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In the famous dedication of his Discourse on the Origin of Inequality to the Republic of Geneva, Jean-Jacques Rousseau drew a vivid picture of his father sitting at his watchmaker’s bench. “I see him still, living by the work of his hands, and feeding his soul on the sublimest truths. I see the works of Tacitus, Plutarch, and Grotius, lying before him in the midst of the tools of his trade. At his side stands his dear son, receiving, alas with too little profit, the tender instruction of the best of fathers....” Rousseau’s reminiscence is testimony to the authority which Grotius’s De Iure Belli ac Pacis had come to possess in the century since it was first published in 1625; in the eyes of both father and son, the book had the same standing as the great works of classical antiquity. Rousseau was to devote much of his life to a complicated and subtle repudiation of Grotius, but he never lost his sense of the book’s importance, describing Grotius in Emile as “the master of all the savants” in political theory (though he added that, nevertheless, he “is but a child, and, what is worse, a dishonest child,” and that “true political theory is yet to appear, and it is to be presumed that it never will”). The same sense of Grotius’s importance, without any of Rousseau’s reservations, had led the Elector Palatine in 1661 to endow a chair in the University of Heidelberg for the express purpose of providing a commentary on the De Iure Belli ac Pacis, a fact which is noted in the Life prefaced to this edition; as the Life also notes, the book was issued as a full edition with notes by various commentators, “by which means our Author, within 50 Years after his Death, obtained an Honour, which was not bestowed upon the Ancients till after many Ages.” The idea that the book represented something new and important for the modern age was repeatedly voiced in the “histories of morality,” which began to appear in the late seventeenth century; Grotius was described as “breaking the ice” after the long winter of ancient and medieval ethics. By the end of the seventeenth century there had been twenty-six editions of the Latin text, and it had been translated into Dutch (1626, reissued three times in the century), English (1654, reissued twice), and French (1687, reissued once). Its popularity scarcely slackened in the eighteenth century: there were twenty Latin editions, six French, five German, two Dutch, two English, and one Italian (and one Russian, circulated in manuscript).
However, for many eighteenth-century readers the definitive version of the book had appeared in Latin in 1720, when Jean Barbeyrac issued a new edition, followed by a French translation in 1724 with elaborate notes. Barbeyrac was a leading figure in the French Protestant diaspora, the network of scholars whose families had been driven out of France following the revocation of the Edict of Nantes by Louis XIV in 1685. He worked tirelessly to put his own version of modern natural law before the European public, and his editions of Grotius built on the success of a similarly elaborate edition which he had produced of Samuel Pufendorf’s De Iure Naturae et Gentium in 1706. The notes to these editions keyed their texts into all the relevant discussions of natural law from antiquity down to the 1720s, and the two works together quickly became the equivalent of an encyclopedia of moral and political thought for Enlightenment Europe. The French version of De Iure Belli ac Pacis was reprinted steadily through the middle years of the century, and it found an audience beyond the French-speaking polite world in an English translation of 1738, which is reprinted in this edition, and which seems to have been produced in a large print run. Copies of it are very common, and are found in most academic and private libraries of the period—for example, General Washington, like most well-educated English gentlemen, possessed a copy, which is now in the Houghton Library at Harvard. An Italian translation appeared in 1777.
As this publishing history in itself illustrates, it would be hard to imagine any work more central to the intellectual world of the Enlightenment. But from the late eighteenth century onward, the stream of new editions dried up, and the book came to be treated not as the formative work of modern moral and political theory but as an important contribution to a different genre, “international law” (a term coined by Jeremy Bentham in 1780). Many intellectual developments of the period contributed to this shift, including the criticisms of Grotius found (alongside his admiration) in Rousseau, and the contempt expressed by Kant for the “sorry comforters” such as Grotius and Pufendorf, whose works “are still dutifully quoted in justification of military aggression, although their philosophically or diplomatically formulated codes do not and cannot have the slightest legal force, since states as such are not subject to a common external constraint.” William Whewell, professor of international law at Cambridge and translator of Grotius, tried in the mid-nineteenth century to restore Grotius as a major moral thinker, but with limited success; by the time of the post–First World War settlement, Grotius was regarded almost exclusively as the founder of modern civilized interstate relations, and as a suitable tutelary presence for the new Peace Palace at The Hague. As we shall see, in some ways that was to radically misunderstand Grotius’s views on war; he was in fact much more of an apologist for aggression and violence than many of his more genuinely pacific contemporaries. It was also and more seriously to ignore the genuinely innovative qualities of his moral theory, qualities that entitle him to an essential place in the history of political theory.
Hugo Grotius was born on 10 April 1583, to one of the wealthy ruling families in the Dutch city of Delft. The De Groots (“Grotius” is the Latinized version of his Dutch name—in common with intellectuals all over Europe, Grotius spoke and wrote to his fellow writers in Latin, and gave himself an appropriately Latin name) were regents of the city; that is, they were members of the self-selecting oligarchy which governed Delft, like many other Dutch cities. The generation before Grotius’s birth, his relatives had fought in the great struggle that established the freedom of the northern provinces of the Netherlands from the rule of the Spanish Crown, and many of Grotius’s writings display the intense patriotism engendered by that struggle. In Grotius’s case, his patriotism was as much focused on what he called his “nation,” the province of Holland and Zeeland, as it was on the wider United Provinces, which had collectively asserted their independence, and which form the modern kingdom of the Netherlands. All his life, Grotius remained wedded to the oligarchic republicanism of cities such as Delft, and somewhat wary of bigger states.
His family had not merely fought in the war of independence; they were also participants in one of the great sources of Dutch wealth and power, the overseas trading and military activity of the Dutch East India Company. Formed out of a union of various smaller companies in 1602, the East India Company was the first of the enormous corporations that were to dominate the European overseas expansion in the seventeenth and eighteenth centuries; in its first year of operation its gross income already exceeded the ordinary revenue of the English government, and (like the English East India Company a hundred years later) it sent out military forces as well as trading vessels in order to overawe its rivals and offer help to dissident groups all over the Far East. The De Groots were shareholders in the company and sat on the board of one of its “chambers” in Delft. The fact that one of the principal actors in international politics at the beginning of the seventeenth century was not a state but a private corporation was to be of enormous significance in the formation of Grotius’s political thought.
The young Grotius was educated as a humanist, in the tradition going back to the Italian Renaissance in which the study of classical texts provided an entire education, and in which the ability to write and speak persuasively, using all the ancient arts of rhetoric, was prized above all things. Although Grotius frequently cited philosophical texts written in a more “scholastic” style (that is, the style of the “schoolmen” of the Middle Ages, in which moral or legal issues were discussed in a kind of Aristotelian terminology, with little regard for literary elegance), his own writing was always essentially humanist in character. The De Iure Belli ac Pacis is full of literary and historical material from antiquity, and Grotius would have been delighted that a Genevan watch maker should think that his book was a natural companion to the works of Tacitus and Plutarch. Grotius was a prodigy within this education system and quickly made his reputation as a Latin poet and historian. For these rhetorical skills he was picked (as well-trained humanists always hoped to be) as an adviser and secretary by a leading politician, Jan van Oldenbarnevelt, who was in effect prime minister of the Dutch Republic. Grotius quickly became caught up in the political struggles of the new republic, an involvement that was ultimately to prove personally disastrous for him.
Technically, the United Provinces was a kingdom with a vacant throne: the King of Spain had been driven out but had not been replaced. In his absence, and pending the appointment of a new monarch (which was seriously considered for the first fifty years of the republic’s existence), government was divided between the old royal governors of the seven provinces, the Statholders, and the old representative assemblies for the provinces, the Estates. The assemblies sent delegates to an Estates General of the Union at The Hague, while most of the provinces had come to appoint the same man as their Statholder, the Prince of Orange. The Union thus possessed both a monarchical and a republican element in its constitution, though the constitutional basis for the powers of the different elements was far from clear; in practice, the Statholder possessed military authority as the commander in chief of the republic’s armies, while the Estates possessed the power of taxation and finance. Each element also had a different range of supporters: broadly speaking, the Calvinist Church and its ministry looked to the princes of the House of Orange to secure its power over the population, while other more heterodox religious groups looked to the oligarchical urban rulers for their protection.
During the first two decades of the seventeenth century, the religious antagonisms within the republic reached the point where civil war was threatened. Many people (including to some extent Grotiushim self) felt that there had been little point in throwing off the tyranny of Spain if it was to be replaced by the tyranny of an organized and intolerant Calvinist Church. Oldenbarnevelt and Grotius worked tirelessly on behalf of the Estates to try to protect the more liberal theologians (in particular, the ministers who agreed with Jacobus Arminius’s denial of the Calvinist doctrine of grace) from the attacks of the Calvinists; Grotius also circulated privately a theological work of his own in which he argued for a minimalist and irenic version of Christianity. But in the end, both Oldenbarnevelt and Grotius seem to have concluded that the only way to secure religious toleration in the republic was in effect to mount a military coup against the Statholder and thereby to remove the principal weapon in the hands of the Calvinists. There is a close parallel with events thirty years later in England, when the representatives of heterodox religious groups in the House of Commons also came to the conclusion that only a coup against their prince would destroy the power of the church that he supported. In England, the Commons won, though only after a long and bloody civil war; in the United Provinces, Oldenbarnevelt and Grotius lost. Prince Maurice arrested them both and had them arraigned for treason; Grotius gave evidence against his old friend and was sentenced to life imprisonment, while Oldenbarnevelt was publicly beheaded in May 1619.
Grotius was taken in the winter of 1618 to his prison, Louvestein Castle, in the south of the United Provinces. He lived there until March 1621, when he escaped in famous and romantic circumstances: his wife arrived with a basket of books; Grotius (who was quite a small man) hid in the empty basket and was carried out of the castle. He succeeded in crossing the border to the Spanish Netherlands undetected, and took refuge in France, where he lived for most of the rest of his life. He returned to the United Provinces under a false identity in October 1631, hoping that Maurice’s successor as Statholder, Frederick William (who had always been personally sympathetic to Grotius), could arrange for him to be rehabilitated; but in the end Frederick William could not deliver an annulment of the original conviction, and Grotius slipped out of the country again in April 1632. As we shall see, these six months in his native land had an important effect on the received text of De Iure Belli ac Pacis, since Grotius issued a second edition of the work during this period in which some of his more disturbing claims were modified in order to win over his Dutch opponents. For the next three years he moved around Germany, until at the beginning of 1635 the government of Sweden appointed him as their ambassador to France, a post that allowed him to play a major role in the complex diplomacy surrounding the last years of the Thirty Years’ War. There was always a certain amount of unease in Sweden about using him in this important position, however, and in 1645 Grotius visited Sweden to defend himself against criticism; he passed briefly through the United Provinces on his way, without molestation. He failed to persuade the Swedes to renew his appointment, and left the country; his ship was caught in a storm in the Baltic and wrecked on the coast near Rostock. Grotius collapsed on shore after being rescued, and died in Rostock on 28 August 1645. His body was returned to Delft and given an honored burial by the same Dutch authorities who had kept him in exile for twenty-four years.
Though it was not published until four years after his escape, De Iure Belli ac Pacis really grew out of Grotius’s time in prison. Political prisoners in the sixteenth and seventeenth centuries enjoyed full access to their books and papers, and unlimited time to write: Sir Walter Raleigh, for example, wrote his massive History of the World while awaiting execution in the Tower of London. His two years in Louvestein allowed Grotius to revisit old projects; as he wrote to his old friend G. J. Vossius in July 1619, “I have resumed the study of jurisprudence [iuris studium] which had been interrupted by all my affairs, and the rest of my time is devoted to moral philosophy [morali sapientiae].” He told Vossius that to help his work in moral philosophy he was giving a Latin dress to the ethical passages in the Greek poets and dramatists collected by the Byzantine anthologist Stobaeus, and the effect of this approach to the subject is visible on every page of the De Iure Belli ac Pacis. Rousseau was to remark sardonically that Grotius’s use of quotations concealed the fundamental similarity between Grotius and Hobbes: “The truth is that their principles are exactly the same: they only differ in their expression. They also differ in their method. Hobbes relies on sophisms, and Grotius on the poets; all the rest is the same.” Grotius also turned his attention to rewriting and expanding his earlier work on theology, and it was this which he brought to fruition first after his escape; but once settled in France he concentrated on his juridical and moral project and wrote De Iure Belli ac Pacis between the autumn of 1622 and the spring of 1624, partly while staying as a guest at the country house of one of the presidents of the Parlement of Paris, Henri de Mesmes, at Balagny near Senlis. Printing took place slowly and inefficiently from January to March 1625; copies were rushed to the Frankfurt Book Fair in March in order to catch the eye of the European public, and in May Grotius was at last able to give a presentation copy to the book’s dedicatee, King Louis XIII of France.
Among the papers to which he must have turned while in prison was a long manuscript which he had written in 1606, before the practical requirements of Dutch politics came to occupy all his time and attention. It was a defense of the military and commercial activity of the Dutch East India Company in the Far East, and in it the central themes of De Iure Belli ac Pacis were already adumbrated. He had begun to circulate the manuscript among his friends, no doubt with a view to publishing it, but in the end only Chapter XII of the manuscript had appeared in print, as the famous Mare Liberum (1609); clearly, Grotius decided that his enforced leisure at Louvestein was an ideal opportunity to rewrite this early draft and finally put it in a publishable form. The manuscript lay unknown among Grotius’s papers until 1864, when it was discovered and published; its first editor gave it the title De Iure Praedae, The Law of Prizes, but Grotius himself referred to it more loosely as his De Indis, and its real scope was expressed by the subtitle of Mare Liberum, “a dissertation on the law which covers the Hollanders’ trade with the Indies.” Dutch expansion in the Far East was a peculiarly fertile context for Grotius’s political theory to develop, since (as I said earlier) it was essentially driven by a private corporation, interacting with local rulers such as the sultan of Johore and offering them military protection and beneficial trading arrangements. The Indian Ocean and the China Sea were an arena in which actors had to deal with one another without the overarching frameworks of common laws, customs, or religions; it was a proving ground for modern politics in general, as the states of Western Europe themselves came to terms with religious and cultural diversity. The principles that were to govern dealings of this kind had to be appropriately stripped down: there was no point in asserting to a king in Sumatra that Aristotelian moral philosophy was universally true, and not much more point in telling the admiral of the Dutch East India Company’s fleet that he had to wait for some judicial pronouncement by an appropriate sovereign before making war on a threatening naval force. The minimalist character of the principles that emerged from this setting caught the imagination of modern Europe, for they seemed to offer the prospect of an understanding of political and moral life to which all men—the poor and dispossessed and religiously heterodox of Europe as well as the exotic peoples of the Far East or the New World—could give their assent.
Grotius boldly stated his central argument as follows:
God created man αὐτεξούσιον, “free and sui iuris, ” so that the actions of each individual and the use of his possessions were made subject not to another’s will but to his own. Moreover, this view is sanctioned by the common consent of all nations. For what is that well-known concept, “natural liberty,” other than the power of the individual to act in accordance with his own will? And liberty in regard to actions is equivalent to ownership in regard to property. Hence the saying: “every man is the governor and arbiter of affairs relative to his own property.”
Grotius remained committed to this view in De Iure Belli ac Pacis, remarking in one of its most striking passages that “there are several Ways of living, some better than others, and every one may chuse what he pleases of all those Sorts.” He thus presupposed the naturally autonomous agents familiar to us from later seventeenth- and eighteenth-century political theory, who constructed their political arrangements through voluntary agreements. Though he did not have precisely the concept of the “state of nature,” which was so central to Hobbes and his successors, and which they always contrasted with “civil Society” (the product of agreement among naturally free men), he did use the terms in somewhat similar ways; and of course the domain of foreign trade and war was in itself the best example of such a state, and was always used as such by later writers.
The principles governing these autonomous natural individuals were also stated very plainly in De Iure Praedae. The Prolegomena to the work began with two fundamental laws of nature:
first, that It shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious; secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. The latter precept, indeed, we shall interpret with Cicero as an admission that each individual may, without violating the precepts of nature, prefer to see acquired for himself rather than for another, that which is important for the conduct of life. Moreover, no member of any sect of philosophers, when embarking upon a discussion of the ends [of good and evil], has ever failed to lay down these two laws first of all as indisputable axioms. For on this point the Stoics, the Epicureans, and the Peripatetics are in complete agreement, and apparently even the Academics [i.e., the Skeptics] have entertained no doubt.
The last part of this passage emphasizes Grotius’s concern that whatever one’s ethical commitments, his minimalist principles should be acceptable; in De Iure Belli ac Pacis he made the same point by selecting Carneades, the leader of the Skeptical Academy, as the person whom he needed to defeat in argument. Grotius termed these “laws” of nature, but since they were permissive in form they might be better termed “rights”; and this is what he duly did in De Iure Belli ac Pacis, where the “Right of recurring to Force, in defence of one’s own Life” (I.II.3) and the right “of innocent Profit; where I only seek my own Advantage, without damaging any Body else” (II.II.11) are the basic rights which recur throughout the book.
The right to defend oneself, Grotius always believed, extends beyond merely responding to an immediate attack. It also includes what we would normally think of as punishment, that is, the exercise of violence against a third party by whom we are not directly threatened. He was aware that this was an extremely disturbing idea, as traditionally this right was the special prerogative of civil sovereigns.
Is not the power to punish essentially a power that pertains to the state [respublica]? Not at all! On the contrary, just as every right of the magistrate comes to him from the state, so has the same right come to the state from private individuals; and similarly, the power of the state is the result of collective agreement.... Therefore, since no one is able to transfer a thing that he never possessed, it is evident that the right of chastisement was held by private persons before it was held by the state. The following argument, too, has great force in this connexion: the state inflicts punishment for wrongs against itself, not only upon its own subjects but also upon foreigners; yet it derives no power over the latter from civil law, which is binding upon citizens only because they have given their consent; and therefore, the law of nature, or law of nations, is the source from which the state receives the power in question.
This last argument is of course identical to the one used later by Locke and described by him as “a very strange doctrine.” Intriguingly, he would not have found this particular point in De Iure Belli ac Pacis, though he would have found a clear statement of the general claim, for example at II.XX.3.1.
The Subject of this Right, that is, the Person to whom the Right of Punishing belongs, is not determined by the Law of Nature. For natural Reason informs us, that a Malefactor may be punished, but not who ought to punish him. It suggests indeed so much, that it is the fittest to be done by a Superior, but yet does not shew that to be absolutely necessary, unless by Superior we mean him who is innocent, and detrude the Guilty below the Rank of Men, and place them among the Beasts that are subject to Men, which is the Doctrine of some Divines.
These natural rights of self-defense are balanced, in both De Iure Praedae and De Iure Belli ac Pacis, by two laws, properly so called. In the earlier work he specified the laws as “Let no one inflict injury upon his fellows” and “Let no one seize possession of that which has been taken into the possession of another.” However, he was at pains to stress that the rights of nature took precedence (as they were to later in Hobbes):
the order of presentation of the first set of laws and of those following immediately thereafter has indicated that one’s own good takes precedence over the good of another person—or, let us say, it indicates that by nature’s ordinance each individual should be desirous of his own good fortune in preference to that of another....
In the later work, he most clearly listed the basic laws of nature in a passage in the Preliminary Discourse, § VIII:
the Abstaining from that which is another’s, and the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men.
And he made clear in his long defense of violence, Book I, Chapter II, that these laws did not supersede our natural right to defend ourselves: “The Christian Religion commands, that we should lay down our Lives one for another; but who will pretend to say, that we are obliged to this by the Law of Nature[?]” (I.II.6.2).
The natural state of man was thus one of wary defensiveness: men should not unnecessarily injure one another, but they need not actually help one another. Only if they formed civil associations, with the express intention of improving one another’s lives and creating something richer than the state of nature, would principles such as mutual aid apply. In a “city,”
First, Individual citizens should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals; secondly, Citizens should not only refrain from seizing one another’s possessions, whether these be held privately or in common, but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole....
In De Iure Belli ac Pacis he said the same, in his discussion of the difference between “corrective” and “distributive” justice. Distributive justice, he argued, was concerned with
a prudent Management in the gratuitous Distribution of Things that properly belong to each particular Person or Society, so as to prefer sometimes one of greater before one of less Merit, a Relation before a Stranger, a poor Man before one that is rich, and that according as each Man’s Actions, and the Nature of the Thing require; which many both of the Ancients and Moderns take to be a part of Right properly and strictly so called; when notwithstanding that Right, properly speaking, has a quite different Nature, since it consists in leaving others in quiet Possession of what is already their own, or in doing for them what in Strictness they may demand. (Preliminary Discourse, X)
Aristotle (the most relevant “Ancient” referred to) was therefore wrong: it was not part of basic justice to think about the needs of others. Justice properly understood involved merely a commitment not to injure other people, unless doing so was necessary in order to protect one’s own rights.
In both De Iure Praedae and De Iure Belli ac Pacis, Grotius presented these principles of natural law as themselves derived from some fundamental metaethical commitments, and the character of these commitments occasioned extensive controversy, both in his own time and later. Although the Prolegomena to De Iure Praedae began with the simple statement “What God has shown to be His Will, that is law,” even in that work Grotius refused to derive the laws of nature from “oracles and supernatural portents.” Instead, they were to be deduced solely from “the design [intentio] of the Creator” as manifested in the generally recognized constitution of the natural world. Self-defense was the first and most basic of all principles: all individuals (not just men, but also animals, and even inanimate objects) possessed a fundamental drive to preserve themselves. Grotius was even prepared to say (quoting Horace) that to this extent “expediency [utilitas, “profit” or “self-interest”] might perhaps be called the mother of justice and equity,” though he acknowledged that only part of justice was based on self-defense. Once their preservation was secured, individuals had other goals; in the case of men (and to a degree far exceeding that of other creatures), they were endowed with a desire for a social life with other individuals of the same kind. Grotius more than once in De Iure Praedae described this trait as “ homini proprium, ” “special to men,” and from it he derived the remaining part of natural justice, the laws obliging us to abstain from injuring our fellow men. But in his discussion of this part he always insisted on its subordinate status to the right of self-preservation and on its minimal character—mutual aid and distributive (as distinct from corrective) justice were not part of this natural “ cognatio ” but appeared with cities and civil society.
In the Prolegomena to De Iure Belli ac Pacis, Grotius set out a very similar theory, though its similarities to the earlier work were appreciably clearer in the first edition than in the edition he produced while attempting to return to the United Provinces. Just as in De Iure Praedae he had restricted the derivation of natural law to what all men agreed on as the basic physical principles governing all beings, so in the Prolegomena to De Iure Belli ac Pacis he asserted that it “necessarily derives from intrinsic principles of a human being.” He was now even more blunt about the exiguous role of God, declaring in the most famous remark of the book that “what I have just said would be relevant even if we were to suppose (what we cannot suppose without the greatest wickedness) that there is no God, or that human affairs are of no concern to him.” As in De Iure Praedae, Grotius accepted that God had indeed created the world and peopled it with beings constituted along these lines; but one did not need to think about the divine character of the creation to apprehend what the constitution of the physical world was, and all peoples at all periods of history, irrespective of their religious commitments, had agreed on the principles of natural law. Self-preservation was still the first of these principles: “nature drives each animal to seek its own interests [utilitates],” and this was true “of man before he came to the use of that which is special to man [antequam ad usum eius quod homini proprium est, pervenerit].” But this was balanced by the same ideas as in the earlier work, that what is proprium or special to man is a desire for a much richer social life than is possessed by any other animals, and in particular for a social life governed by rational principles. This desire is the basis for our respect for one another’s rights, and is “the source of ius, properly so called, to which belong abstaining from another’s possessions, restoring anything which belongs to another (or the profit from it), being obliged to keep promises, giving compensation for culpable damage, and incurring human punishment.” Anything further, involving distributive justice and the recognition of merited distinctions between people, might arise from this natural justice but was not, strictly speaking, part of it. Grotius now denied that Horace had been right in saying that utilitas was the mother of justice, but since he had qualified his endorsement of the remark in De Iure Praedae, his new comment on the passage did not represent a major repudiation of his old view.
It is clear that both Grotius’s derogation of the role of God and the priority he gave to self-interest were alarming to many of his contemporaries, particularly among the Calvinists who surrounded the Prince of Orange. In order to accommodate the book more to their views when he produced the second edition, Grotius toned down his argument. Thus he cut out the claim that man was driven purely by self-interest “before he came to the use of that which is special to man” and replaced it with the emphatic assertion that “ the Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted. ” Similarly, he contrived to widen the scope of God’s authority. For example, in 1625 the very first sentence of the Prolegomena included the claim that “few people have tackled the law that mediates between different countries or their rulers, whether that law stems from nature itself or from custom and tacit agreement, and so far no one at all has dealt with it comprehensively and methodically.” In 1631, this read “ that Law, which is common to many Nations or Rulers of Nations, whether derived from Nature, or instituted by Divine Commands, or introduced by Custom and tacit Consent, few have touched upon, and none hitherto treated of universally and methodically ”—Grotius now allowed that the law of nature might be “instituted by Divine Commands.” Similarly, he dropped the word “necessarily” from the sentence where he had said that the natural law “necessarily derives from intrinsic principles of a human being” and added to his discussion at that point the thought that
God by the Laws which he has given, has made these very Principles more clear and evident, even to those who are less capable of strict Reasoning, and has forbid us to give way to those impetuous Passions, which, contrary to our own Interest, and that of others, divert us from following the Rules of Reason and Nature;for as they are exceeding unruly, it was necessary to keep a strict Hand over them, and to confine them within certain narrow Bounds. (Preliminary Discourse, XIII)
So he now conceded that the natural law might properly be deduced not from the necessary constitution of the physical world, but from the records of God’s pronouncements about the law directly to mankind.
Almost all these changes are found in the Prolegomena; the remainder of the book continued to lay out the same case that Grotius had advanced in the first edition. The result of this was to throw many of his later readers, including Barbeyrac, into some confusion; Barbeyrac consistently sought to emphasize the wider character of Grotian sociability and to bring him in line with Pufendorf (whose main aim was to attack the account of man’s narrow and self-interested natural life found in Hobbes). But anyone who read the first edition (as Hobbes himself probably did), or who could see through the confusion artfully introduced by Grotius (as Rousseau seems to have done), would be a ware that Grotius’s theory of the law of nature was more like Hobbes’s than Pufendorf and Barbeyrac were ever prepared to acknowledge. When Rousseau said of Grotius and Hobbes (in the passage I quoted earlier) that “their principles are exactly the same,” he may well have been surprisingly close to the mark.
I now want to turn to the practical implications of Grotius’s ideas. The first and most obvious implication was that private war was legitimate. The East India Company, though legally a private individual, could indeed make war as if it were a state when it encountered any people with whom it did not already have some kind of civil association. Grotius was still an adviser to the company when he wrote De Iure Belli ac Pacis, and he continued to assert its right to engage in this kind of activity. The second implication, though less obvious, was even more far-reaching: the kind of war that private individuals could make included acts of punishment —that is, it encompassed much more than the limited violence which almost all moralists (other than the radically Christian ones) had allowed individuals to use in their own immediate self-defense. Grotius permitted the company, and anyone else dealing with the complicated power struggles and internecine violence of the world in which the European traders found themselves, to make judgments about the morality of the various parties and to punish those who seemed to be violating other people’s rights, even if there was no immediate threat to the Europeans themselves. Grotius was quite clear in De Iure Belli ac Pacis about the interventionary character of his theory, arguing in his great chapter on punishment (Book II, Chapter XX) that
We make no Doubt, but War may be justly undertaken against those who are inhuman to their Parents, as were the Sogdians, before Alexander persuaded them to renounce their Brutality; against those who eat human Flesh,... and against those who practise Piracy....And so far we follow the Opinion of Innocentius [Pope Innocent IV], and others, who hold that War is lawful against those who offend against Nature; which is contrary to the Opinion of Victoria, Vasquez, Azorius, Molina, and others, who seem to require, towards making a War just, that he who undertakes it be injured in himself, or in his State, or that he has some Jurisdiction over the Person against whom the War is made. For they assert, that the Power of Punishing is properly an Effect of Civil Jurisdiction; whereas our Opinion is, that it proceeds from the Law of Nature....
As Grotius said, this view was very contentious, and had usually been associated with enthusiasts for the medieval crusades, such as Innocent IV; modern writers, such as the principal theorist of the Spanish conquest of Mexico and Peru, Francisco de Vitoria, had expressly denied that the conquest was a crusade against immoral barbarians.
Many practices of non-European peoples, in Grotius’s view, could count as grounds for intervention in order to punish breaches of the natural law. Perhaps the most surprising and historically important was any refusal by hunter-gatherers, such as the aboriginals of North America, to let agriculturalists settle on their land. To understand this, we have to consider the most striking of all the implications that Grotius drew from his guiding principles, namely his theory of property. The basic right of self-preservation, according to the theory, entitled one to seize the necessities of life, even at the cost of another person’s survival; but it did not entitle one unnecessarily to take from someone else what one needed. If we were to insist on our ownership of any commodity that we did not need and that someone else might make good use of, we would be indirectly injuring them. In De Veritate Religionis Christianae, which (as we have seen) also came out of the period of reflection allowed to Grotius in the early 1620s, he summed up his views as follows:
our natural needs are satisfied with only a few things, which may be easily had without great labour or cost. As for what God has granted us in addition, we are commanded not to throw it into the sea (as some Philosophers foolishly asserted), nor to leave it unproductive [inutile], nor to waste it, but to use it to meet the needs [inopiam] of other men, either by giving it away, or by lending it to those who ask; as is appropriate for those who believe themselves to be not owners [dominos] of these things, but representatives or stewards [procuratores ac dispensatores] of God the Father....
Throughout his discussion of property, especially in Book II, Chapters II and III of De Iure Belli ac Pacis, but also in Mare Liberum (which was the relevant portion of De Iure Praedae), Grotius made clear the extremely weak character of private property. In a state of nature, all commodities were in common, in the sense that each man took what he needed from the common store of nature and left what he did not need for other people to use; allocation of resources was simply on the basis of “first Occupancy” (II.III.1). The introduction of private property gave the owners merely a presumptive right to first use, entitling their own needs to be met by the commodity that they owned, before those of anyone else (II.II.8); but once the owners’ needs had been met, Grotius always argued, the surplus could be claimed by the genuinely needy. A regime of private property did not give people a moral right to more extensive possessions; it merely changed the method by which they laid claim to the necessities of life.
Thus the sea could not be owned, as he insisted throughout Mare Liberum and in II.II.3 of De Iure Belli ac Pacis, because use of the sea itself (as distinct from the fish taken from it) could not be regarded as answering a basic need. The same was true of the original wastelands of the world, over which wild animals roamed. Agricultural land, on the other hand, could be owned, since (Grotius believed) only settled possession enabled the farmers to plant seed and harvest crops unmolested, and thereby to produce new commodities that could be used to fulfill basic needs. The paradoxical consequence was that, according to Grotius, it was not the European settlers who were guilty of any injurious actions when they took hunting grounds away from the primitive peoples of the world; it was the primitive peoples themselves who were behaving badly when they tried to resist the settlements, and who could be punished for their conduct.
However, one practice that could not be used as justification for the conquest of primitive peoples was their religion. It had occasionally been argued that “infidels” could rightly be conquered by Christians, but Grotius was always adamant that war could never be made against any theists on the grounds that their religion was false. As he said in II.XX.46, “That there is a Deity, (one or more I shall not now consider) and that this Deity has the Care of human Affairs, are Notions universally received, and are absolutely necessary to the Essence of any Religion, whether true or false,” and “those who first attempt to destroy these Notions, ought, on the Account of human Society in general, which they thus, without any just Grounds, injure, to be restrained, as in all well-governed Communities has been usual.” So atheism was a moral crime, as it was to be for Locke (though not for Hobbes). But any religion that corresponded to this minimal definition should be tolerated, and Christianity could not be forced on its adherents (II.XX.48), though Christianity itself had to be tolerated by nonbelievers on pain of international punishment (II.XX.49).
A third and equally surprising practical implication of Grotius’s minimalist political principles was that he sanctioned certain kinds of slavery. As he said in his discussion of the issue in chapter V of Book II,
perfect and utter Slavery, is that which obliges a Man to serve his Master all his Life long, for Diet and other common Necessaries; which indeed, if it be thus understood, and confined within the Bounds of Nature, has nothing too hard and severe in it; for that perpetual Obligation to Service, is recompensed by the Certainty of being always provided for; which those who let themselves out to daily Labour, are often far from being assured of....
The fundamental right to preserve oneself naturally (on Grotius’s view) led to the legitimacy of voluntary slavery, if one’s circumstances were such that only such a course of action would keep one alive. Similarly, parents could reasonably sell their children into slavery (II.V.29). But of course, the master of a slave could have no right to kill the slave, since such a right would defeat the object of the relationship from the point of view of the slave (II.V.28). This—to our eyes—disconcerting consequence of Grotius’s minimalist liberalism was a common feature of the rights theories of the seventeenth and eighteenth centuries, and it was of course one of the primary reasons why Rousseau was to turn in disgust from the Grotian tradition.
These implications of Grotius’s theory, all in various ways, relate to his defense of individual rights, including the private right to make war. But De Iure Belli ac Pacis also contains an influential account of the nature of a state. As we have seen, Grotius believed that all its rights “come to the state from private individuals;... the power of the state is the result of collective agreement.” Individuals agree to pool their rights of self-preservation, and in addition to help their fellow citizens in ways that they would not think of doing in a state of nature. As he said in De Iure Belli ac Pacis I.I.14, “The State is a compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit” (the last phrase expressing what is added by civil association) (I.III.7). As long as this “body of free persons” was independent of any other such body, it was itself free and sovereign: “we... exclude the Nations, who are brought under the Power of another People, as were the Roman Provinces; for those Nations are no longer a State, as we now use the Word, but the less considerable Members of a great State, as Slaves are the Members of a Family.”
But Grotius had to tread very carefully over the question of how such a body might be governed. He used the subtle analogy of the human eye:
As the Body is the common Subject of Sight, the Eye the proper; so the common Subject of Supreme Power is the State; which I have before called a perfect Society of Men....The proper Subject is one or more Persons, according to the Laws and Customs of each Nation.
I see with my eyes, and cannot see without them, but it is not my eyes that see: it is me. Similarly, Grotius argued, we cannot have a state without a government of one or more persons, but it is not the government that acts and creates political identity. The state, properly speaking, continues to be the whole association acting through its rulers. But that does not mean that the association can dispense with its particular rulers, any more than I can dispense with my eyes. After the passage just quoted, Grotius immediately went on to make one of his most famous claims, that
here we must first reject their Opinion, who will have the Supreme Power to be always, and without Exception, in the People; so that they may restrain or punish their Kings, as often as they abuse their Power. What Mischiefs this Opinion has occasioned, and may yet occasion, if once the Minds of People are fully possessed with it, every wise Man sees. I shall refute it with these Arguments. It is lawful for any Man to engage himself as a Slave to whom he pleases; as appears both by the Hebrew and Roman Laws. Why should it not therefore be as lawful for a People that are at their own Disposal, to deliver up themselves to any one or more Persons, and transfer the Right of governing them upon him or them, without reserving any Share of that Right to themselves? Neither should you say this is not to be presumed: For the Question here is not, what may be presumed in a Doubt, but what may be lawfully done? In vain do some alledge the Inconveniences which arise from hence, or may arise; for you can frame no Form of Government in your Mind, which will be without Inconveniences and Dangers. (I.III.8)
Since the civitas, the civil association or civil society, was an individual with the rights of any other individual, it simply followed on Grotius’s account that it must be free voluntarily to enslave itself in the interests of its own survival. Only if it amalgamated with another association, or was treated as no longer a separate entity, would it destroy itself; any such union was tantamount to suicide by the state and could not be justified by the principle of self-preservation. “Cases of extreme Necessity, by which all Things return to a mere State of Nature” (II.VI.5) might lead individuals to break up their own state and seek security in another, but this could not be an act of the civil society itself.
Whatever their different views about what he had done, Grotius’s readers in the seventeenth and eighteenth centuries were united in their praise for his originality, for in De Iure Belli ac Pacis we have indeed found many of the central themes of modern political theory. Grotius’s men are born free, under no authority but that which all men will recognize, the authority of a minimal kind of natural law. They are equal, for the essence of Grotius’s natural justice (as distinct from the distributive justice characteristic of civil societies) is that it treats all men as equal and does not recognize distinctions of rank or even of merit; furthermore, in nature our property is extremely exiguous, and no one can claim property rights at the expense of the poor. And yet, on the other hand, his men are competitive and censorious, eager to conquer new territories if that will promote the rational use of the world’s resources, and eager to intervene in the internal affairs of other nations if they see injuries being suffered by the innocent. The world Grotius depicted is indeed recognizably our world, for good or ill.
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A NOTE ON THE TEXT
The 1738 English translation of Barbeyrac’s French edition, which is reprinted here, was in large part the work of John Morrice. In 1715 he and two collaborators had published a translation of the Latin text of Grotius’s work, which was reprinted as the translation of Grotius’s text in the 1738 edition; Barbeyrac’s notes were translated from the French and added to the Morrice translation at the same time. Morrice’s papers survive in the Bodleian Library, Oxford (including two autobiographical sketches), and they give a vivid sense of a life that was a combination of Grub Street and the lower reaches of the Church of England, governed by a constant anxiety over money and preferment. Morrice was born in Shropshire in 1686 and graduated with a Bachelor of Arts degree from Lincoln College Oxford in 1709. In 1714 he was chosen Lecturer at St. Bartholomew’s by the Royal Exchange in London, and at the same time appointed chaplain to the Earl of Uxbridge; the following year (as he said in the longer of the two autobiographies)
I published Grotius of the Rights of War and Peace, in 3 Vol. and Dedicated it to the prince of Wales; upon which Occasion I was introduced to the prince and princess. Mr. Spavan & Dr. Littlehales were my partners in this Work, and we had a Guinea a sheet for Translating it....
The publishers of this edition (D. Brown, T. Ward, and W. Meares) included one of the publishers of the 1738 edition (Brown); the publishers of the various English translations of Pufendorf also included some of the publishers of both the 1715 and the 1738 Grotius, and the two projects were clearly regarded as similar. The quality of the translation of Grotius’s text varies, with most of the more egregious errors being toward the end (see, for example, my notes at III.VII.9 and III.XIX.14), and it is likely that these passages were translated by Spavan or Little-hales. Elsewhere, Morrice remembered that at the presentation to the prince “he was promised Great Things,” though nothing materialized until 1724, when he was appointed chaplain to the prince. In the meantime he made money acting as minister of the chapel in the New Way, Westminster, translating, and writing anonymously for the Tatler and the Spectator. The prince succeeded to the throne as George II in 1727, and Morrice continued to hope for great things, from a monarch who clearly had a rather vague memory of him:
Thursday, Decr. 17th 1730. at Half Hour past One a-Clock, Mr. Brigman, Closet-Keeper to the King, plac’d me at the Door between the Bed-Chamber & Closet, to deliver a Memorial to His Majesty, about Grotius, and my having been Chaplain, wch was very graciously recd: Ld. Pagett [son of the Earl of Uxbridge] was Ld of the Bed-Chamber in waiting....
It is unclear whether Morrice envisaged some new edition of Grotius as a way of winning the favor of the king (not unreasonably, given that Barbeyrac had dedicated his edition to the king’s father), nor is it clear whether he in fact had any hand in the 1738 edition. (The longer autobiography goes down to 1740, but it is very sketchy about the last few years of Morrice’s life.) The notes were translated by someone with views of his own about some of the material (see, for example, II.V.14.1 n. 2), which may suggest Morrice; he died in 1740, without having received any sign of royal favor. It is likely that the 1738 edition was largely a project driven by its publishers (this is implied by the absence of a dedication, other than the translation of Grotius’s own dedication to Louis XIII), and the publishers may have recruited someone other than Morrice to translate the notes.
My own editorial remarks in the text or notes of the edition are contained within double square brackets, thus: [[.... This is because both Barbeyrac and his translator use ordinary parentheses and square brackets; the latter usually signify alterations or comments added to Grotius’ sown text, though they can also function in the same way as ordinary parentheses. Where I have introduced a footnote of my own, it is marked in the text with the symbol †. Again, this is because Barbeyrac and Grotius themselves used numbers, letters, and asterisks(*) to label their footnotes and marginal notes. Page breaks in the 1738 edition are indicated here by the use of angle brackets. For example, page 112 begins after<112>.
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I would like to acknowledge the constant help and support in this project of the General Editor, Knud Haakonssen, and the scholarly assistance of Tim Hochstrasser, Istvan Hont, and Noah Dauber. I would also like to thank the editor at Liberty Fund, Diana Francoeur, for her patience and helpfulness.
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THE RIGHTS OF WAR AND PEACE
THE RIGHTS OF WAR AND PEACE, in three books.
Wherein are explained,
The LAW of Nature and Nations,
The Principal Points relating to Government.
Written in LATIN by the Learned
And Translated into ENGLISH.
To which are added,
All the large Notes of Mr. J. BARBEYRAC,
Professor of Law at Groningen,
And Member of the Royal Academy of Sciences
Printed for W. Innys and R. Manby, J. and P. Knapton,
D. Brown, T. Osborn, and E. Wicksteed.
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THE LIFE OF HUGO GROTIUS
To look into the Manners of Antiquity, and recover the Memory of preceding Ages, is an Entertainment of the highest Pleasure and Advantage to the Mind, it establishes very lasting Impressions of Virtue in us, enlarges the Soul, and moves our Emulation to follow and excel the leading Characters before us; when we are tracing the Exploits of some Worthy of Old, with what Delight do we pursue him in every Circumstance of Action, we admire the Example, and transmit the Beauties of his Life into our own Conduct by Practice and Imitation; for the Mind of Man is of a searching Nature, very wide and extensive in her Speculations; and as she is blind to the Transactions of Futurity, so she receives a greater Lustre from the Reflection of Instances that are past, than from the Rules of Wisdom, or the Determination of the Schools: ϕιλοσοϕία ἒκ παραδειγμάτων, Philosophy from Example, in the Opinion of the Historian,Thucydides. advances human Life beyond the Power of Precept, or the Distinctions of Morality, it opens a large Scene for Observation, it displays all the Occurrences and Revolutions of Providence, how far Application and Industry improve the Abilities of the Soul, and offer us to the Notice of Mankind, and the Wonder of Posterity.
This Life of GROTIUS is not writ with a Design to enlarge upon his Merit, or to adorn his Character, who has left such Illustrious Testimonies of his Learning, Zeal, and Piety, that the Letter’d World submits to his Authority, and reveres his Judgment so much,<ii> that his Name will be venerable to latest Ages: Our present Aim is only to reduce the Circumstances of his Life into such a Method as will shew us by what Steps and Degrees he attained to so high an Esteem, as to derive an Honour upon the Century he lived in, and to recommend him as a Pattern to succeeding Ages.
