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Hugo Grotius, Commentary on the Law of Prize and Booty [1603]

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Hugo Grotius, Commentary on the Law of Prize and Booty, ed. and with an Introduction by Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006). http://oll.libertyfund.org/titles/1718

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About this Title:

The history of Commentary on the Law of Prize and Booty is complex. When Grotius’s personal papers were auctioned in The Hague in 1864, scholars discovered that Mare Liberum was just one chapter in a manuscript of 163 folios, written in justification of the capture of the Portuguese merchantman Santa Catarina in the Strait of Singapore in February 1603. Robert Fruin persuaded the scholar H. G. Hamaker to transcribe and publish it in 1868. The Liberty Fund edition is based on the one prepared by Gwladys L. Williams and Walter H. Zeydel for the Carnegie Endowment for International Peace. It combines the original text and new material.

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The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

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This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i]
commentary on the law of prize and booty
Edition: current; Page: [ii]

NATURAL LAW AND ENLIGHTENMENT CLASSICS

Knud Haakonssen

General Editor

Edition: current; Page: [iii]
Hugo Grotius
Edition: current; Page: [iv] Edition: current; Page: [v] Edition: current; Page: [vi] Edition: current; Page: [vii]
The Spice Islands
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natural law and enlightenment classics
Commentary on the Law of Prize and Booty
Hugo Grotius
Edited and with an Introduction by Martine Julia van Ittersum
Major Legal and Political Works of Hugo Grotius
liberty fund
Indianapolis
Edition: current; Page: [x]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

Introduction and new editorial apparatus © 2006 by Liberty Fund, Inc.

The text of this edition is a reprint of the translation of De Jure Praedae by Gwladys L. Williams published in 1950 by the Carnegie Endowment for International Peace.

Frontispiece: Portrait of Hugo de Groot by Michiel van Mierevelt, 1608; oil on panel; collection of Historical Museum Rotterdam, on loan from the Van der Mandele Stichting. Reproduced by permission.

Map of the Far East on pp. iv–v and map of the Spice Islands on p. vii are reproduced from John Keay, The Honourable Company: A History of the East India Company, published by Harper Collins, London: 1990. Used by permission.

All rights reserved

Printed in the United States of America

10 09 08 07 06 c 5 4 3 2 1

10 09 08 07 06 p 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Grotius, Hugo, 1583–1645.

[De jure praedae commentarius. English]

Commentary on the law of prize and booty/Hugo Grotius; edited and with an introduction by Martine Julia van Ittersum.

p. cm.—(Natural law and enlightenment classics)

“Major legal and political works of Hugo Grotius.” Originally published: Oxford: Clarendon Press, 1950. (The classics of international law; no. 22)

(Publications of the Carnegie Endowment for International Peace)

Includes bibliographical references and index.

isbn-13: 978-0-86597-474-6 (alk. paper) isbn-10: 0-86597-474-8 (alk. paper)

isbn-13: 978-0-86597-475-3 (pbk.: alk. paper) isbn-10: 0-86597-475-6 (pbk.: alk. paper)

1. Prize law. 2. Booty (International law) 3. War, Maritime (International law)

I. van Ittersum, Martine Julia, 1968–. II. Title. III. Series.

kz2093.a3d413 2006

343.09′6—dc22 2005026380

liberty fund, inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [xi]

CONTENTS

  • Introduction xiii
  • Note on the Text xxiii
  • Acknowledgments xxix
  • commentary on the law of prize and booty 1
  • Appendixes to the Liberty Fund Edition
    • I. Documents Listed by Grotius at the End of the Manuscript 503
    • II. Archival Documents Relating to De Jure Praedae 528
    • Bibliography for Introduction and Notes 557
    • Suggestions for Further Reading 561
  • Indexes
  • Carnegie Edition Index of Authors Cited 565
  • Carnegie Edition Subject Index 587
Edition: current; Page: [xii] Edition: current; Page: [xiii]

INTRODUCTION

In the early morning hours of February 25, 1603, the Dutch captain Jacob van Heemskerck attacked the Portuguese merchantman Santa Catarina in the Strait of Singapore and obtained its peaceful surrender by nightfall. His prize was a rich one indeed. When the carrack and its cargo were auctioned in Amsterdam in the autumn of 1604, the gross proceeds amounted to more than three million Dutch guilders—approximately three hundred thousand pounds sterling.

Piracy was nothing new in Asian waters, of course. For centuries it had been the occupation of choice of the inhabitants of the Riau Archipelago, south of the Strait of Singapore. Nor was Van Heemskerck the first European interloper to seize a carrack in the Portuguese East Indies. The English captain Sir James Lancaster had taken a richly laden carrack in the Strait of Malacca in October 1602, for example. Yet Lancaster had possessed a privateering commission from the Lord High Admiral of England. Van Heemskerck, on the other hand, lacked any such authorization to prey on the Portuguese merchant marine. His voyage to the East Indies was supposed to be a peaceful trading venture. The directors of the United Amsterdam Company had explicitly prohibited the use of force, except in cases of self-defense or for the reparation of any damages sustained. None of this seemed applicable to Van Heemskerck’s premeditated seizure of the Santa Catarina. Even if the Dutch Admiralty Board had authorized him to attack Portuguese shipping, the validity of such a privateering commission would have been highly questionable in international law. The northern Netherlands were in a state of rebellion against their rightful overlord, the king of Spain and Portugal, and achieved de jure independence only in 1648. It was up to a young and ambitious Dutch lawyer, Hugo Grotius (1583–1645), to sort Edition: current; Page: [xiv] out these problems in his first major work on natural law and natural rights theory, De Jure Praedae Commentarius (Commentary on the Law of Prize and Booty).

Grotius did not produce any significant legal scholarship prior to the writing of De Jure Praedae. He had been trained in the liberal arts at the University of Leiden, where he was tutored in classical rhetoric, philology, and philosophy by the likes of Joseph Justus Scaliger, the greatest Protestant intellectual of his generation. Born into a patrician family in the town of Delft, Grotius could not pursue the studia humanitatis to the exclusion of more practical considerations. He obtained a doctorate in civil and canon law from the University of Orléans in 1598, which served as a stepping-stone to a brilliant political career in his country of birth. At the instigation of Johan van Oldenbarnevelt, the political leader of the Dutch Republic, Grotius was appointed public prosecutor of the province of Holland in 1607 and Pensionary of Rotterdam (“legal officer”) in 1613. In the latter capacity, he became a member of the provincial government, the Estates of Holland, and, in 1617, of the Estates General, the federal government of the Dutch Republic. However, a coup d’état by Maurice of Nassau, the Dutch Stadtholder (“governor”) and army leader, cut short Grotius’s meteoric rise in Dutch politics. He was put on trial for sedition in 1619 and banned to the castle of Loevestein. Two years of reflection and study at Loevestein turned Grotius into the finest legal scholar of his age. After escaping to Paris in a book trunk, he published major works like De Jure Belli ac Pacis (On the Law of War and Peace) in 1625 and Inleidinghe tot de Hollandsche Rechtsgeleerdheid (Introduction to Dutch Jurisprudence) in 1631. He died in the German port of Rostock at the age of sixty-two, an embittered exile and, like so many of his countrymen, the hapless victim of a shipwreck.

Grotius was still a relatively unknown solicitor in The Hague when his friend Jan ten Grootenhuys asked him in September 1604 to write an apology for the United Dutch East India Company, or VOC (Verenigde Oostindische Compagnie). The Holland and Zeeland overseas trading companies, including the United Amsterdam Company, had merged in March 1602 to form the VOC, which enjoyed a government-sanctioned monopoly of Dutch trade with the East Indies. Jan ten Grootenhuys Edition: current; Page: [xv] was the younger brother of VOC director Arent ten Grootenhuys and the liaison between Grotius and the Amsterdam merchants. Judging by Grootenhuys’s correspondence, a bulky volume like De Jure Praedae was not what the merchants had in mind when they commissioned a formal defense of Van Heemskerck’s seizure of the Santa Catarina. In his letter of October 15, 1604, Grootenhuys expressed the hope that “your apology, begun so felicitously, will be completed in a short while thanks to your attentiveness.”1 As far as the VOC directors were concerned, the verdict of the Amsterdam Admiralty Court of September 9, 1604, settled the legal aspects of the case quite satisfactorily. The Admiralty Court had confiscated the carrack and assigned it jointly to the VOC directors and Van Heemskerck and his crew. The directors realized, however, that it would take more than a verdict to win widespread support for their cause, both in domestic and international politics. It was imperative to placate Henry IV of France and James I of England, for example, who had recently made peace with the king of Spain and Portugal but who might be induced to back the Dutch diplomatically over their attacks on the Iberian colonial empire. In addition, Grotius should subtly remind the Estates General that it had virtually ordered the directors in November 1603 to go on the offensive against the Estado da India, and that it could not, therefore, disavow the company’s privateering campaign in good conscience. In sum, directors expected him to write a short, inflammatory pamphlet detailing the iniquity of the Portuguese in the East Indies, who deserved condign punishment for the ceaseless harassment and intimidation to which they had subjected Dutch merchants ever since Cornelis de Houtman’s voyage to Java in 1595–97. In order to supply Grotius with the right information, the directors put together a “book treating of the cruel, treasonous and hostile procedures of the Portuguese in the East Indies” and sent him various other materials that served to justify Van Heemskerck’s capture of the Santa Catarina.2

Edition: current; Page: [xvi]

Grotius took the directors’ documentation very seriously indeed and faithfully incorporated it in De Jure Praedae. The volume of “Indian reports” survives in his personal papers at the Dutch National Archives. It consists of twelve sworn statements of Dutch merchants and mariners, along with three diary extracts, which describe, in Grootenhuys’s words, “what the Portuguese have attempted against each of the voyages for the purpose of destroying our men.” At the behest of the Amsterdam VOC directors, these attestations and diary extracts were collected from the former employees of the regional overseas trading companies. There is every reason to believe that Grotius understood the “Indian reports” in the manner intended by Grootenhuys, as “countless proofs of [Portuguese] perfidy, tyranny and hostility.”3 They form the basis of the eleventh chapter of De Jure Praedae, a long narrative of the early Dutch voyages to the East Indies.

Grotius had no intention of producing an objective historical account. Instead, he was eager to comply with the criteria of forensic rhetoric as defined by the orators of ancient Rome. Like Cicero and Quintilian, he considered it sufficient to present some, but not all, of the facts of the case. Yet he carefully refrained from any kind of willful distortion of the evidence at hand. In lawyerlike fashion, he decided to furnish material proof of Portuguese culpability in order to win his case in the court of public opinion. Thus he indicated on the manuscript’s last folio that the integral text of eight documents should be appended in Latin translation:

  • the edict of the Estates General of April 2, 1599
  • the verdict of the Admiralty Court of September 9, 1604
  • the decree of the Estates of Holland of September 1, 1604
  • the letter of the bishop of Malacca to the king of Spain and Portugal of April 30, 1600
  • Van Heemskerck’s correspondence with the captain of the Santa Catarina, and with the town councillors and governor of Malacca in March 1604
Edition: current; Page: [xvii]

Grotius considered these documents conclusive evidence of (1) a systematic Portuguese campaign to oust Dutch merchants from the East Indies, (2) the Santa Catarina ’s capture in a just war, and (3) its rightful possession by the VOC. English translations are included in appendix I below.

His painstaking reconstruction of the early Dutch voyages to the East Indies notwithstanding, Grotius must soon have realized that he could never satisfactorily relate the “facts” of the case to its underlying legal principles in a pamphlet written on the spur of the moment. He probably finished chapter eleven of De Jure Praedae in the winter of 1604–5 and pointedly ignored Grootenhuys’s request for a quick publication. He opted instead for an in-depth study of the “universal law of war,” revolutionizing natural law and natural rights theories in the process. He admitted as much in his letter to the Heidelberg town councillor George Lingelsheim of November 1, 1606, wherein he announced the completion of his “little treatise on Indian affairs.” He confidently declared that, although “the universal law of war” was a tried and tested subject, he had thrown new light on it by means of “a fixed order of teaching, [viz.] the right proportion of divine and human law mixed together with the dictates of philosophy.”4

Grotius’s decision to investigate “the universal law of war” resulted in a significant expansion of the manuscript—it consists of 163 closely written folios—and a somewhat lopsided organization. The first half of the manuscript contains the introduction, followed by nine chapters of legal principles, the so-called Dogmatica de Jure Praedae. The second half consists of Grotius’s account of the early Dutch voyages to the East Indies in chapter eleven and a Ciceronian-style closing argument that covers chapters twelve through fifteen and presents VOC privateering as just, honorable, and beneficial.

The second chapter of De Jure Praedae, also known as the Prolegomena, contains an elaborate system of nine rules and thirteen laws (reproduced in appendix A), which Grotius deduced from an individual’s right to self-defense and the law of inoffensiveness. The sovereign, free Edition: current; Page: [xviii] individual was indeed the starting point of his political and legal philosophy. Yet Grotius should not be considered a proponent of democratic government and inalienable individual rights in a twenty-first-century sense of the word. He argued, for example, that human beings could become slaves of their own volition, in which case their total subjection to the will of others constituted a valid contract. In addition, he strenuously denied that the Dutch war of independence (1568–1648) had originated in a popular revolt against Philip II of Spain and Portugal. Instead, he reserved the right of resistance for the traditional governing elite, the Dutch magistrates who were bearers of the “marks of sovereignty.” In Grotius’s view, it was the king’s unconstitutional behavior that had forced the provincial Estates, assembled in the Estates General, to take up arms to defend themselves, acquiring full sovereignty and independence in the process.

Although Grotius does not qualify as a democrat or human rights activist, his justification of Van Heemskerck’s capture of the Santa Catarina was unprecedented in early modern political and legal philosophy. He was the first to introduce the notion of subjective rights—man was born a sovereign and free individual who could execute his own right—and used it to defend the establishment of a Dutch empire of trade in the East and West Indies. He boldly argued in chapter thirteen of De Jure Praedae that Van Heemskerck had acted as the agent of a sovereign and independent Dutch state, which could order indiscriminate attacks on Iberian shipping as part of its public war against Philip III of Spain and Portugal. Few of Grotius’s contemporaries would have agreed with this analysis. When he learned of the Twelve Years’ Truce between Spain and the United Provinces in April 1609, Henry IV of France famously declared that his Dutch allies might be free but were certainly not sovereign and independent. Grotius would have had a hard time convincing the statesmen and lawyers of his age that Van Heemskerck’s capture of the Santa Catarina was a legitimate act of public war. Yet his argument in chapter twelve of De Jure Praedae was more radical still: a trading company might legitimately engage in a private war against other merchants, or even against the agents of a sovereign state, in order to enforce the natural law, which mandated freedom of trade and navigation. Edition: current; Page: [xix] Granted that the United Provinces had an ambiguous status in international politics, its inhabitants were nonetheless entitled to freedom of trade and navigation, a right innate to all free peoples, which they could enforce themselves in the absence of an independent and effective judge. Since the right to self-defense made private individuals judges and executioners in their own cause, a company of merchants like the VOC must, under certain circumstances, also qualify as a full-fledged actor in international politics. When confronted by Portuguese harassment and intimidation, the VOC had every right to take up arms in order to safeguard its trade with Asian princes and peoples. Civil magistrates could not be expected to call the Portuguese to account on the high seas, or in countries where judicial systems were either weak or nonexistent. Hence it fell to the VOC to enforce freedom of trade and navigation in the East Indies and to punish Portuguese transgressions of the natural law by means of a just war.

Once it was established that Van Heemskerck had engaged in a just war, Grotius could simply cite the law of war to show that he was entitled to reparations for injuries sustained by himself, his employers, and the Dutch Republic. Grotius admitted that the Portuguese had never harmed Van Heemskerck in his own person or made any attempts on his crew, cargo, and fleet. Yet chapter eleven of De Jure Praedae was proof that Portuguese harassment and intimidation of the natives had materially damaged Dutch prospects for trade in Monsoon Asia. Van Heems-kerck himself had not been able to return to the Spice Islands, for example, which were laid waste by the armada of André Furtado de Mendonça in the summer of 1602. If the dismal fate of Ambon and Ternate was not sufficient reason to engage the Estado da India, the execution of seventeen Dutch sailors in the Portuguese port of Macao in November 1602 should certainly qualify as a casus belli. The sailors belonged to the crew of Jacob van Neck, who, like Van Heemskerck, was employed by the United Amsterdam Company. They had committed no crime except to unwittingly enter the harbor of Macao. Their execution was a blatant injustice, which Van Heemskerck could not ignore in his capacity as agent of the Dutch government and servant of the United Amsterdam Company. Predictably, Grotius concluded that his Edition: current; Page: [xx] capture of the Santa Catarina had been justified in order to obtain damages on behalf of his employer and the Estates General.

Grotius’s demonstration had been adumbrated in the verdict of the Amsterdam Admiralty Court, which, in turn, had derived part of its argument from Van Heemskerck’s correspondence with the directors of the United Amsterdam Company and the minutes of his council of naval officers (see appendixes I and II below). They show that Van Heemskerck had already interpreted his commission as authorizing the use of force for the purpose of safeguarding Dutch trade in the East Indies and obtaining damages for the United Amsterdam Company. The Amsterdam Admiralty Court had not just endorsed Van Heems-kerck’s reading of his commission, but also cited the edict of the Estates General of April 2, 1599, commanding its subjects to attack Iberian shipping indiscriminately, and added some inchoate references to natural law and the law of nations. Clearly, the distinct elements of Grotius’s argument in De Jure Praedae were already present in the mode of reasoning adopted by Van Heemskerck, the VOC directors, and the Amsterdam Admiralty Court. Yet it was Grotius who turned this hotchpotch of legal grounds into a seamless whole by means of a radical redefinition of natural law and natural rights.

In his letter to George Lingelsheim of November 1606, Grotius did not just announce the completion of De Jure Praedae, but also wondered whether it should appear in print “as it was written, or only those parts which pertain to the universal law of war.”5 With the exception of its twelfth chapter, De Jure Praedae did indeed remain in manuscript until the nineteenth century. Grotius must have realized that it was not opportune to publish a defense of Dutch privateering in the East Indies on the eve of peace and truce negotiations between the United Provinces and Philip III of Spain and Portugal. Yet he continued to feel a strong commitment to the VOC. In March 1606, he drafted a petition for the VOC directors, for example, wherein he asked the Estates General to forgo its legal share of all booty taken in the East Indies (20 percent) out of consideration for the great expenses incurred by the company in fighting Edition: current; Page: [xxi] the Portuguese. After he had finished De Jure Praedae, he wrote several draft letters for the VOC directors, addressed to various Asian rulers, all allies of the VOC. Grotius assured them of the company’s continuous military and naval support but requested that they sell spices exclusively to the Dutch as a quid pro quo.6 When the Dutch East Indies trade became a topic of discussion at the Ibero-Dutch peace conference in The Hague in February 1608, Grotius provided the VOC directors with a road map for the negotiations and correctly predicted that the privateering war would continue in the East Indies, regardless of whether a treaty should be concluded in Europe. At the request of the Zeeland VOC directors, he published the twelfth chapter of De Jure Praedae as Mare Liberum (The Free Sea) in March 1609. Although the pamphlet appeared too late to influence the negotiations for the Twelve Years’ Truce—the treaty was signed on April 9, 1609—it had clearly been conceived by the VOC directors as a means to thwart Iberian demands for a Dutch withdrawal from the East Indies and “persuade both our government and neighboring princes to staunchly defend our, as well as the nation’s, rights.”7 The publication of Mare Liberum hardly marked the end of Grotius’s involvement in the company’s affairs. He served as the VOC’s chief negotiator at the Anglo-Dutch colonial conferences in London in 1613 and The Hague in 1615, for example, which induced Richard Hakluyt the Younger to produce the first English translation of Mare Liberum.8 When living in exile in Paris in 1628, he could justifiably claim in a letter to his brother-in-law, Nicolaas van Reigersberch, that “he merited thus much of this company that, even if all others sleep, they ought to keep watch over me.”9

Edition: current; Page: [xxii] Edition: current; Page: [xviii]

NOTE ON THE TEXT

Upon Hugo Grotius’s death in 1645, the manuscript of De Jure Praedae remained in the possession of his descendants, the Cornet de Groot family, for over two centuries. In fact, legal scholars did not know of its existence until the Dutch bookseller and printer Martinus Nijhoff auctioned off Grotius’s personal papers in 1864. The manuscript was purchased by Leiden University Library. One of its humanities graduates, H. G. Hamaker (1819–92), published the first Latin edition of De Jure Praedae in 1868. His text was the basis for the English translation that Gwladys L. Williams prepared for the Carnegie Endowment for International Peace in the middle of the twentieth century.

The Liberty Fund edition of De Jure Praedae reproduces her translation, which first appeared as part of the Classics of International Law series. In addition to Williams’s translation, we reissue appendix A of the Carnegie edition, along with the superb author and subject indexes by Walter H. Zeydel. With two exceptions we have left unchanged the editorial conventions that govern Williams’s translation of De Jure Praedae. These editorial conventions are explained in full in the Translator’s Note to the Carnegie edition1 but may be summarized as follows.

The words and phrases that Grotius wrote in capital letters for purposes of emphasis are printed in italic type in the body of the text. Bold type is used for words that are similarly emphasized in Grotius’s marginal Edition: current; Page: [xxiv] headings and subheadings. Williams used brackets when she felt she had amplified Grotius’s thought in translating his concise Latin phrases.

The manuscript’s folio numbers appear at the end of the relevant text line, which is a change from the Carnegie edition, where they appear in the margin. The position of the folio numbers in the text approximates that of the folios in the manuscript. They should not be considered the equivalent of modern page breaks, however. Williams was frequently obliged to reverse the Latin word order of the manuscript in order to produce a flowing English translation. A comparison with the collotype reproduction of the manuscript reveals that, in a few instances, she either forgot to include the manuscript’s folio divisions or made a mistake in doing so.2 Although Williams did make some mistakes, the sometimes erratic numbering also reflects the fact that Grotius revised the theoretical chapters numerous times.

Footnotes identified by arabic numerals have a threefold function in Williams’s translation: (1) to indicate gaps in the manuscript that may cause doubt regarding the original text, (2) to clear up questions that may arise from Grotius’s own correction of the manuscript, and (3) to comment on Grotius’s use of sources. Since Grotius’s quotations often are loose paraphrases of the originals, Williams translated these quotations on the basis of the manuscript text, not the text quoted. Any unavoidable departure from this rule is marked with a numbered footnote. If Grotius’s deviation from his source was “too striking to pass without comment,” Williams inserted a numbered footnote there as well.3 Page numbers listed in the footnotes of the Carnegie edition have been replaced with page numbers from the Liberty Fund edition. Oddly enough, Williams referred to the page numbers, instead of the folio numbers, of the collotype reproduction of the manuscript, which she consulted for her translation. This has been left unchanged.

Footnotes that start with lowercase letters (a, b, c, etc.) denote Grotius’s references to his alleged sources, both in the running text of the manuscript and in the marginalia. Unlike the Carnegie edition, where Edition: current; Page: [xxv] they appear in the left and right margins, these references are placed at the bottom of the page in the current edition. Square brackets signal Zeydel’s extensions or corrections of Grotius’s references to other authors. Lettered footnotes are also used for Grotius’s cross-references to other parts of the manuscript. Many of these cross-references are of a general nature: they relate not so much to a particular article or conclusion cited by Grotius as to the argument that follows or precedes the passage indicated in his marginal annotation. Although his cross-references do not rely on the manuscript’s folio numbering, the relevant page numbers of the English translation, as identified by Zeydel, are added for the benefit of the reader.

Walter H. Zeydel undertook the difficult task of verifying Grotius’s direct and indirect references to other authors. The editions consulted by Zeydel used in checking Grotius’s quotations are specified after each entry in the Index of Authors Cited. Where no edition is mentioned, the work in question was not available in the United States at the time that Walter Zeydel compiled his index. The titles of the more familiar works are given in English; others retain their Latin form.

Four modest changes have been made in the author and subject indexes as compared with the Carnegie edition. Zeydel indicated in his author index whether a particular work had been mentioned more than once on a particular page, using Latin terms like “bis,” “ter,” etc. The present publication omits these notations because changes in pagination make them no longer accurate. Zeydel put multiple works by one author in alphabetical order on the basis of the first letter of the first noun of the (Latin) book titles. This order has been adjusted to conform with the standard letter-by-letter alphabetization of the indexes in the Natural Law and Enlightenment Classics series. In addition, the author and subject indexes have been silently corrected to reflect the most recent historical scholarship, and, where possible, floruit or birth and death dates have been provided for important authors and historical figures. The material from the introduction and from appendixes I and II has been integrated into both indexes: existing entries have been amplified for this purpose, and new ones have been created when necessary. All of the original page references given in the Carnegie indexes have been preserved Edition: current; Page: [xxvi] and translated into the corresponding page numbers for the Liberty Fund edition. However, the reader should be aware that the Carnegie references are sometimes more oblique than what the modern reader might expect.

The present publication improves upon the Carnegie edition of De Jure Praedae in various ways. It comprises two sets of appendixes of important archival and printed documents, all in English translation, which place De Jure Praedae in its historical context. The most up-to-date studies of Grotius’s natural rights and natural law theories are listed as suggestions for further reading. There is a detailed bibliography for the new introduction and appendixes I and II. Since the present volume does not reproduce the introduction and note on the text of the Carnegie edition, footnotes and index entries that refer to these matters have been omitted as well.

Appendix I reproduces eight documents that Grotius himself wished to affix to De Jure Praedae. It contains a wide variety of texts, which range from the verdict of the Amsterdam Admiralty Court, declaring the Santa Catarina good prize, to an intercepted letter of the Bishop of Malacca, urging Philip II of Spain and Portugal to take drastic action against Dutch interlopers in Asia Portuguesa. Grotius considered these documents conclusive evidence of (a) a systematic Portuguese campaign to oust Dutch merchants from the East Indies, (b) the Santa Catarina ’s capture in a just war, and (c) its rightful possession by the United Dutch East India Company, or VOC. The present text is partly based on a new transcription of the original sources.

Appendix II is a mixture of archival and printed documents, some of which were discovered only a few years ago in the Dutch national archives in The Hague. Documents I–IV consist of an intercepted Portuguese letter, addressed to Admiral André Furtado de Mendonça; Jacob van Heemskerck’s correspondence with the directors of the United Amsterdam Company; and the minutes of his council of naval officers. These sources reveal the motives behind Van Heemskerck’s privateering campaign in Malayan waters, give a detailed description of his capture of the Santa Catarina, and outline his ambitious plans for Dutch trade in Southeast Asia. Van Heemskerck urged his employers, for example, Edition: current; Page: [xxvii] to establish a rendezvous near the Strait of Singapore and oust the Portuguese from the lucrative trade between the Indian subcontinent and the Far East. Two letters by Jan ten Grootenhuys (documents V and VI) prove that the VOC commissioned De Jure Praedae and provided Grotius with important information about the early Dutch voyages to the East Indies and his country’s official war policy, which endorsed indiscriminate attacks on Iberian shipping by private merchants. Document VIII is a brief selection from Grotius’s letter to George Lingelsheim in November 1606, announcing the completion of De Jure Praedae. Documents VII and IX testify to Grotius’s close collaboration with the VOC directors, both before and after he finished De Jure Praedae. He petitioned the Estates General in the spring of 1606, demanding that it alleviate the VOC’s heavy financial burdens, caused by the war against the Portuguese, and wrote to the company’s indigenous allies the following winter, offering military support in exchange for a monopoly of the spice trade. Finally, document X is the famous request for the publication of Mare Liberum, which Grotius received from the Zeeland VOC directors in November 1608.

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ACKNOWLEDGMENTS

I would like to thank Knud Haakonssen for his invitation to contribute this volume to the series Natural Law and Enlightenment Classics and for his invaluable advice and support at every stage of the editorial process. David Armitage encouraged me to make my doctoral research on De Jure Praedae available to a wider audience. He assisted my editorial efforts in various ways and put his own edition of Mare Liberum at my disposal even before it appeared in print. My greatest debt is to Peter Borschberg, who has generously shared with me his extensive knowledge of Asian history in the early modern era. His erudition and unfailing good humor were indispensable to me in my work on the translation and annotation of the source materials in appendixes I and II. Fernando Arenas and Paulo Pinto helped me identify Portuguese terms and names. Wil Dijk enlightened me about the coins and measures that were common in Southeast Asia in the seventeenth century. International scholarly collaboration is clearly a sine qua non for the study of any aspect—be it military, political, socioeconomic, or cultural—of the long and fascinating history of the Dutch East India Company. I am very grateful for the assistance that I have received from so many wonderful colleagues around the globe.

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COMMENTARY ON THE LAW OF PRIZE AND BOOTY

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CONTENTS

  • Translation of De Jure Praedae:

  • CHAPTER I Introductory Remarks—Outline [of the Case]—Divisions [of the Discussion]—Method—Order 9
  • CHAPTER II Prolegomena, Including Nine Rules and Thirteen Laws 19
  • CHAPTER III 51
    • QUESTION I: Article I. Is any war just?—Article II. Is any war just for Christians?—Article III. Is any war just for Christians, against Christians?—Article IV. Is any war just for Christians, against Christians, from the standpoint of all law?
  • CHAPTER IV 68
    • QUESTION II: Article I. Is the seizure of prize or booty ever just?—Article II. Is it ever just for Christians?—Article III. Is such seizure ever just for Christians, from Christians?—Article IV. Is such seizure ever just for Christians, from Christians, and from the standpoint of all law?
  • CHAPTER V 89
    • QUESTION III:What seizures of prize or booty are just?
    • QUESTION IV: What wars are just?
  • CHAPTER VI Concerning the Efficient Cause of War92
    • QUESTION V: Article I. What is a just efficient cause of private war?—Article II. What is a just efficient cause of public war?
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  • CHAPTER VII Concerning the Subject-Matter of War. For What Cause and in What Circumstances Is War Justly Waged?101
    • QUESTION VI: Article I. What constitutes just subject-matter of war, in a causal sense, for voluntary efficient agents?—Article II. What constitutes just subject-matter of war, from the standpoint of attendant circum-stances, for voluntary efficient agents? Article III. What constitutes just subject-matter of war, in a causal sense, for subjects?—Article IV. What constitutes just subject-matter of war, from the standpoint of attendant circumstances, for subjects?
    • COROLLARY TO QUESTION VI. Can there be a war that is just for both parties: Article I. With respect to voluntary agents?—Article II. With respect to subjects?
  • CHAPTER VIII Concerning the Forms to Be Followed in Undertaking and Waging War127
    • QUESTION VII: Article I. What constitutes just form in undertaking a private war?—Article II. What constitutes just form in undertaking a public war?—Article III. What constitutes just form in waging a war, in so far as voluntary agents are concerned?—Article IV. What constitutes just form in waging a war, in so far as subjects are concerned?
    • COROLLARIES: I. To what extent is aggressive action permissible against enemy subjects?—II. Can seizure of prize or booty be just for both parties, in so far as subjects are concerned; and if so, to what extent is this possible?—III. Can permanent acquisition of prize or booty be just for both parties; and if so, to what extent is this possible?
  • CHAPTER IX Concerning the Aims of War182
    • QUESTION VIII: Article I. What constitutes a just purpose in war, for voluntary agents?—Article II. What constitutes a just purpose in war, for subjects?
  • CHAPTER X 190
    • QUESTION IX: By whom may prize or booty be acquired? Article I. By whom may it be acquired in private wars?—Article II. By whom may it be acquired in public wars? Edition: current; Page: [5]
    • COROLLARY: To what extent is the acquisition of prize or booty permissible for those who are waging a public war at their own expense, to their own loss and at the risk of damage to their personal interests, through the efforts of their own agents, and in the absence of any agreement regarding recompense?
  • CHAPTER XI 243
    • PART I. A General Discussion, Which Deals with the Following Items: Article I. The causes of the war waged by the Dutch against Alba, the Spaniards, Philip, &c.—Article II. The courtesies extended by the Dutch in the course of that war.—Article III. The causes of the war waged by the Dutch against the Portuguese.—Article IV. The courtesies extended by the Dutch to the Portuguese.—Article V. The injuries inflicted by the Portuguese upon the Dutch, throughout Portugal.—Article VI. The injuries inflicted by the Portuguese upon the Dutch, in other, widely distributed localities.—Article VII. The injuries inflicted by the Portuguese upon the Dutch, on the pretext that the latter were entering, for commercial purposes, regions subject to the former.—Article VIII. The same pretext, with special reference to the East Indies.
    • PART II. A Discussion of Events in the East Indies, Which Deals with the Following Items: Article I. False accusations made by the Portuguese against the Dutch.—Article II. Enemies suborned by the Portuguese against the Dutch.—Article III. Fraudulent and perfidious conduct of the Portuguese toward the Dutch.—Article IV. The war was first undertaken by the Portuguese against the Dutch.—Article V. The war waged by the Portuguese against the friends of the Dutch.
  • CHAPTER XII Wherein It Is Shown That Even If the War Were a Private War, It Would Be Just, and the Prize Would Be Justly Acquired by the Dutch East India Company; and Wherein, Too, the Following Theses Are Presented:300
    • 1. Access to all nations is open to all, not merely by the permission but by the command of the law of nations.
    • 2. Infidels cannot be divested of public or private rights of ownership merely because they are infidels, whether on the ground of discovery, or in virtue of a papal grant, or on grounds of war. Edition: current; Page: [6]
    • 3. Neither the sea itself nor the right of navigation thereon can become the exclusive possession of a particular party, whether through seizure, through a papal grant, or through prescription (that is to say, custom).
    • 4. The right to carry on trade with another nation cannot become the exclusive possession of a particular party, whether through seizure, or through a papal grant, or through prescription (that is to say, custom).
  • CHAPTER XIII Wherein It Is Shown That the War Is Just, and That the Prize in Question Was Justly Acquired by the Company, in the Public Cause of the Fatherland391
    • PART I. This Assertion Is True with respect to the Governmental Assemblies of Holland and of the United Provinces, in Their Character as Voluntary Agents.
    • PART II. It Is True with respect to the East India Company, in Its Character as a Subject of the Said Assemblies.
    • PART III. The War and the Afore-mentioned Acquisition Are also Just on the Basis of the Public Cause of Our Allies.
      • In this same chapter the following theses are presented:
      • 1. A politically organized community, or its various internal states, even when they are ruled by a prince, nevertheless possess authority to enter publicly into a war.
      • 2. A just ground for war against a prince is the defence of long-established hereditary laws by which the principate is bound.
      • 3. War against the prince does not require a declaration of war.
      • 4. It is the part of a good citizen to obey the magistrates currently in office.
      • 5. A citizen fights in good faith against the prince, when fighting in defence of the state and the laws.
      • 6. The war of a state against a prince who was formerly its own ruler is a foreign war.
      • 7. It is sometimes right for Christians to enter into an alliance of war with infidels who are fighting against Christians.
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  • CHAPTER XIV 437
    • PART I. The Seizure of the Prize in Question Was Honourable:
      • In Part I the following theses are presented:
      • 1. Everything just is honourable.
      • 2. It is especially honourable to take vengeance, in behalf of one’s allies or one’s native land, upon men who are incorrigible.
      • 3. Seizure of spoils may be especially honourable because of the purpose served thereby.
    • PART II. It Is Honourable to Retain Possession of the Prize in Question.
  • CHAPTER XV 462
    • PART I. The Seizure of the Prize in Question Was Beneficial.
      • In Part I the following theses are presented:
      • 1. Everything just is beneficial.
      • 2. Everything honourable is beneficial.
      • 3. That which befits the circumstances in which the state is situated is especially beneficial.
      • 4. It is especially beneficial to do good to allies.
      • 5. It is especially beneficial to do harm to enemies.
      • 6. Ease of accomplishment is a beneficial factor.
    • PART II. Retention of Possession of the Said Prize Is Beneficial.
  • APPENDIX A Table of Rules and Laws Compiled from Chapter II of the Commentary499
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CHAPTER IEdition: 1950; Page: [2]: Introductory Remarks—Outline [of the Case]—Divisions [of the Discussion]—Method—Order

Introductory remarksA situation has arisen that is truly novel, and scarcely credible to foreign observers, namely: that those men who have been so long at war with the Spaniards and who have furthermore suffered the most grievous personal injuries, are debating as to whether or not, in a just war and with public authorization, they can rightfully despoil an exceedingly cruel enemy who has already violated the rules of international commerce. Thus we find that a considerable number of Hollanders (a people surpassed by none in their eagerness for honourable gain) are apparently ashamed to lay claim to the spoils of war, being moved forsooth, by compassion for those who in their own relations with the Dutch have failed to observe even the legal rights of enemies!

Since this state of affairs is due partly to the malicious falsehoods of certain persons insufficiently devoted to the commonwealth, partly to the scruples and somewhat superstitious self-restraint of other individuals, it has seemed expedient that we should undertake to enlighten the artless innocence of the latter while combating the malice of the former. For no discerning person can be unaware of the consequences toward which these debates are tending, nor of the hostile wiles intermingled with them. That is to say, if the Dutch cease to harass the Spanish [and Portuguese]1 blockaders of the sea (which will certainly be the outcome Edition: current; Page: [10] if their efforts result only in profitless peril), the savage insolence of the Iberian peoples will swell to immeasurable proportions, the shores of the whole world will soon be blocked off, and all commerce with Asia will collapse—that commerce by which (as the Dutch know, nor is the enemy ignorant of the fact) the wealth of our state is chiefly if not entirely sustained. On the other hand, if the Dutch choose to avail themselves of their good fortune, God has provided a weapon against the inmost heart of the enemy’s power, nor is there any weapon that offers a surer hope of liberty.

Yet there is some reason to congratulate the fatherland on these erroneous scruples, since it is a rather strong indication of Dutch innocence that Hollanders should hesitate even before committing acts sanctioned by the moral law of nations and by the precepts of public law. Justice can never be found wanting, nor can there be a lack of good faith, in those who proceed so carefully and with hesitant tread (so to speak) in exercising this right which is most certainly possessed by all peoples and which would seem questionable to no one save the Dutch themselves.

It is, however, indubitably true that virtue, at both extremes,Edition: 1950; Page: [2] borders upon vice.a While this fact is fairly obvious in some cases, in others it more easily escapes notice, owing to the magnitude of the evil opposed to the particular virtue involved. For example, because of our aversion to a wrathful disposition, we so disregard the stolidity which Edition: current; Page: [11] constitutes the opposite extreme of vice, and which the Greeksa called ἀοργησίαν [lack of rancour], that this quality has not even found a Latin name. Assuredly, too, the consuming greed for gain denoted by the Greek term αἰσχροκερδεία [sordid covetousness], is a vile disease of the spirit, characterized by complete disrespect for law and morality; yet it is possible to sin in contrary fashion, neglecting opportunities to promote one’s own interests, through an anxious and overnice avoidance of things not essentially dishonourable. For the Socratists show that the wise and good man is φῐλοκερδής, that is to say, by no means disregardful of his own advantage. The philosophers likewise deny that justice is οἰκοφθόρον and πτωχοποιόν, “a destroyer of domestic property” and “the author of indigence.”b As Luciliusc has correctly observed, it is indeed

  • A virtue to be mindful of restraints
  • And moderation, in the search for gain,

but it is also

  • A virtue to be able with one’s wealth
  • To pay one’s debt in full. . . .

Even in this [abstention from greed], we should guard against excess. In other words, let us not imagine that to be vicious which is devoid of vice; and let us not be unjust to ourselves while shunning injustice toward others. The weapon that flies far past the target, misses the mark no less than the weapon that falls short of its aim. Both extremes are blameworthy; both are tainted by error. The fault of those persons whose hearts have grown hardened to every evil deed is perhaps the more shocking and execrable (though one can also conceive of a disposition toEdition: 1950; Page: [3] take offence at entirely inoffensive things, which may be described as excessively delicate and scrupulous); but impious irreverence for justice and equity is sufficiently revealed through its own infamy because it is repugnant to human nature, whereas there is more need to guard against that other form of vice, the form rooted in a sense of superiority, for the Edition: current; Page: [12] reason that it bears no distinctive mark and therefore easily assumes the aspect of virtue, under which guise it creeps into our hearts. Such is the vice epitomized in the old saying as “hunting for knots in a bulrush” [i.e. seeking for trouble where it does not exist].

Justice consists in taking a middle course.a It is wrong to inflict injury, but it is also wrong to endure injury. The former is, of course, the graver misdeed, but the latter is also to be avoided.

Owing, however, to the fact that we are more frequently impelled toward the first extreme, the precept of regard for others is usually held up to us with excessive zeal, the implication being that we are by nature sufficiently inclined to care for ourselves. Nevertheless, the wise man does not belittle himself, nor does he neglect to avail himself of his own advantages, since no other person will use them more properly.b By the same token, he will repel every injury to himself in so far as law and justice permit him to do so.c Thus the truly good man will be free from μειονεξία, that is to say, from the disposition to accord himself less than his due.

To be sure, such a disposition, as long as the loss resulting from it affects no one save the individual in error, customarily excites more ridicule than reproach and is called folly rather than injustice. But if at any time private loss brings common peril in its train, then indeed, we must combat it with all our force, lest the public welfare be harmfully affected by the mistaken convictions of individual citizens. Under this head should be placed the weakness of those persons who betrayed their own possessions to the enemy because some conscientious scruple prevented them from fighting. We know about the Jewish Sabbathsd and the Greek Moons.e, 2 If there be other men who have not borne sufficiently in mind the famous epic passage, let them remember that:

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  • Εἱ̑ς οἰωνὸς ἄριστος, ἀμύνεσθαι περὶ πάτρης.
  • There is no act more noble than defence
  • Of one’s own land upon the battlefield. a

I could cite numerous examples of persons who have sinned in this way, but what need is there of such citations? For who doubts but that the Hebrews thought themselves pious and humane because they did not savagely massacre the Midianites and Canaanites?b Who does not know of Saul’s mistaken pity for the conquered king?c Yet on this very score both Saul and the Hebrews were severely rebuked and punished. Moreover, the case with which we are dealing does not even involve this question of slaughter, but turns merely upon the issue of not leaving in the enemy’s possession resources which may be used to destroy the innocent.

Saint Augustine,d that supreme authority on piety and morals,Edition: 1950; Page: [3] spoke truly indeed when he declared that it was characteristic of timid men, 3 not of the pious, to condemn war because of the ills—such as slaughter and plunder—which follow in its train.

  • Thus it is needful that these clouds of fear
  • Be vanquished, not by any solar shaft
  • Nor by the day’s bright spear, but by the mien
  • And ordered plan of nature.. . .e

For unless I am mistaken, we may appropriately borrow here the words of the poet Lucretius, since it is solely from that very “mien of nature” and from no other source that one should seek to ascertain how much Edition: current; Page: [14] is owed to others and how much to oneself. Accordingly, after a careful study of the law of war, in which special attention will be given to the precepts governing captured property, we shall find that this whole question has become clear to any person not devoid of ordinary intelligence.

Outline [of the case]The particular case underlying this discussion is summarized in the following paragraph.

Ships dispatched by the merchants of Holland and Zeeland to the various islands of the Indian Ocean not subject to Portuguese rule had been sailing forth on commercial ventures from as far back as 1595, when our sailors at last prepared to seek vengeance for the slaughter of many of their comrades, as well as for the losses suffered both by themselves and by their allies either in consequence of Portuguese calumnies or at the hands of Portuguese emissaries, through the perfidy of the latter and finally through the open armed violence of that people and their allies. In the year 1602, after several manifestations of hostility on both sides, it so happened that Jacob Heemskerck (Commander of the Amsterdam fleet of eight ships lying in the Strait of Singapore, one of the two straits by which Sumatra4 is separated from the Malay Peninsula) forced a Portuguese vessel to surrender and, disbanding its crew, sailed it home. This vessel, the Catharine by name, a ship of the class known as “caracks,” was laden with merchandise. Quite similar acts had of course been committed by other persons prior to that time, and have also been committed since then; but inasmuch as this particular instance is for many reasons the most widely celebrated, we have chosen it for examination as theEdition: 1950; Page: [4] Edition: current; Page: [15] episode representative of all such captures, so that on the basis of this investigation judgement may readily be passed in regard to the other cases.

Upon approaching the task indicated,Divisions [of the discussion] however, I find myself involved in an extremely complex debate: not because our thesis is at all difficult in itself, but because of the differing views of the very persons who dispute it. Some of these critics, guided in a sense by punctilious motives, hesitate to approve of the prize, apparently regarding it as something wrongfully acquired and illegitimate. Others, though they entertain no doubt from the standpoint of legitimacy, seem fearful of bringing some stain upon their reputations by such an act of approval. Again, there may be individuals who have no misgivings regarding the justice of the cause in question and who do not believe that their good name can be impaired thereby, but who nevertheless imagine that this very proposition which at the moment appears to be beneficial and profitable, may eventually result in some still latent loss and harm.

Thus our undertaking requires a combination of all the various forms of discourse customarily employed by orators.a It calls not only for debate as to whether the aforesaid act was right or wrong, to be conducted as if the point were being argued in court, but also for the assumption of the censor’s functions of praise and blame; and furthermore, since the circumstances that gave rise to the act remain unchanged, advice must be given as to whether or not the course of action already adopted is expedient for the future.

First of all, then, we must examine the matter from the standpoint of law, thus establishing a basis, so to speak, for the treatment of the other questions to be considered.

MethodThe ordered plan of nature to which I referred above has a very important bearing upon this phase of the discussion. For, in my opinion, it would be a waste of effort to pass judgement regarding acts whose scope is international rather than domestic—acts committed, more-over, Edition: current; Page: [16] under conditions not of peace but of war—solely on the basis of written laws. That Dioa who is called “the golden-tongued” byEdition: 1950; Page: [4] virtue of his eloquence, puts the point very neatly, when he says: τω̑ν μὲν ἐγγράφων οὐδὲν ἐν τοι̑ς πολεμίοις ἰσχύει· τά τε ἔθη φυλάττεται παρὰ πα̑σι, κἂν εἰς ἐσχάτην ἔχθραν προἑλθωσι. “To be sure, nothing written is valid between enemies; but customs are observed by all, even when the extreme of hatred has been reached.” In the passage just quoted, the term “customs” is equivalent to Cicero’sb concept in the phrase, “not written law, but the law sprung from Nature,” and to that expressed in the words of Sophocles,c ἄγραπτα κἀσφαλη̑ θεω̑ν νόμιμα, “not those written laws, indeed, but the immutable laws of Heaven.” Yet again, Lactantiusd goes so far as to censure the philosophers because in their discussion of military duties they take as their criterion, not true justice, but civic life and custom. If those persons [who base their judgement on written laws] do not read the works of the authors above cited, they ought at least to pay heed to their own Baldus,e who has wisely ruled that in any controversy arising between claimants of sovereign power the sole judge is natural reason, the arbiter of good and evil. Other quite learned authoritiesf uphold this same doctrine. Nor does it differ greatly from the popular maxim that he who seeks for a statutory law where natural reason suffices, is lacking in intelligence. Therefore, it is from some source other than the Corpus of Roman laws that one must seek to derive that pre-eminent science which is embodied, according to Cicero,g in the treaties, pacts, and agreements of peoples, kings, and foreign tribes, or—to put it briefly—in every law of war and peace.

Considerably better and more dependable is the method chosen by those who prefer to have such questions decided on the basis of Holy Writ, except that the persons employing this method frequently cite Edition: current; Page: [17] simple historical accounts or the civil law of the Hebrews in the place of divine law. For the materials collected indiscriminately from the annals of all nations, while they are extremely valuable in elucidating the question, have little or no value in providing a solution, since as a general rule the wrong course is the one more often followed [in the instances recorded in those annals]Edition: 1950; Page: [5].

The true way, then, has been prepared for us by those juristsa of antiquity whose names we revere, and who repeatedly refer the art of civil government back to the very fount of nature. This is the course indicated also in the works of Cicero.b For he declares that the science of law must be derived, not from the Praetor’s edict (the method adopted by the majority in Cicero’s day), nor yet from the Twelve Tables (the method of his predecessors), but from the inmost heart of philosophy.

Accordingly, we must concern ourselves primarily with the establishment of this natural derivation. Nevertheless, it will be of no slight value as a confirmation of our belief, if the conviction already formed by us on the basis of natural reason is sanctioned by divine authority, or if we find that this same conviction was approved in earlier times by men of wisdom and by nations of the highest repute.

