..V
jV
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 Institute of International Lazv President of the American Institute of International Law
DE JURE BELLI AC PACIS LIBRI TRES
By Hugo Grotius
Vol. I. A Photographic Reproduction of the Edition of 1646, with a Portrait of Grotius.
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.
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This volume with Volumc |
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No. 3 of 'The Classics |
of lnterna- |
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tional Law'. A list of |
the numhers |
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abeady published is given |
at the end |
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oj ihis volumt. |
i.nfernal.
DE JURE BELLI AC PACIS
LIBRI TRES
BY
HUGO GROTIUS
VOLUME TWO
THE TRANSLATION BOOK III
By Francis W. Kelsey
WITH THE COLLABORATION OF
ARTHUR E. R. BOAK, HENRY A. SANDERS, JESSE S. REEVES and HERBERT F. WRIGHT
AND AN INTRODUCTION BY
JAMES BROWN SCOTT
OXFORD : AT THE CLARENDON PRESS
LONDON : HUMPHREY MILFORD
1925
Printed in England
At the Oxford University Press
By John Johnson
Printer to the University
[424l HUGO GROTIUS
ON
THE LAW OF WAR AND PEACE
BOOK III
^S^-2! s s 597
CHAPTER I
GENERAL RULES FROM THE LAW OF NATURE REGARDING WHAT
IS PERMISSIBLE IN WAR ; WITH A CONSIDERATION
OF RUSES AND FALSEHOOD
I. — The 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,1 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.
II. — The first rule : In war things which are necessary to attain the end in view are permissible. This is 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 Boniface: '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 Letiers, ccv [clxxxix. 6] : ' Be therefore a man of peace, even when engaged in war.'
Regarding the maintenance of justice in waging war, [437] there is an excellent discourse of Belisarius to his soldiers in Procopius, Vandalic War, I [I. xvij. 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 cr victory a bloody vengeance.'
1569-27 S S 2 599
Victoria, De Iure Belli, no. 15.
[II. i. 3.]
Victoria, De Iure Belli,
nos. 18, 39, and55-
600 On the Law of War and Peace [Booklll
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
ii. ii. io. 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
Syivester, which has been disturbed can in no other way be restored.
7um,\!1 3- Where therefore the punishment is just, all use of force
no. 10, 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 is to be viewed as arising not only from the origin of the war but alsofrom 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 [Repubik, injustice which lies in their action. For this reason Plato approves 47xb.i" °f 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 is added
i. In the third place, it must be observed that in addition to victona, the right of action many things follow indirectly, and beyond the no'.i7.' purpose of the doer,1 for which in and of themselves a right would [ii. i. 4] not exist. We have explained elsewhere how this may occur in a case
* See on this point Thomas Aquinas, II. i, qu. 73, art. 8 ; Molina, tract. ii, disp. 121«
Chap. 1] Rules regarding what is Permissible in War 601
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 kill 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 is 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.
[II. xxi. 14.]
V. — What is permissible against those who furnish supplies to our enemies is 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
602
On the Law of War and Peace
[Book III
Procopius,
[On Bene-
fiis, VII. xx.]
On Duties,
I. XXX
[144].
[II.ii.6.]
Dccretals, V. vi. 6 and 17.
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 times, as money, provisions, ships, and naval equipment.1
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 2 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.
Designatedby the Athenians anopprjra ; that is, ' thingsof which theexport is forbidden',rope, water-skins, timber, wax, and pitch. See the Scholiast on Aristophanes' Clouds [rather Frogs, line 365], and Knighls [line 282].
1 See Paruta, Book VII.
Chap. 1] Rules regarding what is Permissible in War 603
If he wlio furnishes supplies has not yet caused me injury, but has wished to do so, I shall have the right, through the retention of Syivester, his goods, to oblige him to give security for the future, by means of ^tftutio hostages, by pledges, or in some other way. pt. m,
If, moreover, the injustice of my enemy toward me is palpably § I2, 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 x to other peoples, with
1 See the examples in the joint war against the Egyptians, Saracens, and others ; Decretals, I. xxxvi. n ; V. vi. 11 ; Extravagantes, viii. un. ; Extravagantes Communes, V. ii. i.
There has been published in Italian a book called Consolato 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 poit 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 allies 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 indiscriminately 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. xlii, 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 f or 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 right, but in different ways, and having in view rather a temporary 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
604 On the Law of War and Peace [Booklll
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 Dutch History, and by the Englishman Camden for the following year. However, when the English had themselves become enemies of the Spaniards and were interfering with the exercise of the right 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, it appears that the English had availed themselves of such interference without any clear right. 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 Spain 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 certain 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 plundering 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 Spaniards ; if, nevertheless, the nations should not do this of their own accord, it was decided that yessels 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.
In the same year it happened that certain men sailed from Hamburg for Spain in a ship laden 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 Lubeck decided that it would not obey the proclamation made by the city of Danzig, forbidding them to carry on trade with Malmo 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.
In 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 Spain being at war. See the speech of Louis Servin, one time royal advocate, delivered in 1592 in the case of citizens of Hamburg.
But the same Dutch did not permit merchandise to be brought by the English into 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 Schutz narrates in his Prussian History. Add Cabedo, Decisiones, xlvii. 2, and Seraphinus de Freitas in his book On the Just Asialic Empire of the Portuguese, where he cites various others.
Chap. 1] Rules regarding what is Permissible in War
605
unable to find anything established by the volitional law of nations x 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 2 of a ship that attempted to carry in grain ; having in this way deterred others he made himself master of the city.
Plutarch, Demetrius [xxxiii = p. 904 E].
VI. — Whether 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 3 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, Histories, XCVI [XCVI. xv] ; and Camden, besides the places previously cited, on the years 1589 and 1595, where the dispute between the English and the Germans, who are called Hanseatics, is discussed.
2 Not very different is the incident related of Pompey by Plutarch in his History ofthe Mithridatic War [Life of Pompey, xxxix = p. 639 e] : ' He placed guards at the Bosphorus to watch for any traders who might sail in ; for those who were caught the penalty was death.'
3 So says Virgil also, Aeneid, XI [XI. 515], and Sallust, who is cited by Servius.
[Cf. Ho-
mer,
Odyssey,
I. 296 ; Stobaeus, liv. 46.] [Isthmaean Hymns, iii. 69.]
[A eneid,
II. 390.]
Lucian,
Philo-
pseudes
[begin-
ning]..