HUGO GROTIUS, in Dutch, de Groot, one of the greatest Men in Europe, was born at Delft the 10th of April, 1583; where his Family had been Illustrious between Four and Five Hundred Years. He made so early a Progress in his Studies, that he writ some Verses before he was nine Years of Age; and at Fifteen he had a great Understanding in Philosophy, Divinity and the Civil Law; but he was still better skill’d in Philology, as he made it appear by the Commentary he writ at that Age upon Martianus Capella, a very difficult Author. So prodigious was his Memory, that being present at the Muster of some Regiments, he remembered the Names of every Soldier there. In the Year 1598 he accompanied the Dutch Embassador, the famous Barnevelt, into France, where Henry IV gave him several Marks of his Esteem; he took there his Degree of Doctor of Law, and being returned into his Country, he applied himself to the Bar, and pleaded before he was Seventeen Years of Age; he was not Twenty four Years old when he was made Advocate-General; he settled at Rotterdam in 1613, and was Pensionary of that Town; he would not accept of that Employment, but upon Condition that he should not be deprived of it; for he foresaw that the Quarrels of Divines about the Doctrine of Grace, which formed already a thousand Factions in the State, would occasion many Revolutions in the chief Towns; he was sent into England in the same Year, by reason of the Misunderstanding between the Merchants of both Nations; he wrote a Treatise upon that Subject, and called it Mare Liberum, or a Treatise shewing the Right the Dutch have to the Indian Trade. He found himself so far engaged in the Affairs which undid Barnevelt, that he was arrested in August 1618, and condemned to perpetual Imprisonment the 18th Day of May 1619, and to forfeit his Estate; he was confined to the Castle of Louvestein the 6th of June in the same Year, where he was severely used for above 18 Months; from whence, by the Contrivance of Mary de Regelsberg his Wife, he made his Escape, who having observed that the Guards, being weary of searching a large Trunk full of Books and Linnen to be washed at Gorcum, a neighbouring Town, let it go without opening it as they used to do, advised her Husband to put himself into it, having made some Holes with a Wimble in the Place where the forepart of his Head was, that he might not be stifled. He followed her Advice, and was in that manner carried to a Friend of his at Gorcum; from whence he went to Antwerp in the usual Waggon, after he had crossed the publick Place in the Disguise of a Joyner, with a Ruler in his Hand. That good Woman pretended all the while that her Husband was<iii> very Sick, to give him time to make his Escape into a Foreign Country: But when she thought he was safe, she told the Guards, laughing at them, that the Birds were fled. At first there was a Design to Prosecute her, and some Judges were of Opinion she should be kept in Prison instead of her Husband; but by a Majority of Votes she was released, and praised by every Body, for having by her Wit procured her Husband’s Liberty. Such a Wife deserved not only to have a Statue erected to her in the Commonwealth of Learning, but also to be canoniz’d; for we are indebted to her for so many excellent Works published by her Husband, which had never come out of the Darkness of Louvestein, if he had remained there all his Lifetime, as some Judges appointed by his Enemies designed it.
He retir’d into France, where he met with a kind Reception at Court, and had a Pension assigned him; the Dutch Embassadors endeavoured to prepossess the King against him, but that Prince did not regard their Artifices, and gave a glorious Testimony to the Virtue of that Illustrious Refugee, and admired the Virtue of the Man, who being so ill used in his Country, never omitted an Opportunity to advance its Interest, and encrease its Grandeur. He applied himself very closely to Study, and to compose Books. The first he published after he settled in France, was An Apology for the Magistrates of Holland, who had been turned out of their Places. The contrary Party was very much displeased with this Treatise, they thought GROTIUS made it appear that they had acted against the Laws, and therefore they endeavoured again to ruin and defame him, but the Protection of the French Court secured him against their Attempts.
He left France after he had been there Eleven Years, and returned into Holland full of Hopes, by reason of a kind Letter he received from Prince Frederick Henry, who succeeded his Brother in that Republick; but his Enemies prevented the good Effects of that Letter, and therefore he was forced once more to leave his Country; he resolved to go to Hamburg, where he stayed till he accepted the Offers he received from the Crown of Sweden, in the Year 1634. Queen Christina made him one of her Counsellors, and sent him Embassador to Lewis XIII. Having discharged the Duties of that Employment about Eleven Years, he set out from France to give an Account of his Embassy to the Queen of Sweden; he went through Holland, and received many Honours at Amsterdam; he saw Queen Christina at Stockholm, and after he had discoursed with her about the Affairs he had been entrusted with, he most humbly begged of her, that she would grant him his Dismission. The Queen gave him no positive Answer when he asked leave to retire, which displeased some great Men, who were afraid that she would keep him in her Council: He perceived their Discontent, and was so pressing to obtain his Dismission, that it<iv> was granted him at last. The Queen, upon his Departure, gave him several Marks of her great Esteem for him. The Ship on Board which he embarked was violently tost by a Storm on the Coasts of Pomerania; GROTIUS being sick, and uneasy in Mind, continued to travel by Land, but his Illness forced him to stop at Rostock, where he died in a few Days, on the 28th of August 1645. His Body was carried to Delft to be buried among his Ancestors; he left behind him three Sons, and one Daughter. The Daughter was married to a French Gentleman called Mombas, who was very much talk’d of, on Occasion of a Trouble he was brought into soon after the French had passed the Rhine in the Year 1672. The eldest Son and the youngest pitched upon a Military Life, and died without being married. The second, whose Name was Peter de Groot, made himself illustrious by his Embassies. The Elector Palatine being restored to his Dominions by the Treaty of Munster, appointed him his Resident in Holland: He was made Pensionary of the City of Amsterdam in 1660, and discharged the Duties of that Place with great Ability for the Space of Seven Years. He was sent Embassador to the Northern Crowns in the Year 1668. At a Year’s End he went into France with the same Character, and acquitted himself in that Employment with great Dexterity and Wisdom. When the War was kindled 1672, he returned into his Country, and was deprived of his Office of Pensionary at Rotterdam, which he had enjoyed ever since his Return from his Embassy into Sweden: He was deprived of it during the Popular Tumults, which occasioned so many Alterations in the Towns of Holland. He retired to Antwerp, and then to Cologne, whilst the Peace was treating there, and acted for the Good of his Country as much as ever he could; and yet when he returned into Holland he was accused of a State Crime; the Cause was tried and he was acquitted: He retired into a Country-House, where he died at 70 Years of Age.
The Calumnies, maliciously dispersed by the Enemies of GROTIUS, about his Death, are irrefragably confuted by the Relation of the Minister who attended upon him when he was dying. The Minister, called John Quistorpius, was Professor of Divinity at Rostock. His Relation imports, “That he went to GROTIUS who had sent for him, and found him almost dying; that he exhorted him to prepare for Death, in order to enjoy a more happy Life, to acknowledge his Sins, and to repent of them; that having mentioned to him the Publican, who confessed himself a Sinner, and begged God’s Mercy, the sick Man answered, I am that Publican; that he went on and told him he should have Recourse to Jesus Christ, without whom there is no Salvation, and that GROTIUS replied, I place all my Hopes in Jesus Christ alone; that he repeated in a loud Voice a Prayer in High-Dutch, and that the sick Man said it softly after him with his Hands joined; that having ended, he asked him whether he understood<v> him, and his Answer was, I understood you very well; that he continued to repeat to him some Passages of the Word of God, which dying People are usually put in Mind of, and to ask him, Do you understand me? and that GROTIUS answered, I hear your Voice, but I do not understand every thing that you say; that with this Answer the sick Man lost his Speech, and expired soon after.” It were an absurd thing to call in Question the Sincerity of Quistorpius, nothing could move him to be false in his Account, and it is certain that the Lutheran Ministers were no less displeased than the Calvinists with the particular Opinions of GROTIUS, and therefore the Testimony of the Professor of Rostock is an authentick Proof; and if such Evidence is not sufficient in Matters of Fact, we make way for Scepticism, and it will be difficult to prove any thing. It is therefore an undeniable Case that GROTIUS being a dying, was affected like the Publican mentioned in the Gospel, he confess’d his Faults, he was sorry for them, and implor’d the Mercy of his heavenly Father; that he placed all his Hopes in Jesus Christ alone; that his last Thoughts were those that are contained in the Prayer of dying People, according to the Liturgy of the Lutheran Churches. The Result of which is, that those who say he died a Socinian, would be too gently used if they were only told, that they are guilty of a rash Judgment; they are Persons prejudiced against the Character of this Great Man, and therefore very unworthy of our Belief. Several People have wondered that his Grand-Children did not ask Satisfaction for this Injury done tohis Memory, and that they appeared less sensible in this Point, than Jansenius’s Relations upon slighter Calumnies; but some Persons highly approve their waving all Juridical Proceedings. There is a solid Answer to that Reflection upon our Author made by a Book entitled l’Esprit de Mr. Arnauld; and since the Accuser made no Reply to it, it is a plain Sign he has been convicted of Calumny. The Apologist for the Character of GROTIUS begins thus, “ But, Sir, what that Author and Father Simon say of GROTIUS, is nothing, if compared to what the nameless Author of the scandalous Libel intitled l’Esprit de Mr. Arnauld says of him; it is true, he slanders every Body in that Book, and the manifest Lies that are in it, ought to make one disbelieve every thing else; but because some are so weak, as to be imposed upon by his bold way of speaking, because some of those to whom you shew my Letters, entertain an ill Opinion of GROTIUS upon that Account, you will give me leave to undeceive them. Perhaps they will not be displeased to find an Author, for whom they have so great an Esteem, guilty of the most horrid Calumny that ever was; this will teach them, that one ought to suspect those who appear so zealous for Truth, and that sometimes a prodigious Malice and Detraction are concealed under the zealous Pretence of defending the Church of God. Afterwards the Apologist examines the four Accusations one after another; I shall not dwell on what<vi> he says upon the first Head, viz. That GROTIUS was a violent Arminian. GROTIUS, says our Author, in the second Place, was a Socinian, as appears from his enervating the Proofs of Christ’s Divinity. Sir, desire your Friends to read GROTIUS’s Annotations upon the Passages of St. Mark and St. John which I have mentioned to you, and if they do not say that it is an abominable Calumny, I am willing to be accounted a most wicked Calumniator. See also the DXLVIIIth Letter among the Literae Ecclesiasticae & Theologicae.” I should be too long should I mention what he says upon the third Head, I shall only set down this Passage out of it, “When Mr. Arnauld says something that is injurious to the Reformed, the Author of the Libel exclaims violently against him, and Mr. Arnauld is then an unsincere Man, an unfair Accuser, an Infamous Calumniator; but when he says something that may serve this Satyrical Writer to inveigh against those whom he hates, every thing is then right, it serves him to fill up his Page, and to prevent his being placed among the little Authors. ”
I must not forget that Mr. Arnauld blames the Lutheran Minister for not asking GROTIUS in what Communion he would die, this is a material Thing, says Mr. Arnauld, “with respect to a Man who was known to have had no Communion a long time with any Protestant Church, and to have confuted in his last Books most of the Doctrines that are common to them. Whereupon the Apologist says, that Mr. Arnauld and the Author of the Libel do wrongly fancy, that a Man has no Religion when he joins with none of the Factions that condemn Mankind, and each of which pretends to be the only Church of Christ. GROTIUS abstained from communicating with the Protestants, as well as with the Papists, because the Communion, which was appointed by Christ as a Symbol of Peace and Concord among his Disciples, is accounted in those Societies a Sign of Discord and Division. ”—Quistorpius acted the Part of a wise Man in not asking him what Communion he would die in, since he saw him dying in the Communion of Jesus Christ, by Virtue of which we are saved, and not by Virtue of that of the Bishop of Rome, or of the several Protestant Societies.
Without enquiring whether Quistorpius was in the Right or the Wrong for not asking such a Question, we observe, that a Man who believes the Fundamental Doctrines of Christianity, but forbears receiving the Communion, because he looks upon that Action as a Sign that one damns the other Christian Sects, cannot be accounted an Atheist, but by one who has forgot the Notions of Things or Definitions of Words; nay, we go farther, and maintain it cannot be denied that such a Man is a Christian; we allow you to say, that his believing all the Sects that receive the Gospel to be in the way to Salvation is an Heresy; we allow you to assert, that it is a pernicious and dangerous Doctrine; notwithstanding which, can it be said that<vii> those who believe that Jesus Christ is the Eternal Son of God, coessential and consubstantial with the Father, that he died for us, that he sits at the right Hand of God his Father; that Men are saved by Faith in his Death and Intercession; that one ought to obey his Precepts, and repent of one’s Sins, &c. we say, can it be affirmed that such People are not Christians? No Man of Sense can affirm it; but none would be more unreasonable in affecting such a thing than the Author of l’ Esprit de Mr. Arnauld, since he published another Book, wherein he shews that all those who believe the Fundamental Points, belong to the true Church, whatever Sect they may be of. We omit several other Maxims advanced by him, whereby it appears, that one may be saved in all Religions; we only mention such Doctrines as he cannot deny, and according to which he ought to acknowledge, that GROTIUS, who believed the Fundamental Doctrines, without approving Calvinism or Popery, &c. in every thing, was a Member of the true Church.
We suppose that what has been delivered may be of sufficient Force to overthrow the Calumnies that have been raised against our Author, in respect to his Principles in Religion; we shall now take a short Survey of the most eminent Books that were published from him.
During his Stay at Paris, before he was Embassador of Sweden, “he translated into Latin Prose his Book concerning the Truth of the Christian Religion, which he had writ in Dutch Verse, for the Use of the Seamen who travelled into the Indies, that they might have some Diversion in singing such a pious Poem.” Thus du Maurier speaks of it; but he is very much to blame for giving such a mean Notion of the Author’s Design, for GROTIUS aimed at a nobler End; he had a Mind to enable the Dutch, who travel to the Indies, to promote the Conversion of the Infidels; this is the Character he gives of it himself, My Resolution was to do something of Advantage to all my Countrymen, but especially for Seamen, that in all their Leisure they have Aboard, they may use their Time with Profit to themselves, and not loiter away their Hours as some do. And therefore beginning with a Panegyrick upon my own Nation, which infinitely excels all others in this Art; I encouraged them, that they would improve their Art, not only for their Benefit and Gain, but that they would regard it as the Mercy of Heaven, and use it for the propagating of the Christian Religion. It is an Excellent Work, and the Notes upon it are very learned. It was translated into English, French, Dutch, German, Greek, Persian, and Arabick; but we do not know whether all those Translations have been published; the Greek was not printed in the Year 1637. In the Year following GROTIUS mentions the Persian Translation only, as a Book which the Pope’s Missionaries had a Mind to publish. My Book, says he, concerning the Truth of the Christian Religion, that is accounted Socinian by some, is so far from having that Character here, that it is to be turned by the Pope’s Missionaries into the Persian<viii> Tongue, to convert, by the Favour of God, the Mahometans who are in that Kingdom. In the Year 1641, an Englishman, who had translated that Book into Arabick, was desirous his Translation should be printed in England. There came a very learned Englishman to me within these few Days, says he, who lived a long time in the Turkish Dominions, and translated my Book of the Truth of the Christian Religion into Arabick, and will endeavour, if he can, to have it published in England: He thinks no Book more profitable, either to instruct the Christians of those Parts, or to convert the Mahometans that are in the Turkish, Persian, Tartarian, Punic, or Indian Empire. That Translation made by the famous Dr. Edward Pocock, was printed at London in the Year 1660. There are three German Translations of that Work, two in Prose, and one in Verse, and two French Translations in Prose.
GROTIUS writ an History of the Low-Countries; it contains an Account of what happened in the Netherlands from the Departure of Philip II. It is divided into Annals and History, the Annals comprehend five Books; the History contains eighteen, and begins in the Year 1588. Casaubon, who had read something of it in the Year 1613, speaks well of it in a Letter written from London to Thuanus. The Judgment of the Author of the Parrhasiana runs thus, “ We may add to Polybius, a famous Historian among the Moderns, who though he had been a Sufferer by the Injustice of a great Prince, relates his noble Actions as carefully as any other Historian, and speaks of him according to his Merit, without saying any thing, whereby it may appear that he had Reason to complain of him; I mean the incomparable HUGO GROTIUS, who speaks in his History of the Netherlands of Prince Maurice de Nassau, as if he had never been ill treated by him; this is a remarkable Instance of Impartiality, which shews that it is not impossible to overcome one’s Passion, and speak well of one’s Enemies, as several People fancy, who judge of others by themselves. ” The Author who observes this fine Passage in GROTIUS’s History, did it not out of Flattery, for he blames him afterwards for a thing that deserves to be blamed; he does not approve GROTIUS’s Style, and shews thereby that he is a Man of a good Taste. “None,” says he, “of those who spoke well at Athens, and at Rome, expressed himself so obscurely in Conversation, as Thucydides and Tacitus did in their Histories; doubtless they had a Mind to raise themselves above common Use, and thereby they fell into that Obscurity for which they are justly reproved. It cannot be denied they have an affected Style, and that they hoped to recommend their Histories as it were by a manly Eloquence, whereby it seems that many things are expressed in few Words, and raised above the Capacity of the Vulgar; I cannot apprehend why some learned Men undertook to imitate them, as HUGO GROTIUS, and Dionysius Vossius in his Translation of Rheide’s History, and<ix> how they could relish such a Style; for certainly good Thoughts need not be obscure to be approved by good Judges; and when a Reader is obliged to stop continually, in order to look for the Sense, he does not think himself in the least obliged to an Historian who gives him the Trouble; this is the Reason why some Histories, though excellent as to the Matter, are read by few People; whereas if those Historians designed to write for the Instruction of those who have a sufficient Knowledge of the Latin Tongue to read a History with Pleasure, they should endeavour to make themselves easily understood, and useful to as many People as ever they could. The more a History deserves to be read by reason of the Events contained in it, the more it deserves to be of a general Use; the Authority of the Ancients who neglected the Clearness of the Style, cannot justify the Moderns, who have imitated them contrary to the Reasons I have mentioned, or rather contrary to good Sense. There is nothing in Tacitus that less deserves to be imitated, than his too concise, and consequently obscure Style; I am sorry GROTIUS was one of those who did not avoid it, it makes the Translation of his Writings more difficult, and his Thoughts more obscure.”
But his Book Of the Rights of War and Peace was the Masterpiece of his Works, and therefore deserves a more particular Account; it was printed at Paris in 1625, and dedicated to Lewis XIII. “King Gustavus of Sweden having read and admired it, resolved to make use of the Author, whom he took to be a great Politician by reason of that Work; but that Prince having been killed at the Battle of Lutzen in the Year 1632, Chancellor Oxenstern, according to his own Inclination, and the Design of the late King Gustavus, nominated him to be sent Embassador into France. ” Colomies says, “It is believed that GROTIUS exhausted his Parts upon that Book, and that he might have said of it what Casaubon said of his Commentary upon Perseus, in a Letter to Mr. Perillan his Kinsman, which is not printed, in Perseo omnem ingenii conatum effudimus; and indeed that Work of GROTIUS is an excellent Piece, and I do not wonder that it has been explained in some German Universities.”—Here follows the Judgment which M. Bignon, that unblamable Magistrate, makes of that Book in a Letter to GROTIUS, dated the 5th of March, 1633. “I had almost forgot,” says he, “to thank you for your Treatise De Jure Belli, which is as well printed as the Subject deserves it; I have been told that a great King had it always in his Hands, and I believe it is true, because a very great Advantage must accrue from it, since that Book shews, that there is Reason and Justice in a Subject, which is thought to consist only in Confusion and Injustice; those who read it will learn the true Maxims of the Christian Policy, which are the solid Foundations of all Governments; I have read it again with a wonderful Pleasure.” They did not make the<x> same Judgment of it at Rome, where it was placed among prohibited Books the 4th of February 1672. M. Chauvin’s Memorial concerning the Fate and Importance of that Work is so curious, that we cannot forbear transcribing some things out of it. It informs us that GROTIUS undertook to write that Book at the Solicitation of the famous Peireskius. He himself says so, in a Letter he writ to him, when he presented him with the Copy of that Work. “The Subject of it was thought to be so important and useful, that it gave Occasion to make a particular Science of it; for the Explication of which, some Professors have been appointed on purpose in the Universities. Charles Lewis, Elector Palatine, did so highly value that Book, that he thought fit it should serve as a Text to the Doctrine concerning the Right of Nature, and the Law of Nations, and in order to teach it he appointed M. de Puffendorf in the University of Heidelberg; and in Imitation of that Prince, the like Settlements have been made in other Universities. It does not appear that any Body criticized upon this Work of GROTIUS during his Lifetime”; but when he was dead it occasioned many Disputes, and was published over all the World of Letters, and commented upon by the most learned of all Nations. It came out at last, cum Notis Variorum, by which means our Author, within 50 Years after his Death, obtained an Honour, which was not bestowed upon the Ancients till after many Ages.
Thus have we given the History of this great Man, taken from the best Accounts that have contributed to derive his Memory to our Times; but as an Improvement of his Character receive the Testimony of Salmasius, one of his Enemies, in a Letter to him, You have laid but a small Obligation upon the Cardinals, and upon myself likewise, by bestowing a Title upon me, which is peculiar to the most eminent GROTIUS; for why should I not call him so, whom I had rather resemble, than enjoy the Wealth, the Purple, and Grandeur of the Sacred College?<xi>
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His Most Christian Majesty
King of France and Navarre.
This Book presumes, most illustrious Prince, to in title it self to Your great Name, from a Confidence, not of itself, or its Author, but of the Subject Matter of it, which is Justice; a Virtue in so distinguishing a Manner Yours, that by it, both from Your own Merits, and the general Consent of Mankind, You have acquired a Title worthy so great a King, and are now every where known by the Name of JUST, no less than that of LEWIS. It was the Height of Glory to the Roman Generals, to be sirnamed from some of their conquered Countries, as Crete, Numidia, Africa, Asia, and the like. But how much more glorious Your Sirname, by which you are declared the irreconcileable Enemy, and perpetual Conqueror, not of any Nation or Man, but of Injustice? It was esteemed a great thing among the Egyptian Kings, for one of them to be stiled, the Lover of his Father, another the Lover of his Mother, another of his Brother. But how far short these of Your Name, which comprehends not only those, but every thing else that can be conceived beautiful and virtuous? You are JUST, as you honour the Memory of the great King your Father by imitating him: JUST, as You instruct your Brother by all imaginable Methods, but none more than that of Your own Example: JUST, as You procure the greatest Matches for Your Sisters: JUST, as You revive the Laws almost dead, and, to the utmost of Your Power, oppose the growing Wickedness of the Age: JUST, but at the same time Merciful too, as You deprive Your Subjects, whom the Ignorance of Your Goodness had caused to transgress the Bounds of their Duty, of nothing but the Liberty of offending, nor use any Violence to those who differ from You in Matters of Religion: JUST, and at the same time Compassionate, as you relieve by Your Authority oppressed Nations, and distressed Princes, and controul the exorbitant Power of Fortune. Which singular Beneficence in You, as near the Divine as Human Nature can admit, obliges me even in this publick Address to return You my private Thanks. For as the coelestial Bodies not only influence the great Parts of the World, but also suffer their Virtues<xii> to be communicated even to every individual Animal; so you, like a Star of most benign Influence to the Earth, not contented to have raised up dejected Princes, or given Succour to Nations, have condescended to give Protection and Comfort to me also, when illtreated by my Native Country. To Your publick Actions You have, to compleat the Measure of Justice, added such Innocence and Sanctity of Life, as deserves the Admiration, not of Men only, but of the blessed above. For who of the meanest People, or even of those who have sequestred themselves from the Conversation of the World, attains to that Perfection of Purity and Virtue, as you whom the Splendor of Fortune exposes daily to innumerable Charms of Vice? But how great is it to attain that in a multiplicity of Business, in a Crowd, in a Court amongst so many so various Examples of Vice, which others scarce are able, often are not able to do in Solitude? This is to merit the Name not of JUST only, but of Saint also, and that in this Life, which the Piety of the Age attributed to your Ancestors Charles the Great, and Lewis, only after their Deaths: This is to deserve the Title of most Christian, not by Descent, but your own proper Right. But as there is no part of Justice which does not belong to You, so that which concerns the Subject of this Book, viz. the Affairs of Peace and War, is properly Yours, as you are a King, and especially as King of France. Vast is Your Dominion, which extends from Sea to Sea, and comprehends so many spacious and happy Provinces; but it is a greater Dominion than this, not to desire others Dominions. Worthy is this of Your Piety, worthy of Your high Pitch of Grandeur, not to attempt the Invasion of any Man’s Right by Force of Arms, or the Alteration of ancient Limits; but together with War, to carry on Negotiations of Peace; nor to begin it, but with a Desire of bringing it to a speedy Conclusion. When it shall please God to call You to his Kingdom, which alone is better than that which You now possess, how becoming, how glorious, how joyful to the Conscience will it be for You to be able to say with Boldness; This Sword, received from thee for the Safeguard of Justice, I restore again pure, innocent, stained with no Man’s Blood rashly shed? Thus it shall be, that the Rules which we now seek for in Books, shall hereafter be learned from Your Actions, as the most perfect Pattern. Which thing itself, though of great Importance, yet the Christian World presumes to require something still greater from you; that is, that Wars every where ceasing, Peace may be restored, not only to Civil States, but to the Churches; and our Age submit itself to be modelled after the Pattern of the Apostolical Age, in which all unanimously acknowledge the Christian Faith to have been true and uncorrupted.
The Minds of Men, now grown weary of Dissention, are encouraged to hope for this, as the Effect of the Friendship lately contracted, and by the happy Marriage of Your Sister confirmed, between You and the King of Great Britain, a Prince eminent for his great Wisdom and ardent Love for the Peace of the Church. A Work indeed of vast Difficulty, by reason of the growing Animosity of Parties: But of two such great Kings nothing is Worthy but what is Difficult, and to all others impracticable. The God of Peace and Justice grant to Your Majesty, most Just and Peaceable Prince, together with all other Happiness, the Honour of accomplishing this great Work. MDCXXV.<xiii>
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THE PRELIMINARY DISCOURSE
Concerning the Certainty of Right in general; and the Design of this Work in particular.
I.The LAW of Nations.I. The Civil Law, whether that of the Romans, or of any other People, many have undertaken, either to explain by Commentaries, or to draw up into short Abridgments: But that Law, which is common to many Nations or Rulers of Nations, whether derived from Nature, or instituted by Divine Commands, or introducedby Custom and tacit Consent, few have touched upon, and none hitherto treated of universally and methodically; tho’ it is the Interest of Mankind that it should be done.
Of War and Peace.II. Cicerorightly commended the Excellence of this Science, in the Business of Alliances, Treaties, Conventions between States, Princes, and foreign Nations, and in short, in all Affairs that regard the Rights of War and Peace. And Euripides prefers this Science before the Knowledge of all other Things, whether Divine or Human, when he makes Helen say thus to Theonoe:
- ’Twould be a base Reproach
- To you, who know th’ Affairs present and future
- Of Men and Gods, not to know what Justice is.
Some think Interest alone the Rule of Justice.III. And indeed this Work is the more necessary, since we find some, both in this and in former Ages, so far despising this Sort of Right, as if it were nothing but an empty Name. The Saying of Euphemus in Thucydides is almost in every ones Mouth,To a King or Sovereign City, no-<xiv>thing is unjust that is profitable. Not unlike to which is this,That amongst the Great the stronger is the juster Side; and, That no State can be governedwithout Injustice. Besides, the Disputes that happen between Nations or Princes, are commonly decided at the Point of the Sword. Now, it is not only the Opinion of the Vulgar, that War is a Stranger to all Justice, but many Sayings uttered by Men of Wisdom and Learning, give Strength to such an Opinion. And indeed, nothing is more frequent than the mentioning of Right and Arms, as opposite to one another. Thus Ennius,
- They have recourse to Force of Arms, not Law.
And Horacethus describes the Fierceness of Achilles:
- Laws as not made for him he proudly scorns,
- And every Thing demands by Force of Arms.
Another Latin Poetintroduces another Conqueror, who entering upon War, speaks in this Manner,
- Now, Peace and Law, I bid you both farewell.
Antigonus,though old, laughed at the Man, who presented him with a Treatise concerning Justice, at the very Time he was besieging his Enemies Cities. And Marius saidhe could not hear the Voice of the Laws for theclashing of Arms. Even themodest bashful Pompeycould have the Face to say, Can I think of Laws, who am in Arms?
IV. Among Christian Writers we find many Sayings of the same kind; let that of Tertullian suffice for all; Fraud, Cruelty, Injustice, are the proper Business of War. Now they that are of this Opinion, will undoubtedly object against me that of the Comedian,
- You that attempt to fix by certain Rules
- Things so uncertain, may with like Success
- Strive to run mad, and yet preserve your Reason.
The Existence of Right asserted against the Objections of Carneades.V. But since it would be a vain Undertaking to treat of Right, if there is really no such thing; it will be necessary, in order to shew the Usefulness of our Work, and to establish it on solid Foundations, to confute here in a few Words so dangerous an Error. And that we may not engage with a Multitude at once, let us assign the man Advocate. And who more proper for this Purpose than Carneades, who arrived to such a Degree of Perfection, (the utmost his Sect aimed at,) that he could argue for or against Truth, with the same Force of Eloquence? This Man having undertaken to dispute against Justice, that kind of it, especially, which is the Subject of this Treatise, found no Argument stronger than this.Laws (says he) were instituted by Men<xv> for the sake of Interest; and hence it is that they are different, not only in different Countries, according to the Diversity of their Manners, but often in the same Country, according to the Times. As to that which is calledNatural Right, it is a mere Chimera. Nature prompts all Men, and in general all Animals, to seek their own particular Advantage: So that either there is no Justice at all, or if there is any, it is extreme Folly, because it engages us to procure the Good of others, to our own Prejudice.
VI. But what is here said by the Philosopher, and by the Poet after him,
1.Natural. By naked Nature ne’er was understood
- What’s Just and Right.
must by no Means be admitted. For Man is indeed an Animal, but one of a very high Order, and that excells all the other Species of Animals much more than they differ from one another; as the many Actions proper only to Mankind sufficiently demonstrate. Now amongst the Things peculiar to Man, is his Desire ofSociety, that is, a certain Inclination to live with those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding; which Disposition the Stoicks termed Ὀικείωσιν.Therefore the<xvi> Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted.
VII. For even of the other Animals there are some that forgeta little the Care of their own Interest, in Favoureither of their young ones, or those of their own Kind. Which, in my Opinion, proceeds fromsome extrinsick intelligent Principle, because they do not shew the same Dispositions in other Matters, that are not more difficult than these. The same may be said of Infants, in whom is to be seen a Propensity to do Good to others, before they are capable of Instruction, as Plutarchwell observes; and Compassion likewise discovers itself upon every Occasion in that tender Age. But it must be owned that a Man grown up, being capable of acting<xvii> in the sameManner with respect to Things that are alike, has, besides an exquisite Desireof Society, for the Satisfaction of which he alone of all Animals has received from Nature a peculiar Instrument, viz. the Use of Speech; I say, that he has, besides that, a Faculty of knowing and acting, according to some general Principles; so that what relates to this Faculty is not common to all Animals, but properly and peculiarly agrees to Mankind.
Peculiar to Man, properly and strictly called.VIII. This Sociability, which we have now described in general, or this Care of maintaining Societyin a Manner conformable to the Light of human Understanding,is the Fountain of Right, properly so called; to which belongs the Abstainingfrom that which is another’s, and<xviii> the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men.
IX. From this Signification of Right arose another of larger Extent. For by reason that Man above all other Creatures isendued not only with this Social Faculty of which we have spoken, but likewise with Judgment to discern Thingspleasant or hurtful, and those not only present but future, and such as may prove to be so in their Consequences; it must therefore be agreeable to human Nature, that according to the Measure of our Understanding we should in these Things follow the Dictates of a right and sound Judgment, and not be corrupted either by Fear, or the Allurements of present Pleasure, nor be carried away violently by blind Passion. And whatsoever is contrary to such a Judgmentis likewise understood to be contrary to Natural Right, that is, the Laws of our Nature.
Improperly and more loosely.X. And to this belongs aprudent Management in the gratuitous Distribution of Things that properly belong to each particular Person orSociety, so as to prefer sometimes one ofgreater before one of less Merit, a Relationbefore a Stranger, a poor Man before one that is rich, and that according as each Man’s Actions, andthe Nature of the Thing require; which many both of the Ancients and Moderns take to bea part of Right properly and strictly so called; when notwithstanding that Right, properly speaking, has a quite different Nature, since it consists in leavingothers in quiet Possession of what is already their own, or in doing for them what in Strictness they may demand.<xix>
XI. And indeed, all we have now said would take place,though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs. The contrary of which appearingto us, partly from Reason, partly from a perpetual Tradition, which many Arguments and Miracles, attested by all Ages, fully confirm; it hence follows, that God, as being our Creator, and to whom we owe our Being, and all that we have, ought to be obeyed by us in all Things without Exception, especially since he has so many Ways shewn his infinite Goodness and Almighty Power; whence we have Room to conclude that he is able to bestow, upon those that obey him, the greatest Rewards, and those eternal too, since he himself is eternal; and that he is willing so to do ought even to be believed, especially if he has in express Words promised it; as we Christians, convinced by undoubted Testimonies, believe he has.
2. Voluntary. 1. Divine.XII. And this now is another Original of Right, besides that of Nature, being that which proceeds from the free Willof God, to which our Understading infallibly assures us, we ought to be subject: And even the Law of Nature itself, whether it be that which consists in the Maintenance of Society, or that which in a looser Sense is so called, though it flows from the internal Principles of Man, may notwithstanding be justly ascribedto God, because it was his Pleasure that these Principles should be in us. And in this Sense Chrysippusand the Stoicks said, that the Original of Right is to be derived from no other than Jupiter himself; from which Word Jupiter it is probablethe Latins gave it the Name Jus.
XIII. There is yet this farther Reason for ascribing it to God, that God by the Laws which he has given, has made these very Principles more clear and evident, even to those who are less capable of strict Reasoning, and has forbid us to give way to those impetuousPassions, which,<xx> contraryto our own Interest, and that of others, divert us from following the Rules of Reason and Nature; for as they are exceeding unruly, it was necessary to keep a strict Hand over them, and to confine them within certain narrow Bounds.
XIV. Add to this, that sacred History, besides the Precepts it contains to this Purpose, affords no inconsiderable Motive to social Affection, since it teaches us that all Men are descended from the same first Parents. So that in this Respect also may be truly affirmed, what Florentinus said in another Sense, ThatNature has made us all akin: Whence it follows, that it is a Crime for one Man to act to the Prejudice of another.
XV. Amongst Men, Parentsare as so many Godsin regard to their Children: Therefore the latter owe them an Obedience, not indeed unlimited, but as extensiveas that Relation requires, and as great as the Dependence of both upon a common Superior permits.
2. Human.XVI. Again, since the fulfilling of Covenants belongs to the Law of Nature, (for it was necessary there should be some Means of obliging Men among themselves, and we cannot conceive any other more conformable to Nature) from this very FoundationCivil Laws were derived.Civil of every State.For those who had incorporated themselves into any Society, or subjected themselves to any one Man, or Number of Men, had either expressly, or from the Nature of the Thing must be understood to have tacitly promised, that they would submit to whatever either the greater part of the Society, or those on whom the Sovereign Power had been conferred, had ordained.
XVII. Therefore the Saying, not of Carneades only, but of others,
Interest, that Spring of Just and Right.
if we speak accurately, is not true; for the Mother of Natural Law is human Nature itself, which, though even the Necessity of our Circumstances should not require it, would of itself create in us a mutual Desire of Society: And the Mother of Civil Law is that very Obligation which arises from Consent, which deriving its Force from the Law of Nature, Nature may be called as it were, the Great Grandmother of this Law also. But to the Law of Nature Profit is annexed: For the Author of Nature was pleased, that every Man in particularshould be weak of himself, and in Want of many Things necessary for living commodiously, to the End we might more eagerly affect Society: Whereas of the Civil Law Profit was the Occasion; for that entering into Society, or that Subjection which we spoke of, began first for the Sake of some Advantage. And besides, those who prescribe Laws to others, usually have, or oughtto have, Regard to some Profit therein.
XVIII. But as the Laws of each State respect the Benefit of that State; so amongst all or most States there might be, and in Fact there are, some Laws agreed on by common Consent, which respect the Advantage not of one Body in particular, but of all in general. And this is what is called the Law of Nations,Of Nations; of all or most States. when used in Distinction to theLaw of Nature. This<xxi> Part of Law Carneades omitted, in the Division he made of all Law into Natural and Civil of each People or State; when notwithstanding, since he was to treat of the Law which is between Nations (for he added a Discourse concerning Wars and Things got by War) he ought by all means to have mentioned this Law.
II.Objections confuted: Justice not Folly.XIX. But it is absurd in him to traduce Justice with the Name of Folly.For as, according to his own Confession, that Citizen is no Fool, who obeys the Law of his Country, though out of Reverence to that Law he must and ought to pass by some Things that might be advantageous to himself in particular: So neither is that People or Nation foolish, who for the Sake of their own particular Advantage, will not break in upon the Laws common to all Nations; for the same Reason holds good in both. Foras he that violates the Laws of his Country for the Sake of some present Advantage to himself, thereby saps the Foundation of his own perpetual Interest, and at the same Time that of his Posterity: So that People which violate the Laws of Nature and Nations, break down the Bulwarks of their future Happiness and Tranquillity. But besides, though there were no Profit to be expected from the Observation of Right, yet it would be a Point of Wisdom, not of Folly, to obey the Impulse and Direction of our own Nature.
XX. Therefore neither is this Saying universally true,
’Twas Fear of Wrong that made us make our Laws.
which one in Plato expresses thus,The Fear of receiving Injury occasioned the Invention of Laws, and it was Force that obliged Men to practice Justice. For this Saying is applicable only to those Constitutions and Laws which were made for the better Execution of Justice: Thus many, finding themselves weak when taken singly and apart, did, for fear of being oppressed by those that were stronger, unite together to establish, and with their joint Forces to defend Courts of Judicature, to the End they might be an Overmatch for those whom singly they were unable to deal with. And now in this Sense only may be fitly taken what is said, That Law is that which the stronger pleases to impose; by which we are to understand, that Right has not its Effect externally, unless it be supported by Force. Thus Solon did great Things, as he himself boasted,
By linking Force in the same Yoke with Law.
Justice brings Peace to the Conscience.XXI. Yet neither does Right lose all its Effect, by being destitute of the Assistance of Force. For Justice brings Peace to the Conscience; Injustice, Racks and Torments, such as Platodescribes in the Breasts of Tyrants. Justice is approved of, Injustice condemned by the Consent of all good Men. But that which is greatest of all, to this God is an Enemy, to the other a Patron, who does not so wholly reserve his Judgments for a future Life, but that he often makes the Rigour of them to be perceived in this, as Histories teach us by many Examples.<xxii>
Equally concerns private Persons, Nations, and Rulers of Nations.XXII. But whereas many that require Justice in private Citizens, make no Account of it in a whole Nation or its Ruler; the Cause of this Error is, first, that they regard nothing in Right but the Profit arising from the Practice of its Rules, a Thing which is visible with Respect to Citizens, who, taken singly, are unable to defend themselves. But great States, that seem to have within themselves all things necessary for their Defence and Wellbeing, do not seem to them to stand in need of that Virtue which respects the Benefit ofothers, and is called Justice.
XXIII. But, not to repeat what has been already said, namely, that Right has not Interest merely for its End; there is no State so strong or well provided, but what may sometimes stand in need of Foreign Assistance, either in the Business of Commerce, or to repel the joint Forces of several Foreign Nations Confederate against it. For which Reason we see Alliances desired by the most powerful Nations and Princes, the whole Force of which is destroyed by those that confine Right within the Limits of each State. So true is it, that the Moment we recede from Right,we can depend upon nothing.
XXIV. If there is no Community which can be preserved without some Sort of Right, as Aristotleproved by that remarkableInstance of Robbers, certainly the Society of Mankind, or of several Nations, cannot be without it; which was observed by him who said,That a base Thing ought not to be done, even for the Sake of ones Country. Aristotleinveighs severely<xxiii> against those,who, though they would not have any to govern amongst themselves, but he that has a Right to it, yet in regard to Foreigners are not concerned whether their Actions be just or unjust.
Governs Peace;XXV. A Spartan King having said,That is the most happy Commonwealth, whose Bounds were determined by Spear and Sword; the same Pompey, whom we lately mentioned on the contrary Side, correcting that Maxim said, That is happy indeed, which has Justice for its Boundaries. For which he might have used the Authority of another Spartan King,who preferred Justice beforemilitary Fortitude, for this Reason, that Fortitude ought to be regulated by some sort of Justice: And that if all Men were Just, they would have no Occasion for that Fortitude. The Stoicks definedFortitude itself to be the Virtue that contends for Justice. Themistius, in his Oration to Valens, says very elegantly, that Kings, who conduct themselves by the Rules of Wisdom, take Care, not only of the Nation whose Government they are entrusted with, but of all Mankind; and are, as he expresses himself, not ϕιλομακέδονες Friends to the Macedonians only, or ϕιλοῥωμαίοι to the Romans, but ϕιλάνθρωποι to all Men without Exception. Nothing else made the Name of Minos odious to Posterity,but his confining Equity within the Limits of his own Empire.
and War; hence the Laws of War.XXVI. But so far must we be from admitting the Conceit of some, that the Obligation of all Right ceases in War; that on the contrary, no War ought to be so much as undertaken but for the obtaining of Right; nor when undertaken, ought it to be carried on beyond the Bounds of Justice and Fidelity. Demosthenessaid well, that War is made against those who cannot be restrained in a judicial Way. For judicial Proceedings are of Force against those who are sensible of their Inability to oppose them; but against those who are or think themselves of equal Strength, Wars are undertaken; but yet certainly, to render Wars just, they are to be waged with no less Care and Integrity, than judicial Proceedings are usually carried on.
XXVII. Let it be granted then, thatLaws must be silent in the midst of Arms, provided they are only those Laws that are Civil and Judicial, and proper for Times of Peace; but not<xxiv> those that are of perpetual Obligation, and are equally suited to all Times. For it was very well said of Dion Prusaeensis,That between Enemies, Written, that is, Civil Laws, are of no Force, but Unwrittenare, that is, those which Nature dictates, or the Consent of Nations has instituted. This we are taught by that ancient Form of the Romans, These Things I think must be recovered by a pure and just War. The same ancient Romans, as Varro observed,were very slow and far from all Licentiousness in entring upon War, because they thought that no War but such as is lawful and accompanied with Moderation, ought to be carried on. It was the Saying of Camillus,That Wars ought to be managed with as much Justice as Valour: And of Scipio Africanus,That the Romans both begin and finish their Wars with Justice. An Authormaintains, There are Laws of War, as there are of Peace. Anotheradmires Fabricius for a very great Man, and remarkable for a Virtue which is extremely difficult, Innocence in War, and who believed that there are some Things, which it would be unlawful to practise even against an Enemy.