For the rest,Order it is expedient for our purposes to order the discussion as follows: first, let us see what is true universally and as a general proposition; then, let us gradually narrow this generalization, adapting it to the special nature of the case under consideration. Just as the mathematicians customarily prefix to any concrete demonstration a preliminary statement of certain broad axioms on which all persons are easily agreed, in order that there may be some fixed point from which to trace the proof of what follows, so shall we point out certain rules and laws of the most general nature, presenting them as preliminary assumptions which need to be recalled rather than learned for the first time, with the Edition: current; Page: [18] purpose of laying a foundation upon which our other conclusions may safely rest.

In this connexion I must crave indulgence for the novelty and also, perhaps, for the prolixity of my work. Accordingly, I ask the reader to be patient and to accept on faith for the moment my assurance as to what the event will later confirm, namely: that the accuracy of the arguments to be derived from our premisses will compensate for any tedium caused by this preliminary matter, which will be regarded by many critics as already sufficiently familiar and by everyone as too repetitious in its presentation. Moreover, I can quite truthfully assert that certain problems bound up with the law of war and hitherto exceedingly confused, are susceptible of explanation and solution (even though they will not all be expressly mentioned in this treatise) on the basis of the said premisses and by the very method of demonstration herein employed.

Here follow the dogmas relating to the law of prize and booty.

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CHAPTER II: Prolegomena, Including Nine Rules and Thirteen Laws1

Where should we begin,Rule I if not at the very beginning? Accordingly, let us give first place and pre-eminent authority to the following rule: What God has shown to be His Will, that is law. This axiom points directlyEdition: 1950; Page: [5] to the cause of law, and is rightly laid down as a primary principle.a

It would seem, indeed, that the very term ius [law] is derived from Iovis [ Jove] and that the same process of derivation holds good for iurare [to swear] and iusiurandum [an oath] or Iovisiurandum [an oath in the name of Jove]. Alternatively, one might trace the development of these terms to the fact that the ancients designated as iusa b—that is to say iussa [things commanded]—those precepts which we designate as iura [laws]. In any case, the act of commanding is a function of power, and primary power over all things pertains to God, in the sense that power over his own handiwork pertains to the artificer and power over inferiors, to their superiors.

Ausoniusc has declared that, “Law is the unerring mind of God.” This was the sentiment that inspired Orpheus—and after him, all the old Edition: current; Page: [20] poetsa—to say that Themis and Diké [Right and Justice] were the judicial assessors of Jove; whence Anarchus has correctly inferred (even though he does put the conclusion to an improper use) that a given thing is just because God wills it, rather than that God wills the thing because it is just. According to the somewhat more subtle contention of Plutarch,b however, the goddesses Right and Justice are not so much the assessors of Jove, as Jove himself is Right and Justice, and the most ancient and perfect of all laws. It is the latter view that Chrysippus also adoptsc when he asserts that Jove is the name given to “that force inherent in the constant and eternal law, which guides our lives, so to speak, and instructs us in our duties.”

The law of natureThe Will of God is revealed, not only through oracles and supernatural portents, but above all in the very design of the Creator; for it is from this last source that the law of nature is derived.d Thus Ciceroe very wisely maintains that the study of celestial phenomena is beneficial in relation to justice, as well as in other ways, because the student “becomes acquainted with the will, plan and purpose of the Supreme Ruler and Lord, to whose nature (so say the philosophers) that true rational principle and sovereign law conform.” The following assertion made by Lucan,f is also pertinent to this point: “And the Creator revealed to us once and for all, at our birth, whatever we are permitted to know.” According to Chrysippus,g too (whom we quoted above), οὐ γάρ ἐστιν εὑρει̑ν τη̑ς δικαιοσύνης ἄλλην ἀρχὴν οὐδὲ ἄλλην γἑνεσιν, ἢ τὴν ἐκ του̑ Διὸς καὶ τὴν ἐκ τη̑ς κοινη̑ς φύσεως; “No beginning, no origin, can be assigned to Edition: current; Page: [21] justice other than its derivation from God and from the universal aspect of nature.”

Therefore, since God fashioned creation and willed its existence, every individual part thereof has received from Him certain natural properties whereby that existence may be preserved and each part may be guided for its own good, in conformity, one might say, with the fundamental law inherent in its origin.a From this fact the old poets and philosophersb have rightly deduced that love, whose primary force and action are directed to self-interest, is the first principle of the whole natural order. Consequently, Horacec should not be censured forEdition: 1950; Page: [5a] saying, in imitation of the Academics, that expediency might perhaps be called the mother of justice and equity. For all things in nature, as Cicero repeatedly insists, are tenderly regardful of self, and seek their own happiness and security. This phenomenon can be observed not only in the human race, but among the beasts also and even in connexion with inanimate objects, being a manifestation of that true and divinely inspired self-loved which is laudable in every phase of creation. As for the φιλαυτία, which is classified as a vice—in other words, immoderate self-interest—it is an excess of such love. Thus Socrates (as quoted by Xenophone and Platof) and Diogenes,g too, have correctly maintained that justice is a virtue which makes us useful to ourselves as well as to others, so that the just man will in no way inflict injury upon himself or upon any of his members, nor will he bring pain or distress upon himself. Plutarchh expounds this doctrine admirably, illustrating it by means of a negative simile when he declares that justice is not like oil, which doctors describe as beneficial to the body externally but injurious Edition: current; Page: [22] internally, since the just man’s highest concern is for himself. Other authorities,a distinguishing more subtly between terms, maintain that such concern is the function not so much of justice as of that love [for self] to which we are impelled by nature; but at the same time, they admit that in human affairs the first principle of a man’s duty relates to himself.

In fact, all duty (according to the philosophers) consists in περὶ τά πως ἔχοντα πρὸς ἔμα̑ς, that is to say, in those things which in some way pertain to self. Such things, to be sure, fall under a twofold classification. For some concern us from the standpoint of good, others from the standpoint of evil, as is indicated, indeed, by the two mental attitudes of aversion and desire, attitudes implanted by nature not in manEdition: 1950; Page: [5a] alone, but in all living creatures.

The particular aspect of duty that we are about to discuss, however, is bound up not with all goods and ills, but solely with those which men can either bestow upon or take from other men, including not only concrete goods and ills but also their external effects. For only these [transferable] things can enter into any comparison that seeks to establish how much a person owes to himself, and how much to his fellow man.

Generally speaking, these good and evil things are likewise divided into two classes. The first and more important group consists of those which directly concern the body itself: for example, among the ills, death, mutilation of the members (which is akin to death) and disease; among the blessings, life with the body whole and healthy. The second group has to do with things existing outside of ourselves but neverthe-less beneficial or injurious, painful or pleasing, to us—such as, on the one hand, honour, riches, pleasure; and on the other hand, infamy, poverty, pain. Thus, when Platob says that justice is concerned with περὶ σώματος θεραπείαν, ἢ περὶ χρημάτων κτη̑σιν, that is to say, with the care of the body and the possession of property, he includes under the head of “property” the results consequent upon its possession.

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Accordingly,Law I from this combination of concepts, two precepts of theEdition: 1950; Page: [6] law of nature emerge:2 first, that It shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious;Law II a 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 Cicerob 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],3 has ever failed to lay down these two laws first of all as indisputable axioms.c For on this point the Stoics, the Epicureans, and the Peripatetics are in complete agreement, and apparently even the Academics have entertained no doubt.

Since we ourselves are corporeal entities, other bodies are naturally able to benefit or injure us. Thus the first law is put into practice through the repulsion of one body from another, and the second law, through the attachment of one body to another. To this end, the lower animals were given their corporeal members and we, our hands and feet, as instruments for the two functions of repelling and attaching. This function of attachment is a gift from God. For He who bestowed upon living creatures their very existence, bestowed also the things necessary for existence. Some of these things, indeed, are necessary to being, while others are necessary only to well-being; or, one might say that they relate respectively to safety and to comfort. In a universal sense, moreover, inferior Edition: current; Page: [24] things were given for use by their superiors. Plants and herbs, for example, were given to the beasts, and beasts—as well as all things in general—to man,a inasmuch as man excels in worth all other created things. However, since God bestowed these gifts upon the human race, not upon individual men,b and since such gifts could be turned to use only through acquisition of possession by individuals, it necessarily followed that τὸ ἐσφετερισμἑνον, “what had been seized as his own” by each person should become the property of that person.The act of taking possession, and ownership Such seizure is called possessio [the act of taking possession], the forerunner of ususEdition: 1950; Page: [6] [use], and subsequently of dominium [ownership].c

But God judged that there would be insufficient provision for the preservation of His works, if He commended to each individual’s care only the safety of that particular individual, without also willing that one created being should have regard for the welfare of his fellow beings,d in such a way that all might be linked in mutual harmony as if by an everlasting covenant. Senecae has said: “You must needs live for others, if you would live for yourself.”

Love, then, is twofold: love for oneself, and love for others. In the former aspect, it is known as “desire”; in the latter, as “friendliness.”f While a certain form of friendliness is discernible even within inanimate objects, and more clearly so in the lower animals, this manifestation of love burns most brightly in man, as in one who is peculiarly endowed not only with the affections shared in common with other creatures but also with the sovereign attribute of reason: that is to say, as in a being derived from God Himself, who imprinted upon man the image of His own mind. Epicharmus calls attention to this point in the following verse:g

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  • ὁ δἑ γε τἀνθρώπου λόγος πἑφυκ’ ἀπὸ του̑ θείου λόγου.
  • Man’s reason from God’s reason takes its being.

To be sure, this rational faculty has been darkly beclouded by human vice; yet not to such a degree but that rays of the divine light are still clearly visible, manifesting themselves especially in the mutual accord of nations. For evil and falsehood are, in a sense and by their very nature, of infinite extenta and at the same time internally discordant, whereas universal concord can exist only in relation to that which is good and true.b Many persons, indeed, have chosen to call that very accord the secondary law of nature,The primary law of nations or primary law of nations;4 and Ciceroc has said that the principle informing this law is nothing more nor less than right reason derived from the will of the gods. In another passage, the same authord declares that, “on any matter, the consensus of all nations should be regarded as a precept of the natural law.” Heraclituse perceives this truth; for though he postulates the existence of two kinds of reason—λόγους, τὸν ξυνὸν καὶ τὸν ἴδιον, that is to say, a universal form of reason or understanding, and an individual form—he maintains that universal reason is the κριτήριον [criterion] and judge, so to speak, of truth, τὰ γὰρ κοινῃ̑ φαινόμενα πιστά, “on the ground that those things are worthy of faith which are commonly so regarded.” To this assertion he adds the following comment: τρἑφονται πάντες οἱ ἀνθρώπινοι νόμοι ὑπὸ ἑνὸς του̑ θείου; “All the laws of mortals rest upon one divine law.”f Thus a second rule is derived from the first,Rule II namely: What the common consent of mankind has shown to be the will of all, that is law.

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Now, men agree most emphatically upon the proposition that it behoves us to have a care for the welfare of others; for the acceptance of this obligation might almost be termed a distinguishing characteristic of man. It is for this reason that the wise philosophy5 of Senecaa ascribes to the concept of good the quality of pertaining both to oneself and to others. Here we have the starting-point of that justice, properly so called, which Aristotleb and various writers have described as being concerned with the good of others, and which Ciceroc and Apuleiusd depict as “looking outwards.” Hesiode offers the following admirable comment on the same subject:Edition: 1950; Page: [7]

  • Τόνδε γὰρ ἀνθρωποι̑σι νόμον διἑταξε Κρονίων,
  • Ἰχθύσι γὰρ καὶ θηρσὶ καὶ οἰωνοι̑ς πετεηνοι̑ς
  • Ἐσθἑμεν ἀλλήλους. ἐπεὶ οὐ δίκη ἐστὶ μετ’ αὐτω̑ν.
  • Ἀνθρωποι̑σι δ’ ἔδωκε δίκην, ἣ πολλὸν ἀρίστη.
  • For laws were giv’n to man by highest Jove.
  • The beasts, forsooth, the fish, the birds that soar
  • Feed on each other, ignorant of right;
  • On us, however, justice—best of gifts—
  • Hath been conferred. . . .

Senecaf has said: “Just as all the bodily members function in mutual harmony because it is to the advantage of the whole that the individual parts be preserved, even so mankind will show forbearance toward individuals because we are born for a life of fellowship. Society, too, can be kept safe from harm only by love and watchful care for its componentparts.” Edition: current; Page: [27] Elsewhere, hea declares that, “Security must be obtained by offering security in exchange.” Herein lies that brotherhood of man, that world state, commended to us so frequently and so enthusiastically by the ancient philosophers and particularly by the Stoics, whose view Cicerob adopts. This view is also the basis of the statement made by Florentinus,c namely, that because of a certain kinship established among us by nature, it is sinful that man should lie in ambush for his fellow man, a precept which Cicerod very properly ascribes to the law of nations.

The foregoing observations show how erroneously the Academics—those masters of ignorance—have argued in refutation of justice, that the kind derived from nature looks solely to personal advantage, while civil justice is based not upon nature but merely upon opinion; for they have overlooked that intermediate aspect of justice which is characteristic of humankind.e

Accordingly, from the First and Second Rules two laws arise, relating to the good of others, whereby the preceding laws, which relate to one’s own good, are complemented and confined within just limits.f One of the two laws in question runs as follows:Law III Let no one inflict injury upon his fellow.Law IV The other is the precept: Let no one seize possession of that which has been taken into the possession of another. The former is the law of inoffensiveness; the latter is the law of abstinence. As a result of the Third Law, life is rendered secure; as a result of the Fourth Law, distinctions of ownership arise, together with the well-known concept of Mine and Thine.g

It was this concept that the ancientsh had in mind when they called Edition: current; Page: [28] Ceres “the Lawgiver” and spoke of her sacred rites as “the Lawgiver’s festival,” intimating that the establishment of laws grew out of the division of lands. The principle underlying the Fourth Law is expounded by Quintiliana in the following terms: “If we accept the proposition that anything whatsoever that has fallen to man’s lot for his use, is the property of the person who has possession thereof, then assuredly it is a wrongful act to take away anything rightfully possessed.” In this principle of confidence, so to speak, lies the origin of human society, a way of living towards which, by the design of the Creator, man was more strongly impelled than any other living creature.b That social impulse was the source of τὰ ξυμβόλαια, that is to say, of reciprocal acts and sentiments, and of the intermingling of one’s own goods and ills with the goods and ills of others. From the same source arose the saying that man is a god or a wolf to his fellow man.

Consequently, we feel the need of that form of justice properlyEdition: 1950; Page: [8]6 known as ἀρετὴ κοινωνική, or “social virtue.”c Now, the good to which this social justice has reference is called “equality,” or ἰσονομία; the evil, “inequality,” or πλεονεξία. For just as in nature, so also in every society, that is good which is reduced in the greatest possible degree to unity; and unity connotes primarily identity, but also, in a secondary sense, equivalence, so that wherever the former quality cannot exist, the latter takes its place.

But there are two kinds of equivalence, based respectively on number and on proportion. For example, twenty exceeds fifteen, and ten exceeds five, by an equal numerical difference, that is to say, by five; whereas twenty exceeds ten, and ten exceeds five, in an equal proportional measure, or in other words, each by a half of itself. Number merely orders the parts in their relations with one another; proportion relates the parts to the whole.

Accordingly, those persons who are charged with the management of Edition: current; Page: [29] some whole, exercise proportional justice,a which may also be called “Justice the Allotter” [i.e. distributive justice]. In conformity with this phase of justice, the head of a household allots to its various members, shares measured and weighed in proportion to their different ages and conditions. The Universe is ordered in consonance with this same justice by God Himself, called by Plato “the Geometer,” precisely because He administers law and equity according to a certain principle of proportion, as the above-mentioned author explains in the Gorgias; b for the end sought by the geometrician is the reduction of all things to equality.

The other kind of justice, which we now choose to designate as the Compensator [i.e. compensatory justice], is concerned not with communal affairs but with those peculiar to the individual. Thus compensatory justice does not relate the parts to the whole; that is to say, it weighs things and acts without regard for persons. The function of such justice is twofold, namely: in regard to good, the preservation thereof; in regard to evil,Law V its correction. Hence these two laws arise: first, Evil deeds must be corrected;Law VI secondly, Good deeds must be recompensed (or, to use the Greek term, ἀντευποιητἑον).

For this process of relating the component elements to one another may be described as made up in part of the refluent action of the laws of the first order [Laws I and II], and in part of the outward-flowing action of the laws of the second order [Laws III and IV].7 In itself, the process is mutual and alternating. Here we have the origin of τὸ ἀντιπεπονθός, “retaliation”—or, in the language of the Scholastics, “restitution”—the task of compensatory justice. In accordance with this form of justice, he who has derived gain from another’s good deed repays that exact amount to the benefactor whose possessions have been diminished, while he who has suffered loss through the evil deed of another Edition: current; Page: [30] receives the exact equivalent of that loss from the malefactor whose possessions have been increased. Hence it follows that there are two kinds of obligation: in the terminology of the philosophersa ἑκούσιον καὶ ἀκούσιον, “voluntary and involuntary”; in that of the jurists,b obligation ex contractu [i.e. arising from a contract] and obligation ex delictoEdition: 1950; Page: [8] [i.e. arising from wrongdoing]. In both cases, the person who has gained is regarded as the debtor and he who has lost as the creditor, the former having been enriched by the precise amount of the latter’s impoverishment; and if the amount thus lost is taken from the debtor and given to the creditor,c that is true justice. Such justice requires that the thing taken shall be returned in the case of a theft just as in the case of a loan, and that, even as payment is made of a purchase price or of revenue from a contract, so also reparation for loss inflicted and satisfaction for injuries should be provided.

It sometimes happens, however, that things properly pertaining to the parts tend to affect the whole, even though they are not directed toward the whole as such. In these circumstances, one must weigh, not the merits of persons, but the value of the things or the force of the actions involved. This is the basis of rewards and punishments. For the whole world should be grateful to him who has bestowed a universal benefit. The devisers of useful inventions, for example, have received praise and honour from all mankind. Conversely, those persons who have inflicted universal injury, no less than those who have injured a single individual, ought to give proportionate satisfaction. In a sense, however, an injury inflicted even upon one individual is the concern of all, and this is true primarily because of the example set; just as it is the concern of the whole body that its various members should be sound, particularly as a guard against contagion.

Now it may seem strange, inasmuch as punishment is hurtful to the person on whom it is inflicted, that justice, which is motivated by solicitude for all, should be directed to the harm of any individual. In order Edition: current; Page: [31] to throw light on this point, it may be observed that no art ever sets up evil as its ultimate goal, and that nevertheless there are times when an art makes use of evil—though only in cases of necessity—as an intermediate measure without which good cannot be attained. Doctors will never inflict pain upon the sick, unless considerations of health demand that they do so; nor will they amputate any part of the body, save in the interest of the body as a whole. Thus pain and mutilation, originally evil in themselves, may assume the quality of goodness because they lead to a good greater than the one to which as evils they were diametrically opposed.

With a view to clarifying the foregoing simile (which is frequently employed in this connexion by the philosophers), we must draw a distinction between different kinds of punishment. Gelliusa has observed that there are three kinds according to Taurus, and two, according to Plato.b Taurus, however, included τιμωρίαν “vengeance,”8 which pertains properly to relations between individuals; so that only two kinds pertinent to the whole remain to be considered. Of these two, the first is chastisement, referred to by Taurus as νουθεσία [admonition], κόλασις [correction, punishment], or παραίνεσις [exhortation], and also, by Plato,c as εὐθύνη [a setting straight, correction]. Chastisement involves an attempt to correct the particular individual punished and also toEdition: 1950; Page: [9] render him more useful to humanity. It is a form of θεραπευτικὸς τρόπος, or “curative procedure,” which operates (as Aristotled explains) through the application of opposites [e.g. by applying pain to remedy a condition arising from an excess of pleasure; or loss, to remedy the effect of excessive gain]. The second type of punishment is παράδειγμα, that is to say, exemplary punishment, which by arousing the fear of a like Edition: current; Page: [32] penalty deters others from sinning. This type is, so to speak, προφυλακτικὸς τρόπος, “a preventive procedure.” The first kind of punishment has as its aim the correction of one individual; the second kind is aimed at the correction of all other persons, in addition to that one. The attainment of these two objectives leads to a third: universal security. For if all persons conduct themselves aright, it necessarily follows that no one will suffer wrongfully.

These are the three ends sought by the law (so Senecaa says) in the punishment of wrongdoing: ends which coincide for the most part, and to such an extent, indeed, that even capital punishment, according to the Platonists,b is in a sense beneficial to the guilty parties, whenever there is no other remedy for their incurably diseased spirits. It is clear, then, that the following assertion made by Platoc is entirely true: οὐ γὰρ ἐπὶ κακῳ̑ δίκη γίγνεται οὐδεμία; “No legal punishment has evil as its aim.” As the Scholasticsd have maintained, it is not proper for the spirit of the avenger to dwell with pleasure upon any person’s ill fortune. According to the teachings of Seneca,e he who inflicts vengeance in the right way exacts punishment not eagerly and for its own sake, but because it behoves him to do so; not as if vengeance were sweet, but on the ground that it serves a useful purpose; not in anger, but in the exercise of caution. Such a person is intent upon future acts that can be averted, rather than upon acts that are past and irrevocable; and, as Platof observes, he imposes punishment not because sin has been committed but in order that its commission may be prevented. A part of these precepts regarding punishment is so necessary, indeed, that some personsg have described justice itself as τιμωρίας ἀπαίτησιν παρὰ τω̑ν προηδικηκότων, “the exaction of a penalty from those who have previously Edition: current; Page: [33] committed a wrongful act.” Such is the purport of the legal maxims, “Evil deeds ought not to go unpunished,” “Indulgence should not be shown to human wickedness,” and various similar sayings.

But that other law, [the Sixth,] regarding repayment for good deeds, is characterized by an equity no less manifest. We find this passage in Xenophon:a τί δἑ τοὺς εὐ̑ ποιου̑ντας, ἀντευεργετει̑ν οὐ πανταχου̑ νόμιμόν ἐστι; νόμιμον ἔφη; “‘Again, is it not the universal law, that we should repay with benefactions those persons who have deserved well of us?’ ‘To be sure, it is,’ said he.” The jurists,b too, hold that πρὸςEdition: 1950; Page: [9] ἀντίδωρα, “the obligation to repay,” is a natural obligation, and that it is unjust in the eyes of nature for one individual to be enriched at the expense of another, or for any person to suffer loss in consequence of his own good deed. Senecac declares that, “The maxim, ‘Repay what you owe,’ is just in the highest degree, and constitutes a pronouncement of the law of nations.”Edition: 1950; Page: [10]

However, since the exchange of good things is voluntary (as we have already pointed out), the extent of the credit involved is measured by the will of the creditor. For there is one kind of good that is so called in an absolute sense, and there is another kind that is good from the standpoint of a particular individual. Indeed, to borrow Aristotle’sd admirable explanation, ὅσα περὶ ἕκαστον νου̑ς ἀποδίδωσιν ἑκάστῳ του̑τ’ ἐστιν ἑκάστῳ ἀγαθόν; “Whatever each person’s understanding has ruled for him regarding a given matter, that to him is good.” For 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 Edition: current; Page: [34] his own will?aLiberty and ownership And liberty in regard to actions is equivalent to ownership in regard to property.b Hence the saying: “Every man is the governor and arbiter of affairs relative to his own property.”c To be sure, one’s will may undergo change, but not to the extent of deceiving others;d that is to say, not to the extent of winning another person over to a state of credulous confidence advantageous or pleasurable to oneself e but for the most part harmful to that other individual. For even if no additional injury is involved, it is in any case an evil to be deceived in one’s belief. Platof put this thought in the form of a question: τὸ ἐψευ̑σθαι τη̑ς ἀληθείας κακόν; [Or is it not an evil to be deceived concerning the truth?] Assuredly, no just man will be the cause of such an evil to his fellow man.

Rule IIIFrom the foregoing considerations the rule of good faith is derived: What each individual has indicated to be his will, that is law with respect to him.g With this rule the old saying agrees, that no injuryh is committed against a person who is willing; as does also the traditional maxim that nothing else is so congruous with natural equity and the good faith of mankind, as is the observance of agreements which have been accepted among the various parties.i Thus Cicero,j too, declares that good faith is the foundation of justice.

But there is a difference between tacit indication of will and express indication thereof. Tacit indication is effected by giving any kind of sign; express indication, by the means which God granted to man alone for this very purpose, namely, the medium of speech.k This gift isEdition: 1950; Page: [10] Edition: current; Page: [35] regarded as so sacred and inviolable an instrument for the interchange of blessings and the reciprocal intimation of human will that, in the eyes of all men, there is no more grievous disgrace than that attached to lying.aPacts Herein lies the origin of pacts, which is necessarily bound up with the Sixth Law, as has been indicated above. It was this law that Simonides had in mind when he proposed the following definition of justice: “To speak the truth, and to pay back what has been received.”b The Platonists, moreover, frequently refer to justice as ἀλήθειαν, a term translated by Apuleiusc as “trustworthiness” [ fidelitas].

When it came to pass, after these principles had been established, that many persons (such is the evil growing out of the corrupt nature of some men!) either failed to meet their obligations or even assailed the fortunes and the very lives of others, for the most part without suffering punishment—since the unforeseeing were attacked by those who were prepared, or single individuals by large groups—there arose the need for a new remedy, lest the laws of human society be cast aside as invalid.d This need was especially urgent in view of the increasing number of human beings, swollen to such a multitude that men were scattered about with vast distances separating them and were being deprived of opportunities for mutual benefaction. Therefore, the lesser social units began to gather individuals together into one locality, not with the intention of abolishing the society which links all men as a whole, but rather in order to fortify that universal society by a more dependable means of protection, and at the same time, with the purpose of bringing together under a more convenient arrangement the numerous different products of many persons’ labour which are required for the uses of human life. For it is a fact (as Plinye so graphically points out) that when universal goods are separately distributed, each man’s ills pertain to him individually, whereas, when those goods are brought together and intermingled, individual Edition: current; Page: [36] ills cease to be the concern of any one person and the goods of all pertain to all. In this matter, too, as in every other, human diligence has imitated nature, which has ensured the preservation of the universe by a species of covenant binding upon all of its parts. Accordingly, this smaller social unit, formed by a general agreement for the sake of the common gooda—in other words, this considerable group sufficing for self-protection through mutual aid, and for equal acquisition of the necessities of life—is called a commonwealth [Respublica];The commonwealth and citizens and the individuals making up the commonwealth are called citizens [cives].

This system of organization has its origin in God the King, who rules the whole universe and to whom, indeed (so the philosophersb declare) nothing achieved on earth is more acceptable than those associations and assemblies of men which are known as states [civitates]. According to Cicero,c Jupiter himself sanctioned the following precept, or law: All things salutary to the commonwealth are to be regarded as legitimate and just.

There is agreement on this point, moreover, among almost all peoples, for in every part of the world we find a division into just such united groups, with the result that persons who hold themselves aloof from this established practice seem hardly worthy to be called human beings. Thus one might almost say that the ultimate infamy is the condition described in the wordsd ἀφρήτωρ, ἀθἑμιστος, ἀνἑστιος, “a lawless man, without tribe or hearth.”

In addition to the common opinion of mankind, another factor has played a part: the will of individuals, manifested either in the formal acceptance of pacts, as was originally the case, or in tacit indication of consent, as in later times, when each individual attached himself to the body of a commonwealth that had already been established.e For a commonwealth, even though it is composed of different parts,Edition: 1950; Page: [11] Edition: current; Page: [37] constitutes by virtue of its underlying purpose a unified and permanent body, and therefore the commonwealth as a whole should be regarded as subject to a single law.aEdition: 1950; Page: [11a]

Now, within this corporate whole, which is in a sense a condensed version of that larger entity, [the universal society established by nature,] the functions of the two forms of justice above mentioned, [i.e. distributive and compensatory justice,] are revealed in a much clearer light. For distributive justice allots public possessions to various owners on a comparative basis of individual merit, and assigns duties and burdens to the various citizens in accordance with the strength of each. Compensatory justice, on the other hand, is concerned not only with the preservation of equality among individuals, but also with the bestowal of appropriate honours and rewards upon deserving patriots, and with the punishment of persons who are injuring the community. Furthermore, this same form of justice shows us how acts directed to individuals are of interest to the whole, for it confers civic crowns as well as triumphal honours, and does not confine its public judgements to cases of high treason, but on the contrary demands punishment also for homicides, forgers, and similar malefactors. Such functions, of course, are in quite close accord with the law of the society founded by nature.

It seems, however, that there are laws peculiar to the civil covenant, which are derived from the three rules above stated and which extend beyond the laws already set forth,Law VII as follows: first, Individual citizensEdition: 1950; Page: [11] should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals; b secondly,Law VIII 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 relation to the former precept, Platoc calls citizens βοηθούς, and in relation to the latter, he calls them κοινωνούς, that is to say, “auxiliaries” of one another, and “partners.”

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These two laws, then, are directed in a certain sense to the common good, though not to that phase of the concept with which the laws of the third order [Laws V and VI] are concerned, namely, the good of the different individuals composing the community. Laws VII and VIII relate rather to the common good interpreted as the good of the unit and therefore [in a subordinate sense] as one’s own. Accordingly, although 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 persona—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, which is the purport of the proverbs, “I myself am my own closest neighbour,” γόνυ κνήμης ἔγγιον [My knee is closer than my shin], “My tunic is closer than my cloak”—nevertheless, in questions involving a comparison between the good of single individuals and the good of all (both of which can correctly be described as “one’s own,”b since the term “all” does in fact refer to a species of unit), the more general concept should take precedence on the ground that it includes the good of individuals as well.c In other words, the cargo cannot be saved unless the ship is preserved. Hieroclesd says: χρὴ τὸ κοινὸν του̑ κατ’ ἰδίαν μὴ χωρίζειν, ἀλλ’ ἒν ἔγει̑σθαι καὶ ταὐτόν, τό τε γὰρ τῃ̑ πατρίδι συμφἑρον κοινόν ἐστι καὶ τω̑ν κατὰ μἑρος ἑκάστῳ. “That which is public should not be separated from that which is private [. . .].9 For whatever is beneficial for one’s country [as a whole] is likewise of common [advantage] to the various parts thereof.” The speech of Pericles, as recorded by Thucydides,e clarifies this very problem Edition: current; Page: [39] of why and to what extent private well-being is subordinate to public well-being. Pericles is represented as speaking thus:

ἐγὼ γὰρ ἔγου̑μαι πόλιν πλείω ξύμπασαν ὀρθουμἑνην ὠφελει̑ν τοὺς ἰδιώτας, ἢ καθ’ ἕκαστον τω̑ν πολιτω̑ν εὐπραγου̑σαν, ἁθρόαν δὲ σφαλλομἑνην. καλω̑ς μὲν γὰρ φερόμενος ἀνὴρ τὸ καθ’ ἑαυτὸν, διαφθειρομἑνης τη̑ς πατρίδος, οὐδὲν ἡ̑σσον ξυναπόλλυται. κακοτυχω̑ν δὲ εὐ εὐτυχούσῃ, πολλῳ̑ μα̑λλον διασώζεται. ὁπότε οὐ̑ν πόλις μὲν τὰς ἰδίας ξυμφορὰς οἵα τε φἑρειν, εἱ̑ς δὲ ἕκαστος τὰς ἐκείνης ἀδύνατος, πω̑ς οὐ χρὴ πάντας ἀμύνειν αὐτῃ̑; καὶ μὴ, ὃ νυ̑ν ὑμει̑ς δρα̑τε, ται̑ς κατ’ οἰ̑κον κακοπραγίαις ἐκπεπληγμἑνοι του̑ κοινου̑ τη̑ς σωτηρίας ἀφίεσθε.Edition: 1950; Page: [11b]

For it is my belief that private citizens, too, derive more benefit from a state which is successful as a whole, than from one where individual interests flourish but where the state itself, as an entity, is falling into ruin. For even he whose personal fortunes are well invested, must nevertheless perish if his country is destroyed; while on the other hand, if some individual within a prosperous state is not particularly fortunate, he is still far more likely to be preserved unharmed through the latter. Accordingly, since the state is undoubtedly able to endure the misfortunes of private citizens, whereas the citizen cannot in like manner endure public misfortune, how can it be otherwise than fitting that all persons take counsel together for the state and for its defence, instead of adopting the course which you now follow in betraying the commonwealth because you are stunned, so to speak, by your private losses?

Livya summed up this view in the following concise statement: “While the state remains unharmed, it will easily answer for the safety of private property, too. In nowise will you be able to protect your own interests by betraying the public interest.”Edition: 1950; Page: [11]

Moreover, since it is the will involved that constitutes the measure of a good, as we have already pointed out, it follows that the will of the whole group prevails in regard to the common good, and even in regard to the good of individuals, in so far as the latter is subordinate to the former. For the individual members of the group have themselves consented Edition: current; Page: [40] to this arrangement, and one of the various attributes of free will is the power to accommodate one’s own will to that of another.a The will of all,Lex, properly so called when applied to all, is called lex [statutory law]. This law proceeds from God, wherefore it is proclaimed to beb εὕρημα καὶ δω̑ρον θεου̑, “the invention and gift of God.” It is approved by the common consent of all mankind, a point borne out by the words of Chrysippus: νόμος γὰρ τω̑ν φύσει πολιτικω̑ν ζώων προστατικός; “for lex is the guardian of those living beings who are by their natures adapted to civil life.”c In short, lex rests upon the mutual agreement and the will ofEdition: 1950; Page: [11] individuals, and with this fact in mind, Demosthenes and Plato sometimes refer to it as κοινὴ πόλεως συνθήκη, “the common pact of the state.”d

Rule IVThus, on the basis of the earlier rules, the following additional rule has developed: Whatever the commonwealth has indicated to be its will, that is law [ius] in regard to the whole body of citizens. This principle is the source of that branch of law described by the philosophers as θετικόν [positive], or νομικόν [conventional], or even ἴδιον [particular, domestic],10Municipal law and by the jurists as “municipal law.” It is law not in an absolute but in a relative sense.e The distinction may be illustrated by means of the following analogy: if an ox is exchanged for a sheep, the objects exchanged are certainly not equal in themselves, but equal merely in that the contracting parties have been pleased to make them so. Thus it is quite understandable that what would not otherwise be illicit should become so in this relative sense.f Nor is it strange that laws of the kind Edition: current; Page: [41] in question should change with their causea—that is to say, in accordance with the human will—while natural precepts, based as they are upon a constant cause, remain constant in themselves; or that the former should vary in different localities, since the various communities differ, of course, in their conception of what is good.

The will of the whole, when applied to particular individuals with the public good in view, becomes a “judgement.”A Judgement [or Judicial Pronouncement] For, owing to the fact that men (repeatedly carried away not by true self-love but by a false and inordinate form of that sentiment, the root of every evil) were mistaking for equality that which was in point of fact disproportionate ownership, and because this false conception was giving rise to dissension and tumult, evils which it was important to avoid for the sake of concord and public tranquillity, the state intervened in the role of arbiter among the contending parties, and divided the various portions equitably.Edition: 1950; Page: [11a] This is the point made by Democritusb when he says: οὐκ ἂν ἐκώλυον οἱ νόμοι τὴν ἕκαστον κατ’ ἰδίην ἐξουσίαν, εἰ μὴ ἕτερος ἕτερον ἐλυμαίνετο. φθόνος γὰρ στάσιος ἀρχὴν ἀπεργάζεται. “Assuredly, the laws would not have prohibited that each person should live in accordance with his own free will, had there been no tendency on the part of any man to injure his fellow. For it is ill will that paves the way for civil discord.” The origin of judgements, then, is the same as the origin of laws. For those persons are called “princes,”c

  • δικάσπολοι οἵ κε θἑμιστας
  • ἐκ Διὸς εἰρύαται.
  • Who to the nations of the world hand down
  • The sacred laws of Jove. . . .
Edition: current; Page: [42]

In like vein, the poet above quoted wrote:a

  • εἱ̑ς βασιλεὺς ᾡ̂ ἔδωκε Κρόνου παι̑ς ἀγκυλομήτεω
  • σκη̑πτρόν τ’ ἠδὲ θἑμιστας.
  • Let one king rule, he to whom Saturn gives
  • The golden sceptre and the judge’s robe!

Yet another author has said:b

  • μεσταὶ δὲ Διὸς πα̑σαι μὲν ἀγυι̑αι,
  • πα̑σαι δ’ ἀνθρώπων ἀγοραί.
  • For Jove’s divinity fills all the towns
  • And forums of mankind.Edition: 1950; Page: [11]

Accordingly, even though the precepts of nature permitted every individual to pronounce judgement for himself and of himself, it is clear that all nations deemed it necessary to institute some orderly judicial system, and that individual citizens gave general consent to this project. For the latter, moved by the realization that otherwise their own weakness would prevent them from obtaining their due, bound themselves to abide by the verdict of the state. Indeed, as is quite commonly acknowledged, the very nature of jurisdiction renders it absolutely impossible for any jurisdiction to be established save by general consent.c This fact is brought out by the following rule:Rule V Whatever the commonwealth has indicated to be its will, that is law for the individual citizens in their mutual relations.

A JudgementThe Fifth Rule differs from the Fourth, in that a judicial pronouncement differs from a precept of municipal law. For such a pronouncement is law made applicable to a particular case. Therefore, in so far as municipal law is concerned, the precept of prime importance for the preservation of human society is the one that makes judicial procedure aEdition: 1950; Page: [12] Edition: current; Page: [43] requisite.Law IX This precept runs as follows: No citizen shall seek to enforce his own right against a fellow citizen, save by judicial procedure. a

Now, the Ninth Law is applicable even to the state itself; for the state is obliged to proceed in accordance with judicial usage when involved in any contention with individuals.b Nevertheless, since the state has no superior, it is necessarily the judge even of its own cause. Thus the assertion made by Tacitusc was true, namely, that by a provision emanating from the Divine Will, the people were to brook no other judge than themselves.

In the light of the foregoing observations, it is clear that the civil power which manifests itself in laws and judgementsd resides primarily and essentially within the state itself; for just as power over individuals and their possessions pertains in the nature of things to those individuals, even so there can be no power over all persons and over their goods unless it be a power pertaining to all. On the other hand, just as in private matters we contract obligations or acquire benefits not through our own actions alone but also through the agency of those whom we have placed in charge of our affairs (for it makes no difference whether we perform directly or by proxye any act that we are permitted to perform), so by a similar process it came to pass, as customarily occurs even now in the case of the larger social units, that society, exercising its lawful power over individuals, delegated these functions in whole or in part to specific persons from among its own members. For not every individual in the various nations was free to devote his time to the administration of civil affairs; and furthermore, certain situations were wont to arise which were more satisfactorily handled by a few representatives. Those who are entrusted with such a commission are called, in Greek, ἄρχοντες [archons]; in Latin,Magistrates magistratus [magistrates].

At this point, it is opportune to note that some contracts look to the Edition: current; Page: [44] advantage of both contracting parties in an equal degree, whereas others are drawn up for the benefit of one party only, with the implication that the omission in regard to the party not specifically benefited will be repaired by the supplementary factor of his willingness, inasmuch as this factor connotes a disposition to be content with simple esteem in exchange for the costs or labour involved. Thus a lease differs from a commodate, barter from donation and a partnership from a mandate gratuitously undertaken. Both of the latter two items are included in the above-mentioned concept of magistracies, each from a different standpoint. For magistrates, in so far as they themselves are citizens, reap on their own behalf the harvest of their administrative labours, namely, the public good;a on the other hand, in so far as they are stewards of the state, they have been appointed to their posts not for their own but for the public welfare,b very much as if they were the pilots of a ship.

Consequently, in this connexion also two laws exist, laws inherent in the contract of [magisterial] mandate by its very nature:Law X first, The magistrate shall act in all matters for the good of the state;Law XI secondly, TheEdition: 1950; Page: [12] state shall uphold as valid every act of the magistrate. Senecac rightly maintains, with reference to the prince and the state, that we cannot dispense with either one, save to the destruction of both: “for just as the former needs supporting strength, so does the latter need a head.” If we turn back here in order to trace the foregoing assertions to the basic principles on which they rest, it will readily become apparent, in the light of the general consent given by the state and the sanctity with which all peoples invest the title of magistrate, that the author of this arrangement, [i.e. this relationship between prince and state,] is none other than God Himself. Such is the purport of the saying,d ἐκ δὲ Διὸς βασιλη̑ες, “Kings are from Jove.”

The power thus inherent in the [magisterial] mandate is the basis, moreover, of two rules which are connected with the Fourth and Fifth Edition: current; Page: [45] Rules, and which serve to confirm, in the first instance, the authority of legislators, and in the second instance, the authority of judges. I refer to the following precepts:Rule VI first, What the magistrate has indicated to be his will, that is law in regard to the whole body of citizens; andRule VII secondly, What the magistrate has indicated to be his will, that is law in regard to the citizens as individuals. a

A supplementary observation should be introduced at this point, namely: that there exists a species of mixed law, compounded of the [primary] law of nations and municipal law, and designated in correct and precise terminology as “the secondary law of nations.”bThe Secondary law of nations For just as the common good of private persons gave rise to the precepts above set forth, so also, owing to the existence of a common good of an international nature, the various peoples who had established states for themselves entered into agreements concerning that international good. From this circumstance another rule arose, a rule modelled on the fourth, which in turn had derived its basic principle from the second and third and, consequently, from the first. According to this Eighth Rule,Rule VIII Whatever all states have indicated to be their will, that is law in regard to all of them.

As illustrations of this precept, one might mention the inviolability of ambassadorsc (to whom all peoples organized in the form of a state accord equal sanctity), various matters relating to the burial of the deadd and other institutions of a similar kind.Edition: 1950; Page: [12a]

New explanationSuch institutions, indeed, are divided into two classes. For some have the force of an international pact, as in the cases just mentioned; others lack that force, and these I should prefer to classify under the head of accepted custom rather than under the head of law.

Edition: current; Page: [46]

Nevertheless, even these consuetudinary institutions are frequently described as forming a part of the [secondary] law of nations. This occurs, for example, in connexion with the provisions relative to servitude, to certain kinds of contract, and to order of succession, provisions which have been adopted in identical form—either imitatively or as a coincidence—by all or at least by a majority of nations, in accordance with their separate and individual interests. It is permissible for individual states to renounce such institutions, because of the very fact that the latter were established not by common [international] agreement but by the respective states, acting singly; just as, in the case of a given political community, not everything customary among the majority of persons will forthwith constitute law, but only that which concerns the mutual relations of the citizens. For there are many customary practices of a private rather than a public character (such as the vast number of customs recorded in the compilations of antiquarians, connected with clothing, banquets, or funerals) which the head of any household is free to discard at will even though they have been generally accepted.

Among the other precepts of the law of nations—those binding upon the various peoples as if by force of contract—the most importantEdition: 1950; Page: [12] is the one which resembles the first precept of municipal law [Law IX], and which may be worded thus:Law XII Neither the state nor any citizen thereof shall seek to enforce his own right against another state or its citizen,Edition: 1950; Page: [13] save by judicial procedure. The necessity for this precept is indeed self-evident, and can be deduced from the observations already set forth.

But a new difficulty presents itself at this point, one which did not appear in connexion with municipal law. For citizens ὑποτάσσονται [are subject] to their respective states, and therefore, both in disputes with one another and in disputes with the state, they rightly submit to the judgement of the latter; whereas one state [οὐχ] ὑποτάσσεται, but rather, ἀντιτάσσεται—that is to say, it is not in subjection but in contraposition—to another state, and citizens of the one are likewise contraposed to citizens of the other.New explanation While it was readily agreed, of course, that the judicial function should be exercised by a state, there was a possibility of disagreement as to which of two states should be the one to Edition: current; Page: [47] discharge this function; for each of them, indeed, could refer to those famous lines:a

  • δίκαιοι δ’ ἐσμὲν οἰκου̑ντες πόλιν
  • αὐτοὶ καθ’ αὑτοὺς κυρίας κραίνειν δίκας.
  • All we who dwell within these city walls,
  • Have power to execute our courts’ decrees.

Truly, there is no greater sovereign power set over the power of the state and superior to it, since the state is a self-sufficient aggregation. Nor was it possible for all of the nations not involved in a dispute to reach an agreement providing for an inquiry by them into the case of each disputant.

Thus it was necessary to settle any controversy of this kind by resorting to some distinction, such as that incorporated in the following rule:Rule IX In regard to judicial procedure, precedence shall be given to the state which is the defendant, or whose citizen is the defendant; but if the said state proves remiss in the discharge of its judicial duty, then that state shall be the judge, which is itself the plaintiff, or whose citizen is the plaintiff. As a matter of fact, such disputes could not have been settled in any other way. For two parties—the plaintiff and the defendant—are involved in every lawsuit, and in the situation which we are discussing it was absolutely necessary that the state representing one of the parties should be given the role of judge; so that the most suitable procedure consisted in bringing the case first of all before the state which could most easily execute the judgement, in other words, the state said to be in possession of the surplus whose seizure would result in an equitable distribution of the whole. Treaties between friendly nations, too, are usually drawn up in accordance with this principle. For example, in the treaty between the Gauls and Hannibal, it was provided that, if the Gauls accused a Carthaginian, the case should be tried by the Carthaginians; whereas, ifEdition: 1950; Page: [13] the latter accused a Gaul, then Gallic womenb (for in Gaul the female Edition: current; Page: [48] sex enjoyed great authority, even in public affairs) should adjudicate the dispute. Reasoning in the same manner, Demophoon replied to Eurystheus, King Tatius to the Laurentines, the Athenian people to Alexander, and others on a great many occasions to yet other parties, when they were ordered to hand over certain fellow countrymen for punishment, that they themselves would administer the punishment in accordance with justice and the laws, if anyone should bring forward an accusation.

On the other hand, if a state stubbornly defends an injury inflicted by its citizens or (as more frequently happens) by itself,a and if it neither confesses that the injury has been committed nor makes amends therefor, then, to be sure, the conduct of the trial passes by the aforesaid natural law to the other party, namely, the state that has complained of injury suffered either by itself or by one of its citizens. Accordingly, in cases of this kind, the mere passing of judgement in any form whatsoever will not suffice, as it does when a judge lays down the law within a single state. For it is not as the result of a compact that one state has power over another, but rather by the force of nature, which allows every individual to seek his own right. Therefore, the existence of such a right is a preliminary requisite. This is the significance of the universally accepted doctrineb that one state is made subject to another by transgressing. For whosoever wages war justly must become to that extent the judge of his adversary, or (as Platoc has said), σωφρονιστής, “censor and chastiser” of the latter, turning back of necessity to the system in force under the law of nature, which permitted each individual to be the judge of his own cause.

Up to this point, we have been discussing laws that accord with established usage.

All of these precepts are of a general and necessary character, save that they are naturally and implicitly subject to one exception:d that is to say, Edition: current; Page: [49] whenever a case arises in which the laws appear to conflict with one another—a situation described by the rhetoricians as τὴν κατὰ περίστασιν μάχην, “a conflict produced by circumstances”—the principle embodied in the superior law is upheld, and the inferior law is set aside. Accordingly, the law of all laws, so to speak, may be stated as follows: In cases where [the laws] can be observed simultaneously,Law XIII let them [all] be observed; when this is impossible, the law of superior rank shall prevail.a

Now, this very point as to which law is of superior rank, may be determined on the dual basis of the origin and the purpose of the precepts involved. For, from the standpoint of origin, the divine law is superior to human law, and the latter to civil law.b From the standpoint of purpose, that which concerns one’s own good is preferred to that which concerns another’s good; the greater good, to the lesser, and the removal of a major evil, to the promotion of a minor good. If, for example, your life is imperilled in the wilderness as the result of an attack from some individual, under circumstances of time and place that do not permit of recourse to a judge, you will rightly defend yourself, disregarding the Ninth Law, relative to judicial procedure.c For that matter, not even the Third Law, which forbids you to injure another, will be an obstacle to such righteous self-defence; for otherwise you would not be able to exercise your right under the First Law, which commends your ownEdition: 1950; Page: [14] life to your care.d Similarly, if any person holds property of mine in his possession without reimbursing me for it, and if that person is preparing for flight so that there is no hope of recalling him for trial, then I must have recourse to the Sixth Law, which requires that good be done to the doers of good, or in other words, that the loss [suffered by the benefactor] be compensated by gain,e since the above-mentioned precept regarding judicial procedure ceases to apply. Nor will the Fourth Law, forbidding Edition: current; Page: [50] the seizure of another’s property, serve as an obstacle to my recovery of compensation contributory to my livelihood in accordance with the Second Law. For no one should be compelled to throw away his own property. But as soon as that imminent peril of death or loss shall cease, it will be obligatory to observe the different laws, no longer in mutual conflict, at one and the same time.