Xen.,
Training
of Cyrus,
I[vi.29f.];
and On
Horseman-
ship [The
Cavalry
Com-
mander,
V.9].
6o6
On the Law of War and Peace
[Book III
Thuc, V[ix]. Plutarch, Apolh.
[=P- 209 b]. Polybius, IX [xii]. V [100]. Plutarch, Marcellus [xxii=p. 311 B]. [Lysander, vii=p. 437 a.] [Philo-
xiii=p. 363 e-]
[xvn.
v. 6.]
Dig. IV. iii. 1. §3-
XLIX.xv. 26.
On Joshua, qu. x [On Hepta-
Uuch, VI.
x].
Onthe
Priest-
hood,
I [viii].
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 ; x 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 2 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 6 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 Iliad. 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 [Aeneid, XII. 336], in the following of Mars are :
Wrath and ambuscades. Thereon Servius comments : ' He shows that he is accompanied not only by valour, but also by stratagems.'
* 1'lutarch compares him to Sulla, in whose soul Carbo used to say there were a lion and a fox [Sulla, xxviii = p. 469 E].
Chap. 1] Rules regarding what is Permissible in War
607
VII. — 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,1 ' 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,2 especially for those to whom the care of the state is entrusted.
The narrative of Jeremiah (Jeremiah, chap. xxxviii) ofTers 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 3 in concealing his marriage and calling Sarah his sister, that is, according to the usage of the time, a near relative.
VIII. — Deceit in a positive action falls under two heads : deceit exhibited in actions not limited in significance, and that exhibited in actions the significance of which is, as it were, Jixed by agree- ment ; it is shown that deceit of the former sort is permissible
1. 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
Against Lying, x ; Thomas, II. ii, qu. 40, art. 3, ans. to obj., and qu. 71, art. 7 ; Sylvester, word bellum, pt.
I, no. 9. Cicero, For Milo [xxiv. 65]; Letters, VII. ix [X. viii. 4]; For Gn. Plan- cius [vi. 16].
Genesis, xx ; Thomas,
II. ii, qu. 110, art. 3, ans. to obj.
1 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, II. xxiii. 2 [II. xxii. 2. 14].
2 See Chrysostom, On the Priesthood, I [I. viii. end].
3 ' He wished the truth to be concealed, but not to utter a lie ' : Augustine, On Genesis, qu. xx [On Heptateuch, I. xxvi], quoted by Gratian, in the aforementioned Decretum, II. xxii. 3 [II. xxii. 2. 22].
1569.27 T t
608 On the Law of War and Peace [Booklll
superioritv 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 po> lificance merely by agreement.
ilar to these signs are those characters which, as Paul the juri J do not express words formed by the tongue but ob-
jects themselves, either from some resemblance, as in the case of hieroglvphic signs, or by mere arbitrary convention, as among the Chinese.
2. 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
on inur> of expression under a mutual obligation ; as Aristotle called it, 1 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.3 [429] I am speaking of what is intrinsic, not of what is incidental. And so we must give an example, in which no harm follows as a consequence,4 or in which the harm itself, without consideration of the deceit, is permissible.
Luiu, 3. An example of the former case is found in Christ, who in
xxiv. 28. 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
Mmk, vi. 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 weli aware that the Jews would interpret this as though the injunction of circumcision, which had in fact already
1 Pliny, on the nation of the Ethiopians, [Nalural History,} VI. xxx, says : * Some of them use
iings of the head and movements of the limbs instead of speech.' See Decretals, IV. i. 25.
', he says, 4 bound by the form of the letters, but by the speech vvhich the letters exnress, 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 bv the tongue.' In a truly philosophic spirit has he said ' it is agreed', in OTder to show that these things have force * by convention' (U awdriK^).
• See Augustine, On Christian Doctrim, II. xxiv [II. xxxiv].
4 As in the deed of Michal, 1 Samuel, xix. 16.
3
Chap. 1] Rules regarding what is Permissible in 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 f rom the error, which followed f or 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 c manage- ment \x 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.
4. 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.
[Stromata, VII. ix.]
Livy, V
[xlviii. 4].
Joshua, viii ;
Sylvester, word bel- lum, pt. i, no. 9.
IX. — The difficulty of the inquiry in resfiect to the second sort of deceit is 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 d-rrnTT], that is, ' deceit', according to Chrysostom in the work previously cited, On the Prieslhood, I [I. ix].
The same author comments as follows On First Corinthians, iv. 6 [Homily XII, 1] : ' 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.
T t 2
6io
On the Law of War and Peace
[Book III
Creusa, in Stobaeus,
>Menan- der, in Stobaeus, xii. i6a.]
[Xicom. Ethics,
IV. xiii.]
[On Lying, i. i and xviii. 38.] Plato, Re- public, 1, II and V.
Socratcs,
morab.,lV.
irch, Contrad. of Stoics
: = p. 1055.
tilian, XII i [38].
VII. iii;
■
II % IV. x
Ethics,
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, iii. 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.
totle 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 cur<
1 Irenaeus learned from the tnstniCtion "f U ancient presbyter, and taught that : ' We should not become accusers in thin^s which the Scriptures simply state, but do not censure.' The passage is in Book IV, chap. 1 [IV. xxxi].
Chap. 1] Rules regarding what is 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 I may judge, can cause no detriment.
In Sophocles, wThen 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, I 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 ' ; x and on this point he adduces evidence from Herodotus and Isocrates.
[Philo> ctetes, 108 f.]
X. — Not every use of an expression, which is knozvn to he taken in another sense, is unpermissible
1. Perhaps we may fmd 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 nct understand as a falsehood what an ignorant person happens to say ; 2 but we are concerned with that which is consciously uttered with a meaning that is at variance with the idea in the mind, whether in under- standing cr 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. iii. [IV. 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 Scripluris, clxxx. 2], and Enchiridium, xxii [xviii], cited by Gratian, in the Decreium, II. xxii. 1 [II. xxii. 2. 3 and 4].
6l2
On the Law of War and Peace
[Book III
John, xi. ii.
John, ii. 20-1.
Luke, xxii. 30.
Matthew, xx vi. 25 [xxvi. 29].
Acts, i. 6.
[Matthew, xiii. 13.]
Tacitus, Annak, VI [XI. xxxivl.
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.1
2. 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.2 Here applies a saying of the Jews : 3 1 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; 011 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.
