaves, 256-7, 768
restraining, 232
right of succession of, 271-2
right of, to inherit parents’ property,
269-70
rights of illegitimate, 273, 282
rights of parents over, 231 ff.
rights of unborn, effect of abandonment
upon, 226-7
selling of, 232-3
sparing of, in war, 734-5
Christ, law of. See Law of the Gospel
Christian religion:
misinterpretation of, as a cause for war,
518-9
mistreatment of those who practise, as a
cause for war, 517-8
non-acceptance of, as a cause for war,
516-7
Circumcised and uncircumcised foreigners
distinguished in Hebraic Law, 46-8
Civil power, characteristics of, Ior
Civil war. See Rebellion
Combat, single, to obviate war, 183, 563-4
Combats, set, to end war, 820 ff.
Combatants, definition of, 839
Commanders, See also Military leaders:
right of disposal of booty by, 675 ff.
Commerce, freedom of passage for, 199-200
Commodate, definition of, 355

Subject Index

933

Community:
duration of right to inflict punishment
on, 535-6
members of, share in its crime, 534-5
responsibility of, for crime of individual,
523 ff.
responsibility of, for refuge afforded
wrongdoers, 526 ff.
Community of property:
explanation of, 186
becomes ownership by division or occu-
pation, 189
Compacts, division of, into personal and
real, 418-9
Compensation, as substitute for specific
performance, 800-1
Concubinage:
among Jews, 274
legality of, 247-8
Conduct, safe:
annulment of, 841
extension to baggage, 840
extension to persons, 840
interpretation of right of, 839-40
Conference, to obviate war, 560-1
Conflicts, documentary, settlement of,
427-8
Conjectures:
broadening the meaning of, 421-2
from effect, 412
from elements, 412
from reasonable motive, 412-3
from subject-matter, 411-2
resort to, in case of ambiguous or contra-
dictory expressions, 411
restricting the meaning of, 423 ff.
Conqueror, rights of, 319
Conquered. See Vanquished
Conquest. See Causes of war, unjust
Contracts:
classes of, 343 ff.
equality required in, 346 ff.
of kings, 383-4, 429
of kings as binding on heirs, 386-7
of kings as laws, 385-6
of usurpers as binding on kings, 390
right to make exclusive, 205
rights of, 35-6
writing as necessary element of, 428
Controversies, between citizens of allied
states, 132-3
Conventions, public, division of, 391
Corporations, right to sue members of, for
corporation debt, 623

Cousins, marriage of, 247-8

Crime:
causes of, 494-5
causes restraining, 495-6
community responsibility for, 523 ff.
distinction between occasion and cause as

regards, 538

duress as an element of, 622
fear as an element of, 173-4
inclinations toward, 497-8

Crimes against God:
as a cause for waging war, 598 ff.
punishment of, 513-4

Damages:
definition of, 430-1
effect upon contracts, 801
extent of, 431
liability for, by adultery, 434-5
liability for, by animal or vessel, 437
liability for, by civil authorities, 436-7
liability for, by deceit or fear, 435-6
liability for, by homicide, 434
liability for, by robbery, 435
liability for, by sureties, 629

- liability for, primary and secondary, 432-3
obligation to make good, 430
remission of, if caused by war, 810-11
resulting, 433-4
to Income, 431-2
to reputation and honour, 437

Debts:
cancellation of, by war, 811
liability for, of others, 623
liability of subjects for ruler’s, 624
liquidation of, under law of nature, 627
non-legal, 555-6
seizure of goods for, 626
seizure of persons for, 625

Deceit. See also Ruse:
effect of, upon liability for damages,

35-6

Declaration of war:
according to law of nature, 634-5
according to municipal law, 637-8
against enemies’ allies, 638
against violator of right of embassy, 640
conditional and absolute, 635 ff.
form of, 593
in perfect war, 624
includes subjects of sovereign, 638
interval between, and hostilities, 639-40
procedure of, among Romans, 172
reason for public, 639

934

Subject Index

Defence:
against person useful to state, 176
as just cause of war, 171
in public war, 184
of chastity, justifiability of, 175
of life, justifiability of, 175
of limb, justifiability of, 175
of property, according to Hebraic law,
180
permissibility of refraining from, 176
Dependence, mutual, between king and
subjects, III
Dependent persons. See also Subjects:
defence of, in an unjust war, 595
imposition of taxes on, for non-service in
war, 594
right of decision concerning war, 587 ff.
right of decision in doubtful cases, 590 ff.
surrender of innocent, to prevent war,

579
war in behalf of, 578
Descendants, order of succession of, 282-3
Desert places, possession of, by foreigners,
202-3
Deserters:
killing of, 647
punishment of, 160
receiving, 622
Desertion of post, penalty for, 149
Devastation :
extent of legality of, 745 ff.
of sacred enemy property, 751 ff.
Dictator, as possessor of sovereignty, 114
Disinheritance:
effect of, on succession to property, 273
effect of, on throne succession, 288
Disowning, effect of, on succession to pro-
perty, 273
Divorce, according to law of nature and law
of the Gospel, 234-5
Domain, eminent. Sze Eminent domain
Domain, public:
inalienability of, by king, 264
right of pledging, 265
Doubt:
course to be followed in case of, 559-60
influence of judgment on, 558-9
source of, in moral questions, 557-8
Duress, as an element of crime, 173-4, 622

Embassy. See also Legation; Ambassador:
admissibility of, 440
breach of right of, as a cause of war, 640

Eminent domain:
acquisition of, 219
right of subjects subordinate to, 385,
796-7, 807
Ending war:
by arbitration, 823 ff.
by lots, 820
by set combats, 820
Enemies: :
acts permissible against, 599 ff., 788-9
declaration of war against allies of, 638
definition of, 630
good faith between, 804
harming, without orders, 791
lying to, 618, 620-1
remission of punishment of, 731 ff.
right to injure, 647 ff.
seizure of goods of, on ships, 668
enforcement of right, by violence, 625-6
Enemy property:
acquisition of, under law of nations,
664 ff.
acquisition of, under law of nature, 663-4
captured in unlawful war, 778-9
occupation of, for subsequent debt,
758-9
sacred, 658 ff., 751 ff.
seizure of, for debt, 757-8
seizure of, for punishment, 758
seizure of, on ships, 668
seizure of, taken from others, 668 ff.
seizure of, tempered with humanity,
759-60
treatment of, 658 ff.
Escheat, right of, 219
Exchange, a form of contract, 345
Excuse for war, 170
Exemptions from military service, 165-6
Exiles:
illegality of State’s claim over, 254
receiving, 819-20
Extortion, obligation of restoration after,