XXVIII. Of how great Force in Wars is the Consciousness of the Justice ofthe Cause, Historians every where shew, who often ascribe the Victory chiefly to this Reason. Hence the<xxv> Proverbial Sayings,A Soldier’s Courage rises or falls according to the Merit of his Cause;seldom does he return safely, who took up Arms unjustly; Hope is theCompanion of a good Cause; and others to the same Purpose. Nor ought any one to be moved at the prosperous Successes of unjust Attempts; for it is sufficient that the Equity of the Cause has of itself a certain, and that very great Force towards Action, though that Force, as it happens in all human Affairs, is often hindered of its Effect, by the Opposition of otherCauses. The Opinion that a War is not rashly and unjustly begun, nor dishonourably carried on, is likewise very prevalent towards procuring Friendships; which Nations, as well as private Persons, stand in need of upon many Occasions. For no Man readily associates ciates with those, who, he thinks, have Justice, Equity and Fidelity in Contempt.
III.The Author’s Reasons for writing this Book.XXIX. Now for my Part, being fully assured, by the Reasons I have already given, that there is some Right common to all Nations, which takes Place both in the Preparations and in the Course of War, I had many and weighty Reasons inducing me to write a Treatise upon it. I observed throughout the Christian World a Licentiousness in regard to War, which even barbarous Nations ought to be ashamed of:Restraining the Licentiousness in making War.a Running to Arms upon very frivolous or rather no Occasions; which being once taken up, there remained no longer any Reverence for Right, either Divine or Human, just as if from that Time Men were authorized and firmly resolved to commit all manner of Crimes without Restraint.
XXX. The Spectacle of which monstrous Barbarity worked many, and those in no wise bad Men, up into an Opinion, that a Christian, whose Duty consists principally in loving all Men without Exception, ought not at allto bear Arms; with whom seem to agree sometimes Johannes Ferusand our Countryman Erasmus, Men that were great Lovers of Peace both Ecclesiastical and Civil; but, I suppose, they had the same View, as those have who in order to make Things that are crooked straight, usuallybend them as much the other Way. But this very Endeavour of inclining too much to the opposite Extreme, is so far from doing Good, that it often does Hurt, because Men readily discovering Things that are urged too far by them, are apt to slight their Authority in other Matters, which perhaps are more reasonable. A Cure therefore was to be applied to both these, as well to prevent believing that Nothing, as that all Things are lawful.
An endeavour to promote the Knowledge of Law, by giving an Example of a Method for it.XXXI. At the same Time I was likewise willing to promote, by my private Studies, the Profession of Law, which I formerly practised in publickEmployments with all possible Integrity; this being the only Thing that was left for me to do, being unworthilybanished my Native Country, which I have honoured with so many of my Labours. Many have before this designed<xxvi> to reduce it into a System; but none has accomplished it; nor indeed can it be done, unless those things (which has not been yet sufficiently taken Care of,) that are establishedby the Will of Men, be duly distinguished from those which are founded on Nature. For the Laws of Nature being always the same, may be easily collected into an Art; but those which proceed from Human Institution being often changed, and different in different Places, are no more susceptible of a methodical System, than other Ideas of particular Things are.
XXXII. But if the Professors of true Justice would undertake to treat of the several Parts of that Law which is perpetual and natural, setting aside every Thing which owes its Rise to Voluntary Institution, so that one for Instance would treat of Laws, another of Tributes, another of the Office of Judges, another of the Conjecture of Wills, another of the Evidence in Matters of Fact, there might at last from all the Parts collected together be a Body of Law composed.
IV.The Contents and Order of the Work.XXXIII. What Method we thought fit to use, we have shewn in Deed rather than in Words in this Treatise, which contains that Part of Law, which is by far the noblest.
Book I.XXXIV. For in the first Book, after premising some Things concerning the Origin of Right, we have examined the general Question, whether any War is just; afterwards to discover the Difference between a publick and private War, our Business was to explain the Extent of the Supreme Power, what People, what Kings have it in full, who in part, who with a Power of alienating it, and who have it without that Power. And then we were to speak of the Duty of Subjects to their Sovereigns.
Book II.XXXV. The second Book, undertaken to explain all the Causes from whence a War may arise, shews at large, what Things are common, what proper, what Right one Person may have over another, what Obligation arises from the Property of Goods, what is the Rule of Regal Succession, what Rightarises from Covenant or Contract, what the Force and Interpretation of Treaties and Alliances, what of an Oath both publick and private, what may be due for a Damage done, what the Privileges of Embassadors, what the Right of burying the Dead, what the Nature of Punishments.
Book III.XXXVI. The third Book treats first of what is lawful in War; and then, having distinguished that which is done with bare Impunity, or which is even defended as lawful among foreign Nations, from that which is really blameless, descends to the several Kinds of Peace, and all Agreements made in war.
V.The Necessity of Writing.XXXVII. But I thought this Undertaking still the more worth my Pains, because, as I said before, this Subject has not been fully handled by any Body; and those who have treated of the Parts of it, have done it so, that they have left a great deal for the Labour of others.Nothing of the ancient Authors extant on this Subject.There is nothing of this Kind extant of the ancient Philosophers, whether those of the Pagan Greeks, (amongst whom Aristotle had composed a Book intitled, Δικαιώματα Πολέμων, The Rights of War,) or those of the Primitive Christians, which was very much to be wished for. Nay, of those Books of the ancient Romans concerning the Fecial Law, we have nothing transmitted to us but the bare Name: Those who have made Sums of Cases of Conscience, as they call them, have made only Chapters, as of other Things, so of War, of Promises, of an Oath, of Reprizals.
The Defects of the Moderns.XXXVIII. I have likewise seen some particular Treatises concerning the Rights of War, some of which were written by Divines, as Franciscus Victoria, Henricus Gorichemus, Wilhelmus Matthaei, Johannes de Carthagena; some by Professors of Law, as Johannes Lupus, Franciscus Arius, Johannes de Lignano, Martinus Laudensis. But upon so copious a Subject, they have all of them said but very little, and most of them in such a Manner, that they have, without any Order, mixed and confounded together those Things that belong severally to the Law Natural, Divine, of Nations, Civil and Canon.
XXXIX. What was most wanting in all those, viz. Illustrations from History, the most Learned Faber has undertaken to supply in some Chapters of his Semestria, but no farther than<xxvii> served his Purpose, and only by alledging some Authorities. The same has been done more largely, and that by applying a Multitude of Examples to some general Maxims laid down, by Balthazar Ayala, and still more largely by Albericus Gentilis, whose Labour, as I know it may be serviceable to others, and confess it has been to me, so what may be faulty in his Stile, in Method, in distinguishing of Questions, and the several Kinds of Right, I leave to the Reader’s Judgment. I shall only say this, that in the Decision of Controversies, he is often wont to follow either a few Examples that are not always to be approved of, or even the Authority of modern Lawyers in their Answers, not a few of which areaccommodated to the Interest of those that consult them, and not formed by the invariable Rules of Equity and Justice. The Causes, from whence a War is denominated just or unjust, Ayala has not so much as touched upon: Gentilis has indeed described after his Manner some of the general Heads; but neither has he touched upon many famous Questions, which turn upon Cases that are very common.
I.The Author’s Case,XL. We have been careful that nothing of this Kind be passed over in Silence, having likewise shewn the very Foundations upon which we build our Decisions, so that it might be easy to determine any Question that may happen to be omitted by us. It remains now, that I briefly declare with what Assistance, and with what Care I undertook this Work.1.In proving the Law of Nature.My first Care was, to refer the Proofs of those Things that belong to the Law of Nature to some such certain Notions, as none can deny, without doing Violence to his Judgment. For the Principles of that Law, if you rightly consider, are manifest and self-evident, almost after the same Manner as those Things are that we perceive with our outward Senses, which do not deceive us, if the Organs are rightly disposed, and if other Things necessary are not wanting. Therefore Euripides in his Phoenissae makes Polynices, whose Cause he would have to be represented manifestly just, deliver himself thus:
- I speak not Things hard to be understood,
- But such as, founded on the Rules of Good
- And Just, are known alike to Learn’d and Rude.
And he immediately adds the Judgment of the Chorus, (which consisted of Women and those too Barbarians) approving what he said.
XLI. I have likewise, towards the Proof of this Law, made Use of the Testimonies ofPhilosophers, Historians, Poets, and in the last Place, Orators; not as if they were to be implicitly believed; for it is usual with them to accommodate themselves to thePrejudices of their Sect, the Nature of theirSubject, andthe Interest of their Cause: But that when many Men of different Times and Places unanimously affirm the same Thing for Truth, this ought to be ascribed to a general Cause; which in the Questions treated of by us, can be no other than either a just<xxviii> Inference drawn from the Principles of Nature, or an universal Consent.Of Nations.The former shews the Law of Nature, the other theLaw of Nations. The Difference between which is not to be understood from the Testimonies themselves (for the Law of Nature and of Nations are Words used every wherepromiscuously by Writers) but from the Quality of the Subject.2.In distinguishing both of them, and the Civil Law.For that which cannot be deduced from certain Principles by just Consequences, and yet appears to be every where observed, must owe its rise to a free and arbitrary Will.
XLII. Therefore these two I have very carefully endeavoured always to distinguish no less from one another, than from the Civil Law: And even in the Law of Nations, I have made a Distinction between that which is truly and in every Respect lawful,The Species of each.and that which only produces a certain external Effect after the Manner of that primitive Law; so that, for Instance, it may be lawful to resist it, or that it even ought to be every where defended with the publick Force, for the Sake of some Advantage that attends it, or that some great Inconveniences may be avoided. Which Observation, how necessary it is in many Respects, will appear in the followingTreatise. We have been no less careful in distinguishing Things belonging to Right properly and strictly so called, whence arises the Obligation of making Restitution, from those which are only said to belong to it, because that the acting otherwise is repugnant to some other Dictate of right Reason: Which Distinction we have already touched upon.
II.Assistance in the Work.XLIII. Among Philosophers Aristotle deservedly holds the chief Place, whether you consider his Method of treating Subjects, or the Acuteness of his Distinctions, or the Weight of his Reasons. I could only wish that the Authority of this great Man had not for some Ages past degenerated into Tyranny,1.Philosophers. Aristotle, his Praise.so that Truth, for the Discovery of which Aristotle took so great Pains, is now oppressed by nothing more than the very Name of Aristotle. I, for my Part, both in this and in all my other Writings, take to myself the Liberty of the ancient Christians, who espoused no Sect of Philosophers; not that they held with those who asserted that nothing can be known, than which there is nothing more foolish; but were of Opinion, that there was no one Sect that had discovered all Truth, nor any but what held something that was true. Therefore to collect into a Body the Truths that were dispersed in the Writings of each Philosopher and each Sect, they conceived to be nothing else, butto deliver the true Christian Doctrine.
His Faults.XLIV. Among other Things, (that I may mention this by the by, as not being foreign to our Purpose,) it is not without Reason, that some of the Platonists and ancientChristians seem to dissent from Aristotle in this, that he placed the very Nature of Virtuein a Mediocrity of Passions and Actions; which being once laid down, drove him to this, that of Virtues of a different Kind, as for Instance,Liberality and Frugality, he made but one; and<xxix> assignedto Veracity two Opposites between which there is not an equal Contrariety, viz. Boasting and false Modesty; and imposed the Name of Vice upon some Things, which either are not in Nature, or in themselves are not Vices, as, theContempt of Pleasure andHonours,<xxx> and an Insensibility to Injuries, whichhinders us from being angry against Men.
All Virtue has not Vice in Excess.XLV. But that this Principle of Mediocrity, taken universally, is not rightly laid, appears from the Instance of Justice itself, whose Opposites, too much and too little, when he could not find in the Affections and their subsequent Actions,he sought for Both in the Things themselves<xxxi> about which Justice is conversant. Which very thing is in the first Place to leap from one kind of Thing to another, which he deservedly blames in others; and in the next Place, to receive lessthan one’s Due may indeed happen to be a Vice, when the Circumstances of himself or his Family cannot allow of any Abatement; but certainly it cannot be repugnant to Justice, since it consists wholly in abstaining from that which is another Man’s. Like to which Mistake is that of his not allowingAdultery proceeding from Lust, and Murder from Anger, to belong properly to Injustice: Whereas the very Nature of Injustice consists in nothing, else, but in the Violation of another’s Rights; nor does it signify, whether it proceeds from Avarice, or Lust, or Anger, or imprudent Pity, or Ambition, which are usually the Sources of the greatest Injuries. For to resist all Temptations of what Kind soever, and that for this only Reason, viz. the preserving of Human Society inviolable, is indeed the proper Business of Justice.
XLVI. To return from this Digression, true indeed it is, that to some Virtues it happens, that they moderate the Affections, yet not for the Reason, that it is the proper and perpetual Office of all Virtue to do so; but because right Reason, which Virtue always follows,prescribes a Measure to be followed in some Things; in others it excites us to the utmost we are capable of.Consists often in the utmost we are capable of.We cannot, for instance,serve God with too much Ardour; for the Crime of Superstition consists<xxxii> not in serving God with too much Ardour, but in serving him perversely. Neither can we too much desire eternal Happiness, nor too much dread eternal Misery, nor too much hate Sin. It is therefore truly said of Gellius,there are some Things whose Extent has no Bounds, and which are so much more commendable as they are carried to a higher Pitch. Lactantius,after having discoursed largely on the Passions, says, Wisdom does not consist in moderating them, but in regulating the Impressions of the Causes that produce them, for they are excited by external Objects. Neither ought a Restraint to be put principally upon them, because it is possible for them to be very weak in those who commit the greatest Crime, and to be very violent without leading to any Crime at all. Our Purpose is to set always a high Value upon Aristotle, but so as to reserve to ourselves the same Liberty which he himself took with his Masters, for the Sake of finding Truth.
Histories.XLVII. Histories have a double Use with respect to the Subject we are upon, for they supply us both with Examplesand Judgments. Examples, the betterthe Times and the wiser the People were, are of so much the greater Authority; for which Reason we have preferred those of the ancient Grecians and Romans before others. Nor are the Judgments we meet within Histories to be despised, especially when they agree: For the Law of Nature, as we have already said, is in some Measure proved from hence, but of the Law of Nations there is no other Proof but this.
Poets, Orators.XLVIII. The Opinions of Poets and Orators are not of so great Weight: And we often make use of them, not so much for the Sake of building any Thing upon them, as that their Expressions may add an Ornament to what we have a mind to say.
II.Sacred Books.XLIX. The Authority of those Books which Men inspired by God, either writ or approved of, I often use, but with a Difference of the Old and New Law.1.The Old Testament.Some there are whourge the Old Law for the very Law of Nature, but they are undoubtedly in the wrong: For many Thingsin it proceed from the Free Will of God, which yet is never repugnant to the Law of Nature itself; and so far an Argument may be rightly drawn from it, provided we carefully distinguish theRights of God, which God sometimes exercises by the Ministry of Men, from the Rights of<xxxiii> Men among themselves. We have therefore avoided, as much as we could, both this Error, and also another contrary to it, viz.that since the Promulgation of the New Testament the Old one is of no Use. We are of a contrary Opinion, both upon Account of what we have said already, and also because the Nature of the New Testament is such, that whatever are the moral Precepts in the Old Testament, the same, or more perfect,are enjoined by the New also: And in this Manner we see the Testimonies of the Old Testament made Use of by the Writers among the Primitive Christians.
The Hebrew Writers.L. But to understand the Sense of the Books of the Old Testament, the Hebrew Writers may afford us no little Assistance, thoseespecially who were thoroughly acquainted with the Language and Manners of their Country.
2.The New Testament.LI. The New Testament I use for this Purpose, that Imay shew, what cannot be elsewhere learned, what is lawful for Christians to do; which Thing itself, I have notwithstanding, contrary to what most do, distinguished from the Law of Nature; as being fully assured, that in that most holy Law a greater Sanctity is enjoined us, than the meer Law of Nature in itself requires. Nor have I for all that omitted observing, what Things in it are ratherrecommended to us than commanded, to the Intent we may know, that as to transgress the Commands is a Crime that renders us liable to be punished; so to aim at the highest Perfection, in what is but barely recommended, is the Part of a generous Mind, and that will not fail of a proportionable Reward.
3.The Canons of Councils.LII. The Canons of Councils,when they are just and reasonable, are Consequences drawn from the general Maxims of the Divine Law, fitted to particular Cases that happen: These likewise either shew what the Divine Law commands, or exhort us to what God recommends. And this is the Office of the true Christian Church, to deliver to us those Things that are delivered to her of God, and in the same Manner as they are delivered.4.The Manners and Customs of the first Christians.But even the Customslikewise that<xxxiv> were received or commended amongst those antient Christians, who maintained the Dignity of so high a Title, have deservedly the Force of Canons.5.Both the Writings and the Consent of the Fathers.The next in Authority to these, are the Decisions of those whowere famous in their Times for their Christian Piety and Learning, and were not charged with any gross Error: For even what these assert with great Positiveness, as if they were certain of it, ought to have no little Weight in interpreting the Places that seem obscure in Holy Scripture, and that the more, by how much the more there are that consent in the same Thing, and the nearer they are to the Times in which the Church was most pure, when as yet neither Dominion, nor Faction, was able to corrupt the primitive Truth.
6.Schoolmen.LIII. The Schoolmen that succeeded these, give us many Proofs of their great Capacities; but their Misfortune was to live in unhappy Times, when good Learning was entirely neglected. The less Wonder then, that among many Things, in their Writings commendable, there are some that need Indulgence. And yet when they agree in Matters of Morality, they seldom err, as being quick in discerning those Things that are blameable in the Sayings of others; and even in this their prevailing Humour of contradicting, they set us a laudable Pattern of Modesty, as disputing against one another with Arguments, and not, as the Custom of late hath been, to the Dishonour of Learning, with Reproaches, the base Offspring of an impotent Mind.
III.Lawyers.LIV. Of those that profess the Knowledge of the Roman Laws, there are three Sorts. The first is of those whose Works appear in the Digest, the Codes of Theodosius and Justinian, and the Novels. The second is, of those who succeeded Irnerius, as Accursius, Bartolus,and many others, that for a long time reigned at the Bar. The third comprehendsthose who joined<xxxv> the Knowledge of the Belles Lettres with the Study of Laws.1.Ancient.For the first I have a great Deference; for they both supply us with Reasons, and those often the very best, to demonstrate what belongs to the Law of Nature; and also often give Testimony to it, as well as to the Law of Nations; yet so as that they, as well as others, oftenconfound these Words, nay and often call that the Law of Nations, which prevails among some Nations only, and that not by a sort of tacit Agreement, but by Imitation of one another, or even by a casual Consent. But again, those Things which really belong to the Law of Nations, they often handle promiscuously and indiscriminately with those that belong to the Roman Law, as appears from theTitle concerning Captives and Postliminy. Therefore we took Pains to have these distinguished.
2.Those of the middle Age.LV. The second Class, being regardless of the Divine Law and ancient Histories, studied to determine all Controversies between Kings and Nations from the Roman Laws, to which they sometimes joined the Canon Law. But these were likewise hindered, by the Infelicity of their Times, from discovering the true Sense of those Laws, though otherwise sagacious enough in searching into the Nature of Equity: From whence it comes, that they often make very good Overtures for new Laws, at the same Time that they are but bad Interpreters of Laws already made. But they are then chiefly to be attended to, when they give Testimony to such a Custom, as now in our Time passes for a Law of Nations.
3.Modern.LVI. The Professors of the third Class, confining themselves within the Limits of the Roman Law, and either never, or but lightly, meddling with this Law common to Princes and Nations, are scarce of any Use to us in our Subject.Spaniards.Amongst these, Covarruvias and Vasquez,two Spaniards, have joined Scholastick Subtilty with the Knowledge of Laws and Canons; so that they could not forbear treating of the Controversies between Nations and Kings; the one with a great deal of Freedom, the other more modestly, and not without some Exactness of Judgment.Frenchmen.The French have with most Care attempted to introduce History into the Study of Law, amongst whom Bodin,and Hottomanare in great Esteem, the one for a continued Treatise, the other for some scattered Questions. Their Decisions and Reasons will often furnish us with Matter for the Search of Truth.
VII.The Design and Order observed through the whole Work explained.LVII. In this whole Work there were three Things that I chiefly proposed to myself; to render the Reasons of my Decisions as evident as possible, to dispose the Matters to be treated of into a regular Method, and to distinguish clearly those Things which might appear to be the same, but were not.
LVIII. I have forborn meddling with those Things that are of aquite different Subject, as the giving Rules about what it may be profitable or advantageous for us to do: For they properly belong to the Art of Politicks,which Aristotle rightly so handled by itself, that he mixed nothing foreign with it: Bodin on the contrary has confounded it with that which is the Subject of this Treatise. Yet in some Places I have made mention of the useful, but by the by, and to distinguish it more clearly from a Question of the just.
LIX. He will do me wrong whoever shall think that I had Regard to any Controversies of the present Age, either already risen, or that can be foreseen to arise. For I profess truly, that as Mathematicians consider Figures abstracted from Bodies, so I, in treating of Right, have withdrawn my Mind from all particular Facts.
A concise way of speaking.LX. As to the Style, I was not willing, by joining a Multitude of Words with a Multitude of Things to be treated of, to create a Distaste in the Reader, whose Advantage I consulted. I have therefore followed, as much as I could, a concise way of speaking, as convenient for such as undertake to instruct; that so, they who are employed in publick Affairs, may, as at one View, see, both what Kinds of Controversies usually arise, and also the Principles by which they may be<xxxvi> decided; which being known, it will be easy to suit the Discourse to the Subject Matter, and enlarge upon it as much as they please.
The very Words of Authors quoted.LXI. I have sometimes quoted the very Words of the ancient Writers, when they were such as seemed to be expressed, either with a singular Force or Elegancy; which I have done sometimes in regard to Greek Authors, especially when either the Sentence was short, or the Beauty of it such as I could not hope to equal in a Translation; which notwithstanding I have always subjoined, for the Use of those who have not learned the Greek Language.
The Liberty of judging left to the Reader.LXII. And now, whatever Liberty I have taken in judging of the Opinions and Writings of others, I desire and beseech all those, into whose Hands this Treatise shall come, to take the same with me. They shall no sooner admonish me of my Mistakes, than I shall follow their Admonitions. And moreover, if I have said any thing contrary either to Piety, or to good Manners, or to Holy Scripture, or to the Consent of the Christian Church, or to any Kind of Truth, let it be unsaid again.<1>
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What War is, and what Right is.
I.The Order of the Treatise.I. All the Differences of those who do not acknowledge one common Civil Right, whereby they may and ought to be decided; such as are a multitude of People that form no Community, or those that are Members of different Nations, whether private Persons, or Kings, or other Powers invested with an Authority equal to that of Kings, as the Nobles of a State, or the Body of the People, in Republican Governments: All such Differences, I say, relate either to the Affairs of War, or Peace. But because War is undertaken for the Sake of Peace, and there is no Controversy from whence War may not arise, all such Quarrels, as commonly happen, will properly be treated under the Head of the Right of War; and then War itself will lead us to Peace, as to its End and Purpose.
II.The Definition of War, and the Original of the Word (bellum).II. 1. Being then to treat of the Right of War, we must consider what that War is which we are to treat of, and what the Right is which we search for. Cicero defines Wara Dispute by force. But Custom has so prevailed, that not the<2> Act of Hostility, but the State and Situation of the contending Parties, now goes by that Name; so that War is the State or Situation of those (considered in that Respect) who dispute by Force of Arms. Which general Acceptation of the Word comprehends all the kinds of War of which we shall hereafter treat, not even excluding single Combats, which being really ancienter than Publick Wars, and undoubtedly of the same Nature, may therefore well have one and the same Name. This agrees very well with the Etymology of the Word; for the Latin Word Bellum (War) comes from the old Word Duellum (a Duel) as Bonus from Duonus, and Bis from Duis. Now Duellum was derived from Duo, and thereby implied a Difference between two Persons, in the same Sense as we term Peace Unity (from Unitas) for a contrary Reason. So theGreek Word Πόλεμος, commonly used to signify War, expresses in its Original an Idea of Multitude. The ancient Greeks likewise called it Λύη, which imports a Disunion of Minds; just as by the Term Δύη, they meant the Dissolution of the Parts of the Body.
2. Neither does the Use of the Word (War) contradict this larger Acceptation. For tho’ sometimes we only apply it to signify a Publick Quarrel, this is no Objection at all, since ’tis certain, that the more eminentSpecies does often peculiarly assume the Name of its Genus. We do not include Justice in the Definition of War, because it is the Design of this Treatise to examine, whether any War be just, and what War may be so called. But we must distinguish that which is in Question, from that concerning which the Question is proposed.
III.Right, as it is attributed to Action, described, and divided into that of Governors and governed, and that of Equals.III. 1. Since we intitle this Treatise Of the Rights of War, we design first to enquire (as I said before) whether any War be just; and then what is just in that War? For Right in this Place signifies meerly that which is just, and that too rather in a negative than a positive Sense. So that the Right of War is properly that which may be done without Injustice with Regard toan Enemy. Now that is unjust which is repugnant to the Nature of a Society of reasonable Creatures. So Cicero says, it is unnatural to take from another to enrich one’s self; which he proves thus, because, if every one were to do so, all Human Society and Intercourse must necessarily be dis-<3>solved. Florentinus declares, that it is a villainous Act for one Man to lay an Ambush for another, because Nature has founded a kind of Relation between us. And Seneca observes, As all the Members of the Human Body agree among themselves, because on the Preservation of each depends the Welfare of the Whole, so should Men favour one another, since they are born for Society, whichcannot subsist but by a mutual Love and Defence of the Parts.
2. But as in Societies, some are equal, as those of Brothers, Citizens, Friends and Allies. And others unequal, καθ’ ὑπεροχὴν,by Preeminence as Aristotle terms it; as that of Parents and Children, Masters and Servants, King and Subject, God and Man: So that which is just takes Place either among Equals, or amongst People where of some are Governors and others governed, considered as such. The latter, in my Opinion, may be called theRight of Superiority, and the former theRight of Equality.
IV.Right taken for Quality divided into Faculty, and Aptitude or Fitness.IV. There is another Signification of the Word Right different from this, but yet arising from it, which relates directly to the Person: In which Sense Right is a moral Quality annexed to the Person, enabling him to have, or do, something justly. I say, annexed to the Person, tho’ this Quality sometimes follows the things, asServices of Lands, which are called real Rights, in Opposition to Rights,meerly personal, not because the first are not annexed to the Person, as well as the last, but because they are annexed only to him who possesses such or such a Thing. This moral Quality when perfect, is called by us a Faculty; when imperfect, an Aptitude: The former answers to the Act, and the latter to the Power, when we speak of natural Things.
V.Faculty strictly taken divided into Power, Property, and Credit.V. Civilians call a Faculty that Right which a Man has to hisown; but we shall hereafter call it a Right properly, and strictly taken. Under which are contain-<4>ed, 1. A Power either over our selves, which is term’dLiberty; or over others, such as that of a Father over his Children, or a Lord over his Slave. 2. Property, which is either compleat, or imperfect. The last obtains in the Caseof Farms, for Instance, or Pledges. 3. The Faculty of demanding what is due, and to thisanswers the Obligation of rendering what is owing.
VI.Another Division of Faculty into private and eminent.VI. Right strictly taken is again of two Sorts, either private and inferior, which tends to the particular Advantage of each Individual: Or eminent and superior, such as a Community has over the Persons and Estates of all its Members for the common Benefit, and therefore it excells the former. Thus a regal Power is above that of a Father and Master; a King has a greater Right in the Goods of his Subjects for the publick Advantage, than the Proprietors themselves. And when<5> the Exigencies of the State require a Supply, every Man is more obliged to contribute towards it, than to satisfy his Creditors.
VII.What Aptitude is.VII. Aristotle calls Aptitude or Capacity, ἀξίανWorth, or Merit: And Michael of Ephesus terms that which is called Equal or Right, according to that Merit, τὸ προσάρμοζον καὶ τὸ πρέπον, Fit and Decent.
VIII.Of Expletive and Attributive Justice not properly distinguished by Geometrical and Arithmetical Proportions, nor is this conversant about Things common nor that about Things private.VIII. 1. ’Tis expletive Justice, Justice properly and strictly taken, which respects the Faculty, or perfect Right, and is called by Aristotle συναλλακτικὴ, Justice of Contracts, but this does not give us an adequate Idea of that Sort of Justice. For, if I have a Right to demand Restitution of my Goods, which are in the Possession of another, it is not by vertue of any Contract, and yet it is the Justice in question that gives me such a Right. Wherefore he also calls it more properly ἐπανορ-<6>θωτικὴν,corrective Justice. Attributive Justice, stiledby Aristotle διανεμητικὴDistributive, respects Aptitude or imperfect Right, the attendant of those Virtues that are beneficial to others, as Liberality, Mercy, and prudent Administration of Government. But whereas the same Philosopher says, that Expletive Justice follows a simple Proportion, which he calls ἀριθμητικὴν Arithmetical Justice; but Attributive, which he terms γεωμετρικὴνGeometrical, is regulated by a comparative Proportion, and which is the only Proportion allowed by the Mathematicians, this may hold in some Cases, but not in all. Neither does Expletive Justice of itself differ from Attributive in such use of Proportions, but in the Matter, about which it is conversant, as we have said already. And therefore in a Contract of Society, the Shares are made by a Comparative Proportion, and if only one<7> Person be found worthy of a Publick Office, a simple Proportion is all that is necessary in disposing of it.
2. Neither is that more true which some maintain, that Attributive Justice is exercised about Things belonging to the whole Community; and Expletive about Things belonging to private Persons. For on the contrary, if a Man would bequeath his Estate by Will, he does it commonly by Attributive Justice; and when the State repays out of the publick Funds what some of the Citizens had advanced for the Service of the Publick, it only performs an Act of Expletive Justice. This Distinction Cyrus learnt of his Tutor: For when Cyrus had adjudged the lesser Coat to the lesser Boy, tho’ it belonged to another Boy of a bigger size; and so on the other side gave his Coat, being the bigger, to that bigger Boy. His Tutor told him, ὁτι ὁπότε μὲν κατασταθείν του̑ ἁρμόττοντος κριτὴς, &c. Thathad he been appointed Judge of what fitted each of them best, he ought to have done as he did: But since he was to determine whose Coat it was, his Business was to have consideredwhich had a just Title to it, whether he who took it away by Force, or he who made it, or bought it.<8>
IX.Right taken for a Rule or Law defined and divided into Natural and Voluntary.IX. There is also a third Sense of the Word Right, according to which it signifies the same Thing as Law, when taken in its largest Extent, as being a Rule ofMoral Actions, obligingus to that which is good and commendable. I say, obliging: for Counsels, and such other Precepts, which, however honest and reasonable they be, lay us under no Obligation, come not under this Notion of Law, or Right. As to Permission, it is not properly speaking an Action of the Law, but a meer Inaction,<9> unless as it obliges every other Person not to hinder the doing of that, which the Law permits any one to do. I add moreover, that the Law obliges us to that which is good and commendable, not barely to that which is just: Because Right in this Sense does not belong to the Matter of Justice alone (such as I have before explained it) but also to that of other Virtues; tho’ otherwise, whatever is conformable to this Right, may also, in a larger Acceptation, be termedJust. Of this Right, thus taken, the best Division is that ofAristotle, into Natural and Voluntary, which he commonly calls Lawful Right; the Word Law being taken in its stricter Sense: Sometimes also an Instituted Right. We find the same Difference among the Hebrews, who when they speak distinctly, call the Natural Right מצות Precepts, and the Voluntary Right חקים Statutes; the former of which the Septuagint call δικαιώματα, and the latter ἐντολὰς.
X.The Law of Nature defined, divided, and distinguished from such as are not properly called so.X. 1. Natural Rightis the Rule and Dictate ofRight Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature.
2. The Actions upon which such a Dictate is given, are in themselves either Obligatory or Unlawful, and must, consequently, be understood to be either com-<10>manded or forbid by God himself; and this makes the Law of Nature differ not only from Human Right, but from a Voluntary Divine Right; for that does not command or forbid such Things as are in themselves, or in their own Nature, Obligatory and Unlawful; but by forbidding, it renders the one Unlawful, and by commanding, the other Obligatory.
3. But that we may the better understand this Law of Nature, we must observe, that some Things are said to belong to it, not properly, but (as the Schoolmen love to speak) by way of Reduction or Accommodation, that is, to which the Law of<11> Nature is not repugnant; as some Things, we have now said, are called Just, because they have no Injustice in them; and sometimes by the wrong Use of the Word, those Things which our Reason declares tobehonest, or comparatively good, tho’they are not enjoined us, are said to belong to this Natural Law.
4. We must further observe, that this Natural Law does not only respect such Things as depend not upon Human Will, but also many Things which are consequent to some Act of that Will. Thus, Property for Instance, as now in use, was introduced by Man’s Will, and being once admitted, this Law of Nature informs us, that it is a wicked Thing to take away from any Man, against his Will, what is properly his own. WhereforePaulus the Civilian infers, thatTheft is forbid by the Law of Nature: Ulpian, that it isDishonest by Nature: AndEuripides calls it Hateful to GOD, as you may see in these Verses of Helena,
5. As for the Rest, the Law of Nature is so unalterable, that God himself cannot change it. For tho’ the Power of God be infinite, yet we may say, that there are some Things to which this infinite Power does not extend, because they cannot be expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil should<12> not be Evil. And this is Aristotle’s Meaning, when he says, ἔνια ἐυθὺς ὀνόμασται,&c.Some Things are no sooner mentioned than we discover Depravity in them. For as the Being and Essence of Things after they exist, depend not upon any other, so neither do the Properties which necessarily follow that Being and Essence. Now such is the Evil of some Actions, compared with a Nature guided by right Reason. Therefore God suffers himself to be judged of according to this Rule, as we may find, Gen. xviii. 25. Isa. v. 3. Ezek. xviii. 25. Jer. ii. 9. Mich. vi. 2. Rom. ii. 6. iii. 6.
6. Yet it sometimes happens, that in those Acts, concerning which the Law of Nature has determined something, some Sort of Change may deceive the Unthinking; tho’ indeed the Law of Nature, which always remains the same, is not changed; but the Things concerning which the Law of Nature determines, and which may undergo a Change. As for Example: If my Creditor forgive me my Debt, I am not then obliged to pay it; not that the Law of Nature ceases to command me to pay what I owe, but because what I did owe ceases to be a Debt. For as Arrian rightly argues in Epictetus, Ὀυκ ἀρκει̑ τὸ δανείσαθαι πρὸς τὸ ὀϕείλειν, ἀλλὰ δει̑ προσει̑ναι καὶ τὸ ἐπιμένειν ἐπὶ του̑ δανείου καὶ μὴ διαλελύσθαι αὐτὸ. Non sufficit, &c.To make a just Debt, it is not enough that the Money was lent, but it is also requisite, that the Obligation continue undischarged. So when God commands any Man to be put to Death, or his Goods to be taken away, Murder and Theft do not thereby become lawful, which very Words always include a Crime; but that cannot be Murder or Theft, which is done by the express Command of him who is the Sovereign Lord of our Lives and Estates.
7. There are also some Things allowed by the Law of Nature, not absolutely, but according to a certain State of Affairs. Thus, before Property was introduced, every Man had naturally a full Power to use what ever came in his Way. And before Civil Laws were made, every one was at Liberty to right himself by Force.
XI.That Natural Instinct does not make another distinct Law.XI. 1. But that Distinction, which we find in the Books of the Roman Laws, of immutable Right into such as is common to Men with Beasts, which they call in a strict Sense the Law of Nature; and that which is peculiar to Men, which they often style the Law of Nations, is of very little or no use; for nothing is properly susceptible of Right and Obligation, but a Being that is capable of forming general Maxims, as Hesiod has well observed,
- Τόν δε γάρ ἀνθρώποισι νόμον, &c.
<13> Jupiter has ordained that Fishes, wild Beasts, and Birds should devour each other, because Justice doth not take place amongst them: But toMen he has prescribed the Law of Justice, which is the most excellent Thing in the World.
Cicero in his first Book of Offices remarks, that we do not say Horses and Lions have any Justice. And Plutarch, in the Life of Cato the Elder, νόμω μὲν γὰρ, &c. We by Nature observe Law and Justice, only towards Men. And Lactantius, in his fifth Book,We find that all Animals, destitute of Wisdom, follow the natural Biass of Self-Love. They injure others to procure themselves some Advantage; for they know not what it is to hurt with a View of hurting, and with a Sense of the Evil that is in it. But Man, having the Knowledge of Good and Evil, abstains from hurting others, tho’ to his own Detriment.Polybius having related in what Manner Men first engaged in Society, adds, when they saw any one offending his Parents or Benefactors, they could not but resent it, giving this Reason for it, Του̑ γὰρ γένους τω̂ν ἀνθρώπων ταυτῃ διαϕέροντος, &c. For since human Kind does in this differ from other Animals, that they alone enjoy Reason and Understanding, ’tis very unlikely that they should (as other Animals) pass by an Action so repugnant to their Nature, without reflecting on, and testifying their Displeasure at it.
2. If at any Time Justice be attributed to brute Beasts, it is improperly, and only on the Account of some Shadow or Resemblance of Reason in them. But it is not material to the Nature of Right, whether the Act itself, on which the Law of Nature has decreed, be common to us with other Animals, as the bringing up of our Offspring, &c. or peculiar to us only, as the Worship of God.
XII.How the Law of Nature may be proved.XII. Now that any Thing is or is not by the Law of Nature, is generally proved either à priori, that is, by Arguments drawn from the very Nature of the Thing; or à posteriori, that is, by Reasons taken from something external. The former Way of Reasoning is more subtle and abstracted; the latter more popular. The Proof by the former is by shewing the necessary Fitness or Unfitness of any Thing, with a reasonable and sociable Nature. But the Proof by the latter is, when we cannot with absolute Certainty, yet with very great Probability, con-<14>clude that to be by the Law of Nature, which is generally believed to be so by all, or at least, the most civilized, Nations. For, an universal Effect requires an universal Cause. And there cannot well be any other Cause assigned for this general Opinion, than what is called Common Sense.
There’s a Passage in Hesiod to this Purpose, very much commended.
That which is generally reported amongst many Nations is not intirely vain.
Τὰ χοινη̑ ϕαινόμενα πιστὰ.That is certain, which universally appears to be so, said Heraclitus, determining λόγον τὸν ξυνὸν,Common Reason to be the surest Mark of Truth. And Aristotle, κράτιστον πάντας, &c. ’Tis the strongest Proof, if all the World agree to what we say. Cicero,The Consent of all Nations is to be reputed the Law of Nature. So Seneca,What all Men believe must be true. Likewise Quintilian, We allowthat to be certainly true which all Men agree in. I with some Reason said, By the most civilized Nations; for asPorphyry well observes, τίνα τω̂ν ἐθνω̂ν, &c. Some People are savage and brutish,whose Manners cannot, with Truth and Justice, be reckoned a Reproach to human Nature in general. And Andronicus Rhodius, παρ’ ἀνθρώποις, &c. That Lawwhich is called the Law of Nature, is unchangeable, in the Opinion of all Men who are of a right and sound<15> Mind: But if it does not appear so to Men of weak and disturbed Judgments, it argues nothing to the Purpose; for we all allow Honey to be sweet, tho’ it may taste otherwise to a sick Person. To which agrees that of Plutarch, in the Life of Pompey, Φύσει μὲν, &c.No Man either was or is by Nature a wild and unsociable Creature, but some have grown so by addicting themselves to Vice, contrary to the Rules of Nature; and yet these, by contracting new Habits, and by changing their Method of living, and Place of abode, have returned to their natural Gentleness. Aristotle gives this Description of Man, as peculiar to him, ἄνθρωπος ζω̂ον ἥμερον ϕύσει,Man is byNature a mild Creature. And elsewhere, δει̑ δὲ σκοπει̑ν, &c.To judge of what is natural, we must consider those Subjects that are rightly disposed, according to their Nature, and not those that are corrupted.
XIII.Voluntary Right divided into Human and Divine.XIII. The other kind of Right, we told you, is theVoluntary Right, as being derived from the Will, and is either Human or Divine.
XIV.Human Right divided into a Civil Right, a less extensive, and a more extensive Right than the Civil: This explained and proved.XIV. We will begin with the Human, as more generally known; and this is either a Civil, a less extensive, or a more extensive Right than the Civil. The Civil Right is that which results from the Civil Power. The Civil Power is that which governs the State. The State is a compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit. The less extensive Right, and which is not derived from the Civil Power, though subject to it, is various, including in it the Commands of a Father to his Child, of a Master to his Servant, and the like. But the more extensive Right, is the Right of Nations, which derives its Authority from the Will of all, or at least of many, Nations. I say of many, because there is scarce any Right found, except that of Nature, which is also called the Right of Nations, common to all Nations. Nay, that which is reputed the Right or Law of Nations in one Part of the World, is not so in another, as we shall shew hereafter, when we come to treat of Prisoners of War, and Postliminy or the Right of Returning. Now the Proofs on which the Law of Nations is founded,<16> are the same with those of the unwritten Civil Law, viz. continual Use, and the Testimony of Men skilled in the Laws. For this Law is, as Dio Chrysostom well observes, εὕρημα βίου καὶ χρόνου, the Work of Time and Custom. And to this purpose eminent Historians are of excellent Use to us.
XV.The Divine Law divided into that which is universal, and that which is peculiar to one Nation.XV. The Divine voluntary Law (as may be understood from the very Name) is that which is derived only from the Will of GOD himself; whereby it is distinguished from the Natural Law, which in some Sense, as we have said above, may be called Divine also. And here may take Place that which Anaxarchus said, as Plutarch relates in the Life of Alexander, (but too generally) that GOD does not will a Thing because it is just; but it is just, that is, it lays one under an indispensible Obligation, because GOD wills it. And this Law was given either to all Mankind, or to one People only: We find that GOD gave it to all Mankind at three different Times. First, Immediately after the Creation of Man. <17> Secondly, Upon the Restoration of Mankind after the Flood. And thirdly, Under the Gospel, in that more perfect reestablishment by CHRIST. These three Laws do certainly oblige all Mankind, as soon as they are sufficiently made known to them.
XVI.That the Law given to the Hebrews did not oblige Strangers.XVI. Of all the Nations of the Earth, there was but one, to whom GOD peculiarly vouchsafed to give Laws, which was that of the Jews, to whom Moses thus speaks, Deut. iv. 7. What Nation is there so great who hath GOD so nigh unto them, as the LORD our GOD is in all Things that we call upon him for? And what Nation is there so great, who have Statutes and Judgments so righteous, as all this Law, which I set before you this Day. And the Psalmist, cxlvii. 19, 20. He shewed his Word unto Jacob, his Statutes and Ordinances unto Israel. He hath not dealt so with any Nation, and as for his Judgments they have not known them. Neither is it to be doubted, but that those Jews (among whom Tryphon also in his Disputes with Justin) do egregiously err, who think that Strangers too, if they would be saved, must submit to the Yoke of the Mosaick Law: For a Law obliges only those, to whom it is given. And to whom that Law is given, itself<18> declares, Hear O Israel; and we read every where that the Covenant was made with them, and that they were chosen to be the peculiar People of GOD, which Maimonides owns to be true, and proves it from Deut. xxxiii. 4.