* The same Tacitus, Histories, III [III. iii], says : ' He spoke obscurely, with the intention of interpreting his words in such a way as might be advantageous.' Also [III. lii] : ' Having so phrased his statements that, according to the outcome, he might repudiate connexion with what was unfavour- able, or assume cTedit 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.
rvsostom, On the Prieslhood, 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. 1] Rules regarding what is Permissible in War 613
when the glory of God,1 or the love due to our neighbour,2 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 [ii. xii. 1 be made known which the nature of the contract is understood to demand ; and in this sense we may not inaptly interpret the rule [On of Cicero, c All falsehood must be removed from matters of contract ', nif*xv. which is taken from the ancient Athenian law prohibiting ' the 6i.j uttering of falsehoods in the market-place '. In these passages D^m°-
apparently the word falsehood receives so broad a meaning that it Agaimi covers even an obscure statement. But this, strictly speaking, we f^* have already excluded from the idea of a falsehood. 459.']
XI. — The character of falsehood, in so far as it is unfiermissible, consists in its conflict with the right of another ; this is 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 sufnciently 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 3 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, Onthe 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 [xxviii. 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 III. 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.
3 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 Septuagint. Also Rabbi David in his Book ofRoots, Rabbi Salomon in his commentary, and Aben-Ezra.
614
0)i thc Law of War and Peace
[Book III
Republic, 331 d).
[Enchiri- dium,
OnDuiUs,
I[x.3x].
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.
Locretius
[1.939].
[InstiiuUs
•/Ora.Sry.
380
XII. — The view is maintained that it is permissible to say what is false before infants and insane persons
The first inference is that even ii 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, Institulcs, VI. xviii : ' Let him never lie in order to deceive or do harm.'
Chap. 1] Rnles regarding what is Permissible in War
615
XIII. — It is permissible to say zuhat 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
1. 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 ngurative language is used in l irony ', or in c hyperbole ', a figure which, as Seneca says, reaches the truth by means of falsehood,1 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 nne, 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 Jerome2 refer PauPs 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 is false when the conversation is directed to him who wishes to be deceived in this way
1. 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
On Bene- fits, VII. xxiii.
[Inst. Or., VIII. vi. 67.]
Livy, XXXIV
[xii].
Appian, Spanish Wars [xiii. 81]. [Agesilaus, xvii = p. 605 c.]
[Chrysost. On Gal.t ii. 7-8 ; Jerome, Letters, cxvi. 10.] [Galatians, ii. 14.]
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, Against Marcion, Books I and III [I. xx ; IV. iii].
6i6
On the Law of War and Peace
[Book III
94».]
[Stobaeus, xii. 13.] [Training of Cyrus, I. vi. 31.] [Stromata, VII. ix.
53.]
[Disserta- tions, xix. 3.]
Socrates, IV [Me- morabilia, IV.ii.17]. Livv, XXXIV [I. xxvii. 8].
[Livy, II Ixiv. 6.]
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.1 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 : c 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 c the use of lying as a curative measure '. Maximus of Tyre says : c 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 is 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,2 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 c 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.
XV. — It is permissible to say what is false when the speaker makes use of a superior right over one subject 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 another3 makes use of this right either for his own or for the public
1 III. 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, Azesilaus [xvii =p. 605 c].
• In the Jliad, II [II. 73 f.], 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. 1] Rules regarding what is 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,1 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,2 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 ofTspring. [434] There is a saying of Quintilian : ' Sometimes the common good requires that even falsehoods should be upheld.'
[On Jo-
seph, xxviii.]
XVI. — It is perhaps permissible to say what is 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.3 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 Friendship.
* 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 Modesly [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 Penitence, VII. v] says of Rahab : ' 0 fair falsehood, 0 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 '.
6i8
On the Law of War and Peace
[Book III
Republic, II [xxi = 382 c] • Training of Cyrus,
28], and SocraUs,
morabilia,
'tgr. ofAbr. [On the Cherubim,
sostom, On the Prusthood,
I Samuel, xi [10] ; I[2]
Kings, vi. 18 ff. [Fron- tinus, Strata- gems, II. iv. 9].
Or., XII. i.
39].
Thomas, II. ii, qu. 110, art. 1 and 3 ; Covarru- vias, On Sext., I. xviii. 2, pt. 1,
§5»no. 15; Soto, De lustitia, V, qu. 6,
Toledo,
IV. xx. ; ii; Lessius, Dc lusti- tia, Il.xlii, dub. 9.
XVII. — The authors zvho have judged that falsehood spoken in the presence of enemies is permissible
1. The pnnciple 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.1 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 ; 2 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. It can in 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 3 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 Heptateuch, II, beginning] says : '0 great instinct of humanity, 0 pious lie uttered to save life ! ' Jerome, On Ezekiel, xxvii [xxxviii] and On Isaiah, Ivi [lxvl, praises these same midwives and believes that rewards, even eternal rewards, have been given 10 them. AJso Ambrose, Letters, VI [V. 10], To Syagrtus, and Augustine himself, Against Lying, To Consenlius, chap. xv, varying, as often.
Tostado denies that there is sin in this. Augustine, On Exodus, II [On Heplaieuch, II. i], and Thomas Aquinas, II. ii, qu. 110, art. 55, ans. to obj. 4, and Cajetan thereon, are doubtful. See, if you have the tirne, Erasmus, in his Praise of Folly, and the erudite Maes, On Joshua, ii. 5.
1 He speaks thus : 4 If you shouid call to account the most eminent ^cncrals, you would find tliat most of th- have been won through deneption ; and yet such generali rcceive more prai^
than thosc 1 warfare.'
* A similar act of the same Elisha is recorded in 2 Kings, viii. 10, according to the reading of the Mas' ;lowed by the Latin Vulgate version.
' Augustine's later view in this matter has been opposed by the Abbot Rupert.
Chap. 1] 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 ; x for all words, in addition to the significance which is called that of the first notion, have another of a second notion,2 and this significance varies in the different arts ; 3 moreover, words have diff erent 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.
XVIII. — The use of falsehood is 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.4 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 is 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, [Atlic Nights,] XI. xii. It is championed also by Seneca, On Benefits, II. 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 Magistro [vii. 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 III. i. 10.
4 Agesilaus, and with him Plutarch [Agesilaus. ix =p. 600 D], 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.'
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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 ; this view is illustrated 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 Iamblichus 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 \l
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 : ' Tbe 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 (Mattbew, 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 mmd, those who are two-faced and deceptive.'
