The Law of War and Peace (1625)
by Hugo Grotius
The Causes of War: First, Defense of Self and Property
I. What causes of war may be called justifiable.
1. LET us proceed to the causes of war I mean justifiable causes; for there are also other causes which influence men through regard for what is expedient and differ from those that influence men through regard for what is right.
The two kinds of causes Polybius accurately distinguishes from each other and from beginnings of war,” such as the stag was in the war between Aeneas and Turnus. Although the distinction between these matters is clear, nevertheless the words applied to them are often confused. For what we call justifiable causes Livy, in the speech of the Rhodians, called. beginnings: ‘You certainly are Romans who claim that your wars are so fortunate because they are just, and pride yourselves not so much on their outcome, in that you gain the victory, as upon their beginnings, because you do not undertake wars without cause.’
In the same sense also Aelian (in Book XII, chapter 53) speaks of the beginnings of wars, and Diodorus Siculus (Book XIV), giving an account of the war of the Lacedaemonians against the Eleans, expresses the same idea by using the words ‘pretexts’ and ‘beginnings.’
2. These justifiable causes are the special subject of our discussion. Pertinent thereto is the famous saying of Coriolanus quoted by Dionysius of Halicarnassus: ‘This, I think, ought to be your first concern, that you have a cause for war which is free from reproach and just.’ Similarly Demosthenes says: ‘As the substructures of houses, the framework of ships, and similar things ought to be most firm, so, in the case of actions, the causes and fundamental reasons ought to be in accord with justice and truth.’ Equally pertinent is the statement of Dio Cassius: ‘We must give the fullest consideration to justice. With justice on our side, military prowess warrants good hope; without it, we have nothing sure, even if the first successes equal our desires.’ Cicero also says, ‘Those wars are unjust which have been undertaken without cause’; and in another passage he criticizes Crassus because Crassus had determined to cross the Euphrates without any cause for war.
3. What has been said is no less true of public than of private wars. Hence the complaint of Seneca:
We try to restrain murders and the killing of individuals. Why are wars and the crime of slaughtering nations full of glory P Avarice and cruelty know no bounds. In accordance with decrees of the Senate and orders of the people atrocities are committed, and actions forbidden to private citizens are commanded in the name of the state.
Wars that are undertaken by public authority have, it is true, in some respects a legal effect, as do judicial decisions, which we shall need to discuss later; but they are not on that account more free from wrong if they are undertaken without cause. Thus Alexander, if he commenced war on the Persians and other peoples without cause, was deservedly called a brigand by the Scythians, according to Curtius, as also by Seneca a; likewise by Lucan he was styled a robber, and by the sages of India ‘a man given over to wickedness,’ while a pirate once put Alexander in the same class with himself. Similarly, Justin tells how two kings of Thrace were deprived of their royal power by Alexander’s brother, Philip, who exemplified the deceit and wickedness of a brigand. In this connection belongs the saying of Augustine: ‘If you take away justice, what are empires if not vast robberies?’ In full accord with such expressions is the statement of Lactantius: ‘Ensnared by the appearance of empty glory, men give to their crimes the name of virtue.’
4. No other just cause for undertaking war can there be excepting injury received. ‘Unfairness of the opposing side occasions just wars,’ said the same Augustine, using ‘unfairness’ when he meant ‘injury,’ as if he had confused the Greek words for these two concepts. In the formula used by the Roman fetial are the words, ‘I call you to witness that that people is unjust and does not do what is right in making restitution.’
II. justifiable causes include defense, the obtaining of that which belongs to us or is our due, and the inflicting of punishment.
1. It is evident that the sources from which wars arise are as numerous as those from which lawsuits spring; for where judicial settlement fails, war begins. Actions, furthermore, lie either for wrongs not yet committed, or for wrongs already done.
An action lies for a wrong not yet committed in cases where a guarantee is sought against a threatened wrong, or security against an anticipated injury, or an interdict of a different sort against the use of violence. An action for a wrong committed lies where a reparation for injury, or the punishment of the wrong-doer, is sought.
These two sources of legal obligations were rightly distinguished by Plato, in the ninth book of the Laws. Reparation is concerned either with what is or has been ours, giving rise to actions involving property interests, and certain personal actions; or with what is owed to us by contract, or in consequence of a criminal act; or by operation of law, a category to which must be referred also cases arising from implied contracts and constructive crimes. Under these subdivisions the rest of the personal actions fall. An act deserving punishment opens the way to accusation and public trial.
