The Online Library of Liberty

A project of Liberty Fund, Inc.

• The Rights of War and Peace Book Ii
• Chapter I: Of the Causes of War; and First, of the Defence of Persons and Goods.
• Chapter II: Of Things Which Belong In Common to All Men.
• Chapter III: Of the Original Acquisition of Things; Where Also Is Treated of the Sea and Rivers.
• Chapter IV: Of a Thing Presumed to Be Quitted, and of the Right of Possession That Follows; and How Such a Possession Differs From Usucaption and Prescription.
• Chapter V: Of the Original Acquisition of a Right Over Persons; Where Also Is Treated of the Right of Parents: of Marriages: of Societies: of the Right Over Subjects: Over Slaves.
• Chapter VI: Of an Acquisition (possession Or Purchase) Derived From a Man’s Own Deed; Where Also of the Alienation of a Government, and of the Things and Revenues That Belong to That Government.
• Chapter VII: Of an Acquisition Derived to One By Vertue of Some Law; Where Also of Succeeding to the Effects and Estate of a Man Who Dies Without a Will.
• Chapter VIII: Of Such Properties As Are Commonly Called Acquisitions By the Right of Nations.
• Chapter IX: When Jurisdiction and Property Cease.
• Chapter X: Of the Obligation That Arises From Property.
• Chapter XI: Of Promises.
• Chapter XII: Of Contracts.
• Chapter XIII: Of an Oath.
• Chapter XIV: Of the Promises, Contracts, and Oaths of Those Who Have the Sovereign Power.
• Chapter XV: Of Publick Treaties, As Well Those That Are Made By the Sovereign Himself, As Those That Are Concluded Without His Order.
• Chapter XVI: Of Interpretation, Or the Way of Explaining the Sense of a Promise Or Convention.
• Chapter XVII: Of the Damage Done By an Injury, and of the Obligation Thence Arising.
• Chapter XVIII: Of the Rights of Embassies.
• Chapter XIX: Of the Right of Burial.
• Chapter XX: Of Punishments.
• Chapter XXI: Of the Communication of Punishments.
• Chapter XXII: Of the Unjust Causes of War.
• Chapter XXIII: Of the Dubious Causes of War.
• Chapter XXIV: Exhortations Not to Engage In a War Rashly, Tho’ For Just Reasons.
• Chapter XXV: Of the Causes For Which War Is to Be Undertaken On the Account of Others.
• Chapter XXVI: Of the Reasons That Justify Those Who Under Another’s Command Engage In War.

CHAPTER XXVI

Of the Reasons that justify those who under another’s Command engage in War.

I.Who are they who may be said to be under another’s Jurisdiction.I. We have already treated of those who are at their own Liberty and Disposal; there are others, who are in Circumstances of Obedience and Submission, such as Sons in Families, Slaves, Subjects, and likewise every1 individual Member of a State, if compared with the Body of the State of which he is a Member.

II.What they must do in Case they are allowed to deliberate, or to have a free Choice.II. But thosea too, if they are consulted by their Superiors, or it be left to their own Choice, either to have War or Peace, they ought to follow the same Directions, which were prescribed for those, who according to their own Discretion have Authority to make War in behalf of themselves and others.

III.They must not take up Arms, tho’ commanded, if they are persuaded that the Cause is bad.III. 1. But ifa they have Orders given them to take up Arms, as is usual, then if it plainly appears that the War is unlawful, it is their Duty not to meddle in it. It is the Doctrine not only of the Apostles,1 but of Socrates also, that we should obey GOD rather than Man, Acts v. 29. And we have the Opinion of the2Hebrew Rabbins for not obeying our Prince, when he enjoins any Thing repugnant to GOD’s Law. It was St. Polycarp’s Saying a little before his Death, δεδιδάγμεθα, &c.3We have learnt to pay to Governments, to the Powers ordained by GOD, all due Honour, provided that Honour does not obstruct or hazard our eternal Salvation. And St. Paul’s Advice, Ephes. vi. 1. is, Children obey your Parents4in the LORD,<508> for this is right. Upon which St. Jerome says,5it is a Sin in Children not to obey their Parents, but because Parents may command something that is ill, he added, in the LORD. And6 of Servants he subjoins, When their Master, according to the Flesh, bids them do any Thing different from the Injunctions of their LORD, according to the Spirit, they are not to obey. And in another Place, they are subject to Parents and Masters only in such Things as are not against the Commandments of GOD. For that same Apostle had declared before, Ephes. vi. 8, that every Man, whether he was Bond or Free, should receive from GOD according to his Works. And Tertullianb tells us, that the Apostle’s Precept7of obeying Magistrates, Princes, and publick Powers, is sufficient Instruction for us to Obedience, but only so far as our Religion permits. In the Martyrology Sylvanus the Martyr says,8On this Account do we contemn the Roman Laws, that we may observe the Commands of GOD. To9Creon in Euripides making this Demand,

• It is not fit my Orders be obey’d?

Antigone replies,

• No; if you order what’s unjust and cruel.

And Musonius says, thatcif any one does not comply with his Father,10the Magistrate, or his Master, in such Commands as are scandalous and unlawful, he is neither Disobedient, Injurious nor Wicked.