327

Faculty, definition of, 35
Faith, good. See also Promises:
between enemies, 804
implied, 857 ff.
in war, 802-3
keeping of, 800 ff.
of private person in war, 852-3
to preserve peace, 860
with enemies, 792-3, 799-800, 851
with pirates and tyrants, 793-4, 851

Subject Index

935

ale

False accusation, threatened, extent of de-
fence against, 174
Falsehood:
character of, when unpermissible, 613-4
in commerce, 609, 613
nature of, 611-12
permissibility of, 609 ff.
permissibility of, before infants and in-
sane persons, 614
permissibility of, before third persons,
615
permissibility of, by speaker of superior
right, 616-7
permissibility of, when person wishes to
be deceived, 615-6
refraining from, more noble, 620-1
to an enemy, 618-9
to save life of innocent person, 617
unpermissibility of, in oaths, 619-20
unpermissibility of, in promises, 619
Family rights, extinguishment of, 310
Farmers, sparing of, in war, 737
Fathers-in-law, illegality of marriage of,
with daughters~in-law, 242
Fear as a cause of wrongdoing, 173-4, 622
Feudal tenure, sovereignty in, 136~7
Fiefs:
sovereignty in, 137
succession of, 284.
Fish:
acquisition of ownership of, 192
ownership of, in ponds, 296
Force:
use of, as an element of crime, 173-4, 622
use of, as punishment, 600
use of, to secure rights, 91
Foreigners:
as enemies, 646
right of, to acquire desert land, 202
right of, to acquire residence, 201-2
right to seek marriage with, 204
rights of, 204-5
Formalities:
in declaring war, 637-8
Fowling, control of, 190
Friendship:
acts contrary to, 818-9
origin of, in nature, not necessity,.177

Gain, obligation to restore, from another’s
property, 322

Garrisons, necessity of, ,for security of
victors, 772-3

Generals:
power of, over subordinates, 847-8
power of, over territory taken in war, 849
power of, to accept surrender, 850
power of, to make peace or truce, 848
God:
duties of Christians toward, 13
existence of, presupposed by natural law,
13-14 ;
generally accepted ideas concerning,
510-11
judged by right reason, 40
suspension of natural law by, 40
Goods, enemy. See Enemy property
Gospel, law of the. See Law of the Gospel
Government:
separation of powers of, 101 ff.
types of, 107 ff.
Grants, revocability of, of kings, 389-go
Guilty, sparing of, in war, 742

Harbours, ownership of, 20g-I0
Hebraic law. See Law, Hebraic
Hebrew writers, bearing of, upon law of
nations, 27
Heirs:
extension of punishment to, 544-5
liability of, 545
rights of, 319
History, bearing of, upon law of nations, 26
Holy orders, exemption of men in, from
military service, 166
Homicide, liability for damages by, 434
Honour:
liability for damage to, 437
sense of, applied to slavery, 718
sense of, things forbidden by, 716-7
Hostages:
as pledges, 856
escape of, 829
obligation of, 830-1
release of, 829-30
right to injure, 651, 828-9
selection of, 828
sparing of, 742-3
Hostile acts, distinction between public and
private, 671-2
Husband:
marriage of, with wife of another void,
23 '
power of, over wife’s oaths, 376
right of, over wife, 234.
right to sue, and wife, for debts, 623

936 Subject Index
Idolatry in Roman army, 87-8 Interregnum, in Rome, 129
Impunity: Inundation, ownership of land not lost by,
in killing women and children in war, 648 301-2
in public war, 643 ff. Inviolability, personal, of king, 151-2
in slaying deserters, 647 Islands:
of captives, 649-50 occupation of, 192
of suppliants, 650 ownership of, by law of nature, 300-1
Independence: ownership of, in Roman law, 299-300

non-permanence of right of, 229-30
Individuals, acts permissible against enemy
by, 788-9
Infants:
killing of, in war, 648
permissibility of lying before, 614
right of, regarding ownership, 208, 231
Infeudation, as conditional alienation, 263
Inheritance, kingdom as part of, 284
Injure, right to:
assassins, 653 ff.
captives, 649-50
deserters, 647
in territory of enemy, 646
innocent persons in war, 648, 733 ff.
moral justice of, 723-4
subjects of enemy, 647
suppliants, 650
unwilling allies, 723 ff.
when unpremeditated, accidental or
through ignorance, 725 ff,
women and children in war, 648, 733 ff.
Injury, as a cause of war, 170, 172, 186
Innocent persons, sparing of, in war, 733-4
Insane persons:
permussibility of lying before, 614
tight of, regarding ownership, 208
Insurance:
as a form of contract, 345
valuation of, 358
Interest:
advantages similar to, 357
civil law concerning, 358
forbidden by law of nature, 355-6
Interpretation:
broad and narrow, 413, 421-2
conjectured from effect, 412
conjectured from reasonable motive,
412-3
conjectured from subject-matter, 411—2
of ambiguous and contradictory expres-
sions, 411-2
of technical terms, 410
of words, 409-10
restricting the meaning, 423 ff.
tules regarding, 414—5

Israelites, laws of. See Law, Hebraic

Jewish law. See Law, Hebraic
Joint undertakings for maritime operations,
advantages of, 359
Just, definition of term, 38
Justice:
attributive, definition of, 37
contractual, 36
difference between attributive and ex-
pletive, 37
distributive, 37
expletive, 36
influence of consciousness of, upon war,
19-20
restorative, 37
sense of, attributed to brute creatures, 42

Kill, right to:

as alternative to escape, 179

assassins, 653 ff.

captives, 649-50

deserters, 647

in defence of limb, 175

in defence of property, by law of nature,
179

in defence of property, by law of the
Gospel, 182

in territory of enemy, 646

in war, 644-5

in war, reason for, 650-1

innocent persons in war, 648, 733 ff.

moral justice of, 723-4

robbers or thieves, 92, 476

subjects of enemy, 647

suppliants, 650

thief at night, 92

to avoid indignity, 178

to ward off blow, 178

under Jewish law, 477

unwilling allies, 723 ff.

when injury unpremeditated, accidental
or through ignorance, 725 ff,

wild animals, 476

women and children in war, 648, 733 ff.