2. Authorities generally assign to wars three justifiable causes, defense, recovery of property, and punishment. All three you may find in Camillus’s declaration with reference to the Gauls: ‘All things which it is right to defend, to recover, and to avenge.’ In this enumeration the obtaining of what is owed to us was omitted, unless the word ‘recover’ is used rather freely. But this was not omitted by Plato when he said that wars are waged not only in case one is attacked, or despoiled of his possessions, but also if one has been deceived. In harmony with this is a sentence of Seneca: ‘Perfectly fair, and in complete accord with the law of nations, is the maxim, “Pay what you owe.”‘ The thought was expressed also in the formula of the fetial: ‘Things which they have not given, nor paid, nor done, which things ought to have been given, to have been done, to have been paid’; in the words of Sallust, in his Histories: ‘I demand restitution in accordance with the law of nations.’
When, however, Augustine said, ‘Those wars are wont to be defined as just which avenge wrongs,” he used the word ‘avenge’ in a rather general way to mean ‘exact requital for.’ This is shown by what follows, for therein we find not a logical subdivision but a citation of examples: ‘War, then, ought to be undertaken against that people and state which has either neglected to exact punishment for wrongs done by its members, or to return what has been wrongfully taken away.’
3. It was in accordance with this natural principle that a king of India, according to Diodorus, brought against Semiramis the charge ‘that she commenced war without having suffered any wrong.’ So also the Romans demanded of the Senones that they should not attack a people at whose hands they had received no injury. Aristotle in his Analytics, Book 11, chapter 11, says: ‘It is customary to make war on those who were the first to inflict injury.’ Of the Abians, who were Scythians, Curtius says: ‘It was agreed that of barbarians they were the most just; they refrained from war unless attacked.’
The first cause of a justifiable war, then, is an injury not yet inflicted, which menaces either person or property.
III. War far the defense of life is permissible.
We said above that if an attack by violence is made on one’s person, endangering life, and no other way of escape is open, under such circumstances war is permissible, even though it involve the slaying of the assailant. As a consequence of the general acceptance of this principle we showed that in some cases a private war may be lawful.
This right of self-defense, it should be observed, has its origin directly, and chiefly, in the fact that nature commits to each his own protection, not in the injustice or crime of the aggressor. Wherefore, even if the assailant be blameless, as for instance a soldier acting in good faith, or one who mistakes me for some one else, or one who is rendered irresponsible by madness or by sleeplessness this, we read, has actually happened to some the right of self-defense is not thereby taken away; it is enough that I am not under obligation to suffer what such an assailant attempts, any more than I should be if attacked by an animal belonging to another.
IV. War in defense of life is permissible only against an actual assailant.
1. It is a disputed question whether innocent persons can be cut down or trampled upon when by getting in the way they hinder the defense or flight by which alone death can be averted. That this is permissible, is maintained even by some theologians. And certainly, if we look to nature alone, in nature there is much less regard for society than concern for the preservation of the individual. But? the law of love, especially as set forth in the Gospel, which puts consideration for others on a level with consideration for ourselves, clearly does not permit the injuring of the innocent even under such conditions.
2. It has been well said by Thomas if he is rightly understood that if a man in true self-defense kills his assailant the slaying is not intentional. The reason is not that, if no other means of safety is at hand, it is not sometimes permissible to do with set purpose that which will cause the death of the assailant; it is, rather, that in such a case the inflicting of death is not the primary intent, as it is in the case of procedure by process of law, but the only resource available at the time. Even under such circumstances the person who is attacked ought to prefer to do anything possible to frighten away or weaken the assailant, rather than cause his death.