2. Gellius11 does not allow that we should do every Thing a Father Commands. For what, says he, if he should command me to betray my Country, to murder my Mother, or to do any other such horrid and impious Act? And therefore the middle Opinion seems the best and most secure, that in some Cases we ought to obey him, in others not. And Seneca12 the Father says, we are not to yield Obedience to all Sorts of Commands. And13Quintilian, There is no Necessity that Children should do all that their Parents bid them. There are several Things which cannot be lawfully done; for Instance, if a Father commands his Son to pass a Judgment against his Conscience; to witness or to vote in a Matter, which he knows nothing of. If you should order me to fire the Capitol, to seize on the Castle, I might then safely answer, this is what ought not to be done. Seneca says further, Neither is it lawful for us to command all<509> Things; nor are our Servants bound to obey us in all Things; they shall not obey us, when we command them to do any Thing against the State; they shall not assist us in our Crimes. Sopater says ἔδει, &c. We must obey a Father, and we do well to obey him, provided his Commands are according to the Laws; but if they are contrary to Honesty, it is by no Means proper.14Stratocles was formerly laughed at for aiming to constitute a Law at Athens, that whatever pleased King Demetrius should be reckoned an Act of Piety towards the Gods, and of Justice among Men. Pliny in his Epistle to Minutius says, that he had made it his Business to demonstrate,15 that Obedience was in some Cases a Crime.

3. Those Civil Laws that readily pardon slight Offences, are favourable too to those who are under a Necessity of obeying, but not in all Cases. For they except16 those Crimes which are of avery he in ous and flagitious Nature, being apparently and in themselves wicked and detestable, as17Tully speaks; or as18Asconius explains it, such barefaced Villanies as one ought of one’s self, and from the Light of Nature, without having any Occasion for the Opinion of a Lawyer in the Matter, at the first View to recoil and fly from.

4.dJosephus relates from Hecataeus, that the Jews who bore Arms under Alexander the Great, could neither by Scourges,19 nor any other Abuses, be compelled, together with the other Soldiers, to bring Earth for the Reparation of the Temple of Belus at Babylon. But we have an Instance more suitable to the Affair in Hand in the Thebaean Legion, whiche we spoke of before; and in20Julian’s Soldiers, of whom St. Ambrose writes thus; Julian the Emperor, tho’ an Apostate, had Christian<510> Soldiers under him, to whom when he said21march in Defence of the State, they instantly obeyed; but when he said draw upon the Christians, then they owned no other Sovereign but the King of Heaven. So we read of some publick Executioners who being converted to Christianity, chose rather to die, than be concerned in the Execution of Christians.

5. It will amount to the very same Thing, if a Man is22 persuadedf that what he is commanded to do is unlawful; for to him it continues to be so, till he is convinced of the contrary, as appears by what has been said above.

IV.What they must do if they are not satisfied, whether the Cause be good or bad.IV. 1. But suppose he be not satisfied one way or other, must he forbear, or comply? The general Opinion is that he should comply; neither should that celebrated Maxim prohibit him, Act not at all in a doubtful Case; for he who is scrupulous in Speculation, may have no Scruple at all in Practice: Because he may believe, that in dubious Matters he is to yield Obedience to a Superior. And indeed it must be owned, that in many Cases the Distinction of the Judgment into Speculative and Practical, takes Place. The Civil Laws of other Nations, as well as of the Romans, do1 not only indemnify those who obey in such a Case, but will allow of no civil Action against them: He, say they,2does the Damage, who commands it to be done; but he is in no Fault who is obliged to obey. The Necessity of obeying him who has Power to command furnishes a lawful Excuse: And such other Maxims.

2. And3Aristotle himself in the fifth of his Nicomachia, reckons the Slave that does what his Master commands, among those who tho’ they do what is unjust, yet act not unjustly: And says, that it is the Author of the Action who is the unjust Person, because a Slave has not all the Judgment necessary4 to distinguish what is just from what is unjust, according to the Proverb,

• Ἥμισυ τη̂ς ἀρετη̂ς ἀποαίρει δούλιον ἡ̂μαρ
• The Day a Man’s a Slave he loses half his Wit.

And this other like it,

• Ἥμισυ γὰρ τε νόου, &c.<511>
• Half understanding Jove allots to those
• Whom he appoints to lead a servile Life.

And that which Philo uses:

• Δον̂λος πέϕυκας οὐ μέτεστί σοι λόγου.
• 5Thou’rt a Slave: Thou no Reason hast.

And to the same Purpose is that of Tacitus,6The Gods have given the Prince the Power to judge sovereignly, leaving Subjects the Glory to obey. And the same Writer informs us, that Tiberius7 cleared the Son of Piso from the Imputation of Sedition, because his Father had laid his Commands upon him, whose Commands he could not refuse.8A Servant, says Seneca, is not a Judge of the Legality of his Master’s Commands, it is his Business to execute them.

3. And St. Austin is of the same Opinion as to what regards War in particular, which is the present Question, for he says,9If it happens that a good Man bears Arms even under a sacrilegious King, he may safely venture to fight when he is commanded, without doing any Thing contrary to the Order established for the Tranquillity of civil Society, provided he is fully certain, that the Commands enjoined him are not repugnant to the Laws of GOD, or is not certain whether they be so or no: For in this Case the King perhaps may be guilty on the account of his commanding what is ill, but the Soldier is justified in his Obedience. And in another Place, When a Soldier in obeying his Officer who has a Right to command him, kills a Man,10the Laws of his Country acquit him of Murder; nay, if he does not do it he is reputed a Rebel; whereas had he done it of his own Head, he had been guilty of Murder. So that that very Fact which would have punished him without an Order for it, would also punish him for neglecting that Order. And therefore it is an Opinion commonly received,a that as to Subjects a War may be just on both Sides, that is, exempt from11 Injustice; agreeable to which is that of the Poet,

• To know in War which Side the juster is,
• Is none of our Business.