Subject Index

937

Kings:

acts of, 381-2

as in absolute power, 115 ff.

as not absolute, 119-20

division of power of, 125 ff.

division of sovereignty of, 123-4

inviolability of person of, 151-2

legal character of contracts of, 385-6

obedience of subjects of, mandatory,
139-40

obligation of, to contracts, 383-4

obligation of, to contracts of usurpers, 390

obligation of, to oaths, 381-2

obligation of, to promises, 121-2, 383

obligation of, to refrain from war for sake
of self and dependents, 570-1

obligation of heirs to contracts of, 386

obligation of successors to contracts of,
386-7

regents for, 120—I

revocability of grants of, 389-90

right of, to make peace, 804-5

right to make war against, 156 ff.

right to make war to prevent alienation of
kingdom by, 157

yielding of right by, to avoid war, 569-70

Land, unoccupied :
occupation and ownership of, 191-2
tight of passage over, 196 ff,

Law:
as a body of rights, 35
as a rule of action, 34
as a statute, 38
effective even without sanction, 16
necessary for every association of men, 17
not founded on expediency alone, 17
not in abeyance in war, 18-19
origin of, 10 ff.

Law, divine:
definition of, 45
division of, into universal and particular,

particular, binding on Jewish people, 45

particular, not binding on non-Jews, 45-6
Law, equatorial, 35
Law, Hebraic:

given by God, 45

not binding on non-Jews, 45 ff.

not opposed to war, 57 ff., 75

on defence of property, 180

on enslavement, 103

on killing, 477

on rebellion, 140

relationship to natural law, 48 ff.
relationship to law of the Gospel, 48 ff.,
61 ff.

Law, human, division of, into three classes,

Law, municipal:
definition of, 44
distinguished from law of nations, 24
distinguished from law of nature, 24, 192
founded on natural law, 15
on injuring the enemy, 788~9
on interest, 358
on parental power over children, 233~4
on postliminy, 707-8, 713
origin of, 14-15
Law, natural. See Law of nature
Law of nations:
acquisition of property captured under,
664 ff.
definition of, 44
distinguished from law of nature, 24
distinguished from municipal law, 24
distinguished from Roman law, 28~9
early writers on, 22~3
existence of, proof of, 44
existence of, reason for, 17—18
necessity of treating, 9, 20 ff.
on assassins and spies, 654~5
on captives, 695-6
on capture, 666 ff.
on declaration of war, 634~5, 637
on enemy property, 658 ff., 664 ff.
on interval between declaration and war,
640
on prisoners of war, 690-1
on public and private hostile acts, 671-2
on rape, 656-7
on right of embassy, 438~9
on right of sepulchre, 450 ff.
on right to injure enemy, 647-8, 788-9
on sacred enemy property, 658-9
on seizure of property acquired by enemy,
668-9 ;
on use of poison in war, 651 ff.
origin of, 15
relationship of Hebrew writers to, 27
relationship of history to, 26
Law of nature:
apparent changeability of, 40
corroborated by sacred history, 14
definition of, 38
distinguished from divine law, 39, 507
distinguished from law of the Gospel, 61
distinguished from Hebraic law, 48 ff.

938

Subject Index

Law of nature (contznued)
distinguished from law of nations, 23-4, 41
distinguished from municipal law, 24,
192, 385
distinguished from national customs, 507
distinguished from volitional law, 38-9
existence of, proof of, 23-4, 42 ff.
extends to acts of the human will, 39
evident provisions of, 507-8
on acquisition of possession and owner-
ship through another, 670-1
on declaration of war, 634-5
on divorce, 234
on enemy property, 663-4
on injuring the enemy, 788~9
on interest, 355
on killing in defence of property, 179
on liquidation of debts, 627.
on marriage without parental consent,
237-8
on monopolies, 353
on occupation of movables, 207-8
on ownership of islands, 300-1
on parental power, 233-4
on polygamy, 234
on rebellion, 139-40
origin of, 13
perpetual, 49
presupposes existence of God, 13-14
reinforced by expediency, 15
rights granted by, 203
unchangeable, 40, 49
. written in hearts of men, 47
Law of the Gospel:
not opposed to war, 63 ff.
on divorce, 234-5
on the permissibility of private war, 93
on right to kill in defence of property,
182
relationship of, to Hebraic law, 48 ff., 61 ff.
relationship of, to natural law, 61
Law of war. See also Law of nations:
acts permitted by, 643 ff.
definition of, 34.
On acquisition of property captured in
war, 663-4
on right to injure suppliants, 649-50
on right to injure women and children,
648-9
on right to pillage and destroy sacred
property, 659-60
Law, rectorial, 35
Law, Roman: |
bearing of, upon law of nations, 28

on enslavement, 103
on ownership of islands, 299-300
Law, volitional:
definition of, 38
division into human and divine, 44
divine, definition of, 45
divine, promulgation of, 45
Lawful war. See War, lawful
League of Christians against enemies of
Christianity, 403
Legation, right of. Sze also Ambassadors;
Embassy:
extent of exercise of, 439-40
importance of, 449
origin of, in law of nations, 438~9
Letters of marque, 626-7
Lie.’ See Falsehood
Liege-fiefs. See Fiefs
Liquids. See Sea
Loss, distinction between direct and in-
direct, 537-8
Loss of power by king, 156 ff.
Lots, drawing of, to end war, 563,820