But among the Hebrews themselves the real ways lived some Strangers, ἐυσεβει̑ς καὶ σεβόμενοι τὸν θεὸν,Pious Persons, and such as feared GOD, as the Syrophenician Woman, Matt. xv. 22. And Cornelius, Acts x. 2. one τω̂ν σεβομένων Ἑλλήνων of the devout Greeks, Acts xvii. 4. in the Hebrew, חםיךו אומותthe Righteous amongst the Gentiles; as it is read in the Talmud, Title of the King; and he who is such a one is called in the Law כן רבגa Strangersimply, Lev. xxii. 25. or, גד ותושבa Stranger, and a Sojourner, Lev. xxv. 47. Where the Chaldee Paraphrast calls him, an Uncircumcised Inhabitant. These, as the Hebrew Rabbins say, were obliged to keep the Precepts given to Adam and Noah, to abstain from Idols and Blood, and from other Things, which shall be mentioned hereafter in their proper Place; but not the Laws peculiar to the Israelites. And therefore, tho’ it was not lawful for the Israelites to eat of any Beast that died of itself, yet it was allowed to the Strangers that dwelt among them, Deut. xiv. 21. There are only<19> some Laws, where it is expressly declared, that they were given for the Strangers as well as for the Natives. It was also allowed to Strangers who came from Abroad, and never submitted to the Levitical Law, to worship GOD in the Temple at Jerusalem, and to offer Sacrifices; but yet they were obliged to stand in a particular Place, separate from that of the Israelites, 1 Kings viii. 41. 2 Macc. iii. 35. John xii. 20. Acts viii. 27. Nor do we find thatElisha signified to Naaman the Syrian, nor Jonah to the Ninevites, nor Daniel to Nebuchadnezzar, nor the other Prophets to the Tyrians, Moabites, and Egyptians, to whom they wrote, that there was any Necessity for them to receive the Law of Moses.
What I have here said of the whole Law of Moses, I would be understood to mean of Circumcision too, which was, as it were, the Introduction to the Law. There is only this Difference, that the Law of Moses obliged only the Israelites; but that of Circumcision obliged all the Posterity of Abraham. Whence we read in the Jewish and Greek Histories, that theIdumeans (the Edomites) were compelled by the Jews to be circumcised: Wherefore those People who, besides the Jews, were circumcised, (as there were many, according toHerodotus,Strabo,Phi-<20>lo,Justin,Origen,Clemens Alexandrinus,Epiphanius, St. Jerom, andTheodoret) were probably descended from Ismael, Esau, or the Posterity of Keturah.
But of all other Nations that of St. Paul holds true, Rom. ii. 14, 15. Since the Gentiles, who have not the Law, do by Nature (that is by following in their Manners, the Rules which flow from the primitive Source, or from Nature, unless you had rather refer the Word Nature to what goes before, and so oppose the Knowledge which the Gentiles acquired of themselves, and without Instruction, to that which the Jews had by means of the Law, which they were taught almost from the Cradle) the Things contained in the Law; these having not the Law are a Law unto themselves, as shewing the Work of the Law written in their Hearts, their Consciences also bearing Witness, and their Thoughts the mean while accusing or<21> else excusing one another. And again, in the 26th Verse, If the Uncircumcision keep the Righteousness of the Law, shall not his Uncircumcision be counted for Circumcision? And therefore, Ananias the Jew, in the History of Josephus, did very well instruct Izates Adiabenus, (Tacitus calls him Ezates) that GOD might be rightly worshipped, and well pleased with us, tho’ we were not circumcised. Now the Reason why so many Strangers were circumcised (among the Jews) and by that Circumcision obliged to keep the Law, (as St. Paul expounds it, Gal. v. 3.) was partly that they might be naturalized; for Proselytes (called by the Hebrewsגרי צרקProselytes of Righteousness) enjoyed the same Rights and Privileges with the Israelites, (Numb. xv.); and partly, that they might be Partakers of those Promises which were not common to Mankind, but peculiar to the Hebrews only. Tho’ I cannot deny, but that in latter Ages some entertained an erroneous Opinion, that there could be no Salvation without the Pale of the Jewish Church. Hence we may conclude, that we (who are not Jews) are obliged to no Part of the Levitical Law, as a Law properly so called, because all Obligation beyond that, arising from the Law of Nature, is derived from the Will of the Law-giver; but it cannot be made appear, that it was the Will of GOD, that any other People, beside the Israelites, should be bound by that Law; and therefore, as to us, it is by no Means necessary to prove the abrogating of that Law; for it cannot be said to be abrogated in respect to them whom it never bound. But the Obligation of it was abolished to the Israelites, as to the ceremonial Part, as soon as ever the Evangelical Law began to be published, which was manifestly revealed to St. Peter, Acts x. 15.; but as to the Rest, after that People ceased to be a People, by the Destruction of their City, and the utter Desolation of it, without any Hopes of Restauration. The Advantage which we who are Strangers have obtained by the Coming of CHRIST, does not then consist in being freed from the Law of Moses; but, whereas before, we had only very weak Hopes in the Goodness of GOD, we are now, by an express Covenant, assured thereof; and we, together with the Jews, (the Children of the Patriarchs) are made one Church; their Law, which as a Partition Wall divided us, being quite taken away, Eph. ii. 14.
XVII.What Arguments Christians may fetch from the Judaical Law, and how.XVII. Since then the Mosaick Law cannot directly oblige us (as I have already shewed) let us see of what other Use it may be to us, as well in regard to the Right of War, which we are to treat of, as in other like Cases. For the Knowledge of it may be necessary in many Points.
First then, the Law of the antient Hebrews serves to assure us, that nothing is injoined there contrary to the Law of Nature; for since the Law of Nature (as I said before) is perpetual and unchangeable, nothing could be commanded by GOD, who can never be unjust, contrary to this Law. Besides, the Law of Moses is called pure and right, Psalm xix. 8. and by the Apostle St. Paul, holy, just, and good, Rom: vii. 12.
I speak of its Precepts, for we must treat more distinctly of its Permissions. Now the Permission, positively granted by the Law, (for that which is of the bare Fact, and signifies the Removal only of Hindrances, on the Part of the<22> Law, is not to the present Purpose) is either compleat, and without Reserve, which gives us a Right to do something with an intire Liberty in all Respects; or less compleat, and with Reserve, which gives us only an Impunity with Men, and a Right to do a Thing, so as that no Man shall molest and hinder us. From the first of these Permissions, as well as from a positive Precept, it follows, that what the Law allows, cannot be contrary to the Right of Nature. But as to the latter, the Case is entirely different: But it seldom happens that there is Occasion to draw that Consequence with Certainty; for the Terms which express the Per-<23>mission being equivocal, it is better to have Recourse to the Principles of the Law of Nature, in order to discover what Kind the Permission is of, than to conclude from the Manner in which the Permission is conceived, that the Thing permitted is conformable or not conformable to the Law of Nature.
The next Observation is not unlike this, viz. That Christian Princes may now make Laws of the same Import with those given by Moses, unless they be such Laws as wholly related either to the Time of the expected Messias, and the Gospel, not then published; or that CHRIST himself has either in general, or in particular commanded the contrary: For, excepting these three Reasons, no other can be imagined, why that which the Law of Moses formerly established, should now be unlawful.
The third Observation may be this; whatsoever was enjoined by the Law of Moses, which relates to those Virtues that CHRIST requires of his Disciples, ought now as much, if not more, to be observed by us Christians. The Ground of this Observation is, because what Virtues are required of Christians, as Humility, Patience, Charity, &c. are to be practised in a more eminent Degree, than under the State of the Hebrew Law, and that with good Reason too; because the Promises of Heaven are more clearly proposed to us in the Gospel. Wherefore the old Law, in comparison with the Gospel, is said to be neither perfect nor ἄμεμπτος faultless, Heb. vii. 19. viii. 7. And CHRIST is termed the End of the Law, Rom. x. 5. but the Law only our Schoolmaster, or Guide, to bring us unto CHRIST, Gal. iii. 24. Thus the old Law concerning the Sabbath, and that relating to Tythes, shew, that Christians are obliged to set apart no less than the seventh Part of their Time for the Worship of GOD, nor no less than the tenth Part of their Income for the Maintenance of those who are employed in Holy Affairs, or for other Sacred and Pious Uses.
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Whether ’tis ever Lawful to make War.
Having viewed the Sources of Right, let us proceed to the first and most general Question, which is, Whether any War be Just, or, Whether ’tis ever Lawful to make War?<24>
[[I.That to make War is not contrary to the Law of Nature, proved by Reason.I. 1. But this Question, as well as those which follow, is to be first examined by the Law of Nature. Cicero learnedly proves, both in the third Book of His Bounds of Good and Evil, and in other Places, from the Writings of the Stoicks, that there are two Sorts of natural Principles; some that go before, and are called by the Greeks Τὰ πρω̂τα κατὰ ϕύσιν, The first Impressions of Nature; and others that come after, but ought to be the Rule of our Actions, preferably to the former.Gel. xii. c.5 What he calls The first Impressions of Nature, is that Instinct whereby every Animal seeks its own Preservation, and loves its Condition, and whatever tends to maintain it; but on the other Hand, avoids its Destruction, and every Thing that seems to threaten it. Hence comes it, says he, that there’s no Man left to his Choice, who had not rather have all the Members of his Body perfect and well shaped, than maimed and deformed. And that ’tis the first Duty of every one to preserve himself in his natural State, to seek after those Things which are agreeable to Nature, and to avert those which are repugnant.
2. After that follows, (according to the same Author) the Knowledge of the Conformity of Things with Reason, which is a Faculty more excellent than the Body; and this Conformity, in which Decorum consists, ought (says he) to be preferred to those Things, which mere natural Desire at first prompts us to; because, tho’ the first Impressions of Nature recommend us to Right Reason; yet Right Reason should still be dearer to us than that natural Instinct. Since these Things are undoubtedly true, and easily allowed by Men of solid Judgment, without any farther Demonstration, we must then, in examining the Law of Nature, first consider whether the Point in Question be conformable to the first Impressions of Nature, and afterwards, whether it agrees with the other natural Principle, which, tho’ posterior, is more excellent, and ought not only to be embraced when it presents itself, but also by all Means to be sought after.
3. This last Principle, which we call Decorum, according to the Nature of the Things upon which it turns, sometimes consists (as I may say) in an indivisible Point; so that the least Deviation from it is a Vice: And sometimes it has a large Extent; so that if one follows it, he does something commendable, and yet, without being guilty of any Crime, he may not follow it, or may even act quite otherwise: Just as in contradictory Things, one passes immediately from one Extreme to the other; a Thing either is or is not, there is no Medium: But be-<25>tween Things that are opposed after another Manner, as between Black and White, there is a Medium, which either partakes of both Extremes, or is equally removed from both. The last Sort of Decorum is most commonly the Subject of Laws both Divine and Human, which by prescribing Things relating thereto, render them obligatory, whereas before they were only commendable. But the Matter in Question is concerning the first Sort of Decorum. For, as we have said above, when we enquire into what belongs to the Law of Nature, we would know whether such or such a Thing may be done without Injustice; and by unjust we mean that which has a necessary Repugnance to a reasonable and sociable Nature.
Among the first Impressions of Nature there is nothing repugnant to War; nay, all Things rather favour it: For both the End of War (being the Preservation of Life or Limbs, and either the securing or getting Things useful to Life) is very agreeable to those first Motions of Nature; and to make use of Force, in case of Necessity, is in no wise disagreeable thereunto; since Nature has given to every Animal Strength to defend and help itself. All Sorts of Animals, says Xenophon,understand some Way of Fighting, which they learnt no where but from Nature. So, in a Fragment of Ovid’sHalieuticon: Or, Art of Fishery, All Animals naturally know their Enemy, and how to defend themselves: They are sensible of the Force and Quality of their Weapons, And in Horace, The Wolves assault with Teeth, and the Bulls with Horns: Whence is it but from Instinct? But Lucretius more fully, Every Animal knows its own Power: A Calf is sensible of its Horns, even before they are grown, andwill push with its Head, when provoked. Which Galen thus expresses, We see every living Creature employ his strongest Part in his own Defence: The Calf pushes with his Head, tho’ his Horns be not yet grown; the Colt kicks with his Hoofs, tho’ yet tender; and the Whelp bites with his Teeth, as yet but weak. And the same Author tells us, in his First Book Of the Functions of the Members, That Man is an Animal by Nature fitted for Peace and War; that he is not indeed born with Arms, but with Hands proper to make and to use Arms, so that we see the very Infants defend themselves with their Hands, without being taught. SoAristotle says, Man has a Hand, instead of a Spear, a Sword, and other such Weapons; as being capable of grasping and holding every Thing else.
But Right Reason, and the Nature of Society, which is to be examined in the second and chief Place, does not prohibit all Manner of Violence, but only that which is repugnant to Society, that is, which invades another’s Right: For the Design of Society is, that every one should quietly enjoy his own, with the Help,<26> and by the united Force of the whole Community. It may be easily conceived, that the Necessity of having Recourse to violent Means for Self-Defence, might have taken Place, even tho’ what we call Property had never been introduced. For our Lives, Limbs, and Liberties, had still been properly our own, and could not have been, (without manifest Injustice) invaded. So also, to have made use of Things that were then in common, and to have consumed them, as far as Nature required, had been the Right of the first Possessor: And if any one had attempted to hinder him from so doing, he had been guilty of a real Injury. But since Property has been regulated, either by Law or Custom, this is more easily understood, which I shall express in the Words ofTully, If every Member of the Body was capable of Reflection, and did really think that it should enjoy a larger Share of Health, if it could attract to itself the Nourishment of the next Member, and should thereupon do it, the whole Body would of Necessity languish and decay: So if every Man were to seize on the Goods of another, and enrich himself by the Spoils of his Neighbour, human Society and Commerce would necessarily be dissolved. Nature allows every Man to provide the Necessaries of Life, rather for himself than for another; but it does not suffer any one to add to his own Estate, by the Spoils and Plunders of another.
It is not then against the Nature of Human Society, for every one to provide for, and take Care of himself, so it be not to the Prejudice of another’s Right; and therefore the Use of Force, which does not invade the Right of another, is not unjust; which the sameCicero has thus expressed, Since there are but two Ways of Disputing, the one by Argument, the other by Force; and the former being peculiar to Man, and the other to Beasts, we must not have recourse unto the last, but when the first cannot be employed. And again, What can be opposed to Force, but Force? And in Ulpian,To repel Force by Force is naturally lawful. So in Ovid,
- Armaque in armatos sumere jura sinunt.
The Laws permit us to take Arms against those who are armed to attack us.
II.Proved by History.II. What I have said already, that every War is not repugnant to the Law of Nature, may be further proved from sacred History. For when Abraham, with the Assistance of his hired Servants and Confederates, had vanquished the four Kings which had plundered Sodom, GOD was pleased, by his Priest Melchisedech, to approve of his Action; for thus said Melchisedech to him, Blessed be the most high GOD, who hath delivered thine Enemies into thine Hand, Gen. xiv. 20. Yet had Abraham, (as appears from the History) taken up Arms without any special Warrant from GOD, but moved thereunto by the Law of Nature, being a Man not only very holy, but also very wise, as is testified of him even by Strangers, asBerosus andOrpheus. I shall not instance in the seven Nations, whom GOD delivered up to be destroyed by the Israelites, because they had a special Commission from GOD to execute this Judgment upon them, for their notorious Abominations. Wherefore those Wars in Holy Writ are called, in a literal Sense, Battles of theLORD, as being undertaken by the Command of GOD, and not the Will of<27> Man. It is more to our Purpose to remark, that the Israelites, under the Conduct of Moses and Joshua, having by Force of Arms repelled the Amalekites, who attacked them, Exod. xvii. GOD approved the Conduct of his People, tho’ he had given no Orders upon that Head before the Action.
And further, GOD himself prescribed to his People certain general and established Rules of making War, Deut. xx. 10, 15. thereby plainly shewing, that War might sometimes be just, even without a special Command from GOD; for there he makes a manifest Difference between the Cause of those seven Nations, and that of other People. And since he does not declare the just Reasons of making War, he thereby supposes that they may be easily discovered by the Light of Nature. Such was the Cause of the War made by Jephtha against the Ammonites, in defence of their Borders, Judges xi. and afterwards by David against the same People, for affronting his Ambassadors, 2 Sam. x. And it is very remarkable, what the Author of the Epistle to the Hebrews records, that Gideon, Barack, Sampson, Jephtha, Samuel, and others, by Faith subdued Kingdoms, waxed valiant in Fight, put to flight whole Armies of the Aliens, Heb. xi. 33, 34. in which Place, (as we may gather from the Context) under the Notion of Faith, is included their assured Confidence, that what they did was pleasing to GOD: And upon this Account David is said, by a Woman distinguished for her Wisdom, To fight the LORD’s Battles; that is, to make just and lawful Wars, 1 Sam. xxv. 28.
III.Proved by Consent.III. What we have here proved from Holy Writ, may be also confirmed, by the Consent of all, or at least the wisest Nations. Every Body knows that fine Passage of Cicero, where treating of the Right of recurring to Force, in defence of one’s Life, he renders this Testimony to Nature,This (says he) is not a written, but a Law born with us, which we have not learned, received, or read, but taken and drawn from Nature itself; a Law to which we have not been formed, but for which we are made; in which we have not been instructed, but with which we are imbued; that if our Lives be brought into Danger by Force or Fraud, either by Robbers or Enemies, all Means that we can use for our Preservation, arefair and honest. And again, This, Reason has taught the Intelligent, Necessity the Barbarians, Custom the Nations, and Nature herself the wild Beasts, at all Times to repel, by any Means whatsoever, all Force (or Violence) offered to our Bodies, our Members, or our Lives. Caius the Lawyer says,Natural Reason allows us to defend ourselves against Danger. And Florentinus the Lawyer, thatIt is but just, that whatever any one does in defence of his Body, should be held lawfully done.Josephus observes, That it is a Law of Nature, fixed in all living Creatures, to be desirous of Life; and that we therefore look on them as our Enemies, who would openly deprive us of it.
This Principle is founded on Reasons of Equity, so evident, that even in Beasts, which (as I said before) are not susceptible of Right, but have only some slight Resemblance of it, we distinguish between the Attack and the Defence. When Ulpian had said, that An Animalwithout Knowledge, that is, without the Use of Reason, is incapable of doing Wrong, he immediately adds, When two Rams, or two Bulls fight, and one kills the other, it must be considered, (according to Q. Mu-<28>tius) whether that which is killed was the Aggressor, or not; in the last Case, the Owner has an Action of Damage against the Master of the other Beast; but in the first he has no Action against him. Which may be explained by that of Pliny,Lions, as fierce as they are, do not fight with Lions, nor do Serpents bite Serpents; but if Violence be offered them, there are none so tame but will exert their Anger, none so patient of Injury, but, upon receiving Hurt, will make an active and vigorous Defence.
IV.That War is not contrary to the Law of Nations.IV. By the Law of Nature then, which may also be called the Law of Nations, it is plain, that every Kind of War is not to be condemned. History, and the Laws and Customs of all People, fully inform us, that War is not disallowed of by the Voluntary Law of Nations: Nay,Hermogenianus declares, that Wars were introduced by the Law of Nations, which I think ought to be interpreted somewhat different from what it generally is, viz. That the Law of Nations has established a certain Manner of making War; so that those Wars which are conformable toit, have, by the Rules of that Law, certain peculiar Effects: Whence arises that Distinction which we shall hereafter make use of, between a solemn War, which is also called Just, (that is, regular and compleat) and a War not solemn, which yet does not therefore cease to be just, that is, agreeable to Right. For tho’ the Law of Nations does not authorize Wars not solemn, yet it does not condemn them, (provided the Cause be just) as shall hereafter be more fully explained. By the Law of Nations, ( says Livy)it is allowed to repel Force by Force. And Florentinus declares it to be allowed by the Law of Nations to repel Violence and Wrong, and to defend our Lives.
V.That the Voluntary Divine Law before Christ was not against it, proved; and the Objections answered.V. There is a greater Difficulty concerning the Voluntary Divine Law: But let none here object, that the Law of Nature being unchangeable, GOD himself cannot decree any Thing against it; for it is true, as to those Things which the Law of Nature either positively forbids or commands, but not as to those that are barely permitted by the Law of Nature; for they, being properly without the Bounds of the Law of Nature, may be either prohibited or commanded, as shall be thought proper. The first Objection then against War, brought by some, is that Law given to Noah and his Posterity, Gen. ix. 5, 6. where GOD thus speaks, Surely the Blood of your Lives will I require; at the Hand of every Beast will I require it, and at the Hand of Man; at the Hand of every Man’s Brother will I require the Life of Man. Whosoever sheds Man’s Blood, by Man shall his Blood be shed; for in the Image of GOD made he Man. And here some take the Phrase of requiring Blood in a general Sense, and the other, that Blood shall be shed in its turn, to be a bare Threatening, and not an Approbation; neither of which Explications can I agree to. For the forbidding to shed Blood, reaches no further than that in the Law, Thou shalt not kill; which neither disproves Capital Punishments inflicted on Criminals, nor Wars undertaken by publick Authority. Therefore, both the<29> Law of Moses, and the Law given to Noah, tend rather to explain and renew the Law of Nature, obscured, and, as it were, extinguished by wicked Customs, than to establish any Thing new: So that the Shedding of Blood, prohibited by the Law given to Noah, ought to be understood in that Sense which implies a Crime; as by Murder we understand not every Act whereby the Life of a Man is taken away, but the premeditated killing of an innocent Person. And that which follows, of shedding Blood for Blood, seems to me not so much to denote the bare Fact, or what shall happen, as the Right that Men have to put Murderers to Death.
I thus explain the Case. It is not unjust by the Law of Nature, that a Man should suffer himself as much Evil, as he has caused (to others); according to that which is called TheLaw of Rhadamanthus.
- To suffer what one has done, is Just and Right.
And Seneca the Father expresses it thus,It often happens that one suffers, by a most just Retaliation, in the same Manner that one had designed to make another suffer. From a Sense of this natural Equity, Cain, guilty of Parricide, says of himself, Gen. iv. 14. Whosoever finds me shall kill me. But GOD in those early Days, either upon the Account of the Scarcity of Men, or because there being yet but few Examples of Murder, it was not so necessary to punish it, thought fit to prohibit what was naturally permitted; and ordered that all Intercourse with, and even the Touching of Murderers should be avoided, but that their Lives should be spared. AsPlato also appointed in his Laws; andEuripides informs us, that it was practised by the old Greeks, in these Verses,
Our Fathers, in antient Times, had wisely ordered, that whoever embrued his Hands in the Blood of another, should not appear in the Sight of any one in the Country: Banishment was the Punishment inflicted on him for the Murder; but it was not permitted to take away his Life, as he had taken away the Life of another. To which we may refer that of Thucydides,It is probable, that in former Days heinous Crimes were slightly punished, but when in Time these Punishments came to be despised, they were changed into Death. And Lactantius,As yet it was reputed a Sin to put even the greatest Offenders to Death.
Their Conjecture of the Divine Will, grounded on that remarkable Instance (of Cain) passed into a Law; so that Lamech having committed the like Fact, from this Example promised himself Impunity, Gen. iv. 24.<30>
But as before the Flood, in the Times of the Giants, Murders were very frequent and common; that the same Licentiousness might not become customary, after the Restoration of Mankind, GOD was pleased to restrain it by more rigorous and effectual Means. Having then abolished the Indulgence of former Ages, he put Men in Possession of their natural Right; he expressly permitted what Nature dictated not to be unjust, and declared every Person innocent that killed a Murderer. When Civil Tribunals were erected, that Permission, for very strong Reasons, was transferred solely to the Judges; yet so, that some Track of that antient Custom was to be seen, in the Right granted to him that was next of Kin to the Person killed, even after the Law of Moses; of which I shall treat more largely hereafter.
We have the great Abraham to justify this Interpretation, who not being ignorant of the Law given to Noah,Gen. vi. 9. took up Arms against the four Kings, which he believed not repugnant to that Law. So Moses commanded the People of Israel to fight against the Amalekites that came to attack them, without any other Reason than the Law of Nature; for it does not appear that he particularly consulted GOD in this Case.Ex. xvii. 9. Besides, capital Punishments were not only inflicted on Murderers, but also on other Sorts of Criminals, and that not only among the Gentiles,Gen. xxxviii. 24. but even among the Patriarchs themselves.
They concluded from the Light of natural Reason, that it was consonant to the Divine Will, that the Punishment appointed for Murderers might, without Injustice, be inflicted on other most heinous Offenders; for there are some Things which we prize equally with our Lives; as Reputation, Virgin-Chastity, conjugal Fidelity; and those Things without which our Lives cannot be safe, as Reverence to our Sovereigns; against which those who offend are to be accounted as bad as Murderers.
Hither we may refer that antient Tradition among the Hebrews, that GOD gave more Laws to the Sons of Noah, which were not all recorded by Moses, as thinking it enough to include them afterwards in the peculiar Laws of the Hebrews. Thus it is plain from Levit. xviii. that there was an antient Law against incestuous Marriages, tho’ not mentioned by Moses in its proper Place. Among those Commands of GOD to the Sons of Noah, they say this was one, that not only Murders, but also Adulteries, Incests, and Rapines should be punished with Death, which the Words of Job seem to confirm;Job xxxi. 11. and even the Law of Moses gives Reasons for these capital Punishments, which Reasons suit no less with other Nations, than with the Hebrews themselves; and particularly it is said of Murder,Lev. xviii. 24, 25, 27, 28. Ps. ci. 5. Prov. xx. 8. Numb. xxxv. 31, 33. that the Land cannot be cleansed but by the Blood of the Slayer. Besides, it would be absurd to think, that whilst the Jews were allowed to secure their publick and private Safety by capital Punishments, and to defend themselves by War, all other Nations and Powers should be denied the same Privilege; and yet that the Prophets should never have intimated to those Nations and Powers, that GOD condemned every Kind of War, and all Use of the Sword of Justice, as they frequently admonished them of other Sorts of Sins which they were guilty of.<31>
Nay on the contrary, is it not most evident, that since the Laws of Moses, with respect to criminal Matters, carry so visible a Character of the Divine Will, the other Nations would have done very well to take them for a Model? It is even probable, that the Greeks at least, and particularly the Athenians, did so: Whence proceeds so great an Agreement of the old Attick Law, and from thence of the Roman in the Twelve Tables, with the Hebrew Laws. This is enough to prove, that the Law given to Noah is not to be taken in that Sense which they imagine, who would thence conclude all Wars to be unlawful.
VI.Certain Cautions concerning the Question, whether War be contrary to the Law of the Gospel.VI. The Arguments brought out of the New Testament against War are more plausible; in examining which, I shall not suppose that, which others do, that there is nothing in the Gospel (except Points of Faith, and the Sacraments) but what is injoyned by the Law of Nature; for that, in the Sense that most Divines take it, I cannot think true.
1. This I freely grant, that there is nothing commanded us in the Gospel, which is not agreeable to natural Decorum; but I see no Reason to allow, that the Laws of CHRIST do not oblige us to any Thing but what the Law of Nature already required of itself.
2. And those, who are of that Opinion, are strangely embarrassed to prove, that certain Things which are forbid by the Gospel, as Concubinage, Divorce, Polygamy, are likewise condemned by the Law of Nature. Indeed these are such that Reason itself inform susitis more Decent to refrain from them, but yet not such, as (without the Divine Law) would be criminal. The Christian Religion commands, that we should lay down our Lives one for another; but who will pretend to say,1John iii. 16. that we are obliged to this by the Law of Nature. Justin Martyr says,To live only according to the Law of Nature, is to live like an Infidel.
3. Neither shall I follow them, who supposing another Principle very considerable, if it were true, pretend that CHRIST, in the Precepts he gives in the fifth and following Chapters of St. Matthew, only interprets the Law of Moses. For those Words so often repeated, imply something else, (You have heard it has been said to them of old: But I say unto you) which Opposition, as also the Syriack, and the other Translations, plainly declare, that the Word Veteribus must be render’d to, and not by them of old; as Vobis is to, and not by you. Now those of old are certainly the Contemporaries of Moses;Ex. xx. 13. Lev. xxiv. 21. Numb. xxxv. 16, 17, 30. Ex. xx. 14. Deut. xxiv. 1. Ex. xx. 7. Numb. xxx. 2. Lev. xxiv. 20. Deut. xix. 21. Lev. xix. 18. Ex. xxxiv. 11, 12. Deut. vii. 1. Ex. xvii. 19. Deut. xxv. 19. for what is there mentioned to be said to them of old, was not spoken by the Doctors of the Law, but by Moses himself, either in those very Words, or the same Sense, as Thou shalt not kill. Whosoever killeth shall be in Danger of Judgment. Thou shalt not commit Adultery. Whosoever shall put away his Wife, let him give her a Writing of Divorcement. Thou shalt not forswear thyself, but shall perform unto the Lord thine Oaths. An Eye for an Eye, and a Tooth for a Tooth, (that is, you may demand it in Justice). Thou shalt love thy Neighbour (that is, an Israelite) and hate thine Enemy, ( that is, the seven Nations with whom they were forbid to make any League, or shew them any Mercy. To these are to be added the Amalekites, with whom the Hebrews are commanded to have an implacable War).<32>
4. But to understand the Words of CHRIST, we must carefully observe, that the Law delivered by Moses may be considered two Ways; either as to what it has in common with Laws merely human, that is,Heb. ii. 2. as it restrained the most heinous Crimes by the Fear of visible Punishments, and so maintained the Order of Civil Society amongst the antient Hebrews; in which Sense it is called The Law of a carnal Commandment, and The Law of Works.Heb. vii. 16. Rom. iii. 27. Or it may be considered as to what it has peculiar to Divine Laws, that is, as it also requires the Purity of the Mind, and some Acts, which may be omitted without the Fear of temporal Punishment;Rom. vii. 14. in which Sense it is termed A spiritual Law rejoicing the Soul, Psal. xix. 8. (which the Latins call the xviiith). The Doctors of the Law and Pharisees contenting themselves with that first Part of it, (the Carnal) despised the other, (the Spiritual) which yet is the more excellent, and neglected to teach it the People; which appears plainly, not only from the Books of the New Testament, but also from Josephus and the Rabbies.
5. But even as to what relates to this second (spiritual) Part, we must know, that tho’ the Virtues which are required of Christians, were recommended and injoined to the Hebrews, yet it was not in so high a Degree, nor with so great an Extension; and in both these Respects CHRIST opposes his Precepts to those of the Antients: Whence it is plain, that his Words imply more than a bare Interpretation. These Remarks not only serve to the Matter in Hand, but also to many other Subjects, wherein the Authority of the antient Law might be misemployed.
VII.Arguments for the negative Opinion out of Holy Writ.VII. 1. Therefore, omitting those Arguments of less Weight, the first and chief Testimony, whereby we may prove that the Right of making War is not absolutely taken away by the Law of the Gospel, is that of St. Paul to Timothy, I exhort you, that above all Things, Prayers and Supplications,1Epist. ii. 1, 2, 3.Intercessions and giving Thanks, be made for all Men; for Kings, and such as are in Authority,that we may lead a quiet and peaceable Life, in all Godliness and Honesty; for this is good and acceptable in the Sight of GOD our Saviour, who would have all Men to be saved, and to come to the Knowledge of the Truth. Hence we are taught three Things, First, That it is pleasing to GOD that Kings should become Christians. Secondly, That being converted to Christianity they still continue Kings; which Justin Martyr thus expressed,We pray, that Kings and Princes may, together with their Royal Power, be found to have wise and reasonable Sentiments. And in the Book intitled, The Constitutions of Clement, the Church prays, χριστιανὰ τὰ τέλη, for Christian Magistrates. And Thirdly, That it is acceptable to GOD, that Christian Kings should contribute their utmost to the Quiet of others.
Rom. xiii. 4.But how? He explains This in another Place: He is the Minister of GOD to thee for Good; if thou do ill, be afraid, for he beareth not the Sword in vain; for he is GOD’s Minister, an Avenger to execute Wrath upon them that do Evil. Under the Right of the Sword, is figuratively comprehended every Sort of Punish-<33>ment, as that Expression is also taken, sometimes among the Lawyers; but yet so, that the true and effective Use of the Sword, which is the principal Part, be not excluded. The second Psalm may not a little help to explain this Place; which Psalm, tho’ it was really verified in the Person of David, yet does it more fully and perfectly relate to CHRIST, as we may learn from Acts iv. 25. xiii. 33. and Heb. v. 5. Now that Psalm advises all Kings to kiss the Son with Reverence, that is, to shew themselves his Servants as Kings, as St. Austin rightly expounds it, whose Words relating to this Subject I shall here set down.In this Kings serve GOD, according to the Divine Command, as they are Kings, when they promote Virtue, and discourage Wickedness in their Kingdom, not only in Things that have Relation to human Society, but also in what regards Religion. And in another Place,How then do Kings serve the LORD in Fear, unless by prohibiting, and punishing with a religious Severity, all Transgressions of the Commandments of the LORD? For he serves GOD one Way as a Man, and another as a King. And a little after, Herein Kings serve GOD as Kings, when they do for his Service what they could not perform unless they were Kings.
(2.)Arg.2. That Place which I have before quoted in the thirteenth to the Romans, affords us a second Argument, where the higher Powers, such as Kings, are said to be of GOD; and the Apostle calls them likewise, the Ordinance of GOD: Whence he infers, that we ought to be subject to them, to respect and honour them, and that for Conscience sake; so that to resist them is to resist GOD himself. If by Ordinance we only understand what GOD only permits, as he does Acts that are sinful, then no Obligation would follow of Honour or Obedience, especially in regard to Conscience, and the Apostle had said nothing, when he so highly magnified and exalted this Power, but what he might have said of Thefts and Robbery. We must therefore understand this Power, as established with the Approbation of GOD: Whence it follows, (since GOD cannot will Things that are inconsistent) that this Power is not repugnant to the Will of GOD revealed in the Gospel, and obligatory on all Men.
Neither does it prejudice our Argument, that the Sovereign Powers, at the Time when St. Paul wrote this, were not Christians.Acts xiii. 12. For first, this is not universally true; since Sergius Paulus, Vice-Praetor of Cyprus, had long before professed the Christian Faith; to say nothing of what is reported of the King of Edessa, perhaps intermixt with some Falsities, but which seems to be founded on some Truth. Besides, the Question is not about the Persons, whether they were Christians or Infidels; but whether that Function, exercised by Infidels, contained in it any Thing contrary to Piety; which we say the Apostle denies, where he says it is or-<34>dained of GOD, even at that Time, and therefore to be honoured and respected, with regard to Conscience itself, which, properly speaking, is under the Dominion of GOD only: And therefore, the Emperor Nero,Acts xvi. and King Agrippa, whom St. Paul so earnestly exhorted to turn Christians, might have become the Subjects of JESUS CHRIST, without being obliged to renounce, the one his Empire, or the other his Royalty; which two Sorts of Sovereignty cannot be conceived without the Right of the Sword, and the Power of making War. As then the antient Sacrifices were nevertheless holy, according to the Law, tho’ offered by wicked Priests; so Civil Government is holy and sacred, tho’ administred by a wicked Person.
(3.)Arg.3. The third Argument is taken from the Words of St. John the Baptist, who being asked by the Jewish Soldiers, (many thousands of whom served the Romans, as appears from Josephus, and other Writers) What they should do to flee from the Wrath to come, he did not bid them quit their Military Employment, which he ought to have done, if it had been GOD’s Will, but only to abstain from Extortion and Falshood,Luke iii. 14.and to be content with their Pay. But to these Words of the Baptist, which plainly allow of a Military Life, many object, that what the Baptist prescribed, did differ so much from what our Saviour commanded, that he seemed to preach one Doctrine and CHRIST another. But this I cannot agree to, for both John and our Saviour declare the Sum of their Doctrine in the same Terms, Repent ye, for the Kingdom of Heaven is at hand.Matt. iii. 2, 4, 17. And CHRIST himself says, the Kingdom of Heaven, (that is, the new Law, for the Hebrews used to call their Law by the Name of Kingdom) begun to suffer Violence from the Days of John the Baptist.Matt. xi. 12. Mark i. 4. Acts xi. 38. Matt. iii. 8, 10. Luke iii. 11. Matt. xi. 13. Mark i. 1. Luke i. 77. Matt. xi. 9. Luke vii. 26. — ii. 77. — iii. 18. Acts xix. 4. John i. 29. Matt. iii. 11. Mark i. 8. Luke iii. 16.John is said to preach the Baptism of Repentance for the Remission of Sins; so are the Apostles said to do in the Name of CHRIST. John required Fruits meet for Repentance, and threatens Destruction to those that did not bring them forth. He also requires Works of Charity above the Law. The Law is said to continue unto John; that is, from him a more perfect Law did begin. And the Beginning of the Gospel is reckoned from John. John is called greater than the Prophets, because he was sent to give Knowledge of Salvation to the People, and to preach the Gospel: Neither does John ever distinguish JESUS from himself by any Difference of Doctrine, (tho’ what John declared more generally and indefinitely, and by Way of Elements, CHRIST, the true Light, delivered clearly and distinctly) but only by this, that JESUS was the promised Messias, that is, a spiritual and heavenly King, who should give the Power of the HOLY GHOST to those that believed on him.
(4.)Arg.4. The fourth Argument is this, which seems to me of no small Weight. If it were not permitted to punish certain Criminals with Death, nor to defend the Subject by Arms against Highwaymen and Pyrates, there would of Necessity follow a terrible Inundation of Crimes, and a Deluge of Evils, since even now that Tribunals are erected, it is very difficult to restrain the Boldness of profligate Persons. Wherefore if it had been the Design of CHRIST to have introduced a new Kind of Regulation, as was never heard of before, he would certainly have declared in most distinct and plain Words, that none should pronounce Sentence of Death against a Malefactor, or carry Arms in Defence of one’s Country, which we no where read that he did; for what is brought to this Purpose, is either very general or obscure. But Equity itself, and common Sense, teaches us to restrain Words that are general, and favourably to explain those that are ambiguous, and even to recede somewhat from the Propriety and common Acceptation of the Words, in<35> order to avoid that Sense which may bring along with it the greatest Inconveniencies.
(5.)Arg.5. The fifth Argument may be this, that it cannot by any good Reason be proved, that the Laws of Moses, which regarded the Punishments of Crimes, were abolished, ’till the City of Jerusalem was destroyed, and with it the Form of the State, without any Hope of reestablishment. For neither is there in the Law of Moses any Term fixt to that Law; neither does CHRIST or his Apostles ever speak of the abolishing of that Law, unless so far as it may seem comprehended (as I said) in the Destruction of the Jewish Government. Nay, on the contrary, St. Paul says, that the High Priest (at that Time) was appointed to judge according to the Law of Moses.Acts xxiii. 3. Matt. v. 17. And CHRIST himself in the Preface to his Precepts, said, that he came not to destroy the Law, but to fulfil it; which is easily understood to refer to the ceremonial Part; for the Lines of a rough Draught are compleated, when the Picture appears in all its Perfection. But as to the Judaical Law, how can it be true, if CHRIST, as some imagine, abolished it at his Coming? And if the Obligation of that Law continued as long as the Jewish State subsisted, it follows, that the Jews, even such as turned Christians, if they were called to the Magistracy, could not avoid it, nor judge otherwise than Moses had prescribed.
Having thoroughly consider’d all Things, I cannot indeed find the least Reason, why any pious Man, that heard our Saviour pronounce those Words, should take them in any other Sense. I own, that before the Time of the Gospel, some Things were tolerated (either as to outward Impunity, or even in regard to Conscience, which I have not now Occasion or Leisure strictly to examine) which CHRIST did not allow to his Followers; as, for Instance, to put away a Wife for every Offence, and a Person injured to seek Reparation by Course of Law: But tho’ between CHRIST’s Precepts and those Permissions, there is a certain Difference, yet there is no Contradiction: For he that keeps his Wife, and he that parts with his Right of taking Vengeance, does nothing contrary to the Law, but acts most agreeably to the Intention of the Law. It is quite otherwise in a Judge, whom the Law does not allow, but command, to punish a Murderer with Death; and if he neglect it, he shall be guilty before GOD. If CHRIST had forbid such a<36> Person to put a Murderer to Death, he would have ordered something directly contrary to the Law, he would have abolished the Law.
(6.)Arg.6. The sixth Argument is taken from the Example of Cornelius, the Centurion, who received the HOLY GHOST (an infallible Sign of Justification) from CHRIST, and was baptized into the Name of CHRIST, by the Apostle St. Peter, yet we no where find that he laid down his Commission, or was ever advised to it by St. Peter. But some may answer, that being instructed in the Christian Religion by St. Peter, he may be supposed at the same Time to have been exhorted to quit his Employment. Indeed if it were certain, and could be proved, that War was forbid among the Precepts of CHRIST, they would say something to the Purpose; but since that appears no where else, it would have been proper to have said something of it, at least in this Place, that future Ages might not be ignorant of the Rules of their Duty. Neither does St. Luke use (where the Quality of the Persons required a special Change of Life) to pass such a Thing over in Silence, as we may see in several Places, particularly Acts xix. 19.
(7.)Arg.7. The seventh Argument like to this, is taken from the Example of Sergius Paulus, which I have already alledged; for in the Account of his Conversion, there is no Mention made of his quitting his Government, or of his being advised to do it. Now Silence, in regard to Things which it was natural for one to mention, and very necessary not to omit, implies, as I have just said, that they never were.
(8.)Arg.8. The eighth Argument is drawn from the Conduct of St. Paul, when he understood that the Jews lay in Wait for him; he immediately acquainted the Commander of the Roman Garrison with it, and when the Commander had sent Soldiers to convoy him safe to Caesarea, he did not refuse it, neither did he in the least insinuate, either to the commanding Officer or the Soldiers, that it was displeasing to GOD to repel Force with Force; and yet this is that St. Paul, who neglected no Opportunity himself, of warning Men of their Duty, or to blame the Neglect in others, 2 Tim. iv. 2.
(9.)Arg.9. The ninth Argument is, because the proper End of any Thing that is honest and obligatory, must also be honest and obligatory: To pay Tribute is honest; and also a Precept obliging the Conscience,Rom. xiii. 3, 4, 5, 6. as St. Paul expresses it; and the End of Tribute is, to enable the Sovereign Powers to protect the Good, and restrain the Wicked.Tacitus speaks appositely to this Purpose, Nations can have no Peace without Arms, no Arms without Pay, and no Pay without Taxes. To which agrees that of St. Austin,For this Cause we pay Tribute, that Soldiers may have Money to buy them Necessaries.<37>
(10.)Arg.10. The tenth Argument is taken from that Place of the Acts, where St. Paul pleads thus, If I have wronged any Man, or done any Thing worthy of Death, I refusenot to die. Whence I conclude, that St. Paul did believe, that even after the publishing of the Evangelical Law,Acts xxv. 11. there were some Crimes which Equity allowed, and even required, to be punished with Death: Which also St. Peter teaches.1 Pet. ii. 19, 20. But if it had then been GOD’s Will, that capital Punishments should be no longer used, St. Paul might indeed have cleared himself; but he ought not to leave such an Opinion in the Minds of Men, as if to punish Offenders with Death had been now no less lawful than formerly. But having proved that capital Punishments were justly inflicted after the Coming of CHRIST, I think it also proved, that some Wars may be lawfully made, as against a Multitude of armed Offenders, who are to be overcome by Arms, before they can be brought to a Trial. Indeed the Forces of Criminals, and the Boldness wherewith they resist, may have some Weight, in considering whether it be proper to pursue them with the utmost Rigour; but still that lessens nothing of the Right itself.