4. There is however some Absurdity in this. AndbAdrian, a Dutch Man, who was the last Cisalpine Pope, maintained thec contrary, which is proved not from that particular Reason which he alleges, but by this more convincing one, that he who doubts in Speculation, ought in his Practice to make choice of the safer Side. And the safer Side is this,12 not to go to War at all. The Essences are mightily<512> commended, because, among other Things, they took an13 Oath, To hurt no Body, tho’ commanded to do it. The14Pythagoreans followed their Example, who, as Jamblicus records, abstain from War for this Reason, that15War introduces Murders, and gives them the Sanction of Law.

5. The Danger of Disobedience on the other Hand, ought not to be objected: For when both are uncertain, he does not contract any Guilt, who sticks to that which he knows is the least of two Evils that he fears; for if the War be unjust it is no Disobedience to decline it.d Disobedience in such Cases is in its own Nature16 a less Evil than Homicide, especially than taking away the Lives of many innocent People. The Antients tell us, that when Mercury17 was charged with the Death of Argus, his Defence was, that he had Jupiter’s Command for the doing of it, yet that the Gods did not presume to acquit him. Nor does18Martial altogether excuse Pothinus, one of Ptolemy’s Guards, in the following Lines,

• Less criminal indeed Pothinus is
• Than Anthony, for what he did he had
• His Master’s Order for, but th’other’s Fact
• Was by his own Instigation done.

Nor is that which some produce to the contrary of any great Importance;e that if this should be allowed, the State would soon be ruined, because it is generally not convenient to let the People into the Reasons of the Prince’s Designs, for tho’ this be true of the Motives, yet it is not so of the justifying Reasons of War, which should be made19 plain and demonstrable, and consequently, such as should and ought to be laid before all the World.

6. What Tertullian said a little too indistinctly perhaps of Laws, may be very justly applied to Proclamations for War.20Nor can a Subject discharge his Obedience to the Laws as he ought, if he does not know what it is the Law punishes: No Law should itself only be conscious of its Justice, but should communicate it too to those it expects a Compliance from. For indeed a Law is very much to be suspected, which does not care to submit to an Examination. And it is a tyrannical Law that<513> requires absolute Obedience, tho’ it cannot alledge any good Reason to prove the Justice of it.21Achilles, in Statius, to Ulysses, who is inviting him to a War, says,

• Tell me the Causes of the Grecian War,
• I fain would know them to excite just Rage.

And22Theseus, in the same Poet,

• March chearful on, let the Justice of your Arms
• Advance your Courage.

It was23Propertius’s Observation, that

• The Cause does raise or sink the Soldier’s Heart,
• If that be bad, his Resolution’s gone.

Parallel to this is that of the24 Panegyrist, So great a Share in War has a good Conscience, that Victory is rather owing to the Integrity, than to the Courage, of the Soldiers. And accordingly some Men of Learning interpreted the Word ורק, Jarech, he armed,25Gen. xiv. 14. in this Sense, that Abraham’s Servants were before the Engagement thoroughly informed by him of the Justice of his Arms.

7. And therefore Declarations of War used, as we shall shew you by and by, to be made publick, and the Reasons for it precisely expressed, that so all Mankind, as it were, might judge of the Justice of it. Prudence,26 (according to Aristotle) is indeed a Virtue peculiar to the Prince, but Justice belongs to every Man as he is a Man.

8. But Adrian’s Opinion, before-mentioned, seemsf absolutely to be relied on, if the Subject is not only in Suspence, but is, by probable Arguments, more enclined to believe that the War is unjust; especially if he be to take up Arms offensively, and not defensively.

9. And it is probable too, that an27 Executioner who is to put a condemned Malefactor to Death, ought to be acquainted with the Merits of the Cause, either by being present at the Trial, or by the Criminal’s Confession,28 in Order to satisfy himself that that person deserved Death; and this is still usual in some Places, and is what the Hebrew Law, Deut. xvii. 7. has an Eye to, when it injoins, that when a Malefactor is to be stoned, the Witnesses shall throw the first Stone.<514>

V.That it is an Act of Clemency and Goodness, in such a Case, for a Prince to dispense with the Service of his scrupulous Subjects, and in the Lieu of it to impose upon them some extraordinary Taxes.V. 1. But if sufficient Satisfaction cannot be given to the Subjects, by explaining to them the Reasons of the War; it is a good Prince’s Duty to impose upon them rather some1 extraordinary Tax, than a personal military Service; especially when there are others who are ready to serve him, whose Intention, be it good or bad, a just King may make Use of, as GOD sometimes does of the Devil and the Wicked; and as a Man is in no Fault, if, when pressed with Poverty, and in extreme Want, he borrows Money from a griping Usurer.

2. Nay, tho’ the Justice of the War is not at all to be questioned, yet we cannot judge it2 reasonable that Christians should be forced to carry Arms against their Consent; since to abstain from War, even when it is lawful to fight, is reckoned a greater Piece of Sanctity,3 a Sanctity which has been constantly required from the Clergy, and from Penitents, and what is to all others recommended in several Manners.4Origen makes this Answer to Celsus, upbraiding the Christians for their Refusal of going to War, To those who, being Strangers to our Religion, would command us to take up Arms for the State, and to kill Men, we thus reply, They who are your Idols Priests, and the Ministers of your reputed Gods, do keep their Hands undefiled, on the Account of their Sacrifices, that they may offer them up to your pretended Deities with innocent Hands, Hands with Murder unpolluted: Nor in War are your Priests ever listed. Now, if there be any Reason for this, then certainly you should reckon those, when others are in the War, to be, in their Way, under Arms too, who whilst, as the Priests and Worshippers of GOD, they preserve their Hands indeed pure from Blood, do yet with earnest Prayers contend with Heaven, both for them who are engaged in a just War, and for him who governs justly. In which Passage Origen calls every Christian a Priest, according to the Language of the Holy Writers, Rev. i. 6. 1 Pet. ii. 5.