Majority, rule by, 249-50
Management, called pretence, by Greek
fathers, 609
Mandate, execution of, 423
Marriage:
definition of, 234
of parents with children void, 239-40
parental consent to, in law of nature,
237-8
permissibility of, 642 —,
refusal of, as a cause for war, 550
right to seek, in foreign country, 204.
validating of unlawful, 248-9
with blood relations forbidden, 242 ff.
with husband or wife of another void, 239
with other relatives, 245-6 .
Materials, mingling of. See Accession
Merchandise in transit, taxability of, 200-1
Merchants, sparing of, in war, 737
Migration, rights of people not destroyed
by, 314
Military leaders. See also Commanders:
acts of, contrary to instructions, 846-7
obligation of supreme authority for pro-
mises of, 846~7 ;
promises of, 84.5
Military service. See also War:
attitude of early Christians toward, 82 ff.
Mingling of materials. See Accession
Money, as a medium of exchange, 354

Subject Index

939

Monopolies, according to the law of nature,
353
Moses, law of. See Hebraic law.
Mothers-in-law and sons-in-law, illegality
of marriage of, 242
Movable property:
capture of, 666-7
capture of, by private act under muni-
cipal law, 673
capture of, by public act, 673-4
current rule on, 712 ff.
earlier rule of postliminy of, 712
effect of seizure of, in war, 672-3
not belonging to enemy, 688-9
possession of, prevention of, 207-8
Municipal law. See Law, municipal
Mutuum, definition of, 355

Natural law. See Law of nature
Necessity:

as a cause of war, 599-600

effect of, upon private ownership, 193

extreme, resistance in case of, 148-9
Neutrals:

duty of, toward belligerents, 786-7

property of, 783 ff. :
New Testament, relationship of, to law of

nations, 27

Oaths:

acts contrary to, 375-0

construction of, 367-8

effects of, 372

falsehood in, 619

force of, 362-3 !

hindering moral good, 368-9

in name of false gods, 371-2

in name of God, 370, 375

intelligibility necessary for, 363-4

intention necessary for, 363

obligation of kings to, 381, 382

of subject, power of superior concerning,
376-7 a

procured by fraud, obligation of, 366-7

rights acquired by, 372-3

teachings of Christ against taking of,
377-8 i,

to brigands, obligation of, 795-6

to faithless person, 374

to God alone, obligation of heirs toward,

to 77° form an act temporarily impos~
sible, 369-70 !

to perform an impossible act, 369

to perform an unlawful act, 368-9
to person not wishing to have it kept,
obligation of, 375
to pirate or tyrant, 373-4
unsworn pledges of good faith as, 380
Obedience:
to father, 587 ff.
to superiors, 141 ff., 153 ff.
to usurpers, 159
Obviation of war. See War, prevention of
Occasions for war, just, 169
Occupation:
definition of, 190-1
of movable things, prevention of, 207-8
of rivers, 208-9
twofold character of, 206-7
Officials, public, authorization of public
war by, 98-9
Offspring, ownership of, 306
Old men, sparing of, in war, 734-5
Old Testament, relationship of, to law of
nations, 27
Opinions, combination and separation of,
250-1

| Orators, relationship of, to law of nations,

26 :

Ownership:

abandonment of, 220 ff.

by infants, 208

by insane persons, 208

by prescription, 220

by usucaption, 220

community of, over soil and crops, 308

distinction of, from sovereignty, 207

obligation arising with, 320 ff.

of alluvial deposits, 299-300

of birds, 192

of fish, 192, 296

of islands, 299-300

of offsprings, 306

of séa, 190 ff.

of treasure trove, 298-9

of wild animals, 192, 296

right of private, 35, 186 ff.

termination of, 310

transfer of, in sale, 352-3

Pardon:
permissibility of, 489-90
permissibility of, after establishment of
penal law, 491-2
permissibility of, exceptions to, 491
permissibility of, prior to penal law,
490-1

940

Subject Index

Parents:
marriage of, with children void, 239 ff.
power of, by law of nature and municipal
law, 233-4
property of, right of children to, 269-70
sins of, acts of God against children for,
541-2
sins of, punishment of children for, 539-40
restraint of children by, 232
right of, to sell children, 232-3
rights of, over children, 231
Parley, good faith in, 857-8
Partnership, kinds of, 358-9
Passage, right of, over land and rivers, 196 ff.
Patronage, effect of, on independence, 132
Peace:
alienation as the price of, 805-6
duty of preservation of, §76-7
interpretation of covenants of, 808-9
obligation of people to terms of, 806-7
right to make, in a democracy, 805
right to make, in kingdom, 804
violation of, 814 ff.
Peculation in distribution of booty, 682-3
People, loss of rights of the, 310 ff.
Perfect war. See War, perfect
Permissible acts in war:
against prisoners, 761-2
against slaves, 761 ff.
against those supplying the enemy, 601 ff.
by law of nature, 599-600
during truce, 835-6
illegality and impunity of, 641 ff.
to harm enemy, 643-4
Persons, rights over, 230 ff.
Philosophy, relationship of, to law of
nations, 24-6
Pillaging, permissibility of, 680-1
Piracy, restrictions against, 215
Pirates:
distinction between people acting un-
justly and, 631-2
good faith with, 793-4
obligation of oaths to, 373~4
property captured by, recoverable with-
out postliminy, 713
Pledges:
as security for specific performance, 603
by sureties, 623
of private persons in war, 851 ff.
prohibition of taking of, in time of Jus-
tinlan, 623
Pledging of state, consent of people neces-
sary for, 263

Plot, right to kill to escape, 174
Plundering, against Christian laws, 790-1
Poets, relationship of, to law of nations, 26
Poisoning:
of enemies, permissibility of, 651-2
tight to kill to escape, 174.
Pollution of waters, 653
Polygamy, permissibility of, in law of the
Gospel and law of nature, 234
Possession. Sze also Usucaption:
acquisition of, 192
acquisition of, over wild animals by
appliances, 297
as controlling factor in case of doubt,
564-5
effect of loss of, upon ownership of wild
animals, 296-7
types of, 206-7
Possessions of subjects, liability of, for
ruler’s debts, 624
Postliminy:
acquisition of, by a people, 707
changes in, introduced by municipal law,
713
definition of, 701-2
enforcement of, current, 714-5
existence of, in peace and war, 703 ff.
non-acquisition of, by those who sur-
render, 706
origin of term, 701
practice of, among non-enemies, 713-4
recoverability without, 713
recovery of rights by, 705-6
recovery of slaves by, 709-10
recovery of subjects by, 710
recovery of territory by, 711
regarding movable things, 712
under municipal law, 707-8
Power:
by contract, 35-6
over oneself, 35
over others, 35
over property, 35
Prescription. See Usucaption
Pretence, permissibility of, 607 ff.
Pretexts for war, 169
Prevention of war. See War, prevention of
Price, estimation of, 351-2
Priests, sparing of, in war, 736-7
Primogeniture, right of, 280
Prisoners of war:
acts permissible against, 761-2
enslavement of, under law of nations,

