The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• The Whole Duty of Man
• The Author’s Preface
• Book I
• Chapter I: Of Human Actions In General, the Principles Of  ’em, and How to Be Accounted For, Or Imputed
• Chapter II: Of the Rule of Human Actions, Or of Laws In General; and the Different Qualifications of Those Actions
• Chapter III: Of the Law of Nature In General
• Chapter IV: Of the Duty of Man Towards God, Or, Concerning Natural Religion
• Chapter V: Of the Duty of a Man Towards Himself  19
• Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury to Any Man
• Chapter VII: The Natural Equality of Men to Be Acknowledged
• Chapter VIII: Of the Mutual Duties of Humanity
• Chapter IX: The Duty of Men In Making Contracts
• Chapter X: The Duty of Men In Discourse
• Chapter XI: The Duty of Those Which Take an Oath
• Chapter XII: Duties to Be Observ’d In Acquiring Possession of Things
• Chapter XIII: The Duties Which Naturally Result From Man’s Property In Things
• Chapter XIV: Of the Price and Value of Things
• Chapter XV: Of Those Contracts In Which the Value of Things Is Pre-supposed; and of the Duties Thence Arising
• Chapter XVI: The Several Methods By Which the Obligations Arising From Contracts Are Dissolved
• Chapter XVII: Of Meaning, Or Interpretation
• Book Ii
• Chapter I: Of the Natural State of Men
• Chapter II: Of the Duties of the Married State
• Chapter III: Duty of Parents and Children
• Chapter IV: The Duties of Masters and Servants
• Chapter V: The Impulsive Cause of Constituting Communities 18
• Chapter VI: Of the Internal Frame and Constitution of Any State Or Government
• Chapter VII: Of the Several Parts of Government 38
• Chapter VIII: Of the Several Forms of Government 41
• Chapter IX: The Qualifications of Civil Government 47
• Chapter X: How Government, Especially Monarchical, Is Acquired
• Chapter XI: The Duty of Supreme Governours
• Chapter XII: Of the Special Laws of a Community, Relating to the Civil Government 59
• Chapter XIII: Of the Power of Life and Death
• Chapter XIV: Of Reputation
• Chapter XV: Of the Power of Governours Over the Goods of Their Subjects
• Chapter XVI: Of War and Peace
• Chapter XVII: Of Alliances
• Chapter XVIII: The Duty of Subjects
• Two Discourses and a Commentary By Jean Barbeyrac
• Note On the Translation
• The Judgment of an Anonymous Writer On the Original of This Abridgment With Reflections of the Translator, Intended to Clarify Certain of the Author’s Principles
• Discourse On What Is Permitted By the Laws In Which It Is Shown That What Is Permitted By the Laws Is Not Always Just and Moral
• Discourse On the Benefits Conferred By the Laws In Which It Is Shown That a Good Man Should Not Always Take Advantage of the Benefits Conferred On Him By the Laws

chapter xvi

Of War and Peace

I.Necessity of War sometimes. L. N. N. l. 8. c. 6. §2.Altho’ nothing is more agreeable to the Laws of Nature, than the mutual Peace of Men with one another, preserved by the voluntary Application of each Person to his Duty; living together in a State of Peace, being a peculiar Distinction of Men from Brutes; yet it is sometimes both Lawful and Necessary to go to War, when by means of another’s Injustice, we cannot, without the Use of Force, preserve what is our own, nor injoy those Rights which are properly ours. But here common Prudence and Humanity do admonish us * to forbear our Arms there, where the Prosecution of the Injuries we resent, is likely to return more Hurt upon us and ours, than it can do Good.

II.Just Causes of War. L. N. N. l. 8. c. 6. §4.The just Causes upon which a War may be undertaken, come all to these: The Preservation of our selves, and what we have, against an unjust Invasion; and this Sort of War is called *Defensive. The Maintenance and Recovery of our Rights from those that refuse to pay them: The Reparation of Injuries done to us, and Caution against them for the future. And this Sort of War is called Offensive.