VI.When Subjects may lawfully take up Arms in an unjust War.VI. 1. But yet I am of Opinion that it may sometimes so fall out, that not only in a doubtful War, but even in one manifestly unjust, Subjects may lawfully take up Arms in their own Defence: For since an Enemy, tho’ carrying on a just War, cannot have any Right, truly or in Conscience, to put to the Sword such<515> Subjects as are innocent, and have no Share in stirring up the War, unless it be in his own necessary Defence, or bya Consequence, and contrary to his Intentions; (for such Subjects are not liable to Punishment) it follows, that if it evidently appears, that the Enemy comes upon them with that Resolution of not giving the Subjects of his Enemy any Quarter, when, if he pleases, he may, then are those Subjects allowed, by the Right of Nature, to act in their own Defence, a Right which the Law of Nations has not deprived them of.

2. Nor can we even then say, that the War is just on both Sides: For the Question here is not about the War, but a certain particular Act of Hostility, which Act, tho’ his who has otherwise a Right to make a War, is yet unjust, and is therefore justly to be opposed and repelled.

The End of the Second Book.

[1 ]See Pufendorf, Law of Nature and Nations, B. VII. Chap. V. § 5.

[a ]Aegid. Reg. De Act. Super. Disput. 31. n. 80.

[a ]Fr. Vict. De Jure Belli, n. 22.

[1 ]Plato, Apolog. Socrat. (p. 29. D. Vol. I. Edit. H. Steph.) The Philosopher, Apollonius Tyanaeus, opposed the Edict of Nero, to prescribe Philosophy, with this Verse of Sophocles, (Antigon. Ver. 456).

• Οὐ γάρ τι μοι Ζεὺς ἡ̂ν κηρύξας τάδε.

This was not enjoined by Jupiter, (Philostrat. Vit. Apollon. Tyan. Lib. IV. Cap. XXXVIII. Edit. Olear.) Grotius.

[2. ]Josephus tells us, that some young People of his Nation, upon being asked by the General of Herod’s Troops, why they had thrown down the golden Eagle, which that Prince had caused to be put up over the great Gate of the Temple; replied boldly, he ought not to be surprized that they chose rather to obey the Divine Laws of Moses, by which the consecrating such Representations was prohibited, than the Decrees of Men. Antiq. Jud. Lib. XVII. See the Passage of a Rabbin cited by Drusius upon Acts v. 29. Grotius.

[3. ]Euseb. Hist. Eccles. Lib. IV. Cap. XV. See our Author’s Treatise De Imperio Summar. Potestat. circa Sacra, Cap. V. § 5, 10, 11.

[4. ]St. Chrysostom explains this Passage in the LORD, thus, τουτέστιν ἐν οἷς μὴ προσκρουσης Θεῷ, That is in those Things you do not offend GOD by. And in his Letter ad Patrem infidelem, οὐ γὰρ δὴ μικρὸς, &c. For it is no small Reward that is designed us if we honour our Parents, whom we are commanded to regard as our Lords and Masters, and to obey both in Words and Actions, provided they order us nothing that is prejudicial to Religion. It is thus that you must understand that of St. Jerome, Per calcatum perge Patrem, Go on tho’ over the Belly of thy Father; which is a rhetorical Expression, borrowed from the Rhetorician Latro, in Seneca; and thus too what you have in St. Ambrose, De Virginitate, and in St. Austin, Epist. XXXVIII. Ad Laetum, and in the fourth Canon of the first Council of Nice, according to the Arabick Translation. Grotius.

[5. ]Peccatum filiorum est, Vol. IX. p. 237. C. Edit. Froben.

[6. ]St. Chrysostom, 1 Cor. vii. 24. Καὶ γὰρ εἰσιν, &c. For the Servant too has his Limits prescribed him by GOD. And it is particularly injoined him how far to go, beyond which he must never pass. For when his Master commands him nothing disapproved of GOD, he is to be punctually followed and obeyed, but no farther. And Clemens Alexandrinus speaking of a good Wife, πάντα τῷ ἀνδρὶ, &c. She complies with her Husband in every Respect, nor does she do any Thing against his Inclinations, unless what she thinks may be of some Consequence in regard to Virtue and her own Salvation.Grotius.

The Passage of Clemens Alexandrinus is in his Stromata, Lib. IV. Cap. XIX. p. 620, Edit. Oxon. Potter.

[b ]De Idol. c. 15.

[7. ]See some illustrious Examples, both of Punishment and Commendation, in 1 Sam. xxii. 18, 19. 1 Kings xviii. 4. 13. 2 Kings i.10.12.14. And among Christians, Manuel and George refused to execute the Order for killing Augusta,Nicetas in his Life of Alexius, Manuel’s Son. (Cap. XVI.) Grotius.

[8. ]Idcirco Leges Romanos, &c. In Martyrolog.

[9. ]CR. Πω̂ς; τὰντεταλμέν οὐ δίκαιον ἐκτελεɩ̂ν;

ANT. Οὐκ, ἢν πονηρά τ’ ἡ̂ κακω̂ς τ’ εἰρημένα.