We have seen what constitutes a “right” (ius); and from this concept we derive also the definition of a “wrong” or “injury” (iniuria), guided by the basic belief that this term refers to whatever is done in opposition to right.a Accordingly, that action is just whereby a right is awarded to the party to whom it is conceded by the various rules and laws, whereas actions of a contrary nature are unjust.

Now, even as actions have their inception in our minds, so do they culminate in our bodies, a process which may be called “execution.” But man has been given a body that is weak and infirm, wherefore extracorporeal instruments have also been provided for its service. We call these instruments “arms.” They are used by the just man for defence and [lawful] acquisition, by the unjust man, for attack and seizure. Armed execution against an armed adversary is designated by the term “war.”War A war is said to be “just”Just war if it consists in the execution of a right, andUnjust war “unjust” if it consists in the execution of an injury. It is called “public” when waged by the will of the state,Public war and in this latter concept the will of magistrates (e.g. princes) is included. Moreover, public war may be either “civil”Civil war (when waged against a part of the same state) or “foreign”Foreign war (when waged against other states). What is known as a “war of allies” is a form of foreign war. Those which are waged otherwise [than by the public will], are “private”Private war wars, although some authoritiesb have preferred to describe such conflicts as “quarrels” rather than as “wars.” These conflicts, too, may be either civil or foreign. In the present work, the terms “seizure of prize,”Seizure of prize or booty “seizure of booty,”11 are used to refer to the acquisition of enemy property through war.

Edition: current; Page: [51]

CHAPTER III

Question I

Article I. Is any war just?

Article II. Is any war just for Christians?

Article III. Is any war just for Christians, against Christians?

Article IV. Is any war just for Christians, against Christians, from the standpoint of all law?

Accordingly, before we enter into a discussion of prize and booty, we must dispose of a certain question regarding war, namely: Can any war be just?Edition: 1950; Page: [14]

To be sure, no one has ever succeeded in representing this as a doubtful issue without also rejecting a large part of Holy Writ, together with the supreme benefactions conferred by the Divine and Eternal Spirit, that is to say, civil order and the lawful authority of magistrates. In earlier times the Manichees were included in this subversive group, and even now there are persons who revive many errors of the Manichees, under a new name. The ignorant teachings of the Manichaean sect, however, both in regard to the question propounded above and on other matters, were refuted long ago by Augustine;a nor has our own age lacked authorities to beat back with unanswerable arguments the recrudescent tide of superstition released by fanatics.

In our opinion there is less need to refute the doctrines of such fanatics than there is to strengthen the stand taken by other persons, who do not profess the said doctrines but who nevertheless lack an adequate under-standing Edition: current; Page: [52] of the reason for adopting a different belief. Therefore, we shall elucidate this point, as follows.

He who wills the attainment of a given end,Formal Exposition of Article I wills also the things that are necessary to that end.a God wills that we should protect ourselves, retain our hold on the necessities of life, obtain that which is our due, punish transgressors, and at the same time defend the state, executing its orders as well as the commands of its magistrates. All this is plainly revealed in the laws set forth in the preceding chapter.b But these divine objectives sometimes constitute causes for undertaking and carrying on war. In fact, they are of such a nature that it is very often impossible for us to attain them without recourse to warfare, as is indicated in the definition of war already formulated.c Just as a certain natural conflict is waged, so to speak, between dryness and moisture, or between heat and cold, so there is a similar conflict between justice and injustice. Indeed, factual evidence clearly shows that there are in existence many men of a bloodthirsty, rapacious, unjust, and nefarious disposition, traitors to their native lands and disparagers of sovereign power—men who are strong, too, and equipped with weapons—who must be conquered in battle (as Tacitus puts it) in order that they may be brought to book as criminals. Thus it is God’s Will that certain wars should be waged; that is to say (in the phraseology of the theologians),d certain wars are waged in accordance with God’s good pleasure. Yet no one will deny that whatsoever God wills, is just.e Therefore, some wars are just; or, in other words, it is permissible to wage war.

Nor is there even any pretext for objecting to these just wars. For the persons who hate war, base their hatred either upon its causes or upon its effects. The theologians and the philosophers have levelled many severe criticisms at such causes as ambition, avarice, and dissension; Edition: current; Page: [53] yet the same authorities, despite their censorious attitude towards un-just wars, do not by any means deny that certain wars are just. As for the critics whose condemnation of war is based upon its effects, such persons fall into the all-too-frequent error of failure to distinguish between τὸ καθ’ αὑτὸ καὶ τὸ κατὰ συμβεβηκός, “the essential and theEdition: 1950; Page: [15] incidental.” For, granting that damage and destruction frequently occur in the course of a war even when it is justly waged, nevertheless, we cannot raise any objection on this ground, when those who are fighting for a righteous reason have as their purpose the conservation of their own lives and property. Every act should be judged by its essential nature, not on the basis of additional and extraneous factors. “Virtue is never increased by its consequences”;a neither, therefore, can it be impaired by its consequences. In other words, as the Stoicsb quite rightly taught, acts that spring from virtue should be deemed righteous in the light of their very inception and not because of their perfect execution. In so far as concerns the actual outcome in the majority of cases, however, it is permissible to assert that God customarily interposes His judgement in the fortunes of war in such a way that success falls not infrequently on the side where right also lies.

First Formal Exposition of Articles II and IIIAs for a certain fanciful belief entertained by some persons—namely, that warfare was formerly permissible but has become illicit since Christ propounded His teachings, or at least that this is the case as regards wars among Christians—that supposition might be viewed with tolerance if it were interpreted as meaning that there always exists in any war, on one side or the other, some guilt unworthy of the name of Christian; but in the present instance, when the said persons maintain that both sides are necessarily committing a sin, their contention is the height of absurdity.

For the law of nature—that is to say, the law instilled by God into the heart of created things, from the first moment of their creation, for Edition: current; Page: [54] their own conservation—is law for all times and all places,a inasmuch as the Divine Will is immutable and eternal. This is the conclusion reached by Socrates, as quoted in Plato’s Minos. b The validity of such law for all times is proclaimed by Sophocles,c when he says:

  • οὐ γάρ τι νυ̑ν τε κἀχθἑς, ἀλλ’ ἀεί ποτε
  • ζῃ̑ ταυ̑τα.
  • Not of to-day, nor yet of yesterday,
  • Are these, [the laws of Heav’n,] but for all time.

Its validity for all places is recognized by Empedoclesd in these lines:

  • ἀλλὰ τὸ μὲν πάντων νόμιμον, διά τ’ εὐρυμἑδοντος
  • αἰθἑρος ἠνεκἑως τἑταται, διά τ’ ἀπλἑτου αἴης.
  • That law has common force and is upheld
  • Throughout the far-flung heav’ns and earth’s vast realms.

But the law of war is a phase of the law of nature, a point supported by the foregoing discussion and correctly explained by Josephuse in the following statement: φύσεως γὰρ νόμος ἰσχυρὸς ἐν ἅπασι τὸ ζη̑ν ἐθἑλειν, διὰ του̑το καὶ τοὺς φανερω̑ς ἀφαιρουμἑνους ἔμα̑ς τούτου πολεμίους ἔγούμεθα. “For the law of nature is the law in force among all beings, which imposes upon them the will to live; and precisely herein lies our reason for regarding as enemies those persons who manifestly desire to deprive us of life.” Moreover, we see other living creatures similarly engaged in strife, impelled by a certain natural instinct and acting notEdition: 1950; Page: [15] only in defence of their lives but also for the sake of their conjugal companions (so to speak), their offspring, their homes, and their sustenance. Therefore, if this law is valid for all times, it is valid even for times after Edition: current; Page: [55] the advent of Christ; if it is valid for all places, it is valid even among Christians.a

Let us demonstrate the same point in another way.Second Formal Exposition of Articles II and III That which is approved by the universal consent of all peoples is law for all and in regard to all. But war falls under this head; for any precept of the law of nature must necessarily be a precept of the law of nations, since it clearly enjoys the support of reason. Thus Hermogenianusb ascribes the authorization of wars to the law of nations; and Florentinusc derives from the same source authorization for the protection of one’s body and for the repulsion of all injuries. Baldus,d the finest philosopher among the jurists, adopts an identical view when he says that reason has recourse to arms whenever justice cannot be secure without arms. Furthermore, throughout the world, explored by now almost in its entirety, no nation has been found that does not regard as lawful the prosecution of its rights, even by armed force. What, indeed, is the nature of the threat to adversaries implicit in the ramparts of walled cities (so lofty even in times of peace!), in boundary fortifications, in the guards posted at city gates, if it be not the threat of war? But if the law in question exists for all and in regard to all, then it must surely exist even for Christians against Christians, since we certainly do not deny that the latter form a part of mankind, and since the logical principle involved is, moreover, the same, inasmuch as Christians both suffer and inflict injury—even, at times, armed injury. For the term “Christians” is employed here with reference to the profession of that name, rather than to the imitation of Christ’s life which proves that we are truly Christians.e Let us grant that we are brothers; but, unless I am mistaken, it is right that I should repulse with arms a brother who is eager to slay me and who is already brandishing his weapons!

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Formal Exposition of Article IVTherefore, according to every kind of law, it is permissible to wage war. For we have already made it sufficiently clear that warfare is compatible with divine law, that is to say, with the law of nature and the law of nations; and the precepts of these two bodies of law certainly cannot be invalidated by civil law.a As Cicerob observed, civil precepts do not necessarily form a part of the law of nations, but the precepts of the latter ought to be recognized as a part of civil law. For even citizens, since they are also human beings, should desire what all humanity desires; and as human beings, representing the handiwork of God, they are obliged to obey the dictates imposed by Him through nature. Furthermore, wars have a bearing not only upon the safety of individuals, but also upon the defence of the state and its magistrates. It is for this reason that there is no state which has refrained entirely from establishing some provision relative to the law of war. As a matter of fact, the most illustrious legislators have devoted a chief part of their labours to the task of decreeing rewards for the brave and punishments for the cowardly. Roman law, indeed, is justly regarded as having attained to the highest degree of perfection in the magnitude and long duration of its sway; and if we search this field for the authoritative opinions of jurists and the imperial regulations of the Caesars, we shall find whole chaptersEdition: 1950; Page: [16] “Concerning Captives and Postliminium,” “Concerning Military Matters,” and “Concerning Veterans,” as well as others dealing with the privileges accorded to soldiers.c Again, if we turn to the papal Decrees,d many of these will be found—whether issued by the pontiffs themselves or assembled from the statements of ancient writers—which quite clearly proclaim the justice of wars.

First Informal Exposition of Article INow let us consider the testimony of Holy Writ. Although this method of proof is ἄτεχνον, “not derived from the art [of logic],” it is indeed by far the most certain method. For just as the Will of God—constituting Edition: current; Page: [57] the norm of justice, as we have already indicated—is revealed to us through nature, so also is it revealed through the Scriptures.

But God has commanded that wars be waged, as undertakings congruous with His Will,a and has furthermore declared Himself to be their Author and Aid.b He has even accepted the appellation “a man of war” as appropriate to His own majesty.c This same point is borne out by the divinely inspired pronouncement of the high priest who assured Abraham that God had delivered Abraham’s enemies into his hands;d and also by the words of the wise woman Abigail,e addressed to King David: “. . . my lord fighteth the battles of the Lord.” Indeed, the very fact that God endowed the state established by Himself with this institution of war,f as a form of defence, alone affords sufficient proof that the said institution is just and should be adopted by other nations whenever a like reason exists. Moreover, I believe all sane men will agree that he who lays down laws to regulate a given act does not disapprove of the act itself, and that this is especially true as applied to God, who does nothing without purpose or erroneously. Yet God prescribed regulations for warfare, through Moses,g and again, through the forerunner of Christ, as recorded in the New Testament.h With reference to the latter passage, Augustinei says: “. . . if Christian doctrine condemned all wars, [the soldiers] who sought [ John’s advice], according to the Gospel [of Luke], would have received, instead [of the advice they did receive], the following counsel of salvation: that they should cast away their arms and withdraw completely from military service. The counsel given them, however, was this: ‘Do violence to no man . . .; and be content with your wages.’ Surely [ John] was not prohibiting military service for those Edition: current; Page: [58] to whom he addressed the precept that their due wage [as soldiers] should suffice.”

Second Informal Exposition of Article IThe principle stated above1—namely, that he to whom a given endEdition: 1950; Page: [16] is pleasing, cannot be displeased by what is necessary to that end—may be deduced from authoritative passages no less than by a logical process, since all of the laws thus far propounded are also inscribed in Holy Writ. For He who bids us love our neighbour as ourselves,a gives first place to the true love of self, regarded as the πρωτότυπον, or prototype, whose ἔκτυπος, or image, is love for others.b If we combine this maxim with the precept laid down by the Creator for mankind,c we shall arrive not only at the conclusions incorporated in the First and Third Laws, but also at those expressed in the Second and Fourth.2 Indeed, since we are admonished by God to deliver them that are drawn unto death,d we are under a particularly solemn obligation to deliver ourselves. Yet again, we are bidden to “give to him that needeth,”e and therefore we are bidden to avert need from ourselves. The Fifth and Sixth Laws, too, are implicit in these passages: “Divers weights, and divers measures, both of them are alike abomination to the Lord”;f “. . . with what measure ye mete, it shall be measured to you again”;g “And as ye would that men should do to you, do ye also to them likewise”h (what ye would not have done unto you, do ye not unto others).i, 3 Christ does indeed show us that the law Edition: current; Page: [59] of nations requires that good be done to the doers of good; yet He also says: “. . . all they that take the sword shall perish with the sword.”a This same doctrine was expressed in the Old Law,b which goes so far as to prohibit us strictly from showing compassion to evildoers. But it often happens that, owing to the power of our adversaries, we are unable to defend ourselves and our possessions, exact that which is due us, or enforce punishment, save by resorting to armed force. Therefore, it is permissible to wage war.

Other laws, too, are found to have a firm foundation in the Sacred Scriptures. For example, when the advantages of social organization are pointed out to us [in the Book of Ecclesiastes],c we acquire an understanding of the origin of the state; just as we come to understand the sanctity of magistrates, when Pauld asserts in no uncertain terms that magistrates “are ordained of God.” From this same source the force of civil laws is derived, as is the power of judgement, given from above by Jesus Himself,e the Author thereof. Thus Divine Wisdom—of which all human wisdom is but ἀπορρώξ, “a fragment,” or offshoot, as it were—is represented as saying:f “Counsel is mine, and soundEdition: 1950; Page: [17] wisdom: I am understanding; I have strength. By me kings reign, and princes decree justice. By me princes rule, and nobles, even all the judges of the earth.” Again, what could be clearer than the exhortation of Paul?g “Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore Edition: current; Page: [60] resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.” In all the works of the philosophers—howsoever numerous and wheresoever found—there is no finer passage regarding the justice of magistrates. Do you ask who is the [true] author of this exhortation? The Author is God. For what purpose is it formulated? For your own good. And since God wills that the authority of magistrates shall be sacrosanct, does He not also approve of arms, whereby at times that authority must be defended? But will God extend to magistrates an avenging sword for use against unarmed culprits while refusing to give them a weapon against culprits who are armed, thus affording grounds for that incitement to all wickedness, the belief that “Whatever sin is committed by the many, goes unpunished”?a By no means! For the individual who sins alone ought not to be in a worse position than those persons who add to their own direct transgressions another evil—namely, the exposure of many people to the contagion of crime, and attack by open violence upon the laws and the public peace—and who are not therefore more in the right than other sinners, but rather, less susceptible to fear and shame.

From the foregoing observations it follows that some public wars are just. This same conclusion may be confirmed in yet another way.

Third Informal Exposition of Article IFor anyone who approves of the institutions established for the attainment of an end, can scarcely fail to approve of the end itself even much more emphatically; and no one is ignorant of the fact that tribute is an institution established primarily for purposes of war. Tacitusb spoke Edition: current; Page: [61] truly when he said: “there can be no tranquillity among nations unless there are armies, there can be no armies without pay, and pay cannot be provided without the exaction of tribute.” But God Himself,Edition: 1950; Page: [17] speaking both through Christ and through the Apostle Paul, ordains the payment of tribute.a Therefore, from this argument, too, it follows that some wars are approved by God as just.

First Informal Exposition of Article IITo the preceding assertion, I shall add the phrase, “even wars on the part of Christians.” For everything permitted prior to the establishment of the Law of Christ and not expressly prohibited by Him, is permissible for Christians;b we have already shown, and it is universally admitted, that there were just wars before the time of Christ; and He prohibited none of the things that were just according to the law of nature, among which (as we have observed) wars were included.Second Informal Exposition of Article II Furthermore, Christ changed no part of the Old Lawc that pertained in any way to justice and moral usage in human activities, under which head we place warfare. The contention that warfare was clearly approved,Third Informal Exposition of Article II is quite convincingly supported, moreover, by the above-citedd opinions of both John the Baptist and Paul.

First Informal Exposition of Article IIISome wars, then, are just for Christians. This conclusion is applicable even to some wars against Christians, that is to say, against persons who profess Christianity. For, by definition and in accordance with the very nature of opposites,e war is just when waged against those who commit injustice; but some Christians commit evil and unjust deeds, a fact to which Christ bears witness;f and therefore, it is lawful to proceed against such Christians with armed force.

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Second Informal Exposition of Article IIIAgain, Christians are subject to punishment; for it is to them that Paula speaks, in the passage above quoted. Indeed, those persons whom reverence for the most sacred of names has been unable to restrain from injurious conduct, are perhaps deserving of punishment by no means less severe than that merited by others. But certain penalties cannot be exacted without warfare. Consequently, even as it is unquestionably true that just wars were waged among the Hebrews,b despite the fact that they were bound to one another by ties not only of religion but also of government and blood relationship, so it cannot properly be doubted that similar conflicts may arise among Christians.

At the same time, one must admit that persons who furnish grounds for war by their injurious acts, are certainly not complying with the duties imposed upon Christians, since the followers of Christ are subject to a special and solemn obligation of love and concord, surpassing the common bond that unites all mankind. On the other hand, theEdition: 1950; Page: [18] arguments above set forth are in no sense incompatible with the prohibition laid down by Christ Himself and also by the philosophers (particularly the Platonists), against τὸ ἀνταδικει̑ν, “the requital of injury.” For, in the light of the fairly extensive consideration we have already givenc to the subject of punishments, we are able to perceive just what it is that these authorities condemn.

In the first place, it is quite obvious that the precepts in question were addressed to private individuals, or to servants of the Church whom Christ chose to regard in this connexion as private individuals; and it is equally obvious that those acts [of individual vengeance] are rightly prohibited, which would disturb the whole order of the state, shattering the public peace, if they were permitted. This point has been brought out in our discussion of the Ninth Law. Thus a rule of ancient lawd declares that action which may be taken publicly through a magistrate is prohibited for private persons, lest occasion be given for graver disturbances. Edition: current; Page: [63] In another context, we shall see how far the application of this rule should be extended. Meanwhile, suffice it to say that the precepts which we are discussing, clearly do not refer to the public use of arms. If we took the contrary view, we should be subscribing to the accusation brought by Celsus and Julian, enemies of our faith, who falsely declared that the Christians, in abolishing revenge, were abolishing all laws, together with magistracies and the punishment of malefactors. This is so far from being the truth that, on the contrary, our theologiansa place Punishment in the category of the virtues, regarding her as the handmaiden of Justice. A second fault susceptible of condemnation in connexion with vengeance, stands out so plainly that it could be left unmentioned. This is the fault involved when the cause of the avenger is unjust. A third fault consists in exceeding the limits of vengeance appropriate to the transgression. Senecab has said that the second fault is incompatible with justice, and the third, with clemency. A fourth fault arises when vengeance is inflicted in a spirit of injustice, or in other words, when neither the good of the person punished nor the common good is kept in view. The two faults last named are mentioned by that same Senecac in a single passage, [the description of an occasion on which Plato refrained from inflicting punishment and explained his self-restraint in these words: “I am angry;] I should be apt to do more than I ought, and with too much pleasure.”

For punishment, according to our preceding analysis of terms, consists properly in the repayment of that which is owed by the part to the whole as a result of wrongdoing; and therefore, it ought to be directed to the public interest. Together with this observation, one should take into account the fact (already brought out in the aforesaid analysis) that it is frequently better for the sinner himself, that wickedness should not be allowed to go unpunished. Herein lies the purport Edition: current; Page: [64] of Augustine’sa declaration that nothing is more infelicitous than the felicity of sinners.

Surely, then, if it is not always our duty to remit punishments, far less can it be our duty to remit that which is owed us on the basis of reciprocal justice. For even the precepts that apparently favour remission doEdition: 1950; Page: [18] not command us to renounce indiscriminately and to fling away,b as it were, that which belongs to us. In fact, men of saintly character have never scrupled to obtain what was their due, either through judicial procedure or, when other means were lacking, through the just application of force. What those precepts do command, is that we should yield in preference to involving ourselves in sin or becoming an impediment to the public welfare. In many cases, however, it is advantageous not only for our own sake but also because of the example set before the public, that we should possess that which is rightfully ours.

Informal Exposition of Article IVTherefore, according to the opinions which we have cited, divine law is not opposed to all wars. Furthermore, since law as a whole is rightlyEdition: 1950; Page: [19] divided into the divine branch and the human branch, and since we have already shown that some wars have a basis in divine law, it follows from the doctrinec which denies the validity of human law whenever the latter branch comes into conflict with the divine, that those same wars are just from the standpoint of all law.

So far our citations have been drawn from divine testimony.d From this same source many additional arguments could be derived, ifEdition: 1950; Page: [19] we combined that testimony with the logical considerations expounded in preceding passages and based upon nature itself.

We turn next to that human authority which is of course more open to question, but which nevertheless carries considerable weight. Now, such authority is divided into two kinds: that derived from facts, and that derived from words.

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Informal proofs relative to whole question, based on examplesFor, assuming that the actions of just men are properly regarded as just—in other words, assuming that example is of paramount importance in the decision of all questions—I shall cite the following sources: the age when men lived under the guidance of nature,a which supplies the example of the warring Abraham; the [Old] Law itself,b which gives us Moses and David as examples; New Testament history,c including more than one reference to centurions as well as the request made by Paul himself for a military guard against the snares of his enemies; and the centuries following thereafter,d with their record of numerous exceedingly pious emperors and most Christian kings who waged wars even against men bearing the name of Christians. And what of the written accounts which relate that wars were carried on by those illustrious ancients, Gideon, Barak, Samson, Jephthah, Samuel, and various prophets who were quickened by the same true faith in Christ that quickens us?e From these examples, it follows that some wars are just for the faithful.

Informal proofs relative to whole question, based on recorded opinionAgain, since it is rightly maintained that those things are just and pious which have been so adjudged by just and pious men (not to mention the entire number of the philosophers, or the jurisconsults, none of whom has expressed any doubt on this point), I shall quote a very few of the opinions formulated by persons highly esteemed for their piety and erudition. The following assertion was made by Augustine:f “The functions of vengeance may be discharged by virtuous men acting with virtuous intent, just as they may be discharged by a judge, or by the law.” The same author wrote:g “Not for nothing have these institu-tions been established: kingly power, and the lawful authority of judicial inquisitors; the clawlike instruments of the torturer; the arms of the soldier; Edition: current; Page: [66] the discipline of the absolute master, and even the severity of the good father. All of the things above mentioned have their methods, causes, reasons, uses. When they are feared, the wicked are held in check, and the good dwell in tranquillity among the wicked.” This passage, too, is taken from Augustine:a “The greedy urge to inflict harm,Edition: 1950; Page: [20] cruel vengefulness, an unappeased and unappeasable spirit, savage rebellion, lust for dominion and any similar trait that may appear—these are the things that law finds blameworthy in warfare. Frequently, in order that such things may also be punished in accordance with law, war itself—of the kind necessarily waged against the violence of opponents, whether by divine command or at the instance of some lawfully constituted sovereign power —is undertaken by good men, who find themselves involved in an order of human events that constrains them, as a matter of justice, either to issue or to obey commands to this effect. Wherefore, John does not instruct the soldiers to abandon their arms, and Christ directs that tribute be paid to Caesar; for, on account of wars, it is necessary that pay be provided for the soldiery.” Augustineb also supplies us with this correct and extremely concise statement: “Among the true worshippers of God, even wars themselves have a pacific character, being waged not because of cupidity or cruelty, but because of an earnest desire for peace, with the purpose of restraining the wicked and giving support to the virtuous.” Hec takes into account not only divine law, but human law as well, saying: “When a soldier slays a man in obedience to the power under which that soldier has been legitimately enrolled, he is not charged with homicide by any law of his own state.” One among many observations made by Jeromed runs as follows: “He who smites the wicked because of their wickedness, and holds the implements of destruction for the purpose of putting to death the vilest sinners, is a minister of God.” It was Jerome,e too, who said: “He is not cruel, who slays Edition: current; Page: [67] the cruel.” The words of Ambrosea may also be cited: “The courage which by warlike means protects the fatherland from alien enemies, or defends the weak at home, or guards one’s comrades against bandits, is just in the fullest sense of the term.”

Accordingly, whether we obey the guidance of nature (which we must obey, even though it be unwillingly), whether we heed the teachings of Holy Writ (from which it is sinful to dissent), whether or not we are also influenced in some degree either by the example or by the pronouncements of famous men—in short, whatsoever line of reasoning, whatsoever authority, we embrace—we mustConclusion I conclude that: Some wars are just for Christians, against Christians, from the standpoint of all law. b

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CHAPTER IV

Question II

Article I. Is the seizure of prize or booty 1 ever just?Edition: 1950; Page: [20]

Article II. Is it ever just for Christians?

Article III. Is such seizure ever just for Christians, from Christians?

Article IV. Is such seizure ever just for Christians, from Christians, and from the standpoint of all law?

Having completed our discussion of the question [of justice] in relation to war, let us pass to another phase of the subject, [justice in relation to] the seizure of prize or booty. The problems arising under this second head are not unlike those previously included under the head of war, and may be dealt with on the basis of the arguments already set forth.

General Exposition Based on Concl. I and preceding proofs. See also Chap. ix, infra, discussion of aims [of war].For, when a particular thing is just in so far as it tends toward the attainment of a given end, that end itself is just in a much higher degree. But war is just for the very reason that it tends toward the attainment of rights; and in seizing prize or booty, we are attaining through war that which is rightfully ours. Consequently, I believe those authorities to be entirely correct who hold that the essential characteristic of just wars consists above all in the fact that the things captured in such wars become the property of the captors:a a conclusion borne out both by the German word for war,b [krieg from Middle High German kriec (g), which means Edition: current; Page: [69] “exertion,” “endeavour to obtain something,”2] and by the Greek word for Mars, since Ἄρης, [“Ares,” i.e. “Mars,”] is apparently ἀπὸ του̑ αἴρειν, “derived from ἀείρειν,” [which means “to take away,” “to seize”]. Therefore, the seizure of spoils of war is necessarily just on some occasions;a and furthermore, it must be just in regard to the same persons and by that same criterion of all law, embraced in our demonstration of the justice of war.

However, since it is especially important that this part of our discussion should be understood, and since the matter has not been thoroughly dealt with by other writers on the law of war, it seems expedient to re-examine in this connexion the divisions of subject-matter already considered in answering the preceding question.

Formal Exposition of Article I Cf. 1st Form. Exp. of Art. I, Concl. IAccordingly, in order to understand how seizure of spoils is agreeable to the Divine Will as revealed through laws, one must realize that such seizure is made up of two elements, namely, deprivation of previous possession, and acquisition of new ownership. For, just as it is impossible that a given thing should appear at one and the same time in two different forms, so there cannot exist simultaneously two full possessors, or owners, of one and the same thing;b and therefore, just as removal of the old form must precede the introduction of any new form, so deprivation must precede the establishment of [new] possession and ownership.

The concept of deprivation, too, has a dual character. It may be absolute, [i.e. a total negation of ownership,] as the naturalists hold that it is by natural disposition in the case of primal matter, and as we [jurists] find it to be in the case of all things that have not yet come into anyone’s possession, a situation which we call ἀδεσποτεία, “absence of ownership.” Thus we say, “Nature has granted freedom even to dumb animals,” meaning by this assertion that such animals, as long as they have Edition: current; Page: [70] not been captured, are not subject to anyone’s ownership.a Again, deprivation may be specific, as the naturalists describe it in connexion with secondary matter, and as we use the term when ownership has been taken away in actual fact.

The latter process assumes various guises, but the simplest is that in which loss of ownership follows upon loss of possession, precisely as acquisition of ownership follows upon acquisition of possession.b For this is a natural train of events, and one which would always findEdition: 1950; Page: [21] acceptance if the Fourth Law did not stand in the way. Under the said law, disregard of [existing] possession gives rise to legal claims;c that is to say, seizures made contrary to law are held to be invalid.

But the Fourth Law cannot operate in defiance of the laws of the first order [Laws I and II];d and since the latter allow us to commit any act necessary for the protection of our lives and property, it cannot be doubted that they allow us to take away the instruments with which we are attacked. Now riches, whether in private life or in affairs of state, are rightly defined as constituting a vast stock of instruments.e Thus all enemy possessions are so many instruments prepared for our destruction; that is to say, through them weapons are provided, armies are maintained, the innocent are stricken down. It is no less necessary to take away these possessions, wresting them from the enemy, than it is to wrest the sword from a madman, if we wish to protect our property or even our personal security. Onasanderf supports this view, when he says: ζημία γὰρ χρημάτων καὶ καρπω̑ν ἔνδεια μειοι̑ πόλεμον, ὥσπερ ἔ οὐσία τρἑφει; “For the infliction of property losses and scarcity of revenue weaken the sinews of war, which feeds upon riches.” In such circumstances, indeed, we shall not be deterred by the precept that bids us refrain from seizing another man’s possessions, since even the prohibition against infliction of injury upon others will have no force. For the different Edition: current; Page: [71] laws must be observed in the order of their importance. Moreover, the rulea which decrees that “The lesser ought not to be impermissible for him to whom the greater is permitted,” rests upon precisely the same basis of certainty as the rule of the mathematicians to the effect that “The greater always includes the lesser”—a principle also adopted by the jurists,b and quite rightly, since regard for proportion is as important in the legal realm as it is in the measurement of numbers and magnitudes. But killing exceeds plundering in gravity to the same extent that life takes precedence over property in the computation of our blessings;c and therefore, since one is not charged with homicide for having slain a man in a just war, far less is one convicted of theft for having borne away an enemy possession. Cicero’sd statement, “Nor is it contrary to nature, to despoil (if one can) any person whom it is right to slay,” has been repeated by the juristse in various passages.Edition: 1950; Page: [21]

Surely the reason why an enemy ought to be deprived of his property is by now sufficiently apparent; but there is still room for doubt as to whether or not an impartial examination of the laws already cited will result in assigning irrevocable ownership to the party who seizes the property.

New explanationFor some persons will be of the opinionf that the thing seized is res nullius, inasmuch as the former owner has been lawfully deprived of it, and that consequently it becomes (like other things so classified) the property of the first party to take possession. Such would seem to have been the view adopted by Nerva the Younger and, after him, by Paulus,g when these authorities included property taken in war among the things naturally Edition: current; Page: [72] acquired (in virtue of the fact that they were previously res nullius) by the person first taking possession. This contention will be strengthened, moreover, by the argument which we ourselves adduced just above, namely: that the laws of the superior order, relative to our own good, do not give way for the sake of another’s good when they come into conflict with lesser laws. A thoughtful reading of the passage in question indicates that Ciceroa had precisely this principle in mind when he observed that Cassius had set out “for a province which, if men obeyed written laws, would be regarded as belonging to another, but which, when such precepts had been overthrown, was his own by the law of nature,” that is to say, by that precept which we have listed as Law II.b

Nevertheless, anyone who pauses to reflect, more carefully, that all laws are equally to be observed as soon as such general observance becomes possible, will readily perceive that a just distinction should be drawn in this connexion. For he will understand clearly enough that, for the duration of the war and in view of the continued danger, it will not be permissible, for captured possessions to be reclaimed by the one who lost them;c but he will fail to see any reason why, after peace has been restored, you should not give back those things which you have seized solely for the sake of your own security,d since the Fourth Law does not conflict with any other law under these circumstances, and should therefore come into force again. Thus there is a vast difference between acquisition of that which was truly res nullius, and acquisition of property formerly belonging to another. Mere possession suffices for acquiring those things which had no owner, whereas the appropriation for oneself of another person’s property requires not only possession but also cause, that is to say, some reason on the basis of which the original owner of the property should, willingly or unwillingly, be deprived of it. Therefore, that general title which we invoke for the seizure of previously ownerless property, does not suffice for the establishment of full legal rights Edition: current; Page: [73] over enemy possessions. On the contrary, some other title is needed. In time of war, however, this title is never lacking,a a fact which may be deduced in the following manner.

In the first place, with reference to those cases in which we takeEdition: 1950; Page: [22] up arms for the purpose of recovering our own property, there is no question but that we may rightly employ military force to divert unjust possession from an armed possessor.b For who can fail to perceive that, when we are granted the right to acquire for ourselves those things which are useful,c the further right to guard such things after they have been acquired and to recover them if they are taken from us, is implicitly conceded at the same time? But if I am not able to regain the actual piece of property involved, then that unjust possessor is nevertheless my debtor to the extent of the value of the said property.d Therefore, I should be permitted to obtain from among his goods, the equivalent of his debt to me. Moreover, the same argument will apply if from the very beginning I was not laying claim to my own property, but was attempting to collect a debt.e For, since the excess possessed by that other person corresponds exactly to the deficit in my own possessions, that excess should be taken from him and given to me. Similarly, in cases involving the execution of a judicial decree,f we see creditors put in possession of debtors’ goods, in order that the former may obtain satisfaction therefrom. To be sure, the rule that such goods should be put up for public auction and the proceeds applied solely for the benefit of the creditors, arises not from the law of nations but from civil law,g which has been accepted as a model even in the case of reprisals.h Nature herself, however, grants me permission to acquire in any way whatsoever, from him through whom I suffer the loss of property belonging to me, the exact Edition: current; Page: [74] equivalent of that lost property; and the thing so acquired becomes my own. This principle is also accepted by the theologians.a Indeed, in the natural order, it is impossible for one who is not himself the owner of a thing, to transfer a valid title to ownership;b and this rule has, moreover, been incorporated in [man-made] law.

In the second place, if it is also our purpose in warfare to inflict punishment for offences,c then such punishment will surely be directed not only against the person of the offender but also against his property, which is ordinarily awarded to the injured party in forensic judgements, too.d The reason underlying this method of punishment is explained by Tryphoninus,e as follows: “For he who has deserved ill of the state ought also to suffer extreme poverty, in order that he may serve as an example to deter others from wrongdoing.” The words of Cicerof are pertinent in the same connexion: “[Even the confiscation of goods is prescribed, in addition,] to the end that every torment of mind and body, including want and beggary, may follow.” Again, this passage regarding Lepidusg is peculiarly appropriate: “And if, after laying down his arms, he should be condemned for violence (a judgement against which he certainly could not offer any defence), his children would share in the same disaster through the confiscation of [his] goods.” Yet again, we find this query, which also refers to Lepidus:h “And if that very penalty is applied to citizens condemned in court, how could we have been more lenient toward public enemies?”

Furthermore, the right to acquire enemy property—whether for the sake of [recovering] the property itself, or in the process of collecting a simple debt, or in cases where such collection is combined with a penal Edition: current; Page: [75] purpose—does not necessarily exist prior to war, but may sometimes be a concomitant thereof.a

For, in the first place, who among the enemy seeks only our lives and not our property, also? Or rather, what enemy does not seek our lives because of our property? We shall be acting justly, then, if we recover through war whatever is taken from us day by day, or the equivalent of what is taken.b On this basis, it has been widely held that wars carry with them a tacit agreement of exchange,c so to speak, an agreement to the effect that each belligerent, acquiescing in the turn of the die as the contest proceeds, shall take the other’s property or lose his own, thusEdition: 1950; Page: [22] bearing out Menander’sd assertion that,

  • οἱ γὰρ θἑλοντες προσλαβει̑ν τὰ τω̑ν πἑλας
  • ἀποτυγχάνουσι πολλάκις νικώμενοι,
  • τὰ δ’ ἴδια προστιθἑασι τοι̑ς ἀλλοτρίοις.
  • They who desire to snatch a neighbour’s wealth,
  • Fall oft from hope to ruinous defeat,
  • Adding their own goods to that alien store.

Aristotle,e too, makes much the same point when he says: ὁ γὰρ νόμος ὁμολογία τίς ἐστιν, ἐν ᾡ̂ τὰ κατὰ πόλεμον κρατούμενα τω̑ν κρατούντων εἰ̑ναι φασιν; “For this law is a species of common agreement under which things captured in war are said to be the property of the captors.”

A second consideration, to which I now turn, has constant force and can never be absent from war. For what war is waged without expense and loss? Assuming that all else prospers according to one’s desire (although this is never the case), he who is forced to engage in warfare is nevertheless diverted meanwhile from the management of his private affairs. Yet any person who justly takes up arms has a right to collect indemnity for all losses and expenses, regarding them as debts due to Edition: current; Page: [76] him,a just as it is right, in forensic disputes,b that the person who has deliberately failed to obey the law should make reparation not only for the costs and expenses connected with the suit itself, but also for those involved in the execution of the sentence. This is the principle underlying the formula,c “bound to pay the expenses of war, in accordance with the law governing the conquered.”

Finally, it is an indisputable fact that he who knowingly resists a just war, commits a grave offence.d Even if such a belligerent is to some extent successful, he is a thief, an armed robber, an assassin. Now, these crimes are of such a nature as to bring upon the defendant a fine depriving him of all, or at least a large portione of, his goods; and the goods thus forfeited should be allotted to the injured party, whether the latter be an individual or a state. Moreover, the theologiansf lay down the following doctrine: if, at the beginning of a war, the enemy offers full reparation, not only for the injury done and the damage to property but also for losses and expenses, he should be given a hearing; but it is a different matter if the war is already raging, for the culpable belligerent will no longer be in a position to make amends; on the contrary, it will be3 [entirely just for him] to suffer [penalties graver than the original Edition: current; Page: [77] injuries], with the opposing side constituted, of course, as the judge empowered [to impose such penalties according to its own decision].

In the light of the foregoing discussion, it is quite evident that even the peace of the state and the authority of magistrates cannot always be preserved without the seizure of enemy spoils.a This is true above all because of the vast expenditures necessary for the preservation of such peace and such authority, as well as because of the fact that those persons who rashly offer resistance ought not to go unpunished. Accordingly, since we have clearly shownb that it is just, inasmuch as it is pleasing to God Himself, that we should safeguard our own welfare, defend or recover our own property, and collect the debts due to us (including those whose payment involves punishment), all of these acts being based upon rights that God does not compel us to remit in behalf of any other person,c owing primarily to the fact that it is to the common advantage that evil deeds should not remain unpunished and that the state and its magistrates should be actively defended; since none of these ends can be attained unless the enemy is stripped of his resources; since, moreover, there are many things which we ourselves cannot obtain save by acquiring through war that which was formerly enemy property; and finally, since this procedure constitutes what is known as the seizure of prize or booty,d it follows, as an absolutely certain conclusion, that such seizure is sometimes just.

First Formal Exposition of Articles II and IIIWe have already demonstratede that the institutions of prize and booty spring from the law of nature. This origin is clearly apparent [not only among human beings, but] also in the case of other animate creatures, including even those that feed in flocks and those that fly; for though, Edition: current; Page: [78] at times, creatures of this kind cede to the possessor those things which have been taken into the possession of the latter, yet they act otherwise when enraged by combat. The following passage from Plutarcha may be quoted in this connexion: οὐδὲν αὐτοὺς δεινὸν οὐδ’ ἄδικον ποιου̑ντας, ἀλλὰ τῳ̑ πρεσβυτάτῳ τω̑ν νόμων ἀκολουθου̑ντας, ὃς τῳ̑ κρείττονιEdition: 1950; Page: [23] τὰ τω̑ν ἔττόνων δίδωσιν, ἀρχόμενος ἀπό του̑ θεου̑, καὶ τελευτω̑ν εἰς τὰ θηρία. “You are doing nothing that is harsh or unjust; rather, you are following the most ancient of laws, which bestows upon superiors the goods of their inferiors: a law that has its beginning in God and its final effect in the beasts.” Similar statements are found in the Gorgias of Plato, and also elsewhere, in the works of various authors. Josephus,b too, and Aristides,c in more than one passage, have assigned this same precept to the law of nature, on the ground that it has force even among wild animals. And Aristotled declares that, ἔ πολεμικὴ φύσει κτητική πως; “in the natural order, the art of war is, in a sense, an art of acquisition.” Theophiluse calls such acquisition φυσικὴν κτήσιν, that is to say, “natural possession.” Whence it follows that even among Christians there is a place for the laws of prize and booty.

Second Formal Exposition of Articles II and IIIThe institutions of prize and booty have also been traced, quite correctly, to the law of nations,f or (in the language of Theophilus) to ἐθνικῳ̑ νόμῳ. Thus Demosthenesg says: εἰ̑τ’ οὐ δεινὸν ω̑̓; γη̑ καὶ θεοί, καὶ φανερω̑ς παράνομον, οὐ μόνον παρὰ τὸν γεγραμμἑνον νόμον, ἀλλὰ καὶ παρὰ τὸν κοινὸν ἁπάντων ἀνθρώπων νόμον, τὸν ἄγοντα καὶ φἑροντα βίᾳ τἄμα ἐν πολεμίου μοίρᾳ μὴ ἐξει̑ναι μοι ἀμύνασθαι; “Then is it not grievous—O, Heaven and Earth!—is it not manifestly unjust, and contrary not only to written statutes but also to the universal law of mankind, that I should be prohibited from repaying like for like Edition: current; Page: [79] when my possessions are taken from me by violence and borne away in hostile fashion?” In the opinion of Cyrus,a too, νόμος ἐν πα̑σιν ἀνθρώποις ἀΐδιός ἐστιν ὅταν πολεμούντων πόλις ἁλῳ̑ τω̑ν ἑλόντων εἰ̑ναι τὰ χρήματα; “It is an enduring law of mankind that, when a city belonging to the enemy has been captured, the goods and the wealth of that enemy shall be ceded to the victor.” (I am speaking of that same Cyrus to whom God Himself b awarded the eastern kingdoms sought by force of arms.)

The law of war is a part of the law of nations. Accordingly, Aeschinesc says: εἰ μὲν πρὸς ἔμα̑ς πολεμήσας δορυάλωτον τὴν πόλιν εἵλες, κυρίως ἔχεις τῳ̑ του̑ πολἑμου νόμῳ κτησάμενος; “But if, in a war undertaken against us, you have occupied a city that was captured by armed force, you rightly retain possession of that city, under the law of war.” Othersd have called this same law “the law of victory.” Moreover, all the philosopherse hold that there is a certain special kind of acquisition from enemies, which they variously designate as acquisition πολεμικήν [by war], λῃστικήν [by piracy], ἀγωνιστικήν [in combat], or χειρωτικήν [by conquest]. Xenophonf also tells us how Socrates, in accordance with his habitual practice of drawing out the truth (by obstetrical skill, as it were) from the seeds already implanted in human minds, leads Euthydemus through a process of interrogation to an admission of the fact that, despite the latter’s classification of despoliation under the head of injustice, nevertheless this very act of despoiling is consonant with justice, when committed against an enemy. Plato,g too, makes the following statement: πάντα τω̑ν νικωμἑνων ἀγαθὰ τω̑ν νικώντων γίγνεσθαι; “all those goods which were the property of the vanquished, become the property of the victor.”

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Thus we clearly perceive the absurdity of the belief a that seizure of spoils should be excluded from wars among Christians; unless, perchance, all such wars are held to be unjust. But other authoritiesb have laid bare the ignorance underlying this contention on the part of men who are otherwise learned. We ourselves, on the basis of theEdition: 1950; Page: [23] principles already expounded, believe the matter to be so clear that it requires no more protracted discussion; and we furthermore consider it permissible to observe that the proponents of a different opinion have lacked even an adequate understanding of what constitutes prize and booty.

As for the argument derived by our opponents from civil war, it is doubly absurd. For, in the first place, who will acquiesce in their assumption that the wars of Christians are civil wars, as if to say, forsooth, that the whole of Christendom constitutes a single state?c Again, they are mistaken even in their contention that seizure of spoils has no proper place in civil warfare. For, aside from the testimony of history, which teaches us that the very abundance of spoils taken in civil wars is such that men have on numerous occasions been impelled to revolution by their greed for plunder,d what logical argument can be advanced to show that a magistrate ought not to collect by armed forcee the debt that is owed to the state, even when that debt consists solely in the penalty for rebellion, if he cannot collect it by any other means? Plato,f in fact, even while maintaining that in cases of civil dissension war should be conducted as temperately as possible, nevertheless concedes that, τὸν ἐπἑτειον καρπὸν ἀφαιρει̑σθαι [. . .] τοι̑ς κρατου̑σι τω̑ν κρατουμἑνων, “the annual harvest may be taken from the vanquished by the victors.” Edition: current; Page: [81] Besides, what could be more inconsistent than prohibiting the seizure of prize or booty in a situation where slaughter is permitted?a

Formal Exposition of Article IVSurely, since the despoliation of enemies is accepted under the law of nations, it must necessarily be sanctioned by civil law, too. This inference is clearly confirmed by the laws and customs of individual nations relative to the distribution of spoils; and in every part of the world, such laws and customs abound. Again, the Roman Corpus Iuris b repeatedly states that things captured in war become the property of the captors; and the same rule is approved by canon law.c The facts just stated, considered as a whole, make it impossible for us to doubt that seizure of enemy spoils is permitted by every branch of law.

First Informal Exposition of Article IThe same view is explicitly supported in Holy Writ. Is anything more truly one’s will, than that which one commands through an express legal precept? Yet we find among the precepts of military law, this divine pronouncementd concerning captured cities: “[. . .] all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee.” Accordingly, just as victory flows from God, so also do the institutions of prize and booty. It is recorded, moreover, that a part of the spoils was consecrated to God and claimedEdition: 1950; Page: [24] by Him.e Not even the profane nations of the Gentiles were altogetherunacquainted with this practice;f for they offered sacrifices taken from the goods captured in war, to Jove the Plunderer and Minerva the Dispenser of Spoils, and also, indeed, to Mars or Hercules or Vulcan. The sanctity of trophies was derived from this same origin. To take another instance, among the precepts laid down for Joshuag when he set out Edition: current; Page: [82] against Ai, we find the following injunction: “[. . .] the spoil thereof, and the cattle thereof, shall ye take for a prey unto yourselves [. . .].”4 And who can deny that the following command, though it was pronounced by that same Joshua,a was θεόπνευστον [divinely inspired], and dictated by the Will of God? “Return with much riches unto your tents, and with very much cattle, with silver, and with gold, and with brass, and with iron, and with very much raiment: divide the spoil of your enemies with your brethren.” Or we may quote the words of David:b “Behold a present for you of the spoil of the enemies of the Lord.” Sufficient proof was afforded, however, in the sole fact that it was God’s Will that the Israelites, a nation formed by God Himself, should defend their rights in this fashion;c or again, in the fact that He prescribed limits for the seizure of spoil,d and indicated the manner in which it should be divided.

Second Informal Exposition of Article I Cf. 1st Inf. Exp. of Art. I, Concl. I, to-gether with Gen. Exp. at beg. of this chap.Nor is it inappropriate to cite in this connexion the authoritative passages which demonstrate that war is just, either in an absolute sense or on the basis of [a just] origin, since the very passages that show the permissibility of war for Christians and against Christians, are likewise pertinent to the question of booty. For certainly that which was by its nature immutable could not have suffered change, nor was any innovation introduced into matters of moral conduct by the doctrines laid down in the Gospels.

