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CHAPTER XXIII: Of the dubious Causes of War. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of the dubious Causes of War.
I.From whence Causes of doubt in moral Matters proceed.I. What Aristotle says, holds very true, that we cannot expect1 the same Degrees of Evidence, in Moral, as in Mathematical Sciences, because Mathematicians consider2 Forms abstractedly from Matter, and Forms themselves are generally such3 as will not admit of any Mean, as between strait and crooked there is nothing of a Medium to be found; but in Ethics the least Circumstances alter the Matter, and the Forms or Qualities treated of in such Sciences4 have commonly some Mean coming between them, and of such an Extent, that they sometimes draw nearer to this, and sometimes to that Extream. So between what we ought, and what we ought not to do, there is a Medium, viz. that which is permitted, but it approaches sometimes nearer to one, sometimes to the other Extream; whence we are often at a stand to know, which of the Extreams it has the nearer Alliance to, as in a Twilight, or Lukewarm Water, and this is what5Aristotle says, ἔστι δὲ χαλεπὸν, &c. It is often difficult to judge which Side to take. Andronicus Rhodius explains it thus, τὸ κατ’ ἀλήθειαν, &c.aIt is hard to distinguish what is really just, from what appears to be so.
II.We are to do nothing against our Conscience, tho’ it be erroneous.II. 1. But this we are first to take notice of, that tho’ an Action be in itself lawful, yet if upon weighing all its Circumstances, he who performs it is of Opinion that it is unlawful, that Action is vicious and bad; and this is what St. Paul means in asserting, Rom. xiv. 23. that whatsoever is not of Faith is Sin;1 in which Passage Faith is taken for the Judgment which a Man passes upon a Thing; for GOD has given us a distinguishing Power, called Conscience, conformable to whose Dictates we are to square our Actions, and whenever we neglect and contemn its Suggestions, our Minds degenerate and become brutish.
2. But it often comes to pass, that the Judgment can afford no Certainty, but hangs in Suspence and Doubt,a which if, upon thorough Consideration, we cannot be satisfied in, Cicero’s Direction will not be amiss,2 who forbids us to do any Thing,3whilst we are in doubt whether we shall do well or ill. The Hebrew Rabbins give<484> us this Caution,bforbear what is doubtful; but this Advice cannot take Place, when a Man is as it were forced to do one or the other, and yet doubts of the Lawfulness of either; for in that Case he is to chuse the safer Side, that which he thinks to be least unjust;4 for at all Times when we are under a Necessity of chusing, then the lesser Evil puts on the Form of Good; of two Evils we must take the least, says Aristotle;5 and Cicero6 advises the same; and Quintilian7 tells us, that if we compare Evils together, the smallest holds the Place of Good.
III.That our Resolutions are determined by Reasons drawn from this Thing itself.III. But in doubtful Points, generally speaking, when the Mind has made some Examination, it does not hover any longer, in a Suspence and Equilibrium, but is drawn to one Side or the other,1 by Arguments deduced from the Thing itself, or by the good Opinion it entertains of other Men, who have declared themselves upon that Affair. For here that true Saying of2Hesiod takes Place, It is best to see with one’s own Eyes, and to be guided by one’s self, and next to that, where Knowledge is wanting, to be guided by the Judgment of another. As for the Arguments deduced from the Thing itself, they are taken from the Causes, the Effects, and other Circumstances.
IV.Or by the Authority of others.IV. 1. But for our right Understanding of these Things, some Ingenuity and Experience are necessary, and those who want these Qualificationsa must listen to the Directions of wiser Men in order to regulate their Judgment in Practice. For according to1Aristotle Things are probable, when all the World agree to them, or the Generality of the World, or at least the Men of Understanding; and again, when either all these Men of Understanding, or the Majority of them, or however the most Eminent agree to them. And this way of judging is what Princes chieflymake use of,2 who can hardly afford Time enough to learn and examine by themselves the most subtle Points of Arts and Sciences.
3Aristides in his Harangue to the Rhodians upon Concord tells them, that, as when<485> a Fact is in dispute, that which has the greatest Number of, and those the most credible Witnesses to assert it, is held for Truth, so in Matters of Practice, where Opinions are different, those are the safest to be entertained and followed, which rely upon the Authority of the most numerous and judicious. Thus the old Romans first advised with the4 College of certain Priests (Feciales) established for that Purpose before they declared War against any Nation, and the Christian Emperors seldom or never undertook one without consulting their5 Bishops; to the End that if there was any Thing that could raise any Scruple, they might be warned and advertised of it.
V.If a Scruple arise in a Matter of Importance, on both Sides of the Question, and we are obliged to determine one way or other, we must choose the safest Resolution.V. 1. But it may happen in several Controversies, that the Argument on both Sides may seem probable, as well from the Reason of the Thing itself, as from the Authority of others, and when it so falls out, if the Cases in Question be inconsiderable and of indifferent Concern, either Side may be adhered to, and the Judgment be blameless. But if the Matter in Hand be of great Moment, such as the putting a Man to Death, then on account of the vast Difference between the Things to be chosen, the safest Side is preferable, according to the usual Saying,
And therefore it is better to run the Hazard of acquitting a Criminal, than of condemning the Innocent.