690-1

Subject Index

945

Prisoners of War (continued)
permissibility of capture of, 761
pledges of, 853-4
power over, 691
ransom of, 769
return of, by postliminy, 703-4
sparing of, 737-8
unpermissibility of killing innocent, 763

Private war. See War, private

Proclamations, public, of war, 603

Promises:
acceptance of, 338
acquisition of right by, 330-1
bare assertions not, 330
by proxy, 340
confirmation of, by oaths, 797-8
division of, 413-4
for act of another, 342
in person, 336-7
in war, 798-9
invalidation of, by misapprehension,

333-4

legal effects of, 330

liability for damage caused by, through
deceit or fear, 435

liability of owners for, of ship captains
and business agents, 337-8

moral effects of, 328-9

obligation of, invalid, 341

obligation of king for, 381-3

obligation of promisor, 409

perfect, 332-3

possibility of execution of, 335

revocability of, 338 ff.

through agency of others, 337

through fear, 334-5, 795-6

to do illegal act, 335-6

to obtain thing already due, 336

to subjects under right of eminent do-
main, 796~7

to third persons, 798

to tyrants and pirates, 793-4.

without cause, 341-2

Property:

acquisition of, under law of nations and
municipal law, 808

ancestral, ownership of, where there is no
will, 275 ff.

classification of, 186

community of, among American tribes
and Essenes, 187

first division of, 189

liability for surrendered, in arranging
peace, 807

obligation to restore, to owners, 320~I
of captives, 691, 699-700
private origin of, 186
redemption of, 831
responsibility for, lost in war, 807-8
seizure of, 599-600
seizure of, in war, 667-8
Property, enemy. See Enemy property
Puberty, parental control of children
during, 232
Public domain. See Domain, public
Public war. See War, public
Punishment:
acts non-injurious to human society not
subject to, by man, 489
advantage of, 469-70
causes for suspension of, 492-3
definition and origin of, 462-3
degree of, 600, 795
determination of, 465-6
effect of circumstances of crime upon,
502
exclusion of repentance by infliction of,
483-4
for crimes against God, 513-4
for impiety to gods, 521
harmonic proportion of, 499-500
implied remission of, 859
in the law of the Gospel, 478 ff.
infliction of, as a just cause of war, 171,
502 ff.
infliction of, method of, 466-7, 470 ff.
internal acts not subject to, by man, 487
measure of, 494, 498-9
mitigation of, clemency in, 501-2
mitigation of, in regard for others, 500
of children for parents’ sins, 539 ff.
of heirs, §44—5
of individuals for another’s crimes, 539
of individuals for community’s wrong,

5

of individuals for good of the whole,
475 t.

of pirates and tyrants, 794-5

of rebellious subjects, 796

of relatives of wrongdoer, 543

of subjects for king’s wrongs, 543-4

opportunity to sin may urge its, 500

rejection of incomplete classifications of,
484-5

relation of, to expletive justice, 463-4

remission of, 731 ff., 811, 859

right of executioners to inflict, by divine

law, 486-7

942

Subject Index

Punishment (contenued)

right to inflict, by private persons, 485-6,
SII

right to inflict, on a community, 535-6

sharing of, without sharing crime, 537

sharing of, with those sharing in crime,
522

superior strength of one exacting, 574-5

unavoidable acts not subject to, by man, |

488
yielding of right to inflict, to: prevent
war, 568-9

Ransom:
of prisoners, 769, 841 ff.
prohibition of, 842
Rape:
defence against, permissibility of, 175
distinction in Hebraic law between, in
country and city, 181
permissibility of, in war, 656-7
Rebellion:
in case of necessity, 148-9
in self-defence, 151
unpermissibility of, by early Christians,
144-5
unpermissibility of, for subordinate offi-
cers, 146 ff,
‘unpermissibility of, in general, 139
unpermissibility of, in Hebraic law, 140
unpermissibility of, in the law of the
Gospel, 141
Recovery of property, as a Just cause of war,
171
Redemption of property after loss, 831
Refuge, responsibility of community for,
afforded wrongdoers, 526 ff.
Regents:
modes of appointment of, 120-1
necessity for appointment of, 137
right of, not revocable, 114
Religion, deprivation of, as a result of con-
quest, 776
Renting, rules of, 354-5
Reparation. Sze also Property, recovery of;
Restitution; Restoration:
effect of, on defensive war, 185
Repentance, exclusion of, by punishment,
483-4
Reprisals. Sze Withernam; Letters of
Marque
Reputation, liability for damage to, 437
Responsibility for war, 729-30

Restitution. See also Property, recovery of;
Reparation; Restoration:
in unjust war, 719-20
obligation to make, for war, 719
Restoration. See also Property, recovery
of; Reparation; Restitution:
agreement to make, 810
in doubtful cases, 782
in war, 195-6
obligation of, cessation of, 781-2
of another’s property, after destruction,
324
of another’s property, after extortion, 327
of another’s property, after gift, 325
of another’s property, after purchase, 326
of another’s property, after receipt for
shameful cause, or obligated service,
327
of another’s property, after sale, 325
of another’s property, origin of obliga-
tion, 320-1
of gain from another’s property, 322-3
of income from another’s property, 324
of peoples, 781
of property of unknown ownership, 326
of property unlawfully taken by enemy,
778 ff.
of things captured in war, 812-3
of things used in necessity, 195
Right to make war. Sze War, right to make
Rights:
arising from origin and causes of war, 600
consequent to war, 600-1
definition of, 35
disputed, in abeyance during war, 811-2
distinction of, from manner of possessing
them, 113-14
division of, 35-6
legal, 35
not lost by lapse of time, 230
obligation to yield, to prevent war, 567 ff.
personal, 35
private, 36
public, 36
real, 35
to acquire necessities, 203
Rights of people:
division of, if divided, 315-6
extinction of, when body of people is
broken up, 313
extinction of, when essential parts are
destroyed, 312-3
extinction of, when form of organization
is destroyed, 313