V. War in defense of life is permissible only when the danger is immediate and certain, not when it is merely assumed.
1. The danger, again, must be immediate and imminent in point of time. I admit, to be sure, that if the assailant seizes weapons in such a way that his intent to kill is manifest the crime can be forestalled; for in morals as in material things a point is not to be found which does not have a certain breadth. But those who accept r of any sort as justifying anticipatory slaying are themselves greatly deceived, and deceive others. Cicero said truly, in his first book On Duties, that most wrongs have their origin in fear, since he who plans to do wrong to another fears that, if he does not accomplish his purpose, he may himself suffer harm. In Xenophon, Clearchus says: ‘I have known men who, becoming afraid of one another, in consequence of calumny or suspicion, and purposing to inflict injury before receiving injury, have done the most dreadful wrongs to those who had had no such intention, and had not even thought of such a thing.’ Cato, in his speech for the Rhodians, asks ‘Shall we be the first to do what we say they wished to do?’ There is a notable expression of the thought in Gellius:
When a gladiator is equipped for fighting, the alternatives offered by combat are these, either to kill, if he shall have made the first decisive stroke, or to fall, if he shall have failed. But the life of men generally is not hedged about by a necessity so unfair and so relentless that you are obliged to strike the first blow, and may suffer if you shall have failed to be first to strike.
In another passage Cicero says, not less rightly: ‘Who has ever established this principle, or to whom without the gravest danger to all men can it be granted, that he shall have the right to kill a man by whom he says he fears that he himself later may be killed?’ In this connection we may quote the well-known verses of Euripides:
- If, as you say, your husband wished to take
Your life, wishing were then your part as well,
Until the time should come.
A parallel is found in Thucydides: ‘The future is still uncertain, and no one, influenced by that thought, should arouse enmities which are not future but certain.’ Thucydides, further, in the passage in which he sets forth the evils arising from the manifestations of party-spirit in the Greek states, reckons as a fault also this: ‘The man was praised who had himself been first to commit the evil deed which another was going to commit.!’ In the effort to guard against fear,’ says Livy, ‘men cause themselves to be feared,’ and we inflict upon others the injury which has been warded off from ourselves, as if it were necessary either to do or to suffer wrong.’ To such men the query of Vibius Crispus, which Quintilian praised, is applicable: ‘Who has permitted you to harbor so great fear?’ According to Dio, Livia said that they do not escape disgrace who are first to do the deed that they fear.
2. Further, if a man is not planning an immediate attack, but it has been ascertained that he has formed a plot, or is preparing an ambuscade, or that he is putting poison in our way, or that he is making ready a false accusation and false evidence, and is corrupting the judicial procedure, I maintain that he cannot lawfully be killed, either if the danger can in any other way be avoided, or if it is not altogether certain that the danger cannot be otherwise avoided. Generally, in fact, the delay that will intervene affords opportunity to apply many remedies, to take advantage of many accidental occurrences; as the proverb runs, ‘There’s many a slip ‘twixt cup and lip.’ There are, it is true, theologians and jurists who would extend their indulgence somewhat further; but the opinion stated, which is better and safer, does not lack the support of authorities.
VI. Defense of limb against injury is also justifiable.
What shall we say about the danger of injury to a part of the body?
Truly the loss of a limb, especially if it is one of the principal limbs, is an extremely serious matter, and in a sense comparable to loss of life; further, we cannot be sure that injury to a part of the body will not bring danger of death. If, therefore, the injury cannot be avoided in any other way, I should think that he who is on the point of inflicting such injury can be rightly slain.
VII. The defense of chastity is in the highest degree justifiable.
That the same right to kill should be conceded also in defense of chastity is hardly open to question; not only the general opinion of men, but also the divine law puts chastity on a plane with life.’ Thus Paul the jurist said that virtue could properly be defended by such an act.
We find an example in Cicero a and Quintilian; the case was that of a tribune of Marius, who was killed by a soldier. In the histories there are also some examples of men who were slain by women. The killing of a man under such circumstances is called by Chariclea, in Heliodorus, ‘a justifiable defense for warding off a violation of chastity.’
VIII. Not to take advantage of the right of defense is permissible.
We said above, that while it is permissible to kill him who is making ready to kill, yet the man is more worthy of praise who prefers to be killed rather than to kill..
This principle, however, is by some conceded in such a way that an exception is made in the case of a person whose life is useful to many. But I should deem it unsafe to extend this rule, which is inconsistent with long suffering, so as to include all those whose lives are necessary for others. And so I should think that the exception ought to be restricted to those whose duty it is to ward off violence from others, such as members of an escort on a journey, who were hired with that purpose in view, and public rulers, to whom the verses of Lucan may be applied:
- When on thy breath so many nations hang
For life and safety, and so great a world
Calls thee its master, to have courted death
Proves want of heart.