2. The Author of those Problems that go under2Aristotle’s Name, says, There is none of us all, who would not sooner clear the Guilty, than condemn the Innocent; and he adds this which we have mentioned before as his Reason, ἔστι γὰρ, &c. For when a Man is in a doubt, he is to chuse that Side where there is the least Fault. Parallel to this is the Saying of Antiphon, εἰ δέον, &c.aIf we must do amiss, it is better to pardon tho’ unjustly, than to condemn wrongfully; for by the former we are only guilty of a Mistake, by the latter of a horrid Crime.
VI.Whence it follows that we are not in such a Case to declare for War.VI. Now War is a Matter of the weightiest Importance, since it commonly brings many Calamities, even upon the Innocent, and therefore when there are Reasons on both Sides of the Question, we ought to incline to Peace. Fabius is on this Account much commended by Silius Italicus,1 who gives the following Character of him:
Now there are three Ways whereby Misunderstandings among Princes may be accommodated without a War.
VII.For this may be avoided by a Conference.VII. 1. The first is by a Conference: There being two Sorts of disputing in the World, says1Cicero, the one by Reason, the other by Force, that agreeable to the Nature of Man, and this to Brutes, we ought never to have recourse to the latter,<486> but when we cannot redress our Grievances by the former. A Man of Prudence and Discretion, saysaTerence,2would try every Method rather than that of Compulsion; how do you know but that he may do it without any Force at all. Apollonius Rhodius speaks to the same Effect, μηδ’ αὕτως, &c.bTry first with Words, before you go to Blows; and Euripides,
And in his Suppliants he blames the States that neglected this Means of Accommodation.
And Achilles in his Tragedy of Iphigenia at Aulis:
The very same we read in Euripides’s Phoenissae.
Pheneas in Livy makes this Improvement of it,3Men for preventing of War do allow of several Things which by force of Arms they could not be compelled to. And Mardonius in Herodotus’s Polymnia taxes the Greeks upon this Score: τον̂ς χρη̂ν, &c.cWhose Duty it was, since they were of the same Language, to have endeavoured to compose their Differences by the Mediation of Heralds and Embassadors, rather than by the Point of their Swords.
2. Coriolanus in Dionysius Halicarnassensis, says τὸ μὴ, &c.dIf any Body without desiring what is another’s Property, only sues for his own, and being not able to obtain it does thereupon declare War, all the World will acknowledge that War to be just. King Tullus in the same Author maintains,e that what cannot be accommodated by fair Means must be decided by foul ones. I must profess, says Vologeses in Tacitus,fI had rather keep the Conquests my Ancestors have left me, by Justice than by the Effusion of Blood, by a Conference than by Force of Arms. And King Theodorick takes Noticeg that it is then only our Interest to run to Arms, when we cannot otherwise have Justice done us by our Enemies.
VIII.Or by Arbitration; whereof the Duty of Christian Kings in respect of the Parties at War.VIII. 1. The second way to prevent War between those, who, not belonging to the same Jurisdiction, have no common Judge to appeal to, is1 to put the Matter to<487> Arbitration: ἐπὶ τὸν δίκας, &c. says Thucydides,2It is barbarous and abominable to fall upon him as an Enemy, who is willing to put his Case to Reference. So Diodorusa relates that Adrastus and Amphiaraus submitted the Determination of the Crown of Argos to the Judgment of Eriphyle. Five Lacedemonianb Umpires were chosen between the Athenians and Megarenses to settle the Right of the Island of Salamis. The forementioned Thucidydesc tells us that the Corcyreans notified to the Corinthians, that they were ready to refer the Matter in Controversy to such Cities of Peloponnesus, they should agree upon. And Pericles is extolled by3Aristides, that for the Prevention of War δίκη, &c. he offered to refer himself. And Isocrates in his Oration against Ctesiphon, reckons this amongst King4Philip’s Commendations, That he was ready to refer the Differences which he had with the Athenians to any disinterested and impartial State.<488>
2. Thus did the Ardeatesd and Arcinians formerly, and after them the Neapolitans5 and Nolans, who submitted all their Matters in Dispute to the Determination of the Romans; and the6Samnites in their Variance with the Romans appeal to their common Friends. Cyruse refers the Point between him and the King of Assyria to the Indian King. The Carthaginians for avoiding War about the Controversies with7Masinissa, appeal to Judgment. And the Romans themselves, as to their Differences with the Samnites, (according to8Livy) do so to those they were both in Alliance with. Philip of Macedon would have his Disputes with the Grecians ended after the same Manner. Pompey allowed Arbiters to the Parthians and Armenians, when theyf demanded it, for regulating their Bounds and Limits. Plutarch tells us,9That it was the principal Business of the Roman Priests, called Feciales, to prevent the coming to a War, till all Hope of Accommodation by Means of Arbitrators was lost. Strabo says of the10Druids in Gaul: That in former Times they were the Umpires between Nations at War, and had often accommodated Matters upon the very Point of an Engagement. The same Author records,g that the Priests in Spain did use to do the same.