Subject Index

943

Rights of people (continued)
extinction of, when people ceases to
exist, 310-11
non-extinction of, by change of govern-
ment, 314-5
non-extinction of, by migration, 314
non-extinction of, if joined to others, 315
River beds, ownership of, 303-4
Rivers:
acquisition of, by occupation, 208-9
effect of change in bed of, on jurisdiction,
217-8
effect of change in course of, on juris-
diction, 216-7
ownership of, 209-10
tight of passage over, 196 ff.
Robbery, liability for damage by, 435
Roman Empire, possessor of the rights of
the, 316-7
Roman law. See Law, Roman
Ruse or deceit in war:
in a negative action, 607
in a positive action, 607 ff.
permissibility of, 605-6
refusal to resort to, 621
seizure of enemy property by, 662

Sacred property ofenemy. See Enemy pro-
_perty |
Saints relationship of, to law of nations, 28
ale:
completion of, 352-3
inequality in terms of, 360~1
Sanhedrin, organization and purpose of,
127-8
Schoolmen, relationship of, to law of
nations, 28
Scripture, Holy, relationship of, to law of
nations, 26-7
Sea:
acquisition of part of, in Roman times,
209-10, 212 ff.
non-susceptibility of, of private owner-
ship, 190-1, 209 ff.
right of passage over, 196 ff.
tax on navigation of, 214-5
Seizure:
distinction under municipal law and law
of nations, 628-9
of goods for debt, 626
of persons for debt, 625-6
of persons, limitations upon, 628
of persons, sureties for, 629

1569.27

Self-defence:
as a just cause of war, 172
in civil law, 183
permissibility of, against actual aggressor,
17
permissibility of, when danger is imme-
diate and certain, 173
right of, origin of, 172
tights and limitations of, in war, 600-1
Sepulchre, right of:
for public enemies, 455-6
in case of criminals, 457
in case of suicides, 458 ff.
origin in law of nations, 450 ff.
Shores of sea, ownership of, 209-10
Simplicity of man in state of creation, 187
Single combat. See Combat, single
Slaughter of people, obligation to prevent,
573-4
Slavery:
kinds of, 258
voluntary, 103-4
Slaves:
acts permissible against, under moral jus-
tice, 761 ff.
children of, 256-7, 768
escape of, 693-4, 768
exemption of, from military service, 166
obedience of, 588-9
persons captured in war considered as,
690-1
recovery of, by postliminy, 709-10
resistance of, of master, 695
tight over, 255-6
right to make, 718
savings of, 765 ff.
seizure of possessions of, 699
Sojourn, temporary, right of, 201
Sovereignty:
absolute, 115 ff.
acquisition of, 770
acquisition of, by long possession of
abandoned property, 227-8
acquisition of, over part of sea, 212-3
alienation of, 261 ff.
alienation of, for peace, 805-6
definition of, 103-4
disputes concerning, settlement of, 163
distinction of, from ownership, 207
division of, into subjective or potential,
123 ff.
exercise of, by one bound by feudal law,
136-7
exercise of, by one who pays tribute, 136

944

Subject Index

Sovereignty (contznued)
illimitability of, by promises, 121
in case of usucaption, 228-9
location of, 112
location of, in unequal alliance, 130 ff.
loss of, by wrong-doing, 176
mixed, 125 ff,
non-absolute, 119
popular refutation of theory of, 103-4
right of, as distinguished from exercise of,
137-8
termination of, 310
Spies, right to kill, 655
Spoils. See Booty
Sponsions:
distinction of, from treaties, 391-2
effect of knowledge and silence upon obli-
gation of, 407-8
obligations of signers of, 405
of Caudine Forks, 405-6
State of nature, 187
State:
illegality of claim of, on exiles, 254
legality of withdrawal from, 253-4
tight of, over subjects, 253
Status quo ante bellum, 809-10
Subjection:
public rights gained by, 258
resulting from crime, rights gained by,
259
Subjects. See also Dependent persons:
liability of, for ruler’s debts, 624
rebellion by, in law of nature, 139
war against, by sovereign, 138
Succession:
agnate lineal, 286-7
by nearness of relationship to first king,
286-7
cognate lineal, 285-6
decision in case of doubt regarding,
289-90
effect of disinheritance upon, 288
effect of abdication upon, 288-9
in fiefs and allodial land, 284-5
in hereditary kingdoms, 279 ff.
intestate, origin of, 269
laws concerning, 278-9
order of, 271-2, 290 ff.

Vicarious, 272-3 ;
Suppliants:

protection of, pending hearing, 533-4

right to injure, 649-50

Tights of, 530

sparing of, 739-40

Supplying the enemy:
acts permissible against those, 6o1 ff.
treaties prohibiting, 603-4

Sureties, prohibition of, or pledge-taking,

623

Surrender:
conditional, 828
duty towards those who, 826 ff.
force of, 825-6
power of general to accept, 850
sparing of those who, 739-40

Taxation:
on merchandise in transit, 200-1
on those using sea, 214~5
Territory:
acquisition of captured, 667
captured, ownership of, 672
disposability of, by general, 849
recoverability of, by postliminy, 710-11
Thief by night and thief by day, distinction
between, 180
Transit, right of. See Passage, right of
Treasure trove, ownership of, 298-9
Treaties. See also Peace; Truce:
application of, to usurper, 420
classification of, 393-4
continuance of, after king’s expulsion,
420
differentiation of terms of, 817-8
distinction between personal and real,
418-9
distinction of, from sponsions, 391-2
equal, 394-5
implied approval of, 859
power to make, 804 ff.
restricting navigation, 215-6
sanction of, by oath, 797-8
unequal, 396-7
violation of, 814 ff.
with infidels, 397 ff.
Tributes, exaction of, from vanquished, 773
Truce. See also Peace; Treaties:
acts of citizens to violate, 839
acts permissible during, 835-6
definition of, 832 ff.
duration of, 834-5
obligation of, 835
return of person held by force majeure
after, 837
special agreements in, 838
violation of, by one side, 838
Tyrants, maintenance of good faith with,
193-4