IX. Defense is sometimes not permissible against a person useful to the state because at variance with the law of love.
1. On the other hand, it may happen that, since the life of the assailant is useful to many, he cannot be killed without wrong. And this is true, not only according to divine law, whether of the old or the new dispensation this we treated above, when we showed that the person of a king is sacred but also by the law of nature, For the law of nature, in so far as it has the force of a law, holds in view not only the dictates of expletive justice, as we have called it, but also actions exemplifying other virtues, such as self-mastery, bravery, and prudence, as under certain circumstances not merely honorable, but even obligatory. And to such actions we are constrained by regard for others.
2. And I am not moved to renounce this opinion by Vazquez, when he says that a ruler who maltreats an innocent man by that very act ceases to be a ruler. A statement either less true or more dangerous than that, it would be hard to make. For just as ownership, so the exercise of sovereign power is not lost by wrong-doing, unless the law so prescribe. But a law in regard to the exercise of sovereign power containing the provision that it should cease in consequence of committing a wrong against a private individual has nowhere been, and in my opinion never will be, framed; for such a law would lead to the utmost confusion.
The foundation upon which Vazquez bases this and many other conclusions is, that all exercise of sovereign power has in view the interest of those who obey, not of those who rule. Even if this should be true in general, it would not be in point here; for a thing whose usefulness is impaired only in part does not at once cease to be of use. His further statement, that the safety of the state is desired by individuals in their own interest, and in consequence every man ought to put his individual welfare above that of the whole state, is lacking in consistency. We do desire, in our own interest, that our state be safe, yet not merely for our own sake but for the sake of others as well.
3. False, in fact, and rejected by the more sound philosophers, is the view of those who think that friendship has its origin in need alone; we are drawn to friendship spontaneously, and by our own nature. Regard for others often warns me, sometimes commands me, to put the interest of many above my own. Appropriate to this connection is a passage of Seneca:
It is not to be wondered at if emperors, kings, and others charged with the responsibility of public administration, whatever their titles, are loved with a deeper devotion even than personal relatives. If, in fact, men of sound judgement place public above private interests, it follows that he also should be more dear who represents the state personified.
Similar is the thought of Ambrose: ‘Since each one would count it a greater joy to have warded off destruction from his country than from himself.’ And again, Seneca, whom I mentioned, says: ‘Callistratus and Rutilius, the former at Athens, the latter in Rome, were unwilling that their homes be restored to them at the price of a general disaster; for it was better that two men suffer a single injustice than that a public calamity be visited upon all.’
X. It is not permissible for Christians to kill in order to ward off a blow, or to avoid any indignity of like sort, or to prevent any escape.
1. There are some who think that, if a man is in imminent danger of receiving a blow or a similar injury, he has the right to prevent it by killing his enemy. For my part, if expletive justice only be considered, I raise no objection. For although death and. a blow are not on the same level, yet the man who makes ready to injure me by that very act confers on me a right, a sort of actual and unlimited moral right against him, in so far as otherwise I cannot ward off the injury from myself. Furthermore, in such a case regard for others does not in itself seem to impose on us the obligation to favor the one who attempts the injury. But the law of the Gospel has made such action in self-defense altogether unpermissible; for Christ bids us submit to a blow rather than do harm to an aggressor. How much more earnestly does He forbid the slaying of an assailant in order to escape a blow!
This example warns us to beware of the principle laid down by Covarruvias, that human knowledge, being not ignorant of the law of nature, does not allow anything to be permitted by natural reason which would not likewise be permitted by God, who is nature itself. For God, the creator of nature, is also able to act freely outside the realm of nature, and has the right to lay down laws for us even concerning those matters which are by nature left free and undetermined; even greater is His right to make obligatory what by nature is honorable, even though not obligatory.
2. Since the will of God is so clearly manifest in the Gospel, strange it is that there are to be found theologians, and Christian theologians, too, who think that a man, is allowed not only to kill in order to avoid a blow, but even to recover his honor, as men say, after receiving a blow, in case the assailant flees. This seems to me entirely inconsistent with both reason and religion. For honor is a recognition of superiority; but the man who endures such an injury shows that in a superior degree he possesses the virtue of longsuffering, and thus rather increases his honor than diminishes it. And it does not make any difference if some individuals of faulty judgement turn this virtue into a vice by applying to it names which they have made up; for such faulty judgements change neither the thing nor the value of the thing. The truth in this case was perceived not only by the early Christians but also by the philosophers, who said, as we have shown elsewhere, that it is characteristic of a small soul not to be able to bear an insult.