3. But much more are Christian Kings11 and States obligedh to take this Method for the Prevention of War and Bloodshed; for if certain Arbitrators were constituted both by Jews and Christians to prevent their going to Law in Infidel Courts, and the same was expresly commanded by St. Paul, 1 Cor. vi. &c. how much more should we be inclined to it, for the avoiding of a much greater Inconvenience, which is War? It is from hence that Tertullian argues that12A Christian must not bear Arms, since he is not so much as allowed to commence a Law Suit; which Expressions, as it was observed in anotheri Place, are to be taken in a qualified Sense.
4. And for this, as well as several other Reasons, it would be not only convenient, but somewhat necessary that Congresses of Christian States were held, where, by them who are no ways interested on one Side or other, the Differences of contending Parties might be made up; andk that some Means were thought upon13 to oblige the Parties at Variance to accept of a Peace upon fair and reasonable Terms: And that this very Business14 was the Druids Employment15 formerly among the Gauls is what Diodorusl and Strabom inform us. And we read too that the Kings of France referred the Division of their Kingdom to their16 Nobles.<489>
IX.Or by casting of Lots.IX. The third Way to prevent War is to determine Differences1 by casting Lots: Which Method Dion Chrysostom highly approves of in his second Oration in Fortunam, and before his Time2Solomon, Prov. xviii. 18.
X.Whether Duelling may be allowed for preventing War.X. 1. Something like this is1 Duelling, a Custom which is not altogether to be rejected, if two Antagonists,2 whose Disputes would otherwise involve whole Nations in Misery and Ruin, are willing to decide the Matter themselves by the Sword, as Hyllusa and Echemus formerly did about Peloponnesus; Hyperochusb and Phemius about a Province near Inachus; Pyraechma, the Aetolian, and Degmenus the Epean aboutcElis; Cerbis and Orsua aboutdIba: For the People may accept of this way of Determination (if it be not justifiable in the Champions themselves) as being the lesser Evil. Metius in Livy thus addresses himself to3Tullus, Let us make use of some compendious Way of deciding which of us shall sway the Scepter, with as little Bloodshed as possible. Strabo4 records this as an antient Custom of the Greeks, and Aeneas5 in Virgil pronounced it justifiable, that the Matter depending between him and Turnus should be so determined.
2. Agathias in his first Book, where he describes the Manners of the antient Gauls, does in particular extreamly commend this Custom; his Words, as being very remarkable, I shall set down at large:6If any Difference happen between their Princes, to Arms they immediately go, as tho’ they were resolved to have the Matter determined by the Sword; on they march, but when the Armies advance near one another, laying aside all Animosity, they enter into Sentiments of Peace, and tell their Kings either to make up the Difference, or to fight it out in single Combat, and so end the Dispute at the Hazard of their own Lives: It being neither agreeable to Reason nor the Usage of their Country, that their Kings, on Account of their private Piques and Quarrels, should embroil, or overturn the State. They therefore presently disband their Armies, and enjoy a free and peaceable Commerce, being perfectly reconciled. So great a Regard for Justice and such an Affection for their Country had those Subjects, so tender and condescending was the Temper of their Kings.
XI.That the Person in Possession has the better of it, where the Case is equally doubtful.XI. But tho’ in a doubtful Case both Sides are obliged to endeavour after Terms of Peace, to avoid the Mischiefs consequent upon War, yet does this concern him who makes the Demand, more than him who is in actual Possession.a As in all Cases of equal Claim the Possessor has the better Title,1 not only by a Civil, but also by a natural Right: The Reason of this has been already2 laid down out of the Problems ascribed to Aristotle. And here we must further add,b that he, who is satisfied in the Justice of his own Cause, but cannot produce sufficient Evidence,<490> whereby to convince the present Occupant of the Injustice of his, cannot lawfully declare War, because he has no Right to force his Adversary to quit his Possession.
XII.If neither be in Possession where the Case is equally dubious the Thing depending may be divided.XII. Where the Title is doubtful anda neither Party in actual Possession, or both equally, there he shall be reputed the unjust Person who refuses to accept the Half of the Thing in Controversy, when it is tendered to him.