Chap. 1] Rules regarding what is 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 1 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 ; x
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
[Orations, lii = P. 552.] [Sopho- cles,
Philocte- tes, 86 £E.]
[5io fj
Alex.% xxxi=
P. 683 D.]
IX
[XIII. iii."
[On the
Sixth Con-
sulship of
Honorius,
249-]
[Various
History,
XII.
xxxiii.]
[Livy,
XLII.
xlvii.
4-8.]
1 Achilles, of whom Horace says, Odes, IV. vi [lines 13 ff.] :
He did not hide in the horse which feigned to be An oflering to Minerva, to deceive the Trojans In untimely festivals, and the court of Priam
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.
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II
Scholiast on Apol- lonius, II
[Onthe Customs of
theCatholtc Ckurch, II. 57-]
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 onlv 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 : l 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 zvhat is right for us but notfor 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.1 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, >vho 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 killing 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 difTerent 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 to the law of war for us to receive him who abandons the side of the enemy and chooses our own.3
1 This is also the teaching of Maimonides in Halakol Toubal, v. io.
* In II. xxvi. 5.
* Am: to be surrendered, unless this has been agreed upon in the terms of peace, as in the pcace with Philip, the Aetolians, and Antiochus. See Polybius, Selections on Embassies, ix, xxviii and xxxv [ -Htstortes, XVIII. xliv : XXI. xxx ; XXI. xivj. Menander Protector also $upports 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 lazv no one except an heir is 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.1 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 : 6 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 speciflcally provided that no member of a village should be held for the debts of other villagers ; and elsewheYe 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, c pledge-taking ',3 that is, the taking of sureties for others, is forbidden, and the reason given is that it is 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, II. xxi. 19. Add Decretals, V. xvii. 5 ; Decretals, V. xix. 9.
2 See the Law of Sicily, Book I [title c].
3 Sext, V. viii. 1 : ' Sureties which current speech commonly calls reprisals (repressalias).' It would be more correct to write, as certain books do, reprensalias, for this corresponds exactly to the Saxon word ' withernam ', but usage has accepted the other.
1569-27 U u- 623
Dig. III. iv. 7. § 1.
Variae, IV [x].
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Institutes,
Thomas Aquinas, II. ii, qu. 40, art. 1 ; Molina, disp. 120 and 121 ; Valentia, Dispuia- tions, iii, qu. 16, no. 3; Navarrus, xxvii, no. 136.
[xxxii. 13].
Gdlius,
XVI. iv.
VIII
and clsc- where.
II. — A 'evertheless 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 intrcduced, 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 easiJy 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 decrce 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.'
s of Damascus distinguishes wars from seizures of this sort, in showing that
Herod.whohad no right to make war upon the Arabs, could 'take reprisals' (fivma Xavtfdvdi) to use
a»ap! rdancewitha The words are those of Josephus,
Antiqnttits of the J -;], where we find also this : [448] * After relatin^ that fivehundred
taJents were owc: :,at the written bond resarding these stipulated that when the day
»ed had passed I . ties from all the territory of the Arabs, he [Nicholas]
declared that th; .„t the just collection of a debt.'
Chap. II]
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 to a foe. 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] III. — An example in the seizure of persons
1 . One f orm of the enf orcement of right regarding wThich I am speaking was what the Athenians called s 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 killing 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
u u 2
Plutarch, A gesilaus [xii-p.
602 D E],
and Xeno- phon, Greek History, IV [Hel- lenica, IV. i. 34 ff-].
[Demo-
sthenes,
Against
Aristo-
crates,
xxiii. 82
p. 647.]
[Against A risto- crates, xxiii. 84-5 =p. 648.]
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On the Law of War and Peace
[Book III
II. xxi. 7 [5].
[Onomas- ticon,] VIII. vi [VIII. 1.]
[under word
dvfyo- Xn+ia.}
XX XIV [lxi.i3].
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.
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-def ence, 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 '.
Baldus, Consilia, III. 58; Baxtolus, On Re- Prisals, qu. v, ans. to obj. 3, no. 9.
IV. — An example in the seizure of goods
Another form of the enforcement of right by violence is ' seizure of goods ' or ' the taking of pledges between difTerent peoples V 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 (tvkas by Demosthenes in his oration For the Crown [For the Crown ojthe Trierarchy, li. 13 - p. 1232] ; also by Aristotle, Economics, II [II. ii. 10].
Chap. II]
Goods of Subjects and Debt 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 heen denied, and when it may properly he considered as settled that this has heen done ; wherein it is shown that a judicial decision does not properly give or take away a right
1. 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,2 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 Iliad [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 ',3 as the Poet
1 Here applies what is said by Gail, De Pace Publica, II. viii. 7, and Vazquez, Conlroversiae illustres, 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].
3 You will find pvaia in this sense in the Selections on Embassies, from Polybius, no. xxxviii [ =p. 276], where he speaks of the Achaeans acting against the Boeotians ; and in no. cxxiii [= p. 352] fivaidfciv is found in the Excerpta Peiresciana [Excerpta de Virtutibus et Vitiis, I = p. 214] from Diodorus Siculus. Elsewhere, however, the phrase pvaia fcaray-feWeiv is employed in speaking of war, as we shall say shortly in III. iii. 7 ; for these things are closely connected.
Dig. XX. v. 12. §1. Innocent and Panor- mitanus, On Decre- tals, III. xlix. 8 ; Soto, III, qu. iv, art. 5.
Jac. de Can., An- charano, Domin., Francis- cus, On Sext, V. viii. 1 ; Fulgosius and Salic, On Auth., Code, IV. x ; Jac. de Belvisio, On Auth., Ut non fiant pignora ;
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On the Law of War and Peace
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Syl., word repressa- lia ; Bar- tolus, On Reprisals ; Guy de la Pape, qu. xxxii ; Gail, De Pigno., i no. 5 ; Yictoria, De Iure Belli, no. 4: ; Covarru- On V. ult. 4, pt. 1». § 9-
. XI.
. II [xxxiv. 4]. Halicar., VII [xii].
;il. xv. 16; xxi. IX.]
;ii;. i.
2 and 13.
Decio, Consiiia,
CCCli: dus, On Dizest, I. xxii. 3.
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.
VI. — Sucb 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 is 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 anvwhere 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. II]
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.1 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 2 to others, who for that reason have incurred a loss.
1 Gregoras, Book IX [IX. 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.'
2 Plutarch, in his Cimon [viii = p. 483 c], 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. 117.
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 ofnaiions is a war between different peoples
[449] 1. In a previous passage l 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,2 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 3 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.'