(11.)Arg.11. The eleventh Argument is, that in the Revelation of St. John, some Wars of the Righteous are foretold, with manifest Approbation, Chap. xviii. 6. and elsewhere.
(12.)Arg.12. The twelfth Argument may be this, that the Law of CHRIST did only abolish the Law of Moses, in regard to those Things which separated the Jews from the Gentiles; but what Things were accounted honest by the Law of Nature, or by the tacit Consent of civilized Nations,Eph. ii. 14. it was so far from abrogating, that it comprehends them under the general Precept to think on every Thing that is honest and vertuous. Now the Punishment of Crimes, and repelling Injuries by Arms, are by Nature reputed laudable, and referred to the Virtues of Justice and Beneficence.Phil. iv. 8. 1 Cor. xi. 14. And here, by the by, we may observe the Error of them, who pretend that the Israelites had a Right to make War, only because GOD had given them the Land of Canaan. Indeed this is a just Cause, but not the only one. For even before those Times, holy Men did make War by following the Light of Reason; and also the Israelites themselves afterwards, upon other Occasions, as David, for the affronting of his Ambassadors. Besides, what every man possesses, by Vertue of human Laws, is not less his own, than if GOD had (immediately) given it to him; and that Right is not taken away by the Gospel.
VIII.The Arguments out of Scripture for the Affirmative answered.VIII. Let us now see the Reasons for the contrary Opinion, that the pious Reader may more easily judge which are the most weighty.
1. First they alledge the Prophecy ofIsaiah, who foretold, That the Nations should beat their Swords into Plow-Shares, and their Spears into Pruning Hooks.(1.)Arg. Isa. ii. 4.Nation shall not lift up Sword against Nation, neither shall they learn War any more. But this Prophecy is to be understood, either conditionally, as many others are, as that should be the State of Affairs, if all Nations would submit to the Law of<38> CHRIST, and live up to it, whereunto there should nothing be wanting on GOD’s Part; for it is certain, if all were Christians, and lived like Christians, there would be no Wars: WhichArnobius expresses thus, If all Persons who look upon themselves as Men, not so much from the Shape of their Bodies, as because they are endowed with Reason, would lend an Ear to his salutary and peaceable Lessons, and not presumptuously follow their own Fancies rather than his Exhortations, the whole World would long since have enjoyed profound Peace, and lived in perfect and indissoluble Union. Iron would have been employed for gentler Purposes, and converted into less dangerous Instruments than what it has hitherto served for. AndLactantius thus, What would be the Consequence, if all Men would unite in Concord? Which certainly might be done, if banishing their deadly and impious Rage, they would resolve to live innocently and justly. Or this Place is to be understood literally; and then, it is plain that this Prophecy is not yet fulfilled; but that the Accomplishment of it, and of the general Conversion of the Jews, is yet to be expected. But take it which Way you will, there can be nothing hence inferred against the Lawfulness of War, as long as there are those who will not suffer others to live in Quiet, and who insult such as love Peace.
Several Arguments are drawn from the fifth of St. Matthew, to judge of which it is necessary, that we remember what was said a little before, viz. If CHRIST had intended to have abolished all capital Punishments, and the Right of (making) War, he would have done it in most plain and exact Terms, on Account of the great Importance and Novelty of the Thing; and so much the more, because none of the Jews could imagine but that the Laws of Moses, concerning Judgments and other political Affairs, ought to preserve their Force in regard to the Jews, as long as their Government subsisted. After this general Remark, let us examine these Places in order.
(2.)Arg.2. The second Argument brought to defend their Opinion is out of those Words. You have heard it has been said, an Eye for an Eye, and a Tooth for a Tooth; but I say unto you, resist not Evil,Ex. xi. 13. Matt. v. 38, 39. Acts vii. 27. (לרשע which answers to the Greek Word τῷ ἀδικου̑ντι him that injures thee); but if any Man strike thee on the one Cheek, turn to him the other also. From hence some infer, that no Injury is to be repelled or revenged, either publickly or privately; but this the Words do not imply; for CHRIST does not here speak to Magistrates, but to those that are injured; nor of all Injuries neither, but of slight ones, as a Box on the Ear, for the Words following limit those that go before, however general they may at first appear. So in the following Precept, If any Man will sue thee at the Law, and take away thy Coat, let him have thy Cloak also. Our Saviour does not forbid absolutely to have Recourse to Law, or to take Arbitrators in order to decide a Difference.1Cor. vi. 4. This is evident from the Interpretation of St. Paul, who does not prohibit every Kind of Law-Suit, but only would have Christians not go to Law with one another before the Heathen,<39> and that from the Example of the Jews, amongst whom it was a received Maxim, that He that brings the Cause of an Israelite before Strangers, profanes the Name of GOD; but CHRIST, to exercise our Patience, would not have us dispute for Things that may be easily recovered, as a Coat, or a Cloak with a Coat, if one run a Risque of being deprived of both; nor prosecute our Right according to Law, however well founded it may be. Apollonius Tyanaeus said, It was not like a Philosopher to sue for a little Money. The Praetor (said Ulpian ) does not disapprove the Action of a Man, who had rather lose his Substance than be engaged in a Multiplicity of Law-Suits, for the Recovery of it; for this Aversion to Suits of Law is not to be condemned. What Ulpian here says to be approved of by good Men, is what CHRIST himself commands, chusing the Subject of his Precepts from Things most honest and commendable: But we cannot justly infer from hence, that a Parent or Tutor ought not to defend by Law, when he is forced to it, what his Child or Pupil cannot subsist without. For a Coat or Cloak is one Thing, and one’s whole Maintenance another. In Clement’s Constitutions, it is said of a Christian, if he have a Suit depending, Let him endeavour to make it up, tho’ it be somewhat to his Loss. What therefore uses to be said of moral Things in general, may be applied here, that they do not consist in an indivisible Point, but have in their way a certain Extension.
So in that which follows, If any Man shall compel thee to go with him one Mile, go with him two: Our Lord did not say a hundred Miles, which might draw one too far from his necessary Business, but one, and if occasion be, two, which is only a kind of a Walk, and the Trouble and Hindrance occasioned by it almost nothing at all. The Meaning then is, that in Things which will not incommode us much we must not insist with Rigour upon our Right; but rather yield more than is desired, that our Patience and good Nature may be known unto all.
Our Saviour adds, Give unto him that asks of thee,and from him that would borrow of thee, turn not away. If these Words were understood without any Restriction, it would indeed be very hard. He that takes not care of his own Family is worse than an Infidel, says St. Paul. Let us then follow the Explication of St. Paul, the best Interpreter of his Master’s Law,1Tim. v. 8. who exhorting the Corinthians to Charity towards the Poor at Jerusalem, says, Not that others should be eased and you be burthened; but that by an Equality,your Abundance should supply their Wants; that is, (to use Livy’s Words on a like Occasion)That out of your Plenty,2 Cor. viii. 13. you may relieve the Necessities of others. AsCyrus did towards his Friends, according to Xenophon. Let us use then the same Equity in explaining the Precept we have just now mentioned, viz. Resist not Evil; but if any Man, &c.
As the Law of Moses allowed the Liberty of a Divorce, to prevent the Cruelty of Husbands towards their Wives; so also to obviate all private Revenge, to which the Israelites were extremely inclined, it allowed the injured Person to avenge him<40>self, not indeed by his own Hand, but by the Law of Retaliation before the Judge; which the Law of the Twelve Tables afterwards established, He that breaks a Limb, let him suffer the like. As CHRIST required of his Disciples an higher Degree of Patience, he was so far from approving this Demand of Revenge in the Person injured, that he does not allow some Injuries to be repelled by Force, or Law. But what Sort of Injuries? Such as might be easily born; not but that it is praise-worthy to suffer even grievous Injuries without demanding Satisfaction; but that he is contented with a more limited Patience: Therefore he proposes the Example in a Box on the Ear, which does not in danger Life, nor maim the Body, but only declares a certain Contempt of us, which diminishes nothing of our Merit. Seneca, in his Book of the Constancy of a wise Man, distinguishes an Injury from an Affront, The former (said he) is by Nature more grievous, the other more light, and is hard to digest only for those that are very delicate; it offends, but does no hurt. Such is the Weakness and Vanity of our Minds, that some Men think nothing more insupportable; thus you will find a Slave, who had rather be scourged than take a Box of the Ear. And the same Author in another Place, An Affront is less than an Injury, which we may complain of, rather than revenge; and which the Laws have not judged worthy of any Punishment. So one in Pacuvius,I easily bear an Injury, so it be without an Affront. So another in Caecilius,I can easily bear Misfortune, if not the Result of an Injury done me; and even an Injury, unless accompanied with an Affront. And in Demosthenes,Blows, tho’ a Grievance to a free Man, are so chiefly when given as a Mark of Contempt. And the same Seneca a little lower says,That Grief (arising) from an Affront, is a Passion moved by a Meanness and Narrowness of Mind, affected by some disobliging Action or Word.
Therefore in such a Case, CHRIST enjoins Patience; and lest any one should object the trite Proverb,By bearing an old Injury you invite a new one; he adds, we should also rather bear a second Injury than repel the first: Because from thence no Hurt comes to us, but what consists in a false Imagination. To turn the Cheek, is a Hebraism for to bear a Thing patiently, as appears from Is. 1. 6. and Jer. iii. 3. To turn the Face, is used byTacitus andTerence in the same Sense.
(3.)Arg.3. The third Argument is usually taken from the following Words in St. Matthew, You have heard it has been said, thou shalt love thy Neighbour, and hate thine<41> Enemy; but I say unto you, love your Enemies, bless them that curse you, and pray for them that despitefully use you, and persecute you.Matt. v. 43, 44 There are some who think both capital Punishments and Wars repugnant to this Love and Kindness (to be shewn) to our Enemies and Persecutors. But that is easily answered, if we consider well the Words of the Law of Moses, to which our Lord opposes this Precept. The Hebrews were commanded to love their Neighbour; that is, those of their own Nation; for so is the Word Neighbour to be understood, as appears from Lev. xix. by comparing the 17th Verse with the 18th. Nevertheless, the Magistrates were commanded to put to Death Murderers, and other notorious Offenders: Notwithstanding this likewise,Judges xx. 21 the eleven Tribes justly made War upon the Tribe of Benjamin for their horrid Crime. So also David, who fought theLORD’s Battles, did recover by Arms the Kingdom promised him from Ishboseth.
But let the Word Neighbour more largely extend to all Men whatsoever; for all are received into common Grace; no People are now condemned by GOD to utter Destruction; yet what was formerly lawful against the Israelites, will still be as lawful against all Men: Since it was then commanded to love them, as it is now to love all Men. But if you urge, that under the Evangelical Law there is required a greater Degree of Love; this may also be granted; provided also it be allowed, that all are not to be equally loved, but a Parent (for Instance) more than a Stranger: Thus also we are to prefer the Good of the Innocent to that of the Guilty, and a publick Good before a private one, by the Law of a well regulated Charity. Now out of Love to the Innocent, arise capital Punishments and pious Wars. See the moral Sentence which is in Prov. xxiv. 11. CHRIST’s Precepts then of loving and promoting the Good of every one, are to be obeyed, unless a greater and juster Love interpose: It is a known old Saying, that To spare all is as cruel as to spare none. Besides, we are commanded to love our Enemies from the Example of GOD himself, who makes his Sun to rise upon the Wicked; but the same GOD does even in this Life punish some wicked Persons, and will do it very severely in the next. By which at the same Time are solved all the Arguments that use to be drawn from the Meekness that is prescribed to Christians:Ex. xxxiv. 6. Jonah iv. 2. For tho’ GOD is called gentle, merciful, long-suffering, yet Holy Writ does every where declare his Wrath against obstinate Sinners, that is, his Design to punish them; and the Magistrate is appointed to be the Minister of this Wrath. Moses is famed for his extraordinary Meekness, yet he punished Offenders, and that capitally.Numb. xiv. 18. Rom. ii. 8. — xiii. 4. Matt. xxii. 7. 1 Cor. iv. 21. —v.5. 1 Tim. i. 20. We are frequently commanded to imitate the Mildness and Patience of CHRIST; but yet it was CHRIST who grievously punished the rebellious Jews, and will condemn the Wicked at the Day of Judgment for their Crimes. The Apostles imitated their Master’s Gentleness, yet they used the Power given them from GOD in the Punishment of heinous Sinners.<42>
The fourth Objection is taken from Rom. xii. 17. Render to no Man Evil for Evil: Provide Things honest in the Sight of all Men: If it be possible, as much as lies in you, live peaceably with all Men: Dearly beloved,avenge not yourselves, but rather give Place unto Wrath; for it is written, Vengeance is mine, I will repay, saith the LORD: Therefore, if thine Enemy hunger, feed him; if he be athirst, give him Drink; for in so doing thou shalt heap Coals of Fire upon his Head. Be not overcome of Evil, but overcome Evil with Good. But here also we may give the same Answer as to the former Passage; for when GOD said, Vengeance is mine, I will repay, at the very same Time capital Punishments were in Use, and there were written Laws touching Wars. We find likewise an express Command to do Service to one’s Enemies, that is, to those who were of the same Nation;Ex. xxiii. 4, 5. without Prejudice however to the Right of inflicting capital Punishments, even on the Israelites themselves, and taking up Arms against them for just Reasons, as we have said above. Wherefore neither can the same Words now, or the like Precepts, tho’ taken more largely, be wrested to such a Sense; and the less, because the Division of Chapters was not made by the Apostles, or in their Time, but much later, for the Convenience of Readers; and for the more easy quoting of the Places: And therefore, what now begins the thirteenth Chapter, Let every Soul be subject to the higher Powers, and what follows, was formerly joined to those Precepts of not taking Revenge.
But in this Discourse St. Paul says, that the publick Powers are GOD’s Ministers, and Revengers to execute Wrath (that is, Punishment) upon those that do Evil: Most plainly distinguishing thereby, between the Revenge that is exercised in GOD’s Stead, for the publick Good, and that ought to be referred to the Vengeance which GOD has reserved to himself; and that private Revenge which is intended only to satisfy the Resentment of an Injury, and which the A postle had a little before forbid. For if we would comprehend even that Revenge which is required for the Sake of the publick Good in that Prohibition, What would be more absurd than, when he had bid them abstain from capital Punishments, to add immediately, that the publick Powers were ordained by GOD to this End, to execute Punishment in GOD’s Stead?
(5.)Arg.5. The fifth Place, which some alledge is, Tho’ we walk in the Flesh, we do not war after the Flesh;2 Cor. x. 3. for the Weapons of our Warfare are notcarnal, but mighty, through GOD, to the pulling down of strong Holds, &c. But this Place makes nothing to the Purpose; for both what goes before, and what follows, shews that by the Word Flesh St. Paul there meant the weak State of his Body, as to outward Appearance, upon which Account he was contemned. To this St. Paul opposes his own Weapons, that is, the Power given to him as an Apostle, to punish the Refractory, which he used to Elymas the Sorcerer, the incestuous Corinthian, Hymenaeus, and Alexander. He therefore denies this Power to be carnal, that is, weak; nay, on the contrary, he affirms it to be most strong. What is this to the Right of capital Punishments, or of War? Nay, on the contrary, because the Church at that Time was destitute of the Assistance of the publick Powers, GOD raised up that miraculous Power for its Defence; which began to cease almost as soon as the Church had Christian Emperors; as the Manna ceased as soon as the Israelites were come into a fruitful Country.<43>
(6.)Arg.6. The sixth Place produced is, Put on the whole Armour of GOD, that ye may be able to stand against the Wiles of the Devil;Eph. vi. 11, 12.for we wrestle not against Flesh and Blood, (add only, after the Manner of the Hebrews) but against Principalities, &c. He speaks of that Warfare which Christians have, as Christians, not of that which they may have in common with other Men upon certain Occasions.
(7.)Arg.7. The seventh Place that is brought is, From whence come Wars and Fightings among you?James iv. 1, 2, 3.Come they not hence, even from your Lusts, that war in your Members? Ye lust, and have not: Ye envy, and desire to have, and cannot obtain: Ye fight and war, and yet ye have not, because ye ask not; ye ask and receive not, because ye ask amiss, that ye may consume it upon your Lusts. This contains no general Maxim, which absolutely condemns the Use of Arms; it only says, that those Wars and Fights with which the dispersed Jews were at that Time miserably harassed among themselves (part of which History we meet with in Josephus) did arise from wicked Causes; and that the Case is the same still, we know, and lament. That of Tibullus has a Meaning not unlike this Passage of St. James.Gold is the Cause of so many Quarrels: There were no Wars whilst People drank out of wooden Goblets.
And we find it remarked often in Strabo, that those Nations lived most innocently, whose Diet was most simple. WhatLucan says is agreeable to this, — O profuse Luxury, that is never satisfied with small Provision! Ambitious desire of Dishes, every where searched for, by Sea and by Land! Vain Pomp of splendid Tables! Learn, how little is sufficient for Life; how small a Portion Nature is contented with. Rich and old Wines cannot raise the Sick; it is not necessary for them to drink out of Gold or Porcelain Cups. It is fair Water that restores Health. A good Fountain, together with Bread, is enough for Men. Wretched Mortals! Why then do they go to War? To which we may add that ofPlutarch, in The Contradictions of the Stoicks, There is no War among Men, but what arises from Vice; one from the Desire of<44> Pleasures, another from Covetousness, and a third from Ambition.Justin commending the Manners of the Scythians, says, It were to be wished that the rest of Mankind practised the like Moderation, and were as scrupulous of grasping at other Men’s Goods and Possessions. We should not then see so many continual Wars carried on in all Ages, and in all Countries; nor would the Sword carry off greater Numbers than die of a natural Death.Cicero says, Disorderly Passions give Birth to Hatred, Dissentions, Discord, Seditions, and Wars.Maximus Tyrius, All Places are now full of War and Injustice; for irregular Passions are every where let loose, and inspire all Mankind with a Desire of adding to their Possessions. AndJamblichus, For nothing but an excessive Concern for the Body, and the Passions which direct making an extravagant Provision for it, are the Causes of Wars,Matt. xxvi. 52Seditions, and Quarrels; for Men engage in War, for the sake of procuring what is pleasant and advantageous to them. But what was said to St. Peter, All they that take the Sword, shall perish with the Sword; not belonging to War, in its common Acceptation, but properly to the Use of Arms between private Persons, (for CHRIST himself gives this Reason of his forbidding or neglecting his Defence,John xviii. 36. because His Kingdom was not of this World) shall be treated of in its proper Place.
IX.The Opinion of the primitive Christians concerning this, examined.IX. Whensoever there is any Dispute about the Sense of what is written, the Practice afterwards established, and the Authority of the Judicious, uses to be of great Weight; which is also to be observed in Holy Scripture. For it is not probable, that the Churches, which were founded by the Apostles, should suddenly, or all at once, fall off from the Maxims which the Apostles had briefly given them in Writing, and more largely explained by Word of Mouth, or had even reduced into Practice. But they who condemn all Kind of War without Exception, use<45> to alledge some Passages of the primitive Christians; against which I have three Things to say.
First, That from those Passages nothing else can be gathered, than the private Sentiment of some Persons, not the common Opinion of the Churches. Besides, most of them who are cited, affected to be singular, and to teach something more sublime; such as, for Example, Origen and Tertullian, who are not always consistent with themselves. For the same Origen says, that Bees were given as a Pattern by GOD, ofthe just and regular Method that Men ought to take in making War, when there is a Necessity for it. And the very same Tertullian, who in another Place seems to disapprove of capital Punishments, said,No Body denies but it isgood to punish the Guilty. And he is at a Stand about Wars; for in his Book Of Idolatry, he says, The Query is, Whether the Faithful may be allowed to take up Arms; and whether military Persons may be admitted into the Christian Church? And in that Place, he seems to incline to that Opinion which is against War. But in his Book Of the Soldier’s Crown, after he had made some Reflections against War, he presently distinguishes between them who were Soldiers before their Baptism, and those who list themselves after Baptism.Their Condition (says he) is plainly different, who were Soldiers before their Conversion to the Faith; as those whom John admitted to Baptism, or as those most pious Centurions,Matt. viii. 9. Acts x.one of whom CHRIST approved of, and another St. Peter instructed:Provided that having embraced the Faith, and being sealed (by Baptism) they either presently quit their Employment, as many have done; or be particularly careful that they do nothing to offend GOD. He then was sensible that they continued Soldiers after Baptism, which certainly they would not have done, if they had understood War to have been forbidden by CHRIST; no more than Soothsayers, Magicians, and other Professors of unlawful Arts, were allowed after Baptism to practise their Art. In the same Book, commending a certain Soldier, and him a Christian, he cries out,O Soldier, glorious in GOD!
The second Observation is, That Christians did often disapprove or avoid War, on account of the Circumstances of the Times, which would scarce permit the bearing of Arms, without committing some Actions contrary to the Laws of Christianity. In Dolabella’s Letter to the Ephesians, which is extant in Josephus, we find the Jews desire to be exempted from all military Expeditions, because mixt with Strangers, they could not well perform the Rites of their own Law; and because they were forced on the Sabbaths to bear Arms, and make long Marches; and the same Historian tells us, that for the same Reasons the Jews got Leave of Lentulus to<46> be discharged; and in another Place he relates, when the Jews were commanded to depart from the City of Rome, some listed themselves Soldiers, others were punished for refusing to do it in Reverence to the Laws of their Country; namely for the Reasons mentioned before; to which there was sometimes added a third, because they would be obliged to fight against their own Countrymen, but to bear Arms against their Nation was unlawful; that is, when their Countrymen were in danger for observing the Laws of their own Country. But as often as the Jews could avoid these Inconveniencies, they served in the Wars, even under foreign Kings, but yetcontinuing to observe the Laws of their Country, and to live according to them, which they first stipulated, as Josephus testifies. Very like to these Dangers were those, which Tertullian objects to the Men of the Sword in his Times; as in his Book of Idolatry,The Oath of Fidelity to GOD, and that to Man, the Banners of CHRIST, and those of the Devil, are things inconsistent with one another: Because the Soldiers were obliged to swear by the Pagan Gods, Jupiter, Mars, and others. In his Book of the Crown of a Soldier, he says,Shall he (a Christian) stand Centry before the Temples which he has renounced; and shall he sup where he is forbid by the Apostle? Shall he guard those (Demons) by Night, which he has exorcised in the Day? And afterwards,How many other Military Functions are there, which ought to be looked on as Sins?
The third Observation is this, that the Christians of the Primitive Times aspired with so much Ardor to the highest degree of Perfection, that they often took the divine Counsels for Precepts of an indispensible Obligation. Christians (saysAthenagoras) do not sue at Law those that rob them. Salvian said it was commanded by CHRIST that we should rather abandon those things that are contested than engage in a Law Suit. But this taken so generally, seems to be design’d rather<skips to p. 48> as good Counsel, and tending to a more sublime Life, but not as an absolute Precept. Thus many of the Primitive Fathers condemn’d all Oaths, without any Exception; whereas St. Paul himself did swear in Matters of Consequence. A Christian in Tatian said, I refuse the Pretorship. In Tertullian, A Christian is notambitious of the Aedile’s Office. Lactantius maintains, that a just Man (such he would have a Christian to be) should not make War; but at the same time says, that he should not go to Sea. How many of the Primitive Fathers dissuade Christians from second Marriages? All which, as they are commendable, excellent, and highly pleasing to GOD, so they are not required of us by the Necessity of any Law. These Remarks will suffice to answer all Objections founded on Ecclesiastical Antiquity.
X. Now to confirm our own Opinion, first we want not Writers, and even more ancient ones than those that are opposed to us, who believed that the Practice of inflicting capital Punishment, and that of making War, the Innocence of which depends on the Justice of the former, are not inconsistent with Christianity: Clemens Alexandrinus says, that a Christian, if he be called to the Government, should be<49> (as Moses) a living Law to the Subjects, reward the Good, and punish the Bad. And in another Place, describing the Habit of a Christian, he says, it would become him to go barefoot, unless he should happen to be a Soldier. In the Constitutions, intitled, The Constitutions of Clemens Romanus, we read, Not that all Killing is unlawful, but only that of the Innocent; provided that this Right of putting to Death be reserved to the Magistrate alone.
But setting aside private Opinion, let us come to the publick Authority of the Church, which ought to be of the greatest Weight. I say then, that Soldiers were never denied Baptism, or Excommunicated by the Church, (because they were Soldiers) which yet ought to have been done, and would have been done, if the military Profession had been repugnant to the Conditions of the new Covenant. In the a foresaid Constitutions, the same Writer treats of those who formerly used to be admitted to Baptism, and those who used to be rejected,Let a Soldier that desires to be baptized, be exhorted to abstain from Wrongs and Oppressions, to be content with his Pay: If he complies with these, let him be admitted. Tertullian in his Apology, speaking in the Person of Christians, says,We go to Sea, and fight together with you. He had said a little before,We are but of a few Days standing, and yet we have filled all your Empire, Islands, Castles, Towns, Councils, and your very Armies. In the same Book he had told that Rain had been obtained in favour of the Emperor Marcus Aurelius, by the Prayers of his Christian Soldiers. In his Book Of a Crown, he says, that the Soldier who had thrown away the Garland, was more brave than the rest of his Fellows; and he informs us, that he had many Christian fellow Soldiers.
We may add, that some Soldiers that had suffered Torments and Death for the Sake of CHRIST, received from the Church the same Honour with other Martyrs; among whom are recorded three of St. Paul’s Companions: Cerialis, who suffered Martyrdom under Decius; Marinus, under Valerian; fifty under Aurelian; Victor, Maurus, and Valentinus, a Lieutenant-General under Maximian: About the same Time, Marcellus the Centurion, Severian under Licinius. Cyprian concerning Laurentius and Ignatius, both Africans, says,They also were once Soldiers in the Armies of this World, but were truly the Soldiers of GOD in the spiritual Warfare, whilst they vanquished the Devil by the Confession of CHRIST, and obtained by their Martyrdom, the Palms, and glorious Crowns of the LORD. Hence it is plain, what the common Opinion of the primitive Christians was concerning War, even before the Emperors were Christians.
If the Christians in those Times did not willingly appear at Trials for Life, it ought not to be thought strange, since for the most part Christians themselves were to be tried. Besides, the Roman Laws in other Things, were more severe than Christian Lenity could allow of; which sufficiently appears in the single Instance of theSilanian Decree of the Senate. But yet, after that Constantine embraced,<50> and begun to promote, the Christian Religion, capital Punishments did not there upon cease. Nay, Constantine himself, among other Laws, made also this of sowing up Parricides in a Leather Sack; tho’ otherwise he was so very mild towards Criminals, that he is blamed by many Historians, for too much Indulgence. He had also a great many Christians in his Army, (as History informs us) and caused the Name of CHRIST to be put on his Standard: From that Time also the military Oath was changed to that Form extant in Vegetius,By GOD, and CHRIST, and the HOLY GHOST, and the Majesty of the Emperor, which, next to GOD, ought to be loved and reverenced by Mankind. Neither at that Time, among so many Bishops, some of whom had suffered very severely for Religion, do we read of so much as one, that exhorted Constantine not to put any Criminal to Death, or to engage in any War, or that dissuaded the Christians from serving in Wars, out of Fear of GOD’s Wrath; tho’ most of those Bishops were very strict Observers of Discipline, and far from dissembling those Things, which related either to the Duty of the Emperors, or other Persons: Such was St. Ambrose, in the Time of Theodosius, who in his seventh Sermon speaks thus,To go to War is no Fault; but to do it purely for Plunder is a Sin. And in his Offices,Valour, which either defends our Country by Arms from Barbarians, or protects the Weak at Home, or our Companions from Robbers, is compleat Justice. This Argument seems to me of so great Weight, that I will seek for no other.
I am not ignorant, that Bishops, and other Christian People, have often interceded in favour of Criminals, especially such as were condemned to Death, and that Custom was introduced, that they who took Sanctuary in a Church, should not be delivered up, but upon promise to save their Lives; and that about Easter, those who were committed to Prison should be released. But he that carefully considers all these and such like Things, will find that they are only the Effects of Christian Goodness, which eagerly embraces all Opportunities of Mercy; and not<51> the Consequences of a fixed and settled Opinion, which condemns in general all capital Punishments; and therefore, those Favours were not universal, but limited to certain Times and Places, and even the Intercessions themselves were moderated with certain Exceptions.
Here some object against us, the 12th Canon of the Council of Nice, which runs thus,Whoever being called by Grace, have at first shewed their Zeal and Faith, and quitted their military Employment; but have afterwards returned like Dogs to their Vomit; so that some shall give Money, and make Interest, to be taken into the Service: They shall lye prostrate (in the Church) for ten Years, after having been for three Years bare Hearers (of the Word). But in regard to all these, it must be observed what Disposition they are in, and in what Manner they do Penance. For whoever, by Fear, by Tears, by Patience, and by good Works, testify the Sincerity of their Conversion, these fulfilling the appointed Time of Hearing, shall at Length assist at publick Prayers, and afterwards it shall be lawful for the Bishop to treat them somewhat more favourably. But whosoever shall look on their Punishment with Indifference, and shall think the Form of their entering into the Church to be sufficient for their Conversion, these shall fulfil the whole appointed Time. The very Term of thirteen Years Penance, sufficiently declares, that the Matter in Question is not about a small or doubtful Sin, but a heinous and incontestable Crime. The Crime here meant, was undoubtedly Idolatry; for the Mention which was made of the Times of Licinius, in the 11th Canon immediately preceding, ought to be supposed tacitly repeated here, as the Sense of the following Canon often depends on the former. See for an Instance the 11th Canon of the Eliberan Council. But Licinius, (as Eusebius informs us) dismissed those Soldiers from the Service, who would notsacrifice to their Gods: And the EmperorJulian afterwards did the same; for which Reason we read Victricius, and others, quitted the military Profession for the Sake of CHRIST. And formerly 1104 Soldiers had done so in Armenia, under Dioclesian, of whom there is Mention made in the Martyrologies: And Menna and Hesychius, in Egypt. In the Time then of Licinius, many left the Service; of whom was Arsaceus, mentioned among the Confessors, and Auxentius, afterwards made Bishop of Mopsuestia. Wherefore those, who had resigned their military Employments from a Motive of Conscience, could not be admitted again under Licinius, but by renouncing the Christian Faith: Which Crime was by so much the greater, by how much their former Act had shewn them to have a superior Knowledge of the Divine Laws; therefore these Apostates were punished more grievously than those mentioned in the former Canon, who abjured Christianity, without any Danger of losing Life or Goods.
But to interpret this Canon generally of all War without Restriction, is absolutely against Reason. For History plainly testifies, that they who had quitted their Posts under Licinius, and had not, during his Reign, returned to them again, because they would not violate their Christian Faith, were left to their Choice by Constantine, whether they would continue still discharged, or return to a military Life: Which doubtless many did.<52>
There are also some who object the Epistle ofLeo, which says, That it is against the Rules of Ecclesiastical Discipline, after having done Penance, to return to the Profession of Arms. But we must know, that in Penitents, no less than in Clergymen and Monks, there was required an eminent Degree of Sanctity, far above that of the Generality of Christians; that the extraordinary Purity of their Lives might serve as much to Edification, as their bad Examples had before given Offence. Likewise in the most antient Customs of the Church, which, that they might be the more reverenced for their venerable Name, are generally called the Apostolical Canons: Canon the 82d it is decreed, That no Bishop, Priest, or Deacon, should follow the War, and retain at the same Time a Roman Employment, and the sacerdotal Function: For those Things that are Caesar’s, should be given to Caesar, and those that are GOD’s should be given to GOD. By which it appears, that those Christians who did not aspire to Ecclesiastical Offices were not forbid to follow Arms.
Moreover, they who after Baptism had served any Office, Civil or Military, could not be ordained Clergymen, as you may see in the Epistles of Syricius and Innocentius, and by the Council of Toledo. For Clergymen were not chosen out of Christians of any Sort, but of them who had given Proof of a most strict Life. Besides, Ecclesiastics ought not to have been diverted from their Functions by any other Care or Work, that required continual Application, such as the Service in War, and the Exercise of certain Civil Employments; for which Reason the first Canon provided, that no Bishop, Priest, or Deacon, should meddle in secular Affairs; and the 80th, that he should not be concerned in the administration of publick Affairs. And the sixth of the African Councils, that he should not act either as an Attorney or an Advocate. So St. Cyprian holds it unlawful for them to be appointed Tutors or Guardians.
But we have the express Judgment of the Church for our Opinion, in the first Council of Arles, which was held under Constantine; for the third Canon of that Council runs thus, As to those who throw away their Arms in Time of Peace, we have thought fit to exclude them from the Communion; that is, they who quit their military Employment, when there was no Persecution. For the Christians by the WordPeace meant so, as appears from Cyprian and others. Let us add the<53> Example of the Soldiers under Julian, who had made so great Progress in Christianity, that they were ready to seal the Truth of the Gospel with their Blood; of whom St. Ambrose speaks thus,The Emperor Julian, tho’ an Apostate, yet had under him Christian Soldiers, to whom when he said, March (against the Enemy) in defence of the State, they obeyed him; but when he said, March against the Christians, then they acknowledged the Emperor of Heaven. Such was the The bean Legion long before, which in the Reign of Dioclesian the Emperor were instructed in the Christian Religion, by Zabda, the thirtieth Bishop of Jerusalem, and afterwards left a memorable Example of Christian Constancy and Patience to all Ages, which I shall speak of hereafter.
Let it suffice, in this Place, to mention that Speech of theirs, which expresses accurately, and in few Words, the whole Duty of a Christian Soldier,We offer you our Service against any Enemy whatever, yet hold it a most heinous Crime to embrue our Hands in the Blood of Innocents: They can act vigorously against the Impious, and the Enemies of the State; but have no longer Force, when the Business is to massacre the Pious, and our fellow Citizens. We remember that we took up Arms for the Defence of our Countrymen, and not against them. We have always fought for Justice, for Piety, for the Preservation of the Innocent; these have been hitherto the Recompence of our Dangers. We have fought with Fidelity. How should we present it to you, (the Speech is made to the Emperor) if we neglect it towards GOD? And St. Basil speaks thus of the antient Christians.Our Ancestors never accounted Slaughters committed in War, as Murders, excusing them who fought for Virtue and Piety.
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The Division of War into Publick and Private.
An Explication of the supreme Power.
I.The Division of War into publick and private.I. The most general and most necessary Division of War is this, that one War is private, another publick, and another mixed; that is a publick War, which is made on each Side by the Authority of the Civil Power. Private War is that which is made between private Persons, without publick Authority. Mixed War is that which is made on one Side by publick Authority, and on the other by mere private Persons. But let us first speak of private War, which is the most antient.<54>
That some Sort of private War may be lawfully waged, as far as respects the Law of Nature, I think has been fully proved by what I have said above, where it was shewn, that it is not repugnant to the Law of Nature, for any one to repel Injuries by Force. But perhaps some will think, that it is not lawful, at least since the establishment of publick Judges; for tho’ Courts of Justice are not from Nature, but human Appointment; yet, since it is much honester, and more conducive to the Peace of Mankind, that Differences should be decided by a third Person that is disinterested, than that every Man should be allowed to do himself Justice in his own Cause, wherein the Illusions of Self-Loveare much to be apprehended: Equity itself, and natural Reason, advise us to submit to so laudable an Institution. Paulus the Lawyer says,That is not to be allowed to private Persons, which may be done publickly by a Magistrate; lest it be the Occasion of great Troubles. The Reason why Laws were invented, says King Theodorick, is,that none should use Violence, and do himself Justice; for wherein does War differ from Peace, if private Persons determine their Disputes by Force? And Laws call that Force, whensoevera Man would take that which he thinks is due, without having Recourse to a Judge.
II.That all private War, by the Law of Nature, was not unlawful, after the erecting of Tribunals of Justice, defended, with some Examples.II. Undoubtedly, the Liberty allowed before is now much restrained, since the erecting of Tribunals: Yet there are some Cases wherein that Right still subsists; that is, when the Way to legal Justice is not open. For the Law which forbids a Man to pursue his Right any other Way, ought to be understood with this equitable Restriction, that one finds Judges to whom he may apply. Now the Way to legal Justice may fail, either for some Time or absolutely. It fails for some Time only, when the Judge cannot be waited for without certain Danger or Damage. It fails absolutely, either by Right or Fact: By Right, if a Man be in Places not inhabited, as on the Seas, in a Wilderness, in desart Islands; and any other Places where there is no Civil Government. By Fact, if Subjects will not submit to the Judge, or the Judge refuse openly to take Cognizance of Matters in Dispute.
What we said before, that even since Tribunals of Justice were erected, every private War is not repugnant to the Law of Nature, may be gathered from the Law given to the Jews,Ex. xxii. 2. where GOD thus speaks by Moses, If a Thief be found breaking up, (that is, by Night) and be smitten, that he dies, there shall no Blood be shed for him; but if the Sun be risen upon him, there shall be Blood shed for him. For this Law so accurately distinguishing the Cases, seems not only to import an Impunity; but also to explain the Law of Nature; and that it is not founded on any particular Divine Command, but on common Equity; whence we see that other Nations have followed the same Principle. That of the Twelve Tables is well known, which was undoubtedly taken from the old Attick Law;If a Thief commit a Robbery in the Night, and if a Man kill him, he is killed lawfully. So is he reputed innocent by the Laws of all known Nations, who by Arms defends himself against him that assaults his Life; which so manifest a Consent is a plain Testimony, that there is nothing in it contrary to the Law of Nature.<55>
III.Nor by the Evangelical Law, with an Answer to the Objections.III. There is more Difficulty concerning the Divine positive Law, more perfect than the Law of Nature, I mean the Gospel. I doubt not but GOD, who has more Right over our Lives than we ourselves, might have required Patience of us to such a Degree, that being brought privately into Danger, we ought rather to suffer ourselves to be killed, than to kill. But our Question is, Whether he has thought fit to tye us up so far? Two Places (of Scripture) are wont to be brought for the affirmative Opinion, which we have already explained, when we examined whether War in general was lawful.Matt. v. 39. Rom. xii. 19.But I say unto you, resist not him that doth Thee an Injury. Dearly beloved, avenge not yourselves; the Latin Version has it, Defend not yourselves. There is also a third Place, in those Words of CHRIST to St. Peter, Put up thy Sword into the Sheath;Matt. xxv. 52. Rom. v. 8, 10.for they that take the Sword shall perish by the Sword. Some also add the Example of CHRIST himself, who died for his Enemies.
Amongst the primitive Christians there are some, who indeed did not disallow of publick Wars, but believed Self-defence between private Persons to be unlawful. I have already cited some Passages of St. Ambrose, in favour of the Innocence of War: We find in St. Austin many more on that Subject, and more clear, which every Body knows. Yet the same St. Ambrose said,Perhaps CHRIST therefore said to Peter, upon his shewing him two Swords, It is enough; as if it had been lawful to (the Time of) the Gospel, to make Use of the Sword; that the Doctrine of Equity might be in the Law, and the Perfection of Goodness in the Gospel. And in another Place,A Christian, tho’ he be attacked by a Highwayman, is not to strike him again, lest in defending himself he offend against Piety. And St. Austin,I do not dislike that Law, which allows those (Robbers, and other violent Aggressors) to be killed; but how I shall defend them who kill them, I know not. And again,I do not approve of the Maxim of killing him, by whom one is apprehensive of being killed one’s self; unless he happen to be a Soldier, or publick Officer, so that he does not do it for himself, but for others, by Vertue of a lawful Authority. And it plainly appears, that St. Basil was of the same Mind, from his second Epistle to Amphilochius.
But the contrary Opinion, as it is more common, so it seems to me more reasonable, that we are not obliged to such a Patience; for we are commanded in the Gospel to love our Neighbours as ourselves, not before ourselves; nay, when an equal Danger threatens us, we are not forbid to take Care of ourselves before others; as we have already shewn from the Authority of St. Paul, explaining the Rule of Beneficence. Perhaps some one may object, and say, tho’ I may prefer my own Good before that of my Neighbour, yet this holds not in Things unequal; wherefore I ought rather to part with my own Life, than suffer the Aggressor to fall into eternal Damnation. But it may be answered, that the Person assaulted may also stand in Need of Time to repent, or may reasonably think so; and that the Aggressor may likewise before his Death have some Time left him to repent. Besides in moral Judgment, that Danger ought not to be regarded<56> into which a Man throws himself, and from which he may deliver himself.
It is probable at least, that some of the Apostles wore Swords in Travelling, in the Sight, and with the Knowledge of our Saviour, during the whole Time they accompanied him, whichJosephus informs us, other Galileans also did in their Journey from their own Country to Jerusalem, (the Roads being much infested with Highwaymen) and who also tells us the same of the Essenes, the most quiet and peaceable of all Men. Hence it came to pass, that when CHRIST told his Disciples, such a Time was at hand, that they should sell even their Garments to buy Swords,Luke xxii. 36. the Apostles presently answered, that there were two Swords in their Company, and in that Company there were none but the Apostles. Besides, what CHRIST himself then said, tho’ indeed it was not a Precept, but a proverbial Speech, declaring that most grievous Dangers were at hand; (as the Opposition of the first Time, which was safe and prosperous, plainly shews, Ver. 35.) seems however to allude to a common Practice, a Practice which the Apostles looked on as innocent.
Matt. v. 39.Now, asCicero very rightly says, Why should it be permitted to wear a Sword, if it were not permitted to use it? But as to that Passage, Resist not him that injures you, it is not more universal than that which follows, Give to every one that asketh; which yet admits of an Exception, provided we do not too much incommode ourselves. Nay, there is nothing added to that Precept concerning giving, which intimates the Restriction; which is deduced only from the Rules of Equity; where as the Prohibition of Resistance has its Explication adjoined, by the Instance of a Box on the Ear; which shews that we are only obliged to suffer without resisting, when the Injury offered us is as slight as a Box on the Ear, or something like it; for otherwise it would have been more natural to have said, Resist not him that injures thee, but sacrifice thy Life rather than defend thyself by Force.
In the Words to the Romans, Avenge not yourselves, the Word ἐκδικει̑ν does not signify to defend but to revenge; as Judith i. 12. ii. 1. Luke xviii. 7, 8. xxi. 22. 2 Thess. i. 8. 1 Pet. ii. 14. Rom. xiii. 4. 1 Thess. iv. 6. And this the very Connexion of the Words plainly shews, for the Words going before are Render to no Man Evil for Evil; but this is the Description of Revenge, not of Defence. St. Paul also supports his Exhortation from that Place of Deuteronomy, Vengeance is mine, I will repay it: Where ’tis in the Hebrewלךכקם, which in its proper and natural Sense signifies Vengeance; and it is evident, Self-Defence cannot be meant in that Place.