XIII. 1. From what has been premised, That much controverted Question may be easily solved,aWhether War can be just and lawful on both Sides, with Respect to the chief and principal Authors of it.1XIII.Whether a War may be just on both Sides, explained by several Distinctions. Here we must distinguish the different Acceptations of the Word Just. A Thing may be termed just, either from its Cause, or according to the Effects it produces. Again in respect of the Cause, either as Justice is taken in a particular Sense, or in that general Signification under which are comprehended all Sorts of Rectitude. Further, this strict and special Acceptation of the Word Justice, is divided into that which regards the Action, and that which regards the Agent.2 The first Sort of Justice may be called positive, and the other negative. For the Agent is said sometimes to act justly whilst he acts not unjustly, tho’ that which he acts be not just, as Aristotle3 very judiciously distinguishes between τὸ ἀδικεɩ̂ν, and τὸ ἄδικον παράττειν, to do unjustly, and to do that which is unjust.
2. In the particular Acceptation of the Word, and as it regards the Action itself, War cannot beb just on both Sides, nor can any Law Suit be so, because the very Nature of the Thing does not permit one to have a moral Power, or true Right, to two contrary Things, as suppose to do a Thing, and to hinder the doing of it. But it may happen that neither of the Parties in War acts unjustly. For no Man acts unjustly, but he who is conscious that what he does is unjust; and this is what many are ignorant of. So People may justly, that is, may honestly and fairly go to War. Because Men are very frequently unacquainted with several Things, both as to Matter of Right, and as to the Fact, from whence Right proceeds.
3. In the general Sense and Meaning of the Word, it bears the Name of Just, when the Agent is for his Part in no manner of Fault.c For there are many Things done without Right, when at the same Time no Blame can be charged on the Agent, on account of an inevitable Ignorance: An Instance of this we have in those who do not conform themselves to a Law, which without any Fault of theirs they are Strangers to, tho’ that Law has been published, and so long too that they had Time enough to have been acquainted with it. Thus also it may happen in Law Suits, that both Parties may be free from Injustice or any other Fault; especially if the Plaintiff and Defendant, or either of them, has a Suit depending, not in his own, but in another’s Name; as suppose, he be a Guardian, whose Business it is not to abandon any Right of his Ward’s, tho’ never so uncertain. So Aristotle affirms,4 that in Contests about a Right that is really disputable, neither of the Parties is to blame, which he expresses by πονηρὸς, wicked or malicious, Quintilian5 is of the same Mind, when he says, that a Counsellor may honestly plead on either Side. And Aristotle adds, that to assert that a6Judge pronounces a just Sentence, is an equivocal Expression; for it may be taken either as he judges, ὡς δεɩ̂, intirely as he ought, without any Ignorance, or as he judges, κατὰ τὴν ἑαυτον̂ γνώμην, According to the best of his Capacity and his real Thoughts of the Matter. And in another Place he says,7If he determined it out of Ignorance, he has not acted unjustly.
4. But in a War it is scarce possible, but that Rashness and want of Charity will be there, on account of the great Importance of the Affair, which is indeed of<491> such a Nature as to require not Reasons barely warrantable, but the clearest Evidences in the World.
5. But if we construe the Word Just, as it respects some Effects of Right, it is plain that War in this Sense may be on both Sides just, as it will be made out by what we shall lay down by and by concerning a publick War, in form. In the same Manner as a wrong Sentence, and an unjust Possession have some8 Effects of Right.
[1 ]See the Passage related at large in Pufendorf, Law of Nature and Nations, B. I. Chap. II. § 1. and what I have said in the Notes upon that Paragraph.
[2. ]Pufendorf has examined this in the last cited Chapter, § 9. All that our Author says, proves only, that the Application of the Principles of Morality to particular Cases is often very difficult. See my Preface to the same Work of Pufendorf, § 3. Num. 3.
[3. ]In this Sort of Forms, the Change is made Εἰς τὸ ἀντικείμενον, from one Extremity to the other: Whereas in Moral Things, it is εἰς τὸ μεταξὺ, by a Medium.Grotius.
[4. ]See St. Chrysostom upon Ephesians iv. and Aristotle, Magn. Moral. (Lib. I. Cap. IX.) Grotius.
[5. ]Ἔστι δὲ χαλεπὸν, &c. Ethic. Nicom. Lib. III. Cap. I.
[a ]Lib. 1. c. 3. p. 10.
[1 ]To the same Purpose are the following Expressions in the same Chapter of that Epistle of St. Paul, ἕκαστος ἐν τῷ ἰδίῳ νοὶ πληροϕορείσθω, Let every Man be fully persuaded in his own Mind, And μακάριος ὁ μὴ κρίνων Ἑαυτὸν ἐν ᾠ̑ δοκιμάζει, Happy is he that condemneth not himself in that Thing which he alloweth. St. Ambrose. Whatever is done contrary to the Approbation of the Judgment, is Sin. St. Austin is of the same Mind; they are both quoted by Gratian after Chap. XIV. Caus. XXVIII. Quaest. I. Not very foreign to this is that of Plutarch in his Timoleon, δεɩ̂ οὐ μόνον, &c. For an Action must not only be good and just in itself, but the Persuasion upon which it is grounded must be firm and constant, that so we may do it out of Principle and Conviction.Grotius.
[a ]See Covar. Tom. 1. De Matrimon. Part 2. c. 7. § 2. n. 9. & seqq.