III.Amicable Composition.Not that upon a Prince’s taking himself to be injur’d, he is presently to have Recourse to Arms, especially if any Thing about the Right or Fact in Controversie remains yet under Dispute. ^† But first let him try to compose the Matter in an amicable Way, by Treaties, by Appeal to Arbitrators, or by submitting the Matter in Question to the Decision of a Lot; ^‡ and these Methods are the rather to be chosen by that Party who claims from another, because Possession, with any Shew of Right, is wont to meet with the most favourable Constructions.

IV.Unjust Causes of War. L. N. N. l. 8. c. 6. §5.The unjust Causes of War, are either those which openly to all the World are such; as, Ambition and Covetousness, and what may be reduced thereto: Or ^§ those that admit of a faint and imperfect Colour to be pretended in their Excuse. Of this Kind there is Variety: As, The Fear of a Neighbour’s growing Wealth and Power; Conveniency of a Possession, to which yet no Right can be made out; Desire of a better Habitation; The Denial of common Favours; The Folly of the Possessor; The Desire of extinguishing another’s Title, lawfully acquired, because it may be prejudicial to us; ^‖ and many more.

V.Of Deceit in War. L. N. N. l. 8. c. 6 §6.And tho’ the most proper Way of Acting in War, is by that of Force and Terrour, yet it is altogether as lawful to attack an Enemy by Stratagems and Wiles, provided that the Faith and Trust which you give him is inviolably observed. ^¶ It is lawful to deceive him by Stories and feigned Narrations, not by Promises and Covenants.

VI.Violence: L. N. N. l. 8. c. 6 §7.But concerning the Violence which may be used against him, and what belongs to him; we must distinguish betwixt what it is possible for him to suffer without Injustice, and what we may easily inflict without the Breach of Humanity. Whoever declares himself my Enemy, as he makes Profession by that very Act of enterprizing upon me the greatest Mischiefs in the World; so at the same Time he fully indulges me the Leave to imploy the utmost of my Power, without Mercy, against himself. * Yet Humanity commands me, as far as the Fury of War will permit, that I do my Enemy no more Harm, than the Defence or Vindication of my Right requires, with Care to my Security for the Time to come.71

VII.Solemn and less solemn War. L. N. N. l. 8. c. 6. §9.We commonly divide War into Solemn and less Solemn. To a Solemn War it is required, That it be made on both Sides by the Authority of the Sovereign Governours; and preceeded by a publick Declaration. The other either is not publickly denounced, or, perhaps, is begun amongst private Persons. ^† To which latter Head belong also Civil Wars.

VIII.Power of making War. L. N. N. l. 8. c. 6. §10.As the Power of making War, in all Nations lies in the same Hands, that are intrusted with the Government; ^‡ so it is a Matter above the Authority of a subordinate Magistrate to ingage in, without a Delegation from thence, tho’ he could suppose with Reason, that were they consulted upon the Matter, they would be pleased with it.

Indeed all Military Governours of fortified Places and Provinces, having Forces under them to command upon the Defence thereof, may understand it to be injoyn’d them by the very Design of their Imployments, to repel an Invader, from the Parts committed to their Trust, by all the Ways they can. But they are not rashly to carry the War into an Enemy’s Country.

IX.Wars occasioned by protecting of Refugees. L. N. N. l. 8. c. 6. §12.In a State of Natural Liberty, a Person is assaulted by Force only for the Injuries that are done by himself. But in a Community, a War often happens upon the Governour or the whole Body, when neither of them has committed any Thing. To make this appear just, it is necessary, the Act of a Third Party must by some way or other pass upon them. Now Governours do partake of the Offences, not only of their proper Subjects, but of others that occasionally flee to them; if either the Offences are done by their Permission, or that they receive and protect the Offender. The Sufferance of an Offence becomes then blameable, when at the same Time that one knows of the doing it, he has a Power to hinder it. Things openly and frequently done by the Subjects, are supposed to be known to their Governours; in whom it is always presumed there is a Power also to prohibit, unless a manifest Proof appears of its Defect. Yet to make it an Occasion of War, to give Admittance and Protection to a Criminal, who flies to us for the Sake only of escaping his Punishment, is what must proceed rather by Virtue of a particular Agreement betwixt Allies and Neighbours, than from any common Obligation; unless the Fugitive, being in our Dominions, contrives Hostilities against the Common-wealth he deserts.