Supplic. Ver. 1642, 1643.

[c ]These Words are in Stobaeus, and are part of a pretty long Discourse, in which the Subject is treated at large. Florileg. Tit. 72. The Original is Ὤστε, &c. p. 458. Edit. Gesner. 1549.

[10. ]There are two noble Instances among the Heathens, of some who would not obey their Princes in a dishonest Action, that of Papinian is sufficiently celebrated, and the other is of Helpidius in Ammianus XXI. And Severus would not pardon those who had killed a Senator, tho’ by the Emperor’s Orders. See Xiphilinus. Grotius.

The Emperor Caracalla having caused his Brother Geta to be put to Death, would have obliged Papinian, as some say, to compose a Discourse, to excuse that Murder before the Senate or People. But the Lawyer replied, That it was not so easy to excuse, as to commit a Parricide; and that it was a second Parricide, after having deprived an innocent Person of his Life, to accuse him of Crimes, and to endeavour to blast his Memory.Spartian, in Antonin. Caracalla, Cap. VIII. IX. As to the second Instance, Constantius having commanded the Captain of the Life-Guard to put an innocent Person to the Rack, he refused it, desiring the Emperor to dismiss him from his Office, and give that Commission to another. This Helpidius was not a Pagan, as our Author supposes, but a Christian. See Valois upon the Passage here quoted. In regard to Severus, he decreed, that whoever killed a Senator, whether the Emperor, or any one by his Order, himself and his Children should be deemed Enemies of the State.

[11. ]Neque autem illa [sententia] &c. Noct. Attic. Lib. II. Cap. VII.

[12. ]Non omnibus imperiis parendum est, &c. Lib. I. Controvers. I. p. 80.

[13. ]Ergo non omnia necesse est facere liberis, &c. Declam. CCLXXI.

The same Author maintains, that the Gratitude we owe a Father and Mother, does not oblige us to do every Thing they command; for at that rate, Kindnesses would be very burthensome and dangerous, since they would reduce us to the Necessity of committing even Crimes: Non omnia esse praestanda, etiam parentibus,&c. Declam. CCCXXXIII.

[14. ]Plutarch. Vit. Demet. Vol. I. p. 899, 900. Such was the Bond Andronicus Comnenus demanded of Basilius Camaterus, ἐκεɩ̂να ἐν τῷ ἀρχιερατέυειν, &c. That in his patriarchal Office he should do every Thing that Andronicus had a Mind to, however unlawful it was, and that on the other Hand he should do nothing but what Andronicus pleased.Nicetas Choniat. In Alex. Comnen. (Cap. XIV.) Grotius.

[15. ]Horum antequam crimina, &c. Lib. III. Epist. IX. (Num. 14. Edit. Cellar.) Tertullian says, that he who commands an evil Action, deserves Punishment more than the Person who commits it; since the latter himself is not to be excused, tho’ he acts only in Obedience to the other’s Commands: Plus caeditur, qui jubet, quando nec qui obsequitur, excusatur. De Anima, (Cap. XL.) He observes elsewhere, that Justice is never more perfectly exercised amongst Men, than when it searches out those, who were only the Instruments in an Action, in order to their being punished or rewarded as well as the Authors of it who made use of their Service: Quum humana Censura, &c. De Resurrectione Carnis, (Cap. XV.) See Gaillius, De Pace publica, Lib. I. Cap. IV. Num. 14. Grotius.

[16. ]Ad ea, quae non habent atrocitatem, &c. Digest. Lib. L. Tit. XVII. De divers. reg. Juris. Leg. CLVII. There is another Law, which supposes, that a Master commands his Slave to kill a Man, to rob, or commit Piracy: Servus non in omnibus rebus, sine poena, domino dicto, &c. Leg. XLIV. Tit. VII. De obligat. & action. Leg. XX. See Mr. Noodt, Ad Legem. Aquil. Cap. X. and Observat. Lib. II. Cap. XIV.

[17. ]Neque in ulla [lege] praeteritum tempus, &c. In Verr. Lib. I. Cap. XIV.

[18. ]Maleficia sponte, &c. In hoc loc.

[d ]Contr. Apion. l. 1. p. 1048, 1049.

[19. ]In the Persuasion, that the Jewish Soldiers were in, that they should violate their Law, in serving as Workmen to carry Earth for rebuilding the Temple of a false God, their Resolution was undeniably laudable. But to consider the Thing in itself, I do not know whether their Scruple was not ill founded. Indeed, if before the Babylonish Captivity, a King of Israel or Judah had designed to erect a Temple in his Dominions to some false Divinity, his Subjects might have refused all Labour necessary for building such an Edifice; because in doing that Office, they would have contributed to the Introduction of Idolatry in a Country, from which GOD would have it entirely banished. And therefore Uriah the Priest, of whom the Scripture speaks, did wrong to execute the Order of Ahaz, in building him an Altar after the Model of that he had seen at Damascus, 2 Kings xvi. 10, &c. But here the Case is different. Idolatry had reigned long at Babylon, and would no less have reigned tho’ some Jewish Soldiers had refused to carry Stones or Earth; that is to say, to do a Thing indifferent in itself, by the Order of a Prince, in whose Service they were. Besides, Alexander did not require this of them, as a Token of their abjuring Judaism; he demanded it as a Duty purely civil. So that they ought to have made no more Difficulty of carrying Stones or Earth for rebuilding the Temple of Belus, than Naaman, the Syrian, did, with the Prophet Elisha’s Approbation, of accompanying the King of Syria in the Temple of Rimmon, and of bowing himself down to let his Master lean upon him.