[2. ]Bene praecipiunt, qui vetant quidquam agere, quod dubites, aequum sit an iniquum. De Offic. Lib. I. Cap. IX. See Pufendorf upon this, Lib. I. Cap. III. § 8. Law of Nature and Nations.
[3. ]And Pliny the younger: Aut si tutius putas, illud cautissimi cujusque praeceptum:Quod dubitas ne feceris, id ipsum rescribe, Lib. I. Epist. XVIII.
[b ]R. Gamaliel, in Perke Aboth, p. 14. Ed. P. Fagii.
[4. ]This requires to be rectified. See the Place in Pufendorf which I have cited in the second Note of this Paragraph.
[5. ]Ethic. Nicomed. Lib. II. Cap. IX. p. 27. Vol. II. Edit. Paris.
[6. ]Sed quia sic ab hominibus doctis, &c. De Offic. Lib. III. Cap. I.
[7. ]Nam in comparatione malorum, &c. Instit. Orat. Lib. VII. Cap. IV. p. 626. Edit. Burman.
[1 ]St. Austin says, Lib. III. De Ordine. When the Obscurity of an Affair perplexes us, here are two Ways for us to go, either to follow our own Reason, or some other’s Authority. This is explained by Gabriel Vasquez, Disput. LXII. Chap. III. Num. 10. See also Medina I. 2 Quaest. XIV. Grotius.
The Poet adds, he who wants Understanding himself, and will not follow that of others, is a worthless Wretch:
(Oper. & Dier. Ver. 293. & seqq. Edit. Cleric.) This Thought has been copied by Livy, who puts it into the Mouth of Minutius speaking to his Soldiers: Saepe ego audivi, Milites, eum, primum esse virum, qui ipse consulat quid in rem sit; secundum eum, qui bene monenti obediat: Qui nec ipse consulere, nec alteri parere sciat, eum extremi ingenii esse. Lib. XXII. (Cap. XXIX. Num. 8.) Cicero has also borrowed it: All the World allows him to be the wisest Man, who can himself judge what is most expedient and necessary, and that he is next to him who conforms to the good Counsels of another. Sapientissimum esse dicunt eum, cui, quod opus sit, veniat in mentem: proximè accedere illum, qui alterius bene inventis obtemperet. Orat. pro Cluent. (Cap. XXXI.) Grotius.
[a ]Franc. Victor. De Indis, Relect. 1. n. 12. and De Jure Belli, n. 21. and 24.
[1 ]Topic. Lib. I. Cap. I.
[2. ]Quibus artium momenta ediscere aut expendere vix vacat. Our Author has here imitated what Cicero says in regard to Cato Major, Et primum M. Catoni vitam ad certam rationis normam dirigenti, & diligentissimè perpendentiMomenta Officiorumomnium, de officio respondebo. Orat. pro Muren. Cap: II. He cites here the Greek Verse in the Text without saying from whence he took it.
That is; The Conversation of wise Men makes Princes wise. This is an antient proverbial Sentence, as Aulus Gellius tells us, Noct. Attic. Lib. XIII. Cap. XVIII. upon which the Commentators may be consulted, who however have not observed, that Stobaeus, Serm. XLVIII. cites it as from Euripides; and others, as from Sophocles, as appears from the Excerpta ex Trag. & Comoed. Graecis of our Author, p. 122. As to the Thing itself, it is but too true, that the Great in general, and especially Princes, see little with their own Eyes, and rely upon those of others. But this proceeds not from the Want of Time or Means of being instructed by themselves in the Affairs, of which they are obliged to judge. If they were well educated, and would employ as many Hours for that Purpose, as they devote to Pleasures and frivolous Occupations; they would have all the Leisure necessary to enable them to judge for themselves, in acquiring sufficient Knowledge: And they generally have all the necessary Means in their own Hands, if they would vouchsafe to use them.
[3. ]Vol. II. p. 378.
[4. ]See the Dissertation of Mr. Jensius, De Fetialibus, in his Ferculum Literarium, printed 1717.
[5. ]But were those Bishops to know better than the Emperors, what related to so important a Part of the Power and Duty of Sovereigns? Have Ecclesiasticks, or ought they to have, a sufficient Knowledge in political Affairs to determine, when War ought, or ought not, to be made? If we consider the Temper that many amongst them have been of in all Ages, there is more Reason to fear that they would engage a Prince in unjust and rash Wars. The History of such of them as have been Ministers of State sufficiently proves this.
[1 ]Verum in istam partem potius peccato tamen. [Terent. Adelphi. Act II. Scen. I. Ver. 20.] Ammianus Marcellinus, [or rather Cicero, Epist. ad Quint. Fratr. I. 1. cited by that Historian] says, that a Facility to be angry and to be appeased is better than implacable Wrath, and that therefore the former Vice is preferable to the latter, as the least of two Evils: Interdum enim exoratus parcebat aliquibus, &c. Lib. XXVIII. (Cap. I. p. 562. Edit. Vales. Gron.) See Gabriel Vasquez, Disput. LXII. Cap. IV. Num. 21. Grotius.