3. From this it is also clear that we ought not to accept with approval the opinion handed down by most authorities, that slaying in self-defense is permissible according to divine law (for I do not dispute the statement that it is permissible by the law of nature), even if one can escape without danger, because flight, especially in the case of a nobleman, would be disgraceful. And yet in such an act there is no disgrace; there is only a false notion of what is dishonorable, a notion deserving of contempt on the part of all true seekers after virtue and wisdom. On this point I am glad to have the support, among jurists, of Charles Dumoulin.
What I have said about a blow and flight, I wish to consider as said also about other occurrences which in reality do not in any degree affect our honor. But what if some one should spread a report about us, which, if believed, would hurt our standing in the estimation of good men? There are those who teach that such a person also can be slain. But this view is wholly erroneous, and contrary to the law of nature as well; slaying under such circumstances is not the proper means to be employed to defend one’s reputation.
XI. By the law of nature it is permissible to kill in defense of property.
We may now come to injuries that are attempted upon property.
If we have in view expletive justice only, I shall not deny that in order to preserve property a robber can even be killed, in case of necessity. For the disparity between property and life is offset by the favorable position of the innocent party and the odious role of the robber, as we have said above. From this it follows, that if we have in view this right only, a thief fleeing with stolen property can be felled with a missile, if the property cannot otherwise be recovered. In his speech against Aristocrates, Demosthenes exclaims: ‘In the name of the gods is not this a hard and unjust thing, contrary not only to written laws but also to the law common to all men, that I am not permitted to use force against the man who, in the manner of an enemy, seizes and carries off my property? ‘
If, furthermore, we leave divine and human law out of account, regard for others, viewed as a principle of conduct, interposes no hindrance to such action, unless the stolen property is of extremely alight value and consequently worthy of no consideration. This exception is by some rightly added.
XII. How far defense of property is permitted by the law of Moses.
1. Let us see what the purport of the Hebraic law is; for in harmony with the Hebraic law is the ancient law of Solon which Demosthenes refers to in his speech against Timocrates, and from which a law of the Twelve Tables was derived; also an ordinance proposed by Plato in the ninth book of the Laws.
All the laws mentioned agree in this, that they make a distinction between a thief who commits a theft by night and one who steals in the daytime. In regard to the reason for the law, however, there is doubt. Some think that the only consideration had in view was this, that at night it is impossible to determine whether the intruder is a thief or an assassin, and so he can be killed as if he were an assassin. Others hold that the distinction rests on this point, that at night, since the thief is unknown, there is less chance of recovering the property.
In my opinion the framers of the laws had sharply in mind neither of the considerations suggested. It was their desire, rather, to establish this principle, that no one should be killed for the sake of property merely; such a case might arise, for example, if with a missile I should strike down a thief in flight, in order that by killing him I might recover the thing stolen. If, however, I myself should be brought into peril of life, then it should be permissible for me to ward off danger from myself, even with danger to the life of another; and it should not be to my disadvantage that I should expose myself to danger through the effort to keep possession of what belonged to me, either by seizing it after it had been taken or by capturing the thief. In following such a course no accusation could be brought against me, since I should be engaged in a lawful act, and since, acting within my right, I should be doing no one an injustice.
2. The distinction, then, between the act of a thief by night and by day is founded on this fact, that at night it is difficult to procure witnesses. If, therefore, a thief is found slain, it is easy enough to give credence to the man who alleges that he killed the thief in self-defense, especially if a dangerous weapon is found with the body. The latter condition is in fact recognized in the Hebraic law, which speaks of a thief caught ‘in the act of breaking in’; for this is by some translated ‘while digging through,’ but others, perhaps better, render it ‘with an instrument for digging through,’ the Hebrew word being thus explained also in Jeremiah (2:34) by the most learned of the Jews.