I I.:
1 Hence the plot of the Potnulus of Plautus, and the Eunuch of Terence. Such a one was also Eumaeus, Odyssey, XV [lines 402 ff.].
1 Pompey pronounced those free who had been captured by the pirates ; Appian, Mithridatic Wars xiv. 96]. See also Hcrrera, vol. 11.
630
Chap. III] On War that is Lawful or Public 631
II. — 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 ; l 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, [H. n has become partly obscured among many peoples, it is at least accord- lJ ing to agreements entered into with each state or in accordance with customs.
Accordingly the scholiast on Thucydides notes that, at the time i[v]. 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 xi[ii. 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.2 To such persons applies the passage in Homer's Odyssey, XIV : [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 [v;XXX. an object takes its name from that constituent of it which comprises the most important elements and has the most far-reaching eftect.' 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- [in wealth, Book III, that where an unjust man is king, or where the city^of'' aristocracy or the people itself is unjust, there is not a wicked state, but God, 11.
1 ' A mob not in lawful association. but brought together in order to commit wrong ' ; Procopius, Vandalic War, II [II. xv].
2 Such were those who are mentioned by Saxo, XIV [p. 234]. To such a degree, as Plutarch [Cimon, 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.'
92.
XXi.]
632
On the Law of War and Peace
[Book III
On the City of God, XlX.xxiv.
Borys- thcnitica [Orations, xxxvi =
P- 443L and On the Lam [Orations, Ixxv.end]. [On Con- cord = p. 385 a B.]
[Digest, XLIX. xv. 24.]
[GaUic
War), VI
[xxiii].
Onthc
Customs
ofthcGer-
mans
[xlvi].
Annals,
XII
[xxvii].
Historics,
iv m.
Appian, lllyrian
Wars [ii. 91.
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 ofTers 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 a tyranny. Aristotle in his Republic [Politics], 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. We heard 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.
[Judgcs, xi. 3 ff] [Justin, XLI. iv ; XLIV. ii.]
III. — Sometimes a transformation is 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, Leiters, X. i [X. i. i]« ' There are neither laws, nor courts, nor any semblance and trace of a sute.'
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the case of groups, so that those who have only been robbers upon embracing another mode of life x become a state. In discussing brigandage Augustine says : c 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.'
Onthe City of God, IV.
IV. — It is essential to the nature of a public war that it should have the support of the sovereign power ; in what way this is to he 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 apphes with even greater force to those who are not subjects, but are allied on an unequal footing.2 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.
Cajetan, On II. ii, qu. 40, art. 1.
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 ; 3 whence [451] Ennius spoke of battles proclaimed in advance. In the first book On Duties Cicero says : c 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 : c 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
[Cf.
Gellius, xx. 10.]
[I. xi. 36.]
[Etymo- logies, XVIII. i.
I [xxvii. 3].
1 An example is found in the case of the Mamertini ; Diodorus Siculus, fragments [XXI. x and XXII].
2 Like the Duke of Lorraine, in Krantz, Saxonica, XII. xiii. The city of Stralsund declared war upon its Pomeranian rulers ; Krantz, Vandalica, XIV. xxxv.
3 Josephus, Antiquities [455] ofthe 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 Basilides, 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].
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[Book III
XXXI
[xiv. 10].
decree. Also, after relating that the Acarnanians had laid waste Attic territory, he adds : * This was the first manif estation of hostile feelxng ; afterward a lawful war was declared by decrees and voluntary pro- clamations of the states.'
[lxxxvi].
[Ram. Ant.,] I [lviii]. [Tactica,
i-]
[Oraiions, xxxviii = P- 473]
[XXXV.
Ii. 2.]
VI. — What element in the declaration of war is in accordance with the law of nature, and what is feculiar to the law of ?iations, is 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 is 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 : l ' 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 : 1 Every one who is 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 To 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
1 Sec also Thucydides, Book III [III. lvi], in the speech of the Plataeans : ' According to the law that is in vogue among all peoples, it is right to defend ourselves against him by whom we are assailed in a hostile manner.'
In Diodorus Siculus, Excerpta Peiresciana [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 Mari: riii. On war
that has not been declared see Dexippus, Selections on Embassies [ = frag. 22, p. 195, edit. Dindorf].
Chap. III]
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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.
3. 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,1 in order that, for instance, we may avoid giving oflence, 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.2 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,3 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.
Deutero- nomy,
XX. II
[xx. 10].
VII. — A declaration of war is sometimes conditional, sometimes absolute
1 . 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,4 the fetial law included not merely a claim by right of ownership, but also the efTort to obtain that which is owed on a civil or criminal charge,
1 See Mariana, XXVII. xiii.
2 II. xxiii. 7.
3 Josephus, Antiquities ofthe Jews, V. ii [V. ii. 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 sufifered 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.'
4 See Paruta, On the War in Cyprus, Book I Bizarri, Book XXIII, with regard to the Turks ; Reinkingk, II. 111. 4.
636
On the Law of War and Peace
[Book III
[II. i. 2. 2
xxi. 4.]
VIII
[xxiii. 7l-
Annals,
I [xlviii].
[385 ffj
[Thebaid, XII. 598.]
[IV. liii.]
[Etymo- logies, XVIII. i.]
, I. xxxii. zo.]
as Servius l 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 2 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,3
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.4
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,5 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 History,] XXII. xii [XXII. xii. 2] : ' And when ambassadors were sent to the enemy to rnake 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,
ix : 4 This it is which, as we have pointed out, the ambassadors carried to the enemy.' See Servius, On the Aeneid, IX fline 53], and X [line 14].
• A similar formal declaration is in the Baltle oflhe 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 \ II.
• Compare the Greek of Dionysius of Ilalicarnassus, Selections on Embassies, ii [= p. 9].
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On War ihat is 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 oflences 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 Aeneid.
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.
Livv, XXXI
[viii. 3]
and
XXXVI
[iii. 7]-
[IX. 52.]
[Thucy- dides, I. xxix.j
VIII. — What elements in declarations of war fertain 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 2 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 you will learn from Pliny, [Natural Hislory,] XXIX. iii, and Servius, On the Aeneid, IV [IV. 242] and VIII.
2 See Servius, On the Aeneid, IX [IX. 53] ; Ammianus, XIX [XIX. ii. 6], with the r.otes of the erudite Lindenbrog.
638
On the Law of War and Peace
[Book III
VTarro, On the Latin Language, IV. [LII. xv.]