Now what was said to St. Peter, does indeed contain a Prohibition to use the Sword, but not in the Cause of Defence; for he had no Need to defend himself: CHRIST had already said concerning his Disciples, Suffer these to go away;John xviii. 8, 9 and this, That the Saying might be fulfilled which he spake, of those thou hast given me I have left none. Nor was it necessary to defend CHRIST; for he would not be defended. Therefore he gives this Reason in St. John for forbidding it, The Cup which my Father hath given me,Ver. 11.shall I not drink it? And he says in St. Matthew, How then should the Scriptures be fulfilled, that thus it must be? St. Peter being then of a fiery Temper, thought of Revenge, and not of Defence. Besides, he would have taken up Arms against them who came with publick Authority, which whether it be lawful in any Case to resist, is a particular Question, that shall be handled in its proper Place. But what CHRIST also adds, All they that take the Sword, shall perish by the Sword; is either a proverbial Saying, which signifies, that Blood causes Blood; and therefore, that the Use of Arms is never free from Danger: Or, according to the Opinion of Origen, Theophylact, Titus, and Euthy<57>nius, it shews, that we should not in croach upon GOD’s Right, by anticipating the Vengeance which He, in his own due Time, will fully requite.Rev. xiii. 10 In which Sense precisely, it is said, He that killeth with the Sword, shall be killed by the Sword: Here is the Patience and Faith of the Saints. With which agrees that of Tertullian,GOD is a fit Depository of thy Patience; if thou layest thy Injuries in his Hand, he is thy Avenger; if thy Losses, he is thy Surety; if thy Grief, he is thy Physician; if thy Death, he is thy Reviver: What ought not Patience to do, that has GOD for its Debtor? Moreover, in these Words of CHRIST there seems to be included, a Prophecy of those Punishments which the Sword of the Romans would take of the Blood-thirsty Jews.
As to the Example of CHRIST, who is said to have died for his Enemies, it may be answered; that all CHRIST’s Actions were indeed full of Virtue, that we may laudably imitate them, as far as ’tis possible; and that Imitation will certainly be rewarded; but yet they are not all such, as either result from an Obedience to an indispensible Law, or constitute a Law to us. For that CHRIST died for his Enemies, and the Ungodly, he did it not by any Law, but as it were by a special Covenant and Agreement with the Father;Isa. liii. 10. who, upon his doing it, did not only promise him the most exalted Glory, but also a People that should endure forever.Rom. v. 7. Besides, this Fact of CHRIST was, as it were, singular, of which we can hardly find any Example; as St. Paul shews: And CHRIST himself commands us to expose our Life to Danger, not for every one, but for our Brethren, who profess the Christian Religion.1 John iii. 16.
In fine, the Passages quoted from Christian Doctors, either seem to give an Advice of extraordinary Perfection, rather than to establish an express Command; or contain only the Opinion of some private Persons. For in those most antient Canons called Apostolical, he only was to have been excommunicated, who with the first Blow killed his Adversary in a Quarrel, through anExcess of Passion. And St. Austin himself, whom we quoted before on the other Side, seems yet to approve of this Opinion.
IV.Publick War divided into that which is solemn, and that which is not solemn.IV. Publick Wars are eitherSolemn, according to the Law of Nations, or not solemn: What I here term Solemn is generally called Lawful, or made in Form, in the same Sense as a Will is termed Lawful, in Opposition to a Codicil; or a Mar<58>riage Lawful, in Opposition of theCohabitation of Slaves: Not because it is not allowed a Man, if he pleases, to make a Codicil, and a Slave to cohabit with a Woman; but because a Will, and a Marriage in Form, have some peculiar Effects, by the Civil Law; which it is convenient to observe; for many, misunderstanding the Word Lawful, think all Wars are condemned as unjust and unwarrantable, to which that Epithet does not agree. Two Things then are requisite to make a War solemn by the Law of Nations. First, that it be made on both Sides, by the Authority of those that have the Sovereign Power in the State: And then, that it be accompanied with some Formalities; of which we shall treat in its proper Place. These Conditions are equally necessary, so that if the one be wanting, the other is needless.
But a publick War not Solemn, may be made both without any Formality, and against mere private Persons, and by the Authority of any Magistrate whatever. And indeed if we consider the thing without respect to the Civil Law, every Ma<59>gistrate seems to have as much Right, in case of Resistance, to take up Arms in order to execute his Jurisdiction, as to defend the People committed to his Protection. But since by War the whole State is endangered, therefore it is provided, by the Laws of almost all Nations, that it be undertaken only by the Order or with the Approbation of the Sovereign. There is such a Law inPlato’s last Book de Legibus. And by the Roman Law he was reckoned guilty of High Treason, who without Commission from the Prince presumed to make War, list Soldiers, or raise an Army. And the Cornelian Law, enacted by L. Cornelius Sylla, says, without Commission from the People. In the Code of Justinian, there is a Constitution extant, made by Valentinian and Valens, thus,Let no Man use any Sort of Arms without our Knowledge and Permission. According to St. Austin, natural Order and the Peace of Mankind require, that the Matter should be so regulated in every State. This Law however ought to be understood with some Restriction, according to the Rules of Equity, as every Maxim is, however general the Terms may be in which it is expressed.
Franc. Victoria, De Jure Belli, n. 9. Molin. Disp. c. 6. Idem Victoria. Bartol. in Leg. Ex hoc jure Digest. de Just. & Jure. Bartol. de Repraes. 3. principali ad secund. n. 6. Mart. Laud. de Bello, Qu. 2. Livy. 1. 24.First then, It cannot be doubted, but that it is lawful for him who has any Jurisdiction, to reduce to their Duty, by his Officers, a Few who are disobedient; provided it requires not great Force to do it, nor endangers the State. Again, If the Danger be so pressing, that Time will not allow to consult the Sovereign, here also Necessity grants an Exception.L. Pinarius, Governor of Enna, a Sicilian Garrison, presuming on this Right, upon certain Information that the Townsmen designed to Revolt to the Carthaginians, put them all to the Sword, and so preserved the Place. Franciscus de Victoria has pretended to transfer the<60> Right of taking up Arms to the Inhabitants of a Town, even without such a Case of Necessity, in order to have Satisfaction for those Injuries, which the Prince neglects to revenge; but his Opinion is justly rejected by others.
V.Whether a War made by the Authority of a Magistrate that has not Supreme Power be publick, and when?V. But Lawyers do not agree, whether in those Cases wherein it is allowed that inferior Magistrates have a Right to take up Arms, such a War ought to be called Publick; some affirm, and others deny it. Indeed, if by Publick we mean only that which is done by Vertue of a Magistrate’s Power, no doubt but such Wars are publick; and therefore, they that in such a Case resist the Magistrate, are liable to the Punishments due to those that rebel against their Superiors.Ayala de Jure Belli, I. 1. c. 2. n. 7. Sylv. verbo Bellum, n. 2. ibi. sufficit etiam. Innocent. C. olim de Restit. spol. n. 8 & C. sicut de Jure jurando, n. 5. Panormit. ib. Bartol. ad Leg. Hostes, D. de Captivitate. Livy, ubi sup. Victor. n. 29. Cajet. Sec. qu. 40. Art. 1. Sylv. verbo Bellum. p. 1. n. 2. Lorca, Disp. 50. n. 12. But if Publick be taken in a higher Sense, for that which is Solemn, as without Dispute it is often taken, they are not publick Wars; because, to render the Idea compleat in that Sense, there must be an express Resolution of the Sovereign, and several other Circumstances. It would be in vain to object, that in such Kind of Quarrels, the Goods of the Rebels are taken, and given to the Soldiers. For that is not so peculiar to a solemn War, as that it may not also be done in any other.
But it may happen, that in a very large State, the inferior Powers may have Authority granted them to begin a War; which, if so, then the War may be reputed as made by the Authority of the Sovereign Power: For he that gives to another the Right of doing a Thing, is esteemed the Author of it.
But it is more difficult to decide, whether, if such an Authority be not granted, the bare Conjecture of the Sovereign’s Will be sufficient? For my Part I cannot think it is: For it is not enough to foresee what the Will of the Sovereign would be, if he were consulted in this Case; but it must rather be considered, what a Prince would have done without being advised with, where the Matter will allow Time, and when the Affair is doubtful, if a Law were thereupon to be made: Fortho’the Reason which determines a Sovereign to require that his Orders should be waited for, may in such or such a Case cease, when particularly considered; yet the same Reason, when taken generally, always subsists; which is, to prevent the Dangers to which the State would inevitably be exposed, if every Magistrate should pretend to judge of the Usefulness or Necessity of War.
Livy, 1. 38. Cap. 45, &c.Cneius Manlius was not therefore injuriously accused by his Lieutenants, because he had made War upon the Galatians, without the Order of the People of Rome; for tho’ the Galatians had supplied Antiochus with some Troops; yet, as Peace had been made with that Prince, it did not belong to Manlius, but to the People of Rome, to determine whether that Injury was to be revenged on the Galatians.Cato would have had C. Caesar delivered up to the Germans, for making War on<61> them: I believe not so much in respect to Justice, as to free the City from the Fear of a Man that wanted to render himself absolute. For the Germans had assisted the Gauls, declared Enemies to the People of Rome, and therefore could have no Reason to complain of any Wrong done them, if the Romans had just Cause to make War against the Gauls. But Caesar ought to have been contented with beating the Germans out of Gaul, the Province appointed to him, and not to have pushed the War on the Germans in their own Country, especially when there was no Danger to be feared from thence, without first consulting the People of Rome. The Germans therefore had no Right to demand Caesar to be delivered up to them, but the People of Rome had to punish him; as the Carthaginians plainly answered the Romans,The Question is not whether Hannibal has besieged Saguntum by publick Authority, or by his own private Authority? But whether in that he has done you an Injury, or not? For it is our Business to see whether our Subject has acted by Vertue of our Orders, or of his own Head. The only Point to be decided between you and us, is, whether the Thing could be done without Prejudice to our Treaties?
Cicero defends what Octavius and Decimus Brutus did, who made War upon Antony of their own Heads. But tho’ it were plain that Antony had deserved it,<62> they should have staid for the Decision of the Senate and Roman People, Whether it were for the Benefit of the State to have dissembled the Matter, or to have revenged it; to have come to Terms of Peace, or to have recourse to Arms? For no Body is obliged to pursue his own Right, which is often attended with the Hazard of Damage.
But then further, tho’ Antony had been declared an Enemy, the Senate and People of Rome should have been allowed to consider, whom to employ as Generals to command in that War: Thus the Rhodians answered Cassius, when he desired their Assistance by Vertue of a Treaty, that they would give it if the Senate ordered it. This Example, (of Cicero’s Apology) and many more that one may meet with, ought to teach us, not to approve of every Thing that is said by the most famous Authors: For they often reason according to the Circumstances of the Times, and often according to their own Passions; fitting, τῷ πέτρῳ στάθμην, the Line to the Stone, or the Rule of Equity to Things, and not Things to the Rule of Equity. Wherefore we must endeavour in the Examination of such Matters, to use an unbiassed Judgment, and not rashly draw those Things into Example, which may be rather excused than commended, in which respect we often fatally err.
Since then, as we have said, a publick War ought not to be made, but by the Authority of the Sovereign; for the understanding both this Affair, and the Question concerning a Solemn War, and several other Things that depend upon it, it will be necessary to be thoroughly in formed, what this Sovereignty is, and in whom it resides; and so much the more, because learned Men in our Age, each of them handling this Argument rather according to the present Interest of the Affairs of his Country, than according to Truth, have made that which was of itself not very clear, much more perplexed.
VI.In what Things the Civil Power consists.VI. The Moral Power then of governing a State, which uses to be called the Civil Power, Thucydides describes by three Things, where he calls a State that is really so, A Body that has its own Laws, Magistrates,and Tribunals. Aristotle divides the Administration of the Government into three Parts. 1. Consultation about publick Affairs. 2. The Establishment of Magistrates. 3. Judgments. To the first he refers the Power of making War or Peace, of concluding or breaking Treaties and Alliances, of enacting or repealing Laws; to which he adds, the inflicting of Death, Banishment, Confiscation of Goods, and the Punishment of Peculation and Extortion: That is, in my Opinion, the Judgments that relate to publick Crimes; whereas, in the third Class, by Judgments he means those that concern Crimes committed directly against private Persons. Dionysius Halicarnassensis chiefly takes Notice of these three Things, 1 st, The Right to create Magistrates. 2 dly, The Right to make Laws and repeal them. 3 dly, The Right of making Peace or War. In another Place he adds, the Right of Judging as a <63> Fourth; and again, elsewhere, the Right of Regulating the Affairs of Religion, and of calling Assemblies.
But if any one would divide it right, he may easily find all Things relating to it; so as that nothing may be wanting or superfluous. For he that governs a State, does it either by himself or by another. What he does himself respects either general Affairs or particular; what concerns general Affairs relates to the making or repealing of Laws; which extends as well to sacred Things (as far as he has a Right to meddle in them) as to profane. Aristotle calls this Ἀρχιτεκτονικὴ, thechief Art of Government. The Particular Affairs are either directly publick or private, but considered as they relate to the publick Good. Those which are directly publick, concern either certain Actions, as the making of Peace, War, Treaties, Alliances; or certain Things, as Taxes, and such like, in which is comprehended that eminent Dominion which a State has over its Subjects, and their Goods, for the publick Use. Aristotle calls this Art by the general Name Πολιτικὴ, Political, and by another (Βουλευτικὴ) that signifies the Art of Deliberating. Private Affairs are here the Differences of private Persons, so far as the Repose of the Society requires the Decision of them by publick Authority: And this Art Aristotle calls Δικαστικὴ, Judicial. Those Things which are dispatched by another, are either done by Magistrates, or other Ministers, among whom we may put Embassadors. In these then consists the Civil Power.
VII.What Power is supreme.VII. That is called Supreme, whose Acts are not subject to another’s Power, so that they cannot be made void by any other human Will. When I say, by any other, I exclude the Sovereign himself, who may change his own Will, as also his Successor, who enjoys the same Right,Cacheranus Decis Pedem. 139. n. 6. and consequently, has the same Power, and no other. Let us then see what this Sovereign Power may have for its Subject. The Subject then is either common or proper: As the Body is the common Subject of Sight, the Eye the proper; so the common Subject of Supreme Power is the State; which I have before called a perfect Society of Men.
We then exclude the Nations, who are brought under the Power of another People, as were the Roman Provinces; for those Nations are no longer a State, as we now use the Word, but the less considerable Members of a great State, as Slaves are the Members of a Family. Again it happens sometimes,Vict. de jure belli. n. 7. that divers People have one and the same Head, and yet each of those People make a compleat Society; for it is not in the moral Body, as ’tis in the natural, where one Head cannot belong to several Bodies; for there the same Person may be head, under a different Consideration, to several distinct Bodies; of which this is a certain Proof, that upon the Extinction of the reigning Family, the Sovereign Power reverts to each People. So it may also happen, that several States may be linked together in a most strict Alliance, and make a Compound, as Strabo more than once calls it; and yet each of them continue to be a perfect State, which is observed both by others, and byAristotle in several Places.
The State then is, in the Sense I have just mentioned, the common Subject of Sovereignty. The proper Subject is one or more Persons, according to the Laws<64> and Customs of each Nation, Ἡπρώτη ἀρχὴ, the first Power of the State, in Galen, Lib. 6. de placitis, Hyppoc. & Plat.
VIII.The Opinion refuted which holds that the supreme Power is always in the People, and the Arguments answered.VIII. 1. And here we must first reject their Opinion, who will have the Supreme Power to be always, and without Exception, in the People; so that they may restrain or punish their Kings, as often as they abuse their Power. What Mischiefs this Opinion has occasioned, and may yet occasion, if once the Minds of People are fully possessed with it, everywise Man sees. I shall refute it with these Arguments. It is lawful for any Man to engage himself as a Slave to whom he pleases; as appears both by the Hebrew and Roman Laws. Why should it not therefore be as lawful for a People that are at their own Disposal,Ex. xxi. 6. Instit. l. 1. tit. 3. de jure person. § 4. to deliver up themselves to any one or more Persons, and transfer the Right of governing them upon him or them, without reserving any Share of that Right to themselves? Neither should you say this is not to be presumed: For the Question here is not,Gail. de Arestis c. 6. n. 22, &c. what may be presumed in a Doubt, but what may be lawfully done? In vain do some alledge the Inconveniences which arise from hence, or may arise; for you can frame no Form of Government in your Mind, which will be without Inconveniences and Dangers.Either you must take the one with the other, orrefuse both, says the Comedian.
But as there are several Ways of Living, some better than others, and every one may chuse which he pleases of all those Sorts; so a People may chuse what Form of Government they please: Neither is the Right which the Sovereign has over his Subjects to be measured by this or that Form, of which divers Men have divers Opinions, but by the Extent of the Will of those who conferred it upon him.<65>
There may be many Causes why a People should renounce all Sovereignty in themselves, and yield it to another: As when they are upon the Brink of Ruin, and they can find no other Means to save themselves; or being in great Want, they cannot otherwise be supported. For if the Campani formerly, obliged by Necessity, submitted themselves to the Romans in this Form,We yield up, O ye Senators, the People of Campania, and the City of Capua, our Fields, Temples, and all that we have, both Divine and Human, into your Power. And some People, when they offered to submit themselves to the Power of the Romans, were refused, asAppian relates: What hinders, but that any People may, after the same Manner, yield up themselves to one powerful Prince. We read in Virgil,
It may also happen, that a Master of a Family having large Possessions, will suffer no Body to dwell in them upon any other Condition; or one may have a great many Slaves, and make them free, upon Condition of acknowledging him for their Sovereign, and paying some Taxes: Of which we have many Instances. Tacitus speaks thus of the German Slaves,Every one has his Dwelling, and governs his own House. The Master demands of him, as of a Farmer, a certain Proportion of Corn, Cattle, or Stuffs; after which the Slave is under no Obligation.
Besides, as Aristotle said, some Men are naturally Slaves, that is, turned for Slavery. And some Nations also are of such a Temper, that they know better how to obey than to command; which the Cappadocians seem to have been sensible of, when being offered their Freedom by the Romans, they preferred living under a King,Strabo l. xii 815. Ed. Amst. (540 Paris.) declaring that they could not live without one. Thus Philostratous in the Life of Apollonius, It is a Folly to pretend to set the Thracians, Mysians, and Getae at Liberty, since they don’t like it.Justin xxxviii. cap. 2.
Moreover, the Examples of other Nations, who for many Ages lived happily under an arbitrary Government, may have influenced some. The Cities under<66> Eumenes, says Livy, would not have changed their Condition with any free State whatever. And sometimes the Situation of publick Affairs is such, that the State seems to be undone without Remedy, unless the People submit to the absolute Government of a single Person; which many wise Men thought to be the Case of the Roman Republick, in the Time of Augustus Caesar. For these and such like Reasons, it not only may happen, but often does, that Men submit themselves to the Government and Power of another, as Cicero observes in his second Book of Offices.
But now as Property, or Right to the Goods of an Enemy, may be acquired by a lawful War, the Word Lawful being taken in the Sense I before mentioned, so may also Civil Dominion, or an absolute Right to command and govern the Enemy. What I have said, does not tend solely to maintain the Sovereign Authority of a Monarch, in Places where it is established; for there is the same Right, and the same Reason, for that of the Nobles, who govern a State exclusive of the People. Not even a Commonwealth was ever found so popular, but that those who were very poor, or Strangers, the Women and young Folks, were excluded from publick Councils. There are also some People that have other Peo-<67>ple under them, who are no less subject to them than if they were under Kings. Whence arose that Question,Are the Collatine People in their own Power? And when the Campani had delivered themselves up to the Romans, they are said to have passed under a foreign Dominion. Liv. 1. 26. c. 24 xxxviii. c. 3. xxxii. c. 33. xlv. c. 25. As Acarnania and Amphilochia are said to have been under the Power of the Aetolians: Peraea and Caunus under that of the Rhodians. Pydna was given by Philip to the Olynthians. And those Towns which had been under the Spartans,Strab. xiv. Diod. xvi. when they were delivered from their Government, were called Eleutherolacones, (freed Laconians). The City Cotyora is said to have belonged to the People of Sinope, in Xenophon. Nice in Italy was adjudged to the People of Marseilles, in Strabo:Paus. I. iii. Exp. Cyri I. v. Strab. I. iv. —v. And the Island of Pithecusa to the Neapolitans. So we read in Frontinus, that the Town Calatia was adjudged to the Colony of Capua, Caudium to the Colony of Beneventum, with their Territories. Otho gave the Cities of the Moors to the Province of Boetica, as it is in Tacitus. All which were absolutely void, if we allow, that the Right of Government is always at the Discretion and Will of the Persons governed.
But both sacred and profane History do testify, that there are some Kings who do not depend on the People, considered even as a Body, If thou shalt say, (said GOD to the Israelites) I will set a King over me.Deut xvii. 14. 1 Sam. viii. 4. 9 — ix. 16. —x.1. — xv. 1. 2 Sam. xv. 2 1 Kings iv. 1. Ps. cxliv. 2. Luke xxii. 25 And to Samuel, Shew them the Manner of theKing that is to reign over them. Hence the King is said to be anointed over the People; and over the Inheritance of the LORD; and over Israel. Solomon is called King over all Israel. So David thanks GOD, that he had subdued the People under him: And CHRIST says, The Kings of the Gentiles exercise Lordship over them. That Passage of Horace is well known,
Formidable Kings have Dominion over their own People; but Kings themselves are subject to the Dominion of Jupiter.
Seneca thus describes the three Forms of Government,Sometimes we have Reason to fear the People; sometimes the Persons of Credit in a Council, when the greatest Part of Publick Affairs are in the Hands of that Council; and sometimes one single Person, who is invested with the Power of the People, and over the People. Such are those whoPlutarch says, Not only command according to the Laws, but even command the Laws themselves. And in Herodotus, Otanes thus describes Monarchy, A Power to command as one pleases, without being accountable to any Person. And Dion Prusaeensis describes Royalty: So to govern, as not to give Account to another. Pausanias to the Messenians, opposes regal Government to that which must give Account of its Actions.
Aristotle says, there are some Kings who have the same Power as the whole Nation has in another Place over their Persons and Goods. So after the chief Men of Rome began to assume to themselves the Regal Power, the People are said to have<68> bestowed all their Dominion upon them, and Power even over themselves; asTheophilus expounds it. Hence is that Saying of Marcus Antoninus the Philosopher,No one but GOD only can be the Judge of a Prince; andDion, B. 53. of such a Prince, He is free, Master of himself, and of the Laws, so that he does what he pleases, and what he doth not please he need not do. Such a Kingdom was that of theInachidae antiently in Greece at Argos; for in the Argive Tragedy of Suppliants, the People thus address the King in Aeschylus.Sir, you are the City and the Publick; you are an independent Judge. Seated on your Throne, as upon an Altar, you alone govern all by your absolute Commands.
Quite otherwise than King Theseus himself speaks of the State of Athens inEuripides, This City is not governed by a single Person, but it is a free City, where the People reign, by establishing new Magistrates every Year, as they think fit. For Theseus, asPlutarch explains it, was only their General in Time of War, and the Guardian of their Laws; in other Things upon a Level with the Citizens. Hence it comes to pass, that Kings who are accountable to their People, are said to be called Kings improperly. So after Lycurgus, and especially after the Ephori were constituted, the Lacedemonian Kings are said byPoly-<69>bius,Plutarch, andCornelius Nepos, to be Kings only in Name, and not in Reality; which Example others also followed in Greece. ThusPausanias says (of the Argives) to the Corinthians, The Argives, of old great Lovers of Equality and Liberty, have limited the Regal Power as much as possible; so that they have left to the Sons and Posterity of Cisus, nothing but the bare Name of King. So also Plutarch observes, That the Senate had Power to judge Kings among the Cumaeans.Aristotle denies that such Kingdoms constitute any proper Form of Government, because they do but make Part of an Aristocratical or Democratical State.
Nay, even among Nations, which are not always under Kings, we meet with some Instances of a Sort of temporary Monarchy, which is not subject to the People. Such was the Power of theAmymones among the Cnidians, and of the Dictators in the first Ages at Rome, from whom there was no Appeal to the People; whence a Dictator’s Edict was held as sacred, saysLivy. Neither was there any Security but in a careful Obedience. AndCicero, that the Dictatorship had possessed itself of the whole Force of the Royal Authority.
The Arguments which are brought for the other Opinion are easily answered.1Arg. For first, Whereas it is alledged, that the Person constituting, must be superior to the Person constituted; it is only true in regard to those Powers whose Effect depends always upon the Will of their Author; but not in regard to a Power which, tho’ at first one was at Liberty to confer it or not, cannot afterwards be revoked by him that has once conferred it. As when a Woman chuses herself a Husband, whom she must from that Time always obey. Valentinian told his Soldiers, who had made him Emperor, when they desired something which he did not like,It was indeed in your Power to chuse me your Emperor, O ye Soldiers!<70> But after you have chosen me, what you request depends on me, and not on you. It is your Duty, as Subjects, to obey, and mine to consider what is proper to be done. Neither is that true which is supposed, that all Kings are constituted by the People. The contrary sufficiently appears from the Examples I have already alledged, of a Master of a Family that receives Strangers into his Lands, upon Condition of Subjection; and of Nations reduced under one’s Dominion by the Right of War.
2Arg.2. Another Argument they fetch from a Saying of the Philosophers, that all Government was ordained for the Sake of the Governed, not of the Governor; whence it follows, as they pretend, that the Governed are superior to the Governors, since the End is more noble than the Means. But neither is that universally true, that all Government was designed for the Sake of the Governed; for some Powers are of themselves established for the Sake of the Governor, as that of a Master over his Slave: For there the Benefit of the Slave is extrinsical and accidental: As the Gain of the Physician has no Connection with the Art of Physick. There are other Powers that tend to the mutual Advantage of him who commands, and of him that obeys, as the Authority of a Husband over his Wife. So that there may be some Civil Governments established for the Benefit of the Sovereign, as the Kingdoms which a Prince acquires by the Right of Conquest; but are not therefore to be reputed Tyrannical; for Tyranny, as the Word is now taken, implies Injustice. Some Governments may also respect the Benefit as well of the Governor as of the Governed; as when a People, unable to defend themselves, submit to the Dominion of a powerful Prince. I do not deny but that the Good of the Subject is the direct End proposed in the Establishment of most Civil Governments; and that it is true, whichCicero said fromHerodotus, and Herodotus fromHesiod, That Kings were constituted to administer Justice to the People. But it does not therefore follow, as they infer, that the People are superior to the King: For Guardianship was undoubtedly designed for the Benefit of the Pupil; and yet it gives to the Guardian a Power over the Pupil. Neither does it avail, that a Guardian may be removed if he does not manage his Charge well; and therefore there ought to be the same Power over a King. For as to a Guardian, it is to be considered, that he has a Power superior to him: But in Civil Governments, because there must be some dernier Resort, it must be fixed either in one Person, or in an Assembly; whose Faults, because they have no superior Judge,Jer. xxx. 12. GOD declares, that he takes Cognizance of; who either punishes them, if there be a Necessity for it; or tolerates them, for the Chastisement or Trial of a People.
It is admirably said ofTacitus, You must bear with the Luxury or Covetousness of Princes, as you do Barrenness, Storms, and the other Inconveniences of Nature: There will be Faults, as long as there are Men; but the Evil is not perpetual, and<71> is compensated by the Good which happens from Time to Time. AndM. Aurelius said, the Magistrates are to judge of private Persons, Princes of Magistrates, and GOD of Princes. There is a remarkable Place in Gregory of Tours, where that Bishop thus addresses the King of France, If any one of us (O King!) should transgress the Bounds of Justice, he may be punished by you: But if you yourself should offend, Who shall call you to Account? When we make Representations to you, if you please, you hear us; but if you will not, who shall condemn you? There is none, but he who has declared himself to be Justice itself. Among the Maxims of the Essenes, Porphyry mentions this,That it is not without a particular Providence of GOD, that the Power of Commanding falls to the Lot of some Persons. AndIrenaeus says excellently, By whose OrdersMen are born; by his Command also are Kings ordained, proper for them who are governed by them. We have the same Thought in the Constitutions of Clement, You shall fear the King, knowing that he is chosen of GOD.
1 Kings xiv 6. 2 Kings xvii. 7, &c.Neither is it an Objection to what I have said, that we read of some People punished for the Offences of their Kings; for this does not happen, because they do not punish or restrain their King, but because they seem to give, at least a tacit Consent to his Vices; or perhaps, without respect to this, GOD may make use of that Sovereign Power which he has over the Life and Death of every Man, to chastise their King, in regard to whom it is a great Punishment to lose his Subjects.
IX.Mutual Subjection refuted.IX. There are others, who fancy to themselves a reciprocal Dependence between the King and the People; so that, according to them, the People ought to obey the King whilst he makes a good Use of his Power; but likewise, when he abuses it, he becomes in his Turn dependent on the People. Now if by what they say, they mean only, that our Duty to our Sovereign does not oblige us to do any Thing manifestly unjust, they say but the Truth; but this implies no Right to compel the King, or to command him. But suppose they had a Design to divide the Government with the King, (of which we shall say something hereafter) there ought to be Bounds assigned to the Power of each Party, according to the Difference of Places, Persons, or Affairs, that the Extent of their respective Jurisdictions might be easily discerned.<72>
But the Goodness or Badness of an Action, especially in Civil Concerns, which are liable to frequent and intricate Discussions, are not fit to distinguish those Limits; from whence would necessarily follow the utmost Confusion; because, under Pretence that an Action appeared Good or Bad, the King and People would each, by Vertue of their Power, assume to themselves the Cognizance of one and the same Thing; which Disorder, no Nation (as I know of) ever yet thought to introduce.
X.Cautions in judging of the Sovereign Power.X. Having confuted these Errors; it remains that we give some Cautions, in order to direct us how to judge rightly, to whom the Sovereign Power in every Nation belongs. Let this then be the first, That we be not deceived by the Ambiguity of Words, or the Shew of outward Things. For Example, Tho’ among the Latins, a Kingdom and a Principality are generally Opposites; as when Caesar said, the Father of Vercingetorix had obtained the Principality of Gaul, but was slain for aspiring to the Royalty: And when Piso, in Tacitus, said, that Germanicus was the Son of a Prince of the Romans, not of a Parthian King: And Suetonius, that Caligula wanted but little of changing the Ornaments of a Prince into those of a King: And Maroboduus is said inVelleius not to have been contented with the Principality, which he possessed with the Consent of those that depended on him, but ambitiously to have affected the Regal Power.
Yet we see these two Words often confounded together; for the Spartan Chiefs descended from Hercules, after they were subjected to the Ephori, were yet called Kings (as we have seen above). And in antient Germany, there were some Kings, who, as Tacitus says, governed by the Deference paid to their Counsels, rather than by any Power they had of commanding. Livy relates, that Evander reigned more by the Esteem People had for him, than by his own Authority. Aristotle, and Polybius, and Diodorus, gave the Title of Kings to the Suffetes, or Judges of the Carthaginians: And Hanno is so called by Solinus.Strabo speaks of Scepsis in Troas, that having incorporated the Milesians into the State, it formed itself into a Democracy, leaving the Name of King to the Descendants of their antient Kings, and something of the Dignity.<73>
The Roman Emperors, on the contrary, after they exercised openly, and without any Disguise, a most absolute monarchical Power, were nevertheless called Princes. There are also some Republicks, where the chief Magistrates are honoured with the Ensigns of Royalty.
On the other Side, the States of a Kingdom, that is, the Assembly of those who represent the People, divided into three Orders, according to Gunther,Praelati, proceres, missisque potentibus Urbes. Prelates, Nobles, and Deputies of Towns. Those States, I say, in some Places, are only, as it were, the King’s Great Council, by whose Means the Complaints of the People, which the Members of his Privy-Council often conceal from him, come to his Ear; and the King has nevertheless a Power afterwards to ordain whatever he thinks fit, in regard to the Matters in Question. But in other Countries they have a Right to take Cognizance of the Actions of the Prince, and also to prescribe Laws, which shall oblige the Prince himself.
Many think, that in Order to know whether a Prince be Sovereign or not, we need only consider whether he mounts the Throne by Right of Succession, or by Means of Election; for according to them, successive Kingdoms only are Sovereign. But it is certain, that Maxim is not generally, and without Restriction, true. For Succession is not a Title that determines the Form of the Government, and the Extent of the Power of him that governs: It imports only a Continuation of the Rights of him, to whom one succeeds. When a Family is chosen to reign, the Right conferred upon it passes from Successor to Successor, with the same Power that the first Election had given, and no more. Among the Lacedemonians the Kingdom was Hereditary, even after the constituting of the Ephori. And of such a Kingdom, that is, of the chief Dignity of the State, Aristotle speaks, Τούτων τω̂ν Βασιλειω̂ν αἱ μὲν κατὰ γένος εἰσὶν, αἱ δὲ αἱρεταὶ. Of those Kingdoms; some are Hereditary, others Elective. The same Author, and Thucydides, and Dionysius of Halicarnassus, observe, that in the Times of the Heroes, most of the Kingdoms of Greece were so. On the contrary, the Roman Empire, even after all Power was taken from the Senate and People, was conferred by Election.
XI.The second Caution.XI. Another Caution may be this, We must distinguish between the Thing itself, and the Manner of enjoying it; which takes Place not only in Things corporeal, but also in incorporeal: For a Right of Passage, or Carriage through a Ground, is no less a Thing than the Ground itself.See Carolus Molinaeus on the Customs of Paris, tit. § 2. gl. 4 n. 16. But these some have by a full Right of Property, someby an usufructuary Right, and others by a temporary Right. Thus, amongst the Romans, the Dictator was Sovereign for a Time. The Generality of Kings, as well those who are first elected, as those who succeed to them in the Order established by the Laws, enjoy the Sovereign Power by an usufructuary Right. But there are some Kings, who possess the Crown by a full Right of Property, as those who have acquired the Sovereignty by Right of <74> Conquest, or those to whom a People, in order to prevent greater Mischief, have submitted without Conditions. Neither can I agree with those, who say the Roman Dictator had not the Sovereign Power, because it was not perpetual: For the Nature of moral Things is known by their Operations, wherefore those Powers, which have the same Effects, should be called by the same Name. Now the<75> Dictator, during the whole Time of his Office, exercised all the Acts of civil Government, with as much Authority as the most absolute King; and nothing he had done could be annulled by any other Power. And the Continuance of a Thing alters not the Nature of it, though if the Question be concerning Dignity, which is generally called Majesty, doubtless he that has a perpetual Right, has a greater Majesty, than he that enjoys it but for a Time, because the Manner of holding adds to the Dignity. The same Thing may likewise be said of such, as during the Minority, Lunacy, or Captivity of their Kings, are appointed Regents of the King-<76>dom, so that they depend not on the People, and cannot be deprived of their Authority before the Time fixed by Law.
But it is otherwise with those who are invested with a precarious Power, and which may be at any Time recalled,See Procop. Vandalic. 1. 1. c. 9. as were the Kings of the ancient Vandals in Africk, and of the Goths in Spain, whom the People might depose, upon any Dislike. Whatever such a Prince does, may be abrogated by those who vested him with a Power so liable to Revocation; and consequently as the Exercise of his Authority has not the same Effects as the Acts of a true Sovereign, so neither is the Authority the same.
XII.Some Sovereign Powers held fully, with a Right of Alienation.XII. Against what I have said before, that some Governments are held in full Right of Propriety, that is, by way of Patrimony, some learned Men make this Objection, that Free-men are not to be barter’d away. But as there is a Difference between the regal Power, and that of a Master over his Slave; so likewise there is a Difference between civil Liberty,Fr. Hotoman. Quaest. Illustr. Qu. 1. and that which is personal: The Liberty of a private Person is one Thing, and that of the whole Body of the People another. For even the Stoicks acknowledge there is a kind of Servitude ἐν ὑποτάξει in Subjection; and in Holy Writ the Subjects of Kings are called their Servants.1 Sam. xxii. 17 2 Sam. x. 2. 1 Kings ix. 22. As then personal Liberty excludes the Dominion of a Master, so does civil Liberty exclude Royalty, and all manner of Sovereignty properly so called.Livy thus opposes them, Before Men had tasted the Sweetness of Liberty, they desired a King. Again, It seemed a shameful Thing that the Peopleof Rome, when they served under Kings, were never attacked in War, nor besieged by an Enemy, but being a free People should be besieged by the Hetrurians; and in another Place, The People of Rome are not now under a King but at Liberty. And again in another Place, he opposes those Nations that were free, to them that lived under Kings; andCicero said Either the Kings should not have been expelled, or the People should have had their Liberty in Deed, and not in Words. And after themTacitus, The City of Rome was at first under Kings; but L. Brutus brought in Liberty, and the consular Government. And elsewhere, The Liberty of the Germans is more severe than the regal Power of Arsaces. AndArrian Βασιλευ̑σι καὶ τη̑σι πόλεσιν ὅσα αὐτόνομα. To the Kings and free Cities, (those that live after their own Laws.) And Caecina inSeneca, The regal<77> Thunderbolts are those whose Force affects either the Assembly of the States, or the chief Places of a free City: The Meaning whereof is that the State is threatened with a regal Power. So those Cilicians who were not under Kings were called Eleuthero Cilices,free Cilicians. AndStrabo says of Amisus, (a City of Pontus) that it was sometimes free, and sometimes under Kings. And every where in the Roman Laws, that treat of War, and Judgments of Recovery, Foreigners are distinguished into Kings and free People. It is said even of those, who do not enjoy this publick Liberty, as well as of those who are deprived of personal Liberty, that they are not their own Masters; but that they belong to those on whom they depend. Hence that inLivy, which Cities, which Lands, which Men were once under the Power of the Aetolians. And again,Are the People of Collatia their own Master? The Argument then which is here used, is not to the Purpose, since the Question does not relate to personal but civil Liberty. But properly, when a People is alienated, it is not the Men themselves, but the perpetual Right of governing them, as they are a People. Thus when a Freed Man is assigned to one of his Patron’sChildren, the Freeman is not alienated, but the Right which one had over that Person is transferred.
And that is as weak, which alledges, that because a King conquers other Nations by the Blood and Sweat of his Subjects, therefore what he so conquers, should rather belong to them than to the Prince. For it is possible, that the King may maintain his Army out of his private Estate, or out of the Revenues of the Crown Lands. For, though a King has but an usufructuary Right to those Lands,<78> as he has to the Sovereignty over the People who have chosen him, yet are those Revenues properly his own: Just as, by the civil Law, when one is obliged to restore an Inheritance, the Incomes are not restored, because they are accounted to arise from the Thing itself, and not to make Part of the Inheritance. Therefore it may happen that a King may so enjoy a Government over some People in his own proper Right, that it may be in his Power even to alienate it; and we find in History many Instances of Sovereignty accompanied by that Right. Strabo says, That the Island Cythera over-against Taenarus did belong to Eurycles a Lacedemonian Prince, ἐν μερει̑ κτήσεως ἰδίας, in his own proper Right. So King Solomon gave to Hiram,1 Kings ix. 11. 12. (for so Philo Byblius, who translated the History of Sanchuniaton, calls him in Greek) King of the Phoenicians, twenty Cities, not of those that were inhabited by the Hebrews.Jos. xix. 27. For Cabul (which Name is given to those Cities) was seated without the Bounds of the Hebrews; but of those Cities, which some conquered Nations, Enemies to the Hebrews, had held to that Time, and were partly subdued by Solomon’s Father-in-Law, the King of Egypt, and given to him in Dowry with his Daughter, and partly conquered by Solomon himself. For it is plain, that those Cities were not at that Time inhabited by the Israelites, because when Hiram had restored them,2 Chr. viii. 2.Solomon planted Hebrew Colonies in them.
Thus we read, that Hercules having conquered the City of Sparta, gave the Sovereignty of it to Tyndareus, on Condition, that if Hercules left any Children of his own, he should restore it to them. So Amphipolis was given in Marriage Dowry to Acamas Son of Theseus; andAgamemnon promises in Homer to give Achilles seven Cities. King Anaxagoras gave two Parts of his Kingdom to Melampus. AndJustin tells us of Darius, that he bequeathed by Will his Kingdom to Artaxerxes, and to Cyrus the Cities, of which he was Governor. Thus, the<79> Successors of Alexander the Great are to be considered as having succeeded him, every one in his allotted Part, in the full Right of Property, by Vertue whereof he governed those Nations, which had been formerly under the Persians, or else as having acquired that Sovereignty themselves, by Right of Conquest; therefore it is not to be wondered at, that they claimed to themselves the Right of Alienation.
When King Attalus, the Son of Eumenes, had made, by his Will, the People of Rome Heir to his Goods, they, under the Name of Goods, possessed themselves of his Kingdom. Of which Florus thus speaks, Therefore the Romans entering upon it as Heirs, reduced it into the Form of a Province, not by Force of Arms, but in a fairer Way, by Right of Inheritance.Appian Bell. Mithridat. & Bell. Civil. And afterwards, when Nicomedes, King of Bithynia, hadmade the People of Rome his Heir, they immediately reduced the Kingdom into the Form of a Province. AndCicero, in his second Orationagainst Rullus, says thus, We have got a good Inheritance, the Kingdom of Bithynia. So that Part of Libya, called Cyrenaica, was left by King Apion,Eutrop. 1. 6. by Will, to the Romans. Tacitus, in his fourteenth Annal, mentions some Lands which formerly belonging to King Apion, were, together with his King-<80>dom, bequeathed to the Romans. And inCicero, Every Body knows that the Romans are become Masters of the Kingdom of Aegypt, by Vertue of the Will of the King of Alexandria. Mithridates, in Justin, speaking of Paphlagonia, says,Which fell to his Father, not by Force, and the Superiority of his Arms, but by a testamentary Adoption. The same Author also relates,Lib. 42. c. 4. Strabo, 1. 12. Id. 1. 13.that Orodes King of Parthia, was a long while debating, to which of his Sons he should leave his Kingdom. And Polemo, Prince of the Tibarenians, (a People of Cappadocia) and of the Country adjoining, left his Wife Heiress of his Dominion; which also Mausolus had formerly done in Caria, tho’ he had several Brothers alive.