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Third Informal Exposition of Article I Cf. 2d Inf. Exp. of Art. I, Concl. I, to-gether with Gen. Exp. in this chap.Neither is it possible to believe that the precept formulated by John the Baptist,a [“Do violence to no man, neither accuse any falsely; and be content with your wages,”] was in conflict with the unequivocal oracles of God. In regard to this point, we should note that John was being consulted, not by soldiers girded for battle and prepared to march against the enemy, but by those stationed in the garrisons of Judea. Now, the writers of that time bear witnessFirst, Second, and Third Informal Expositions of Article II; First and Second of Article III Cf. 1st, 2d & 3d Inf. Exps. ὀψωνίοις of Art. II, Concl. [I], & also 1st & 2d Exps. of Art. III, same Concl., to-gether with Gen. Exp. in this chap.; or Inf. Exp. of Art. I of Qu. II, together with 1st & 2d Form. Exps. of Arts. II & III, Concl. I. to the many injuries inflicted by Roman soldiers upon the unfortunate provincials, and to the extensive desolation wrought in the vicinity of the Romans’ winter quarters. Thus John prohibited such vexatious conduct—which he described as “violence” (concussiones), the word that is used even to-day—as well as all false accusations, and told the soldiers to be content with their wages (for that is the usual meaning of the term employed [in the Gospels]).5 Nor does his admonition require forbearance in regard to any person other than the peasants and the hosts of the soldiers, against whom the latter too frequently commit offences. This is the universally recognized interpretationb of the passage in question. For it is an act of the gravest injustice to despoil innocent rustics who are bearing, for their ownEdition: 1950; Page: [24] protection and for the maintenance of the soldiers, burdens that have been imposed in the name of the state. In no sense, however, does the said passage refer to enemy property; nor does its purport differ from that of the dictum laid down already by John in reply to the publicans, namely, that they should exact no more than that which was stipulated for them by law. Therefore, if those in command have so decreed, spoil will justly be transferred from the enemy to the soldiers; and it will even be considered a part of the soldier’s pay, that is to say, a part of the profits Edition: current; Page: [84] of war rightfully awarded to them according to the testimony of Paul.a Thus the rule formulated by John for the soldiers serving in Judea, was in effect the same as that decreed by Aurelianb for his armies: “Let each man be content with his own ration; let him live by spoil taken from the enemy, not by the tears of the provincials.”

Informal Exposition of Article IVSimilarly, the authoritative statements already cited to prove that war is just from the standpoint of all law, suffice also to prove that seizure of prize and booty is just from the standpoint of all law.

Exposition of whole question by examplesThe examples set by holy men remain for our consideration. Abrahamc easily leads them all in supplying us with a wealth of arguments. For, in the first place, when Abrahamd forcibly bears away goods that were previously in the possession of the enemy, he makes it sufficiently clear that one ought not to relinquish, on the ground that it is another’s property, that which the enemy are seeking to retain; and therefore, we shall act rightly in imitating his conduct on this point. Secondly, he grants recognition to the institution of spoil when he gives a tithe thereof to the priest,e a fact expressly brought out in the Epistle to the Hebrews. f Moreover, this same practice relative to a tenth part of the spoils is found to exist among other peoples.g Finally, Abraham could not have offered clearer confirmation of the right to take spoil than he did in assigning certain portions of it for the maintenance of his attendants and in willing that other portions be allotted to his allies.h For Abraham was not one to bestow a gift that could not honourably be accepted.

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On the other hand, he rejected the remainder of the captured goods, not on the ground that it had been unlawfully acquired (for he had openly declared himself to the contrary on this very point, nor, for that matter, has such a construction been placed upon his behaviour by any interpreter),a but rather for a far different reason. Some persons, indeed, explain the passage in question by asserting that Abraham had already bound himself, before setting out on the expedition, by a vow to the effect that he would take no part of the spoil for himself. Now, it cannot be denied that we make vows for undertakings other than those which constitute [in themselves] inescapable obligations; and in any case,Edition: 1950; Page: [25] whether or not Abraham was bound by a vow in this matter, the reason that impelled him to repudiate any share in the spoils is indicated in the words:b “lest thou shouldest say, I have made Abram rich.” Thus he ceded his right freely and because of a certain nobility of spirit. For this guiltless man quite justifiably feared that impious persons who were hostile to the true faith might heedlessly calumniate him, giving the impression that he had meddled, solely through greed for plunder, in a war that did not properly concern him.

The case of Abraham, then, is based upon a special motive, and his conduct does not differ greatly from that of Pericles and Fabius, who brought private loss upon themselves lest unjust suspicion be excited against them. Fabricius, too (according to Dionysius’c account), offers a somewhat similar explanation of the fact that he made no part of the spoils his own, although he could have done so: καὶ τὸν ἐκ δικαίου πλου̑τον ὑπεριδω̑ν ἕνεκα δόξης; “spurning riches, even those justly gained, in comparison with glory.” Fabricius furthermore asserts that, in taking this step, he was following the example set by Valerius Publicola and others. Marcus Cato conducted himself in much the same fashion after the victory in Spain, sayingd (almost in the very words employed Edition: current; Page: [86] by Abraham) that no part of the spoils of war would be acquired by him, save only those things which he had eaten or drunk. He added that, in taking this stand, he was not casting reproach upon those other leaders who would accept the profits assigned to them from the said spoils, but merely preferred for his own part to vie in virtue with the most virtuous rather than in wealth with the wealthiest.

Abraham may also have been influenced by the fact that many of the things found in the possession of the conquered kings had not belonged to them in olden days, having been snatched away recently from the citizens of Sodom, who were the allies of Abraham himself at the time in question.a Consequently, there was some reason for him to return these possessions to their former owners or to the ruler of the latter, in accordance (so to speak) with the principle of postliminium. The Roman juridical principle of equity,b too, has given rise to a similar procedure in regard to certain things. Furthermore, we read of occasional instances in which such a procedure has been adopted out of benevolence, even though the law makes no provision to that effect. Thus the behaviour of Abraham in the case under consideration, was the same as that of the Romans on another occasion, when the latter, after the camp of the Volscians had been captured, and the Latin and Hernician allies had been summoned by edict to identify their property, gave back the possessions so identified.c In connexion with the conquest of the Samnites, Volumnius and subsequently Atilius followed the same course of action. Gracchus and Lucius Aemilius customarily did likewise. Scipio, too, gave similar orders after the Lusitanians were vanquished, and again, after the capture of Carthage, with reference to the standards and votive offerings that had belonged to the Siculians.

For the rest, if there is anyone to whom the above-mentioned examples are displeasing, let him pause to consider what men he is condemning, and of what sort. For we read that the seizure of spoils was Edition: current; Page: [87] practised by Mosesa (a far more reliable model of justice than was either Lycurgus or Aristides); by that exceedingly saintly leader, Joshua;b by David,c the King who was most pleasing to God; by the sons of Reuben, too, in company with the children of Gad and the half tribe of Manasseh, of whom it is writtend that they were enriched with the spoil of their enemies because they had placed their trust in God, and also by Asa,e a prince most highly commended for his piety. Again, ifEdition: 1950; Page: [25] we turn our attention to Christian princes, we shall find not a single one who failed to follow those same examples. For although slavery has fallen into disuse in Christian practicef (at a late date, to be sure, and owing to a reason distinct [from condemnation of spoils], as we could easily demonstrate save that in so doing we should be strayingExposition of whole question on basis of authoritative opinions from the plan of our discussion), nevertheless, all authorities on lawg have come to the conclusion that the following principle still stands: “Things captured in war shall be acquired by the captors.”

There is no need, however, to amass a great heap of additional testimony on this point. Do we seek the opinion of the theologians? Then let Augustineh speak alone for all of them, as follows: “If you have been deprived of anything originally possessed by you, for the reason that the Lord God hath given to us goods that were taken from you, we are not on that account [to be regarded as] covetous of property belonging to others; for those goods have become ours and are justly held as our own, by the command of Him who owns all things.” Is it our pleasure to consult the doctors of pontifical law? Pope Innocenti himself declares Edition: current; Page: [88] that, “Things acquired in legitimate warfare are legitimately retained.” Moreover, this assertion is repeatedly confirmed by Hostiensis,a by Panormitanus,b and by Archidiaconus.c And what do we find among the interpreters of Roman law? Bartolusd says: “In cases of licit warfare, those who have taken spoil are not bound by civil law to make restitution.” Balduse goes still further, asserting that, “Even before the inner tribunal of the conscience, it is licit to retain things captured in a just war.” The opinion of Baldus is cited by Jason,f and is universally approved not only by the jurists but also by those commentators on Holy Writ who have devoted special attention to this question; for example, Sylvester,g Adrian,h Angelus [de Ubaldis],i Lupus,j and (among the Spaniards) Victoriak and Covarruvias.l Indeed, if we examine the pronouncements of all the authorities, we shall find that not one of them condemns the seizure of spoils, although many do condemn manifestations of greed in connexion with that practice, that is to say, τὸ πλεονἑκτημα, “the acquisition of more than one’s due”; just as it was not war itself that we found to be blameworthy, but rather cruelty in warfare.

Conclusion IITherefore, from the standpoint of all law, it is sometimes just for Christians to take prize or booty from Christians. m

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CHAPTER V

Question III. What seizures of prize or booty are just?

Question IV. What wars are just?Edition: 1950; Page: [26]

Granting, then, that there are certain cases in which the seizure of prize or booty should be characterized as just, we have still to ascertain what cases come under that head.Conclusion III. Based upon Gen. Exp. of Qu. II This problem does not call for prolonged consideration, since the foregoing discussion clearly shows that all seizures of prize or booty are just, which result from a just war. a That is the universally accepted conclusion.

The entire argument now turns upon the question, “What wars are just?”b

First of all, we must clear away the ambiguity attached to the term iustus [just, proper, perfect, &c.]. For when I use this term I do not have in mind the sense in which it is sometimes employed, connoting full attainment of inherent potentialities (as in the expressions iusta aetas [a proper age], iustum navigium [a perfect boat], iustum opus [a perfect work]), nor do I refer to the acquisition of certain formal external attributes (the concept underlying the phrase iusta materfamilias [a perfect materfamilias]). To be sure, these connotations do enter into the question under consideration, since the expression iustum bellum [a just or proper war] is used in both of the above-mentioned senses by writers on the subject. Nevertheless, I am employing the word iustus exclusively to Edition: current; Page: [90] denote that which lacks none of the qualifications required by any law, human or divine.

Now, these qualifications have been discussed by the different authorities in varying and rather disorderly fashion. Certain writersa have listed seven names, rather than seven kinds, of war. Moreover, their list is not complete, nor are the items included therein sufficiently distinct from one another. Other writers have maintained that a just war must be directed by a [competent] judge and in accordance with law. Still others,b dealing with this same point, inquire into the authority behind the war, its cause (their term for its origin) and the accompanying intention (or rather, the purpose of the various participants). There are some whose inquiries relate to “cause,” “mode,” and “necessity.” Yet another groupc contributing to this discussion, contend that the war should be necessary to such a degree as to be avoidable only at the cost of imperilling the state, and that it should be waged by command of the supreme magistrate, for a just cause, after formal declaration and notice to the enemy. There are some authorities,d too, who discuss the problem under these heads: “subject-matter of the dispute,” “cause,” “intent,” “authority,” and “persons engaged.”

New explanationThe defects or superfluous aspects of each of the classifications mentioned will become apparent, however, if we analyse war on the basis of four types of cause.e For actions, no less than other matters, are customarily explained on this fourfold basis. Indeed, the faultiness of any of the causes underlying an action will suffice to render that action faulty;f whereas, in order that the action may be righteous, it is necessaryEdition: 1950; Page: [26] that all of those causes should exist concurrently in the proper form, Edition: current; Page: [91] since righteousness, of course, must conform to a single standard. This distinction is pointed out in the Greek saying,a

  • ἐσθλοὶ μὲν γὰρ ἁπλω̑ς παντοδαπω̑ς δὲ κακοί.
  • Goodness wears a single form, but evil is multiform.

Conclusion IVWe conclude, therefore, that every war derived entirely from just causes, is a just war.

Consequently, it is necessary to investigate the subject of causes. We must ascertain, first, what persons justly wage war; secondly, on what grounds and against whom they do so; thirdly, in what manner—that is to say, within what limits—war is so waged, and fourthly, to what end and with what intent this is done.

It should be observed, moreover, that we have not undertaken this task because we disapprove of the work done in connexion with the law of war by other investigators, whose authority, as a matter of fact, will prove very helpful to us. We are motivated rather by the belief that, with the aid of the additional material so far gathered by us, we shall be able to make some further contribution to the accuracy, or at least to the clear and orderly arrangement, of the doctrines handed down by those earlier investigators.

Edition: current; Page: [92]

CHAPTER VI: Concerning the Efficient Cause of War

Question V

Article I. What is a just efficient cause of private war?

Article II. What is a just efficient cause of public war?

We are told that some of the causes effecting a given result are principal causes, while others are contributory and still others are to be classified as instrumental. Certainly all three kinds of cause are discernible in connexion with voluntary human actions (among which war is included), just as they are in regard to most other things.

In the natural order, as we have already pointed out, every individual is charged with the execution of his own rights. For we have been compounded of mind and body with precisely this purpose in view, namely, that the body may be the servant of the mind.a This very point is borne out by the uses of our bodily members, and particularly by the uses assigned to the hands,b since we defend ourselves by thrusting the hands forward, and claim a thing as our own by laying our hands upon it.Edition: 1950; Page: [27]

It is also natural for us to do good to one another, and to lend each other aid.c For it is right that we should accord to others the same treatment that we wish to receive when we ourselves are in distress.d It has Edition: current; Page: [93] been well said by those writersa who discuss the subject of duties that, in accordance with God’s Will, nothing—save God Himself—should be more useful to man than his fellow man. Moreover, human beings employ certain terms denoting fellowship; and in obedience to the implications thereof, kinsmen unite for mutual aid, neighbours are called upon in time of needb and all the citizens of a given community are likewise invoked as a whole,c whence there has arisen that well-known line employed on the stage, “Forward, Roman citizens!”d Thus Solon (so we are told) laid down the doctrine that the state wherein each individual regards injuries to others as injuries to himself, will be a happy state. Democrituse has said: ἀδικουμἑνοισι τιμωρει̑ν κατὰ δύναμιν χρὴ καὶ μὴ παριἑναι. τὸ μὲν γὰρ τοιου̑το δίκαιον καὶ ἀγαθόν, τὸ δὲ μὴ τοιου̑τον ἄδικον καὶ κακόν. “It behoves us to defend with all our might the victims of unjust oppression, and not to leave them neglected; for the former course is just and good, whereas the latter is unjust and wicked.” In the works of Aristotle,f too, we find this excellent passage: δει̑ τοὺς ἀδικουμἑνους ὑπὲρ ἑαυτω̑ν πολεμει̑ν, ἢ ὑπὲρ συγγενω̑ν, ἢ ὑπὲρ εὐεργετω̑ν, ἢ συμμάχοις ἀδικουμἑνοις βοηθει̑ν. “If injury has been inflicted upon any person, it is fitting that we should take up arms, whether in self-defence or for the sake of kindred or benefactors; or again, if our allies have been wronged, it is fitting that we go to their aid.” For that matter, even if other bonds are lacking, the universal fellowship of mankind and the communion established by nature, will still cause us to be affected in our turn by ills inflicted upon others. For human beings should not hold themselves aloof from anything that is of human import. Indeed, this maxim holds good to such an extent that great nations, as well as theologians and juristsg of no slight authority, Edition: current; Page: [94] in many cases regard as punishable the negligence of those who have allowed some person to be injured when they could have prevented such injury.

The authors of a deed, however, and their allies, act of their own force (the former, to be sure, on their own behalf, and the latter on behalf of another); instruments, on the other hand, act by the force of him who wields them, not by their own force. For in a certain sense, instruments fall into the category of parts, and a part is naturally the servant of the whole.a Thus the hand is, so to speak, ὄργανον ὀργάνων, “the instrument of all instruments”; and in this connexion the poet Lucretiusb observes:

  • The weapons of old were hands, teeth, and nails.

Conversely, weapons are the hands of the soldier. Nevertheless, when we speak of the instruments of war, we do not wish to be understood as referring to projectile engines, swords, and spears, since these things are scarcely pertinent to the question of justice; we refer rather to the men themselves whose deeds are performed subject to the commands of others. Take sons as an example:c for a son is from the standpoint of nature a part of his father, inasmuch as the former has derived his very existence from the latter. The slave also provides us with an illustration,d because he is in a sense, like any other possession, a part of his owner. For just as a given part does not merely pertain to its whole by virtue of the same relationship in which the latter is the whole corresponding to the said part, but furthermore depends upon that constituent whole for the very fact of existence, even so a possession is essentially a thing Edition: current; Page: [95] pertaining to the possessor himself. Democritusa gives us this advice: οἰκἑτῃσιν ὡς μἑρεσι του̑ σκηνἑος χρω̑ ἄλλῳ πρὸς ἄλλο; “Use your servants as you use the parts of your body: different ones for different purposes.” Nor is Aristotleb mistaken when he says that certain persons are by nature slaves, not because God did not create man as a free being, but because there are some individuals whose character is such that it is expedient for them to be governed by another’s sovereign willEdition: 1950; Page: [27] rather than by their own.c Thus a household consists, as it were, in a multitude of bodies directed by one mind; and absolutely every person who serves another is an instrument, wherefore we refer to those whose labour we utilize, as our “hands.” Let us apply the designationSubjects “subjects,” then, to all such persons.

Conclusion V, Article ITherefore, on the basis of the foregoing observations, we conclude that private wars (for these should be dealt with first) are justly waged by any person whatsoever, including cases in which they are waged in conjunction with allies or through the agency of subjects. In this connexion, one may quote the words of Baldus:d “Some persons make war directly, and not through the agency of another; some make war directly in conjunction with another; some do so through another’s agency, without intervening directly, and some do so both directly and through another’s agency.” The three kinds of warfare in question, [warfare by direct personal intervention, with the aid of allies, and through the agency of subjects,] are all clearly exemplified in a single instance drawn from the story of Abraham,e wherein war is waged not only by Abraham himself, but also by his allies (Aner, Eshcol, and Mamre) and, furthermore, by his household slaves, who are called in that story, “the young men.”

Moreover, I except no one from the conclusion set forth in the preceding paragraph. For if a given individual is prohibited from waging Edition: current; Page: [96] war, that prohibition is based not upon a defect in personal qualifications but upon a procedural defect,a or in other words, upon the Ninth Law, the force of which we shall have occasion to discuss elsewhere. It is in the light of this distinction that we should interpret the admonition of Augustine:b “In such circumstances, the chief thought of the just man shall be for this consideration alone, namely: that the war be undertaken by one who may lawfully wage war. For not all persons may lawfully do so.”

To be sure, in the majority of cases where writers employ the term “war,” they are referring not to private but to public war, which is more frequently the subject of discussion.c Let us now turn our attention to this public aspect of war.

Just as the power to wage war privately resides in the individual, so the power to wage war publicly resides primarily in the state,d regardless of whether the subject-matter of the dispute was public from the beginning or whether it has been changed from a private into a public matter through a judicial process.e Now,The State a state must be conceived of as something αὐταρκής, “self-sufficient,” which in itself constitutes a whole entity: something αὐτόνομος, αὐτόδικος, αὐτοτελής, as Thucydides would express it, that is to say, possessed of its own laws, courts, revenue, and magistrates; something endowed with its own council and its own authority, as is explained by Cajetan,f and also by Victoriag in the passage where the latter lays down the doctrine that there is nothing to prevent several sovereign and perfect states from being subject to one prince, or otherwise very closely bound together, by treaty.h But if a given state lacked power to wage war, it would not be self-sufficient for Edition: current; Page: [97] purposes of defence.a Consequently, it was permissible for the Roman people to decree war, as it was also for the Latins, the Etruscans, the Samnites, the Tarentines, and numerous other peoples of Italy who (so we are told) fought against the Romans;b not to mention for theEdition: 1950; Page: [28] moment the Carthaginians in Africa, the Spartans and Athenians in Greece, and many other nations. The same may be said of the ancient Hebrews, and of all the peoples who have lived sui iuris. Accordingly, Bartolusc (following Cuneo) declares that war is just when waged between two free states, and that possessions captured in such a war become the property of the captors.

The authority to undertake public wars also resides in magistrates.d For when the state has once transferred its will into the keeping of the magisterial will, whatever is permissible for the state on its own behalf is likewise permissible for the magistrates on behalf of the state.e The term “magistrate” should here be understood, of course, as referring to one who has been entrusted with a mandate for the waging of war. In a sense, however, all magistrates have been invested with this attribute, save in those cases that are specifically excepted, since the rendering of judgements and the defence of one’s jurisdiction, the issuance and the execution of decrees, pertain to one and the same office,f and since such functions sometimes cannot be discharged without resort to war. Furthermore, punishment of domestic enemies and punishment of external enemies naturally pertain to one and the same power.g Nevertheless, regard must be had for rank. Thus, in view of the fact that there is nothing which more gravely imperils the welfare of the state than war, there can be no doubt but that the state has willed that the power of making war Edition: current; Page: [98] shall be given into the hands of him in whom it has placed the greatest trust; and since the state has established various grades of magistracies, the clearest possible indication has been given of its will that, in a matter so grave, recourse shall first be had to the supreme magistrate, to the one second in rank if the supreme magistrate is not accessible or fails to discharge his functions, and so on, successively. For at all times the state desires both to be defended and to see justice administered; and care for the common welfare is the function of all magistrates.a

Therefore, in localities where it is not the custom for the people themselves to assemble as a whole, and where they have not decided that such an assemblage would be to their advantage, authority to undertake a war is invested primarily in those persons, or in that person, to whomEdition: 1950; Page: [28] all civil power, or the greater part thereof, has been committed. For in some states this power is entrusted to a number of individuals, for example, to a specific portion of the people, or to the aristocrats; while in other states it is entrusted to a single individual who is called the prince. Thus Augustineb says: “The natural order, the order adapted to the maintenance of peace among mortals, demands that authority and discretion for the undertaking of wars should reside in princes.”c In my opinion, however, when the prince is absent or negligent, and when no law exists expressly prohibiting this alternative course, the magistrate next in rank will undoubtedly have power not only to defend the state, but also to make war, to punish enemies, and even to put malefactors to death.d

A paradoxical contentionOn the other hand, there is a dispute as to whether or not, if a case of this kind should arise, the term “public war” would be applicable. I myself see no objection to this application of the term. For such wars are supported by the will of the state; and the state’s will, whether expressly Edition: current; Page: [99] or tacitly indicated, ought assuredly to be regarded as authority for the waging of war, as has been argued not only by Ciceroa but also (among the theologians) by Cajetan,b who bases his contention on what is undoubtedly an ancient formula: “Let the welfare of the people be the supreme law.” Indeed, this very question has been weighed on various occasions, both in Rome and elsewhere. For by the law of the Quirites, it was impossible (generally speaking, at least) for war to be undertaken otherwise than through a decree of the People or of the Senate. Nevertheless, when Gnaeus Manlius made war upon the Galatians, for cause but without any previous declaration of hostilities, he was not only acquitted after being accused; he was even rewarded with triumphal honours. Again, Cato’s opinion was repudiated when he characterized as “private” the war undertaken by Julius Caesar (who had been sent into Gaul with supreme power) against Ariovistus and the Germans, and the war of that same Caesar against the Britons. I, for my part, do not doubt that both Manlius and Caesar could have been defended on this ground, namely, that whenever war has been publicly declared upon any nation, all persons of potential aid to that nation would seem to be tacitly included under the declaration. In fact, it is my belief that even the war waged against Antony by Decimus Brutus, as Governor of Gaul, was a public war. Accordingly, in the light of the foregoing arguments and examples, I am moved to reject the authority of Innocentc and thatEdition: 1950; Page: [29] of Bartolus,d who follows him. Certainly their authority should carry little weight in cases relating to public law or to the law of nations; especially in view of the fact that the opposite opinion does not lack adherents, even among the Spaniards,e a race by no means to be despised in the field of jurisprudence. In particular, it may be noted that there is Edition: current; Page: [100] no one who does not concede the truth of this very opinion in relation to reprisals,a which may be regarded as a form of war.

Now, just as private individuals are rightly drawn into war by other private individuals, so also a given state or magistrate may be joined in warfare not only by such individuals but even by another state or magistrate.b Here we have the origin of allied forces. In regard to this institution, the Greeksc drew a neat distinction, employing the terms ξυμμαχίαν and ἐπιμαχίαν, which refer respectively to alliances established with a view to any cause of war whatsoever, and to those formed for defensive purposes only, in accordance with the First Law.

Subjects (that is to say, those persons who are bound by the laws of a state) likewise serve as instruments of public warfare. This is the sense, in part, of the Seventh and Eighth Laws, and also of the Fourth Rule. Consequently, no subject should be excepted from this category, save perchance on the basis of a special law or because of the customs of the particular state concerned: as slaves, for example, were excepted under Roman law and clerics under pontifical law, though for diverse reasons. But the extent to which subjects participate in public warfare is a matter which will be discussed in another context.d

For the present, our inquiry is concerned solely with the rights of [different classes of] persons [viewed as potential participants in public warfare], and those rights may be summarized as followsConclusion V, Article II: Public wars are justly waged by a state or by a magistrate in accordance with his rank, both in conjunction with an allied state or allied magistrate, and through the agency of subjects.

Edition: current; Page: [101]

CHAPTER VII: Concerning the Subject-Matter of War for What Cause and in What Circumstances Is War Justly Waged?

Question VI

Article I. What constitutes just subject-matter of war, in a causal sense, for voluntary efficient agents?

Article II. What constitutes just subject-matter of war, from the standpoint of attendant circumstances, for voluntary efficient agents?

Article III. What constitutes just subject-matter of war, in a causal sense, for subjects?

Article IV. What constitutes just subject-matter of war, from the standpoint of attendant circumstances, for subjects?Edition: 1950; Page: [29]

Corollary to Question VI. Can there be a war that is just for both parties?

Article I. With respect to voluntary agents?

Article II. With respect to subjects?

Let us consider next the following question: For what cause, and against whom, are wars waged? And let us devote the first part of our inquiry to what is properly termed the “cause of war,” although Aristotlea refers Edition: current; Page: [102] to the same concept as the “origin of war” and others, more specifically, as its πρόφασις [pretext or occasion].a

In view of the fact, then, that a just war consists in the execution of a right,b the matter regarding which a just war is waged must of necessity be a right.c

In this connexion, however, it should be noted that, although two types of belligerents have been mentioned above—the one type, voluntary, and the other (to which we applied the term “subjects”), instrumental, so to speak—the concept of “right” is not to be interpreted in the same way for the two cases. For subjects as such enjoy a right not absolutely, but in a relative sense, as the Scholastics have maintained. Indeed, in the strict sense of the term, a right pertains only to those who act voluntarily.d Furthermore, in order that a right may exist, it is necessary for volition to spring from an intellectual act of understanding, and that understanding must in turn be derived from truth itself. For the ancients were not unjustified in defining law as “right reason.” Those persons, moreover, who give the command for war, are properly admonished not to employ this last weapon of necessity unless such a course of action is based upon just cause.e Cicerof has said: “Those wars are unjust which have been undertaken without cause.”

Now, every right that we possess may be referred to one of four laws: the First, the Second, the Fifth, and the Sixth. For the Third and Fourth Laws, when interpreted from the standpoint of personal welfare, differ not at all from the First and Second, save only in the fact that the terms are reversed; while the Seventh, and all of the laws following thereafter, may be traced back to the Sixth (with the support, that is to say, of the Third Rule). Therefore, every [just] war must have its origin in one of four causes.

The first of these is self-defence, which is based upon the First Law. Edition: current; Page: [103] For, as Ciceroa observes, “. . . the act [of homicide] is not only just but even necessary, when it represents the repulsion of violence by means of violence.” Many statements to the same effect are to be found in the works of various authors.

A second cause is defence of one’s property, based upon the Second Law,b which makes it permissible not only to offer resistance but also to dispossess others. Moreover, the term “property” is to be understood not exclusively in a material sense, but as referring to every right, including that right to a good name which is justly the possession of virtuous persons and of which they ought by no means to be deprived.

A third cause—one that a great many authorities neglect to mention—turns upon debts arising from a contract or from some similar source. To be sure, I presume that this third group of causes has been passed over in silence by some persons for the reason that what is owed us is also said to be our property.c Nevertheless, it has seemed more satisfactory to mention this group specifically, as the only means of interpreting that well-known formula of fetial law:d “And these things, which ought to have been given, done or paid, they have not given, paid or done.” Plato, too, in the Alcibiades, e has said that wars are waged not only when one suffers oppression by violence, or despoliation, but also when one has been deceived. Yet again, the statement made by Senecaf may be cited: “Even cities bring charges against cities on the basis of services rendered.” Moreover, Baldusg expresses a similar view regarding pecuniary debt.Edition: 1950; Page: [30]

The fourth cause arises from wrongdoing, and from every injury—whether of word or deed—inflicted with unjust intent. Augustineh wrote: “Just wars, indeed, are wont to be defined as those which avenge Edition: current; Page: [104] injuries. Accordingly, that people or state should be attacked, which has neglected to punish evil conduct on the part of its citizens, or to restore what was unjustly taken away.”Edition: 1950; Page: [30a]

Now, I wish to have it understood that these four causes listed as suitable subject-matter for war, are of the same character whether the war be private or public. In the case of public wars, however, the rights as well as the examples involved are more clear-cut; and private wars furthermore differ from public wars with respect to their efficient agents and their form. Nevertheless, they are not different in their subject-matter. The examples afforded by all living creatures show that force privately exercised for the defence and safeguarding of one’s own body is justly employed.a Furthermore, such force is also just when the purpose is defence or recovery of one’s property;b nor is it less so when employed for the collection of a debt.c Even private exaction of a penalty for crime is sometimes permitted: for example, when the penalty is imposed upon adulterers (in certain cases), robbers, rebels, or deserters.d It was for this reason that Tertulliane said: “Every man is a soldier against persons guilty of high treason, and against public enemies.” Nor is it by mere chance that the very lawsf expressly apply the term ultio [meaning primarily “vengeance”] to an “indulgence” that has been granted.Edition: 1950; Page: [30a]

On the other hand, even as certain private wars are just by virtue of their cause, so public wars are unjust in the absence of due cause.g Thus Senecah complained: “We put a check on homicide and isolated cases of murder. But what of wars and the boasted crime of slaughter Edition: current; Page: [105] inflicted upon whole nations? Neither avarice nor cruelty recognize any bounds. [. . .] savage acts are committed in accordance with decrees of the Senate and the popular assembly, and the performance of deeds forbidden to private individuals is commanded by public authority.” Cypriana follows Seneca, saying: “When single individuals indulge in homicide, that is a crime. When homicide is committed by public authority, it is termed a virtuous act.” Herein lies the origin of the saying, “And law was given for [the service of] crime.” Accordingly, King Alexander was rightly included by the pirate among the latter’s partners in crime, if that ruler had no just cause for war against Asia; and in this same sense Lucanb called Alexander the “plunderer” of the world, while Senecac described him as a “robber.” A similar view may be taken of Crassus’ war against the Parthians.

New explanationTherefore, in both kinds of warfare, [public and private,] one must consider the causes involved. Of these there are four kinds, as we have pointed out: for the authorities who hold that there are three justEdition: 1950; Page: [30] causes of ward (defence, recovery, and punishment, according to their classification), fail to mention the not uncommon cause that arises whenever obligations are not duly discharged. Indeed, in so far as we are concerned with subject-matter, which is the same in warfare and in judicial trials,e we may say that there should be precisely as many kinds of execution as there are kinds of legal action. To be sure, legal judgements are rarely rendered in consequence of causes of the first class, since the necessity for defending oneself does not admit of such delay; but interdicts against attack properly fall under this head. The actions relating to property which we call civil claims, arise from the second kind of cause, as do also injunctions obtained in behalf of possession. The Edition: current; Page: [106] third and fourth classes give rise to personal actions, namely, claims to restitution, founded upon contract or upon injury.

Even as in the case of a lawsuit, however, so also in war, those causes which would justify the action taken by the plaintiff if they were genuine, serve instead to place the accused, or defendant, in the right if they do not have that just character which is claimed for them. For example, if a claim is presented against us for property that is our own, or if we are pressed to do something that we are under no obligation to do, or if it is demanded that we be given up for punishment when we are innocent, then, since the action against us is unjust, the defence must necessarily be just, in accordance with the First Law.

Furthermore, in these disputes involving war just as in the courts of law, not every rightful claim comes into existence before the process of execution. For the execution of one’s right in itself constitutes a right, a point already touched upon in our discussion of prize and booty.a

Accordingly, it is apparent from the foregoing comments that arms are not justly taken up for the sake of undue dominion or liberty,b whereas, for the purpose of rightfully retaining dominion and liberty already acquired, not even war should be shunned. Nevertheless, we should see to it (although this is a matter not so much of right as of discretion) that we do not rashly allow ourselves to be aroused by comparatively trifling injuries; for it is frequently less of a hardship to tolerate these, than it would be to endure the conditions that inevitably accompany war. We must steer clear of Charybdis without falling uponEdition: 1950; Page: [30] Scylla. Of a similar character is the forensic principle that it is not necessarily expedient to enter into litigation on every occasion when it is just to do so.

Our remarks on the subject of rights are applicable no less to allies than to the principal authors of a war,c since allies, too, should take care lest they involve themselves in a war that is not just. For they are not Edition: current; Page: [107] compelled to do so, inasmuch as unconditional contracts of alliance for war are invalid even from the legal standpoint.a It is for this reason that Abrahamb instructs his allies in regard to the justice of his cause; and Achilles, too, when he is about to aid the Greeks, is represented by the Latin poet Statiusc as first inquiring into the causes of the war, in these words:

  • What was the source, for Greece, of war so grave?
  • Tell me! It is my wish straightway to build
  • Just wrath upon this knowledge. . . .

Conclusion VI, Article ITherefore, in so far as concerns the persons who wage war voluntarily, that war has a just cause, wherein the said persons defend their lives or their property, or seek to recover the latter, or attempt to exact either payment of that which is due or punishment for wrongdoing.

Having settled this point, we shall have no difficulty in solving the second problem. For whatever is subject to a given action or suffers the effects thereof, is also customarily regarded as subject-matter of that action. An example of such subject-matter, pertinent to the discussion of war, is to be found in the party against whom war is waged, or in other words, the enemy, although the latter term has an active as well as a passive connotation. For, in the natural order, when the agent acts with calorific force, it follows that the passive recipient of the act is [relatively] cold;d and in precisely the same way, when it is evident that the belligerent waging a just war is acting with rightful force, it follows that the enemy against whom the just war is waged must necessarily be disposed in the opposite fashion. But we have already showne that the opposite of a right is a wrong. Therefore, in short, that party rightly becomes the passive subject of the said war, who is in his turn the perpetrator of a Edition: current; Page: [108] wrong.a Augustineb maintains that, “The injustice of the opposing party brings just wars upon him”; and the following pronouncement of the Emperor Leoc is in accord with the statement formulated by Augustine: ὁ γὰρ τοι̑ς ἀδικήσασιν ἀνταμυνόμενος οὑ̑τος δίκαιος ἐστίν; “For he is just who inflicts vengeance upon those who have done an injury.”1 The theologians,d too, expressing themselves in their own manner, declare that, “A party properly disposed to be the passive subject of war, is a party unwilling to give satisfaction.”

New explanationIn order to expound this portion of our argument more accurately, however, we must explain the concept of “wrongs.”

The expression “a wrong,” when opposed to “a right,” has three meanings, differentiated among the Greeks by the use of three separate terms, as we learn not only from the philosopherse but also from Ulpianf and Theophilus.g Again, the same distinction is clearly revealed in The mistius’ speech to Valens and in the words of Gylippus as quoted by Diodorus.h The Greek terms in question are, first, τὸ ἄδικον [wrong in the generic sense, that which is unrighteous or unjust]; secondly,Edition: 1950; Page: [31] ἀδίκημα [intentional wrongdoing] which manifests itself in either of two aspects, ὕβρις καὶ ζημία [wanton violence, and damage], and thirdly, ἀδικία [habitual and characteristic wrongdoing, injustice]. Hieraxi the philosopher, in his book on Justice, draws a neat distinction Edition: current; Page: [109] in regard to these three terms, observing that the first represents ἀποτἑλεσμα [completion or result], the second πρα̑ξις [action], and the third ἕξις [a habit or state of mind]; or in other words, an accomplished act or result,2 the performance of an act and the disposition to act, concepts which differ from one another just as a completed picture, the act of painting and the art of painting differ. On the basis of the first concept, the term ἄδικόν τι πράσσοντες [persons through whom wrong is effected], is applied; on the basis of the second, ἀδικου̑ντες [intentional wrongdoers], and on the basis of the third ἄδικοι [unrighteous persons]. Now every instance of ἀδικία [or habitual and characteristic wrongdoing] carries with it an element of ἀδίκημα [intentional wrongdoing], and the latter always involves τὸ ἄδικον [generic wrong]; but the reverse need not be true. For although these concepts differ not at all in so far as concerns the person upon whom the injury is inflicted, nevertheless they do differ with respect to the person who is committing the injury. Thus ἀδικία [habitual and characteristic wrongdoing] cannot occur otherwise than ἐκ προαιρἑσεως, “by premeditated choice,” whereas ἀδίκημα [intentional wrongdoing] sometimes occurs apart from premeditation, though always with antecedent knowledge and volition, or ἑκοντί [voluntarily], that is to say, in circumstances indicating that the agent understands against whom, in what way, and for what reason he is acting, so that his own volition is indeed involved in the act. On the other hand, τὸ ἄδικον [generic wrong]—which the Scholasticsa call “material injustice,” as opposed to formal injustice, while Baldusb describes it as “a factual fault,” distinguishing it thus from a conscious fault—can exist even in cases where the performance is not voluntary. “Mischances and mistakes” (ἀτυχήματα καὶ ἁμαρτήματα) both fall under this one head. To be sure, the latter type of wrong occurs when an act has its origin in the mind of the agent, though in such a way that he is somehow Edition: current; Page: [110] deceived; whereas mischances have some other origin, such as the fact that a weapon has slipped from one’s hand in crowded surroundings.

The ancient authorities on Roman lawa placed every instance of τὸ ἄδικον [generic wrong] under the general head of noxa [harm, injury, offence], and to those particular cases which were free of τὸ ἀδίκημα [intentional wrongdoing], they applied the term pauperies [loss or damage inflicted without volition]. An animal, in that it lacks the rational faculty, does not act with wrongful intent.3 In other words, neither ἀδίκημα [intentional wrongdoing] nor ἀδικία [habitual and characteristic wrongdoing] can be ascribed to animals; for animals are not endowed with volition, and far less do they possess the power of premeditated choice. Nevertheless, they can bring about a wrong. For “wrong” is a general term, applicable even in cases where the agent has not willed to do harm, as is indicated by the Aquilian Law.b

Perhaps, then, we shall not err if we say that the Greek phrases τὸν ἄδικόν τι πράττοντα, τὸν ἀδικου̑ντα, τὸν ἄδικον, refer respectively to the man who brings about a wrong, the man who acts with wrongful intent (facere iniuria) and the man who acts as an unrighteous person. In direct contrast with these phrases, we have the following expressions: δίκαιόν τι πράττειν, δικαιοπραγει̑ν καὶ δικαίως πράττειν, “to bring aboutEdition: 1950; Page: [31] what is right,” “to act with righteous intent” (facere iure), and “to act as a righteous person.” The above-mentioned concepts can also be adapted to conform with the phraseology of Marcianusc in his discussion of public prosecutions, so that the expression ἄδικόν τι πράττειν may be applied to one who brings about a wrong by chance, ἀδικει̑ν to one who does a wrong upon a sudden impulse, and ἀδικω̑ς πράττειν to one who acts habitually as a wrongdoer.

Accordingly I maintain that in treating of wrongs, or injuries,4 per-petrated Edition: current; Page: [111] by the enemy, we include under this head even injuries that are not voluntarily inflicted. This point may be clarified as follows.

Just as right has been shown to consist in that which accords with the First and Second Laws and also in that which accords with the Fifth and Sixth Laws, even so it may be shown that a wrong, or injury, is that which conflicts with the Second [Third]5 or Fourth Law, or with the Fifth or Sixth. For the laws of the first and second orders [Laws I and II, and Laws III and IV, respectively] are of an unmixed character, whereas those of the third order [Laws V and VI] have a mixed character and are therefore taken into consideration from two points of view [i.e. in connexion with both rights and injuries]. Thus, if any person threatens me with danger while he is dreaming (a supposition based upon actual occurrences, according to certain learned authoritiesa) or, for that matter, while he is insane (as may happen at any time), there is no doubt but that I may rightly repel force with force, even to the point of slaying that person if no other way of ensuring my own safety is left open.b Yet such an assailant is not “acting with wrongful intent,” since at the time in question he is non compos mentis. It suffices that his act is in conflict with the Third Law. For, on the basis of the First Law, which charges me to have a care for myself even in preference to others, I have the right to ward off an act of that kind by any means whatsoever. As Senecac says, “Necessity, the great defence of human weakness, breaks down every law.” Indeed, as we observed at the outset,d necessity is the first law of nature. Similarly, a claim may be made upon property that is being held in good faith; that is to say, although the possessor is not voluntarily transgressing the Fourth Law, nevertheless the Second Law may properly Edition: current; Page: [112] be applied against him. Furthermore, it is possible that, owing to any one of several causes, the possessor of certain property may owe me a debt of which he himself is unaware. This situation may arise, for example, if he is an heir. In such circumstances, he is violating the Sixth Law by failing to pay the debt, and despite the fact that the violation is not voluntary, the benefit of that law should not be denied to me. For what could be more unjust than the loss of one person’s right because of another person’s error? Moreover, the foregoing observations are applicable in warfare just as they are in legal disputes.Edition: 1950; Page: [32]

Volition is taken into account only in connexion with the Fifth Law. Thus offences against this precept are not punished unless they were voluntarily committed. The reason for the exception lies in the fact that evil is repaid to the guilty person in proportion to the good seized by him in an unrighteous manner,a that is to say, through another’s ill; but no person can be judged to have enriched himself by means of another’s loss unless he was voluntarily the author of that loss; and therefore, not every instance of ἄδικον [generic wrong], but only ἀδίκημα or ἀδικία [intentional or habitual wrongdoing], can appropriately be viewed in this light. Later on, we shall see how these different forms of injury give rise to different modes of execution.b

For the present, it is clear that those persons who bring about injury in any way whatsoever are liable to prosecution in war, if they are liable to legal prosecution. For the law, according to Demosthenes,c is ἐπανόρθωμα τω̑ν ἑκουσίων καὶ ἀκουσίων ἁμαρτημάτων; that is to say, law corrects not only voluntary but also involuntary sins. Hence it follows that not merely persons who act with free-will, namely, principals and allies, but instruments, too, or in other words, subjects, are included under the head of “enemies.” For the subject, in the course of obeying commands, even if he does not “act with wrongful intent” (ἀδικει̑), at least “brings about a wrong” (ποιει̑ τὰ ἄδικα).d It is to [enemy] subjects Edition: current; Page: [113] that the following ritualistic phrases of the Romansa refer: (in the declaration of war) “I declare and make war upon the nations of the ancient Latins, and the men of the ancient Latins”; (in the inquiryb addressed to the people) “Whether they wished and ordered that war be declared upon King Philip and upon the Macedonians under his rule”; (and in the actual decreec mentioned by Cincius in his discussion of military affairs) “The Roman people have declared war against the Hermandulan nation and against the men of that nation.” Allies, too, are included in the formula,d “Let the enemy be that one, and whatsoever persons are within his garrisons.”

Another point that should be brought out, is this: the same principle that we laid down in connexion with rights holds good in regard to injuries, by a reverse process of reasoning; that is to say, a certain form of injury may be suffered during the very execution of a right. For he who resists a just execution, whether knowingly or ignorantly, causes an injury, since he either keeps back that which belongs to another or fails to do that which he is under an obligation to do, and since, moreover, he is also offending one whom he ought not to offend. Therefore, it is proper to proceed against a state in war, not only when that state itself commits the original injury, or when its magistrates do so on its behalf and by its authoritye (for we commit those acts, too, which we perform through another), but also when the said state protects citizens who have committed an injury; and it is proper to proceed in like manner against the citizens, in their turn, when they fight in defence of a state or magistrate that is the author of an injury.f In other words, inferior laws such as the Seventh and Eleventh (being derived, as they are, from the Third and Fourth Rules), when preferred to any of the first sixEdition: 1950; Page: [32] laws, which are precepts of nature and of the law of nations (precepts Edition: current; Page: [114] based, that is to say, on the First and Second Rules), result not in the execution of rights but rather in the perpetration of injuries.a

Conclusion VI, Article IIIn the light of the facts above established, war is just for those who wage it voluntarily against individuals, or against a state, by whom, or by which, or by whose magistrate, an injury has been brought about; b and it is also just when waged against a state that protects a citizen who is the author of an injury, or against the allies and subjects, in their capacity as such, of any opponent who brings about an injury.

Strictly speaking, as was noted above, the question of right does not arise where the actions of subjects are concerned; at least, it does not arise in so far as the source of these actions lies outside of the subjects themselves. For we have already intimated that the fundamental factor involved in this question is that of volition, which is directed by rational understanding, a point confirmed by the theologians; and instruments act in accordance with another’s volition. On the other hand, account must be taken of the fact that subjects, although they are instruments, are nevertheless human beings; but human beings—save of course for certain actions imposed by nature—do not act otherwise than of their own volition. How, then, shall we reconcile these statements?

New explanationWe may do so by arguing as follows: the will of subjects is ruled by the will of those who are in command, as is proper wherever instruments are concerned, but with the proviso that reason must not rebel, a proviso which in itself constitutes a phase of justice. Let us illustrate this argument by considering the character of slaves, a subject discussed at length by Aristotle.c Although some persons maintain that the slave is completely devoid of any capacity for virtue or even for justice, while others concede to him the same capacity for virtue as that which resides in a free man, the above-mentioned philosopher draws an admirable distinction, explaining that the virtue desirable in a slave is not the perfect Edition: current; Page: [115] form required of one who commands but rather the form necessary for servile purposes, and that this virtue is, moreover, very limited in extent. Inasmuch as slaves partake of the rational faculty, they may not be deprived of all claim to virtue; yet they cannot be placed on a level with free men, since they do not possess τὸ βουλευτικόν, “the deliberative faculty.” Accordingly, the point I set out to make is this: the slave does exercise reason in a partial degree, and in part he does not. TheEdition: 1950; Page: [33] well-known verses of Homera are remarkably appropriate in this connexion:

  • Ἥμισυ γὰρ τε νόου ἀπαμείρεται εὐρύοπα ζεὺς
  • Ἀνδρω̑ν, οὓς ἂν δὴ κατὰ δούλιον ἠ̑μαρ ἕλῃσι.
  • Jove from this class of men takes half the mind,
  • Willing that they should lead the life of slaves.

Similarly, the slave is in a partial sense capable of virtue, and partially incapable thereof.