I am led to adopt the latter translation by the law of the Twelve Tables, which forbids the killing of a thief by day, but adds the exception: unless he defend himself with a weapon. The presumption against a thief at night is, therefore, that he has defended himself with a weapon. As weapons, moreover, instruments of iron, clubs, and stones are understood, as Gaius noted in connection with this very law. Ulpian on the contrary maintained that the legal provision that the man who kills a thief at night is free from punishment must be understood to have effect only if he could not spare the life of the thief without danger to himself, while, of course, defending his property.
3. The presumption therefore, as I said, favors the man who has killed a thief by night. If, however, there should chance to be witnesses, through whom it can be established that the man who killed the thief was not brought into peril of life, in such a case the presumption will cease to be valid and the slayer will be held on the charge of murder. The law of the Twelve Tables further required that the man who had detected a thief, whether by day or by night, should make the fact known by shouting, undoubtedly that, as we learn from Gaius, magistrates or neighbors might if possible hasten to the place in order to give aid and to serve as witnesses. But because people are more easily brought together by day than by night, as Ulpian notes in connection with the passage of Demosthenes just cited, the one who alleges the endangering of life at night is more readily believed.
4. There is a similar provision in the Hebraic law,’ which directs that the word of a maid be taken in regard to rape committed in the country, but not in a city, because in town she could, and. should, have summoned help by screaming.
To the considerations already presented we may add also this, that even if conditions in other respects are the same, nevertheless when things happen at night it is less easy to investigate them and find out what they are and how serious; wherefore they are more terrifying. The Hebraic law, then, as well as the Roman, enjoins upon citizens what regard for others suggests, that they should not kill a man merely because he is stealing property, but that such an act of violence becomes permissible only in case the person who has sought to safeguard his property has himself been exposed to danger. Moses Maimonides remarked that for one individual to kill another is not permissible except to safeguard that of which the loss is irreparable, life and chastity.
XIII. Whether, and under what limitations, it is permissible, according to the law of the Gospel, to kill in defense of property.
1. What, now, shall we say in regard to the law of the Gospel? Does it permit the same that the law of Moses permitted? Or since it is more perfect in other respects than the law of Moses, does it also in this case demand more from us?
That the law of the Gospel demands more from us, I do not doubt. For if Christ bids that a tunic and a cloak be given up, and Paul, that an unjust loss be endured, rather than that recourse be had to a lawsuit a contest without bloodshed how much more do they wish that things also of greater value be relinquished rather than that a man, the image of God, sprung from the same blood with ourselves, should be killed! Wherefore, if a thing belonging to us can be saved in such a way that there seems to be no danger of causing death, it may rightly be defended; if not, then the thing should be given up, unless perchance it is of such a sort that our life and the life of our family is dependent on it and it cannot be recovered. by process of law, since the thief is unknown, and also that there is some prospect that recovery will be made without slaughter.
2. Although today almost all jurists and theologians teach that we have a right to kill a man in the defense of our property, even going beyond the limits within which such an act was permitted by the law of Moses and the Roman law as, for instance, if the thief be making off with what he has stolen nevertheless we do not doubt that the opinion which we have just set forth was held by the early Christians. And upon that matter Augustine, too, had no doubt; his words are as follows: ‘How, in the presence of Divine Providence, can those be free from sin who have polluted themselves with the killing of men for the sake of things which ought to be viewed with contempt? ‘
In this matter, undoubtedly, as in many others, discipline has become relaxed with time,’ and little by little the interpretation of the law of the Gospel has begun to be adjusted to the customs of the age. Formerly among the clergy conformity to the ancient practice was ordinarily kept up; but finally even the clergy have been released from censure in this matter.
XIV. Whether the civil law, in permitting that life he taken in self defense, confers a right, or merely freedom from punishment, is discussed, with a noting of distinctions.
The question is raised by some whether the civil law at any rate, since it contains the right of life and death, in permitting that a thief be killed by a private individual, does not at the same time free the act from all guilt.
In my judgement this ought by no means to be conceded. In the first place, the law does not have the right of death over all citizens for any offence whatever, but only for offences so serious that they deserve death. Altogether worthy of approval is the opinion of Scotus, that it is not right to condemn any one to death except for the crimes which the law of Moses punished with death, or, in addition, for crimes which, judged by a fair standard, are equally heinous. For in this so serious matter it seems possible to obtain a knowledge of the divine will, which alone gives peace of mind, from no other source than from that law, which does not with certainty appoint for the thief the penalty of death.