XIII.Some are held not so fully.XIII. But as to Kingdoms which were originally established by the full and free Consent of the People, I confess it cannot be presumed, that it was ever their Design to allow the King to alienate the Sovereignty. Wherefore what Crantzius observed in Unguinus,Hist. Dan. l. 2 cap. 4. as a Thing never heard of, that by his Will he had bequeathed Norway, we have no Reason to blame, since he might have in View the Customs of the antient Germans, amongst whom the Kings had no Power to alienate their States. For as to what is related of Charles the Great, Lewis the Pious, and also others afterwards among the Vandals and Hungarians, the testamentary Dispositions, which they made, were rather bare Recommendations to the People, who were to choose their Successors, than a true Alienation. And of Charles, Ado expressly remarks, that he much desired to have his Will confirmed by the chief Nobles of France.<81> The like is reported of Philip King of Macedon, that when he designed to disinherit his Son Perseus, and settle the Crown upon Antigonus, his Brother’s Son, he went over all the Cities of Macedon to recommend Antigonus to the Princes, asLivy informs us. In Regard to what is said of Lewis the Pious, that he restored the City of Rome to Pope Paschal, it is nothing to the Purpose, since the French having received the Sovereignty over the City from the People of Rome, might well restore it to the same People, in the Person of him, who represented them, asbeing Chief of the first Order of the State.<82>
XIV.Some Power not supreme, yet fully held.XIV. But now, the Distinction we make between Sovereignty, and the Manner of holding it is so well founded, that not only the Generality of Sovereigns are not Masters of their States with a full Right of Property; but also there are several Powers not Sovereign, who have a full Right of Property over the Countries within their Jurisdiction;See Mariana on the Principality of Urgeti, Hist. whence it happens, that Marquisates and Earldoms are more easily sold, and bequeathed by Will, than Kingdoms.
Hisp. I. 12. c. 16. XV. Another Thing that proves the Reality of our Distinction, is the Manner in which the Regency of a Kingdom is regulated, during the Minority of the Heir to the Crown, or when the King is disabled by any Distemper from exercising the Functions of Government.XV.This appears from assigning Tutors and Guardians in Kingdoms. For in Kingdoms not Patrimonial, the Regency belongs to those, to whom the publick Laws, or upon their Deficiency, the Consent of the People shall consign it. But in Kingdoms Patrimonial, it belongs to<83> those whom the Father, or nearest Kindred shall chuse. Thus we see in the Kingdom ofEpirus, which had been founded by the Consent of the People,See Cothman, to 1. cons. 41. n. 11. Guardians were nominated by the People to their young King Aribas; and by the Nobles ofMacedon to the posthumous Son of Alexander the Great: But in Asia the Less, that was won by the Sword,Plut. de Amore Fratern.Eumenes appointed his Brother Guardian to his Son Attalus: So did Hiero in Sicily nominate such as he thought fit to be Guardians to his Son Hieronymus.
But whether the King is Proprietor of every particular Spot of Ground in his Kingdom,Gen. xlvii. as the Kings of Aegypt, after the Times of Joseph, or as the Kings of India, according to Diodorus and Strabo, or whether he is not,Lib. 2. Lib. 15. this is extrinsick to Sovereignty, and has no Relation to the Nature of it: Thus there neither results from it another Form of Sovereignty, nor another Manner of holding it.
XVI.Sovereignty not lost by any Promise made of Things which belong not to the Law of God or NatureXVI. The third Observation is this, That Sovereignty is not less Sovereignty, tho’ the Sovereign at his Inauguration solemnly promises some Things to GOD, or to his Subjects, even such Things as respect the Government of the State. I do not here speak of the Observation of the natural and divine Law, or even of the Law of Nations, to which all Kings stand obliged, tho’ they have promised no-<84>thing; but of the Observation of certain Rules, to which they would not be obliged but by their Promise. The Truth of what I say appears by the Example of a Master of a Family, who has promised his Family something that regards the Direction of it: For tho’ he is bound to perform his Promise, yet he does not therefore cease to be the Head, and in some Manner, the Sovereign of his Family, as far as the End and Constitution of that little Society permits. A Husband likewise loses nothing of his Authority over his Wife, for having promised her somewhat, which he stands obliged to fulfill.
Yet I must confess, where such Promises are made, Sovereignty is thereby somewhat confined, whether the Obligation only concerns the Exercise of the Power, or falls directly on the Power itself.B. 2. ch. 11. In the former Case, whatever is done contrary to Promise, is unjust; because, as we shall shew elsewhere, every true Promise gives a Right to him to whom it is made. In the latter, the Act is unjust, and void at the same Time, through the Defect of Power. It does not however follow from thence, that the Prince who makes such Promises, depends on a Superior; for the Act is not made void in this Case, by a superior Authority, but by Right itself. Among the Persians their Monarch was, Ἀυτοκρατὴς καὶ ἀναπεύθυνος, absolute, and accountable to none, as Plutarch declares, and adored as an Image of the Divinity; nor, as it is in Justin, was he changed but by Death. He was a King that spoke thus to the Persian Nobility,I have called you together, that none might think I have followed only my own Counsel, but remember it is your Duty to obey, rather than advise. And yet upon his Accession to the Crown he took an Oath, asXeno-<85>phon andDiodorus Siculus observe; and it was not allowable for him to change the Laws that had been made in a certain Manner,Ch. vi. v. 8, 12, 15. as both Daniel’s History andPlutarch in his Life of The mistocles inform us.Diodorus Siculus too, B. xvii. and a long Time after,Procopius in his first Book of the Persian War, where there is a remarkable Story to this purpose. Diodorus Siculus says the same Thing of the Kings of Aethiopia. The same Author tells us, that the Kings of Egypt, who doubtless exercised a Sovereign Authority no less than the other Eastern Kings, were obliged to observe many Things, which if they did not perform, they could not during their Lives be called to an Account; yet after their Deaths, their Memories might be arraigned, and being found guilty were refused solemn Burial; as the Bodies of wicked Princes amongst the ancient Hebrews,2 Chr. xxiv. 25 — xxviii. 27. were not interred in the Royal Sepulchres; by this wonderful Temperament, the Sacredness of sovereign Majesty was preserved, and yet their Kings were restrained from breaking their Engagements for fear of a future Condemnation.Plutarch also<86> tells us in the Life of Pyrrhus, that the Kings of Epyrus were accustomed to take an Oath, that they would govern according to the Laws.
See an Example in Crantzius His. Suec. 1. 9.But what shall we say of Promises, accompanied by this Clause, that if the King breaks his Faith, he shall forfeit the Crown? Even in that Case, the Power does not cease to be supreme, but the Manner of holding it will be limited by such a Condition, and the Sovereignty will not be unlike a temporary one. Agatharchides said, a King of the Sabaeans, was ἀναπεύθυνος , the most absolute Prince in the World,Ap. Photium. L. 16. and yet if he were found without his own Palace, he might be stoned to Death; which Strabo also observes out of Artemidorus.
Thus, Lands held as Feoffments of Trust are no less our own, than if we possessed them with full Property; but yet they are capable of being lost. Such a commissory Clause may be added not only in Compacts between the People and the King, on whom they confer the sovereign Authority, but also in other Contracts. We see some Treaties of Alliance made on that Condition with neighbouring Nations: or even by those Treaties it is stipulated, that the Subjects shall not assist their King, nor obey him, if he violates his Engagements.
XVII.It may sometimes be divided.XVII. The fourth Observation is this, Though the sovereign Power be but one, and of itself undivided, consisting of those Parts above mentioned, with the Addition of Supremacy, that is, τῷ ἀνυπευθύνῳ, accountable to none, ( ) yet it sometimes happens, that it is divided, either into subjective Parts, as they are called, or potential; (thatis, eitheramongst several Persons, who possess it jointly; or into several Parts, whereof one is in the Hands of one Person, and another in the Hands of another). Thus though there was but one Roman Empire, yet it often happened, that one ruled in the Eastern Part, and another in the Western; nay, and sometimes the Empire was divided among three. So also it may happen, that the People in chusing a King, may reserve certain Acts of Sovereignty to themselves, and confer others on the King absolutely and without Restriction. This however does not take place, (as I have shewed already) as often as the King is obliged by some Promise; but only then, when either the Partition is expressly made, (of which also we have treated above) or when the People being (as yet) free, shall require certain Things of the King, whom they are chusing, by way of a perpetual Ordinance; or if any Thing be added, whereby it is implied, that the King may be compelled or punished. For every Ordinance flows from a Superior, at least in Regard to what is ordered. And Compulsion is not always indeed an Act of a Superior, for naturally every Man has Power to compel his Debtor; but it is repugnant to the State of an Inferior; therefore from Compulsion there at least follows an Equality, and consequently a Division of the sovereign Power.<87>
Many alledge here a great Number of Inconveniencies, to which the State is exposed by this Partition of Sovereignty, which makes of it as it were a Body with two Heads; but in the Matter of civil Government, it is impossible to provide against all Inconveniencies; and we must judge of a Right, not by the Ideas that such or such a Person may form of what is best, but by the Will of him, that conferred that Right; as we have already observed. A very ancient Example of this Division is brought by Plato in his third Book of Laws. For theHeraclidae (the Posterity of Hercules) being settled at Argos, Messena and Lacedemon, their Kings were obliged to govern according to Laws prescribed to them; and whilst they did so, the People were bound to continue the Kingdom to them and their Posterity, and not to suffer any one to take it from them. Moreover, besides the reciprocal Engagement of each People and their King, the three Kings stood engaged one to the other, the three Nations one to the other, and each King to the two neighbouring Nations, as also each Nation to the two neighbouring Kings; all of them together promising mutual Assistance.
XVIII.Ill inferred from this, that some Princes will have their Acts confirmed by the Senate.XVIII. But they are much mistaken, who suppose, because Kings will not allow some of their Acts to be of Force, till they are ratified by the Senate, or some other Assembly, that there is a Partition of Sovereignty. For whatever Acts are thus annulled, ought to be reputed as annulled by the King’s Authority, who by that Means ( ) would take Care, that nothing deceitfully obtained of him, shall pass for his Will. Thus, Antiochus the third wrote to the Magistrates, that they should not obey him, if he commanded any Thing contrary to Law;See Boe¨rius ad c. 1. de Const. in Decret. and there is a Law of Constantine, which enacts that Orphans and Widows should not be forced to come to the Emperor’s Court for Judgment, even though the Emperor’s Order were produced. Wherefore this is like those Wills, which have this Clause added to them, that no Will hereafter made shall be of Force. For such a Clause implies, that a posterior Will would not proceed from the real Intent of the Testator. But as this Clause may be made void by an express Revocation, so may the Act of a Prince by his express Command, or any special Declaration of his posterior Will.
XIX.Some other Examples ill drawn.XIX. Neither will I here (in order to establish the Truth of what I have now said concerning the Partition of Sovereignty) make use of the Authority of Polybius, ( ) who reckons the Roman Republick amongst those States, whose Government was mixt. For at the Time in which he wrote, the Government was merely popular, if we consider the Right and not the Manner of acting; since not only the Authority of the Senate, which he refers to Aristocracy, but also that of the<88> Consuls, which he compares to Monarchy, were both dependent on the People. What I have said of Polybius, I say likewise of other Authors, who, in writing on Politicks, may think it more agreeable to their Purpose, to regard the external Form of Government, and the Manner in which Affairs are commonly administered, than the Nature itself of Sovereignty.
XX.True Examples.XX. More to the Purpose is that of Aristotle who says ( ) there are some Sorts of Royalty of a mixt Kind between an absolute Monarchy, which he calls παμβασιλείαν, (the same is παντελὴς Μοναρχία in Sophocles’s Antigone; ἀυτοκρατὴς βασιλεία, καὶ ἀνυπεύθυνος, in Plutarch; ἐξουσία ἀυτοτελὴς, in Strabo) and a Kingdom like that of Lacedemon, which is only the first Dignity of the State; of such a Mixture we have an example (I think) in the Israelitish Kings, for without Doubt in most Things they ruled with an absolute Power. For the People desired a King,such a one as the neighbouring Nations had; but the Power of the Eastern Kings was very absolute. Thus Aeschylus brings in Atossa speaking to the Persians of their King, οὐκ ὑπεύθυνος πόλει, not accountable to the State for his Actions.L. xxxvi. And that ofVirgil is well known, The Egyptians, Lydians, Parthians and Medians, have not a more profound Respect for their King. And inLivy: The Syrians, and People of Asia are Men born to Slavery; <89> to which agrees with that of Apollonius inPhilostratus, Ἀσσύριοι καὶ Μη̑δοι τας τυραννίδας προσκυνου̑σι: The Assyrians, and Medes adore arbitrary Government; and that of Aristotle,Polit. 1. 3. c. 14. Hist. iv. οἱ περὶ τὴν Ἀσίαν ὑπομένουσι τὴν δεσποτικὴν ἀρχὴν, οὐδὲν δυσχεραίνοντες: The Asiaticks submit to despotick Power without Difficulty; and in Tacitus, that of Civilis Batavus to the Gauls, Let Syria and Asia serve, and the East accustomed to Kings. For at that Time there were Kings in Germany and Gaul; but as the same Author observes, they governed in a precarious Manner, more by a persuasive, than commanding Power.
We have also observed before, that the whole Hebrew Nation depended on their King; and Samuel describing the Right of Kings, fully shews, that there remained no Power in the People against the Injuries of their Kings, which the Ancients rightly gat her from that of the Psalmist. Against thee, thee only have I sinned.Ps. li. 5. Upon which St. Jerom descants; Because as a King, he feared no Man. And St. Ambrose, he was subject to no Laws, for Kings cannot transgress (against Men,) and being secure under their own Power, can be punished by no Law. Therefore he did not sin against Man, because he was accountable to no Man for his Actions. We may read the same in Isidore of Pelusium, in his 383 Epistle of the last Edition. I know indeed that the Jews themselves grant, that if their Kings offended against those Laws, which were written concerning the Duty of a King, they were scourged for it; but that sort of Punishment carried no Infamy with it, and the King suffered it voluntarily, to give thereby some Marks of his Repentance; nor was it a publick Officer that scourged him, but such a Person as he himself chose, and the Number of Stripes were regulated according to his own Pleasure.Deut. xxv. 9. As for the rest, their Kings were so free from all coactive Punishment, that the very Law<90> of Excalceation (the pulling off the Shoe) because it had something of Dishonour in it, did not affect them. The Sentence of the Hebrew Barnachman is still extant in the Sayings of the Rabbins, under the Title of Judges, No Creature judges the King, God only has that Power.
Yet notwithstanding all this, there were some Cases which,Ex. xxii. 8. Deut. i. 17. Ps. lxxxii. i. I suppose, the Kings had no Right to judge, and were referred to theSanhedrim (the Council) of 70 Elders, which being instituted by Moses at God’s Command, continued without any Interruption to the Days of Herod. Wherefore both Moses and David called the JudgesGods,2 Chr. xix. 6, 8. 1 Chr. xxvi. 32 2 Chr. xix. II. and their JudgmentsGod’s Judgments. And the Judges are said to judge by the Authority of God, and not by the Authority of Men; and there is a plain Distinction made between the Things of God, and the Things of the King. Where by the Things of God, (as the most learned among the Jews interpret it) are meant, the Judgments, that were to be rendered according to the Law of God. I do not deny, but that the Kings of Judah did of themselves take Cognizance of some criminal Affairs, in which Maimonides prefers them to the Kings of the ten Tribes of Israel; and that plainly appears from many Examples, as well in Holy Writ, as in Hebrew Authors; but it seems that the Cognizance of some Causes was not allowed to them, as concerning Crimes committed by a Tribe, or by the High Priest,Luke xiii. 33. or by a Prophet; and this is plain from the Story of the Prophet Jeremy,Jer. xxxviii. 5. whom when the Princes demanded to put to Death, the King answered them, Behold he is in your Power, and the King can donothing against you, that is, in such sort of Affairs.Joseph. Antiq. Moreover, when any one had been accused before the Sanhedrim, upon any other Account whatsoever, it was not in the King’s Power to screen him from the Judgment of that Tribunal: and therefore Hyrcanus, finding there was no Way to hinder Herod from being tried, sought out Expedients to elude the Sentence.<91>
In Macedonia, those that descended from Caranus, as Callisthenes says in Arrianus: οὐ βίᾳ ἀλλὰ νόμῳ Μακεδόνων ἄρχοντες διετέλεσαν, reigned according to the Laws, and not by Force; and Curtius, in his fourth Book, though the Macedonians were used to regal Government, yet they lived in a greater Appearance of Liberty than other Nations: For the King himself could not judge of capital Crimes: And the same Author in the 6th Book,By an ancient Custom amongst the Macedonians, the Army took Cognizance of capital Crimes, in Time of War; and the People in Time of Peace; so that in this Respect the Kings had no Power, but by the Way of Persuasion. There is also in another Place of the same Author another Instance of this Mixture,The Macedonians decreed, that according to the Custom of their Nation, their King should never hunt on Foot, or without being attended by some of the Nobles and of his Favourites. And Tacitus of the Goths, They were under the Government ofKings, who kept them a little more in Subjection, than those of other Nations in Germany, but so as not to leave them an entire Liberty. He had said before (in speaking of the Germans in general) that their Kings, who were only the chief or principal Men of the State, governed rather by Persuasion, than by their Authority. But elsewhere he describes an absolute Monarchy in these Words,They (the Suiones) are under the Dominion of a Prince, whose Authority is absolute, and not precarious. And Eustathius describing the Republick of the Corcyreans, said it was a Mixture of regal and aristocraticalGovernment. I observe that there was something like this in the Times of the Roman Kings: For then almost all Affairs were managed by the King. Romulus (saysTacitus) governed us as he pleased; and it is certain, that in the first Beginnings of the City, the Kings had all Power, saysPomponius. Yet Dionysius Halicarnassensis affirms, that even at that very Time, some Things were reserved in the People. But if we had rather believe the Roman Authors, in some Cases, Appeals might be made from the King to the People, as Seneca gathers out of Cicero’s Book of a Commonwealth;<92> and also out of some pontifical Books, and Fenestella. Servius Tullius, who ascended the Throne through the Favour of the People, rather than by Vertue of a just Title, still more diminished the royal Authority; for, as Tacitus says, he enacted some Laws,to which the Kings themselves were to submit. Wherefore no wonder ifLivy makes only this Difference between the Power of the first Consuls, and of the Kings, that the Consulship was but for one Year.
The like Mixture of Popular and Aristocratical Government was in Rome during an Interregnum, and in the Times of the first Consuls. For in some Things, and those of Moment, what the People commanded was of no Force, without the previous Approbation of the Senate. And there remained something of this Mixture even later, whilst the Power, as the same Livy says, was in the Hands of the Patricians, that is, of the Senate; and the Relief, or the Right of Opposition, in the Hands of the Tribunes, that is, of the People. But afterwards, the Power of the People being increased, the Consent of the Senate was no more than a mere Ceremony, and a vain Image of their antient Right; since the Senators ratified the Deliberations of the Assembly of the People, even before they knew what would be resolved in it, as Livy and Dionysius observe. To conclude, Isocrates pretends that the Government of Athens was, in the Time of Solon, A Democracy mixed with an Aristocracy. These Things being premised, let us examine some Questions, which are often produced on this Subject.
XXI.A Confederate on unequal Terms may have the Supreme Power.XXI. The first is, Whether a Power inferior to any other by Vertue of a Treaty of unequal Alliance, may have the Sovereignty? By unequal Alliance I mean, not such as is made between two Powers whose Strength is unequal; as when the City of Thebes in the Time of Pelopidas made a League with the King of Persia, and the Romans with the Massilians, and afterwards with King Masinissa;Justin, l. 43. c. 5. nor such as stipulates some transient Act, as when an Enemy is reconciled, upon paying the Charges of the War, or performing any other Thing once for all.Valer. Max. l. 5. c. 2. But I mean, when by the express Articles of the League, some lasting Preference is given from one to the other; or whereby the one is obliged to maintain the Sovereignty and Majesty of the other; as it was in the League between the Aetolians and the Romans, that is, to hinder any Attack on their Sovereignty, and to make<93> their Dignity, which is denoted by the Word Majesty, to be respected; Tacitus calls that the having a Reverence for the Roman Empire; which he thus explains, Tho’ placed on their Banks, and beyond the Limits of our Empire, yet in Mind and Will they act with us. So Florus,Other People, who were not under the Dominion of the Romans, were sensible of their Grandeur, and reverenced the Conquerors of Nations.
Andronicus Rhodius rightly observes after Aristotle, that this is proper to Friendship between Unequals, that the more Honour be given to the more powerful, and the more Assistance to the more weak.
To the Inequality in Question may be referred some of those Rights, which are now called Right of Protection, Right of Patronage, and a Right termedMundiburgium; as also that which Mother Cities had over their Colonies among the Grecians. For, as Thucydides says, those Colonies enjoyed the same Right of Liberty with the other Cities; but they owed a Reverence to the City whence they derived their Origin, and were obliged to render her τὰ γέρα τὰ νομιζόμενα, Respect, and certain Expressions of Honour.
Livy, concerning that antient League between the Romans, who were become absolute Masters of Alba, and the Latins descended from Alba, says, that in that Treaty the Romans were acknowledged Superiors. We know what Proculus replied to this Question, viz. that every People that does not depend on another is free, even tho’ by a Treaty of Alliance they are bound to maintain and reverence the Majesty of another People. If then a Nation bound by such a Treaty remains yet free, and not subjected to the Power of another, it follows, that it still retains its Sovereignty; and the same may be said of a King. For there is no Difference between a free People, and a King that is really so. And Proculus adds, that such a Clause inserted in a Treaty of Alliance, imports only that one Nation is superior, and not that the other is not free. The Word Superior ought to be understood here, not in regard to Power and Jurisdiction, (for he had said before, that the People inferior by the Treaty do not depend on the other, that are superior to them) but in regard to Reverence and Dignity, which the following<94> Words do explain by a proper Similitude. As we know (says he) our Clients to be free, tho’ they be not equal to us in Authority, Dignity, norevery Right; so they that ought to maintain and respect the Majesty of our State, are to be considered as free.
Clients are under the Protection of their Patrons: So Nations, who are inferior by a Treaty of Alliance, are under the Protection of the People who are their Superior in Dignity. They are under their Protection, not under their Dominion; as Sylla speaks in Appian, on their Side, and not under their Subjection, as Livy says. And Cicero, in his second Book of Offices, speaking of those Times when Virtue reigned amongst the Romans, says,They were the Protectors, and not the Masters of their Allies. To which agrees that of Scipio Africanus the Elder,The People of Rome had rather engage Men by Kindness than by Fear, and gain foreign Nations by Protection and Alliance, than subject them by hard Bondages; and what Strabo relates of the Lacedemonians after the Coming of the Romans into Greece, they continued free, contributing nothing but what they were obliged to do as Friends and Allies. As private Protection takes not away personal Liberty, so publick Protection does not the Civil, which cannot be conceived without Sovereignty. Therefore you may see Livy opposes the State of those who are under the Protection of another People, to that of those who are under their Dominion. And Augustus threatnedSyllaeus King of the Arabians (as Josephus<95> relates) if he did not leave off injuring his Neighbours, he would take Care that he should be made a Subject of a Friend; which was the Condition of the Kings of Armenia, who, as Paetus writes to Vologeses, were under the Roman Jurisdiction, and consequently more Kings in Name than Reality; as were also the Kings of Cyprus, and some others, formerly Subjects to the Persian ὑποταγέντες, as Diodorus calls them.
Here may be objected what Proculus adds,Those who are Members of confederate States are summoned to appear before us; they are tried at our Tribunals, and are punished by Vertue of the Sentence passed against them. But to make this more plain, we must know there are four Kinds of Differences, or Subjects of Complaint. First, If the Subjects of the King or State under Protection, are accused of having done any Thing contrary to the Treaty of Alliance. Secondly, If the King, or the States themselves be accused. Thirdly, If the Allies under the<96> Protection of the same King or State do quarrel among themselves. Fourthly, If Subjects complain of Injuries done by their Sovereign.
As to the First, If any Thing has been committed contrary to the Articles of Treaty, the King or State are obliged either to punish the Offender, or to deliver him up to them that are injured; which takes Place not only between unequal Confederates, but also equal; and even between such as are not engaged in any League, as we shall shew in another Place. The Sovereign is also obliged to endeavour to have Satisfaction made, which in Rome was called the Delegate’s Office. And Gallus Aelius in Festus says, A Recovery is when the Law decides between King and People, Nations and Foreign States; how Things may be restored by the Assistance of a Judge Delegate, how they may be recovered, and how private Mens Cases may be prosecuted among themselves. But one of the Confederates has no Right directly to seize or punish the Subject of another; therefore Decius Magius, a Campanian, being seized by Hannibal,Livy, l. 23. and sent to Cyrene, and from thence to Alexandria, declared, that he was seized by Hannibal contrary to the Articles of the League, and there upon was set at Liberty.
As to the second, The superior Ally has a Right to compel the inferior to stand to the Articles of the Treaty, and upon refusal to punish him. But neither is this peculiar to unequal Alliances; the same Thing takes Place between equal Allies. For, to have a Right to punish any one that has rendered himself guilty, it is sufficient that one is not subject to him; which shall be treated of elsewhere; wherefore Kings or Nations not allied, have also that Right in regard to one another.
As to the third Case, As in an equal Confederacy, Controversies are generally referred to a Convention of the Associates, who are not interested in the Affairs in Question, as we find was formerly practised amongst the Greeks, Latins, and Germans, or to the Decision of Arbitrators, or even to the Judgment of the chief of the Confederacy, as to a common Arbitrator: So in an unequal Confederacy, it is commonly agreed that the Things in Dispute shall be determined before him, who is the Head of the League. Therefore this does not imply any Jurisdiction; for even Kings have often their Causes tried before Judges appointed by themselves.
As to the fourth and last, Associates have no Right of Judging: When therefore Herod accused his own Sons before Augustus of certain Crimes, they replied,You might have punished us by your own Right, both as a Father, and as a King. And when Hannibal was accused at Rome by some Carthaginians,Scipio told the Senate, it did not belong to them to meddle in Affairs belonging to the Republick of Carthage. And ’tis in thisAristotle says an Alliance differs from a State, that ’tis the Business of Allies to take Care that no Injuries be done by one to the others, but not that the Subjects of a confederate State do not injure one another.
It may again be objected, that Historians make use of the Word to command, in speaking of the Prerogatives of a superior Ally; and that to obey, in speaking of the Engagements of the inferior Ally. But this should not affect us; for this is, when the Things concern either the common Good of the Allies, or the private Advantage of the Superior in the League. As to Things of common Concern, when the Assembly does not sit, even in an equal League, he that is chosen Prince of the League נגיר ברית, Dan. xi. 22.) commonly commands the other Allies, as Agamemnon did the Grecian Princes; and afterwards the Lacedemonians did the Grecians, and after them the Athenians. We read inThucydides’s Oration of<97> the Corinthians. The Chiefs of an Alliance ought not to challenge any Advantage in what concerns their particular Interest: But it is just, that in the Administration of common Affairs they have the Preeminence. Isocrates says, that the antient Athenians, whilst they were the Chiefs of Greece,were contented to take Care of common Affairs, but as for the Rest, they left to every People their Liberty: And elsewhere,being persuaded that they ought to have the Command of the War, and not to rule over their Allies. And again, Managing their Affairs like Confederates, not despotically. The Latins express by the Word imperare, to command, that Right of the principal Ally; but the Greeks more modestly use the Term τάσσειν, to regulate. The Athenians having the Conduct of the War against the Persians, asThucydides relates it, did regulate which Cities should contribute Money against the Barbarians, and which Ships. So they who were sent from Rome into Greece, are said to be sent to regulate the State of the free Cities. But if he, who is only chief of the Confederacy, governs the common Affairs in the Manner I have now said, we must not wonder, that in an unequal Alliance, the superior Ally does the same Thing. Therefore Imperium, in this Sense, that is, Ἡγεμονία, chief Command, does not take away the Liberty of others. The Rhodians, in their Oration to the Roman Senate, extant in Livy, thus addressed them,The Grecians formerly were strong enough to command: Where the Command is now, they wish it may be forever; they are contented to defend their Liberty with your Arms, not being able to do it with their own. Thus Diodorus tells us, after the taking the Fort of Cadmea, by the Thebans, many Grecian Cities joined in a League, to maintain in common their Liberty, under the Conduct of the Athenians. Dion Prusaeensis, speaking of those very Athenians in the Time of Philip of Macedon, said,Having at that Time abandoned the Command in War, they only retained their own Liberty. ThusCaesar calls those People Confederates, whom alittlebefore he had said were under the Command of the Suevians.
But as to those Things which respect the particular Interest of each Ally, if the Demands of the superior Ally are often called Commands, that does not imply any Right to require such Things with Authority; but that Way of Speaking is used, because those Demands produce the same Effect, as Commands properly so called, and the same Regard is paid to them. In this Sense the Intreaties of a King are called Commands, and the Advices of a Physician Prescriptions. Before this Consul (C. Posthumius) no Body, says Livy, B. 42. was ever chargeable, or any Ways burdensome to our Confederates; our Generals were abundantly supplied with Mules, Tents, and all Baggage necessary for War, that they should notcommand the Allies to furnish them.
In the mean Time it is true, that it often happens, that if he who is superior in the League, be much more powerful than the Rest, he by Degrees usurps a Sovereignty, properly so called, over them, especially if the League be perpetual, and that he has a Right to plant Garrisons in their Towns; as the Athenians did, when they suffered their Allies to appeal to them, which the Lacedemonians<98> never did. Whereupon Isocrates compares the Rule which the Athenians exercised over their Confederates to that of Kings. Thus theLatins complained, that under thePretence of a Confederacy with the Romans, they were brought into Servitude. So did the Aetolians, that they had nothing left but the bare Shadow, and empty Name of Liberty; and theAchaeans afterwards, that they had a League in Show; but in Reality a precarious Slavery. So inTacitus Civilis Batavus complains of the same Romans, that they used them not as at first, like Confederates, but as mere Slaves: And in another Place,they falsely called that Peace, which was indeed a miserable Slavery. Eumenes also, in Livy, said the Confederates of the Rhodians were only so in Name, but really their direct Vassals. Also theMagnesians complained that Demetrias was free in Shew; but in Effect all Things were managed as the Romans pleased; and Polybius remarks, that the Thessalians were in Appearance free, but in Truth under the Dominion of the Macedonians.
When Things go in that Manner, and Usurpation is changed at last into Right, by the tacit Concession of those who suffer it, of which we shall treat in another Place; then those who had been Allies become Subjects, or at least there is made a Partition of the Sovereignty, which, as I said before, may happen some-<99>times.
XXII.Of those that pay Tribute.XXII. There are also Powers, who pay something to another, either to secure themselves from their Insults, or to get Protection, ξύμμαχοι ϕόρου ὑποτελει̑ς,Tributary Confederates, as it is in Thucydides; such were the Kings of the Jews, and of the neighbouring Nations, after the Time of M. Anthony, ἐπί ϕόροις τεταγμένοις, as Appian speaks; yet I see no Reason to doubt, but that such Sort of Allies may have Sovereignty, tho’ the acknowledging their Weakness takes off something from their Dignity.
XXIII.Of those that hold their Dominions by a Feudal Tenure.XXIII. Many think it more difficult to determine, whether feudatory Princes may be Sovereign? But that Question may be easily decided by what has been said before. For in this Contract, (which is peculiar to the German Nation, and no where found but where they have planted themselves) two Things are to be particularly considered, First, The personal Obligation of the Vassal. Secondly, The Right of the Lord to the Thing itself.
The personal Obligation is the same, whether a Man holds the Sovereignty by a feudal Right, or any Thing else, tho’ lying in another Place. But such an Obligation, as it takes not from a private Man personal Liberty, so neither does it lessen the Sovereignty in a King or State, which is Civil Liberty. Which may be plainly seen in Franc Fiefs, which consist in personal Obligation only, but give<100> no Right to the Thing itself. For these are nothing else but a Species of that unequal League, of which we have treated already, where in one promises Services, and the other Defence and Protection. But suppose a Vassal has promised his Lord to serve him against all and every Man, which they now callFeudum Ligium,See Bald. Prooem. Digest. Natta, Consil. 485 (for formerly that Word was of a larger Signification) that takes off nothing from the Right of Sovereignty which the Vassal has over his own Subjects; not to mention, that there is always a tacit Condition supposed, viz. that the War undertaken by the Lord be just: Of which we shall treat in another Place.
As to the Right of the Lord to the Thing itself, enjoyed by a feudal Title, it is such indeed, that if the Family of the Vassal be extinct, or if he falls into certain Crimes, he may lose the very Right of Sovereignty: Yet the Power he has over his Subjects does not cease to be Sovereign; for as I have often said, there is a Difference between the Thing, and the Manner of holding it. And I find many Kings constituted by the Romans with this Condition, that upon the failing of the Royal Family the Sovereignty should return to themselves;Lib. 12. as Strabo observes of Paphlagonia, and some other Kingdoms. <101>
XXIV.A Man’s Right distinguished from the Exercise of that Right.XXIV. We must also distinguish in Sovereignty, as well as Property, between the Right itself, and the Exercise of that Right, or between the first Act and the second. For as a King, when an Infant, has a Right to govern, but cannot exercise that Right; so has a Prince that is Lunatick, or a Prisoner, or that lives in a foreign Country, so that he is not at Liberty to exercise himself the Acts of Sovereignty: For in all such Cases they have their Lieutenants or Vice-Roys to act for them. Therefore Demetrius, living confined under Seleucus,Plut. in Demetrius. forbad any Credit to be given to his Letters, or Seal, but ordered that all Things should be administred as if he were dead.
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Of a War made by Subjects against their Superiors.
1.The Question stated.I. Private Men may certainly make War against private Men, as a Traveller against a Robber, and Sovereign Princes against Sovereign Princes, as David against the King of the Ammonites; and so may private Men against Princes, but not their own, as Abraham did against the King of Babylon,2 Sam. x. and other neighbouring Princes; so may Sovereign Princes against private Men, whether their own Subjects, as David against the Party of Ishbosheth, or Strangers, as the Romans against Pirates.<102>Gen. xiv.
The only Question is, whether private or publick Persons may lawfully make War against those that are set over them, whether as supreme, or subordinate. First, it is agreed on all Sides, that they that are commissioned by the higher Powers may make War against their Inferiors, as Nehemiah did by the Authority of Artaxerxes, against the neighbouring petty Princes.Nehem. Ch. ii. & iv. Thus theRoman Emperors allowed the Proprietor of an Heritage to drive away Harbingers or Quarter-masters. But the main Question is, What is lawful for Subjects to do against their Sovereign, or those that act by his Authority. This is allowed by all good Men, that if the civil Powers command any Thing contrary to the Law of Nature, or the Commands of God, they are not to be obeyed. For the Apostles,Acts iv. 19. — v. 29. when they alledged, that we must obey God rather than Man, did but appeal to a Principle of Reason, engraved on the Minds of Men, whichPlato expresses almost in the very same Words. But if for this, or any other Cause, any Injury be done us by the Will of our Sovereign, we ought rather to bear it patiently, than to resist by Force.
II.War against Superiors, as such is unlawful by the Law of Nature.II. Indeed all Men have naturally a Right to secure themselves from Injuries by Resistance, as we said before. But civil Society being instituted for the Preservation of Peace, there immediately arises a superior Right in the State over us and ours, so far as is necessary for that End. Therefore the State has a Power to prohibit the unlimited Use of that Right towards every other Person, for maintaining publick Peace and good Order, which doubtless it does, since otherwise it cannot obtain the End proposed; for if that promiscuous Right of Resistance should be allowed, <103> there would be no longer a State, but a Multitude without Union, such as theCyclops were, every one gives Law to his Wife and Children. A Mob where all are Speakers, and no Hearers. Or theAborigines, whom Sallust mentions as a wild and savage People, without Laws, without Government, loose and dissolute. And in another Place theGetulians, who had neither Customs, Laws, nor Magistrates. So we find that the Resistance in Question, is looked upon as unlawful, according to the Usage of all States. All human Societies (St. Augustine tells us) unanimously agree to obey Kings. So Aeschylus, τραχὺς μόναρχος κ’ ὀυχ’ ὑπεύθυνος κρατει̑, A King absolute, accountable to none. And in Sophocles, Ἀρχοντές εἰσιν, ὥσθ’ ὑπεικτέον·, τί μὴ; They are Princes, we must obey; why not? And in Euripides, Τὰς τω̂ν κρατούντων ἀμαθίας χρεὼν ϕέρειν, We must bear with the Follies of Princes. Agreeably whereto is that we quoted above out of Tacitus; and in another Place he says,The Gods have bestowed a sovereign Power on Princes, leaving Subjects the Glory to obey. And, The bad Treatment we receive from a King, must be looked on as good<104> Treatment. Seneca says, We must bear patiently whatever the King commands, whether just or not: a Thought which he borrowed fromSophocles. And likewise in Sallust,To do any Thing with Impunity, is peculiar to a King.
Hence it is, that the Majesty (that is, the Dignity and Authority) of the Sovereign, whether it be King or State, is fenced with so many Laws, and so many Penalties; which Authority could not be maintained, if it were lawful to resist. If a Soldier resist his Officer that corrects him, if he lays hold on the Cane, he is degraded; but if he wilfully break it, or strike again, he is punished with Death. And in Aristotle,If a Magistrate strikes, he shall not be struck again.
III.Nor allowed by the Hebrew Law.III. By the Hebrew Law, he that was disobedient, either to the High-Priest, or to the extraordinary Governor appointed by God, was to be put to Death. But that which in Samuel is spoken of the Right of Kings, to him that thoroughly considers it, appears not to be understood of a true Right,Jos i. 18. Deut. xvii. 12. 1 Sam. viii. 11. Deut. xvii. 14. that is, of a Power to do honestly and justly, (for a far different Way of living is prescribed to a King, in that Part of the Law which treats of a King’s Duty) nor of barely what he will do; for that would not have been extraordinary in him, when even private Men do likewise Injuries to private Men; but it is to be understood of an Action,<105> whether just or not, as has in it some Effect of Right, that is, it implies the Obligation of Nonresistance. Therefore it is added, when People are thus oppressed, they should cry unto GOD for Help, as if no Remedy were to be expected from Man. It is then a Right, in the same Sense as it is said thatthe Pretor renders Justice, even when he pronounces an unjust Sentence.
IV.Nor by the Law of the Gospel, as proved by Scripture.IV. Where Christ in the New Testament commands to give to Caesar the Things that are Caesar’s, he certainly intended, that his Disciples should yield as great, if not a greater Obedience (both active and passive) to the higher Powers, than what the Jews were bound to pay to their Kings. Which St. Paul (who could best interpret the Words of his Lord) largely describing the Duties of Subjects,Rom. xiii. says among other Things, He that resists the Power, resists the Ordinance of God, and they that resist, shall receive unto themselves Damnation. And a little further, for he is the Minister of God to thee for Good. And again, Wherefore ye must needs be subject, not only for Wrath, but also for Conscience Sake. He includes in Subjection the Necessity of Nonresistance, not only such as arises from the Apprehension of a worse Evil, but such a one as flows from the Sense of our Duty, whereby we stand obliged not only to Man, but to GOD also: He adds two Reasons for it; First, because GOD has approved of this Ordinance of commanding and obeying, both formerly in the Jewish Law, and now in the Evangelical, wherefore the publick Powers are to be esteemed by us, as ordained by GOD himself; for we make those Acts our own, which we support and countenance by our Authority. Secondly, because this Ordinance tends to our Advantage. But some may say, to bear Injuries is not advantageous; to which others, more truly, than pertinently to the Apostle’s Meaning, as I suppose, say, these Injuries are also advantageous to us, because such a Patience shall not lose its Reward. The Apostle seems to me to have regarded the general End proposed in this Ordinance, which is the publick Peace, wherein is comprehended that also of every particular Person. And certainly this Advantage we<106> commonly receive from the sovereign Powers: For no Body ever wished ill to himself, and the Happiness of the Prince depends on the Happiness of his Subjects, sint quibus imperes, leave some to reign over, said one to Sylla. The Hebrews have a Proverb,If there were no sovereign Power, we should swallow up one another alive. To which agrees that of St. Chrysostom, Take away the Governors of States, Men would be more savage than Brutes, not only biting but devouring one another.
If the supreme Magistrate sometimes, through Fear, Anger, or some other Passion deviates from the straight Path, that leads to publick Tranquillity; it ought to be considered as a rare Case, and an Evil which, as Tacitus observes, is made up by good Offices. It is enough for the Laws to regard that which generally happens, asTheophrastus said, and to which we may apply that ofCato, No Law can be convenient for every particular Person, it is enough, if it be beneficial in general, and to the greater Part. But as to such Cases, which rarely happen, they ought to be submitted to the general Rules. For though the Reason of the Law does not take Place in such or such a particular Case, yet it subsists in its Generality, to which particular Cases ought to make no Exception; because that is much better, than to live without Law; or to allow every Man to be a Law to himself. Seneca speaks pertinently to this Purpose.It is better not to admit of an Excuse, though just, from a few, than that all should be allowed to make what Excuse they please.
Here we shall cite that remarkable Saying of Pericles in Thucydides.I esteem it better, even for private Men, that the State in general flourish, though they themselves do not thrive in it, than that they should flourish in their Affairs, and the Publick suffer. For let a Man’s private Affairs be never so prosperous, yet if his Country be lost, he must perish with it. On the contrary, if the State flourish, a Man in bad Circumstances may mend his Condition. Since then the State can relieve private Persons in their Misfortunes, but private Persons cannot do the same Thing in regard to the State; ought not every one to concur in defending it, instead of acting like you, who, being overwhelmed with your domestick Losses, abandon the Care of the publick Safety? Which Livy speaks in short,If the Commonwealth flourish, it secures every Man’s private Estate, but by betraying the Publick, you will never preserve your own. And Plato observed, τὸ μὲν γὰρ κοινὸν ξυνδι, &c. That which is the Bond of States, is the Care of the publick Good, and that which destroys them is the minding only one’s private Advantage; therefore it concerns both the State and private Men, to prefer the Interest of the publick to that of particular Persons. And Xenophon, ὅστις ἐν πολέμῳ, &c. He that<107> mutinies against his General in War, offends against his own Safety. And Jamblichus,private Interest is inseparable from the Publick, each particular Advantage is included in the Publick; for as in the natural Body, so in the political, the Preservation of the Parts depends on that of the Whole.
Now, in publick Matters there is nothing more considerable than the Order of Government I have spoken of, which is incompatible with the Right of Resistance left to private Persons. I shall explain this out of an excellent Place in Dion Cassius, οὐ μέν τοι καὶ ἐγὼ, &c.I think it neither decent for a Prince to submit to his Subjects, nor can one ever be in Safety, if those who ought to obey pretend to command. Do but consider what a strange Disorder it would cause in a Family, if Children should be allowed to despise their Parents, and what in Schools, if Scholars should slight their Masters; what Health for Patients that will not be ruled by their Physicians? Or what Security for those in a Ship, if the Sailors will not follow the Orders of the Pilot? For Nature has made it necessary, and useful to Mankind, that some should command, and some should obey.