[e ]B. 1. c. 4. §7. n. 9. & seq.

[20. ]For Julian did not altogether abstain from offering Violence to the Christians, especially when he thought he had some Colour for it. He is called in St. Jerome’s Epitaph. Nepotiani, (p. 26. Tom. I. Edit. Froben.) Julian, the Butcher of the Christian Army. And St. Austin, Lib. I. Cap. XXXIII. relates, that the Persecution at Antioch was begun by his Order, and that a certain Youth was put to the Rack. In the Martyrologies, there is mention made of St. Eliphius a Scot, and thirty three of his Companions beheaded by Julian’s Order, between the Cities of Toul and Grand. See also Joannes Antiochenus, in Exc. ex MS. Peiresc. St. Austin, Epist. L. Ad Bonifacium, cited by Gratian, Caus. XI. Quaest. III. Julian was an unbelieving Prince, was he not an Apostate and an Idolater? Christian Soldiers served an Infidel Emperor, but when they came to the Cause of Christ, they acknowledged no Sovereign but him in Heaven: When he was for having them worship and offer Incense to Idols, they preferred GOD before him.Grotius.

[21. ]This Passage, which is not in St. Ambrose, has been cited above, B. I. Chap. II. § 10. Num. 9. Note 38. where my Observation upon it may be seen. But St. Austin has something very like it, which our Author cited at the End of the preceding Note: Julianus, Exstitit infidelis Imperator, &c. Which our Author quotes from Lett. L. of that Father to Boniface; and he adds, that the Passage is inserted in Jus Canonic. Caus. XI. Quaest. III. Can. XCVIII. But Gratian gives it us, as from the Commentary on the Book of Psalms: And we are referred in the Margin to Psalm cxxiv.

[22. ]The Word falso, or one of the same Signification has been omitted here in all the Editions of the Original.

[f ]Victor. De Jure Belli, n. 23.

[1 ]St. Chrysostome, De Providentia III. πολλοὶ γον̂ν ἀρχόντων, &c. Many a Magistrate being impeached of putting People unjustly to Death has been punished, but Nobody ever indicted the Executioner, who was employed in the Murder, tho’ the very Person whose Hands committed it, nor ever inquired after him, because the Necessity he was under excuses him as well by the Dignity of his Principal as his own Subjection. And Ulpian out of Celsus says, That a Servant is in no Manner of Fault who only obeys his Master, Lib. II. D. De Nox. Act. He is supposed to do it against his Inclinations, who only complies with his Father’s or his Master’s Order. D. De regulis Juris, and Cujacius there. Seneca:There is Force upon a Person who is willing. Add the Lombard Law, Lib. I. Tit. IV. Chap. II. Mithridates dismissed Attilius’s freed Man unpunished, tho’ guilty of an intended Murder against him, and the Friends of his Son who had revolted from him. Appianus, Mithridatic. And Tiberius Gracchus was acquitted from the Crime of the Numantian Treaty, because it was by another’s Command that he had offended. Grotius.

[2. ]Is damnum dat qui jubet dare: ejus vero nulla culpa est, cui parere necesse est. Digest, Lib. L. Tit. XVII. De diversis Reg. Jur. Leg. CLXIX. Liber homo, si jussu alterius, Lib. IX. Tit. II. Ad Leg. Aquil. Leg. XXXVII. init.Quijussu judicis, &c. De diversis Reg. Jur. Leg. CLXVII. § 1. Grotius.

[3. ]He puts the Slave acting by his Master’s Orders in the same Class with in animate Things used in killing, for Instance, or the Hand by which one strikes, Cap. XII. He expressly in another Place calls Slaves, animate Instruments, and Instruments, inanimate Slaves: Ὁ γὰρ δον̂λος, ἔμψυκον ὄργανον· τὸ δ’ ὄργανον, ἄψυχον δον̂λος, Lib. VIII. Cap. XIII.

[4. ]This, in my Opinion, is what our Author means by these Words: In famulo vis deliberatrix non est; as when he says above of Infants very young, that they have not vis electrix, Chap. V. of this Book, § 2. num. 1. And from this want of Judgment it is supposed, according to him, that Slaves have not the Liberty to deliberate upon what their Master’s command, in order to know whether it be just or not. Hence, when he afterwards applies this Maxim to Children even at Years of Discretion, and to Subjects, his Thought is, that according to those whose Opinion he relates, a Son does not know, so well as his Father, what he ought, or ought not to do; and that Subjects have not a sufficient Knowledge of the Affairs of Government, to inter-meddle in judging of what the Sovereign commands. For which Reason the Orator Themistius, (Orat. IX.) speaking of War, compares Princes to Reason, and Soldiers, who serve under him, to Anger, as our Author observes a little lower in a short Note. It is indeed often but not always so.

[5. ]This Verse is in the Treatise of PhiloJudaeus intitled, Every good Man is free, p. 871. D. Edit. Paris. For the others, he has apparently taken the first from Longinus, who quotes it as Homer’s, Sect. XLIII. That Rhetorician had a Passage of the Odyssey in View, Lib. XVII. Ver. 322, 323.

• Ἥμισυ γάρ τ’ ἀρετη̂ς ἀποαίνυται εὐρύοπα Ζεὺς
• Ἀνέρος, εν̂̔τ ἄν μιν κατὰ δούλιον ἡ̂μαρ ἕλησιν.