X.Reprisals. L. N. N. l. 8. c. 6. §13.Another received Custom betwixt Nations, is, That the Goods and Estate of every Subject may be answerable to make good the Debts of that State of which they are originally Members; as also for all that Wrong which that State may offer to Foreigners, or that Justice it may refuse to shew them, insomuch, that the Foreign Nation, whose Subjects have been thus injur’d by this State, may retaliate the Wrong upon the Effects or Persons of such Subjects of this State, as may be found among them. And these Sorts of Executions are usually called Reprisals,* and commonly prove the Forerunners of War. Those States who are the Aggressors, and give just Cause for such Reprisals, ought to refund and make Reparation to their Subjects upon whom they have thus brought Loss and Damage, by making them liable to have such Reprisals made upon them.

XI.Of Wars in the Defence of others. L. N. N. l. 8. c. 6. §14.A War may be made by a Person, not only for himself, but for another. In order to do this with Honesty, it is requisite, that He for whom the War is undertaken, shall have a just Cause; and his Friend, a probable Reason, why he will become an Enemy to that other for his sake. Amongst those, in whose Behalf it is not only lawful, but our Duty to make War, there is, in the first Place, our Natural Subjects, as well severally, as the universal Body of them; provided, that the War will not evidently involve the State in greater Mischiefs still. Next, there are the Allies, with whom we have engaged to associate our Arms by Treaty: Yet, therein not only giving the Precedence to our own Subjects, if they should chance to stand in need of Assistance at the same Juncture; but presupposing also, that the Allies have a just Cause, and begin the War with Prudence. * After our Allies, our Friends deserve to be assisted by us, even without our Obligation to do it by a special Promise. And where there is no other Reason, the common Relation alone of Men to Men, may be sufficient, when the Party imploring our Aid is unjustly oppressed, to engage our Endeavours, as far as with Convenience we are able, to promote his Defence.

XII.The Liberty of killing, &c. in War. L. N. N. l. 8. c. 6. §18.The Liberty that is in War, of killing, plundering, and laying all Things waste, extends it self to so very large a Compass, that tho’ a Man carries his Rage beyond the uttermost Bounds of Humanity, yet in the Opinion of Nations, he is not to be accounted infamous, or one that ought to be avoided by Persons of Worth. ^† Excepting, that amongst the more Civilized World, they look upon some particular Methods, of doing Hurt to Enemies, to be base; as poisoning Fountains, or corrupting of Soldiers or Subjects to kill their Masters, &c.

XIII.Of things taken in War. L. N. N. l. 8. c. 6. §20.Moveable Things are understood to be Taken in War then, when they are carried out of the Reach of the Enemy who before possessed them. * And Things immoveable, when we have them within our Custody so, that we can beat the Enemy away from thence. Yet the Right of the former Possessor to retake the same, is never utterly extinguished, till he renounces all his Pretensions to them by a subsequent Agreement. For without this, it will be always lawful, by Force, to retrieve again what by Force is lost. The Soldiers fight by the Authority of the Publick; and whatever they obtain from the Enemy, they get it not for themselves, but properly for the Community they serve. Only it is customary in most Places, to leave to them by Connivance the Moveables, especially those of small Value, that they take, in the Place of a Reward, or perhaps instead of their Pay, and for an Incouragement to them to be free of their Blood. When Things immoveable that have been lost to, are retaken from the Enemy, they return into the Possession of the former Owners: ^† And Moveables ought to do the same; but that amongst most People they are delivered over and foregone as a Prey to the Army.