1 Ep ii. 17, 18, 19, 20.To the Testimony of St. Paul, we shall add that of St. Peter, whose Words are these, Honour the King; Servants be subject to your Masters, with all Fear, not only to the Good and Gentle, but also to the Froward; for this is thank-worthy if a Man for Conscience toward GOD endure Grief, suffering wrongfully. For what Glory is it, if when ye be buffeted for your Faults, ye shall take it patiently? But if when ye do well, and suffer for it, ye take it patiently, this isacceptable with GOD. He immediately confirms this by the Example of CHRIST. And Clement in his Constitutions, expresses the same Sense in these Words, ὁ δου̑λος, &c. Let the Servant love his Master with the Fear of God, though he be wicked and unjust. Here we may observe two Things. First, that what is said of Submission to Masters, however froward they are, ought to be applied to Kings. For that which follows, being built upon the same Foundation, respects the Duty of Subjects as well as of Servants; and secondly, that the Submission, to which we are bound, implies an Obligation to bear Injuries with Patience; as it is usually said of Parents,Love your Parent if he is just; if not, bear with him. A young Man of Eretria, who had been long a Disciple to Zeno, being asked, what he had learnt, answered, ὀργὴν πατρὸς ϕέρειν, To bear my Father’s Anger. And Justin says of Lysimachus, He suffered the Cruelty of his King as patiently, as if he had been his Father. And in Livy, As the harsh Temper of our Parents, so also that of our Country, is to be softened by patient Suffering. So in Tacitus,The Humours of Kings must be born. And in another Place, Good Emperors are to be desired, but whatsoever they<108> are, they must be obeyed. Claudian commends the Persians, who obeyed their Kings, though cruel.
V.And by the Practice of the primitive Christians.V. Neither did the Practice of the primitive Christians, the best Interpreter of the Law, deviate from this Law of God. For though the Roman Emperors were sometimes the very worst of Men, and there wanted not those, who under the Pretence of serving the State opposed them, yet the Christians could never be persuaded to join with them. In the Constitutions of Clement we have βασιλεία οὐ θεμιτὸν ἐπανιστασθαι, It is not lawful to resist the King’s Authority. And Tertullian says in his Apology, Whence are your Cassius’s, your Niger’s, and your Albinus’s? Whence those who besiege Caesar between the two Laurels? Whence those who wrestle with him only for an Opportunity of throttling him? Whence those who force the Palace Sword in Hand, Fellows bolder than so many Sigerius’s (so the Manuscript in the Hands of those accomplished worthy Gentlemen Mess. du Puys expressly has it) and Parthenius’s? If I am not mistaken from among the Romans, that is, from among those who are not Christians. What he says of the Wrestling relates to Commodus’s Murder committed by a Wrestler, by the Order of Aelius Laetus, Captain of the Emperor’s Lifeguard; but there never was a wickeder Wretch living than that Emperor. Parthenius, whose Fact also Tertullian mentions here with Horror, was he who killed that worst of Emperors Domitian. To these he compares Plautian the Captain of the Guard, who would have slain the bloody Emperor Septimius Severus in his own Palace. Piscennius Niger in Syria, and Clodius Albinus in Gaul and Britain, took up Arms against this Septimius Severus, as if out of Zeal and Affection to the Commonwealth. But their Enterprize was also disappointed by the Christians, as Tertullian glories in his Treatise to Scapula: We are reproached with Treason; but never could Christians be found to act the Albinians, or Nigrians, or Cassians. Those Cassians were they who followed Avidius Cassius, a Man of great Note, who took up Arms in Syria, under a Pretence of restoring the Commonwealth, which the Negligence of M. Antonin was like to ruin.
Though St. Ambrose was persuaded that Valentinian the second did him an Injury, and not only to himself, but to his Flock, and even to CHRIST, yet he would not take the Advantage of the People’s Inclination to resist; but said, <109> Whatever Violence is offered me, I cannot resist; I can grieve, weep, and mourn. Against Arms, Soldiers and Goths, I have no other Arms but Tears, for these are the Defences of a Priest, in any other Manner I neither ought nor can resist. And presently after, I was commanded to appease the Tumult, I answered, it was in my Power not to stir them up, but that it was only in the Power of GOD to quiet them.Theodoret. Hist. Eccles. Lib. V. Cap. XIV. The same St. Ambrose would not make use of the Forces of Maximus against the same Emperor, though an Arian, and a great Persecutor of the Church. Thus Gre-<110>gory Nazianzen relates, that Julian the Apostate was diverted from bloody Designs (against the Church) by the Tears of the Christians, adding,this was the only Remedy against Persecution. Yet his Army was almost all Christians. Besides, as the same Nazianzen observes, that Cruelty of Julian was not only full of Injustice towards the Christians, but had exposed the State to the utmost Danger: To which we shall add that of St. Augustine, where he expounds those Words of St. Paul to the Romans, It is necessary for the Good of this Life, that we submit to the Sovereign Powers, and not resist if they should take any Thing from us.
VI.Inferior Magistrates to make War against the Sovereign unlawful, proved by Reason and Scripture.VI. There are some Learned Men in this Age, who, suiting themselves to Times, and Places, first (as I think) persuade themselves, and then others, that what we have already said (in Relation to Non-resistance) takes Place only in Regard to private Men, but not in Regard to inferior Magistrates, who they think have Right to resist the Injuries of their Sovereign; nay, and that they fail in their Duty when they do not; which Opinion is not to be admitted. For as in Logick there is a middle Species, which with Respect to the Genus above it is still a Species, but in Respect of the Species below it,Genus speciale as Seneca calls it, Epist. LVIII. a Genus: So those Magistrates, in Respect to their Inferiors, are publick Persons, but in Respect to their Superiors, are but private Persons. All the civil Power, that such Magistrates have, is so subject to the Sovereign,Averroes, V. Metaphys. com. 6. that whatever they do against his Will is done without Authority, and consequently ought to be considered only as a private Act. In a Word, according to the Maxim of Philosophers, which may be here applied, all Order necessarily relates to something that is First; and they, who think otherwise, seem to me to introduce such a State of Things as the Ancients fabled to have been in Heaven before there was a sovereign Majesty, when the lesser Gods did not submit to Jupiter. That Order which I have spoken of, and ὑπαλληλισμὸς, Subordination, is not only apprehended by common Sense, as appears by the excellent Sayings which we find on that Subject in Authors both Pagan and Christian; but it is also supported by divine Authority;1 Peter ii. 13. for St. Peter bids us be subject to the King, otherwise than to Magistrates; to the King as supreme, that is without Exception, but only to those Things which GOD directly commands, who approves, and not forbids, our bearing of an Injury.Rom. xiii. 1. But to Magistrates as deputed by the King, that is deriving their Authority from him. And when St. Paul would have every Soul be subject to the higher Powers, he also included inferior Magistrates. Neither do we find among the Hebrews, where there were so many Kings regardless of all Right both divine and human, that any inferior Magistrates, among whom there were many pious and valiant Persons, ever assumed the Liberty to resist their Kings by Force, unless they had a special Commission from GOD,<111> who has a sovereign Power over Kings themselves; on the contrary,1 Sam. xv. 30. what the Duty of great Men is to their King, Samuel instructs us, who before the Elders and the People gave to Saul, though now governing wickedly, the usual Reverence.
And so likewise the State of the publick Divine Worship always depended upon the Will of the King, and theSanhedrim: For whereas, after the King, the Magistrates, together with the People, promised they would be faithful to GOD; that ought to be understood, so far as it should be in the Power of every one of them. Nay, the very Images of their false Gods, which were publickly set up, were never thrown down, as we read, but at the Command of the People, when the Government was Republican, or of the King, when it was monarchical. And if Force was sometimes made use of against the Kings, it is related barely as a Fact that Providence had permitted, and without any Mark of Approbation.
Those of the contrary Opinion often urge that Saying of the Emperor Trajan, who delivering a Sword to a Captain of the Praetorian Band, said,Use this for me, if I govern well; and against me, if ill. We must know, that Trajan (as appears by Pliny’s Panegy rick) took particular Care to shew no Marks of Royalty, and to act merely as Head of the State, consequently subject to the Judgment of the Senate and People, whose Decrees the Captain of the Guard was to execute, even against the Prince himself: The like we read of M. Antoninus, who would not touch the public Treasure without consulting the Senate.
VII.What is to be done in case of extreme and inevitable Necessity.VII. A more difficult Question is, whether the Law of Non-resistance obliges us in the most extreme and inevitable Danger. For some of the Laws of GOD, however general they be, seem to admit of tacit Exceptions in Cases of extreme Necessity; for so it was determined by the Jewish Doctors concerning the Law of their Sabbath in the Time of the Maccabees; whence arose the famous Saying,The Danger of Life drives away the Sabbath. And the Jew in Synesius gives this Reason for the Breach of the Law of the Sabbath,1 Maccab. ix. 10, 43, 44. σαϕω̂ς ὑπὲρ ψυχη̑ς θέομεν, we were in manifest Danger of our Lives, which Exception is approved of by CHRIST himself; as also in that Law of not eating the Shew Bread.Mat. xii. 4. And the Hebrew Rabbins, following an old Tradition, rightly add the same Exception to their Laws concerning forbidden Meats, and some others of the like Kind. Not that GOD has not a full Right to oblige us to do or not do some Things, even though we should be thereby exposed to certain Death; but that some of his Laws are of such a Nature as cannot be easily believed to have been given in so rigid a Manner, which ought still more to be presumed as to human Laws.
I do not deny, but that some Acts of Virtue may by a human Law be commanded, though under the evident Hazard of Death. As for a Soldier not to quit his Post; but it is not easily to be imagined, that such was the Intention of the<112> Legislator; and it is very probable that Men have not received so extensive a Power over themselves or others, except in Cases where extreme Necessity requires it. For all human Laws are, and ought to be so enacted, as that there should be some Allowance for human Frailty. But this Law (of which we now treat) seems to depend upon the Intention of those who first entered into civil Society, from whom the Power of Sovereigns is originally derived. Suppose then they had been asked, Whether they pretended to impose on all Citizens the hard Necessity of dying, rather than to take up Arms in any Case, to defend themselves against the higher Powers; I do not know, whether they would have answered in the affirmative: It may be presumed, on the contrary, they would have declared that one ought not to bear with every Thing, unless the Resistance would infallibly occasion great Disturbance in the State, or prove the Destruction of many Innocents. For what Charity recommends in such a Case to be done, may, I doubt not, be prescribed by a human Law.
Some may say, that this rigorous Obligation to suffer Death, rather than at any Time to resist an Injury offered by the Civil Powers, is not imposed by any human but the Divine Law. But we must observe, that Men did not at first unite themselves in Civil Society by any special Command from GOD, but of their own free Will, out of a Sense of the Inability of separate Families to repel Violence;1 Pet. ii. 13. whence the Civil Power is derived,Rom. xiii. 1. which therefore St. Peter calls a human Ordinance, tho’ elsewhere it is called a Divine Ordinance, because GOD approved of this wholesome Institution of Men. But GOD, in approving a human Law, is thought to approve of it as human, and afterahuman Manner.Adversus Monarchomachos, I. 3. c. 8. & I. 6. c. 23. & 24.Barclay, the stoutest Assertor of Regal Power, does thus far allow that the People, or a considerable Part of them, have a Right to defend them selves against their King, when he becomes excessively cruel; tho’ otherwise, that Author considers the King as above the whole Body of the People. I can easily apprehend that, the more considerable a Thing is which runs the Risk of perishing, the more Equity requires that the Words of the Law be restrained, to authorise the Care of preserving such a Thing. But I dare not condemn indifferently all private Persons, or a small Part of the People, who finding themselves reduced to the last Extremity, have made use of the only Remedy left them, in such a Manner as they have not neglected in the mean Time to take care, as far as they were able, of the publick Good.1 Sam. xxii. 2. — xxiii. 13. For David, who (bating some particular Facts) was so famed for living exactly according to Law, did yet entertain about him, first four hundred, and afterwards more, armed Men; and to what End did he so, unless for the Defence of his own Person, in Case he should be attacked? But we must also observe, that David did not do this till he was assured by Jonathan, and many other infallible Proofs, that Saul really sought his Life: And moreover, he neither seized on any City, nor sought Occasions of Fighting, but lurked about, sometimes in by-Places, sometimes among foreign Nations; with this Resolution, to avoid all Occasions of injuring his own Countrymen.
The Example of the Maccabees might likewise be alledged here. For ’tis in vain that some pretend to justify their Enterprize, upon the Account that Antiochus was only an Usurper. In all History, we do not find that the Maccabees, and those of their Party, give Antiochus any other Title than that of King: And indeed they could not call him otherwise, since the Jews had for a long Time acknowledged the Kings of Macedonia for their Sovereigns, to whose Right Antiochus had succeeded. It is trueDeut. xvii. 15. the Law forbad a Stranger to be set over them; but that ought to be understood of a voluntary Election, and not of what the People might be forced to do through the Necessity of the Times. As to what others say, that<113> the Maccabees acted by Vertue of the Right which their Nation had to demand Liberty, or the Power of governing themselves, this Reason has no more Weight in it than the other. For the Jews having been formerly conquered by Nebuchadnezzar, were fallen by the same Right of War, under the Dominion of theMedes and Persians, Successors of the Chaldeans; and the whole Empire of the Medes and Persians had passed to the Macedonians:See Justin. I. 36. c. 3. Hence Tacitus calls the Jews,The most contemptible People that were conquered, whilst the East was under the Dominion of the Assyrians, Medes, and Persians. Neither did they obtain any Condition from Alexander, or his Successors, but without any Terms submitted to them, as they had before done to Darius. And tho’ they were sometimes allowed to use publickly their own Rites, and their own Laws, this was only a precarious Right, granted by the Favour of the reigning Princes; and not by Vertue of a fundamental Law of the Government. There is nothing then that could justify the Maccabees (in taking up Arms) but extreme and inevitable Danger, which might do it, so long as they kept within the Bounds of Self-Preservation, and like David, retired to secret Places for Security, without using their Arms unless first assaulted.
There is still another Caution to be observed here, which is, that even in such Extremity the Person of the Sovereign must be spared. Those who think that David spared Saul, not to discharge an indispensible Duty, but out of Generosity, founded on the Desire of arising to an extraordinary Degree of Perfection; those, I say, are certainly mistaken: For David himself openly declared, that no<114> Man could be innocent,1 Sam. xxvi. 9. that stretched forth his Hand against the LORD’s Anointed. For he knew it was written in the Law, Thou shalt not revile the Gods, that is,Ex. xxii. 28. the Supreme Judges. Thou shalt not curse theRulers of thy People. In which Law special Mention being made of the supreme Powers, it plainly shews, that some special Duty is required. Wherefore OptatusLib. 2.Milevitanus, speaking of this Fact of David, says, GOD’s special Command, coming fresh into his Memory, restrained him. And makes David say, I was willing to overcome mine Enemy, but I chose rather to keep the Commands of GOD.
To slander any private Person is not lawful, therefore of a King we must not speak Evil, tho’ it be true. Because, as the Writer of the Problems (fathered upon Aristotle) says, ὁ κακηγορω̂ν, &c.He that speaks Evil of the Magistrate, offends against the whole Body of the People. But if we must not speak Evil of<115> him, much less must we use Violence against him. David was struck with Remorse,1 Sam. xxiv. 6. for having cut offa Piece of Saul’s Garment: So much did he regard the Person of a King as sacred! And indeed, the Sovereign Power being necessarily exposed to the Hatred of many, he that is invested with it, ought in a particular Manner to be rendered venerable, and secured from every Sort of Insult. The Romans even secured the Authority of the Tribunes of the People, declaring their Personsinviolable. Among the Sayings of the Essenes, this was one,Kings are to be accounted sacred. And we find that famous Passage in Homer,
- Περὶ γὰρ δίε ποιμένι λαω̂ν,
- Μὴ τι πάθοι.
He was afraid lest any sad Accident should happen tothe Leader of the People. It is not without Reason, that Those Nations, who live under a monarchical Government, reverence the Name of Kings, as if they were Gods; asQuintus Curtius observes. So Artaban the Persian,Among many excellent Laws we have, this seems to be the best, which commands us to honour and adore our Kings, as the Image of GOD, who preserves all Things. And in Plutarch, of Agis, οὐ θεμιτὸν οὐδὲ νενομεσμένον βασιλέως, &c. It is not permitted by the Laws of GOD or Man, to offer Violence to the Person of a King.
But here is a more difficult Question, Whether what was lawful for David and the Maccabees, may be lawful for us Christians, whose Lord and Master, CHRIST, so often bidding us take up our Cross, seems to require from us a<116> greater Measure of Patience? Indeed when the higher Powers threaten us with Death for our Religion, CHRIST grants Leave to flee, especially to those whom the necessary Duties of their Calling tie to no particular Place; but he allows nothing beyond Flight.1 Ep. ii. 21, &c. And St. Peter tells us, That CHRIST in Suffering left us an Example, that we should followhis Steps, who did no Sin, neither was Guile found in his Mouth; who being reviled, reviled not again; when he suffered, he threatned not,1 Ep. iv. 12, &c.but committed himself to him that judge the righteously. Nay he bids us Christians give Thanks to GOD, and rejoice, when we suffer Persecution for our Religion. And it was this Constancy in Suffering, that chiefly contributed to the Establishment of Christianity, as appears from History.
Wherefore, I think that the primitive Christians, who, living near the Times of the Apostles, and of apostolical Men, understood and practised their Precepts, bet-<117>ter than the Christians of following Ages, are very much injured by those who suppose that they rather wanted Power than Will to defend themselves, in imminent Danger of Death. Indeed Tertullian would have been very imprudent, nay, impudent, to have so confidently affirmed a Falshood to the Emperors, who couldnot be ignorant of it, writing thus,If we had a Mind to deal with you as declared Enemies, and not only as secret Enemies, could we want Forces and Troops sufficient for such an Enterprize? The Moors, the Marcomanni, the Parthians themselves, or such other Nations, which, however great they be, are yet confined within a certain Extent of Country, and within the Bounds of their own Dominions; Do those Nations, I say, form a more numerous Multitude than we, who are spread over the whole World? We are but of Yesterday, in a Manner, and yet we already fill all Places in your Dominions, your Cities, Islands, Provinces, Castles, Towns; your very Camps, Tribes, Wards, Palace, Senate, Courts of Judicature, publick Places; and in a Word, we only leave you the Temples of your Gods. Disposed as we are to suffer ourselves so willingly to be butchered, what Wars should we not have been in a Condition to undertake, and with what Ardour should we not have engaged in them, however inferior we might have been in Forces, had we not been taught by our Religion, that it is better to be killed than to kill? Also Cyprian follows his Master, and thus declares,Hence it is, that none of us, when apprehended, makes Resistance, or defends himself against your unjust Violence; tho’ our People are extremely numerous. The certain Hope of a future Vengeance produces in us this Patience. Thus the Innocent yield to the Guilty. And Lactantius,For we confide in the Majesty of GOD, who is able as well to revenge the Contempt of himself, as the Hardships and Injuries done to his Servants. Wherefore we suffer inexpressible Miseries, and do not repine, but refer the avenging of them to the Almighty. St. Augustin had precisely in View the Case under Consideration, when he said,A good Man should take Care above all Things not to engage in War, but when he may do it lawfully; for that is not always lawful. And again,When Princes err, they presently make Laws to defend their Errors, to the Prejudice of Truth, by which the Righteous are tried, and crowned (with Martyrdom). And again,So are Sovereigns to be endured by their Subjects, and Masters by their Servants, as that by suffering these temporal Things with Patience and Resignation, they may have just Reason to hope for Rewards that are eternal. Which he further illustrates by the Example of the primitive Christians.Neither did the City of CHRIST, (tho’ it was then wandering and vagabond upon Earth, and had vast Numbers of People to assist it against its wicked Persecutors) fight for temporal Salvation, but chose rather to make no Resistance, that it might obtain an eternal one. They were bound, imprisoned, beaten, tormented, burnt, torn in Pieces, massacred, and yet they multiplied more and more. To fight for Safety, was, in their Opinion, nothing else than to despise this Life, in order to acquire another that is more excellent.<118>
Nor are the Observations of St. Cyril less admirable, upon that Passage in St. John of St. Peter’s Sword. The Thebaean Legion, as we read in the Acts of their Martyrdom, consisted of 6666 Soldiers, and all Christians. Who,Martignac. St. Maurice. when the Emperor Maximianus would have compelled the whole Army to sacrifice to false Gods, at Octodurum, first removed to Agaunum, and when the Emperor had sent one thither, to command them to come and sacrifice, and they had refused to do it; he sent Officers to put every tenth Man to Death, who easily executed his Order, no Man offering to resist.
Mauritius, Commander of that Legion, (from whom the Town of Agaunum in Switzerland, was afterwards called St. Maurice) as Eucherius, Bishop of Lyons, records, thus spake to his Soldiers at that Time. How did I fear, lest any of you, under the Shew of Self-Defence (as it is easy for armed Men to do) should have endeavoured by Force to prevent their blessed Martyrdom? I was preparing, in order to divert you from that Design, to set before you the Example of JESUS CHRIST, who expressly commanded the Apostle to put the Sword into the Scabbard, which he had drawn in his Master’s own Defence; teaching us that all the Force of Arms is not able to shake Christian Constancy. This, I say, is what I intended to represent to you, that none of you, by employing a mortal Arm, should oppose the Glory of an immortal Action; and that, on the contrary, every one might finish with Stedfastness the Work he hath so happily begun. When, this Execution being over, the Emperor commanded the same Thing to the Survivors, as he had before done to the others, they all unanimously answered, Indeed, Caesar, we are your Soldiers, and we took up Arms in Defence of the Roman Empire, never has there been seen amongst us either a Deserter, or Traitor, or Coward: And we should willingly obey the Orders which you give us to Day, if the Christian Religion, in which we have been instructed, did not forbid us to worship Demons, or approach Altars always polluted with innocent Blood. We know you designed either to make Christians commit Sacrilege, or to frighten us, by the Example of those that have been decimated. But you need not search far off for People that do not conceal themselves: We are all Christians, and we declare it to you. Our Bodies are in your Power, but you cannot make yourself Master of our Souls, which are always turned towards CHRIST their Creator.
Then Exuperius, Standard-Bearer to that Legion, thus addressed them. You see me (brave fellow Soldiers) carry the Standards of secular Wars. But it is not to that Sort of War that I now call you; you have other Battles to fight: There are other Arms you ought to make Use of, to open the Way to the Kingdom of Heaven. And then he sent this Message to the Emperor, It is not Despair, the most powerful Resource in Dangers, that has armed us, O Caesar, against you. We have Arms in our Hands,but we do not resist, because we rather chuse to die, than overcome, and to fall Innocents, rather than to live Criminals. And again, We throw away our Weapons, your Executioner shall find our Hands without Defence, but our Hearts armed with the Buckler of Christian Faith.<119>
After this followed the Slaughter of those Soldiers who suffered Death without Resistance, of which Eucherius gives this Account.The Greatness of their Number did not secure them from Sufferings, though innocent; whereas even Criminals come off with Impunity, when numerous. We have the same Account of it in the old Martyrology. They were massacred on every Side, without saying a Word. They threw down their Arms, and presented their Throats and naked Breasts to their Persecutors. They took no Advantage of their great Number, nor made Use of the Arms they held in their Hands, to defend the Justice of their Cause at the Point of the Sword; but wholly taken up with this Thought, that they confessed the Name of him, who was led dumb to the Slaughter, and as a Lamb did not open his Mouth, they also like the innocent Flock of CHRIST’s Sheep, suffered themselves to be torn in Pieces by furious Wolves.
And when the Emperor Valens wickedly and cruelly persecuted those Christians who according to the Holy Scriptures, and the Traditions of the Fathers professed CHRIST to be ὁμοούσιον, of the same Substance, (with GOD his Father) though they were very numerous, they never defended themselves by Arms.1 Pet. ii. 21. Certainly where Patience is recommended to us in the new Testament, there we find CHRIST’s own Example proposed to us (as we have just now read it was to the Thebaean Legion) for our Imitation; whose Patience reached even unto Death.Mat. x. 39. And he himself declares, that whoever loseth his Life in that Manner truly finds it. Thus having proved, that those who are invested with the sovereign Power,Luke xvii. 33. cannot lawfully be resisted; we must now admonish the Reader of some Things, lest he should think those Men transgress this Law, who really do not.
VIII.A free People may make War against their Prince.VIII. First therefore, Those Princes who depend on the People, whether they at first were established on that Foot, or their Authority was thus rendered subordinate by a posterior Agreement, as in Sparta, if they offend against the Laws, and the State, may not only be resisted by Force; but if it be necessary, may be punished by Death, as it befel Pausanias the Spartan King. Such was the Condition of the most ancient Kings of divers Countries in Italy; so that it is no Wonder, if Virgil having related the horrible Cruelties of Mezentius, adds,
All Etruria, justly incensed and rising up in Arms against that King, required him to be immediately put to death.
IX.And against a King that has abdicated his Kingdom.IX. Secondly, If a King, or any other Prince, has abdicated his Government, or manifestly abandoned it; after that Time, we may do the same to him, as to any private Man; but Negligence in discharging the Functions of Government is not to be taken for a real Abdication.<120>
X.Or against a King that would alienate his Kingdom; but only to prevent the Delivery of it.X. Thirdly, If a King alienates his Kingdom; or renders it dependent on any other Power, he forfeits the Crown, according to Barclay. For my Part, I dare not pronounce peremptorily in that Manner. For, when the Question is concerning a Kingdom, either elective or successive, but conferred by a free Consent of the People, such an Act (of Alienation) is in itself void, and whatsoever is in itself void, can have no effect of a Right.Lib III. Ch. XVI. Advers. Monarcho-mach. Upon this Principle Civilians maintain, that an Usufructuary to whom we have compared such Princes, if he yields up his Right to any other than the Proprietor himself, does an Act that is of no Force: And this Opinion seems to me best founded. For, as to what is said, that the Fruits and Profits revert to the Landlord; it must be understood after such a Time when the Use and Profits were to terminate. Yet if a King should endeavour actually to deliver up his Kingdom, or to subject it to another, I doubt not, but in such a Case, he may be resisted. For Sovereignty (as I have said) is one Thing, and the Manner of holding it another. The People may hinder any Change in the latter; the Power of making such a Change not being comprehended in the Right of Sovereignty. To which we may fitly apply that of Seneca, in a Case not much differentThough our Father is to be obeyed in all Things, yet not in those, whereby he ceases to be a Father.
XI.Or against a King that behaves himself as an Enemy to the whole Body of the People.XI. Fourthly, The same Barclay observes, that if a King shall, like an Enemy, design the utter Destruction of the whole Body of his People, he loses his Kingdom; which I grant. For the Design of Governing, and the Design of destroy-<121>ing are inconsistent together. Wherefore he that declares himself an Enemy to the whole Nation, is presumed by that very Act to renounce the Government. But such an Excess of Fury can hardly, in my Opinion, enter the Thoughts of a King, that is in his right Senses, and that governs only one Nation. But if he govern several, it may so happen, that in Favour to one, he should endeavour to destroy another, in order to people the Lands of the former with Colonies sent from the latter.
XII.And against a King, who breaks the Condition, upon which he was admitted.XII. Fifthly, If a Kingdom be forfeited, either for Felony against him of whom it is a Fief, or by vertue of a Clause in the Act whereby the Sovereignty had been conferred, and which declares that if the King does such or such a Thing, his Subjects shall from that Time be absolved from all Allegiance to him, then also a King becomes a private Person.
XIII.And against a King, who having but one Part of the Sovereign Power invades the other.XIII. Sixthly, If a King should have but one Part of the sovereign Power, and the Senate or People the other, if such a King shall invade that Part which is not his own, he may justly be resisted, because he is not Sovereign in that Respect. Which I believe may take Place, though in the Division of the Sovereignty, the Power of making War fell to the King, for that is to be understood of a foreign War: Since whoever has a Share of the Sovereignty must have at the same Time a Right to defend it. And when the Case is so, the King may, by the Right of War, lose even his Part of the Sovereignty.
XIV.And against him, who grants such a Licence in certain Cases.XIV. Seventhly, If in the conferring of the Crown, it be expressly stipulated,that in some certain Cases the King may be resisted; even though that Clause does not imply any Division of the Sovereignty, yet certainly some Part of natural Liberty is reserved to the People, and exempted from the Power of the King. Now every one in alienating his Rights in Favour of another may do it under what Restriction he pleases.
XV.An Usurper, how far to be obeyed.XV. We have treated of him, who has now, or has had a Right to govern; it now remains, that we say something of him that usurps the Government; not after he has either by long Possession, or Agreement obtained a Right to it, but so long as the Cause of his unjust Possession continues. The Acts of Sovereignty exercised by such an Usurper may have an obligatory Force, not by vertue of his Right, (for he has none) but because it is very probable that the lawful Sovereign, whether it be the People themselves, or a King, or a Senate, chuses rather that the Usurper should be obeyed during that Time, than that the Exercise of the Laws and Justice<122> should be interrupted, and the State thereby exposed to all the Disorders of Anarchy. Cicero condemns Sylla’s Laws, as cruel upon the Children of the Outlaws, making them incapable of Honours; yet he thought they ought to be observed, affirming (as Quintilian tells us) that this was so necessary, considering the Circumstances of the State at that Time, that if they were abrogated it could not subsist. Florus also says of the Acts of the same Sylla: Lepidus endeavoured to repeal the Acts of that great Man, and not without Reason, if he could have done it, without great Hurt to the Commonwealth. And again, It was necessary for the State, then sick and wounded, to rest at any Rate, lest her Wounds should be ripped open in going about to cure it.
But in those Things, which are not so necessary for the public Good, and which contribute towards establishing the Usurper in his unjust Possession, if by disobeying we run no great Hazard, we must not obey. But the Question is, whether it be lawful to depose such an Usurper, or even to kill him.
XVI.An Usurper may be killed during the War, if no Contract be made with him.XVI. And First, If he has seized on the Government in Consequence of an unjust War, and which had not all the Qualities required by the Law of Nations, and if no Treaty has been made afterwards, or any Oath of Fidelity taken to him; in a word, if he has no other Title to Possession, than mere Force, the Right of War seems to continue intire, and consequently what may lawfully be done against an Enemy, may be lawfully attempted against him, whom any private Man may kill. Against Traitors and publick Enemies every private Man (saysTertullian) is a Soldier. So against Deserters, any Man is allowed by the Roman Law to take Revenge, in the Name of the Publick, for the common Safety.
XVII.By vertue of an antecedent Law.XVII. I think, withPlutarch, the same may be said of him, who has usurped the sovereign Authority in a State where there was already a Law, impowering any Person to kill him, who should do such or such a Thing, visible and manifestly designed: as for Example, if a private Man should go with a Guard about<123> him, should assault a Fort, or kill a Citizen uncondemned, or illegally condemned, or presume to create a Magistrate without being elected by legal Votes. Many such Laws were extant in the States of Greece, with whom it was reputed lawful to kill such Tyrants. Such wasSolon’s Law at Athens, after the Return from the Piraeus, against such as should abolish popular Government, or after its being abolished, should exercise any publick Office. And such was theValerian Law at Rome, if any one bore an Office without the Order of the People; and the Consular Law, after the Decemviral Government, that no Man should create a Magistrate without an Appeal; and he that did it might lawfully be killed.
XVIII.By his Commission who has a Right to the Crown.XVIII. Nor will it be less lawful to kill an Usurper if there be an express Order for it from the lawful Sovereign, whether King, People, or Senate. The Guardians of the Heir to the Crown have the same Right; and it was by Vertue of that Right, that Jehoiada drove Athalia from the Throne, which belonged to his Pupil Joash.
2 Chron. xxiii.XIX. 1. Unless in one of these Cases, I do not see how it can be lawful for any private Man, either to dethrone or kill an Usurper.XIX.Why an Usurper is not to be killed, but in these Cases. Because it may be, he that has the true Right, had rather leave the Usurper in quiet Possession, than engage his Country in dangerous Troubles and bloody Wars, which generally follow the expelling, or killing such Men, especially if they have a strong Faction at home, or powerful Friends abroad. It is at least uncertain, whether the King, or Senate, or People, to whom the sovereign Authority lawfully belongs, would be willing that Matters should be brought to that dangerous Extremity; and whilst their Mind on that Head is not known, all Force would be unjust. Favonius said χει̑ρον εἷναι μοναρχίας ἀνόμου πόλεμον ἐμϕύλιον, A Civil War is worse than the Necessity of submitting to an unlawful Government. And Cicero,Any Peace is preferable to a Civil War. And T. Quintius Flaminius, that it was better to leave Nabis Ty-<124>rant of Lacedemon, in Possession of the Government, than to ruin that City by endeavouring to restore its Liberty. To this Purpose was the Advice ofAristophanes, not to nourish a Lion in the City, but if he were nourished, to bear with him.
2. It is certainly a Matter of the utmost Consequence, to determine whether we ought to continue quiet, or endeavour at any Rate to recover Liberty; as Tacitus speaks. And Cicero calls it,A difficult Question in Politicks, whether when our Country is opprest with Tyranny, we may endeavour to rescue it, tho’ with the extreme Hazard of the State. Therefore private Persons must not setup for Judges in such an Affair, that concerns the whole Body of the People. So that there’s great Injustice in this Expression,
- Detrahimus dominos urbi servire paratae.
We take up Armsto free the City from Tyrants, to whose Yoke it is ready to submit. As there is also in that Answer of Sylla, who being asked, why he came into his Country so armed; replied, to deliver it from Tyrants.
3. Plato, and after him Cicero, lay down a more reasonable Maxim, Do not meddle, say they, in what concerns the Government, but so far as you can promise yourself the Approbation of your fellow Citizens; offer no Violence either to your Father or your Country. To the same Sense is that of Sallust:For tho’ you could govern your Country, or Parents, by Force, and correct Offences, yet it is an odious Enterprize, especially when all Changes of Government are generally attended with Slaughter, Banishments, and other Miseries of War. Not much different is that of Stallius in Plutarch, in the Life of Brutus,It is not fit for a prudent and wise Man to expose himself to Dangers and Troubles for Knaves and Fools. To which we may refer that of St. Ambrose,This also will gain you Reputation, to rescue the Poor out of the Hands of the Oppressor, to deliver the Condemned from Death, as far as you can do it without occasioning Troubles and Disorders, lest otherwise you should seem to have done it more out of Ostentation than Compassion, and so cause greater Wounds than those you propose to cure. Thomas Aquinas said,Secund. Secund. Quaest. 42. Art. 11. that one becomes sometimes guilty of Sedition, by attempting to destroy even a tyrannical Government.
4. The Fact of Ehud, against Eglon King of Moab, should not move us to the contrary Opinion; for the Scriptures positively tell us,Judges iii. 15. that GOD raised up Ehud to deliver Israel, that is, by giving him a special Commission for that Purpose. Neither is it certain,Neh. ix. 27. that this King of Moab had not by Agreement any Right of Sovereignty; for GOD did execute his Judgments even against other law-<125>ful Kings,2.Kings ix. by such Instruments as he himself pleased, as by Jehu against Jehoram.XX.In a controverted Right no private Man to be Judge.
XX. But especially in a controverted Right, no private Person ought to determine; for then he ought to side with Possessor. Thus CHRIST commanded us to pay Tribute to Caesar, because the Money had his Image or Superscription;Matt. xxii. 20. that is, because he was then in Possession of the Government; for the Power of Coining Money is a certain Sign of Possession.P. Bezar. Hist. Genuens. I. 18.
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Who may lawfully make War.
I.The Efficient Causes of War are those who engage in it, either upon their own Account, as Principals:I. As in other Things, so also in moral Actions, there are wont to be three Efficient Causes, Principals, Assistants, and Instruments. The principal Efficient Cause in a War, is generally the Person interested. In a private War a private Person; in a publick, the Civil Power, especially the Supreme. Whether a War may be justly undertaken in Behalf of another, not making War, shall be treated of in another Place. In the mean Time this is most certain, that every Man has a natural Right to revenge himself; and therefore were Hands given us.
II.Or upon the Account of others as Assistants:II. 1. But it is not only lawful for us, as far as we are able, to be beneficial to another, but also commendable. They who write of Offices, justly say, that there is nothing so useful to one Man, as another Man. Now there are several particular Ties, which engage Men mutually to assist each other.Diges. I. 18. Tit. 7. De Servis exportand. Leg. 7. De furtis, I. 7. & Cod. I. 10. tit. 1. De jure fisci. Cic. de Off. I. 11 ex Panaetio. Bartol. ad Dig. I. 1. tit. 1. De Just. & jure n. 7, 8. Kinsmen assemble to help one another: Neighbours and Fellow-Citizens call for the Aid one of the other, whence comes that Saying, Porro Quirites and Quiritari. Aristotle said it behoved every one to take up Arms, either to defend himself upon an Injury offered him, or for his Kinsmen, or Benefactors, or Allies. And Solon declared that a happy State, wherein every Man looked upon the Wrongs done to another, as done to himself.
2. But tho’ there were no other Obligations, it is enough that we are allied by common Humanity. For every Man ought to interest himself in what regards other Men. It was well said of Menander,Jas. ib. n. 29. Cast. ad Leg. I. § 4. ib. Bartol. ad Dig. 1. 49. Tit. 15. De Capt. &c. Leg. 24. n. 9. Innoc. ad C. sicut De Jure jur. & in C. olim De restit. Spol. n. 16. Panorm. n. 18. Sylv. in verbo Bellum, Q. 8.
- Injuriarum, si improbis, &c.
If every one would heartily engage in the Defence of those that are insulted; if Men would look on Injuries done to others, as done to themselves, and would strenuously assist one another; the Wicked would not become daily more bold and enterprising, but finding themselves watched on every Side, and suffering the just Punishment of their Crimes, few or none would run the Hazard of it. And this of Democritus,It is every Man’s Duty to the utmost of his Power, to assist the Injured, and by no Means to neglect it; for this is just and good: Which Lactantius thus expresses,GOD, who has denied Wisdom to all other Animals, has furnished them with such natural Arms, as may secure them from Insults and Dangers. But as he made Man naked and weak; chusing rather to adorn him with Wisdom, than endow him with Force;<126> he has given him, amongst other Things, a Sentiment of Affection, which prompts him to defend those of his own Species, to love them, to cherish them, to give to them, and receive from them Assistance against all Dangers whatsoever.
III.Or are Instrumental, as Servants and Subjects.III. By Instruments, we mean not Arms, nor such like Things; but certain Persons who act by their own Will, but yet so as that their Will depends on another, that sets it in Motion: Such is a Son to his Father, being part of himself naturally; or a Servant, as a Part of his Master by Law. For as a Part is not only a Part of the Whole, in the same Relation as a Whole is the whole of a Part,Cod. de Agricolis, 1. 11. & 1. 9. de Adulter. Sen. I. Con. 4. Arist. Eth. Ni. com. v. 10. p. 67. Ed. Paris. but that very Thing which it is, because of the Whole on which it depends: So the Thing possessed makes in some Manner part of the Possessor.Democritus said, Servants are to be used as Members of our Body, some to one Purpose, and some to another. As a Servant is in a Family, the same is a Subject in a State, and is therefore the Instrument of the Sovereign.
IV.By the Law of Nature none are excused from War.IV. Nor can we doubt, but all Subjects may naturally be employed in War, tho’ some special Laws may exempt some; as formerly Slaves among the Romans, and now every where theClergy; which Law not-withstanding withstanding, as all others of that Nature, must be understood with the Exception of Cases of extreme Necessity. Let this suffice to be spoken of Assistants and Subjects in general.Thomas, Sec. Sec. 40. Art. 2. Sylvest. de Bell. p. 3. For what Questions particularly relate to them, shall be handled in their proper Places.
The End of the first Book.
- Ἀισχρὸν τὰ μέν σε θει̑α πάντ’ ἐξειδέναι,
- Τά τ’ ὄντα, καὶ μὴ, τὰ δὲ δίκαια μὴ εἰδέναι.
- Helen. Ver. 928, 929.
- Non ex jure manu consertum, sed mage ferro
- Rem repetunt, regnumque petunt, vadunt solidâ vi.
- ——— ——— parcit
- Cognatis maculis similis fera ———
- Indica Tigris agit rabida cum Tigride pacem
- Perpetuam: saevis inter se convenit ursis.
- Sat. XVI. Ver. 159, & seq.
- ——— causamque tuentibus armis:
- Ut puto, vincemur. ———
- Καὶ νήσων δείραισι βαρὺν ζυγὸν ἔμβαλε Μίνως.
- King Minos has laid a heavy Yoke on the Necks of the Islands.
See St. Cyril’s VIth Book against the Emperor Julian.Grotius.
The Father from whom our Author has taken this Verse, quotes it as belonging to Callimachus; and gives it with some small Difference in the Words, though to the same Sense.
- Καὶ νήσων ἐπέτεινε βαρὺν ζυγὸν αὐχένι Μίνως.
- Pag. 191. Edit. Spanh.
- Frangit & adtollit vires in milite causa:
- Quae nisi justa subest, excutit arma pudor.
- Lib. IV. Eleg. VI. Ver. 51, 52. Edit. Brockhuis.
- Ὀυδεὶς στρατέυσας ἄδικα, σω̂ς ἠ̂λθεν πάλιν.
- Erechtei Fragm. Ver. 44. Edit. Barnes.
- Causa jubet melior superos sperare secundos.
- Our better Cause bids us hope for the Favour of the Gods.
- Lib. VII. Ver. 349.
But long before that Poet’s Time, Menander had said in general:
- Ὅταν τι πράττεις ὅσιον, ἀγαθὴν ἐλπίδα
- Πρόβαλλε σαυτῷ, του̑το γινώσκων, ὅτι
- Τόλμῃ δικαίᾳ καὶ Θεὸς συλλαμβάνει.
- When you engage in any good Action, entertain Hopes of Success; being assured that God favours a just Enterprize.
- Fragm. è Vulcanalib. p. 190. Edit. Cleric.
- Τα̂υτ’ ἀνθέκαστα, μα̂τερ, οὐχὶ περιπλοκὰς
- Λόγων ἀθροίσας ἔιπον, ἀλλὰ καὶ σοϕοι̑ς
- Καὶ τοι̑σι ϕαύλοις ἔνδιχ’, ὡς ἐμοὶ δοκει̑.
- Ver. 497, &c.
- ὐ βαρβάρων νόμοισιν οἰκου̑μεν πόλιν
“We do not govern our State by the Laws of Barbarians.” To which Andromache replies:
- Κᾀκεɩ̂ τά γ’ αἰσχρὰ κᾀνθάδ’ αἰσχύνην ϕέρει
- ——— Quo justior alter
- Nec pietate fuit, necbellomajor & armis.
- Ἐσθλὰ μὲν ’σθλῳ ἔδωκε, χέρεια δὲ χείρονι δόκεν.
- ——— Melius nos
- Zenonis praecepta monent: Nec enim omnia, quaedam
- Pro vitâ facienda putat ———
- Sat. XV. v. 106, &c.Grotius.
- Vitulusque inermi fronte prurit ad pugnam.
- Divitis hoc vitium est auri; nec bella fuerunt,
- Faginus adstabat quum scyphus ante dapes.
- Lib. I. Eleg. XI. v. 7, 8. Edit. Brockhuys.
- Γλακτοθάγων, ἀβίωντε, δικαιοτάτων ἀνθρωπών.
- Ἀνθρώπι, μοχθει̑τε τι χείρονα, καὶ διὰ κέρδος
- Ἄπληστον νεικω̂ν ἄρχετε καὶ πολέμον
- Diogen. Laert.B. X. §12. Edit. Amst.