[2. ]Ἔτι δὲ ἕκαστος ἡμω̂ν μα̂λλον ἂν προέλοιτο τον̂ ἀδικον̂ντος (it should be read so instead of μὴ ἀδικον̂ντος) ἀποψηϕίσασθαι ὡς οὐκ ἀδικεɩ̂, ἢ τον̂ μὴ (it is here the μὴ should be added, which is wrong placed in the preceding Line) ἀδικον̂ντος καταψηϕίσασθαι ὡς ἀδικεɩ̂, &c. Sect. XXIX. Num. 13. Grotius.
[a ]Orat. 14. 15. p. 133. Edit. Wech.
[1 ]He says,
[1 ]Nam, quum sint duo genera decertandi, &c. De Offic. Lib. I. Cap. XI.
[a ]Eunuch. Act. 4. Scen. 7. V. 19, 20.
[2. ]Dionysius Halicarnassensis, in Excerpt. legat. μὴ πρότερον ἄρξαι, &c. We must not proceed to Deeds before we have tried what Words can do. And Menelaus in Libanius, πρω̂τον μὲν, &c. For it is more agreeable to human Nature, to attempt by Reason and Argument to have Justice done one, than immediately to fly to Arms. Not very different from this are those Reflections of the Chorus in Euripides’s Helena.
[b ]Argon. l. 3. v. 185.
[3. ](Lib. XXXV. Cap. XLV. Num. 4.) Donatus ad Eunuchum: For it is an Observation almost to a Proverb, That what a Man will stand up for, and maintain with all his Might and Main when you would force it from him, he will generously part with, when you quit your Pretensions.Grotius.
[c ]Lib. 7. cap. 9. n. 2. Ed. Gronov.
[d ]Antiq. Rom. l. 8. c. 8. p. 468. Edit. Oxon. 487. Sylb.
[e ]Lib. 3. c. 11. in fin.
[f ]Annal. l. 15. c. 2. n. 3.
[g ]Cassiodor. Var. iii. 1.
[1 ]A Method indeed generally slighted by the more potent. See Connestagius about the Union of the two Crowns of Castile and Portugal: but this is a Way that ought to be taken by those who have any Regard to Justice and Peace. Several great Princes and People mentioned in the Text, have done it. Let us subjoin a few more. The Contest between Magnus and Canutus, Kings of Norway and Denmark, each of them laying Claim to both Crowns, was put to Arbitration: Just as Julian, the first of that Name, finding that Severus disputed with him the Empire, would have a Decree about the Possession. Magnus King of Sweden was chosen Umpire between the two Ericks Kings of Denmark and Norway. Five Spartans, Critoliadas, Amompharetus, Hipsechidas, Anaxilas, Cleomenes, were elected Judges of the Controversy of the Athenians and Magarenses about Salamis. In the Treaty of the Lacedemonians and the Argives in Thucydides V. δίκας δίδόντας κατὰ πάτρια, willing, as the Custom of their Ancestors was, to compromise the Matter. And again, εἰ δὲ τὶς τω̂ν, &c. If any Dispute should happen between two States in Alliance, let them refer their Cause to some other State that is indifferent to them both. You have both these Passages in Thucydides, Lib. V. Several Nations independent of the Roman Empire to avoid entring into Wars, took Marcus Antoninus for the Arbitrator of their Controversies. Victor and others take Notice of this. In Procopius, Gotthic. III. the Gepidae say to the Lombards, δίκῃ γὰρ διαλύειν, &c. For we for our Parts are ready to have our Differences concluded by Arbitration; and it is by no Means reasonable to offer Violence to those who are desirous to be determined by a Reference. And in Gotthic. IV. Theudibaldus King of Austrasia, declares himself ready to submit his Dispute with the Romans to Judgment. See too what the Romans signified to Philip, in Polybius, Excerpt. legat. Num. 4. And what there is in Antiochus’s Treaty out of the same Polybius, in Excerpt. Num. 35. The King of England was Judge of the Succession to the Crown of Scotland, and the Count of Holstein between the King of Denmark and his Brothers, as Pontanus relates it. Hist. Dan. Lib. VII. Add to these some Instances in Mariana, Lib. XXIV. Chap. XX. Lib. XXIX. Chap. XXIII. in Paruta, Lib. VII. and XI. in Bizarus, Lib. XII. Crantzius, Lib. VI. Saxonic. Cap. XV. and what we say below, B. III. Chap. XX. § 46. Grotius.
[2. ]Lib. I. Cap. LXXXV. Edit. Oxon.
[a ]Lib. 4. c. 67.
[b ]Plutarch in Solon. p. 83. Tom. 1. Edit. Wech.
[c ]Lib. 1. c. 28.
[3. ]In his second Oration against Plato. Vol. II. p. 248. B. Edit. P. Steph.