XIV.Conquest. L. N. N. l. 8. c. 6. §24.Empire72 also or Government comes to be acquired by War, not only over the particular or single Persons conquered, but intire States.^‡ To render this lawful, and binding upon the Consciences of the Subjects, it is necessary, That on the one Side the Subjects swear Fidelity to the Conqueror; and on the other, that the Conqueror cast off the State and Disposition of an Enemy towards them.

XV.Truce L. N. N. l. 8. c. 7. §3.The Proceedings of War are suspended by a Truce; which is an Agreement (the State and Occasion of the War remaining still the same as before,) to abstain on both Sides from all Acts of Hostility for some Time appointed. When that is past, if there be no Peace concluded in the Interim, they resume their Hostilities again, without the Formality of a new Declaration.

XVI.Treaties of Truce.Now Truces are either such as they consent to during the Continuance of the Expedition, whilst both Sides keep their Forces on foot; or those, on which they quite disband their Forces, and lay aside all Military Preparations. The first are seldom taken but for a small Time. The others they may and usually do take for a Continuance so long, as to carry the Face of a Peace; and sometimes also the very Name, with the Addition of some Term of Years, only to distinguish it from a perfect Peace indeed, which regularly is Eternal, and extinguishes the Causes of the War for ever. * Those that they call tacit Truces, oblige to nothing. For as on both Sides they lie quiet for their Pleasure, so, whenever they think fit, they may break out into Acts of Hostility.

XVII.Treaties of Peace. L. N. N. l. 8. c. 8.But when a Peace is mutually ratified by each Sovereign Governour, upon Articles and Conditions agreed betwixt themselves, which they ingage to observe and put in Execution faithfully by a Time prescribed; then a War is perfectly ended. ^† In Confirmation whereof, it is usual, not only for both Parties to take their Oaths and interchange Hostages; but for some others oftentimes, especially amongst the Assistants at the Treaty, to undertake the Guaranty of the same, with Promises of Aid to him who ever is first injured by the other, in Contravention to the Articles of the Peace that is made.

[*] Grotius de Jure Belli & Pacis, l. 1. c. 2.

[*] Grotius de Jure Belli & Pacis, l. 2. c. 1, &c. to l. 2. c. 23.

[†] Grotius de Jure Belli & Pacis, lib. 2. cap. 23, 24.

[‡] Grotius de Jure Belli & Pacis, lib. 2. c. 23. §12.

[§] Grotius, l. 2. c. 24. §4.

[‖] Grotius, l. 2. c. 1. §17. Cap. 22. §5.

[¶] Grotius de Jure Belli & Pacis, l. 3. c. 1. §6, &c.

[*] Grotius, l. 3. c. 4. §2. Cap. 11, 12, &c.

[71.]In conceiving of the enemy only as someone who threatens the rights of the territorial sovereign, hence as someone who need be harmed only to the extent that it is necessary to defend these rights, Pufendorf is reflecting the secularized conception of the enemy that arose following the Thirty Years’ War and the Peace of Westphalia (1648). The enemy was no longer a criminal or heretic on whom one waged war of annihilation, but a “just enemy” on whom one waged limited war in order to protect purely secular territorial rights.

[†] Grotius de Jure Belli & Pacis, l. 1. c. 3. §4.

[‡] Grotius, &c. l. 1. c. 3. §1.

[*] Grotius de Jure Belli & Pacis, l. 3. c. 2. §4.

[*] Grotius de Jure Belli & Pacis, l. 2. c. 25.

[†] Grotius de Jure Belli & Pacis, l. 3. c. 1, &c. c. 4. §15, &c.

[*] Grotius, l. 3. c. 6.

[†] Grotius de Jure Belli & Pacis, l. 3. c. 9. §13.

[72.]I.e., imperium or rule.

[‡] Grotius de Jure Belli & Pacis, l. 3. c. 7. &c. 15.

[*] Grotius de Jure Belli & Pacis, l. 3. c. 21. §1. &c.

[†] Grotius, l. 3. c. 20. §2, &c.