Subject Index

945

Unfairness, as a just cause of war, 170
Unjust, definition of, 34
Unjust wars. See Wars, unjust
Use of another’s property:
in case of necessity, 193 ff.
in case of war, 195
innocent, 196
restoration after, 195
Useless fighting, obligation to avoid, 743-4.
Usucaption or prescription:
objections to, 224-5
obligation of sovereign power regarding,
228-9
right of, 220 ff.
Usufruct, king’s right of, 114, 116
Usurpers:
limitation of resistance against, 161-2
obligation of obedience to extent of, 159
resistance of, by mandate of sovereign,
161
resistance of, by pre-existing law, 160
right to resist, 160

Vanquished :
change in form of government of, 774
clemency towards, 776-7
degree of liberty left to, 775-6
moderation in exercising sovereignty
over, 770 ff.
Vengeance, prohibition of, extent of,
467-8, 478
Vessels, liability of owner for damage caused

by, 437 .
Vice, as conceived by Greek philosophers,

as conceived by Greek philosophers,
25-26
defence of, permissibility of, 175
Voting:
in associations, 249 ff.
pro rata, 252-3

War:

apparent opposition of Holy Writ to,
explanation of, 70 ff.

as the enforcement of rights, 18
attitude of early Christians toward, 81 ff.
definition of, 33-4
division of, into public and private, 91
evils of, 576-7

influence of consciousness of justice upon,

19-20

not against Hebraic law, 57 ff.
not against law of nations, 57
not against law of nature, proved by
reason, 51 fi.
not against law of nature, proved from
general agreement, 55-6
not against law of nature, proved from
sacred history, 54-5
not against law of the Gospel, 63 ff.
origin of word, 33-4
perfect, method of declaration of, 624.
prosecution of, within bounds of law and
good faith, 18
resort to, time for, 575-6
War, causes of. See Causes of war
War, end of:
by arbitration, 823 ff.
by lots, 820
by set combats, 820
War, prevention of:
by arbitration, 561-2
by conference, 560-1
by lot, 563
by single combat, 563-4
War, prisoners of. See Prisoners of war
Wars, just:
occasions for, 164
possibility of justice on both sides of,
565-6
Wars, lawful:
declaration of, 633-4
defined, 630
limitations in, 722-3
Wars of robbers, persuasive causes of, 547-8
Wars of savages, lack of cause for, 547
Wars, private:
defence of, 92
legality of, 91
permissibility of, in the law of the Gospel,

93
Wars, public:

declaration of, 633

definition of, 630

effects of, 641

formal, 97

include permission with impunity, 643-4

less formal, 97-8

relation of, to private wars, 791

right to booty in, 689

support necessary for, 633

unjustifiability of, by one giving just
cause, 185

unjustifiability of, to weaken neighbour’s
power, 184

946

Subject Index

Wars, public (continued)

unjustifiability of, without cause, 170

waging of, by authority of public official,
98-9

Wars, punitive:

for crimes against God, 509 ff.

injustice of, against those unwilling to
accept Christian religion, 516-7

injustice of, against those who misinter-
pret divine law, 518-9

justice of, against those who show im-
piety toward gods, 521

justice of, against those who treat Chris-
tians cruelly, 517-8

Wars, religious:

for crimes against God, 508 ff.

injustice of, against those unwilling to
accept Christian religion, 516-7

injustice of, against those who misinter-
pret Christian doctrines, 518~9

justice of, against those who mistreat
Christians, 517~8

War, right to make:

against king who abdicates, 157

against king who alienates kingdom, 157

against king who has lost kingdom by vio-
lation of commissory law, 158

against king who is enemy of his own
people, 157-8

against king who possesses only part
sovereignty, 158

against ruler who violates laws, 156

where people have reserved right of resis-
tance, 158-9
Wars, unjust:
payment of tax in lieu of service in, 594
penalty for engaging in, 600, 718-9
restitution in, 719-20
right of subjects to refuse to serve in,
587 ff.
service in, justice of, 595
Water, running. See also Sea:
passage over, 196 ff.
tight to use, 196, 209
Waters:
poisoning of, prohibition of, 652-3
pollution of, prohibition of, 653
Weapons:
poisoning of, prohibition of, 652-3
supplying enemy with, 602
ife:
marriage of, with husband of another
void, 239
oaths of, power of husband over, 376
tight of husband over, 234
tight to sue, and husband, for debts, 623
Wild animals, ownership of, 192
Wills:
right to make, 265-6
transfer of sovereignty by, 117-8
Withernam, definition of, 623, 626
Women and children:
permissibility of killing in war, 648
sparing of, in war, 601, 734-5

THE CLASSICS OF INTERNATIONAL LAW

This series, which includes the classic works connected with the history and development
of international law, was undertaken by the Carnegie Institution of Washington in 1906, at the
suggestion of Mr. James Brown Scott, then Solicitor for the Department of State, under whose
supervision as General Editor the series has since been published. On January 1, 1927, the
project was transferred to the Carnegie Endowment for International Peace and the publication
of the series is being continued by the Endowment’s Division of International Law, of which the
General Editor of the Classics is the Director.

The republication of these classics has been undertaken principally on account of the difficulty
of procuring the texts in convenient form for scientific study. The text of each author is repro-
duced photographically, so as to lay the source before the reader without the mistakes which
creep into a newly printed text. An introduction 1s prefixed to each work, giving the necessary
biographical details concerning its author and stating the importance of the text and its place in
international law. Tables of errata in the original are added when necessary, and notes to clear
up doubts and ambiguities or to correct mistakes in the text are supplied. Each of the Classics
is specially edited by an expert in international law and is accompanied by an English version
made expressly for the series by a competent translator.

The following works have appeared and are now on Sale. The price is indicated for each
work. They can be obtained by remittance to the publishers, either the Clarendon Press, Oxford,
England, or the Oxford University Press, American Branch, 35 West 3and Street, New York,
N.Y., who are the regular selling agents for the Clarendon Press in the United States,

Ayala, Balthazar: De jure et officiis bellicis et disciplina militari. Edited by John
Westlake. 2vols. Washington, 1912, [No.2 ofthe series.] Price, $7.00.
Vol. I. A Photographic Reproduction of the Edition of 1582, with portrait of Ayala, Intro-
duction by John Westlake, &c. xxvii + 226 pages.
Vol. Il, A Translation of the Text, by John Pawley Bate. xi+250 pages.