Baidus, 0n Code, VII. ix. 2, no. 70.
XXXVI [Ui.Xl].
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 is at the same time declared against his subjects and allies, in sofar as they take his 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 a)l 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.
Livy, XXXVI
[i. 5].
X. — A zvar declared against any one is not held to be at the same time declared against his subjects and allies in so far as they are con- sidered by themselves ; illustration by examfles
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.1 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 Tnlawful also was that of the companions of Ulysses against the Ciconians, who were at one time allies of Priam, and who are rnentioned by Homer, Odyssey, I [rather 1 ■» IX. 39 ff.], and Didymus thereon.
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cause,' also wliat 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.
[Livy,] XLII
[xxxi. 1].
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.1 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 tbeir 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 '.
On Anger, III. ii.
XII. — The effects referred to are notfound 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.
Ayala, I.
Alberico Gentili, II.ii[II.i], just cited.
XIII. — 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 c]. The Turks kindle a great nurnber of fires two days before a battle ; Chalcocondylas, VII [ = p. 344, edit. Bekker].
1569.27 X X
640 On the Law of War and Peace [Booklil
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 afTair, 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. — Whether war must be declared against him zvho 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 efTects 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, \on
Aeneid, Then to strive in hatred, then to plunder, X. 14.]
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 befoie 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 [On accustomed to use the words " to innict injury (laedere res) " where x^T^i 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) 'V
From these facts we learn that a war declared between two peoples, or the heads of two peoples, has certain particular effects l which do not arise from the nature of war itself. This conclusion, again, agrees excellentiy with what we have just now cited from the Roman jurists.
II. — A distinction is made between the word ' permissible ' as referring to that which is done with impunity, although not without moral wrong, and to that which is free from moral wrong even if virtue would enjoin not to do it ; with examples
1. But let us see the import of the ' will become permissible ' in VirgiPs 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 Curm-
Krantz, Saxonica, XI. v.
X X 2 641
thians, vi. 17 [vi. 12],
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[To Pol- Untius,] I. xviii.
To Pollen- tius, I. xv [I. xiii, xix].
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III.
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,1 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 3 (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.4 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
1 Tertullian, Against Marcion, I [I. xxix], says : ' The proof of abstinence is wanting if 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 Helvidius [On Perpetual Virginity, xxi], says : 'A virgin is worthy of greater praise, because she despises that which she could do without sin.' [465] Also Against Jovinianus [I. xii] : ' Christ loves the virgins the more for this, that of their own accord they offer what was not demanded from them.' Again, To Pammachius [Letters, lxvi. 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 Corinlhians, vii [Homily XIX, ii, on verse 9], declares : ' He [Paul] shows that chastity is preferable.' On Romans, vii. 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 Fasling, II [On Penitence, 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 Decretum, II. xiv. 1.
1 Slromata, IV [III. xii. 82], where, among other things, he says of the man who contracts a second marriap : ' H< 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 Conjugiis Adulterinis ad Pollentium, I. xiii and xix ; from these passages Gratian has cited at length in Decrelum, II. xxviii. 1.
* Tertullian, in his Exhortation to Chastily [chap. viii], says : ' Permission is oftentimes the trial
hing.' In the sarne passage : ' All things are permissible, but all things are not for lalvation.'
Chrysostom, On Penitence, VIII [VIII. iii, 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 prtl k VII [On Farming, I. vii. 2], declares : ' We must not assert
^ht tO whatever ble, for the ancients held that the extreine enforcemenl "1 right is
extreme cruelty.' Jerome, To Jovinianus [To Innocentius, Letters, i. 14], says : ' The extreine inmtence ht is the extreme of wickedness.'
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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. Ammiajius 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 (licere) to the laws. In a declamation of Quintilian the Father there is a saying that it is one thing to have regard to rights, and another to have regard to justice.
[V. xix. 55.3
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 [v. n.] 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 :
[On the Fourth Consulship of Hono- rius,26ji.]
[In Sto- baeus, xlviii. 14.]
Ammia- nus, XXX
[viii. 8].
Pliny, V [xiii].
[iii. 8.] [xvi. 43.]
III. — The effects of a public war in general are concerned wiih fer- mission that grants impunity
With this restriction, therefore, it is permitted to harm an enemy, both in his person and in his property ; that is, it is per-
In his Controversies, IV. xxiv [=VII. viii. 1], and elsewhere.
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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. — Why such effects have heen 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 efTect 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.
lon [line 1334].
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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 sufTer 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 Deiotarus, 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 Jewish 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 x 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 arms.' 2
Cyprian declares : ( Murder committed by individuals is a crime ;
xxvi
[xxxi. 2].
[ix. 25.
[iv. 12.]
[I. i. 1.] [335.]
1 Servius, On the Aeneid, II [II. 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 ofSeptimius Severus [chap. xiv]. writes : ' In addition to those whom the law of battle destroyed.'
2 Cf. II. i. 1, above.
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Pharsalia,
I
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WIII. xlviii. 9] and nu- merous other pas- sages.
;III. ii. 7.]
On Dig.
I.i.5-
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 : 1 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 '.
VI. — Out of this right arises the right to kill and injure 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 suflicient, in a prolonged and general war, to give rise to the right 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 is no 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.
Thucy- dides,
VII. — What is 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,1 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
ld be regarded as enemies.
1 Ben ■ thu principJfl in his speech For Liz,arius [ii. 4].
;ive an exarnplc in Li . \ V [XXV. xxii. 11], with regard to the citizens of Campania.
Others 1 ies, Books I and V [IV. cvj.
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VIII. — The right to inflict injury extends to subjects of enemies any- where, unless the law of the foreign territory prevents it
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 : c 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 urider 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.1 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. Livy2 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
Livy, XXXI [vi. 1].
[frag. 1076.]
[Children o/Her- cules, 251 ff., cited above in II. xxi. 6.
1 Compare what we have to say below, III. vi. [466] 26, and Alberico Gentili, Hispanica Advo- catio, I. vi ; Wechner, Consilia Franconica, xcii.
2 For a 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.
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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.
IX. — The right to inflict injury extends even over infants and women
i. 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 l ; 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 : 2
Bodies of infants dashed upon the ground, While ruthless war all things afrYights.