  • ἥμισυ τη̑ς ἀρετη̑ς ἀποαιρει̑ δούλιον ἠ̑μαρ
  • Forced into bondage he doth lack the half
  • Of virtue.. . .6

Furthermore, this same principle that is applicable to slaves, may be applied to other subject persons. For, as the author first cited [Aristotle]b asserts, the virtue of a child, οὐκ αὐτου̑ πρὸς αὐτόν ἐστιν, ἀλλὰ πρὸς τὸν τἑλειον καὶ ἔγούμενον; “is not personal and relative to the child himself, Edition: current; Page: [116] but relative rather to the individual who is set in authority over him as a more fully developed being.” The distinction in question also has a universal application, namely, between του̑ ἄρχοντος καὶ ἀρχομἑνον,a “the one who commands and the one who obeys”; and in this latter class, citizens, even when they are considered as individuals, are included. For citizens, according to Cicero,b are servants of the law. Furthermore, as Aristotlec explains, all that commands is a cause of virtue to that which obeys.d Tacituse has in mind the same distinction when he says: “The gods have assigned to the prince the supreme power of judgement; to the subjects, the glory of obedience has been left.” Thus, with respect to subjects, that contention is true which Carneades and the Academic philosophers have mistakenly applied to all persons, namely, that justice is a matter of opinion, οὐ φύσει ἀλλὰ νόμῳ, “based not upon nature but upon law,” inasmuch as it consists in compliance with the established institutions of the various nations. By theEdition: 1950; Page: [33a] Peripatetics, this justice [characteristic of subjects] is described sometimes as “legal” and sometimes as “general,” because it can be ascribed to the same underlying principle as all the virtues, in so far as these are in conformity with some precept. The Scholastics add that, even as the phase of justice which relates to exchange takes its course between different parts of the whole, while distributive justice proceeds from the whole to the parts, so the phase to which we now refer consists in a process flowing from the parts to the whole.Edition: 1950; Page: [33]

Thus my original assertion—namely, that a war is not just even for subjects if it is repugnant to their reasonf—is equivalent to the opinion proclaimed by the theologiansg in the following terms: “Whatever does not have its origin in good faith, is sinful.” For, as the Scholasticsh observe, Edition: current; Page: [117] that act of volition is evil which is at variance with reason, even though reason be in error; and reason is indeed rebellious whenever it declares that the command of some state or magistrate, and consequently, the laws of the inferior orders, are in conflict with the laws of the superior orders and therefore unjust according to the Thirteenth Law. This point is convincingly confirmed by the rules from which the various laws are respectively derived. We are familiar with the saying, “It is better to obey God than to obey men,”a a maxim which Ambroseb adapts to our argument by offering this concrete example: “The Emperor Julian, although he was an apostate, nevertheless had Christian soldiers under him. When he said to those soldiers, ‘Advance your battle line for the defence of the state,’ they would obey him; but when he addressed them thus, ‘Advance your arms against the Christians,’ then they would recognize [only] the divine Commander.” For that matter, all of the jurists,c too, declare that one ought not to obey a prince who is manifestly issuing an unjust command. Furthermore, they maintain that, in cases of wrongdoing, no one is excused on the ground that he is acting under command,d since even a slave who obeys the order of a master engaged in piracy or in any like pursuit of a wrongful nature, is not immune from punishment.e Again, Senecaf has said: “For we may not command all things [from slaves]; nor are slaves compelled to obey in all things. They shall not execute commands adverse to the state, nor shall they lend a hand in any criminal act.” In a preceding passage, Senecag also points out that the relationship of a soldier to his general and that of a subject to his king, are the same as that of a slave to his master. JeromehEdition: 1950; Page: [33a] adopts a similar view, saying, with reference to slaves and children: “They ought to be subject to their masters and parents only in those ways Edition: current; Page: [118] which are not contrary to the commands of God.” By the sameEdition: 1950; Page: [33] token, those persons are not free from guilt who allege as an excuse the fear either of death or of property losses, while they lend themselves as accomplices to some act known or suspected to be unjust. ForEdition: 1950; Page: [33] fortitude, the companion of justice, decrees that it is better to endure evils of any kind rather than to concur in evil, as Augustinea has observed in a similar connexion.

On the other hand, when reason is not opposed, even a war which in itself involves an injury is not unjust from the standpoint of subjects.b This principle (as Victoriac maintains in his refutation of Adrian’s opinion) is applicable even in the case of subjects who are doubtful as to the justice [of a war]. For we have laid down a ruled to the effect that “The authorities must be obeyed”; and no one may depart therefrome save through an application of the Thirteenth Law, whereas a person in doubt makes no such application. Neither is any obstacle presented by the precept, “Commit no act concerning which you are doubtful”; for he who is in doubt as to the justice or injustice of a war proclaimed by command, does not forthwith conceive an additional doubt as to whether or not obedience is due in doubtful cases. Moreover, while the foregoing argument is valid even in cases where reason fails in the sense that no definite decision is reached, the same argument will have far greater force when the reason of the subject favours the war, as it does quite properly in a great many instances.

New explanationFor right is based upon fact. And facts—that is to say, specific facts—are learned neither through art nor through science, which are of a purely universal nature. Again, very few facts are discernible through the senses, since we cannot be in more than one place at one particular time, and since the senses perceive only those things which are very close at hand. Edition: current; Page: [119] Yet there is no other way of attaining to true knowledge. Impelled thus by necessity, human reason has fashioned for itself certain rules of probability, or τω̑ν εἰκότων, for passing judgement in regard to facts. These rules consist of various προλήψεις, or (to use the Latin term) praesumtiones [preliminary assumptions], which are not fixed and unchangeable like scientific rules but rather of a character considered concordant in the greatest possible degree with nature; that is to say, on the basis of what commonly occurs, conclusions of a similar trend may be drawn.a In this sense, a question of fact may be called conjectural. For, among the proofs which we accept in forming judgements, there is not one that is necessarily conclusive; on the contrary, all of them are derived from the aforesaid preliminary assumptions ὡς ἐπὶ τὸ πολύ, “based on what commonly occurs.”bEdition: 1950; Page: [34]

Now, the primary principle among these assumptions of fact would seem to be our supposition that those inclinations which are in the highest degree natural (such as the inclinations toward the True and toward the Good), as well as the others derived therefrom, exist inherently in some measure within all things. Here we have the source of such concepts as assured belief in posterity, the beneficial nature of property ownership, the credibility of witnesses or documents, and the gravity of oaths. Moreover, not only does the rule of charity instruct us to think well of private individuals,c but also (and this is a particularly important point) both reason and Holy Writd forbid disparagement of magistrates. For magistrates have the support of the weightiest preliminary assumptions, partly because of the oath they customarily take, partly as a result of the general consent expressed by the state and the testimonial of confidence given by the citizens, considerations of such a nature that anyone holding a different opinion in regard to these officials would not only be charging the magistrates themselves with treachery but would also Edition: current; Page: [120] condemn a vast multitude of persons on a charge of folly. For all such charges would be contrary to those natural impulses which I have called “inclinations.” Furthermore, if anyone who practises a particular profession or art is properly regarded as expert and painstaking in his special field,a why, pray, should not magistrates be considered to have judged wisely (inasmuch as they are the Priests of Justice) concerning the cause of a war? For it is the function of a good magistrate to formulate such judgements. And when the magistrates hold that things justifying entry into war have befallen the citizens, why should not faith be placed in those authorities, as in persons who speak the truth? b Yet again, why should it not be right to believe that the laws of an inferior order are in agreement with the higher laws, and that the commands of the magistrate are identical with the commands of God,c whenever no obstacle exists to preclude such a belief? In short, subjects subordinate to a given state or magistrate occupy a position analogous to that occupied by children and slaves, who are subject respectively to the solemn patria potestas and to the power of the master.

Nevertheless, when we append the condition that reason must not rebel, it should be understood that we are referring to reason guided by the weighing of probabilities. For neither crass ignorance (for example, ignorance of the natural law) nor lack of knowledge regarding a fact which anyone ought to have known, constitutes an excuse for sinning.d There are certain things, indeed, of which one cannot be blamelessly ignorant; and, according to the teachings of both the jurists and the philosophers,e this very condition of blameworthy ignorance merits punishment.

But we have demonstrated the validity of the opinion which tends Edition: current; Page: [121] not a little to placate the consciences of many persons. Augustinea has expounded this opinion in the following terms: “Therefore, the just man, if he should by chance be serving as a soldier even under an impious king, may righteously wage war at the latter’s command, provided that, while he observes the dispositions of rank established to maintain peace within the state,7 it is certain either that the order issued to him isEdition: 1950; Page: [34] not contrary to the law of God, or, at least, uncertain that the order does conflict with God’s law; so that the king may perhaps be held responsible for an unjust command while the soldier is shown to be innocent because of his rank as one who serves.”

Conclusion VI, Article IIIWe ourselves shall state our conclusion thus: For subjects, that war has a just cause which is ordered by a superior, provided that the reason of the subjects is not opposed thereto after weighing the probabilities. b

Through this same process of reasoning, we arrive at the answer to another question, namely: what persons may justly be attacked in war by subjects? In the [Civil] Law,c the enemies of the Romans are defined as those against whom the Roman People have decreed war. Indeed, in all parts of the world, subjects justly wage war upon those against whom war is ordained by the state or magistrate of the said subjects, save in Edition: current; Page: [122] cases conflicting with the limitation explained abovea [i.e. cases in which reason rebels after the probabilities have been weighed].

At this point, however, we are confronted with a difficult problem. For we have already said that in an essentially unjust war the subjects, though acting in ignorance, are nevertheless “bringing about a wrong”8 and are therefore rightly attacked in war; yet in the present connexion we say that those same subjects, when ignorant, “act as righteous persons” when they wage war; but he who “acts as a righteous person” is at the same time “acting with righteous intent” and “bringing about what is right”; now, a single act cannot be both right and wrong, since these two concepts are diametrically opposed to each other, and on the other hand, it is certain that a given individual cannot be acting both “as a righteous person” and “as an unrighteous person,” since both these forms of conduct relate to the disposition of the agent, in which contrary feelings regarding a given matter cannot be entertained simultaneously. Nevertheless, it is possible for the same person to bring about a wrong and a right effect at one and the same time, though not with respect to a single object. For actions which proceed from an identical source can have an opposite effect upon different objects. For example, clay is hardened by the action of the selfsame fire that softens wax. Similarly, when a subject is waging by lawful authority a war that is in itself unjust, the effect constitutes a wrong in relation to the party against whom the war is directed; yet it represents a right from the standpoint of the party who gives the order, and not merely a right, but justice itself. For (as we indicated above) virtue in the subject must bear a relation to the authority in command. The following argument will clarify this point: any act whose omission would be characteristic of an unrighteous person, is characteristic of a righteous person when it is not omitted; and a subject would be “acting as an unrighteous person” if, when his magistrate gave Edition: current; Page: [123] orders for a war not known by the subject to be unjust, the latter should refuse to carry on that war; moreover, he would be sinning not only in a civic capacity but also against his conscience.a For, as AugustinebEdition: 1950; Page: [35] explains, “when a soldier, acting in obedience to the power lawfully set over him, slays a man, that soldier is not guilty of homicide by any law of his own state; on the contrary, if he has failed to act thus, he is guilty of betrayal and contempt of sovereign authority. If, however, he had committed this same act of his own accord and by his own authority, he would have become liable to the charge of shedding human blood. Thus he will be punished for failing to perform, when bidden to do so, the very act that he is punished for performing unbidden.” Hence it follows that a subject “acts as a righteous person” when waging a war that he does not regard as unjust, even if wrong is thereby inflicted upon another.c

Nor is there any reason to be surprised at this conclusion. For the judge who sentences an innocent prisoner when the latter has been convicted by legal proofs, is also “acting as a righteous person,” since he is doing that which it would be sinful for him not to do; yet the wrong done to the innocent person is not lessened by these circumstances. A similar statement could be made in regard to the person executing a death sentence, inasmuch as he is bound to execute that sentence unless he is convinced that the command to do so is unjust. Despite the fact that such cases admit of an occasional error in reasoning, this possibility of error does not vitiate the justice of the act involved, since (as the Scholasticsd have taught) the volition attached to erring reason is wicked only in those instances where knowledge is obligatory. Furthermore, there are many just causes of war whose public disclosure is inexpedient,e nor is it fitting that a private individual should be curious in such a situation; for if a delay were permitted for each person’s examination of Edition: current; Page: [124] the cause in question, opportunities to build up resistance would be afforded to the enemy.

In the foregoing observations, we have an explanation of the ruling, “He inflicts harm who commands that it be inflicted, but he is guiltless who must necessarily obey”;a and of this other ruling, too: “If a free man has inflicted a wrong with his own hand by order of another,Edition: 1950; Page: [35] action may be brought against the party who gave the command, provided that the latter had the right of command; but if he did not have this right, the action must be brought against the party who committed the act.”b The same principle may be applied to explain the words of Augustine:c “the just man shall give no special thought to any consideration other than this, that the person undertaking the war is one who has a lawful right to wage war.” Thus Panormitanusd appends a shrewd restriction to Hostiensis’e pronouncement against war, in stating that a war is presumed to be just when it has been declared by a superior power. Not only in the opinion of Panormitanus, but also by unanimous agreement among all of the theologians and teachers of canon and civil law,f in every case of this kind, subjects fight justly and are exempt from any charge of murder.

Conclusion VI, Article IVIn short, the contention of these authorities is equivalent to the conclusion which we shall formulate in the following terms: For subjects, that war is just which is waged against an opponent whom their superior has ordered them to attack in war, provided that the reason of the subjects is not opposed thereto after weighing the probabilities.

The difficult and much-mooted question of whether or not it is possible for a war to be just on both sides,g is susceptible of clarification on Edition: current; Page: [125] the basis of the comments already made. For there is no doubt but that the remaining requisites of justice—for instance, those relative to authority, mode of warfare, or intent—can be present in both belligerents, so that the whole of the difficulty lies in the matter with which we have just dealt. Indeed, it does not seem possible that one might justly resist a person seeking to obtain his rights, in the same manner as if one were resisting the perpetrator of a wrong. Thus it becomes necessary to draw a distinction between subjects and persons in command.

For if we are referring to the state or magistrate authorizing a war, we are more likely to find both belligerent parties in the wrong than we are to find right on both sides. Take for example a case in which a debt of five is owed, and one party seeks to collect ten while the other offers no payment whatsoever. For we have here a situation identical with that created by two mutually contradictory statements, which may both be false at one and the same time whereas they cannot both be true simultaneously. Of course, it is possible for princes to fall into error either of law or of fact,a and the error may be excusable; but if such an inadvertent mistake should occur during a judicial trial, that would not enable us to say any more truly that the suit was justly litigated. For in the caseEdition: 1950; Page: [36] of voluntary agents it is necessary, if they are to be regarded as acting justly, that their action shall in itself be in conformity with the laws. ThereforeArticle I of Corollary, in so far as voluntary agents are concerned, there can be no war that is just for both parties.

On the other hand, if we refer exclusively to those persons who serve in warfare, there is nothing to preclude the possibility of a war that is just on both sides. For the issue of justice as a whole turns not upon a single fact, but rather upon the conflicting orders and opinions of the various persons in command; and furthermore, the conflicting acts of different commanders do not necessarily invalidate each other, just as it is not impossible that contrary opinions, both of a credible nature, may occur to different men in regard to one and the same matter.

Edition: current; Page: [126]
  • ’Tis not permitted us to know which one
  • More justly wars; for each supports his cause
  • With high authority. . . .a

The same theme is touched upon in the following quotation from Cicero:b “Indeed, a certain confusion prevailed: generals of the greatest renown were pitted against each other. Many persons were in doubt as to what would be the best course: many, as to what would be expedient for themselves; many others, as to what would be seemly; and some were doubtful even as to what would be lawful.” Such, then, are the persons referred to in various passages as “Just enemiesjust enemies,” namely, those who do what they do at the command of a superior power. Consequently, within a state tyrants and rebels are not classified as just enemies, and outside the bounds of any state brigands and pirates are excluded from this classification, although the reason for excluding these groups has not hitherto been given sufficient consideration.

Article II of CorollaryAll of the theologians and juristsc agree, however, in accepting this principle: In so far as subjects are concerned, a war can be just for both parties: always provided, of course, that the war be preceded by a command against which reason does not rebel after the probabilities have been weighed.Edition: 1950; Page: [36]

Edition: current; Page: [127]

CHAPTER VIII: Concerning the Forms to Be Followed in Undertaking and Waging War

Question VII

Article I. What constitutes just form in undertaking a private war?

Article II. What constitutes just form in undertaking a public war?

Article III. What constitutes just form in waging a war, in so far as voluntary agents are concerned?

Article IV. What constitutes just form in waging a war, in so far as subjects are concerned?

Corollary I. To what extent is aggressive action permissible against enemy subjects?

Corollary II. Can seizure of prize or booty be just for both parties, in so far as subjects are concerned; and if so, to what extent is this possible?

Corollary III. Can [ permanent] acquisition of prize or booty be just for both parties; and if so, to what extent is this possible?

The forms and modes of warfare, too, must be considered in one light with reference to voluntary agents, and in a different light with reference to subjects. Furthermore, just as in most matters there is one form for an inchoate stage, and another form for a permanent condition, even so there is one mode of voluntarily undertaking a war while there is another mode of carrying it on voluntarily.

Edition: current; Page: [128]

Now, form (according to the ancient philosophers)a consists in what may be described as a certain orderly arrangement; and therefore, a just form is an orderly arrangement concordant with law, or in other words, a kind of internal harmony among the various laws. This harmonious blend (so to speak) is governed by the Thirteenth Law, [which requires the observance of the different laws in the order of their importance]. As we have already stated, however, war is a process of execution, and only the Ninth and Twelfth Laws, [relative to respect for judicial procedure in the private and public execution of rights,] are pertinent to the proper initiation of this process.

First of all, let us consider those wars which are undertaken by private individuals. Here we are at once confronted with a rather grave difficulty. For a private war cannot possibly be preceded by a judicial process, since the power of judgement resides in the state and the war would cease to be private as soon as the state interposed its authority.b How, then, can a private war be just in its external form, when the Ninth and Twelfth Laws call for judicial procedure as a preliminary requisite?

Even with respect to private individuals, this requirement is confirmed by the authority of sages and of civil law. For no one isEdition: 1950; Page: [37] given power to set armed forces in motion when the ruler has not been consulted.c Such conduct, indeed, would constitute not a just war but private robbery.d Consequently, he who wages war or holds a levy or makes ready an army independently of any command to that effect from the people or the prince, is punishable under the Julian law of high treason.e Moreover, why are guards stationed in public places, why have prohibitions and warnings against offensive action been incorporated in the laws, if not with the purpose of precluding any excuse for private defence?f In so far as [unauthorized] defence of one’s own property is Edition: current; Page: [129] concerned, we know that a precept has been established to the following effect: if the owner of a piece of property shall have forcibly seized possession thereof prior to the rendering of a judicial decision, possession shall be restored [to the party from whom the property was seized] and the [original] title to ownership shall be lost.a Similarly, with reference to debts, violence is said to be employed whenever any person reclaims otherwise than through a judge that which he believes to be his due; and it is also maintained that the legal right of the creditor is lost when the latter has declared the law for himself.b In the case of crimes, the matter is even clearer: μὴ ἑαυτοὺς ἐκδικου̑ντες, “avenge not yourselves,” says the Apostle Paul.c And Senecad observes: “‘Vengeance’ is an inhuman word, yet it is accepted as having a just connotation; nor does it differ greatly from ‘violence,’1 save in degree. He who returns an injury merely sins more pardonably.” This same point is borne out in the other pronouncements against violence, made by the philosopherse and by Christian writers.f Thus Quintiliang says: “Requital of injury is inimical not only to law but also to peace. For laws, courts, judges, are all available, save perchance for those who are ashamed to vindicate themselves by legal means.” Quintilian’s assertion is clearly equivalent to these words from the decree of the Roman Emperor [Theodosius]:h “even if one of them [the Jews] be implicated in crime, the authority of judgements and the protective force of public law have been established in our midst for this very purpose, namely, to preclude the possibility that any individual should be in a position to indulge in direct personal vengeance.” Theodorici supports the same view when he tells us that, “Pious reverence for Edition: current; Page: [130] the laws is found to have its origin in this very principle: that nothing shall be done by violence, nothing on individual impulse.”

On the other hand, we have shown in a preceding passagea that just wars which are nevertheless private, do spring from the four causes already mentioned; whence it follows that the Ninth and Twelfth Laws must sometimes become invalid, or rather, dormant. Now, they become dormant in obedience to the principle laid down in the ThirteenthEdition: 1950; Page: [37] Law, that is to say, as a result of necessity based upon the superior laws; and it is understood that this necessity arises when judicial means for the attainment of our rights are defective. For in so far as such a defect exists, to that extent recourse to force—or,Force in other words, private execution in accordance with the natural order—is just.b But as soon as judicial means can be employed, then, as we stated in our discussion of the thirteen laws, all of the said laws must be observed simultaneously. It should be notedNew explanation, moreover, that the defect in judicial recourse is sometimes of brief duration, sometimes of a more or less continuous nature.c

The defect is of brief duration whenever our rights have not yet been violated but the matter does not permit of the delay necessary for judicial procedure.d In the first place, then, as Balduse has said, whatever is expedient for self-defence in such cases, is likewise permissible; for a crisis that threatens our lives permits of no delay. The jurists,f indeed, approve of everything done to ward off danger, or through fear of death, or for the protection of our persons, or in order to repel violence, in so far as it is impossible for us to defend ourselves becomingly or effectively in any other way. This contention is equivalent to that rule of blameless self-defence which is so frequently reiterated.g Similarly, it is permissible Edition: current; Page: [131] for us to defend or recover our own property, even with the assistance of groups of men assembled for that purpose, but only if such action is taken at once. For after an interval during which there has been time to appear before a judge, force should no longer be used. In regard to the collection of debts, it is my belief that no concession has been made other than that relative to the seizure of pledges, or “the laying on of hands” (as the legal phrase goes), in cases where we are in danger of forfeiting our rights because the debtor has fled;a so that, as soon as the matter can be laid before a judge, the latter, rather than the creditor acting for himself, will award the debtor’s possession to the creditor in payment of the debt. Thus we find that among the Athenians, ἀνδρο ληψίας,b that is to say, seizure of human beings as pledges, was permitted to private individuals; but the question of whether the pledges had been rightfully or wrongfully given was a matter for public judgement. A similar concession is made in the case of crimes, when it seems that the transgressor is on the verge of escaping punishment; for by commonly accepted lawc (special laws being at times more indulgent) it is permissible to seize and detain the guilty person, though only on condition that he be handed over at once to a judge, since the laws forbid the maintenance of private prisons.dEdition: 1950; Page: [38]

As regards continuous lack of means for judicial settlement, the authoritiese maintain that there are two ways in which such a defect may occur: it may be either a defect in law or a defect in fact. It is a defect in law when in a given place there is no one possessing jurisdiction, a state Edition: current; Page: [132] of affairs which may exist in desert lands, on islands, on the ocean or in any region where the people have no government. The defect is one of fact whenever the person to whom jurisdiction properly pertains, is disregarded by those subject to him, or when he is not at leisure to conduct a judicial inquiry.a In such cases, as Castrensisb rightly observes, the situation becomes very much what it was before states and courts of justice were established.c But in those days human beings were governed in their mutual relations solely by the six laws which we laid down first of all. Those six precepts were the source of all law, and also of the principle that each individual was the executor of his own right, a principle consonant with the natural order, as we have already remarked, and as is indicated by the conduct of other living creatures.d Accordingly, from this point of view, it will be permissible not only to defend oneself and one’s own possessions, but also to recover such possessions after any interval, howsoever long, and to pay oneself from the property of debtors.Edition: 1950; Page: [39]2

A paradoxical contentionThus I find that there is universal agreement as to the fact that just private wars may arise from three of the four causes enumerated above.3

There remains for consideration the fourth cause, wrongdoing; and, Edition: current; Page: [133] unless I am mistaken, no one will doubt that this cause, too, in so far as it leads only to the exaction of restitution for the injured party, can justly give rise to private wars. For it is no less truly my right to exact whatever amount is involved because of injury inflicted, than it is to seek possession either of my own property or of property due me on some other basis.

It is not so easy to decide the question of whether or not a private individual may under any circumstances seek to impose punishment for a crime. Indeed, since a great many persons maintain that the power to punish has been granted to the state alone (wherefore judgements, too, are [habitually] termed “public”), it might seem that private application of force is ruled out entirely. The best method we can adopt for the discussion of this point will be found, however, in the consideration of what was permissible for individuals prior to the establishment of states.

When the Emperor Theodosius asserts (in the decree quoted in part just above)a that the judicial system was established precisely for the purpose of preventing any individual from indulging in private vengeance, he certainly implies that in his opinion vengeance was permissible for private individuals before the said system was adopted. But a change was introduced in regard to that privilege, owing to the fact that the bounds of moderation were easily overstepped either through love of self or through hatred of another. Nor is there any great difference between this development in the matter of vengeance and the developments relative to defence of property and collection of debts; for, although each individual formerly conducted these latter transactions personally, the establishment of courts of justice was undertaken in order to avert the perils arising from this earlier practice. Lucretiusb expresses the same idea very clearly indeed, in the following lines:

  • Since each man, moved by wrath, was wont to plan
  • Vengeance more harsh than just laws now allow,
  • Men wearied of a life of violence. . . .
Edition: current; Page: [134]

Ciceroa himself, after observing that the law of nature is the principle implanted in us not by opinion but by innate force, places vengeance, which he describes as the opposite of gratitude, among the manifestations of the natural law; and I note that the most eminent theologiansb do not condemn him on this score. Moreover, in order that thereEdition: 1950; Page: [39] may be no doubt as to the exact scope of the concept included under the term “vengeance,” Cicero defines it as “that act by which, defensively or punitively, we repel violence and abuse from ourselves and from those close to us whom we should hold dear,” and also as “that act whereby we inflict punishment for wrongdoing.” Civilis is quoted by Tacitusc as saying: “In accordance with the law of nations, I demand the infliction of punishment.” In Scriptural history,d too, Samson declares that he has incurred no guilt by inflicting injury in his turn upon the Philistines who injured him when they carried off his wife; and afterwards, when he has completed the act of vengeance, he once more excuses that act on the same grounds, asserting that he has done unto them as they themselves first did unto him. To be sure, the fact that Samson was moved by the Spirit of God [to seek an occasion for conflict with the Philistines]4 exonerates him, in that he had no need of public authorization; but in any case, his conduct in defending himself against the nations of the Gentiles was righteous by the law of nations. Accordingly, that precept of law which demands the punishment of evildoers is older than civil society and civil law, since it is derived from the law of nature, or law of nations. This assertion would seem to be supported by the Sacred Scriptures. For I find in them no reference to the existence of any civil state in the period following the Flood, during which the survivors of the human race were included in a single household, yet I do find reference Edition: current; Page: [135] to a law of that period which commands that evil deeds be punished: “Whoso sheddeth man’s blood, by man shall his blood be shed.”a

Perhaps mention should also be made of the fact that this law is subordinate to another, [laid down on the same occasion],5 which delivers the beasts into man’s service. For when the theologiansb inquire into the origin of punishments, they avail themselves of an argument based upon comparison, as follows: all less worthy creatures are destined for the use of the more worthy; thus, despite the fact that the beasts were indeed created by God, it is nevertheless right that man should slay them, either in order to convert them to use as his own property, or in order to destroy them as harmful, both of these purposes being mentioned in the Scriptural passage to which I have referred; similarly, so the theologians contend, men of deplorable wickedness, for the very reason that they are of such a character—stripped, as it were, of all likeness to God or humanity—are thrust down into a lower order and assigned to the service of the virtuous, changing in a sense from persons into things, a process which constitutes the origin of slavery in the natural order, too; and therefore, it is permissible to destroy such men, either in order that they may be prevented from doing harm or in order that they may be useful as examples. Senecac made this very point, when he wrote: “so that they shall serve as a warning to all, and so that the state may at least derive profit from the death of those who were unwilling to be of use when alive.” For we shall presently show that Seneca’s remark concerning the state is applicable to the whole body of mankind. Democritus, too, in his discussion of natural law, draws an example from the beasts to justify the punishment of the guilty. Thus hed says: κατὰ δὲ ζῴων φόνουEdition: 1950; Page: [40] καὶ μὴ φόνου ὥδε ἔχει. τὰ ἀδικἑοντα καὶ θἑλοντα ἀδικει̑ν, ἀθω̑ος ὁ κτείνων. καὶ πρὸς εὐ̑ ἐς οὐ̑ν του̑τo ἔρδειν μα̑λλον ἢ μή. “As to the question of whether or not animals should be slain, the matter stands as Edition: current; Page: [136] follows: whosoever shall slay animals that are doing harm or desiring to do harm, is free from guilt; indeed, it is even more righteous to have committed such an act of slaughter than to have abstained therefrom.” Farther on, the same writera declares: κτείνειν χρὴ τὰ πημαίνοντα παρὰ δίκην πάντα περὶ παντός; “It is proper in every way and for all persons, that those creatures whose harmfulness exceeds the bounds of law, should be slain.” Yet again, he makes the following observation:b ὅκως περὶ κιναδἑων γε καὶ ἑρπετἑων γεγράφαται τω̑ν πολεμίων οὕτω καὶ κατὰ ἀνθρώπων δοκει̑ μοι χρεὼν εἰ̑ναι ποιει̑ν; “Furthermore, it would seem that the very acts which we have mentioned in connexion with foxes and harmful serpents are proper in connexion with human beings, also.” And to this he adds:c κιξάλλην καὶ λῃστὴν πάντα κτείνων τις ἀθω̑ος ἂν εἴη καὶ αὐτοχειρίᾳ, καὶ κελεύων, καὶ ψήφῳ; “That person is innocent who slays a thief and robber in any manner whatsoever, whether by his own hand, by his command, or by his vote of condemnation.” One might suppose that the comments of Democritus were read by Seneca,d who says: “when I give the order for a criminal to be beheaded [. . .], I shall look and feel exactly as I do when killing a snake or any poisonous creature.” In another passage, Senecae observes: “We would not destroy even vipers and water-snakes, or any creature that does harm by biting or stinging, if we were able (as we are in the case of other animals) to tame them, or to arrange that they should not be a source of danger to ourselves or to our fellow men; neither, then, will we inflict harm upon a human being because he has sinned, but rather in order to prevent him from sinning. . . .”

In the light of the foregoing discussion, it is clear that the causes for the infliction of punishment are natural, and derived from that precept which we have called the First Law. Even so, is not the power to punish essentially a power that pertains to the state? Not at all! On the contrary, Edition: current; Page: [137] 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, as we demonstrated in our discussion of the Third Rule.a 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 heldEdition: 1950; Page: [40] 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.

It will be argued, however, that punishments are ordained solely for the good of the state. But this assertion may be repudiated. For the cause of punishments is a natural cause, whereas the state is the result, not of natural disposition, but of an agreement. Human society does indeed have its origin in nature, but civil society as such is derived from deliberate design. Aristotleb himself, the author chiefly relied upon by those who hold the contrary view, writes as follows: ἄνθρωπος γὰρ τῃ̑ φύσει συνδυαστικὸν μα̑λλον ἢ πολιτικόν. καὶ ὅσῳ πρότερον καὶ ἀναγκαιότερον οἰκία πόλεως, καὶ τεκνοποιία κοινότερον ζῴοις; “For man is by nature a conjugal creature to a greater extent than he is a political creature, in that the family is in truth an earlier and more necessary institution than the state, and the procreation of children a more general characteristic of the animal kingdom [than the gregarious instinct].” This conclusion is also borne out by sacred history. For God, who created all things in the image of His own perfection, created not a state but two human beings. Thus human society already existed at that time, but the state did not exist. Accordingly, as the numbers of mankind steadily increased, Edition: current; Page: [138] natural power was vested (so Homera tells us) in the heads of households.

  • θεμιστεύει δὲ ἕκαστος
  • παίδων ἠδ’ ἀλόχων.
  • For wives and children, each man made the laws.

Therefore, it is reasonable to assume that these household heads had external as well as internal jurisdiction for their own protection and that of their families; and Seneca,b referring to this attribute, has called them “domestic magistrates.” Now, whatever there was of law at the world’s beginning, prior to the establishment of states, must necessarily have continued to exist afterwards among those human beings who did not set up courts for themselves, and for whom (in Seneca’sc phrase) “might is the measure of right.” Quintiliand also makes this very point. Similarly, Nicholas of Damascuse informs us that among the Umbrians it was the custom for each individual to avenge himself by his own hand. Moreover, the same custom persists to a certain extent among theEdition: 1950; Page: [41] Sarmatians of the present day. Indeed, we may regard those single combats to which recourse is had even now in many localities, as relics of the said custom and as exceptions (in a manner of speaking) to the Ninth Law. The ancient Romans, too, granted powers of life and death to masters, fathers, husbands, and blood relations.

The power of execution conferred upon private individuals by a special law springs, of course, from a different cause. For the wars that result when arms are taken up in such circumstances, should perhaps be called public rather than private, since the state undertakes those wars, in a sense, and gives the command for them to be waged by the said individuals. Yet it is true that, in the majority of cases, the rational origin of such conflicts is the same as that of private wars. To take one example, Edition: current; Page: [139] certain lawsa grant the power of direct self-defence and vengeance6 to private individuals, precisely on the ground that it is not easy to resist soldiers and collectors of public revenue through the medium of the courts; and these particular precepts accordingly represent what we retain of natural law—the vestiges of that law, so to speak—in regard to punishments.

One point, however, still remains to be clarified. If the state is not involved, what just end can be sought by the private avenger? The answer to this question is readily found in the teachings of Seneca,b the philosopher who maintains that there are two kinds of commonwealth, the world state and the municipal state. In other words, the private avenger has in view the good of the whole human race, just as he has when he slays a serpent; and this goal corresponds exactly to that common good toward which, as we have said, all punishments are directed in nature’s plan. The same point is expounded by Plutarchc in this admirable statement: τῳ̑ δὲ (θεῳ̑) ἕπεται δίκη τω̑ν ἀπολειπομἑνων του̑ θείου νόμου τιμωρός. ᾑ̑ χρώμεθα πάντες ἄνθρωποι φύσει πρὸς πάντας ἀνθρώπους ὥσπερ πολίτας. “Justice walks with God, bringing vengeance upon those who trespass against the divine law; and in the natural order, all of us, as human beings, avail ourselves of that justice, as against all men in their civic character.” The explanation offered by Plutarch does not differ greatly from the contention of the Scholastics,d that we ought to seek vengeance even for our own injuries if they are of such a nature as to redound to the detriment of the Church, that is to say, to the detriment of all good men.

It would seem, indeed, that this care for the common good is in equal degree the proper function of every person, whether the injury in question Edition: current; Page: [140] has been inflicted upon that person himself or upon another, save for one difference, namely, that it may be more hazardous to execute vengeance for one’s own injuries, because the observance of a just moderation and a just purpose is difficult in such a case. For as a generalEdition: 1950; Page: [41] rule that person does not move toward a goal but is driven (to borrow the phrase of Seneca),a who, instead of entrusting his revenge toanother, rages alike in thought and in deed while exacting vengeance personally. It is for this reason that princes—the only persons under the established judicial system who cannot be avenged otherwise than by their personal intervention—are wont to be admonished that they should weigh out vengeance not with a view to inflicting pain but for the purpose of setting an example.b

Natural reason persuades us, however, that the faculty now vested in princes in consequence of the fact that civil power must have lapsed in some other possessor, formerly resided in private individuals. Moreover, whatever existed before the establishment of courts, will also exist when the courts have been set aside under any circumstances whatsoever, whether of place or of time. In my opinion, this very argument has served as the basis for the belief that it is right for private persons to slay a tyrant, or in other words, a destroyer of law and the courts. The opinion of the Stoics may be interpreted thus when they maintain that the wise man is never [merely] a private citizen, an assertion supported by Cicero,c who points to Scipio as an example. Horace,d in the lines, “And not consul of a single year,” &c. (from the Ode to Lollius), has the same principle in mind. Even Plutarch,e despite the fact that he represents a different school of thought, does not disagree on this point. On the contrary, he declares that it is nature herself who designs the statesman (in a permanent sense, moreover) to serve as a magistrate; and he adds that the law always confers princely power upon the person who does what Edition: current; Page: [141] is just and knows what is advantageous, although that person will use the power so conferred only when the perfidy or negligence of the men elected to public office has brought matters to a perilous pass. When Caesara (he who afterwards became Dictator) was still a private citizen, he pursued with a hastily raised fleet the pirates by whom he had been captured on an earlier occasion. Some of their boats he put to flight, some he sank; and when the Proconsul neglected to punish the guilty captives, Caesar himself put out to sea again and crucified the culprits, influenced undoubtedly by the knowledge that the judge to whom he had appealed was not fulfilling the functions of the judicial office, as well as by the consideration that it was apparently possible to take such action guiltlessly upon the seas, where one is governed not by written precepts but by the law of nations.

Reflection along the lines just indicated, gave rise to the view that circumstances could exist (though rarely, perhaps, owing to the weaknesses of human nature) in which it would be possible under the natural law for a private person to inflict punishment upon another person without sinning, and likewise possible for one private individual to serve in a sense as magistrate over another, but always on condition that the former should observe the scrupulousness of a judge even in the actEdition: 1950; Page: [42] of chastisement. I see that Castrensisb lends support to this theory with a wealth of arguments. For the laws, [according to Castrensis,] were devised to promote man’s welfare, not to injure him; and ordinary remedies do not serve in an extraordinary situation, nor is it forbidden that a person in peril shall take heed for himself and for others, just as one might when abandoned by the sailors in a shipwreck or by the physicians in illness. In cases of necessity and for the purpose of preventing the loss of our rights, many things are permitted which otherwise would not be permitted; and when one recourse fails, we turn to another. Such would seem to have been the opinion of the most learned men of all lands: for example, Connan, Vάzquez, and Peter Faber. In the same list, one Edition: current; Page: [142] might include the name of Ayala, who cites Socinus Neposa in this connexion.Edition: 1950; Page: [44]7

Conclusion VII, Article IAccordingly, we conclude that a private war is undertaken justly in so far as judicial recourse is lacking.

Public wars, on the other hand, arise sometimes from a defect of judicial recourse, and sometimes out of a judicial process.b

They originate in a defect of judicial recourse in the same way that private wars spring from that origin. Now, as Ciceroc explains, this [justification for extra-legal warfare] exists whenever he who chooses to wait [for legal authorization] will be obliged to pay an unjust penalty before he can exact a just penalty; and, in a general sense, it exists whenever matters do not admit of delay. Thus it is obvious that a just war can be waged in return, without recourse to judicial procedure,d against an opponent who has begun an unjust war; nor will any declaration of that just war be required, a contention confirmed by the decision of the Roman college of fetials in regard to the Aetolians,e [who had already committed warlike acts against the Roman people]. For—as Aelianf says, citing Plato as his authority—any war undertaken for the necessary repulsion of injury, is proclaimed not by a crier nor by a herald but by the voice of Nature herself. The same view may be adopted with respect to cases in which the sanctity of ambassadors is violated or any other act disruptive to international intercourse is committed. For judicial procedure Edition: current; Page: [143] cannot be expected of those peoples who grant no one safe passage to and from their respective countries.

We must bear in mind, however, a certain point already mentioned, namely the obligation to return to observance of the laws as soon as the peril subsides. For example, if any citizen of a foreign state manages to seize someone’s property, it will be permissible not only to recover that property but also to seize other goods by way of security before a judicial decision is rendered, subject to the condition that the goods are to be returned when the judgement has been executed.a Nevertheless, whenever considerations of time so permit, all persons whatsoever who undertake to wage war, and all those against whom war is waged, ought to submit to a judicial settlement.Edition: 1950; Page: [44]

Thus civil wars are justly undertaken in conformity with the Fifth or Seventh Rule and the Ninth Law; foreign wars, in conformity with the Twelfth Law and the Ninth Rule.b Accordingly, in cases of civil warfare, a magisterial or state pronouncement against one citizen and in favour of another citizen or in defence of the state, is a desideratum, nor is there any further requirement;c whereas, in the case of foreign wars, the situation is different. Cicerod rightly drew this distinction in connexion with his remark that envoys should not be sent to Antony, since the latter ought rather to be compelled to abandon the siege of Mutina, an assertion which Cicero defended on the ground that the quarrel was not with an enemy of the [Roman] state, such as Hannibal, but with a fellow citizen. Senecae subtly indicated the existence of the same distinction, when he spoke of “wars declared upon neighbouring nations, or wars carried on with fellow citizens.” For it is not customary, nor is it necessary, to declare a civil war; and this statement is also applicable to warfare against tyrants, robbers, pirates, and all persons who do not form part of a foreign state. In so far as foreign wars are concerned,f the Edition: current; Page: [144] Twelfth Law and the Ninth Rule above mentioned do provide for that declaration of hostilities which plays such an outstanding part in the law of war, and with respect to which the ancients held varying opinions.

As for our own opinions, this whole problem will be resolved on the basis of the preliminary material which we have already presented.

Quite properly did the soldier Thraso keep matters under his own management, [instead of allowing his companions to employ force,] in the episode described by that ἠθικώτατον [highly moral] author, Terence,a whose work teems, so to speak, with pithy sayings. I refer to Thraso’s admonition:

  • The wise man first tries every verbal8 means,
  • Before he takes up arms. How do you know
  • She will not yield without the use of force?

Euripides,b too, had already written:

  • λόγοισι πείθων, εἰ δὲ μή βίᾳ δορός.
  • I shall achieve my aim through words; or else,
  • Should words fail, force will serve my ends. . . .

Ciceroc expressed the same thought in fuller form when he said: “Since there are two ways of settling a contested question—first, by discussion, and secondly, by violence—[and since the former method is characteristic of human beings, the latter characteristic of brutes,]9 we should resort to violence [only] if we are not permitted to avail ourselves of discussion.” The following statement from the works of Thucydidesdmay also be cited: ἐπὶ τὸν δίκας δίδοντα οὐ νόμιμον ὡς ἐπ’ ἀδικου̑ντα ἰἑναι; “It is not lawful to proceed against him who is prepared to accede Edition: current; Page: [145] to a judicial settlement, as one would proceed against an unjust person.” The words of Theodorica have a similar import: “The time for taking up arms arrives when justice cannot find admittance on the opposing side.” This principle constitutes in part the basis of the above-mentioned doctrine of the Scholastics,b namely, that he who is unwilling to give satisfaction is justly attacked in war. We see that this was the order of events accepted by the Israelites,c who desired that the tribe of Benjamin should inflict punishment upon the men of Gibeah, and declared war upon that tribe only when their request was not granted.10 In like manner, Diodorusd described the war of Minos against the Athenians as “just,” because the request of Minos for justice against the slayers of his son had not been granted.

Certainly resort to arbitration is an honourable procedure, but arbitration is a voluntary, not a necessary measure; for it is common agreement that gives the arbiter his authority, and no one is compelled to entrust his rights to this or that person. We are dealing, however, with necessary measures.New explanation It is clear, then, on the basis of the Ninth Rule, that a twofold obligation must necessarily be met by him who is about to undertake a war.

For, in the first place, an opportunity to apply judicial procedure must be offered to that state which is the defendant, or whose citizen is the defendant, in a given case; and furthermore, if the said state fails to discharge this duty, the state which has itself been injured, or whose citizen has been injured, must pass judgement. Formerly, in the fetial law of the Romans (a people who certainly have never been surpassed in scrupulous Edition: current; Page: [146] attention to that phase of law), this preliminary procedure was called clarigatioClarigatio or Rerum repetitio [a demand for redress and, at the same time, a declaration of war to be waged if redress was not received within thirty-three days], or rerum repetitio [reclamation of goods or rights].a This latter expression (as Serviusb well says) covers every possible case of injury, inasmuch as both res [things, goods] and repetitio [reclamation] are general terms. Now, that which is claimed is threefold: restitution, satisfaction, surrender; and the third item is not of an unmixed character, since it may consist in simple surrender, or it may involve punishment. In other words, these three claims are founded respectively upon the Second Law as opposed to the Fourth, upon the Sixth Law and upon the Fifth. As for cases in which the First Law conflicts with the Third, we have already observed that in such circumstances there is no necessity forEdition: 1950; Page: [45] judicial measures.

The second necessary step is the order for war, or decree condemning the opposing side, issued by the state which has been injured or whose citizen has been injured, or by a magistrate of that state.c From this practice certain formulas arose. The first ran as follows: “I bear witness that the said nation is unjust and does not make just reparation.” Another formula was couched in the following terms:d “‘[What is your opinion11] regarding the things, the suits, the causes, concerning which formal claims have been presented by the pater patratus 12 of the Roman People of the Quirites to the pater patratus of the Nation of the Ancient Edition: current; Page: [147] Latins and to the men of the Ancient Latins, which things the latter nation has not paid, delivered nor acted upon, and which should have been delivered, acted upon and paid?’ ‘I hold that these things should be sought in a blameless and righteous war, and to that course I lend my vote and approval.’” A third formula was worded thus: “Because the tribes of the Ancient Latins have committed acts and offences adverse to the Roman People of the Quirites, and because the Roman People of the Quirites has commanded that war be made on the Ancient Latins and furthermore the Roman Senate of the Quirites has voted, agreed upon, and decreed the waging of war against the Ancient Latins, I, therefore, together with the Roman People, declare and make war upon the Nation of the Ancient Latins.”

To be sure, these two steps (rerum repetitio and the declaration of war) may be taken either separately or as a combined action: separately, if (in the manner above indicated) they are executed singly and with an interval of time between; as a combined action, if the injured state, on the occasion when it offers the other party an opportunity to employ judicial measures, appends a declaration of the judgement to be pronounced by the injured party itself in the event that the other does not judge justly. In the latter case, the formula used runs more or less as follows:a “That they themselves will repel the injury with might and main, unless the said injury is wiped out by its own authors.” Or it may take this form:b “Unless they forestall him by inflicting the death penalty upon the wrongdoers, he will resort to indiscriminate slaughter.” Theseus, too (according to Euripides),c followed just such a procedure when he instructed the herald to transmit these demands to Creon:

  • Θησεύς σ’ ἀπαιτει̑ πρὸς χάριν θάψαι νεκρούς,
  • συγγείτον’ οἰκω̑ν γαι̑αν, ἀξιω̑ν τυχει̑ν,
  • φίλον τε θἑσθαι πάντ’ Ἐρεχθειδω̑ν λεών.
  • κἂν μὲν θἑλωσιν αἰνἑσαι, παλίσσυτος
  • Edition: current; Page: [148]
  • στει̑χ’. ἢν δ’ ἀπιστω̑σ’, οἵδε δεύτεροι λόγοι.
  • κω̑μον δἑχεσθαι τὸν ἐμὸν ἀσπιδηφόρον.
  • Theseus, ruler of a neighbouring land,
  • Asks for the dead that he may bury them.
  • To win Athenian friendship, grant this plea.
  • If it be granted, herald, turn thou back;
  • If disobeyed, speak then these other words:
  • “Look soon to see my men arrayed in arms.”Edition: 1950; Page: [45]

Moreover, similar messages were brought to Theseus from Creon, so that we find the Greek custom clearly portrayed in tragedy. An analogous custom is depicted in many passages of Roman history.

Now, when the two steps in question are combined in this manner, the procedure involved is properly called denuntiatioDenuntiatio or Indictio [notification by way of warning], or indictio [declaration]; and he who has already employed the device of rerum repetitio is under no obligation [from the standpoint of the law of nations] to issue a second notification. On the contrary, just as those edicts which appear after sentence has been pronounced are derived not from the law of nations but from the established practices of individual states, so the customary formalities attendant upon the undertaking of wars, whenever they constitute an addition to those above mentioneda (as they do, for example, when the warning notification is reiterated), originate in no other source than the customs of individual nations. Maecenas, so Dio tells us, apparently supports this view. The Romans adopted many such customs, borrowed from the Aequi: among others, the symbolic use of the bloody spear, and similar practices. Again, just as an interval of exactly thirty days after the pronouncement of a sentence was conceded to the party condemned in a legal trial, so, for a like reason, the same interval was granted to the party against whom war had been decreed. This practice need not be regarded as particularly strange, since other nations have frequently gone so far as to announce in advance the locality and time when a battle would take place, a procedure which is sometimes nobly magnanimous but by the Edition: current; Page: [149] same token always unnecessary. Thus we find that even the Romans, during the most scrupulous period of their history, never presented the demands classified under the head of rerum repetitio to any persons other than the actual perpetrators of an injury or the magistrates of the latter. To be sure, after war was decreed, the Romans were wont to issue a declaration of that fact not only to the parties just mentioned, but also—for form’s sake, as it were—to neighbouring regions; yet they omitted even this step in certain cases, when the reclamation had been lawfully presented and the law had not been obeyed [by the defendant]. Furthermore, Varroa and Arnobiusb testify that the custom of formally announcing entry into war was eventually abolished among the Romans, as were other practices pertaining to civil law.

The foregoing observations indicate to us the proper construction to be put upon the assertion made by learned authorities,c that no war is just unless it has been legally declared, an opinion which cannot be better interpreted than it is in the words of Cicero:d “No war is just unless it is waged either after the procedure of rerum repetitio has been followed, or after notification and warning thereof have been given and a formal declaration made.” Cicero requires that one of these conditions, not both, shall be fulfilled.