Furthermore, the law ought not to confer, and ordinarily does not confer, upon private individuals the right to put to death even those who have deserved death, excepting only in the case of the most atrocious crimes; otherwise the authority of the courts would have been constituted in vain. Wherefore, if the law says that a thief is killed with impunity, we are to consider that it takes away a penalty but does not also confer a right.
XV. When a single combat may be permissible.
From what we have said it is apparent that two conditions can arise under which individuals may engage in single combat without blame.
The first condition is, when an assailant grants to the person attacked an opportunity to fight, though determined to kill him without combat in case he does not fight. The second is, if a king or magistrate matches against each other two criminals deserving of death; in this case it will indeed be their privilege to grasp at a hope of safety. The official who has ordered such a combat, however, would seem not to have discharged his duty properly, since, if the punishment of one seemed sufficient, it would have been better to choose by lot which one should die.
XVI. Concerning defense in public war.
What has been said by us up to this point, concerning the right to defend oneself and one’s possessions, applies chiefly, of course, to private war; yet it may be made applicable also to public war, if the difference in conditions be taken into account.
In private war the right is, so to say, momentary; it ceases as soon as circumstances permit an approach to a judge. But since public wars do not arise except where there are no courts, or where courts cease to function, they are prolonged, and are continually augmented by the increment of fresh losses and injuries. Besides, in private war, self-defense is generally the only consideration; but public powers have not only the right of self-defense but also the right to exact punishment. Hence for them it is permissible to forestall an act of violence which is not immediate, but which is seen to be threatening from a distance; not directly for that, as we have shown, would work injustice but indirectly, by inflicting punishment for a wrong action commenced but not yet carried through. This point there will be an opportunity to take up later.
XVII. A public war is not admitted to be defensive which has as its only purpose to weaken the power of a neighbor.
Quite untenable is the position, which has been maintained by some, that according to the law of nations it is right to take up arms in order to weaken a growing power which, if it become too great, may be a source of danger.
That this consideration does enter into deliberations regarding war, I admit, but only on grounds of expediency, not of justice. Thus if a war be justifiable for other reasons, for this reason also it might be deemed far-sighted to undertake the war; that is the gist of the argument which the writers cited on this point present. But that the possibility of being attacked confers the right to attack is abhorrent to every principle of equity. Human life exists under such conditions that complete security is never guaranteed to us. For protection against uncertain fears we must rely on Divine Providence, and on a wariness free from reproach, not on force.
XVIII. A public war is not admitted to be defensive on the part of him who has himself given just cause for war.
1. Not less unacceptable is the doctrine of those who hold that defense is justifiable on the part of those who have deserved that war be made upon them; the reason they allege is, that few are satisfied with exacting vengeance in proportion to the injury suffered. But fear of an uncertainty cannot confer the right to resort to force; hence a man charged with a crime, because he fears that his punishment may be greater than he deserves, does not, on that account, have the right to resist by force the representatives of public authority who desire to take him.
2. He who has done injury to another ought first to offer satisfaction to him whom he has injured, through the arbitrament of a fair-minded man; if such an offer of satisfaction is rejected, then his taking up of arms will be without reproach. Thus Hezekiah did not abide by the terms of the treaty which his forefathers had made with the king of Assyria; but being attacked in war he confessed his fault, and left it to the king to determine what reparation was due. Having made reparation, afterward he was attacked. in war a second time; supported now by a clear conscience he withstood the violence of the enemy, and enjoyed the favor of God. Pontius the Samnite, after restitution had been made to the Romans and the instigator of the war had been delivered up, said:
Whatever wrath of the gods has come upon us in consequence of our breaking of the treaty has been expiated. I am well enough assured that those gods whose pleasure it was that we be subjected to the necessity of making restitution were not pleased that the satisfaction offered for violation of the treaty was so scornfully rejected by the Romans. What more do I owe to you, Roman, what more to the treaty, what more to the gods, the judges of the treaty? Whom shall I accept as arbitrator between your anger and my punishment? I raise objection to no one, whether people or private person.
Likewise when the Thebans had offered just satisfaction in all respects to the Lacedaemonians, but the Lacedaemonians were insisting on more, Aristides, in his first speech On Leuctra, said that the justice of the cause had passed to the other side.