[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 :
ither 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, VI. vii. 2J 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. xvl these words from the same Homer [lliad, VI. 58] :
Nor will he cruel fate escape, Who still lies hidden in his mother's womb
after the capture of Numantia ; the soldiers of Julian, who llew the women that had been left at Dacira, Zosimus. III [III. xv]. Ammianus in Book XIV [XXIV. Iv. »5] tayt that aftei
ane Julian had taken Majozamaltha ' the violenct of the enraged soldiery slew whatever they met in their onset without disl • < 1
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sort become a custom. It is, then, less surprising if old men too Aeneid, 11 are killed, as Priam by Pyrrhus. [550 ff.].
X. — Tbe right to inflict injury extends even over captives, and wiihout 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 Ciris, 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 sell 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 (servi) 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.5
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.
Trojan Women [3331-
[447-
[On
Terence's] A delphi, II. i [128]. I [xxx]. Appian, Hann. Wars |"iii. 14]. Dio Cass., XLVII [xlviii]. [Hirtius, African War, xlv.]
XI. — The right to inflict injury extends even over those who wish to surrender, but whose surrender is 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 [Antiquities ofthe 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 [Aeneid, 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 [III, p. 34], relates that Otho put to death 70,000 [700 in Wittekind's text] Slavs who had been made prisoners.
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City of God, I. ii
[i. q.
Annals,
XII
. II :. 6]. Dion., XLV
XI. III.
[Dio Cas- sius, XL. xii.]
[V. xxx.
77-1
VI. xiii. 15.] XII. xix/j
Historics, I [xxxvii].
.' ries, I. lxviii.]
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 ahvays 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,1 as the rulers of Pometia by the Romans ; Samnites, 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.2 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. — // is 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 ; 3 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 wav to blame for that on which
XX [LXX. xvii], on the year 1580, with regard to events in Ireland. 1 There is a similar occurrence in the Chronicle of Regino for the year 905. ' As<: III.
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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. Thc 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. xlvi.]
[XVI. xxxi.]
Gothic War, I
[viii].
XIV. — The 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 is forbidden to kill any one by means of poison
1. However, just as the law of nations, through that form of permission which we have now explained, permits many things which
1 See the same Diodorus on Spondius and Hamilcar Barca in the Excerpta Peiresciana [Excerpta de Virlutibus et Vitiis, i = p. 262].
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Gildo
[274]-
On Dutxes,
III >3rii.
86]. [Attic
Mghts,}
III. i
VI. v. 1]. Annals,
III II. Ixxx-.
II. 188.
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 dirference whether you kill 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. Xcvertheless 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.
reement 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.1
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 ofler, 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,2 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.
M the i5ff-]
XVI. — By the law of nations it is forbidden to foison weapons or waters
1 . DifTerent 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,3
1 The senators [the Consuls, rather] wrote to Pyrrhus : ' that if anything should hefall you it may trny upon h, Fyrrhus, xxi=p. 396 c].
-ee Bembo, Book III, end. iiiny, [Natural History,] XI. liii, observes : ' The Srythians 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, Suf<f>ln>unt, 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,1 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 \
II [xxl
[II. xix.
1.2.]
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,2 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 ve.ins of a spring,3 which is permissible by nature and by convention.
XVIII. — Whether or not the use of assassins is 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
Pausanias, ult. [X. xxxvii] Frontinus, [Strata- gems,] III [vii. 6] : Aeschines, On the Badly . Conducted Embassy [cxv]. [Halieu- tica, IV. 687 f.]
1 And so Ilus, 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 Alexis, I [I. vii], brother of Isaac [Comnenus]. Similar acts are related by Otto of Freising, and Gunther, Ligurinui.
3 See Priscus, Seleclions on Embassies [p. 29].
654
On ihe Law of War and Peace
[Book III
xxxi.]
III. iii i. i].
48.]
Justin, II >i.i5].
XXVII [xxvii] . Tacitus, Histories, V [xxii]. On Duties, I. xl [197].
;..l4].
Digest, III. v § 6.
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,1 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,2 celebrated by historians, which he himself defended thus : ' As an enemy I wished to slay an enemy.' Porsena himself >aw 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.3 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 4 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.
:.efrid [Paulus Diaconus], VI [VI. xxxvii]. 2 Who is, in Plutarch [Publicola, xvii = p. 106 B], ' a man pre-eminent in all virtue '. ' \ ^ed a monetary reward to any one who should have brought in the head of a Scy thian.
Thus peace wus - / limus, IV [IV. xxii].
: 'hus Anliquilies of the Jeivs, XV. xiv [XII. ix. 4]. A similar act of Theodosius against
Eugen, . I\' [ IV. Kiii] ; of th( I linst the Persian king, in Agathias ;
• Julian, in Anunianus, XXIV [XXIV. iv. .}], and Zosimus, III |III. xx]; of
AJexius Comnenu 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. 1 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,1 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 2 produced a twofold
1 See Kromer, [Book V,] p. 113.
2 The author of De Viris lllustribus [Aurelius 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 Komans 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, XXX [XXX. i. 23].
1569.27 Y y
Punic Wars
[xxxix] .
[Plautus,
Trinum-
wms,io37."J
Letters,
VIII
[xviii. 3],
To Rufinus
Curtius, IV [i. 12-13].
XIV [IV. xi. 18].
Livy, XLII
[xviii. 1].
Livy, XLIV
[i. 10]. IX. vii
[IX.vi.4].
656
On the Law of War and Peace
[Book III
Justin,
XII v
ioff.].
[Oedipus the King,
Mi.]
[Oedipus, 242.]
[Gellius, III. viii.]
Annals,
XI >ix].
VII v. 20].
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 difFer,ent 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. In a 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.1 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. — Whether rape is contrary to the law of nations
1. 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. 10] 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 th< .ntharides. in the historian Procopius, Vandalic War, at the end of
Book II [II. xxviii]. Compare Kromer, Book XXVI II [p. 604], on the killing of Sechodolius.
Chap. IV]
On the Right of killing 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,1 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 2 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 3 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 4 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 5 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 [I. viii].
2 Appian, Mithridatic Wars [xlvii], says of the captured Chians : ' The women and children were barbarously violated by those who carried them off.'
3 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].
4 As Philo eloquently explains in his book, On Humanity [xiv]. Says Josephus, Against Apion, II [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, II [II. xi].
Yy2
Augustine, City of God, II [I. vi].
[XIX.
viii.]
Various History, VI [i].
[Anabasis of Alex- ander, IV. xix. 9.]
xi = p.
332 E.]
Parallels [xiii=p. 308 F].
On Dutus, 32]-
[V. xi.]