Even this statement of the case must be taken in a limited sense, with the understanding that there is no need of a warning announcement (as we have already pointed out) when the person against whom action is to be taken has previously begun the war. A certain well-knownEdition: 1950; Page: [46] fragment from the works of Isidoree is pertinent in this connexion: “That war is just which is waged by command on matters already brought to attention through the process of rerum repetitio, or which is Edition: current; Page: [150] waged in order to repel public enemies.”13 For the term hostes [public enemies], in its legal connotation,a comprises not only those persons against whom we publicly decree war, but also those who publicly decree war against us. Therefore, no warning notification is necessary for war against persons who are already conducting themselves as enemies of our state. This principle is commonly accepted by the doctors of law,b who maintain that those persons who are openly harmful and troublesome to us are ipso iure proclaimed liable to confiscation of goods on the ground of bad faith;14 for, according to the said doctors, such a proclamation is equivalent to a formal declaration of war. A notable example is found in the history of the Israelites,c who had been commanded by God to refrain from making an armed attack against any people without first inviting that people, by formal notification, to establish peaceful Edition: current; Page: [151] relations; for the Israelites thought that this prohibition was inapplicable to many of the Canaanite tribes, inasmuch as they themselves had previously been attacked in war by the Canaanites. Hence we arrive at the following deduction: once the formality of rerum repetitio has been observed and a decree on the case in question has been issued, no further proclamation or sentence is required for the establishment of that right which arises in the actual process of execution. For, in such circumstances, one is not undertaking a new war but merely carrying forward a war already undertaken. Thus the fact that justice has once been demanded and not obtained, suffices to justify a return to natural law, that is to say, a return to the precept which permits us to obtain by force that which is properly ours. Nevertheless, even when formal notification is unnecessary, it is not inappropriate to issue a general statement, for example, a statement relative to the collection of debts, and particularly punitive debts, so that enemy property may be seized as if by judicial authorization.

For the rest, when formal notification has been given by the principal author of a war, there is no need for such notification on the part of his ally, who is merely assisting in the attainment of another’s right without presenting any separate demand for himself. Similarly, when a war has been begun with the proper formalities against a given state or magistrate, no formal declaration of that war need be issued to the allies and subjects of the said state or magistrate. Our commentatorsa word this conclusion in their own fashion, as follows: When a prince has been challenged to combat,15 all of his subjects, confederates and assistants have been challenged.15 Moreover, this very conclusion formed one of the basic points for Gnaeus Manlius’ defence of his own conduct, when he was reproached by his legates because of the Galatian war.

But, to return to the statement quoted above from Isidore, we find that its meaning is clearly the same as if one should say:Conclusion VII, Article II A public war is undertaken justly in so far as judicial recourse is lacking, or if the formality Edition: current; Page: [152] of rerum repetitio has been observed, and a decree has been passed by the state undertaking the war.Edition: 1950; Page: [46]

We come now to another question, namely: What qualifications should be sought in voluntary agents who are participating in a war, and what is permissible for them? This question is of course extremely broad, but we shall discuss it summarily under several main heads.

Just form, as we have already observed,a consists in conformity with the laws. Now, even as the laws relative to judicial procedure appeared to be incompatible with the act of undertaking a war (though we have demonstrated that these laws are partially invalidated by others of a superior order, while we have been able in part to reconcile the seemingly incompatible factors), just so the Third and Fourth Laws apparently conflict with the act of carrying on a war. For if the words of Virgilb are not deceptive,—

  • When that time comes, [the lawful time for strife,]
  • It shall be licit to contend in hate,
  • And play the plunderer’s part. . . .

—if, I say, slaughter and plunder are the concomitants of war, how shall we deal with those laws which forbid us to injure another, or to lay hands upon another’s property? In many cases, too, the Third Rule would seem to constitute an obstacle, since any interchange based on human law is apparently swept away, so to speak, once a war has begun.

  • Who, of a foe, would ask: “Is this deceit
  • Or valor?” . . .c

For we seek to do harm to our foes,

  • ἢ δόλῳ ἠὲ βίῃ, ἢ ἀμφαδὸν ἠὲ κρυφηδόν;d
  • Whether by fraud or unmasked violence,
  • By stealth or openly. . . .
Edition: current; Page: [153]

First, however, let us consider the problem presented by the laws of the second order, that is to say, the Third and Fourth Laws. These are invalidated (as we have pointed out elsewhere) by the force of the Thirteenth Law, not only when they come into conflict with the First or Second Law, but even when there is occasion to apply the Fifth or Sixth, inasmuch as the Fifth and Sixth inherently embrace the First and Second, as well as the Third and Fourth Laws themselves. But, by the same token, if any act is committed in excess of what is commanded by the laws of the first and third orders [Laws I, II, V, and VI], or against any person at whom the said laws are not aimed, that act will exceed the limits defining a just mode of warfare.

Enemies attack us, and are attacked in turn, in a twofold manner: corporeally, and by attack upon property. Consequently, fourEdition: 1950; Page: [47] συζυγίαι, or “reciprocal combinations,” are to be considered.a That is to say, either we attack in our turn the body of him who has attacked our bodies; or we despoil the despoiler; or we inflict damage upon the property of the person who imperils our lives, or we unsheathe our swords in defence of our own property. It has been shown above that none of these procedures is essentially unjust. Now let us see to what extent they are permissible.

Granting, then, that we are permitted to wound or even to despoil another in defence of our lives or property (I put the assumption in these terms so that it may refer to the First and Second Laws, and not to the commission of a crime), nevertheless, we ought to desist from violent action against him as soon as the danger is past: for example, when victory has been achieved. If we are laying claim to property of our own or to something which is owed us, it will not be permissible, after we obtain the thing thus claimed, to arrogate to ourselves any additional object. If we seek vengeance for a wrong inflicted, that vengeance, too, should be tempered to accord with the measure of the wrong, in observance of

Edition: current; Page: [154]
  • The rule whereby the punishment befits
  • The crime. . . .a

The question at present under discussion differs, of course, from that treated in the preceding chapter; for we were concerned there with the necessity for an underlying cause, whereas in the present chapter we are adding to the causal considerations the requisite of moderation. Senecab holds that those persons are properly called cruel, who have cause to inflict punishment but observe no moderation in so doing.

New explanationIn this connexion it must be noted, moreover, lest one person should suffer in another’s stead from the ills of war, that an obligation is sometimes incurred in consequence of one’s own act or an act committed in common with others, whereas sometimes it is incurred in consequence of another’s conduct but through one’s own previous or subsequent act. In regard to the laws of the first order, this distinction has no force; for those laws are concerned only with the act itself and take no account of intent. It frequently happens, however, that the distinction does have a bearing upon cases involving contract, as may also occur in the case of a delict, in so far as the punishment for the delict is pecuniary or pertains to property.c The institution of bail rests upon this principle. But the laws refuse to recognize the vicarious acceptance of corporal punishment,d for the reason that no one can place under liability that which he does not own.e God has given us ownership over things; ownership over ourselves, He has retained for Himself. Therefore, we may transfer our goods when it pleases us to do so, but we may not lay down our lives;f just as private property, but not power over himself, is given to a slave.Edition: 1950; Page: [47a]

Accordingly, in the first place, the obligation incurred by one ally in Edition: current; Page: [155] consequence of an act committed by another ally, arises from an act of the former, that is to say, from an actual deed and not merely as a result of the contract of alliance. For, with respect to the debt incurred, the theologiansa have declared, most admirably and on the basis of natural equity, that all persons who have in any way contributed to the causes of inequality, are under an obligation to contribute to the causes of equality; moreover, it is maintained that a contribution to inequality has been made, not only by the individuals who personally perform the act of violent seizure or detention, but also by those other individuals who furnish the command, advice, consent, or labour for the act of deprivation, or who subsequently obstruct the making of restitution. But all allies do one or the other of these two things; and therefore, it is necessary to regard the joint obligation thus created,b as binding upon every person by whose aid the unjust party is rendered bolder or the opposing party, more fearful. This is an unchanging principle applicable to all warfare. With respect to punishments,c on the other hand, it is likewise unquestionably true that those individuals who fail to give material aid but who nevertheless lend encouragement by their advice, are liable to punishment, also, and even to the very same punishment as that incurred by the principal actors in the case; for such individuals are themselves offenders.Edition: 1950; Page: [47]

As for the state, it is bound by the act of its magistrated as if by the force of a contract, just as he who has set up a director or agent inEdition: 1950; Page: [47] some matter is bound;e and at times this binding obligation embraces Edition: current; Page: [156] even liability to punishment. For those persons are liable, who have transferred authority over themselves to such representatives as might prove to be the source of injury to others, since he who has put his trust in an unworthy individual would seem to be involved,a so to speak, in the fraudulence [of the latter]. Thus it is by no means undeservedly that,

  • For every folly of their kings, the Greeks
  • Pay penalties. . . .b

Nor was that situation unreasonable which caused Hesiodc to lament as follows:

  • ὄφῤ ἀποτίσῃ
  • δη̑μος ἀτασθαλίας βασιλἑων,
  • So that the impious sins which stem from kings,
  • The people expiate. . . .

This same principle is put into practice by God Himself, who not infrequently has punished the people for the sins of princes, a point that could be illustrated with many notable examples.d In the words of the blessed Justin:e πικροτάτη τιμωρία τω̑ν ἔμαρτηκότων βασιλἑων τιμωρία του̑ λαου̑; “The most bitter punishment imposed on erring princes, is the punishment exacted of the people.” Ambrose,f too, has said: “The delinquency of kings results in the punishment of peoples; for, just as we are protected by the virtue of kings, so also are we endangered by their transgressions.”

Furthermore, a state is bound by the act of its citizen:g not in an absolute sense, of course, but in cases where the state itself fails to render justice, thereby making the cause of the offender its own. For liability Edition: current; Page: [157] is incurred by the act of approval no less than by the act of command.a It was on this very ground (so we read) that the Amphictyons in ancient times condemned the Scyrians,b some of whom had practised piracy with impunity. In this sense, the state is not bound entirely by another’s act; for its own action is also involved, not only because the state [by failing to render justice] impedes another in the attainment of his right, but also because it sins in contravention of its duty under the Ninth Rule, which indicates that just judicial recourse should be provided for foreigners as well as for citizens. Moreover, it cannot be doubted that he who fails to prohibit that which he can and should prohibit, is liable for the consequences of the act in question, a principle applicable to debts involving punishment as well as to other debts. Hesiodc has this fact in mind when he says:Edition: 1950; Page: [48]

  • πολλάκι καὶ ξύμπασα πόλις κακου̑ ἀνδρὸς ἐπαυρει̑.
  • Often a nation pays the penalty
  • For one man’s wickedness. . . .

To Hesiod’s observation, Proclusd appends the following admirable explanatory comment: ὡς ἐξὸν κωλύειν μὴ κωλύουσα τὴν του̑ ἑνὸς πονηρίαν; “because the state does not prohibit that wickedness, although it is able to do so.” Proclus also adds two examples: one (which Horace likewise notes) is taken from the opening passage of the Iliad and concerns Agamemnon; the other has to do with the Greek fleet that was burned,

  • Solely because of one man’s frenzied guilt,
  • The guilt of Ajax, son of Oileus,e
Edition: current; Page: [158]

that is to say, because the Greek nation had not shown indignation at the shameful deeds of Ajax. Herein the institution of expiations has its source. For that matter, we find in Holy Writa outstanding proofs of the fact that expiation by whole nations for unpunished sins committed by individuals is a practice pleasing to God. Agapetus,b in his Paraeneticus addressed to Justinian, explains this point as follows: ἴσον τῳ̑ πλημμελει̑ν τὸ μὴ κωλύειν τοὺς πλημμελου̑ντας λογίζου. κἂν γὰρ τις πολιτεύηται μἑν ἐνθἑσμως, ἀνἑχεται δὲ βιούντων ἀθἑσμως, σύνεργος τω̑ν κακω̑ν παρὰ θεῳ̑ κρίνεται. “Consider the failure to restrain transgressors as equivalent to the transgression. For a person who administers the state justly in other respects but shows tolerance toward those whose lives are unjust, is in God’s judgement an abettor of the wicked.”

On the other hand, individual citizens are also bound by the act of the state. Indeed, it is in keeping with natural equity, since we derive advantages from civil society, that we should likewise suffer its disadvantages.c The interpreters of the civil lawd have expressed varying opinions in regard to this point, but always on the basis of that law; for even though people grouped as a whole and people as private individuals do not differ in the natural order, a distinction has arisen from a man-made fiction and from the consent of citizens.e The law of nations, however, does not recognize such distinctions; it places public bodies and private companies in the same category. Now, it is generally agreed that private societies are subject to the rule that whatever is owed by the companies themselves may be exacted from their individual partners. Furthermore, it is obvious that the state is constituted by individualsf just as truly as the magistrate is constituted by the state,g and that therefore the said Edition: current; Page: [159] individuals are liable in the same fashion as the state in so far as concerns reparation for losses, even when the claim in question is founded on wrongdoing. Far be it from us to say, however, that the lives of innocent citizens are ἀντίψυχα, forfeited, or liable to punishment,a for offences committed by the state; especially since the state itself can be punished as such. For the life of a state can be weakened (as in cases where the state becomes a tributary, a practice sanctioned by divine law)b and, in a sense, annihilated. πόλεως γὰρ ἐστι θάνατος ἀνάστατον γενἑσθαι;c “A city dies when it is completely laid waste.” Such was the fate of Carthage and of other cities which were razed by the enemy’s ploughd and which suffered dissolution of the body politic. But it is evident that pecuniary penalties owed by the state may be exacted from theEdition: 1950; Page: [48] subject, since there would be no state if there were no subjects. St. Thomase 16 declares that those persons who are essentially possessions and parts, so to speak, of another entity—a description which ought to cover subjects no less than children and slaves—may be penalized in the place of that other entity for losses suffered. Yet subjects are frequently free from guilt, as we have already observed. This is indeed true; but the very Scholasticsf above cited [St. Thomas and Sylvester] teach us that punishment, while it is never imposed unless guilt exists, often is imposed where there is no guilt on the part of the person punished, though never without cause. In the case under discussion the cause is obvious. Here we have the sole argument supporting that custom of reprisals, practised not only in the modern world but also by nations of ancient times, known as pigneratio [seizure of pledges], or as ἀνδροληψιω̑ν [seizure of hostages for vicarious punishment]. For what is owed to me by Edition: current; Page: [160] the citizen of a state is owed by the state, too, when the latter does not enforce the claims of justice; and what is owed by a state, is owed by its individual citizens. This is a point which has not escaped the observation of Bartolus.a An additional consideration is that of convenience, since it is not easy for creditors to obtain their rights in any other manner, whereas it is less difficult for citizens themselves to resort to suits at law against one another, exacting reparation for their respective losses from the individual at fault.b

Conclusion VII, Article III, Part IIn short, we may summarize the restrictions of form in this matter by saying that, A war is justly waged by voluntary agents in so far as it remains within the sphere of the right contested and is waged among the persons obligated with respect to that right.

New explanationThe discussion of certain special cases will enable us to clarify this conclusion, particularly in regard to the subjects of public enemies, who constitute, as a rule, the chief cause for dispute among writersc on the law of war. Accordingly, we should ascertain the extent to which this famous passage from Euripidesd is true:

  • καθαρὸς ἅπας τοι πολεμίους ὃς ἂν κτάνῃ.
  • That man is undefiled and dutiful
  • Who slays a public enemy. . . .

We must decide, too, whether or not Tacituse was right when he wrote: “In time of peace, causes and merits are taken into consideration; when war breaks out, the innocent and the guilty fall side by side.” For if we apply this generalization specifically to the subject of the laws of prize and booty, the said laws will become more readily understandable.

In so far as bodily attack is concerned, it is permissible—in accordance Edition: current; Page: [161] with the laws of the first order [Laws I and II], which do not take into account the intent of one’s adversary—to make an attack upon all enemy subjects who resist, whether knowingly or in ignorance, the execution of our rights.a For such subjects, without exception, are “bringing about” an injury, even though that injury may not be “voluntary.”17 This assertion is expressly confirmed by divine law,b which decrees the slaughter of the whole adult population of certain cities taken by storm, although many of the adults in question must be innocent. Conversely, the same rule will be applicable in justifying the defence of a city. Thus Augustinec has said: “Nor does that man incur guilt for another’s death, who has surrounded his property with walls which have been utilized in causing someone to be wounded and to perish.”

Nevertheless, if there are some individuals who can be separated from the whole body of the enemy and who do not impede the execution of our rights,d such individuals should of course be spared altogether from attack upon their persons. Ciceroe offers the following admonition: “Furthermore, we ought to accord a favourable reception to those who, having laid down their arms, take refuge in the good faith of our generals, even though the battering-ram has struck through their walls.” Moreover, scholarly authorities have expressed the opinion that this is precisely the interpretation which must be given to the pronouncement of Celsus,f namely, that by the law of war we “receive”18 deserters, that is to Edition: current; Page: [162] say, those persons who have abandoned the enemy ranks. Yet again,Edition: 1950; Page: [49] just as the precepts of equity and those of divine law,a that infallible guide of equity, direct us to spare all persons in a surrendered city, so also they direct that in the case of a city taken by assault, all those whose lives do not impede the execution of our rights shall be spared in so far as is possible. Thus Seneca, in his tragedy Octavia,b suggests that the title “foe” cannot be applied to a woman. Similarly, Camillusc asserts that he bears no weapons against persons of that tender age which is spared even when cities are captured. Alexander,d too, declares: “I am not wont to wage war against captives and women; he whom I hate must bear arms.” The inclusion of a reference to “captives” is commendable; for that other [war-like ruler, Pyrrhus,] speaks falsely and in the excessively ferocious fashion characteristic of Aeacus’ descendants, when he says:e

  • There is no law to spare the captive foe,
  • Or bar his punishment. . . .

Nor is the answer given him,

  • That act which law forbids not, shame forbids,

sufficiently forceful. For such conduct as that of Pyrrhus is forbidden by law, too—in fact, by that most sacred of natural precepts which declares that man must not be prodigally misused by his fellow man. Senecaf maintains that “the essential principles of equity and virtue demand that mercy be shown even to captives.” The theologian Augustineg admonishes us as follows: “Let it be by necessity, not by choice, that we lay low the enemy who battles against us. Just as he who offers warlike resistance is repaid with violence, so mercy is owed to him who has been Edition: current; Page: [163] captured through our victory, and especially to him from whom no disturbance of the peace is feared.” Wherefore Eurystheus also, according to Euripides,a declared that those hands would never be washed clean, which should fail to spare him whom the fortunes of war had spared. Farmers—that is to say, unarmed men who dwell amid the open fields and who readily yield to armed force—are properly included in more or less the same category. For what purpose is served by raging against these men, since they are not an obstacle to the conduct of the war, but rather, as Pollio was wont to say, a prize for the victor? In accordance with this very argument, however, a different criterion will prevail if the enemy is rendered stronger by the fact that agricultural activities have not been hampered.b

These same observations may be applied, moreover, to those subjects who act in good faith, or in other words, to those who have incurred no guilt. As Senecac says, the wise man “will let his enemies go unharmed, sometimes even with praise, if they have girded themselves for war with honourable motives, [for example,] in order to keep faith, in observance of a treaty, or in defence of freedom.”

But the guilty must by all means be punished,d in conformity with the Fifth Law. The right underlying this law does not cease to exist once victory has been attained, as does that other right [for which the war is prosecuted], a distinction which will be obvious to anyone who considers the matter at all carefully. Therefore, culpable persons ought to be subjected even to corporal punishment, provided only that the offence involved calls for such a penalty. When this is the case, the same judgement should be rendered in warfare as in legal trials.e Platof expresses admirably his approval of the discord attendant upon war, μἑχρις οὑ̑ ἂν οἱ αἴτιοι ἀναγκασθω̑σιν ὑπὸ τω̑ν ἀναιτίων ἀλγούντων δου̑ναι δίκην, “up to the point where those who have incurred guilt, are forced by the innocent Edition: current; Page: [164] victims of the original injury, to pay the penalty.” According to Diodorus Siculus,a Gylippus, in his oration against the Athenian captives, maintains that the said captives, overtaken by disaster because of their own wickedness and cupidity, are striving in vain to lay theEdition: 1950; Page: [49] blame on their ill fortune and to acquire the status of suppliants, since this defence is reserved for men of pure hearts which have been led astray solely by circumstances. For it was the intention of the authors of the law regarding suppliants, that mercy should be granted to the unfortunate, but that punishment should be inflicted on those who had transgressed with unjust intent. Gylippus then comes to the following conclusion: διόπερ ἑκουσίως ἑλόμενοι πόλεμον ἄδικον εὐψύχως ὑπομενόντων τὰ τούτου δεινά; “Wherefore, since they have begun an unjust war of their own free will, let them bear with fortitude the misfortunes attending that war.” Themistiusb follows a like trend of thought when he says that pardon should be extended to misfortune, correction to error, and punishment to iniquity. Under the third head he places those individuals who have been the instigators of rebellion; under the second, those who have been carried away, so to speak, by the impetus of war; and under the first, those who have succumbed to the party which at the time happened to be the stronger. Similarly, Velleiusc observes that the Athenians in the time of Mithridates were overwhelmed by their enemies and besieged by their friends, so that their hearts were outside the city walls while, in obedience to necessity, their bodies remained within the walls. This example may be used to confirm the distinction implicit in the saying that, “Some men are of the enemy, while others are with the enemy.” Accordingly, the victor, having attained judicial authority, will temper in the manner above indicated the punishments to be decreed.

So much, then, for the question of bodily attack.

Turning now to the matter of attack upon property, we shall have no difficulty in reaching the conclusion to be drawn in this connexion with Edition: current; Page: [165] respect to subjects. For we have explained elsewherea that property may be seized in order to ward off peril that menaces one’s own life or possessions, and that it may also be acquired on the ground of debt, the former right being derived from the laws of the first order [Laws I and II], and the latter from the laws of the third order [Laws V and VI]; but we have also statedb that subjects, even when innocent, are liable to attack in war in so far as they impede the attainment of our rights; now, all subjects, even those who do not themselves serve as soldiers,c impede our efforts by means of their resources, when they supply the revenue used in the procurement of those things which imperil our lives and which do not only hinder the recovery of our possessions but also compel us to submit to fresh losses;d and therefore, subjects must be deprived of such resources, unless it be considered just that we ourselves should pay the penalties attendant upon the pursuit of our rights. Nor is any distinction to be made here on the basis of varying circumstances among the different subjects, since the laws in question, as we have repeatedly pointed out, have regard not to the intent of one’s adversary but to his deed.Edition: 1950; Page: [50]

Hence it is permissible to infer, not only that possessions maybe forcibly taken from the said subjects, but also that these possessions may be added to our own. For if, on the one hand, they were snatched away from us by these very subjects, whom we regard as personally under obligation to us because of their injurious conduct or for whatsoever reason, nothing could be more just than that we should take back by armed force that which could not be reclaimed in any different way; or if, on the other hand, it is a state that has wronged use or otherwise incurred a debt to us, there is even then nothing to prevent the seizure of the subjects’ goods in payment, since it has been demonstratedf above that such goods are liable to seizure for the debt of the state. This one restriction Edition: current; Page: [166] is imposed, however: that nothing shall be taken in excess of the debt due us, which is reckoned in such a way as to include reparation for both losses and costs. Moreover, the claim to reparations continues to operate as a cause even after victory has been achieveda and after the first-named cause, the need to ward off danger, has been dispelled. For our object in waging wars is nothing more nor less than attainment of our rights through victory. In the words of Livy,b “When all things have been surrendered to him who is the mightier in arms, it is the latter’s right and privilege to decide which of those things he shall choose to retain as victor,19 and exact from the conquered20 as a penalty.”

Therefore, we conclude that all subjects, at all times, are liable to despoliation, but not necessarily to forfeiture of their lives. For, as far as the question of our own peril is concerned, there are many persons who oppose us not at all by bodily violence, so that nothing is to be gained by inflicting violence of any kind upon their bodies; but there is no individual among the enemy who does not harm us with his possessions, even though he may be most unwilling to do so. Or, if we choose to view the question from the standpoint of the rights of creditors, we shall find that the goods of subjects, but not their persons, are liable to seizure for the debt of the state;c and consequently, in the case of reprisals, too, seizure of property is permitted but corporeal attack is prohibited.d Edition: current; Page: [167] Therefore, the argument relative to things is not valid when applied to persons. For he to whom something of lesser importance is permitted does not forthwith receive permission also for that which is of greater importance.

Moreover, although other writers have gone less thoroughly into the reasons underlying this opinion, it is supported by all of the theologians and experts in law.a For they maintain that what is known as “prize,” or “booty,” becomes the property of him who seizes it in a just war, and that it should be understood that such prize or booty is taken not only from the goods of him who fights unjustly, but also from those of all his subjects (women and children not excepted) until complete satisfaction has been given to the just belligerent for that which is due him, whether because of an injury or offence inflicted, or because of aEdition: 1950; Page: [50] loss occasioned to him or his and the factors attendant upon that loss; or else until the enemy shall be prepared to give satisfaction, or shall make known his readiness to comply with the law. For the rest, Cajetanb and (among the Spaniards) Covarruviasc declare that the question of whether or not a given individual is innocent, is not taken into account in this connexion. Yet another Spaniard, Victoria,d holds that if the enemy refuses to make restitution of the goods wrongfully taken away, and if the injured party cannot very well secure reparation from some other source, he may obtain satisfaction from any source whatsoever, whether from the guilty or from the innocent, so that neither merchants nor farmers are excepted. That is the view adopted by Victoria. As for the opinion of other authoritiese who hold that even in this matter forbearance should be shown to sailors and merchants, these very authorities explain that they are referring to sailors cast upon a foreign shore by the force Edition: current; Page: [168] of a tempest, and to foreign merchants only or those who are on their way to public fairs. Merchants who are subjects, however, are not spared even in the case of reprisals.

Now, the views above set forth are valid, save in cases where security has been promised to certain individualsa or classes of persons or localities, either through pacts or through a tacit usage prevailing on both sides: that is to say, on a basis of good faith, a matter with which we shall deal presently. Thus we read that the Indians spared the farming class. Again, the Lateran Councilb decreed that a suitable security should be enjoyed by priests, monks, converts, pilgrims, merchants, and rustics who were journeying to or fro or else engaged in agricultural labours, and that the same security should be extended to the animals used by rustics in ploughing or in transporting seed to the fields. With respect to this order, too, the proper interpretation of the term “merchants” includes foreigners only. Cajetanc says: “I interpret the word ‘merchants’ as referring, not to traders who reside within the place in question, but to those who are guests or transients there. For it does not seem to me that resident merchants are in any better position than artisans.” As a matter of fact, the canonistsd deny the acceptance in present-day practice of the entire edict of pontifical law (known to them as the “Canonical Truce”) which we have just cited; and certainly that edict is not based upon a permanent cause. Nevertheless, it is obviously true that the property of others, when it does not belong to the foe (that is to say, property belonging neither to allies nor to subjects of the foe), even if it be located in enemy territory, may no more be acquired by those who seize it, than loaned or stolen property found among the goods of a debtor may be acquired by the creditor.Edition: 1950; Page: [50a]

At this point,New explanation we may consider in passing a question frequently raised and extensively discussed by other writers,e namely: What conduct is Edition: current; Page: [169] permissible for an enemy in regard to foreigners found among that enemy’s adversaries, and in regard to those [foreigners] who are lending aid to the said adversaries in the form of commodities? In the first place, it is quite evident that the locality where a person happens to be found is a consideration of no weight in this connexion; for the factor of locality does not in itself constitute a source of liability, whereas those individuals whom it is permissible to despoil, must indeed be persons who are liable [to local obligations].a Therefore, sojourners are proper objects of warfare only if they form a part of the opposing state in the same sense as other subjects. The term “part” should be interpreted, moreover, as referring (in so far as the present question is concerned) to individuals whose legal status is such that they can be compelled to defend the said state and to pay tribute to it. For, as Agathiasb rightly explains, a given person is to be regarded as an enemy, not because of fortuitous circumstances pertaining to his origin, but on the basis of his zeal and with reference to whether or not he does those things which are pleasing or helpful to the foe. As for the conveyors of commodities, it has been established by the theologians and jurists that no individual is responsible for damage following upon his acts, unless that individual is the one who caused the damage; and also that no one is responsible for damage preceding his acts, unless he himself served to impede restitution. Nor does it necessarily suffice that such a person shall have furnished cause in any way whatsoever; on the contrary, either evil intent or, at least, guilt must be involved. Thus he who has conveyed arms to the enemy, or any other article at all that is appropriate for use in warfare, is responsible to the party waging a just war,c in so far as it is evident that the said conveyor furnished cause for the damage following his act, or that he hindered the process of reparation for damage previously done. For, inasmuch as his act is adapted to the purposes of war, he is not guiltless after aiding the unjust belligerent, however thoughtlessly he may have done so. In other words, his conduct is similar to that of a Edition: current; Page: [170] man who, moved by pity,a has delivered a debtor from prison, or pointed out means of flight to a criminal, [or caused unjust losses to the side he opposes when acting as]21 advocate in a lawsuit;b for, accordingEdition: 1950; Page: [50a] to the opinion invariably expressed by learned authorities, the perpetrator of any of these acts is in every case bound by an obligation to make reparation. This is the purport of the reply given by Amalasuntha to Justinian, to the effect that they who aid the enemy by supplying him with the necessities of war, are to be regarded as enemies.c 22 Again, if the commodities supplied should be of a nature not essentially directed to the purposes of war, but nevertheless such as to furnish the unjust party with a means of prolonging the conflict, then the same conclusion will hold true, always provided that the conveyor was in a position where he ought to have been aware of that fact. If he was not in such a position, he should not be held culpable unless the state waging a just war has formally notified him of this very circumstance, appending proof of the justice [of its cause].d An outstanding argument in support of this distinction can be drawn from the words of Seneca,e who holds that in the repayment of benefits received from a tyrant moderation should be observed, in accordance with the following rule: “If the benefit bestowed upon the tyrant by me [in return for benefits received], is likely neither Edition: current; Page: [171] to increase his power to do general harm, nor to strengthen the power already possessed by him; and if the benefit in question be one that enables me to repay him without causing public disaster, I shall render that payment.” A little further on, Seneca adds: “I shall not provide money which will serve him as wages to maintain a bodyguard.” And again: “I shall not furnish him with soldiers and arms.” The same author declares that he would send the tyrant pleasure-boats, but would refuse to send him triremes [i.e. warships]. In short, the greater the estimate of the loss, or of the impediment to the process of compelling the enemy to obey the law, that has resulted from such services, the further one may proceed in seizing spoils by way of reparation without resorting to additional judicial measures; for that very attempt to obtain reparations is in a sense one of the consequences of the war.

Returning from this digression to our discussion of just forms of warfare against subjects, we find that the observations already assembled on this point, constitute in their entirety an opinion which may beEdition: 1950; Page: [50] impressed upon our memory in the following terms:Corollary I Bodily hurt is justly inflicted upon subjects in so far as they either deserve it because of wrongdoing, a or impede (albeit in ignorance) the execution [of justice]; but prize or booty is justly taken from all subjects, at any time, up to the full amount of the debt owed.Edition: 1950; Page: [51]

Now that we have seen how the laws of the second order [Laws III and IV] may be reconciled with the waging of wars, let us turn our attention to the Third Rule.

In accordance with this rule, it is our duty to fulfil, regardless of possible harmful consequences to ourselves, whatever promises we have made, in relation of course to matters under our control. This admonition is not incompatible with the Second Law;b for our own possessions are subject to our own will, and they are dispensed in conformity with that precept which I have called the Third Rule, an assertion that Edition: current; Page: [172] will be more readily intelligible if viewed in the light of the observations made by us at the outset.

Accordingly, if the law of nations is taken as a criterion rather than some civil precept, faith must be kept with the enemy in every way (as Ciceroa maintains), and even (so Ambroseb specifies) when one is dealing with a treacherous enemy. It should be understood, however, that the foregoing doctrine is dependent upon the supposition that the enemy has not previously departed from the particular contractc that is the basis of the required good faith;d for in such cases it will be evident, inasmuch as the obligation is mutual, that the terms of the promise have lapsed, so to speak. Apart from this one exception, it may be said that,

  • He is the best of soldiers who aims first
  • And last, ’mid wars, to keep good faith intact.e

Neither, then, can fear be accepted as an excuse, since even he who has made a promise in order to escape misfortune cannot deny that he himself chose this course of action in preference to the alternative course. In short, will that is thus coerced nevertheless retains its voluntary character and, once it has been expressed (albeit to an adversary), has binding force. With respect to this point, we should abide by the opinion of the theologiansf rather than by that of the jurists. For the former follow the guidance of natural reason, whereas the latter are guided by civil precepts, which frequently, for the sake of some advantage, permit an act that would not otherwise be permitted.

Moreover,New explanation the will is bound not only by treaties and pacts, but also by agreements tacitly indicated. For example, any person who has placed Edition: current; Page: [173] himself under the protection of another in such a way as to be in the possession and under the power of that protector, makes himself for the time being a part, as it were, of the latter, and by his silence promises clearly enough that he will devise nothing prejudicial to the welfare and sovereign status of the said protector. Thus we abhor traitors andEdition: 1950; Page: [51] suborned assassins and—far more intensely—poisoners.a 23 This abhorrence is accompanied, too, by the sentiment that wrongdoing lies in the giving of commands no less than in their execution, so that precisely the same guilt is incurred by the buyers and by the sellers of evil deeds. Furthermore, we see that such practices [as the suborning of poisoners and other assassins] were never accepted by the men of early Rome.

For the rest, all those stratagems of war are just which a prudent enemy has reason to fear, and in which no pretence of friendship is involved. When one “has undertaken a just war, it matters not at all from the standpoint of justice whether the fight be waged openly or by artifice.”b To this extent we agree with Ulpianc and the Socraticsd that the guile which is of use against an enemy is good.

In short, the conclusion set forth in an earlier part of this chapter—namely,Conclusion VII, Article III, Part II that a war is justly waged by voluntary agents in so far as it remains within the sphere of the right contested and is waged among the persons obligated with respect to that right—should be interpreted, or supplemented, by the following phrase: and in so far as it is permitted by good faith.

We must consider next the question of what constitutes, for subjects, just form in the waging of wars. For it is not clearly established that war is actually undertaken by subjects.e

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The substantial factor underlying a war is, for voluntary agents, the right involved; but for subjects, it is the command of a superior. Accordingly, just as the former may not safely exceed the limits implicit in the said right,a so the latter may not safely exceed those implicit in the command. For conformity of the laws with the reason of subjects, as we have pointed out in another context,b lies in the belief that the commands of superiors are concordant with justice; and this principle cannot serve as a defence for the subjects when they fail to observe the limits attached to the command. Thus they will be waging war justly in so far as they have received an order to do so. For they are not all ordered to follow the same course of action. It is indeed the common lot to contribute property for the uses of war; but the command to give one’s body for service in warfare (the act described as “military service”) is not imposed upon all persons.c Nor, to be sure, would such a generalEdition: 1950; Page: [52] command be expedient; on the contrary, a certain orderly method and principle of selection must be observed, just as, in connexion with judicial decisions, the function of execution pertains not to every individual but solely to those who have been specifically charged with that function.d Moreover, selection for military service is effected either through express designation, or on a group basis (so to speak), that is to say, by means of a summons such as that issued in cases of insurrection. An example of this type of summons is the famous proclamation of the consuls:e “Let those who desire to preserve the state, follow me.” In just proscriptions, [which authorize the slaying of the persons outlawed,] we have another example.f Furthermore, selections for service are made not only ἀμἑσως, or directly, but also ἐμμἑσως, or through the interposition of another party. For we find that the state or prince chooses a leader for the war, that the leader—after he has been invested with that status—creates tribunes and centurions, and that these officers select the soldiers.a Edition: current; Page: [175] Cato, indeed, perceives clearly enough that military service is justly rendered only in obedience to a command; for he admonishes his son, after the latter’s discharge, to beware of engaging in battle without taking the military oath again, since it is unlawful for one who is not a soldier to fight against the foe.b

This force attaching to commands has a bearing also upon individual acts. Thus soldiers sin when they proceed to plunder and burn without authorization from their leaders.c In fact, we know that in earlier times punishment was actually inflicted upon those individuals who had conducted any transaction against the enemy, howsoever successfully, when they had not been ordered by their commanders to do so;d and conversely, praise is rightly bestowed upon a certain soldier of Cyrus who sheathed the sword already drawn in battle as soon as the signals for retreat were sounded.

We therefore conclude that:Conclusion VII, Article IV A war is justly waged by subjects, in so far as such warfare is ordered by a superior.

If this conclusion is valid in regard to individual acts, it must necessarily hold good even when applied to seizure of prize or booty.e For seizures of this kind, arising as they do from the institution of war, are governed by the law of war. Therefore, since we have shownf that wars are just for the subjects of both contending parties when waged by a command from superiors that is acceptable on the basis of probabilities, the following inferences must likewise be accepted: first, spoils are justly taken on both sides, in the course of such wars; and secondly, theseEdition: 1950; Page: [52] spoils are licitly retained.g For why should the consciousness of despoliation rest more heavily upon a person who accepts enemy property Edition: current; Page: [176] given him by a state or magistrate, when he believes that the said state or magistrate has the right to make this grant, than does the consciousness of slaughter upon a person who kills another at the bidding of those same authorities? Again, if I buy from the public treasury certain property that has been confiscated by a judicial decree, it will not be necessary for me to inquire into the justice of the said decree; and shall the same principle not be applied in cases based upon war? Rightly, then, do the theologiansa assert that he who has fought in good faith may with a clear conscience keep the things captured in warfare; and rightly do they add that such a person, even though he be advised subsequently of the injustice of the war, will be under no obligation to make reparation for those things which he has consumed, save in so far as he has been rendered richer thereby.

In fact, this privilege [of retention without giving redress] is always accorded to possessors in good faith; and since we include under that head all persons who have accepted any piece of property from one who was not the owner but whom they sincerely regarded as such,b we cannot bar the subjects in question from the title whereby ownership actually is transferred from true owners.c For spoils are bestowed upon subjects (as we shall note in another context)d by public grant and as a gift, a procedure which establishes a true title. Moreover, any person who believes that a state or magistrate is waging war justly, will also believe that the said state or magistrate possesses a right over things captured in the war,e so that this circumstance, too, constitutes a mode of acquiring ownership, a mode not at all dissimilar to the procedure involved in a legal judgement:f that is to say, the state justly engaged in warfare would be set up as a judge even over a foreign foe.g Accordingly, we find a fitting Edition: current; Page: [177] application here for the common saying that he is a just possessor, who acquires or holds possession by authority of the praetora [i.e. the magistrate charged with the administration of justice].

Hence we infer that,Corollary II even as war is just under similar circumstances, so also the seizure and detention of captured goods is conceded to be just for subjects of both belligerent parties, always provided that a command has first been given which is not repugnant to reason after the probabilities have been weighed.Edition: 1950; Page: [53]

But the question of whether or not ownership in the sense of an irrevocable right may also be acquired on both sides, is one that calls for some deliberation.

Viewing the matter from the standpoint of that primary law of nations which is derived from nature,New explanation I should certainly not hesitate to assert that such acquisition is impossible. For no one’s opinion carries sufficient weight to take away ownership [irrevocably] from an owner who is unwilling;b and furthermore, according to the precepts of nature, we are under an obligation to furnish repayment not only for the unjust acceptance of another’s property, but also for the fact of possession in whatsoever form. This is the basis of the undeniably true opinion that, under the said primary law, not even titles acquired by prescription are admissible.c

In reply to the foregoing contention, however, it may be alleged that this right [of irrevocable acquisition] is derived from the secondary law of nations, which we have described as civil in its origin.d In fact, the various nations appear to have agreed that things captured in war become the property of the captors of either belligerent party;e and there is no lack of reasons in favour of this view.

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For citizens defend their state more zealously and bear the burdens of war more willingly under the influence of personal interest,a when the hope of recovering their property, if it is once lost, has in a sense been cut off. Nor does the state lose anything in consequence of the said agreement. For the vanquished state will possess merely an empty right devoid of force, and the victorious state will acquire, among other possessions found under the ownership of the enemy, those very things which were taken from it in war. Another weighty argument in support of this theory lies in the fact that, when peace has been made, those things whose return has not been expressly agreed upon remain with the possessor as prizes of war.b Thus, even though provision ought to be made by pact for their recovery, it would seem that common law prevails to the contrary; and this form of law cannot be derived from any source other than the tacit consent of the citizens. Yet another proof of the same theory may be deduced from the fact that all things seized in war fall either into, or outside of,The right of postliminium the sphere of postliminium. In the case of those things to which the right of postliminium is not attached, it is certain (since they do not return to their original owners even after being recaptured) that the right of ownership has been lost and that the enemy did in very truth become the owner. On the other hand, the things to which the said right is attached should be regarded as restored to one’s ownership, not as having continued therein, since “postliminium” is defined as the right of recovering a thing that has been lost and alienated,c in such a way that the thing thus recovered is accorded the same status as if it had never been in the power of the enemy. Moreover, we have been clearly told that where ownership is retained, there is no need of postliminium. The same inference can be drawn from the fact that things redeemed from the enemy are said to become forthwith the property of the one who redeems them, whereas the right of postliminium is conceded to someone who offers a prize.

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Now, the law very plainly provides that all of these principles are valid for one belligerent as much as for another;a and certainly I am not aware that any nation holds the opposite view. For even in the SacredEdition: 1950; Page: [53a] Scriptures,b the expression “David’s spoil” is applied to that which David took from the Amalekites and which the latter had formerly taken from their own enemies, so that it is evident that the ownership of the said spoil was twice transferred. The opinion of the exceedingly learnedEdition: 1950; Page: [53] jurist, Fulgosius,c with whom Jason agrees, is of a similar nature. For that matter, the Romans, a people characterized by the greatest regard for the principles of equity, had left this point so clearly established that no room for doubt remained;d and indeed, not even the interpreters of pontifical lawe dissent thereon.

Hence it would seem to follow that a subject who has waged war in good faith is in nowise bound to restore those things which he has obtained from the spoils, even if he learns afterwards that the war wasEdition: 1950; Page: [53] unjust. For what I have once rightfully acquired cannot possibly cease to be mine, save by my own act.f Similarly, a possessor in good faith takes as his own the fruits of the possession in question;g and these naturally belong to the true owner. Again, if any person, acting in good faith, has acquired another’s property by usucapion, he becomes the rightful owner of that property; and this is true, not because the passage of time has in itself any power to confer ownership, but because civil law creates a righth of such sort that he who avails himself thereof cannot be described as unjust or unscrupulous. In my opinion, indeed, it has been correctly taught by many authoritiesi that the force inherent in this Edition: current; Page: [180] right is so extensive, that he who has completed the period of prescription in good faith is not bound even in conscience to make restitution because of subsequent bad faith; for he now possesses ownership in law.a

On the other hand, I am altogether unable to approve the contention of the Spaniard Ayalab concerning cases in which the injustice of a war is clearly evident, namely, the contention that the things captured in that war are nevertheless [permanently] acquired. For I do not believe that there is in existence any law from which such a principle could be derived.c Furthermore, judging from the precedents established under other laws favourable to plunderers, I do not think that a precept of this kind could properly be tolerated even if it did exist, since it would not only lack a rational basis but would also incite men to wrongdoing.Edition: 1950; Page: [53a]

In short, the rights to which we refer, are valid in the case of legitimate enemies, as the Imperial Regulations of Severusd 24 declare; and we have saide that those enemies are legitimate, or just, who are acting in obedience to magisterial authority that is acceptable in the light of probabilities, whereas other enemies are in no sense different from robbers,f so that things seized by them do not undergo a change of ownership, nor is there any need to apply the rule of postliminium in reclaiming such things.g

Consequently, the statements made above are applicable only to foreign and not to civil wars, for these two reasons: because it is scarcely possible in a civil war that both belligerent parties should be invested with equal authority; and because individual citizens have not agreed to this transfer of property [within their respective states] as the states themselves have agreed thereto [in the international realm], nor does the Edition: current; Page: [181] same motive for such an agreement exist among citizens, since it is comparatively easy for them to settle disputes with one another in court when peace has been established.a

Accordingly, [permanent] acquisition does result from seizure in so far as foreign wars are concerned—on the basis, that is to say, of the aforementioned universal agreement among states—with the proviso that the attendant claim to possession shall be sound and secure in a specified degree, rather than open to question. For it seems that we, [as the original owners,] do not lose ownershipb until the attempt to follow up our possessions has begun to be so difficult that there is little hope of recovery. Now, it is assumed under military law that this point is reached when the property in question has been brought within the fortifications and boundaries of the enemy. Other authoritiesc haveEdition: 1950; Page: [53a] held that the exact point should be determined by considerations not of place but of time: for example, ownership might expire after an interval of twenty-four hours, which constitutes a civil day. To be sure, I am inclined to consider the latter criterion as less correct, apart from my recognition of the fact that it is evidently accepted, not without reason, in regard to ships captured at sea.

Therefore, by the law of nations,d not in its natural but in its positive phase, and in consequence of a pact, so to speak, agreed upon at least by a large number of nations,Corollary III the [ permanent ] acquisition of goodsEdition: 1950; Page: [53] captured in foreign public wars is conceded to be just for subjects of both belligerent parties, always provided that a command has first been given which is not repugnant to reason after the probabilities have been weighed. e

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CHAPTER IX: Concerning the Aims of War

Question VIII

Article I. What constitutes a just purpose in war, for voluntary agents?

Article II. What constitutes a just purpose in war, for subjects?Edition: 1950; Page: [54]

War is waged by the virtuous in order that justice may be enjoyed; and justice, as Polus Lucanusa so admirably explains, is the very same quality that is called “peace” with reference to the community, whereas with reference to subjects in their relation to rulers it is called “ready obedience.”

Let us deal first with Article I of this question, which pertains to voluntary agents.

Peace, then, is the fruit of justice. Platob expresses the same idea when he says that laws were established for the sake of true justice, and therefore for the sake of peace. Ciceroc maintains that war ought to be undertaken in such a way “as to make it evident that peace is the only end sought.” In another work,d moreover, he points out that the term “peace” should be applied, not to “a pact of slavery” but to a state of tranquil freedom. Yet again, hee unites the two concepts in the following statement: “Wars should be undertaken for this purpose, that we may live Edition: current; Page: [183] in peace and free from injury.” According to Crispus,a wise men “wage war for the sake of peace, and endure toil in the hope of leisure,” an observation interpreted by Crispus himself in another work,b where he asserts that, “Our forebears, the most scrupulous of mortals, snatched away nothing from the conquered save the latter’s licence to inflict injury.” Among the theologians, we may cite Augustine,c who says: “Peace is not sought in order that warfare may be practised; on the contrary, war is waged in order that peace may be attained”; and the same authord defines peace as “a well-ordered concord.” The ancient theologians,e too, explain in connexion with the story of Melchisedec that peace and justice differ not in fact but merely in name.

Accordingly, the peace set up as an objective for belligerents is not any kind of peace whatsoever, but solely and exclusively the kind that is just and honourable. For otherwise, those wars would be vainly undertaken which we are almost compelled to wage as a matter of necessity, at times when (to borrow the phrase of Florus)f laws more savage than arms are imposed. Thus Cicerog warns us to beware of the peace wherein snares are concealed. Again, according to the admonitions of Tacitus,h war itself is less perilous than a peace that is either vile or entangled with suspicion.1 Yet again, it was Demosthenesi who formulated that excellent maxim, πόλεμος ἔνδοξος εἰρήνης αἰσχρα̑ς αἱρετώτερος; “a glorious war Edition: current; Page: [184] should be preferred to an inglorious peace.” Thucydidesa likewise observes: “Peace is strengthened by war; moreover, he who shuns war because he loves peace will not thereby place himself beyond the reach of danger.” This thought is clarified by Thucydides himself in the following words: “To be sure, it is characteristic of men of moderation to remain at peace when they have not been provoked by injury; but it is also characteristic of the brave to exchange peace for war if injury isEdition: 1950; Page: [54] done them and then to resume friendly relations, laying aside their arms, when the opportunity presents itself and the affair has been carried to a successful conclusion.” To this he adds: “It is not fitting that any man should be extolled because of success in war; but neither is it fitting that any man should endure contumely while wallowing in peaceful ease. For he who shrinks from war for the sake of the pleasures of peace will (if he remains idle) right speedily be despoiled of that delightful tranquillity which so captivated him that he was too slothful to take up arms.” These are the beliefs expressed by Thucydides. Similarly, Thomas Aquinasb says: “Assuredly, war is waged for the sake of peace, but for the sake of a good peace, not for one that is evil. For there is also a kind of peace which Christ declares that He came not to send upon earth.” Apart from Saint Thomas, there are other theologiansc who hold that the purpose of war is the removal of those things which are a menace to peace; and, according to these same theologians, peace is menaced when any one is unjustly attacked or deprived of his property or subjected to injury, while justice, or righteous punishment, is nevertheless withheld. Certainly each of these points is in exact conformity with the statements already made by usd regarding the causes that give rise to war.