These are without Doubt the two Verses our Author gives as different from the first, tho’ like it, without mentioning from whence he has them. He had read them in Plato, who quotes them exactly in the same Manner, De legibus, Lib. VI. p. 777. A. Vol. II. Edit. H. Steph. The Sense is indeed much the same.

[6. ]He puts this into the Mouth of a Roman Knight speaking to Tiberius: Tibi summum rerum judicium Dii dedêre: Nobis obsequii gloria relicta est. Annal. Lib. VI. Cap. VIII. Num. 5.

[7. ]Post quae Tiberius adolescentem [Pisonem] crimine, &c. Annal. Lib. III. Cap. XVII. Num. 1.

[8. ]Servus herilis imperii non censor est, sed minister, Lib. III. Excerpt. Controv. IX.

[9. ]Quum ergo vir justus, &c. Contra Faust. Lib. XXII. Cap. LXXV.

[10. ]The same St. Austin in his first Book De libero Arbitrio. If killing a Man be Murder, Murder may sometimes be committed without a Crime; for a Soldier who kills his Enemy, and a Judge or the Executioner who kills a Malefactor, and he who unawares and without Design lets a Weapon fall out of his Hand, do not seem to me to be any Ways to blame, when they kill a Man: Nor indeed is it usual to call such People Murderers.Gratianus has inserted this in Caus. XXIII. Quaest. V. Grotius.

[a ]Sylv. verb. Bellum, part 1. n. 9. Qu. 4. Cast. in Digest. De Just. & Jure, Leg. 5. Soto, l. 5. Q. 1. Art. 7. and Q. 3. Art. 3. Vict. De Jure Bell. n. 32. Covar. Ad Cap. peccatum, part 2. § 10. n. 6.

[11. ]Our Author here cites two half Verses, without saying from whence he has them.

• ——— Quis justius indicit arma,
• Scire nefas. ———

Lucan says this is in regard to the War between Caesar and Pompey. Pharsal. Lib. I. Ver. 126, 127. The Reason he alledges for this Uncertainty is, that the Gods declared for Caesar, but wise Cato for Pompey:

• ——— Magno se judice quisque tuetur:
• Victrix caussa Diis placuit, sed victa Catoni.

A Thought which has been censured with Reason, as too bold, and injurious to the Divinity.

[b ]Quaest. Quod. l. 2.

[c ]See Instances of other Authors, who follow this Opinion, in Lambert. Scafnaburgensis.

[12. ]This is Right, when Men are at Liberty either to enter, or not to enter, into a War. But here it is necessary to compare the Uncertainty in regard to the Justice of the War, with the evident Obligation to obey a legal Superior. So that the safest Course is to obey; because no one can doubt his being obliged to obey him, who commands, and that his Command may have nothing unjust in it, tho’ he is not assured that it is entirely just. Upon the Whole as to those Things, concerning the Justice of which there is some Reason to be doubtful, all honest and legal Methods should be tried, to prevent the Sovereign from resolving to lay us under the Necessity of doing them. See further what Pufendorf says upon this Question, B. VIII. Chap. I. § 8. or last.

[13. ]Josephus, De Bell. Jud. Lib. II. Cap. XII. p. 786. E. Porphyrius has exactly the same Words, De abstin. Animal. Lib. IV. p. 388. Edit. Lugd. 1620.

[14. ]See what is said above, Chap. II. of this Book, § 2. Note 4.

[15. ]De Vita Pythagor. § 186. Edit. Kuster.

[d ]Bald. ii. Cons. 385. Sotus, de det. Secr. Membr. 3. q. 2. in Resp. ad 1.

[16. ]But the Slaughter made in a just War, and by the Necessity of War, not being actual Homicide, and in the present Case the Subject not being assured that the War is unjust, the least Evil on the contrary, is Obedience.

[17. ]I cannot tell in what Work of the Antients our Author has found this Circumstance, and he had done better not to have alledged it; because, as Obrecht observes upon it, the Example is not to the Purpose. Mercury might and ought to have known, that Jupiter’s Order was manifestly unjust; Argus being guilty of nothing but serving Juno, in her Design of preventing the criminal Gallantries of her Husband.

[18. ]

• Antoni tamen est pejor, quam causa Pothini:
• Hic facinus domino praestitit, ille sibi.
• Epigr. Lib. III. Ep. LXVI. ver. 5, 6.

This Example is still worse applied than the former. For every Body knows it was Pothinus himself who inspired King Ptolemey with the Design of causing Pompey to be assassinated, solely to ingratiate himself with Caesar.

[e ]Victor. de jure belli. n. 25.

[19. ]But besides that, it may happen, as Boecler observes, (Diss. de Religione Mandati) that it may not be proper to alledge immediately the principal justifying Reasons; those Reasons, however clear, may be such that the greatest Part of the Subjects, and those for whom there may be most Occasion, will not be capable of conceiving their whole Force, on Account of the very Subject which requires Discussions above their Reach. Hence it would be easy for them to form Scruples, or to frame Pretexts from them for their Laziness, and Inclination to disobey. In general it is dangerous to admit, that a simple Doubt may dispense with Obedience to a lawful Superior; and it suffices to grant this Dispensation in Cases where the Injustice of the Command is evident and undeniable. It is just, where that is doubtful, that the Presumption should be in Favour of the Superior.

[20. ]Neque civis fideliter, &c. Apologet. Cap. IV. See also Ad Nationes, Lib. I. Cap. VI.