[4. ]Our Author refers us in this Place, from the first Edition of his Work, to the Oration against Ctesiphon: But Isocrates has none upon that Subject; and I do not know that the Word Ctesiphon is to be found in his Writings. He meant Aeschines: For here is the Passage in which the Orator, accusing Demosthenes of having been the Cause of the War with Philip of Macedon, says, that when that Prince offered to be determined by the Arbitration of some natural and disinterested State, Demosthenes maintained, there was no such Judge between Philip and the Athenians: Εἰ δὲ ἐπιτρέπειν (Φιλιππος) &c. Orat. Advers. Ctesiphon. p. 286. A. The Mistake of our Author arose from Isocrates’s Commendation of Philip of Macedon, especially in an Oration addressed to himself; but in which there is nothing concerning these Offers of Accommodation with the Athenians.
[d ]Liv. Lib. 3. c. 71. n. 2.
[5. ]Our Author cited Nobody here in all the Editions before mine, except Livy, Lib. VIII. which could agree only with the Instance of the Samnites related in the following Period. This proceeded from his not understanding rightly, to what the marginal Citation of Albericus Gentilis referred, De Jure Bell. Lib. I. Cap. III. p. m. 23. The Fact in Question is in Cicero, Lib. I. Cap. X. and in Valerius Maximus, Lib. VII. Cap. III. Num. 4.
[6. ]I am very much deceived, if this is not the same Fact which our Author relates a little lower, by changing the Parties. For Livy says of the Embassador, sent by the Romans to the Samnites: Quum Romanus Legatus ad disceptandum eos [Samnites] ad communes socios atque amicos vocaret, &c. Liv. Lib. VIII. Cap. XXIII. Num. 8. I know no other Place, where this is said of the Samnites in regard to the Romans: And it is very probable, that our Author, who uses in both Places the express Terms of the Original, as recited above, with this Difference only, that in the one he puts amicos, and in the other socios; it is, I say, very probable, that having at first quoted by Memory, or rather on the Credit of the same Author I mentioned in the preceding Note, who commits the same Fault, p. 23. and uses also the Word amicis; he afterwards cited by the Original itself, where he imagined he had found a new Fact, thro’ the Mistake he had fallen into, in putting the Samnites for the Romans in the first Citation.
[e ]Xenophon. Cyrop. l. 2. c. 4. § 7. Edit. Oxon.
[7. ]See Livy, Lib. XL. Cap. XVII.
[8. ]See Note 6.
[f ]Plutarch, Pomp. p. 637.
[9. ]Plutarch, Vit. Numae. p. 68. A. Vol. I. Edit. Wech.
[10. ]Geograph. Lib. IV. p. 302. A. Edit. Amstel. (197. Edit. Paris Casaub.)
[g ]Lib. 11. p. 765. Edit. Amst.
[11. ]One of the Writers of the Byzantine History, speaking of Alexander the Bulgarian says, that it was very indecent for Christians to make War with so much Barbarity upon one another, when they might accommodate their Differences with great Ease, and unite their Arms against the impious. Nicephor. Gregoras, Lib. X. Grotius.
[h ]Franc. Victor De Jure Belli, n. 28.
[12. ]I find this Passage in the Treatise De Coron. Milit. where that Father speaks thus: Et praelio operabitur filius pacis, cui nec litigare conveniet? Cap. XI.
[i ]B. 1. c. 2. § 8. n. 3.
[k ]Molina. Disp. 103. § Quando inter, &c. Aegid. Reg. De Act. Supern. Disp. 31. Dub. 4. n. 72.
[13. ]See a Precedent in Cassiodore, Lib. III. 1, 2, 3, 4. and Gail. De Pace publica, Lib. II. Cap. XVIII. Num. 12. Grotius.
[14. ]They discharged this Office because of the great Respect they were held in by the People; as appears from the Passage of Strabo quoted above Note 10. which is the same our Author had here in View, and that which agrees with that of Diodorus Siculus.
[15. ]The Druids were succeeded in this Office, and indeed with a much better Title, by the Bishops. See the Letter of the Bishops to King Lewis in the Statutes of Charles the Bald, and Roderic of Toledo, Lib. VII. Chap. III. about the Bishops of Spain.Grotius.
[l ]Lib. 5. C. 31.
[m ]Geogr. l. 4.
[16. ]I do not know whom our Author means here; for he cites Nobody. This must relate to some of the first Race of the Kings of France, amongst whom the Kingdom was hereditary, as Father Daniel shews in his Historical Preface. And our Author must have known, that the Crown of France was elective under the second Line, after what he has said above, B. I. Chap. III. § 13.
[1 ]See St. Austin, De Doctrina Christ. Lib. I. Cap. XXVIII. and Thomas Aquinas, Summ. Theol. II. 2 Quaest. XCV. Art. VIII. & ibi Cajetan.Grotius.