New explanationThus the kind of peace suggested as the proper aim of belligerents is nothing more nor less than the repulsion of injury, or (and this, in the Edition: current; Page: [185] end, amounts to the same thing) the attainment of rights, not only one’s own, but also, at times, the rights of others.a

This last objective clearly exists in the case of allies; and for that matter, it can equally well be the objective sought by the very instigators of a war, as may occur, for example, when the injured parties have been so thoroughly crushed that they themselves lack the power to offer resistance. So it was that Abraham undertook to wage war in behalf of Lot and the citizens of Sodom. Constantius did likewise in behalf of the Romans against Maxentius, as did Theodosius for the cause of the Christians against Chosroes the Persian. “The courage which [. . .] defends the weak” is called “justice,” by Ambrose.b According to Seneca,c “He who does not attack my country but nevertheless oppresses his own, harassing his people though he keeps aloof from mine, has destroyed by the depravity of his spirit that fellowship based upon human rights which he shared with me, so that my duty to the whole of mankind is a consideration more fundamental and more powerful than my duty to that one man.” Cicerod asks: “Who that does nothing save for his own sake, is a good man?” To be sure, in striving thus for the good of others, we strive for our own good, also. For it is important to the security of all that injuries [to any person] shall be warded off, lest the perpetrators of the injurious acts, rendered more powerful thereby, should at some future time rise up against us, too, and also in order that others may not be encouraged to wrongdoing by a multitude of instances in which injurious conduct has gone unpunished. Furthermore, it is a fact worth noting that, just as a state often undertakes a public war for the personal benefit of citizens (a point already mentioned by use), so also citizens take up arms privately for the benefit of the state. This sometimes happens when the state has been crushed and is unable to act as a wholeEdition: 1950; Page: [55] in its own defence. [Scipio] Nasica [Serapio] adopted this course of Edition: current; Page: [186] action against [Tiberius] Gracchus, and certainly his deed is praised by all good men. Octavian did likewise against Antony. The same may be said of all tyrannicides. Yet it is obvious that these persons acted partly in their own interest; for, just as it is to the advantage of the state that its citizens should be safe and prosperous in their private lives, even so, and in a far greater measure, it is to the advantage of the citizens that the state should be preserved.

Furthermore, whosoever engages in war in behalf of another’s right, necessarily regards his own right as bound up therewith in the collection of damages and costs.a Accordingly, we find all those persons blame-worthy who wage wars, even with just cause, if they do so ἐκ πλεονεξίας [out of greed] and in a spirit of injustice. Therefore, let the state, magistrate, or private citizen who undertakes a war, and the ally of any such belligerent as well, remain wholly free from “deep-seated lust for empire and riches,”b and from the sentiments described by Senecac in the following lines:

  • Unholy thirst for gain, and headlong wrath,
  • Broke through this covenant. . . .

These are the very sentiments to which Augustined refers in the passage already quotede from that author: “The greedy urge to inflict harm, cruel vengefulness,” and so on. For, as this same Father of the Churchf declares, “Among the true worshippers of God, even wars themselves have a pacific character, being waged not because of cupidity or cruelty, but because of an earnest desire for peace, with the purpose of restraining the wicked and giving support to the virtuous.”

Conclusion VIII, Article IIn short, Voluntary agents wage with a just purpose whatever war they wage in order to attain a right.

Edition: current; Page: [187]

Now, in the case of subjects (as we indicated at the outset of this chapter),a the factor of obedience is stressed, a point brought out in pontifical law by the words of Pope Gregory:b “Among other good and meritorious attributes of military service, the most praiseworthy is this: obedience to the needs of the state.” Wherefore subjects, too, must necessarily be free from those failings which we forbade in the case of voluntary agents.

Mercenaries, however, are for the most part apt to display such failings, as Platoc shows by quoting Tyrtaeus to that effect; for it is evident that mercenaries defy danger solely in the hope of gain.dEdition: 1950; Page: [55] Antiphanese gives us a rather neat phrase describing the soldier who,

  • ὃς ἕνεκα του̑ ζη̑ν ἔρχετ’ ἀποθανούμενος.
  • In quest of a living, forsooth, rushes
  • Forth headlong to death! . . .

Paulf bears witness to the fact that soldiers are not forbidden to accept payment; and under the head of such payment (as we have noted before and shall note againg) spoils are included, when they are bestowed by a state or magistrate. On the other hand, it is a vicious practice to aim at gain through spoils as one’s principal goal. To take an analogous case, we know that it is right for persons in public office to accept fees, including upon occasion the fines paid by citizens, since it would be unjust if the common interest were served at the expense of one individual; but the magistrate should nevertheless have in view a different objective, to wit, the public weal. Augustineh sought to make this very point when he said: “It is not a crime to serve as a soldier, but it is a sin to do so for Edition: current; Page: [188] the sake of spoils; neither is it a blameworthy act to rule a state, but to rule it for the purpose of augmenting one’s wealth, is an act that clearly calls for condemnation.” Those individuals, however, who have themselves suffered loss, quite properly fight even for the sake of spoils—in other words, for the attainment of their rights, a process bound up with the process of despoliation—until they have obtained reparation for that loss.

Now, what we have said regarding the rectitude of one’s purpose falls exclusively into the realm where one’s innermost thoughts are examined,a that is to say, the realm wherein God passes judgement on a man or the latter passes judgement on himself. Yet whenever a matter of this kind is brought before a court—for example, when some judge, in peaceful surroundings, passes upon a question relative to spoils of war—all points not susceptible of proof must be disregarded. Furthermore, even in the court of conscience, he who wages war for an unjust purpose is indeed convicted of sin, but he rightfully retains the spoils. Thus the Scholasticsb wisely maintain that, “Righteous intent is not a prerequisite for the licit retention of those things which have fallen to one’s lot in war, any more than the process of execution resulting from the order of a judge is to be evaluated on the basis of the executing agent’s intent.” For wrongful intent on the part of the person who seizes something, never of itself creates an obligation to make restitution.c

From the standpoint of those tribunals established outside the realm of one’s own conscience, the same principle holds true with respect to the good faith, or belief in the justice of one’s cause, which we require of subjects [in the waging of wars]: that is to say, this factor is not even taken into account, unless perchance the injustice of the cause is entirely obvious. Hence it follows that only those matters susceptible of certain Edition: current; Page: [189] proof are submitted to the judgement of the said tribunals: forEdition: 1950; Page: [56] example, such matters as the authority of a superior. This is the doctrine laid down by all the jurists.a

Conclusion VIII, Article IIIf, on the other hand, we do wish to take into account the criterion of conscience, we may say that, Subjects wage with a just purpose whatever war they wage in order to render obedience to a superior.

Edition: current; Page: [190]

CHAPTER X

Question IX. By whom may prize or booty be acquired?

Article I. By whom may it be acquired in private wars?

Article II. By whom may it be acquired in public wars?

Corollary. To what extent is the acquisition of prize or booty permissible for those who are waging a public war at their own expense, to their own loss and [at the] risk [of damage to their personal interests],1 through the efforts of their own agents, and in the absence of any agreement regarding recompense?

We have satisfactorily demonstrated,a so I believe, the truth of the proposition that enemy property can be rightfully seized and acquired.

There still remains one controversial point that is pertinent to our inquiry, namely: Who should become the owner of property seized in war? In considering this question, too, we shall adopt the natural order of discussion, dealing first with private wars and afterwards with public wars,b a method of approach which will contribute not a little toward clarifying the matter.

Edition: current; Page: [191]

As regards the question in its entirety, moreover, it should be evident from the observations already madea that things seized in war and things seized on the basis of a judicial award fall into the same class. For war, if it is supported by public authority, differs from execution of a judicial sentenceb only in the fact that it must be carried out by armed force, owing to the power possessed by the opponent; or, if the conflict is waged because of a private need, the case clearly reverts to that early law which made each individual the judge of his own affairs. Accordingly, no one will properly become the owner of booty unless he has a rightful claim, that is to say, grounds for claiming something as his due. Therefore, the minds of men should be completely cleared of the false belief that an enemy possession becomes public property destined for the one who seizes it, in accordance with the practice established for τω̑ν ἀδεσπότων, or “ownerless property,” just as if every bond of human fellowship had been abolished between enemies. For, despite the many statements made by ancient authoritiesc which seem to favour this belief by comparing such a process of acquisition with the chase, despite the apparent confirmation of the same belief to be drawn from the pronouncements of the orators and philosophers whom we cited at the outsetd in order to establish the right to acquire spoils, and despite the fact that, even among the authorities on law, we find Pauluse evidently placing things seized in war under the head of goods which have no owner and which,Edition: 1950; Page: [56] furthermore, may be acquired by the first person to take possession—I repeat, regardless of all these indications to the contrary—it cannot be denied that there is a notable difference between those things which have never been subject to anyone’s ownership and those which have admittedly belonged to the enemy: a difference not unobserved even by our Edition: current; Page: [192] own jurists.a For if we concede so much more force to the demands of hatred than to those of nature, that we are led to abrogate between enemies the law that bids us refrain2 from seizing the property of others, then there is nothing to prevent us from abolishing also the principle of good faith in the observance of pacts and, indeed, the entire body of precepts known as the law of arms. But we accept the opinion of Socrates, who argues (in Book I of Plato’s Republic)b that any of these acts [repudiating justice between enemies] is unjust. Nor did Pindarc escape reproach from the philosophers for his assertion that,

  • χρὴ δὲ πα̑ν ἔρδοντ’ ἀμαυρω̑σαι τὸν ἐχθρόν.
  • ’Tis right to do whatever deed you will,
  • Whereby you bring destruction on the foe.

I recall the words of Cicero,d also: “Moreover, there are certain duties to be observed even in regard to those persons by whom one has been injured. For limits are imposed upon vengeance and punishment.” Your words, too, come back to me, O second Romulus!3 For when you sent the tutor back to Falerii, you said:e “Between us and the Faliscans there is no fellowship founded upon man-made covenants; but the fellowship implanted by nature assuredly4 does exist and will continue to exist. Edition: current; Page: [193] There are laws of war just as there are laws of peace.” Nor does Senecaa praise Fabricius more highly on any other ground [than on that of justice toward enemies, in the passage where he describes Fabricius thus]: “tenaciously faithful to a noble ideal, and—a most difficult feat!—guiltless even in warfare; for he believed that there was such a thing as sinful conduct even against enemies.” War does away with political fellowship, but not with the fellowship of humanity. Thus even the Fourth Law remains operative, save in so far as it may be outweighed by the Second Law; and the force of the Second, as we have observed, is contained also in the Fifth and Sixth Laws. Hence it follows that one may not acquire enemy property save on account of a debt. That is to say, in addition to the fact of possession, cause also is required, a principle which we expounded in an earlier chapterb but which is not inappropriately repeated at this point.

Let us turn our attention now to the question, “By whom may prize or booty be acquired in private wars?”

To be sure, any person who asks this question evidently presupposes the existence of a body of law governing prize and booty, and derived from private warfare, whereas a great many interpreters of canon or civil law and writers on the laws of warc appear to repudiate that supposition.A paradoxical contention But we have already remarked on several occasions that there is no reason why we should invariably accept the opinion of those who, content with the knowledge they have acquired concerning civil law, have neglected to acquaint themselves with the precepts based upon the fundamental truths of the law of nations.d

In this connexion it is worth while to note the determining principle Edition: current; Page: [194] introduced by Faber.a For he rejects the belief that the institutions of prize and booty have a place in private warfare, on the ground that no statement to this effect is written in the laws: an argument which is equivalent to denying that the contents of the Corpus of Roman laws pertain primarily to civil law, and thus leave unmentioned many matters which might better be decided by the common criterion of reason, rather than on the basis of any [civil] authority. In any case, it is easy to explainEdition: 1950; Page: [57] why no treatment of the question engaging our attention is found [in Roman law]. For the majesty and power of the Roman Empire were such that Rome was hardly ever troubled by a lack of judicial recourse (that is to say, by any continuous lack), which is an especially weighty factor in the development of private wars, as we have pointed out.b

Nevertheless, if we are seeking sound arguments on which to base our solution of the question, what is more certain than the fact that in warfare—whether public or private—everything necessary for the execution of one’s right is permissible?c It is indeed necessary, if we wish to obtain that which is our due, that we should acquire enemy property [rem hostilem]; and the acquisition of such property is nothing more nor less than that very practice which we call “acquisition of prize or booty,”d except that some objection may possibly be advanced against designating the person who attacks us privately as an enemy [hostem]5 and the property seized in such circumstances as “prize or booty.” Although I have no wish to engage in a stubborn dispute on this matter of definition, provided that the substance of our contention is accepted, nevertheless I regard it as extremely important for the clarification of the whole question, that different terms should not be employed in the discussion of a single right.

Now, if we examine with care the opinions formulated by the above-mentioned Edition: current; Page: [195] jurists,a we shall find that their statements seem almost identical with ours in substance, though the terminology differs. For their doctrine runs as follows: in private warfare, if no judge is available, and if our purpose is the recovery of our own property and the collection of the debt due us, we may seize the possessions of our adversaries, even after an interval of time has elapsed, up to the point where we shall have obtained value comparable to that debt. But if this is permissible with respect to all debts owed us, then surely it is permissible with respect to damages and costs incurred in the attainment of our rights; and the same inference applies even to the dangers and cessation of profit involved, or in other words, to extrinsic losses and all attendant factors. That is the opinion laid down by the theologians,b and based by them upon the following argument: the judge himself, if there were one available, would award the said items to the innocent party, since it is right that all of the losses mentioned should be charged against him who caused them.c Indeed, one may go so far as to say that such seizures are permissible even for the collection of what is owed on the basis of sinful conduct. For in judicial decisions, too, a thief is sentenced to pay the party who has been despoiled twice or four times the value of the goods stolen, and a robber must pay the victim three times the value. The injury done is also estimated and weighed; and the laws decree in favour of injured parties [as such], penalties similar to those decreed in favour of plaintiffs in a lawsuit. Thus when Boethiusd was asked upon whom punishment would properly be inflicted according to his judgement, if he were sitting as judge—whether upon the party who had committed the injurious act or upon the party who had suffered the injury—he replied that undoubtedly he would order satisfaction given to the victim at the expense of the perpetrator of the injury. That is to say (as a certain authore has rightly pointed out in his treatise on war, and as Aristotlef Edition: current; Page: [196] maintains) everything that has the character of an ill, including injury received, is embraced in the term “loss”; and therefore, the opposing factor of gain, which has the character of a good (for example, just vengeance) is naturally the proper due of the injured party. This point has already been discussed by us in another passage.aEdition: 1950; Page: [57]

Accordingly, we arrive at one and the same conclusion in regard to both public and private wars. But, if this is the universally accepted conclusion, wherein lies the distinction between the two kinds of warfare?

Perhaps the said distinction turns partly upon the contention apparently supported by a considerable number of authorities,b that things taken in private warfare should be subjected to a strict accounting, whereas things acquired in public warfare need not be balanced against the principal debt and may remain in the possession of the person who seized them even when they exceed in value the loss that was suffered. The persons who argue thus, however, fail to realize that all spoil seized over and above the amount required to cover losses and the cost of prosecuting a case, may be retained [after a public war] in so far as they represent the punishment owed by the offending state to the offended state, but must not be retained in excess of that penalty; nor do they take into account the fact that whatever does remain in excess of the amount due for just punishment should be returned, as Sylvesterc quite correctly rules and as we ourselves have agreed. Now, I see no reason why one should not make that same concession [regarding retention of spoil by way of punishment] in the case of private wars, in accordance with the considerations pointed out just above and more fully discussed in earlier passages of the present work. Of course, spoils seized in private warfare (even when the war is just) are much more apt to exceed in value the debt, losses, and penalty involved than spoils seized in public warfare. Edition: current; Page: [197] For in the latter case (owing undoubtedly to the lengthy duration and vast scope of public wars) the amount taken from the enemy rarely balances even the expenses incurred. Consequently, those juristsa who more or less make a practice of τὸ ἅπαξ ἤ δὶς παραβαίνειν, “omitting to mention that which has occurred only once or twice,” have asserted that things taken in public wars are acquired without restriction, while they hold that in private warfare such acquisitions may not exceed the amount of compensation due to the private individuals concerned.

Up to the point indicated, then, the public and private laws governing prize and booty are in mutual agreement. Yet we cannot overlook the fact that there is a subtle difference between them. For a certain assertion made by usb with reference to public wars—namely, that for subjects waging war in good faith, things captured by either belligerent party fall properly under the head of acquisitions—is in my opinion not easily applicable to private warfare. Private individuals have adopted no common agreement to this effect, as states have done; and in this lack of a specific agreement lies the most satisfactory explanation of the opinion ascribed above to certain learned authorities, which rules that things seized in a private war do not become the property of those who seize them. In other words, the war does not in itself suffice to produce this effect, without the additional factor of a truly just cause.

There is another distinction which will become clear if we first reflect upon the question, “How do private individuals differ from a state?” For I do not believe that the answer to this question can be limited to numerical considerations, since a collection of individuals sufficient in number to set up a state but gathered together in a chance assemblage would have no more legal standing than one or two individuals. Besides, what numerical requisite can be specified for that sufficiently large group, which will preclude the possibility of any objection that a smaller number suffices? What, then, is the basic factor underlying the difference? Undoubtedly, that factor is civil power, which is established by Edition: current; Page: [198] common consent; and common consent (as we have already pointed out)a is the source of legal judgements.

Now, this difference in judicial attributes creates a distinctionEdition: 1950; Page: [58] that concerns the acquisition of spoil. For states are inherently endowed with judicial authority,b whereas private individuals are not so endowed save in so far as public power is found to be defective. We have made a rather convenient division of these instances of defective power into two classes: cases in which the defect appears to be of brief duration, and cases in which it appears to be continuous.

When the defect is of brief duration, the laws must be restored to force as soon as possible. Accordingly, the assertions made by the authoritiesc above cited, to the effect that in private warfare vengeance is not permissible, seizure is not [properly] practised, and so on, are to be interpreted as referring to private wars derived from a momentary lack of judicial recourse, an interpretation supported by logic itself, by a careful examination of the passages in question and by the observations which we ourselves have made. Additional confirmation of this point is found in another statement laid down by those same authorities,d namely, that any person whose property has been snatched from him by stealth or violence may take by way of compensation the equivalent thereof, subject to the subsequent award of his superior. For even though the law of vengeance is properly applicable to the original despoiler,e nevertheless, a restriction must be imposed upon the second despoiler, [i.e. the avenger,] limiting the compensation he receives to the exact extent of the spoliation or injury inflicted by the other party. Thus it would seem that the right originally possessed by the avenger with respect to the property seized, was a right to hold it as security [ pignus], whereas later he acquired the right of ownership in virtue of a judicial decision. Edition: current; Page: [199] Here we have the origin of the very term pigneratio [seizure of pledges];6 and the same order of events is observed in connexion with reprisals.a But I hold that even in such cases, where a thing privately seized is publicly awarded in settlement of a debt,b an attempt should be made to combat the rejection of the terms “prize” or “booty,” since this very property which we acquire through a civil judgement (so the learned men of law tell us), would seem to be received not from the hands of a judge but from an adversary.

If, however, the lack of judicial recourse is of an enduring nature (as it would be, for example, in a locality subject to no one’s jurisdiction), the case clearly comes under that law of nature which existed everywhere prior to the establishment of courts of justice, so that one belligerent, acting for himself in the capacity of judge, acquires forthwith the goods seized as a pledge from the other belligerent. Nor will the former incur, at some later date when recourse to a judge becomes possible, any obligation to make restitution. The reason for this immunity is the same as that repeatedly adduced by the Scholasticsc in connexion with a similar thesis. For the Scholastics say that a case which is complete in itself and not bound up with any additional act, is not reopened even though its underlying cause may later cease to exist. Moreover, if the need should arise, even in a case of this kind, for a subsequent judgement based upon civil law rather than upon the law of nations, nevertheless, that judgement ought to be interpreted not as bestowing the right of ownership but merely as a declarationd that the said right has been acquired. It is evident that this procedure was introduced partly in order to search out the frauds perpetrated by dishonest persons, and partly with a view to ensuring a greater degree of security for rightful captors by means of a proclamation imposing silence upon all persons [who might wish to Edition: current; Page: [200] question the right of those captors]. There are many other causes,Edition: 1950; Page: [58] however, that may result in the adoption of the same procedure. For we often hear of a summons addressed by the true owners of property to all persons of any kind who may possibly wish to enter into a controversy regarding that property,a the purpose of the summons being the increased future security of the owners.

It is a fact, then, that seizure of spoil is not impermissible in private warfare. For it would indeed be difficult to prove that the celebrated war waged by Abraham against King Chedorlaomer and his allies was not a private war;b yet Abraham certainly did not hesitate to take away spoil from that conflict. The same may be said of Gaius Julius Caesar,c who as a youth pursued with a private fleet the pirates by whom he had previously been captured, and apportioned their goods as prize. It is equally indisputable that a similar course of action was followed in Octavius’ war against Antony. The view taken by Socinus Neposd clearly bears out our own statements; and his opinion appears to have been adopted by Ayala,e the Spaniard, primarily on the ground that, when a war of this kind is just, the rights and consequences attaching to war [in general] should be recognized for the particular case in point.

Thus the fact of acquisition is established. But we have yet to consider the question, “By whom are such acquisitions made in private warfare?”

New explanationNow, since any principal agent must be regarded as acting chiefly in his own behalf, I hold that he who is the principal author of a private war becomes the owner of the goods taken in that war in so far as he has been attempting to obtain his rights; and I intend that this statement shall furthermore be interpreted to mean that, even if the enemy also owes debts to other parties, the aforesaid principal agent will nevertheless hold a privileged position in regard to the spoil.f For, in the first place, Edition: current; Page: [201] all of the losses and expenses involved are the concern of the party who undertook the war, since he is of course obligated under the law of nations to his allies and subjects for the sum of the expenditures and costs [on his side]; and it is certain that everything reckoned under the head of costs of execution is deducted before all else from whatever is collected out of the property of a debtor,a a principle established by the very force of necessity, since otherwise (that is to say, unless such costs are met) one person cannot even prosecute another. Furthermore, if the initiator of a war has possessed, prior to the execution of his undertaking, any claim as a creditor of the party despoiled, I do not doubt but that preference should be given him in this matter, too, in accordance with the established precedent relative to the particular creditor who has been more vigilant than the rest.b For he who has in good faith collected his due from a debtor obligated to a number of creditors, is not bound, even by the judgement of his conscience, to make restitution.

Afterwards, however, if any goods remain in the possession of the adversary, [i.e. the debtor,] the other creditors to whom he is obligated shall be granted access to this remaining portion. Finally, whatever is left after their claims have been settled shall be preserved for the despoiled combatant himself and restored to him at the close of the war,Edition: 1950; Page: [59] when the danger has disappeared.c For the authorities on law agree that this is the prevailing practice even in the case of reprisals; and the same practice is always followed in connexion with the seizure of debtors’ goods on the basis of a judicial decree.

But if the spoil is acquired by the party who undertakes a private war, then it is not acquired by the individuals who seize it; that is to say, it is not acquired by them in a primary and direct sense, or in other words, in the natural course of events and independently of any additional act. Nor can any objection be made to this inference on the ground that the initiator of the war does not himself seize possession in his own person; Edition: current; Page: [202] for he does take possession through other individuals, who are either subjects or assistants. In so far as subjects are concerned, this point has already been explained. For, [to take an analogous case,] acquisition is effected in every sense of the term through children and through slaves, just as if they were parts of one’s own body, as the juristsa readily agree. The question of how acquisition is effected through assistants, however—that is to say, through persons who are sui iuris —appears to be more difficult of solution. But this problem, too, will be solved with sufficient ease if it is understood that we define as “assistants,” or “allies in war,” those persons who attach themselves to the principal agent but who do not assume for themselves an equal status as principals; for if they did assume that status, they would enjoy the same right as the afore-said principal party. We are speaking, then, of persons who have received their orders from the initiator of the war; and therefore, we may say that, just as we gain possession even through a free agent who has received his orders from us, so also we acquire ownership through that same act of possession.b

New explanationThe foregoing statement merits special consideration. For if it is rejected, we shall be acquiring, not ownership over the property in question, but merely a right of personal action, which is a very different matter. To be sure, in the dissertations of the juristsc the following assertions have become exceedingly familiar: that by my agency I place another person in possession, since the person in whose name possession is held is himself the possessor; and again, that agents lend their services solely in order that others may gain possession.

A question might be raised, however, as to whether these precepts are derived from natural reason, or from the law of the Quirites and the Imperial Regulations of Severus,d especially since acceptance of the said Edition: current; Page: [203] precepts is apparently classified as a matter of expediency.a Nevertheless, in my opinion, they undoubtedly proceed from the law of nations.Edition: 1950; Page: [59] This conclusion is supported by the very weighty argument that the situation is different in the case of civil acquisitions, such as those effected through stipulationes [verbal contracts], which cannot be made in another person’s name.b Moreover, Modestinusc subtly calls attention to this difference, saying: “That which is acquired by a natural process —possession, for instance—may be acquired through the agency of any person, provided that we wish to obtain it.”

But there are also other questions which were subjects of dispute among the ancient writers on law,d for example: “To what extent is such possession acquired when we ourselves are ignorant of the transaction?” “To what extent will usucapion take place with knowledge as an added factor?” Severuse propounded a rule to cover these points, too, and based his ruling (as he himself explains) not upon [public] expediency alone but also upon jurisprudence. As we intimated at the outset,f possession is derived from a twofold source, mental and physical: it should have its origin in the mind of the agent, and therefore it is not acquired under the rules of nature by an infant of tender age, by an insane person, or by any person who does not will to acquire it;g but the body must serve the mind, if possession is to be taken by a natural process, although this service is not necessarily rendered by one’s own body. Paulus,h in his collection of accepted opinions, makes the following statement: “We acquire possession by means of the mind and the body: through our own minds, in every case, and through our own bodies or those of others.” But another person’s body will adapt itself to the service of our Edition: current; Page: [204] minds only if the mind of that other person assents; that is to say, his mind must have accepted our command.a This is the interpretation which should be given to the assertions that one can do through another that which one has power to do directly, and that he who has acted through another is regarded as occupying exactly the same position as if he had acted in his own person.b For Nature, who has bound men together in such close fellowship, undoubtedly permits the adoption of a procedure which is even necessary at times because of infirmity or absence, namely, the procedure whereby one man acts through another, although the latter may be a free individual. Accordingly, in order that another person may acquire possession for us, this one requirement must be met: that he shall be directing his efforts solely to our service. In fact, these are the very words used by Paulus.c

Furthermore, in cases where we have all the other attributes necessary to constitute ownership and where only possession is lacking, weEdition: 1950; Page: [60] acquire the status of owners simultaneously with that indirect acquisition of possession. This fact is stated in the laws,d and is confirmed by examples based upon the sale or donation of property [through an agent of the new owner].e Hence it follows that whenever possession alone is needed to produce ownership, one becomes an owner through the agency of others far more easily than would otherwise be possible. Thus in the Olympic Games, those persons who had sent the victors to the contest found their own names recorded in the inscriptions and became the owners of the prizes. So it is, too, that whatever is taken by fowlers, fishermen, hunters, and pearl-fishers straightway becomes our own, if the said persons have been hired or induced in any other way to devote their labours solely to our interest;f for this is a different matter from a Edition: current; Page: [205] sale based upon a future contingency, inasmuch as contracts do not in themselves suffice to transfer ownership.

The same inference follows even more certainly in the case of deeds of war, since things seized by means of such deeds are seized either on behalf of the captors or on behalf of the person who undertook the war. If the seizure is made for the initiator of the war, the captors lack that intent without which one cannot have possession.a On the other hand, if it is made on behalf of the captors themselves, the latter have no personal cause for action against the adversary, so that the result will be, not acquisition, but rapine or theft. For we have already concluded that seizure of spoil is not permissible without cause based upon a debt. Moreover, the story of Abraham,b handed down from that age in which the law of nature prevailed in all its purity, supplies a noteworthy argument in support of our inference, namely, the statement made by that holy man acknowledging as his own both the portion of the spoil given by him to his attendants and the portion he might choose to distribute among his allies; for Abraham declared that, with the exception of those portions, nothing would be acquired by him.

Conclusion IX, Article I, Part ITherefore, in so far as primary rights are concerned, in a private war, the spoils are acquired neither by subjects nor by allies, but by the principal author of the war himself, up to the point where his rightful claim has been satisfied.

New explanationOn the other hand, every individual is invested with power over his own property,c so that it is proper for any person to transfer a right of ownership already possessed by him, or even one that he is destined to possess in the future. For I may licitly transfer something that is not yet mine, with reference to that future contingency which will make it mine. Furthermore, the party to whom such property has been transferred may take possession in my name, as a deputy; and this very act of possession, Edition: current; Page: [206] supported by my assent, will acquire the force of a delivery of property, just as it does when one person delivers to another, either as a gift or as a purchase,7 something already freely loaned for the use of that other person.a Thus the said deputy will at first possess the property in my name; but later, he will come to possess it through me, for himself. It is in this way that we pay creditors through our own debtors; and when such a transaction takes place, two processes of acquisition are involved in actual fact, although one of them (as Ulpianb explained) is concealed by the rapidity with which the two acts merge into each other. This is the method to which we refer, in connexion with Roman law, as brevi manu c [immediate or fictitious delivery]. Therefore, just as it is permissible, after the spoil has become my property, that I should transfer that property to another as a gift or pay a debt with it or alienate it in any way whatsoever, so also it is permissible for me to give another person spoil that is to be acquired in my name. When this happens, the order of events is such that the spoil comes to me through the efforts of that other individual, but is not destined to remain in my possessionEdition: 1950; Page: [60] for a single moment, since it will pass instantly to him as to one who has present possession and still earlier grounds for ownership.

For these reasons, we have said that the person undertaking the war becomes primarily and directly owner of the spoil, unless he has previously made an agreement to the contrary.Conclusion IX, Article I, Part II For either he himself becomes the owner, or else that person does so, to whom he assigned in advance the spoil that was to be acquired.

Edition: current; Page: [207]

New explanationThe next division of our discussion relates to acquisition of spoil in public warfare. In this connexion, indeed, it behoves us to exercise all the more care for our own part, because the jurists of a comparatively recent date, following the interpreters of canon law, classify items derived from custom (and from a form of custom, too, that is by no means universal) under the head of the primary law of nations. Moreover, these jurists develop their argument in so distorted a fashion that, even after repeatedly reading (in the Roman Corpus of civil law) that captured goods become the property of the captors and (in canon law) that spoil is distributed according to the will of the state, they arrive, one after another, at the same conclusion,a namely: captured goods become first the property of the individuals who seize them, but must nevertheless be given over to the leader, who shall distribute them among the soldiers.

Certainly this view is founded upon no rational basis. For we have already explained that those individual captors have no [personal] case [against the enemy], and are therefore unable to make acquisitions in public warfare just as they are unable to do so in private warfare, since the same considerations hold good in both cases. In the first place, inasmuch as the losses and expenses sustained by subjects and allies are the concern of the state that undertakes the war (a point which we have made elsewhere and which will presently be more fully elucidated), the equivalent of these losses and expenses must be deducted from the spoil as a claim of fundamental importance. Furthermore, the state should be given preference over other claimants in regard to every right that it possesses against the enemy, both because the state has exercised vigilance, and because it is a universal rule, accepted not without reason, that the public treasury shall possess πρωτοπραξίαν, “the right to be first in exacting repayment,” above all in connexion with the crime of high treason. For the iniquitous conduct of a state that disturbs the peace and public order of another and innocent state may be likened to treason.

Edition: current; Page: [208]

A paradoxical contentionOn the basis of the foregoing observations we shall formulate a new opinion, as follows: things captured in a public war become the property of the state undertaking the war, up to the point where theEdition: 1950; Page: [61] said state shall have received satisfaction. But why should I describe this opinion as “new”? In the writings of Isidore,a among other fragments handed down by him from a more learned age, we find a statement to the effect that these two items fall under military law:8 the disposition of spoils in accordance with the qualifications and exertions of the persons involved, and also the matter of the prince’s portion. If we pause to examine this statement, we shall see clearly that the right herein described is not τὸ τω̑ν συναλλαγμάτων διορθωτικόν, that is to say, not the right underlying transactions governed by a regard for quantitative equality,9 but τὸ διανεμητικόν,b [a distributive concept,] which underlies distribution governed by a proportional rather than by a quantitative principle, or in other words, by the principle of geometric equality.c We have describedd the latter of these two concepts as the work of distributive justice, and the former as the work of compensatory justice. Now, this distributive right, as it is called, has no existence founded upon the interrelationship of the individual parts to one another, nor does it flow from the parts to the whole; on the contrary, it flows from the whole to the parts, which differ in their worth and in their relation to the whole.e Consequently, the right in question has a bearing only upon those matters which are general, or public. From this explanation, we may infer that in the natural order spoil seized in public warfare is public property, Edition: current; Page: [209] prior to its distribution. Ambrosea takes the same view when he declares it to be a rule of military science “that everything shall be preserved for the king.” For when Ambrose uses the term “king,” he has reference to the person who represents the state. He adds, however, that part of the acquisitions may justly be given to those who have been of assistance to the community, as a reward for their labours. At the moment, indeed, the reward is not yet ours; but it is a debt owed to us, and it may be paid from any source whatsoever. This is the thought that Scipio had in mind when he said, in the speech addressed to Masinissa, an ally of the Romans:b “Syphax has been conquered and captured under the auspices of the Roman People. Therefore, he himself, his wife, his kingdom, his lands and towns, the inhabitants thereof and, in short, everything that formerly belonged to Syphax, are now spoils belonging to the Roman People.” Lucius Aemilius, too, as quoted by Livy, clearly declares that, when a city has been captured, the right of decision regarding the spoils rests not with the soldiery but with the commander: that is to say, with the person who has received this right from the state, a point which we shall clarify presently by citing examples.

Nor is there any incompatibility between the theory justEdition: 1950; Page: [61] expounded and the well-known maximc that things captured in war become forthwith the property of the captors. For that maxim is quite reconcilable with our opinion that things so captured cease to be enemy property, although the term “captor” should be interpreted as referring to the state, which effects the captures through the agency of others. Certainly, if this last assumption is not acceptable, nothing at all can be acquired for the state through the process of seizing possession,d since the whole must rely for that purpose upon the services of the individual parts.

Accordingly, in our discussion of public wars, we shall apply to citizens the same assertions that we applied to children and slaves in discussing Edition: current; Page: [210] private warfare.a For citizens are just as truly subject persons, and in that capacity they are part of the state itself; nor does the fact that they may also be considered as individuals capable of gaining acquisitions for themselves, have any bearing on this point, since the activities involved in a public war proceed from the citizens as such. Moreover, just as a distinction is made between the case of a son who possesses in his own nameb property acquired with his father’s consent through military service,10 and, on the other hand, the case of a slave owned in common by two or more individuals or in whom some person other than the owner possesses a usufructuary right, or that of a person serving another in good faith,c, 11 so also in the present connexion we shall be justified in saying that whatever is acquired through the citizens by the command and in the interests of the state is acquired for the state.

As for allies who make acquisitions by command [of the principal belligerent], the statements already applied to them in our analysis of private warfare are equally applicable at this point.

For the rest, there is a single argument that suffices to refute the contentions of those persons who would interpret the maxim concerning things captured in war to mean that, by the primary law of nations, such things become the property of the individual captors. I refer to the fact that this primary law, which may also be called the law of nature, involves no need for a distinction between movable and immovable possessions, in relation to acquisitions. Thus an island rising from the sea becomes the property of him who takes possession, in the same way that pearls Edition: current; Page: [211] become the property of him who takes them from the ocean.a Nevertheless, the fact that lands and cities captured from the enemy are public property and not that of the individuals who seize them, is so clearly established by all historical records and by the categoricalEdition: 1950; Page: [62] pronouncement of Pomponius,b that no one has ever ventured to deny it. Therefore, the same conclusion should hold true in regard to other captured goods, save in so far as distinctions have been expressly introduced by a later law,c as we shall presently explain.

The assent of all nations and the tradition of all ages serve, too, as additional confirmation of this principle whose truth we have already demonstrated by logic, namely: that rights over spoil reside, not in the individuals who seize it, but in the state; or else in the prince who rules the state, or in the leader who directs the war, to the extent that such rights have been transmitted to the said prince or leader by the state. We know that, among the Hebrews,d spoil was brought to the leaders, and was not given over to the individuals who had seized it with their own hands, nor even exclusively to those who had engaged in actual combat; on the contrary, a part was assigned to the army as a whole, a part was given to the people, and yet another part was consecrated in accordance with divine command and accepted custom. Again, has it not been observed that the same practice was followed among the Greeks? Thus Homere wrote:

  • ἀλλὰ τὰ μὲν πολίων ἐξεπράθομεν, τὰ δἑδασται.
  • All things have been apportioned that we seized
  • In pillaging the towns. . . .
Edition: current; Page: [212]

According to the same poet,a Achilles spoke as follows of the cities he had captured:

  • τάων ἐκ πάσεων κειμήλια πολλὰ καὶ ἐσθλὰ
  • ἐξελόμην, καὶ πάντα φἑρων Ἀγαμἑμνονι δόσκον
  • Ἀτρείδῃ. ὁ δ’ ὄπισθε μἑνων παρὰ νηυσὶ θοῃ̑σι
  • δεξάμενος δὴ παυ̑ρα δασάσκετο, πολλὰ δ’ ἔχεσκε.
  • From all of these, much precious spoil we took
  • With our own hands; but I as victor brought
  • All things to Atreus’ royal son, who stayed
  • By his swift ships and gave a scanty share
  • To others, keeping for himself the most.

It was Achilles, too, who addressed these words to Agamemnon:b

  • οὐ γὰρ σοί ποτε ἰ̑σον ἔχω γἑρας, ὁππότ’ Ἀχαιοί
  • τρώων ἐκπἑρσωσ’ ἐῢ ναιόμενον πτολίεθρον·
  • For, if Greek valor sacks a Trojan hold,
  • My share of spoils will not be like to thine.

And it was likewise on behalf of the state that,

  • Phoenix and dread Ulysses, chosen guards,
  • Watched o’er the spoil: treasures from all of Troy,
  • Brought here from blazing shrines; altars of gods;
  • Vessels of solid gold, and raiment snatched
  • From vanquished foes—all these together heaped!cEdition: 1950; Page: [62]

Nor was this custom abandoned in later times: a point which I shall prove by citing only a few celebrated examples. Aristidesd guarded the spoils from Marathon. After the battle of Plataeae, the Greeks issued a proclamation prohibiting removal by private individualse of any part of the captured goods, which were distributed instead in accordance with Edition: current; Page: [213] the deserts of each national group. When Athens had been subdued, Lysandera handed over as public property everything that he had taken. If an example from Asiatic practice is sought, you will find that the Trojans were accustomed (so Virgilb observes) “to draw lots for the spoils.” The power of decision in such matters was vested in the commander. Otherwise Dolon would not have asked Hector for the horses of Achilles, nor would Hector have promised to comply with the request, an incident recorded by both Homerc and Euripides.d Furthermore, how much fell to the lot of Cyrus, when Asia was conquered, and how much to Alexander?e Shall we extend our inquiries to the customs of Africa and the Carthaginians? We know what was acquired by Carthage from the battle of Cannae, after Agrigentum and the other cities were captured.f

But the Romans are the most worthy of our attention, among all those peoples whose opinions are heeded in relation to the various branches of law and, most especially, in matters pertaining to the law of war. Nor am I by any means the firstg to declare that, among the Romans, every kind of spoil, including even movable possessions, was acquired not for the soldier who seized it, and not even for the commander in his own right, but for the Roman People.

This assertion apparently meets with opposition in the statement made by Celsus:h “And those enemy possessions which are found among us become, not public property, but the property of the persons who seize them.” However, aside from the fact that the entire law of which this statement forms a part, has been so wrenched from its context that one can scarcely ascertain its intended field of application, the words Edition: current; Page: [214] themselves certainly indicate that Celsus is speaking, not of enemy goods captured by force, such as we are discussing here, but rather of enemy goods (movables, I believe) which are caught in our own possession at the time when war breaks out. Things of this kind, since they were not acquired at public expense, evidently fall to the lot of the individuals who seize them, after the fashion of ownerless property, though not so much in accordance with the law of nations, as by Roman civil law. That is to say, although the actual title under which Celsus is cited (“Concerning the Acquisition of Property Ownership”)a pertainsEdition: 1950; Page: [63] properly to the law of nations, nevertheless, a great many items are included under this head which represent a departure from the universal law and which are based on statutes, or on custom, or on accepted opinion. For the title in question embraces both the varying pronouncements of the jurists and the collections of imperial ordinances.

As for that other maxim which has misled the legal commentators—namely, the doctrine that captured goods become the property of the captorsb—we have already made it quite clear that the said maxim should be understood as referring to the state.c Moreover (in my opinion, at least), no interpreter of Roman law could be superior to Dionysius of Halicarnassus;d and this most painstaking of writers on Roman history makes the following statement in regard to the laws governing prize and booty: τὰ ἐκ τω̑ν πολεμίων λάφυρα, ὅσον ἂν ἔμι̑ν ὑπάρχῃ τυχει̑ν δἰ ἀρετὴν, δημόσια εἰ̑ναι κελεύει ὁ νόμος, καὶ του̑το οὐχ ὅπως τις ἰδιώτης γίνεται κυρίος, ἀλλ’ οὔδε αὐτὸς ὁ τη̑ς δυνάμεως ἔγεμών. ὁ δὲ ταμίας αὐτὰ παραλαβὼν ἀπεμπολει̑ καὶ εἰς δημόσιον ἀναφἑρει. “The law ordains that all spoils whatsoever obtained from the enemy as a result of valor, shall be public property, in the sense that neither private individuals nor even the commander of the army himself may become the owners thereof. On the contrary, the quaestor receives Edition: current; Page: [215] such spoils, and returns to the public purse the proceeds derivedEdition: 1950; Page: [64]12 from their sale.” According to Dionysius, these were the words employed by the accusers of Coriolanus. In part, they are true; and in part, swollen into an expression of envy, they exceed the truth. It is true that the owner of the spoil is not the soldier nor the commander, but the Roman People; on the other hand, it is no less true that by Roman law the commander is the steward of the spoil and holds the supreme power of decision in regard to it. Lucius Aemilius is quoted by Livya as saying: “Captured, not surrendered, cities are plundered; and even in the case of captured cities, the power of decision rests with the commander, not with the soldiers.” Thus the commanders occasionally transferred this power, delegating it to others in order that envy might not be aroused (as Camillus,b for example, delegated it to the Senate), while on other occasions they retained it for themselves.

We find, moreover, that those who adopted the latter course used their power in diverse ways, according to the varying temper of the times, or their own devotion to fair fame, piety, or ambition.

Those who wished to be regarded as exceedingly virtuous did not touch the spoils, but ordered instead that the quaestor of the Roman People should take possession of that part in which money was included, while the rest should be sold at auction through the quaestor. The money received from such sales constituted what some writersc designate as manubiae. This money was subsequently transferred by the quaestor to the state treasury, although a public display preceded the transference in cases involving a triumphal celebration. Such was the course followed by Pompey, as described in this statement taken from the works of Velleius Edition: current; Page: [216] Paterculus:a “In accordance with Pompey’s custom, the money paid by Tigranes was delivered into the hands of the quaestor, and recorded in the public accounts.” Similar measures were adopted in connexion with the Parthian war by Marcus Tullius Cicero,b who says, in a letter addressed to Sallust: “As for my booty, no one except the city quaestors—in other words, the Roman People—has touched or shall touch a farthing from it.” This was the most usual practice under the old Republic, too, whose customs Plautusc had in mind, when he wrote:

  • Now to the quaestor all this spoil I’ll bear
  • Without delay. . . .

Again, Plautusd describes the captives thus:

  • Whom I bought of the quaestors from the spoils.

Moreover, the phrase, “sold under the slave’s chaplet,” refers to captives of this kind.Edition: 1950; Page: [64]

Some other commanders, however, were not in the habit of delivering the spoils to the quaestor. It was their custom to conduct the sales themselves and pay the proceeds into the public treasury, as Dionysius of Halicarnassus clearly implies in the passage following immediately after the one above cited from the accusation against Coriolanus.13Edition: 1950; Page: [64a] Similarly, we [read]14 that even in very ancient times King Tarquin [sent] booty and captives to Rome after routing the Sabines;e and also that, Edition: current; Page: [217] [because of] the impoverished condition of the treasury, the Consuls Romilius and Veturius sold the spoils taken from the Aequians, an action viewed with displeasure by the army.a

A special inquiry into the subject would be needed, however, before one could ascertain how much each general delivered to the treasury directly and how much through the quaestors, first, as a result of the victories in Italy, and subsequently, as a result of the African, Asiatic, Gallic, and Spanish triumphs; for there is no point that recurs more frequently in the pages of Roman history. Furthermore, it is evidentEdition: 1950; Page: [64] from those same historical records that the said generals were not necessarily obliged to follow either of the courses mentioned, as their accusers would seem to intimate. For spoil was sometimes offered to the gods, sometimes to persons who had fought in the war, and at other times to other recipients.

Spoil was offered to the gods either in its original form, as in the case of that dedicated by Romulusb to Jupiter Feretrius,15 or else through the money received from its sale, as when Tarquinius Superbus decided to build a temple consecrated to Jupiter on the Capitoline Hill, with the money obtained from the sale of the Pometian booty.c

The bestowal of captured goods upon soldiers was, in the eyes of the ancient Romans, an act of ambitious ostentation. For example, Sextus, the son of Tarquinius Superbus, was said to have lavished spoil upon the soldiery (not in Rome, to be sure, but while he was a fugitive in Gabii) in order that he might thus gain power for himself.d Appius Claudius,e speaking before the Senate, declared that largess of this kind was unusual, prodigal, unfair, and ill-advised.

Now, the spoils that fall to the soldiery are either given by a process of apportionment, or snatched up as plunder. Apportionment may take Edition: current; Page: [218] the form of payment of wages, or of reward for merit. Appius Claudiusa urged that the distribution should be made as payment of wages, if the money received from the spoils could not be allowed to lie in the treasury. The entire procedure involved in such apportionment has been explained by Polybius,b as follows: it was customary to send half the army, or less, during each day or each watch period, to collect the booty; and whatever the various individuals found would be gathered together and conveyed to the camp for equitable distribution by the tribunes, those persons also being summoned to receive their share who had stayed to guard the camp, or who had been absent because of ill health orEdition: 1950; Page: [65a]16 special duties assigned to them. On some occasions, it was not the actual spoil, but money in the place of spoil, that was given to the soldiers. This latter procedure was usually adopted in the case of triumphal celebrations. I find that the following proportionate system of distribution was in use:c a single share for the foot-soldier, a double share for the centurion, a triple share for the cavalryman; or, in some instances, a single share for the foot-soldier, and double for the cavalryman;d or again, in other instances, a single share for the foot-soldier, double for the centurion, and four shares for the tribune as well as for the cavalryman;e and also, a single share for [sailors who were] naval allies, double for pilots, and four shares for ship’s captains.f Account was frequentlyEdition: 1950; Page: [64] taken of special merit, however, as when Marcius, because of his valiant conduct, was presented by Postumius with a share of the booty acquired at Corioli.