[21. ]

• ——— Quae Danais tanti primordia belli,
• Ede: libet justas hinc sumere protinus iras.
• Achilleid. Lib. II. ver. 332, 333.

[22. ]

• Ite, alacres, tantaeque, precor, confidite caussae.
• The baid. Lib. XII. ver. 648.

[23. ]I have already quoted the Passage, upon our Author’s Preliminary Discourse, § 28. Note 2.

[24. ]That Panegyrist is Nazarius, in his Panegyrick on Constantine, which is the ninth in the Collection which has been made of this Kind of Pieces. The Passage is, Tantum etiam inter arma bona conscientia sibi vindicat, ut jam coeperit non virtutis magis, quam integritatis, esse victoria, Cap. VII. Num. 2. Edit. Cellar.

[25. ]Some strain the Word הניכיר, Trained, to the same Sense, and interpret it, Informed by him. Herod, in an Harangue to the Jews, after the Defeat in Arabia, is introduced, by Josephus, saying Βούλομαι δὲ πρω̂τον, &c. I am willing first to shew you how justly we entered into this War, being necessitated to it from the Insults of our Enemies. For if you understood this, it must needs be a very great Incitement to your Courage.Grotius.

The Sense which the Interpreters our Author speaks of, give to the Words of the Book of Genesis, is not well founded. There is great Reason to believe that the sacred Historian intended to say only, that Abraham led his People armed, or provided with Arms to Battle. See Mr. Le Clerc upon that Place.

[26. ]In his Politicks, Lib. III. Cap. III. p. 268. Edit. Heinsii.

[f ]Aegid. Reg. de Act. supern. Disp. 31. Dub. 5. n. 85. Bannes ii. 2. qu. 40. Molina, Tract. 2. Disp. 113.

[27. ]This indeed, if it could be, were always best. But Executioners are generally such Sort of People, that it is impossible they should judge whether a Sentence be just or not. It is sufficient therefore to say, that they ought not to lend their Arm in an Execution commanded them, when convinced, or when they may be convinced, of the Innocence of the Person condemned, either by Proofs of Fact in which they cannot be deceived, or by Reasons of Right within their Comprehension. See what I have said of Officers and Serjeants, Pufendorf, Law of Nature and Nations, B. VIII. Chap. I. § 6. Note 4.

[28. ]And therefore Saul’s Servants, who had more Honesty and Goodness in them than Doeg, would not kill the Priests of Nob, 1 Sam. xxii.17. And Ahab’s third Captain refused to hurt Elijah, 2 Kings i. 13, &c. And some Executioners converted to Christianity, did, for the future, renounce that Office, as a very dangerous Employment. See the Martyrology and Bede, Lib. I. Cap. VII. Grotius.

[1 ]But as Henniges, one of the Commentators upon this Work, observes here, if the Prince has no Right to compel his Subjects to serve when they doubt the Justice of his Arms, he will neither have a Right to impose Subsidies upon them for carrying on the War. The Subjects who, admitting this Supposition, ought not to serve him with their Arms, can neither in Conscience assist him with their Estates; as no Aid whatsoever ought to be supplied for the Execution of a bad Action.

[2. ]It would be well indeed, not to press any one as long as a sufficient Number of Soldiers are to be had, whether Natives or Foreigners, who would list voluntarily. But, as Troops may happen to be wanting, the State would find itself without Defence, if the Sovereign were never permitted to press his Subjects, tho’ his Cause for taking Arms be never so just. Mr. Buddeus, who believes, in other Respects, with our Author, that a Subject who doubts, ought not to take up Arms for the Service of his Prince; maintains, however, that when the Justice of the War is clear, the Prince may compel his Subjects to march. See the Dissertation, De Officio Imperantium circa conscribendum militem, amongst the Selecta Juris Nat. & Gentium. Wherein I do not know whether the Principles of this ingenious Author are sufficiently consistent with themselves. For however well founded a Prince may believe his justifying Reasons to be, and tho’ they are so in effect; yet should his Subjects say, that they do not find them so, and that they doubt of their Solidity; as every Man is the sole Judge of what passes in his own Conscience, no one could ever convict them, that they were fully satisfied with Regard to the Justice of the Cause, and consequently, they could never justly be forced to serve. The Truth is, that by a necessary Consequence of the very Nature of Civil Societies, the Sovereign has a full Right to oblige his Subjects to carry Arms, when he determines to undertake a War by justifying Reasons of the utmost Evidence, and he cannot find elsewhere a sufficient Number of People who will list voluntarily; and is not obliged to have any Regard to the Scruples of those whose Service is absolutely necessary to him. But I believe it will very seldom happen, that Subjects will be convinced a Cause is unjust, when the Justice of it is evident. The most simple can hardly more than doubt in that Case; and Doubt, in my Opinion, does not exempt from Obedience. Upon the Whole, the Conflict which might arise between some Mens Rights of Conscience, and the Rights of the Sovereign, might authorize such Men to refuse Obedience; but could not hinder the Sovereign from maintaining his Authority. The Good of the State ought not to be sacrificed to vain Scruples.

[3. ]This is founded upon the Distinction of Counsels and Precepts, which we have refuted elsewhere, B. I. Chap. II.§9. Note 19. On the contrary it may be said, that to desire to be dispensed with from the War, when it is necessary, as we always suppose it, with our Author, is not only Cowardise, but Want of Charity, or rather a Violation of the Engagements every Citizen, as such, is under, to defend his Country.

[4. ]Contra Celsum, Lib. VIII. p. 427. Edit Cantab.

[a ]See B. iii. ch. 1. § 4.