[2. ]See what I have said on this Head in my Discourse upon the Nature of Lot, § 27. and what our Author says below, B. III. Chap. XX. § 42.
[1 ]See below, B. III. Chap. XX. § 43. and Pufendorf, B. VIII. Chap. VIII. § 5. Law of Nature and Nations.
[2. ]The Author of the Thebais [or Seneca in the Phoenissae, according to the best Manuscripts] introduces Jocasta saying to her Sons Eteocles and Polynices: Determine which of you shall reign, between yourselves: But let not the Kingdom be ruined.
(Ver. 564, 565.) The Emperor Otho said, that it was much juster that one Man should perish for the Publick, than that a Multitude should perish for one Man. Dion [or rather his Epitomizer Xiphilinus]in Othon. (p. 204 B. Edit. H. Steph.) Grotius.
[a ]Herodot. l. 9. c. 26.
[b ]Plutarch, Qu. Graec. p. 294. Tom. 2.
[c ]Strabo, Geogr. l. 8. p. 548. Edit. Amst.
[d ]Liv. l. 28. c. 21.
[3. ]Ineamus aliquam viam, quâ, utri utris imperent, sine magna clade, sine multo sanguine utriusque populi decerni possit.Liv. Lib. I. Cap. XXIII. Num. 9.
[4. ]Upon Occasion of the single Combat between Pyraechma and Degmenus, of which mention is made a little above, Lib. VIII. p. 548. B. Edit. Amst. (357. Paris.)
[5. ]Aequius huic Turnum fuerat se opponere morti. Aen. XI. Ver. 115.
Upon just such an Account Anthony sent a Challenge to Octavius.Plutarch in his Life of Anthony, (p. 944. E. Vol. I. Edit. Wech. Grotius.)
[6. ]Lib. I. (Cap. II.) See the Statute of Charles the Bald in S. Arnulfus, and the Treaty of Aix la Chapelle. The Lombards were as equitable. See Paulus Warnefrid, Lib. I. Cap. XII. Lib. IV. Cap. XVIII. Lib. V. Cap. XL. Grotius.
[a ]Victor. De Jure Belli, n. 27. 30. Herrera, Tom. 2.
[1 ]In parì causa possessor potior haberi debet. Digest. Lib. L. Tit. XVII. De diversis Reg. Juris, Leg. CXXVIII.
[2. ]See Cap. V. of this Book, § 18. Note 4.
[b ]Lessius, De Justitia, c. 29. Dub. 10. Molina, Disp. 103. § In secundo vero, &c. Lorca ii. 2. Sect. 3. Disp. 53. n. 4.
[a ]Lorca ii. 2. Sect. 40. Disp. 53. Soto. 5. De Institut. Jur. 41. Art. 7.
[a ]Covar. in Cap. peccatun. Relect. 2. § 410. n. 6. Alciat. Paradox ii. 21. Falgos. De Just. l. 5. Picolomino. Philos. Civil. Lib. 6. c. 21. Alb. Gent. Lib. 1. c. 6.
[1 ]Gratian, in an Addition to a Passage of the Canon Law, distinguishes between a Sentence, just in its Cause, just in regard to Order, and just in Conscience, causa, ordine, animo, Caus. XI. Quaest. III. Post. Cap. LXV. Grotius.
[2. ][The first Sort of Justice may be called Positive, and the other Negative.] This Sentence had apparently been left out here by the Printers in all the Editions of [[sic: but the first. I restored it in mine published in 1720.]]
[3. ]Ethic. Nicomach. Lib. V. Cap. XI. (p. 70. A. Vol. II. Edit. Paris.) See the foregoing Chapter, and the Rhetorick of the same Philosopher. Lib. I. Cap. XIII. Grotius.
[b ]See St. Austin, De Civit. Dei. Lib. 15. c. 5. Lib. 19. c. 15. and Covar. ubi supra.
[c ]See Suarez. De Legibus, Lib. 3. c. 18. Alphons. de Castro, De potest. Leg. paen. Lib. 1. c. 1. and 3.
[4. ]He says this in Opposition to the Question of Fact, in regard to which either one of the Parties falsly denies his having done what he is conscious he has done; or the other accuses him without Grounds of having done what he has not done. Whereas, when the Question is to know what is just or unjust, there may be Ignorance on both Sides. Rhetoric. Lib. III. Cap. XVII. init. See Victorius’s Notes upon that Passage.
[5. ]The Rhetorician says, that this can scarce happen but by a Sort of Miracle; because Causes manifestly unjust, are foreign to the Art of Rhetoric: Alioquin, ubi unjusta causa, &c. Instit. Orat. Lib. II. Cap. XVII. p. 196. E. Vol I. Edit. Burman.
[6. ]Topic. Lib. I. Cap. XV. p. 190. Vol. I. Ed. Paris.
[7. ]Ethic. Nicom. Lib. V. Cap. XII.
[8. ]That is to say, unjust Effects, which may give some right before Man, but none before the Tribunal of GOD.