Bynkershoek, Cornelius van: De dominio maris. tvol. New York, 1923. 108+80 pages.
(No. 11 of the series.] Price, $2.00.
1. Introduction by James Brown Scott.
2. A Translation of the Text, by Ralph Van Deman Magoffin.
3g. A Photographic Reproduction of the Edition of 1744.
4. An Index of Authors Cited and a List of Errata in the 1744 edition, by Herbert F. Wright.

Gentili, Alberico: De legationibus libri tres. 2 vols. New York, 1924. [No. 12 of the
series.| Price, $5.00.
Vol. I. A Photographic Reproduction of the Edition of 1594, with an Introduction by Ernest
Nys, and List of Errata. 38a+xvi+233 pages.
Vol. II. A Translation of the Text, by Gordon J. Laing, with Translation (by E. H. Zeydel)
of Introduction by Ernest Nys, and an Index of Authors Cited by Herbert F. Wright.
38a +x+208 pages.

Gentili, Alberico: Hispanicae advocationis libriduo. 2vols. New York, 1921. [No.9
of the series.] Price, $5.00.
Vol. I. A Photographic Reproduction of the Edition of 1661, with an Introduction by Frank
Frost Abbott anda List of Errata. 44a+xvi+274 pages.
Vol. II. A Translation of the Text, by Frank Frost Abbott, with an Index of Authors by
Arthur Williams, 12a+x +284 pages.

Grotius, Hugo: De jure belli ac pacis libri tres. a vols. [No.3 of the series.] Price, both
volumes, 24 guineas in Great Britain, $12.50 in United States ; Vol. II only, 1% guineas
in Great Britain, $7.50 1n United States; Vol. I nossold separately; Vol. II consists of
three books, each bound separately.

Vol. I. A Photographic Reproduction of the Edition of 1646, with a portrait of Grotius.
Washington, 1913. xxiv + 663 pages. |

Vol. II. A Translation of the Text, by Francis W. Kelsey, with the collaboration of Arthur E. R.
Boak, Henry A. Sanders, Jesse S. Reeves, and Herbert F. Wright, with an Introduction
by James Brown Scott, Indexes, and List of Editions and Tianslations. Oxford, 1925.

Legnano, Giovanni da: De bello, de repraesaliis et de duello. Edited by Sir T. Erskine
Holland. xvol. Oxford, 1917. xxxiu+458 pages. [No. 8 of the series] Out of print.

1. Collotype of the Bologna Manuscript of area 1390, with Extended and Revised Text ot
Same, Introduction, List of Authorities Cited, &c, by Sir T. Erskine Holland, together
with Photograph of Legnano’s Tomb.

2, A Translation of the Text, by J. L. Brierly.

3. A Photographic Reproduction of the First Edition (1477).

Rachel, Samuel: De jure naturae et gentium dissertationes. Edited by Ludwig von Bar.
2vols, Washington, 1916. (No. 5 of the series.] Price, $4.00.

Vol. 1. A Photographic Reproduction of the Edition of 1676, with portrait of Rachel, Intro-
duction by Ludwig von Bar, and List of Errata. 16a+X+335 pages.

Vol. II. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited.
16a + iv + 233 pages.

Textor, Johann Wolfgang: Synopsis juris gentium., Edited by Ludwig von Bar. 2 vols.
Washington, r916. | No. 6 of the series.] Price, $4.00.

Vol. I]. A Photographic Reproduction of the First Edition (1680), with portrait of Textor,
Introduction by Ludwig von Bar, and List of Errata, 28a+vi+148+ 168 pages.
Vol. Il. A Translation of the Text, by John Pawley Bate, with Index of Authors Cited.
26a + V+ 349 pages,
Vattel, E. de: Le droit des gens. 3 vols. Washington, 1916. [No. 4 of the series.] Price,
$3.00,

Vol. J. A Photographic Reproduction of Books I and II of the First Edition (1758), with
portrait of Vattel and Introduction by Albert de Lapradelle lix+541 pages.

Vol. Il. A Photographic Reproduction of Books III and IV of the First Edition (1758).
xxiv +376 pages.

Vol. III. A Translation of the Text, by Charles G. Fenwick, with Translation (by G. D.
Gregory) of Introduction by Albert de Lapradelle. lxxxviu +398 pages,

Victoria, Franciscus de: Relectiones: De indis and De inure belli. Edited by Ernest Nys.
1 vol. Washington, 1917. 500 pages. [No.7 of the series] Price, $3.00.

1. Introduction by Ernest Nys, and Translation of Same, by John Pawley Bate.
2. A Translation of the Text, by John Pawley Bate.

3. Revised Text, with Prefatory Remarks, List of Errata, and Index of Authors Cited, by
Herbert F, Wright.

4. A Photographic Reproduction of Simon’s Edition (1696).

Zouche, Richard: Juris et judicii fecialis, sive juris inter gentes, et quaestionum de
eodem explicatio. Edited by Sir T. Erskine Holland. 2 vols. Washington, 1911.
[No. 1 of the series.] Price, $4 00.

Vol. I. A Photographic Reproduction of the First Edition (1650), with Introduction, List of
Errata, and Table of Authors, by Sir T, Erskine Holland, together with portrait of Zouche.
XVi + 204 pages.

Vol. II. A Translation of the Text, by J. L. Brierly. xvii+ 186 pages.

(Jn Press)

Pufendorf, Samuel von: De officio hominis et civis juxta legem naturalem libri duo.
2 vols. [No. 10 of the series. ]

Vol. I. A Photographic Reproduction of the Edition of 1682, with an Introduction by Walther
Schucking.

Vol. II, A Translation of the Text, by Frank Gardner Moore, with Translation of Introduction
by Walther Schiicking.

Wolff, Christian von: Jus gentium methodo scientifica pertractatum. [No. 13 of the series. ]
1. Introduction by Otfried Nippold, and Translation of Same by Francis J. Hemelt.
2. A Translation of the Text, by Joseph H. Drake,
3. A Photographic Reproduction of the Edition of 1764.

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