XXXI
[xxx. 2-
Annals, XIII
[468] CHAPTER V
ON DEVASTATION AND PILLAGE
I. — Enemy property may be destroyed and fillaged
That it is not contrary to nature to despoil him whom it is honourable to kill,1 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 Histories 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 orT 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.'
vii. 36.
[IV. lv.
122.]
II. — Even enemy froferty that is sacred may be destroyed and pillaged ; how this is 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 ',2 says Pomponius the jurist. ' Victory had made profane thc sacred things of Syracuse , says Cicero in his fourth oration Against Verre's.
1 Suetonius, Nero, xl : ' As though by the law of war an occasion had arisen for plundering the wealthiest provinces'. Cyprian, On Mortality [chap. viii] : ' So when possession has been taken of a state through an invasion of enemies, captivity falls upon all alike.'
1 Tertuilian, Af>olo%y fxxv] : 4 Furthermore wars and victories consist very often in the capture and dc | cities. Such procedure is not without injury to the gods. There is the same destruc-
tion of fortifications and of temples, a like liaugatering of citizens and ol priests, a like plnndering o£ 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 h as overtaken the cities their temples have suffered the same ruin as their walls.'
658
Chap. V]
On Devastation and Pillage
659
The reason is that the things, which are called sacred, are in fact not withdrawn from human use, but are public x ; 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 Amphitruo of Plautus agrees,
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.' 2 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 3 by those who had consecrated them. This, we read, was done by Pericles, though with a promise of restitution, by Mago in Spain,
I. iii. 8 [Livy, VII. xxxi. 4]-
[226.]
[258.]
[IV. xcviii.]
Annals, XII [III.
Ixxi].
Digest, XLV. i.
83. § 5, and 137. §6.
1 Marsilius of Padua in the Defensor Pacis, chap. v, pt. 2 ; Nicolas de Bohier, Decisions, lxix, no. 1 ; Bossius, Practica Criminalia, De Foro Competente, no. 101 ; Cothmann, Consilia, c, no. 30.
2 This custom is also revealed by a passage from Polybius cited below, III. viii. 4.
3 As by the Syracusans in the time of Timoleon, in whose life Plutarch records this [Timoleon, xxiii = p. 247 e]. The Chians made up even from the sacred vessels the fine which Mithridates laid upon them ; Appian, Mithridatic Wars [vii. 47]. Pliny, Book VII, last chapter [Natural History, XVII. xxviii. end], in speaking of Marcus Porcius Cato, says : ' He sanctioned the cutting 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 [Mithridatic Wars, viii. 54] ; and he also restored their value ; Diodorus Siculus in the Excerpta Peiresciana [Excerpta de Virtutibus et Vitiis, i = p. 322]. Augustus borrowed treasures from the temples, as we learn from Appian, Civil Wars, V [V. ii. 13]. Cassiodorus relates that Agapetus gave sacred vessels in pledge, [Variae,] XII. xx.
In time of grave need Heraclius coined money from the vessels of the Church, buc afterwards restored their value, as Theophanes relates. See also Anna Comnena, V [V. ii] and VI [VI. iii] ; Kromer, XXIII ; and the speech of Laurentianus in Bembo, Book VI. Add what is to be said below in III. xxi. 23.
66o
On the Law of War and Peace
[Book III
[Tiberius Gracchus, xv =
p. 832 A.]
Satumalta, III :
Annals, I
prj.
[Aeneid, XII. 778 £.]
VIII
Against
. III [I.xxi.57].
XXV
[Xl. *].
[Livy,
VIII. xliii. 10.]
K ! X
[Catiline,
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 orlerings 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.' 2 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 3 ; 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 : 1 Statues were carried off and other things done which are usually done when cities are captured.' Fulvius 4 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.5
4. Nevertheless this is true, that if a divinity is believed to
1 In the Excerpta, IV. iv.
* Servius, On the Aeneid, II [II. 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 Edogues, 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, Aeneid, V [line 360] :
By Greeks ta'en down from Neptune's sacred door.
Plutarch, in his Fabius [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 Tarentines 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 trmn the same author, Against the Nations, II [II. xvii] : ' Hencc M manv iriuinphs over gods as over peoples. Still remaininp unong them are their captive idols. and if these perceive their conquerors they d
4 See Polybius. Selections on Embassies, xxvii [ = Histories, XXI. xxx].
* Set ! k XVI I [p. 402]. With regard to the property of the Church at Antioch captured by Chosroes, see Procopius, Persian War, II [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 difTerent 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,2 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.'
5. 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
Histories,
V[iv].
Asconius
Pedianus,
On
[Cicero's]
A gainst
Verres, III
[I. xviii.
48].
[Histories,
V. viii, ix.]
City of
God,
XVIII.
xlv.
For
Flaccus
[xxviii.
68].
Daniel, v. 23.
1 Josephus, Antiquilies of the Jews, IV. viii [IV. viii. 10], and Against Apion, II [II. xxxiii. 237].
2 Diogenes Laertius at the beginning [procem., vi] says : ' Idols are condemned by the magi.'
662 On the Law of War and Peace [Bocklll
the Pompey whom I mentioned to be slain as it were in the sight
oi 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 jeuHsh of nations. Thus Josephus relates that the Temple was destroyed by
xxZ' and Titus, and adds that it was destroyed ■ in accordance with the law
of war '.
iv. § 3 and
III. — Enemy property that is consecrated may be destroyed or pillaged ; a caution is 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.
[Dig. xi. Therefore Pomponius in the passage cited above wrote that, just as sacred places, so consecrated places ceased, when taken by enemies,
Digest, 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
[ii. xix. shown elsewhere, was introduced by the law of nations. 1. 1.]
IV. — How far deceit is 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
I. — What the law of nature is regarding the acquisition of things taken in 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,1 or we inflict upon the guilty a loss that does not exceed an equitable measure of punishment,2 as has been said elsewhere. By this law Abraham gave to God a tithe 3 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 Feretrius, 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, xxxiv. 30, and xlix. 6.
2. 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 law, when speaking of the city that has
1 II. vii. 2. 2 II. XX [II. XX. 28 ff.].
3 And victuals to his servants, and a part of the spoil to his allies. See Josephus on this story [Antiquities of the Jews, I. x. 2], and what follows below, III. xvi. 3.
4 The Chaldaean commentator interprets this as accomplished through prayers to God, who by a certain exceptional benevolence had preserved Shechem for Jacob and his posteritv.
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