Whatever the method of apportionment adopted, the supreme commander was permitted to receive ἐξαίρετον, a special honorary share for Edition: current; Page: [219] himself, of such worth as he might choose. Thus King Tullius [Tarquin?]17 chose for himself Ocrisia of Corniculum.a According to Dionysius of Halicarnassus,b Fabricius, in his speech before Pyrrhus, made this statement: ἐκείνων δορυκτήτων ἐξόν μοι λαβει̑ν ὁπόσα βουλοίμην; “It was permissible for me to take as much as I wished, from the spoils that had been seized in the war.” Isidorec alludes to that same privilege when he says, in his definition of “military law”:18 “[This phase of law] likewise [embraces] the disposition of spoils and a just apportionment thereof in accordance with the qualifications and exertions of the individuals involved, as well as the matter of the prince’s portion.” Tarquinius Superbus (so Livyd relates) wished not only to be enriched in his own person, but also to soften with spoils the spirit of the commonEdition: 1950; Page: [64a] people. Servilius,e in his speech on behalf of Lucius Paulus, declares that the latter could have made himself rich from the spoils available for distribution. There are some persons,f indeed, who prefer that the term Edition: current; Page: [220] manubiae should be employed to designate this portion pertaining to the supreme commander, rather than in the sense above defined.19

Nevertheless, the highest praise has been accorded to the abstinence of those leaders who either waived their own rights and refrained entirely from touching the spoils (the course followed by the aforementioned Fabricius, as well as by Scipio after the conquest of Carthagea), or else took only a small portion, as was done by Pompey, whom Cato (quoted in Lucan’s work) extols for having contributed [to the state] more than he retained.Edition: 1950; Page: [64]

In the process of apportionment, account was sometimes takenEdition: 1950; Page: [65] of absentees, in accordance with Hebrew custom. Fabius Ambustus ordered this to be done on the occasion of the capture of Anxur.b At other times, certain persons who had been present were omitted from the reckoning, as befell the army of Minucius under the dictatorship of Cincinnatus.c

It should also be noted that the right to distribute spoils which was invested under the old Republic in the commander-in-chief, was subsequently transferred to other officers. This fact is clearly indicated in a certain passage of the Justinian Code, d which exempts from the necessity of public registration the movable or automotive goods given to soldiers from captured enemy property, by the said officers, whether on the actual field of battle or wheresoever these soldiers may be found in residence.

[In general,] however, this practice of apportioning [spoils among the soldiers]20 rarely escaped criticism: not because anyone could say that Edition: current; Page: [221] such a course of conduct exceeded the authority of the supreme commander, but because it presented the appearance of an attempt to acquire private influence through the disposal of public property. Thus accusations were made against Servilius, [Marcius] Coriolanus, Camillus and others,a on the ground that they were bestowing largess from public sources upon their own friends and clients. Nevertheless, in some instances, donations of this kind sprang from the most equitable of motives, ἵνα οἱ συναράμενοι του̑ ἔργου τὸν τω̑ν πόνων καρπὸν κομισάμενοι προθύμως ἐπὶ τὰς ἄλλας στρατιὰς ἀπαντω̑σιν,b 21 “the intention being, that those who had lent themselves to the enterprise in question might be rendered all the more willing, after receiving the fruit of their labours, to engage in new expeditions.” Sometimes the soldiers were allowed to take booty by a process of unrestrained pillaging, after a battle or a siege, scattering for that purpose at a given signal. Such methods were rather rare in ancient times, but occasionally they were practised: by Lucius Valerius in the territory of the Aequians,c for example; by Quintus Fabius when the Volscians were routed and Ecetra was captured,d and quite frequently by other individuals of a later period. This custom, too, is condemned by some persons and defended by others. Those who condemn it maintain that hands greedy for plunder snatch away the rewards earned by valiant warriors, “since it usually comes to pass” (these are the words of Appius Claudius, as quoted by Livye) “that he who is less zealous seizes the spoils, whereas he who excels in valour is wont to seek the chief share of toil and danger.”22 In reply to this contention, Appius’ Edition: current; Page: [222] opponent tells us that,a “in every instance, whatever a man has taken from the enemy with his own hands and carried home with him, will be a source of greater satisfaction and rejoicing than any that he might derive from something many times more valuable, received through the decision of another.” An additional point to be considered, is the fact that the practice in question sometimes cannot be checked, or can be checked only by exciting the gravest ill will and indignation on the part of the soldiers. We find an early illustration of this difficulty23 in the storming of Cortuosa:b for the tribunes decided too late that the spoils from that city should become the property of the state, [and were unable to take them away from the soldiers for fear of offending the latter]. Another illustration may be drawn from a later period, when the camp of the Galatians was pillaged by the troops of Gaius Helvetius, against his will.c

As for my assertion that spoils, or the money derived therefrom, used to be given upon occasion to persons other than soldiers, such grants generally took the form of payment of exact compensation to persons who had furnished contributions for a war. But we should also note that provision was made for public games out of the proceeds fromEdition: 1950; Page: [65] the spoil, even in the early days when the kings ruled [Rome].d

Nor is it only where different wars are involved, that diverse methods of dealing with prize and booty have found favour. On the contrary, it has frequently happened that the spoils taken on a single occasion have been put to a number of uses, distinct from one another with respect both to apportionment and to the classification of the captured property itself. An example relative to apportionment may be drawn from the conduct of Camillus, who devoted a tenth part of the spoils to the fulfilment Edition: current; Page: [223] of his vow to Apollo,a in imitation of the Greek custom. [As for the question of classification,] the various kinds of spoil were grouped, as a rule, in the following manner: captured persons; herds and flocks, properly designated in Greek as λεία, [“pillageable property,” especially cattle as contrasted with human captives]; money, and, finally, other movable goods, whether valuable or of comparatively little worth. Examples [of varying procedure based upon this system of classification] are easily found in the records of every historical period. Quintus Fabius, after defeating the Volscians, ordered that the cattle and [other saleable] spoils should be sold through the quaestor, while he himself delivered to the public treasury the money that had been seized;b but that same Fabius, when the Volscians and Aequians had been completely subdued, gave the captives (with the exception of the Tusculans)c to the soldiery, and allowed human beings and cattle to be seized as booty in the territory of Ecetra. On the occasion of the capture of Antium, Lucius Cornelius handed over the gold, silver, and copper to the treasury,d sold the captives and various other spoils through the agency of the quaestor, and gave to the soldiers those articles which were in the form of food or clothing. Similar to this was the plan adopted by Cincinnatus,e when he took Corbio, a town of the Aequians; for he sent the more valuable portion of the booty to Rome and divided what was left among the different companies. Camillus, when the Faliscans and Capenates had been routed,f brought back the greater part of the spoils to the quaestor and granted a much smaller share to the soldiers. That same dictator, after the conquest of Veii, gave nothing into the possession of the state save the money from the sale of captives. When the Etruscans had been vanquished and the captives taken on that occasion had been sold, he repaid the matrons out of the proceeds for the gold that they had contributed; and he also set up in the Capitoline temple three golden libation saucers. Edition: current; Page: [224] Fabricius, after subduing the Lucanians, Bruttians, and Samnites,a enriched the soldiers, compensated the citizens for their contributions and turned four hundred talents in to the treasury. Quintus Fulviusb and Appius Claudius, on the occasion when Hanno’s camp was captured, sold and divided the spoils, bestowing rewards upon those whose services had been outstanding. When Lamia was taken, Acilius apportioned a part of the booty, and sold a part.c After the Galatians had been conquered and the arms of the enemy burned in accordance with a Roman superstition, Gnaeus Manlius ordered that all should join in bringing together the remainder of the spoils:d a part of what was thus collected (the part destined for the public treasury) he sold, and the rest he divided among the soldiers, taking care that the division should be as equitable as possible. When Perseus was defeated, Pauluse gave the spoils of the conquered army to the infantry, and those taken from the surrounding country-side to the cavalry. Subsequently, when the entire war had been brought to a conclusion and immediately after the triumphal procession, he handed over to the treasury the money of the fallen king.

In view of the facts above set forth, it is apparent that spoils of war were public property according to Roman law, and that persons in high command were allowed to apportion such spoils, subject always to the understanding that they would be held liable under the laws if it should be said that they had fraudulently turned to their own advantage the authority with which they had been entrusted. This interpretation is clearly confirmed by the case of Lucius Scipio, who was tried forEdition: 1950; Page: [66] “peculation,” and convicted (so Valerius Maximusf tells us) of having received in silver four hundred and eighty pounds more than he turned in to the treasury. Similar confirmation is afforded by the above-mentioned instances in which certain persons were charged with distribution Edition: current; Page: [225] of largess for ambitious ends. According to Aulus Gellius,a Marcus Cato, in his oration On Division of Spoils among Soldiers, also complained vehemently and with eloquence of unpunished “peculation” and lawlessness. From that oration, Gelliusb quotes the following statement: “Those who are guilty of private thefts pass their lives in fetters and shackles; public thieves pass theirs garbed in purple and gold.” On another occasion, the same orator spoke of himself as marvelling “that any person should dare to set up among his household furnishings, statues which had been taken in war.” Ciceroc likewise added fuel to the ill will aroused by Verres’ peculation, when he charged that Verres had carried off a statue, and one, moreover, which had been taken from the spoils of the enemy.

Soldiers who had failed to turn in their booty were also held for peculation, in precisely the same manner as their commanders. For all alike were bound (as Polybiusd testifies) by an oath to the following effect: περὶ του̑ μηδἑνα νοσφίζεσθαι μηδὲν τω̑ν ἐκ τη̑ς διαρπαγη̑ς, ἀλλὰ τηρει̑ν τὴν πίστιν κατὰ τὸν ὅρκον; “that no one would purloin any part of the spoils, but each would keep faith in scrupulous observance of the oath.” Perhaps we have here the source of the formal oath recorded by Gellius,e whereby soldiers are prohibited, while within the territory occupied by the army or lying within a range of ten miles from the army, from carrying off anything worth more than one sesterce; and whereby, in the event that they do carry off any such article, they are commanded to bring it to the consul or make public confession regarding the matter within the next three days.24

The foregoing formula enables us to understand the words of Modestinus:f “He who has pilfered spoils from the enemy, is liable to a Edition: current; Page: [226] charge of peculation.” Even from the evidence contained in that one statement, our teachers of law should have deduced the tenet that spoils are essentially public property; for peculation can occur only in connexion with public or sacred or religious matters.a Thus the Romans were in complete agreement with the Greeks and with other peoples, in regard to this point. Therefore, since all nations agree in classifying theEdition: 1950; Page: [67]25 seizure of spoils under the head of public rather than private rights, that very concept would deserve recognition as an accepted legal principle even if its validity had not been demonstrated on the basis of natural reason. For it has been established by the unanimous opinion of the juristsb that, with respect to those things which have not yet been acquired in the name of any owner but which are capable of being acquired by any person whatsoever, the state possesses unrestricted power, so that it may award the things in question to whomsoever it deems most fitting, or may even attach those things to itself. For the right of acquisition involved in such cases is in a sense a common right, and rights held in common pertain to the state. Accordingly, we find that in many localities the rights over fowling, fishing, hunting, treasure troves, abandoned possessions and similar matters have been vested in the state and transferred by the latter to its ruler.Conclusion IX, Article II, Part I Therefore, in an absolute sense, the state that undertakes a public war acquires the spoils derived therefrom, up to the point where satisfaction has been obtained for the state’s own rights.

But it is furthermore permissible for the state, no less than for private citizens, to transfer such captured property, whether before or after acquisition. For example, transfer takes place after acquisition when spoils are awarded by the quaestor to a purchaser; or when they are bestowed upon someone as a gift, as they were bestowed upon the priests by David, upon the soldiers by Caesar during his dictatorship, or (a frequent occurrence) upon some general by the state in recognition of valour. Thus lands captured from the enemy were allotted to the veterans through an Edition: current; Page: [227] ordinance of Romulus,a and this same practice was followed in a later age over a very long period. Before acquisition, the transfer may be made either to a specified or to an unspecified person. For example, it would have been made to a specified person if anyone had purchased the Roman shops from Hannibal [in anticipation of their acquisition by him], as Dolon was promised the horses of Achilles [in anticipation of a Trojan victory]. On the other hand, the fact that spoil may rightfully be donated to an unspecified person who is nevertheless destined to become a specific individual, is evidenced by the custom of the consulsb which consisted in flinging forth presents to be acquired by any person who might seize them, even though the consuls themselves did not know what the various individuals would receive, just as the master of a feast prepares food for the guests [without knowing what portion will be consumed by each guest].Conclusion IX, Article II, Part II Hence we arrive at the following conclusion: either the state becomes the owner of the spoils, or he to whom the state has transferred acquisition of the spoils, becomes the owner.

The latter effect may be produced in either of two ways: through a special concession, or through a permanent legal statute. For it cannot be doubted that the laws create ownership. The said effect arose from a special grant, for instance, whenever men scattered at a given signalEdition: 1950; Page: [68] to engage in plunder; but a similar result may arise from a legal statute. Nor do these two methods differ in any respect other than the fact that legal precepts are governed by a certain abiding principle,c that is to say, the principle of equity.

New explanationEquity consists in striking a balance between gains and losses. But there are losses of more than one kind, since some befall persons who are unwilling, while others befall persons who are willing. Loss of possessions that have been seized by enemies is suffered involuntarily. We act voluntarily when we give of our labour or riches.

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Now, it is an established fact that he who employs another to discharge a mandate is responsible to the mandatary for any subsequent loss that occurs not by mere chance but in consequence of the mandate.a As regards expenses incurred, there has never been any doubt but that these are recoverable through a judgement based upon the existence of a mandate. In so far as concerns reward for labour expended, it is true that such a reward cannot be exacted under Roman lawb unless an agreement has been concluded to this effect; but it is owed, none the less, under that law of naturec which imposes upon us the obligation of doing good, in our turn, to those who are our benefactors. This assertion is confirmed by the fact that, in many cases where civil action does not lie, mandators are nevertheless compelled, as if by natural equity operating beyond ordinary bounds, to give recompense for work performed. This is the basis of the paymentsd designated as “factorages,” ἑρμηνευτικά [interpreters’ fees], μήνυτρα [rewards for information], φιλάνθρωπα [gratuities], and by various names. Hence we infer that in other cases, too, it is not an appropriate principle of the law of nations that is lacking for the exaction of compensation, but civil authorization for that purpose. Our inference applies, for example, to those contracts which include no stipulation [providing for recompense] under the law of the Quirites;26 to sales transacted on a basis of good faith with respect to payment, in Plato’se opinion; to unproven thefts, by Spartan custom, and to loans and deposits, among the East Indians of earlier times.f Seneca says:g “There are many things which do not come under the laws, Edition: current; Page: [229] nor do they admit of action in court; and with respect to these things, human custom, which is more forceful than any law, shows us the way.” Certainly it is not to be supposed that any person will leave his own affairs in large part neglected while he takes time for the affairs of another entirely gratis, since most men make their living by their dailyEdition: 1950; Page: [68a] labour.a Thus Senecab declares that we owe physicians and teachers a price for their labours, that is to say, compensation for the trouble they take, because they devote their efforts to serving us and put aside their own interests in order to find time for ours. According to Quintilian,c similar repayment is both just and necessary in the case of orators, since the actual labour required in their profession and the fact that all their time is given to the affairs of others, are factors which cut them off from every additional means of making money. Nor is the comparisonEdition: 1950; Page: [68] of what is done and what is given, the one with the other, a concept foreign to law.

Accordingly, since friendships rest upon mutual benefits, he who looks after another person’s interests binds that other person to himself, under the precepts of nature, by an obligation to make repayment in excess of mere indemnification.d This was one reason that moved the Romans to restore goods captured from the enemy to the possession of allies who were the former owners and who recognized such goods as their own;e and it was also a reason for the admission of those same allies (stipulated, for example, in the treaty with the inhabitants of Latium) to a share of the spoils that would equal the Roman share.f Moreover, a similar interpretation must be given to the words of Ambroseg in the passage above cited,27 where he says: “To be sure, Abraham declared that a part of the spoil was to be given as a reward for labour expended, to Edition: current; Page: [230] those who had accompanied and aided him, possibly in the capacity of allies.” This same principle—namely, that allies and subjects should have a share in the spoils—was in force among God’s chosen people at all times, that is to say, from the age of Abraham to the period covered in the Books of Maccabees.a

The point thus raised calls for more detailed consideration, particularly in relation to subjects. In this connexion, we maintain that the following fact must be acknowledged: both allies and subjects place the state undertaking the war under obligation to them,b not only forEdition: 1950; Page: [68] losses and expenses incurred, but also for effort expended. For even though the individual subjects are in duty bound to serve the public weal, nevertheless, the principle of proportional justicec decrees that whatever any person expends for the community—whether by donation or by active effort—in excess of his individual obligation, may be reclaimed from the other members of the community: a precept which holds good (so we find) in all communal matters.d Nevertheless, subjects differ from alliese in one respect, as follows: allies cannot diminish their own rights save through pacts entered into by themselves, whereas the rights of subjects are frequently altered by the laws of the state,f since it has been agreed once for all, and confirmed by experience, that private interests should be subordinated to public interests. For this reason, it often happens that subjects do not recover compensation from the state for losses suffered in war. Let us draw some examples illustrating this point from the field of Roman law.

Originally, in the light of the established principle that things captured in war by either belligerent should fall to the lot of the captors,g Edition: current; Page: [231] it was generally recognized that a Roman citizen’s property, after being seized by the enemy, became the property of the latter; and that it would return ipso iure, if recovered from the said enemy, not to the citizen but to the state, owing undoubtedly to its inclusion among the goods of one who was in debt to the state. Thus the Roman People were placed under an apparent obligation to indemnify the despoiled citizen for his loss; but this obligation was annulled on some occasions in order to prevent the public treasury from being depleted (especially in time of war) by excessive disbursements, and on other occasions, in order that no one might be enticed by this facile means of recovery into defending his property less vigorously, thereby increasing the resources of the enemy.

Before long, special cases presented themselves in which it seemed more equitable and more expedient that the state should cede its own rights to the extent of repairing losses on the part of citizens without inflicting loss upon itself, or in other words, to the extent of permitting goods recovered from the enemy to return to their former owners. Here we have the origin of the right of postliminium,The right of postliminium a well-known institution of Roman law, although it was not clearly understood by the earliest interpreters. Let us pause to give this concept of postliminium such attention as will suffice for our discussion of spoils. For a disquisition on the subject of postliminium among remote nations, and on human beings who either return or are recaptured in warfare, would beEdition: 1950; Page: [69] tedious and foreign to our purpose.

New explanationThe Romans maintained that, by postliminium, lands reverted to the original owners.a Indeed, some agreement regarding indemnification was necessary in order to encourage men to hold and cultivate their estates, since military operations could not be sustained without natural produce, and since a great many persons would be impelled by threat of danger to abandon their agricultural labours, especially if they were to be deprived of all hope of recovering their estates in the future, after being driven out not in consequence of their own negligence but by the superior force of the enemy. For that is the usual cause, where lands are Edition: current; Page: [232] involved. A different development is observed in connexion with movable property,a owing not only to the difficulty of conducting investigations concerning such property, but also to the fact that in unsettled times movable possessions are burdensome rather than useful and sometimes breed timidity and an unwarlike spirit, so that they were designated by those same Romans, not inappropriately, as impedimenta, [i.e. impediments, or baggage]. Nevertheless, it was necessary to make an exception regarding movables useful in warfare,b such as warships and transports (but not fishing-smacks and pleasure-craft), stallions and mares (but only those broken to the bit, not all stallions and mares), and pack-mules, also.c For nothing is more advantageous in warfare than to have close at hand an abundant supply of those articles which the sudden exigencies of war often require. Therefore, it was advisable that the citizens be encouraged to make ready such a supply, and all the more so because things of this kind are frequently lost through no one’s fault, as Marcellusd observes in regard to horses. On the other hand, it is equally easy to understand why things which could not be lost without shame, such as the arms of a soldier, were properly excluded from the class of movables subject to postliminium.e Owing, moreover, to the fact that in the process of commercial exchange, articles which were classified as subject to that right frequently fell into the hands not of their former owners but of persons attached to the same side,f the resultant question of “onerous cause,” as we term it—that is to say, the question of an equitable settlement between the former owner and the purchaser—had to be settled by providing that the said owner might recover his property by offering to reimburse the purchaser.

Nowadays, of course, not all of these principles are universally observed in precise accordance with the forms established in Roman law. Edition: current; Page: [233] To mention one example, in most regions, ships are not subject to post-liminium, since they revert to their former owners only if the vessels have been recovered immediately, or else prior to their removal into the locality occupied by the enemy, and always after a fee has been tendered to the persons who recaptured them. Thus there is now no difference at all, [in most localities,] between the law regarding ships and the law regarding merchandise, an assertion which may be confirmed by consulting the French and Italian maritime regulations.a

To be sure, the above-mentioned remedies were established only with a view to their application in rem, so to speak [i.e. to the particular object lost and recaptured]. For it was not provided by Roman law that one should furnish reparations from some other source for losses connected with possessions not restored to one’s own side; and the same statement holds good with respect to the present age, save for those occasional extraordinary instances in which certain portions of the spoil yet to be taken are assigned to persons who have suffered loss, and which are in a sense instances of reprisal in the very course of warfare.

On the other hand, rewards for military services cannot be paidEdition: 1950; Page: [69] from any other source more expediently than from spoils. For as a result of this method of payment the state is spared all expense, and at the same time the enemy becomes poorer, because soldiers are more eager for every gain if they know that they are making conquests for themselves, also. The spoils are not all allotted in this manner, however, since such an allotment would be excessive; on the contrary, only a specific kind or portion is so assigned, and this is done in accordance with the rule that each individual shall become the owner of that which he himself has taken from the enemy. Thus the uncertain perils of war find compensation in a reward that is likewise uncertain.b

Whatever falls to the lot of individuals in consequence of such lawful assignments is called praeda [private spoils] in a strict sense,Praeda in the strict sense of the term and with a special significance attached to a term which in other contexts has a general Edition: current; Page: [234] connotation. Varroa believes that this term may be traced to a form of manu pario, [denoting acquisition by force,] but in my opinion it was more probably derived from [a form of] praehendendus [to be seized]29 with an elision of the harsher sounds. Thus the expressions publicari, [to be made public property] and in praeda esse [to be a part of the private spoils], are mutually opposed.b

Now, different states have established different practices in this connexion.

It is generally agreed that lands captured from the enemy are not a part of the private spoils but become, instead, public property.c The opposite view seems to prevail in regard to movable and automotive things, for the reason that it is too difficult to recover possession of such things from the individuals holding them.

New explanationAccordingly, the principle laid down by the interpreters of civil and pontifical law as well as by some theologiansd—namely, that movable articles taken from the enemy become the property of the individuals who seize them—is more pertinent to the present context than to our earlier discussion. For this principle proceeds, not from what we have called the primary law of nations, but rather from positive law, which is made up in large measure of customs. Moreover, the said principle is based, not upon a unanimous agreement that gives it binding force over the various states, but rather from a chance accord, so to speak, which individual Edition: current; Page: [235] peoples are free to repudiatea whenever such a step seems advisable. Furthermore, even in cases where the principle is observed, acquisition takes place not directly, but by a process of fictitious delivery.

Nor should this criterion be applied indiscriminately. Spoils are seized either during a raid or in a pitched battle. In referring to these two alternatives,Correría respectively, Italian legal authorities speak of a correría [foray],Bottino and of bottino [plunder].b

I am of the opinion that movables seized in the course of a raid—that is to say, not by the common valour of the whole army, butEdition: 1950; Page: [70] by a marauding band—were granted to the individuals who seized them, save in those instances where it is clear that some other action was taken. For the infliction of losses upon the enemy is practically the only purpose of such raids, and besides, any investigation in these circumstances would be difficult. We see, then, that even under Roman law, spoils taken from the enemy in combats between individuals became the property of that individual who was the victor.

But what conclusion shall we adopt in regard to formal battles and the capture of cities by assault? Goods taken from the conquered after the victory has been won in such cases would not seem to fall under the head of “military spoils”c [i.e. those assigned to individual soldiers]. The Greeks, when they wished to draw a distinction, referred to these articles as σκυ̑λα [spoils stripped from the enemy]. On the other hand, I find that it is the custom of a great many nations to allot to individuals the goods wrested from the foe in the heat of battle or during assault by storm, and designated by the Greeks as λάθυρα [spoils seized by violence]: in other words, goods torn away while

  • The fury of the unsheathed sword cannot
  • With ease be tempered or restrained. . . .
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Apparently, however, an exception must be made of things which were formerly public rather than private enemy property. Certainly we know that when the Macedonians burst into the camp of Darius after their victory by the river Pyramus, they snatched away a vast quantity of gold and silver, and left only the tent of the king untouched, “so that the victor” (these are the words of Curtiusa) “might be received in the tent of the vanquished king, in accordance with established custom.” At Arbela there were even persons who accused certain soldiers of having conspired, in defiance of custom, to appropriate all the spoils for themselves, leaving nothing to be brought to the general’s tent.b We note, too, that there existed among the Hebrews a practice similar to the one just mentioned: the placing of the vanquished king’s crown upon the head of the victorious king.c Again, after the conquest of the Hungarians by Charlemagne, private riches fell to the lot of the soldiers, and royal riches to the public treasury. Under the old Roman régime, however, it was not the custom to abandon the spoils to the soldiery even when a city had been taken by storm, a point very clearly brought out in the words of Lucius Aemilius as recorded by Livy and quoted by us in an earlier part of this chapter.d Nevertheless, I do not question the fact that the practice, already begun by the generals as a bestowal of favours, was converted into custom30 through the licence characteristic of civil wars, which is more indulgent to the soldiers than to their leaders. Consider, Edition: current; Page: [237] for example, the first step taken by Caesar after the battle of Pharsalia, when he handed over Pompey’s camp to be plundered by the soldiers, and added:

  • Reward must yet be given for our wounds.
  • On me it rests to point out this reward;
  • I shall not say “to give” it, for each man
  • Will give it to himself. . . .a

In the course of another civil war, the Flavian troops, who had been led to Cremona, conceived the desire to take that rich settlement by assault, despite the fact that night was falling; for the darkness would afford greater licence for plundering, and they feared that otherwise the wealth of the inhabitants would find its way into the purses of the commanders and lieutenants. It is in connexion with this incident that Tacitusb records the famous observation that, “the booty from a city taken by storm falls to the soldiery, whereas the booty from a surrendered city falls to the officers.” The custom defined in this comment graduallyEdition: 1950; Page: [70] passed into law. Undoubtedly the transition was motivated by a justifiable fear that soldiers, if they should be denied the right to receive spoils after the battle, might disregard the enemy and burden themselves with booty in the midst of the struggle, a form of avarice which in itself alone has sufficed on many occasions to stand in the way of victory. Thus Suetonius,c during the conflict with the Britons, exhorted his men to devote themselves steadfastly to the work of slaughter, unmindful of booty, but appended to this admonition the promise that everything would be given over to them as soon as the victory was won. Other passages of similar import may be found, scattered about in various contexts. According to Procopius,d when certain soldiers were claiming for themselves the fields taken from the Vandals, Solomon, the commander of the imperial bodyguard, replied to them by drawing a distinction between Edition: current; Page: [238] real and movable property. He explained that the latter was conceded to the soldiery, whereas the former was retained by the state, which had nurtured the soldiers and bestowed upon them that title and honourable position, not to the end that they themselves might possess the estates which they had taken from the barbarian insurgents against the majesty of Rome, but rather in order that these estates might be gathered into the public treasury, whence means of subsistence would be derived for those same soldiers and for other persons, too, as the need arose. Among the statements made by Solomon, the following words may be quoted:a ὡς τὰ μὲν ἀνδράποδα καὶ τὰ ἄλλα πάντα χρήματα τοι̑ς στρατιώταις ἐς λάφυρα ἰἑναι οὐκ ἀπεικὸς εἰ̑ναι· γη̑ν μἑντοι αὐτὴν βασιλει̑ τε καὶ τῃ̑ ῥωμαίων ἀρχῃ̑ προσήκειν· “Indeed, it does not seem at all unreasonable that the captives and other [movable] goods should be given as booty to the soldiers; but the land itself belongs to the ruler and empire of the Romans.” The belief that this passage points to the existence of a certain universal law to the same effect, is borne out by the very fact (to which we have already alluded) that it was not at all an unheard-of occurrence for lands, also, to be allotted to soldiers, but as an exceptional measure.

Furthermore, all of the concessions in question may be made even when definite compensation has been fixed for the soldier’s labour, as if to indicate by means of such concessions that the spoils are an addition to his regular pay, or that he is paid less in cash precisely because of the profit to be derived from the spoils. For, in almost all parts of the world, soldiers’ wages are so niggardly that it would be difficult to find anyone attracted to the military mode of life if that hope of extra gain were not offered as an inducement. As matters stand, this one conviction sustains the soldier in his exertions, namely, the assurance that

  • . . . in one short hour,
  • Comes speedy death, or joyous victory.b
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At the present day, indeed, a part of the spoils is everywhere given to the fighting man who makes the seizure, while a part reverts to the state or is conferred by a grant from the latter upon the leaders in the war, whatsoever their rank, as a reward for their labours. This fact is stated in the laws of all nations, in connexion with both maritime andEdition: 1950; Page: [71] terrestrial warfare.a For example, according to the Spanish Constitutions [or Royal Ordinances],b sometimes a fifth part of the booty that has fallen into the hands of the soldier, sometimes a third part, and again, at other times, a half, is owed to the king; and a seventh, or in some instances a tenth, is owed to the leader of the army. In certain cases, it is not merely a fraction of the spoils, but all spoil pertaining to a given class, that is withdrawn: thus, by the aforesaid Spanish laws,c warships become the property of the sovereign.

The practice of estimating effort expended and peril undergone, when spoils are apportioned, is matched by the equally or even more justifiable practice of taking into account the expense incurred, whenever a private individual has made expenditures for a public war; and the debt owed by the state for such expenditures cannot be discharged more suitably than by payment out of the spoils. According to Italian custom,d when an enemy ship has been captured, one third of the prize falls to the master of the victorious ship, another third to those persons whose goods were on the latter vessel, and yet another third to the men who participated in the battle: that is to say, compensation is given in the first instance for the expense incurred, in the second instance for the risk run, and in the third instance for the labour performed. In regions outside of Italy, moreover, it is an accepted custom that he who has lent a horse to a soldier for a given expedition shall share the booty with that soldier.e Among the Spaniards,f whatever is acquired in a naval battle becomes Edition: current; Page: [240] the property of the king, provided that the latter has fully outfitted the ships and supplied the soldiers and sailors with provisions; so that, in such cases, no part of the prize is allotted to the admiral in command. On the other hand, in cases where a ship has not been equipped at royal expense, the victors divide among themselves all that remains after the king and the admiral have been presented with their respective portions. If, then, a given person furnishes the labour for a public war (whether indirectly or through the agency of others), if he makes expenditures from his own resources, if he takes upon himself all the losses and risks, and if he does these things without having been granted any payment from the public purse, that person (according to the unvarying and commonly accepted opinion of all the doctors of law),a acquires for himself whatever is taken from the enemy, and acquires it, moreover, in its entirety. In short, since it is unjust (as Paulb declares in his First Epistle to the Corinthians) στρατεύεσθαί τινα ἰδίοις ὀψωνίοις, in other words, that any person should wage war “at his own charges” (or, to follow the interpretation of [St. Ephraem] the Syrian31 “at his own expense,” that is to say, without hope of compensation, an implication clearly brought out by Paul’s illustrative reference to the planter of a vineyard and the feeder of a flock), and since, conversely, it is consistent with natural equity that he who suffers the disadvantageous consequences of any action shall also enjoy its advantageous consequences in accordance with aEdition: 1950; Page: [71] tacit agreement, such as that which exists in connexion with a pledge of antichresis, it obviously follows that the state, content to have brought misfortune upon the enemy without cost to itself, will yield its rights over enemy property in favour of the person who for his part took upon Edition: current; Page: [241] his own shoulders the entire burden for which the state itself should have made provision.

Now, it is unquestionably true, as our legal interpretersa maintain, that the common law of war accepted by the majority of nations ought always to be observed, unless some different course of action has been specifically laid down by statute or by pact. For what obstacle precludes the existence of just and lawful pacts in regard to spoil as well as in regard to other matters?b Thus the state has the power to take for itself or to allot to others by way of recompense, a certain portion even of those spoils which are captured at private expense and with no payment for soldiers involved, as if a kind of partnership had been establishedc with respect to the said spoilsd in that the state furnishes the cause while the subject [who bears the expense] furnishes all the other elements required. According to the laws of France, in cases of naval warfare a tenth part is taken out and awarded to the admiral in command, while the remainder is left in the possession of those who bear the expenses; and for this particular regulation there is an additional reason,e namely that it is of the greatest importance to the state that as many persons as possible be found to defend the public cause and fit out ships for use against the enemy, with their own resources. Among the Dutch,f a fifth part is owed to the state and a tenth part to the admiral, except that nowadays this rule of apportionment holds good only within the circle of the summer solstice, whereas beyond that circle the proportion specified is a thirtieth.

In preceding passages of the present chapter,g we have shown that acquisition may be effected either directly or through agents, and we have applied this principle both to private and to public warfare. In support Edition: current; Page: [242] of our thesis, moreover, we have advanced irrefutable arguments that lead to the following conclusion: if any private individual shall conduct a public war at his own expense, to his own loss, and at the risk of damage to his personal interests,32 while nevertheless employing for that enterprise the labour of other persons whom he has hired either at a fixed price or by entering into an agreement regarding a portion of the spoils which properly belong to him, the said individual will acquire immediately the goods captured from the enemy through the efforts of those hired assistants. For he has possession through the agents whom he was able to substitute for himself, to be sure, in the actual waging of the war;a and cause is supplied to him by the state. In most cases, of course, it is customary to grant certain comparatively trifling articles of spoil to agents: for example, in maritime warfare, to the sailors. The Constitutions [or Imperial Ordinances] of Franceb refer to this procedure as despouille [spoliation] or pillage [pillage],Pillage and make it applicable to clothing as well as to gold and silver of a value not exceeding ten crowns. In some instances, a larger amount is given as a result of custom or on the basis of an agreement with the persons actually engaged in battle.

CorollaryTherefore, in accordance with an absolutely indisputable right, to him who wages a public war at his own expense, to his own loss, and [at the] risk [of damage to his personal interests],33 through the efforts of his own agents, and in the absence of any agreement regarding recompense, all the spoil so taken properly pertains, save in so far as some part thereof is excepted in consequence of a special law or agreement.

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CHAPTER XI1

[Here follows the historical account.]Edition: 1950; Page: [72]

Part I.: A General Discussion, Which Deals with the Following Items:

Article I. The causes of the war waged by the Dutch against Alba, the Spaniards, Philip, &c.

Article II. The courtesies extended by the Dutch in the course of that war.

Article III. The causes of the war waged by the Dutch against the Portuguese.

Article IV. The courtesies extended by the Dutch to the Portuguese.

Article V. The injuries inflicted by the Portuguese upon the Dutch, throughout Portugal.

Article VI. The injuries inflicted by the Portuguese upon the Dutch, in other, widely distributed localities.

Article VII. The injuries inflicted by the Portuguese upon the Dutch, on the pretext that the latter were entering, for commercial purposes, regions subject to the former.

Article VIII. The same pretext, with special reference to the East Indies.

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Part II.: A Discussion of Events in the East Indies, Which Deals with the Following Items:

Article I. False accusations made by the Portuguese against the Dutch.

Article II. Enemies suborned by the Portuguese against the Dutch.

Article III. Fraudulent and perfidious conduct of the Portuguese toward the Dutch.

Article IV. The war was first undertaken by the Portuguese against the Dutch.

Article V. The war waged by the Portuguese against the friends of the Dutch.

Part I, Article INow that we have set forth in general terms the principles of law involved, let us turn our attention to the facts of the particular case under discussion in order to facilitate consideration of the following questions: Are these facts in conformity with the said legal principles? And, are all the factors required by those principles present in the case?

We do not feel, however, that it is necessary to give an account of every event leading up in one way or another to the seizure in question. That would be an endless task, suitable only in connexion with a strictly historical work. Besides, who is ignorant of the fact that the Dutch have now been at war with the Spanish nation for thirty long years, and more?In the year 1567 And who does not know that this conflict was begun when Fernando, Duke of Alba, penetrated with a Spanish army into the then peaceful territory of the Low Countries,2 after he had been sent out as governor Edition: current; Page: [245] of that region by Philip the Second, King of the Spanish realms and sovereign of the said countries?

Relying confidently upon his armed force, and with no pretext other than the occurrence, prior to his arrival, of a disturbance connected with religious questions (a disturbance for which only a very small number of individuals were to blame, as is acknowledged even by those persons who wish to establish the fact that guilt did exist, since the incident took place against the will of the majority of both magistrates and citizens), Alba proceeded to alter the laws, judicial provisions, and system of taxation. He took these measures in contravention of the statutes which the various princes had sworn to observe and which, by striking a rare balance between princely power and liberty, were preserving both the due measure of imperial sovereignty and the foundations of the local state.

The exigencies created by Alba’s conduct drove private citizens, first of all, to set in motion a force whereby they might repel force: for their bodies were being dragged away to punishment, their goods were being seized either for the imperial treasury or for payment of tribute in defiance of the domestic laws above mentioned, and they were cut off from every other means of defence. Next, separate municipalities adopted a similar course of action. Shortly thereafter, the States Assembly3 of Holland (which has been a true commonwealth for all of seven centuries) added its authority to the movement. For it is, of course, a well-known fact that this body was set up in addition to the princes andEdition: 1950; Page: [72] governing officials, as a guardian of the rights of the people. Gathered in public assembly,In the year 1572 it decreed war against Alba and the Spaniards; and this war, in which other peoples of the Low Countries joined, was continued against the successors of Alba, also, since those successors demanded Edition: current; Page: [246] all that Alba had demanded and penalties for the defensive activities, as well.

It would be too long a story, if we attempted to tell what quantities of blood have been shed from that time on; what plundering on the part of the Spaniards and what expenditures on the opposite side have drained the resources of the Low Countries (expenses so heavy, in fact, that an accurate reckoning would show them to be in excess of those borne by any other people in any age); or, finally, what perfidy characterized the Spaniards whether in the conduct of war or in the simulation of peace. These things can be inferred well enough from the following facts: the Spanish designate as “heretics” all persons who dissent from the See of Rome in regard to any interpretation of Holy Writ or any accepted religious rite, and as “rebels” all persons whatsoever not of the opinion that princes should invariably and without exception be obeyed; and at the same time, rejecting every argument in favour of conciliation or clemency, they openly declare that there is no fellowship of good faitha to be observed with heretics or rebels.

King Philip not only failed to defend the peoples commended to his care and refrained from punishing the authors of such injuries in accordance with their deserts, after they returned to Spain, but even rewarded the latter with honours while exerting all the strength at his disposal to crush the former, so that no one could doubt (nor did he himself dissemble the fact) that the war against the Dutch was being waged at his command, under his auspices, and at his expense, wherefore it was evident that he sought to obtain by force of arms a power greater than was legitimate. In view of all these circumstances, that last weapon of downtrodden liberty, expressly provided by the laws of the Low Countries for the purpose of escape from domestic snares, was finally and of necessity put to use.In the year 1581 Thus Philip the Second was deprived of his princely power over the countries in question, by a decree of the States-General representative of the more powerful part of that region and comprising peoples excelled by none in their unswerving obedience to princes Edition: current; Page: [247] throughout the whole period during which it was possible for them to preserve that attitude, or in other words, for many centuries past. This was the beginning of the movement in which oaths were taken in support of the sovereignty of the States-General as against Philip.

In consequence of the fact that the latter not only pursued his warlike course far more vehemently and bitterly than ever, but also sentEdition: 1950; Page: [73] hired assassins (mingled with the armed forces of the state) against the champions of the laws, the defensive struggle undertaken against him has been carried forward into present times, owing to a justifiable fear of a false peace, against Philip the Third, King of the Spanish realms as son and successor of Philip the Second, and also against Isabella, sister of the present Spanish king, together with her husband, Albert of Austria (for power over the Low Countries was transferred to these two, apparently through a solemn pledge), as well as against all those who are partisans either of Philip or of Isabella and Albert.

Article IIThroughout this war, the singularly humane qualities of the Dutch, like their extraordinary fortitude, have been apparent at all times. For, with the most long-suffering patience, they have been content to ward off the violence directed against their very existence and to restore an equal degree of freedom to neighbouring cities, without undertaking any graver action against the enemy. They have also been exceedingly scrupulous in the observance of all war-time commercial rights (if this is an acceptable term) that can exist without endangering the state. Moreover, if at times the implacable ferocity of the enemy compelled the Dutch themselves to be rather severe, in defiance of their natural inclinations, they nevertheless showed themselves ready to make concessions equal to or even surpassing those made by the enemy. The latter, indeed, have invariably set an example of perfidy and cruelty; the Dutch, an example of clemency and good faith.

To mention one particular point among others, everyone knows that the situation of the Dutch coast and the assiduity of the natives are such that merchandise is very conveniently transported from all parts of the said coast to all other localities whatsoever, since a natural bent (so to Edition: current; Page: [248] speak) for maritime enterprise characterizes our people, who regard it as the most agreeable of all occupations to aid humanity, while finding a ready means of self-support, through an international exchange of benefits from which no one suffers loss. Not even wars, though they have been waged spiritedly enough in other respects, have destroyed this notably peaceable characteristic. Up to the present time, the conduct of business has evidently been the most important consideration for the Dutch; armed force has been employed only to the extent demanded by necessity. Moreover, pursuing a course similar to that followed in earlier times (so we read)a by Timotheus of Athens when he was waging war against the Samians, the Dutch have aided with their supplies not only those persons who were numbered among their adversaries in the Low Countries, but also the very authors of the war, the Spaniards, in their own land of Spain, a practice which was advantageous to our merchants and which at the same time served as a means of saving the Spaniards, on various occasions, from grievous famine. For there is no prohibition against conducting armed conflicts in such a way that certain humane obligations are respected, in accordance with the examples set also in an earlier age by the Corinthians and by the inhabitants of Megara.Edition: 1950; Page: [73] Thus Spanish writers,b too, have stated that business transactions may be carried on even with enemies, that is to say, on the basis of a compact or a tacit agreement.

Article III In the year 1580Shortly before the proclamation that deprived Philip the Second of his sovereignty over the Low Countries, he was made King of Lusitania, otherwise known as Portugal. By what right, or on what unjust grounds, this was done is a question of no importance to us; for, once he had been allowed to ascend the throne, the whole Portuguese state acknowledged him as its ruler, just as it now also acknowledges the sovereignty of his son Philip and renders to the latter the honour, tribute, and obedience customarily rendered to kings. From that time forth, the Portuguese began Edition: current; Page: [249] to adopt toward the Dutch the attitude already taken by the Castilians, Leonese, Aragonese, and all other peoples of Spain, with whom they themselves had become incorporated. Accordingly, since war was being waged between the Dutch, on the one hand, and the King of Spain together with his subjects and all the allies of the Spaniards, on the other hand, it was impossible for the Dutch not to be at war against the Portuguese. This was inevitable, above all, because the taxes contributed by so rich a people had furnished considerable additional support for the war. But it was not merely the money of the Portuguese that was harmful to the Dutch.In the year 1588 That dread fleet [the Spanish Armada] which sailed out upon the ocean under the command of the Duke of Medina Sidonia, threatening destruction not only to our own nation but also to our British allies, was made up for the most part of Portuguese ships and Portuguese sailors. Since it would have been unseemly for the Dutch to yield in any way to the enemy, they determined to avenge this affront by dispatching a hostile fleet to make a counter-attack upon Portugal and upon the regions subject to the Portuguese, either in conjunction with the British or independently. Among other measures indicative of this decision,In the year 1599 a fleet was sent out under the command of Pieter van der Does, which attacked the island of Santo Tomάs and the territory of Brazil in open warfare.

Thus the Portuguese conducted themselves as enemies, on the one side, and on the other, the Dutch did likewise; but it still remains for us to ascertain which belligerent has been superior in good faith and humane conduct.

Article IVCertainly the point made just above—namely, that commerce is not necessarily abolished between enemies—could not be based in any case upon grounds more just than those existing in regard to these peoples, whose chief interests on both sides depend upon [commercial] sailing expeditions, and between whom the practice of commerce had long served as a bond. Let us pause, then, to compare the services which each nation has rendered to the other.Edition: 1950; Page: [74]

The connexion between these nations is said to be very old. For we are told that the people of the Low Countries already enjoyed great Edition: current; Page: [250] maritime power at a time when a large part of Spain was still subject to the Moors;In the year 1150, approximately4 and that, in consequence of this fact, when certain [Flemish] Crusaders bound for Syria were driven to Iberian shores by a tempest, they attacked Lisbon (a royal stronghold of the Saracens) with their fleet, in compliance with the entreaties of the Portuguese, and handed over that city, after its capture, to Portugal. In recognition of this service, many privileges and immunities, dating back to ancient times, have been accorded to the Lowlanders in Portuguese territory.

For their own part, the rulers of the Low Countries, acting in accordance with a widely accepted custom whose purpose was the strengthening of commercial ties, extended their protection to all Portuguese merchants engaged in business with Lowlanders, in order that such merchants might by this authoritative patronage be rendered more secure from every injury.In the year 1577, on October 22. Given at Brussels When the situation at home grew unsettled, the States-General of the Low Countries provided documentary ratification of the arrangement in behalf of the Portuguese merchants, with the specific purpose of safeguarding the latter from the adverse treatment that might be accorded them under the pretext of war-time licence. Thus the Portuguese, with their wives, their children, and the other members of their household, were taken under the guardianship of the state, as were their domestic furnishings, merchandise, other possessions and all rights properly pertaining to them, regardless of whether or not they were present in person. For they were empowered to enter, depart from, or remain within the territory of the Low Countries, and to import or export their merchandise, by land or by sea. Orders were even given to all of the military commanders and soldiers, instructing them to safeguard the personal welfare and the goods of Portuguese dwelling in the said territory.In the year 1581, on June 19, at Amsterdam Moreover, after the Lowlanders had repudiated the rule of Philip, and the Portuguese, on the other hand, had acknowledged his sovereignty, with the result that the two peoples became enemies, that Edition: current; Page: [251] same States-General (acting at the request of the Portuguese who were residing or doing business in the Low Countries, and moved by the consideration that it was to the interest of the natives that commerce should be cherished in security rather than impeded by war), nevertheless confirmed its earlier rescript and exempted the Portuguese from the laws of war to the extent indicated in the following provision: that all Portuguese who might wish to do so, should without danger to life or property enjoy safe passage to and fro, residence, and the practice of commerce, among the people of the Low Countries.In the year 1588, on February 11, at The Hague Yet again, when the Portuguese, influenced by their consciousness of the wrongs that their own people were inflicting upon the Dutch, once more grew mistrustful of the rescripts already issued, further confirmation of these orders was obtained, not only by the Portuguese who were living in the Low Countries, but also by those in residence elsewhere. This confirmation was of such a nature that the Portuguese were enabled to carry on trade with the Lowlanders, subject to the authority of the States-General, in safety and even from within Portugal itself, with licence to pass to and fro. The privileges thus granted were to be enjoyed until an interdiction should be issued and for four months following the date of the interdiction.In the year 1592, on July 30, at The Hague Next, a more liberal interpretation resulted in the inclusion under the rescripts even of those Portuguese who had established a permanent abode inEdition: 1950; Page: [74] Antwerp or in some other city of the Low Countries held by the enemy, although such individuals were included subject to the stipulation that persons coming from the said cities into the territory of the States-General for commercial purposes, and similarly those who, in their turn, were conveying merchandise out of this territory into that of the enemy, would be obliged to obtain special permission for transit. In a still later rescript,In the year 1600, on October 2, at The Hague it was also expressly stated that merchandise could be transported to the Dutch from Brazil. By these measures, provision was made for all Portuguese who wished access to the Dutch from any region whatsoever.

Article VQuite reasonably and in accordance with their rightful due, so to speak, the Dutch hoped to receive from the Portuguese treatment similar to that accorded the latter by the Dutch themselves, especially in view of Edition: current; Page: [252] the fact that the earliest trial voyages to Portugal had implanted in the voyagers a confident expectation of the same equitable conduct.In 1582 and in following years No one supposed that Philip as ruler of the Portuguese would obstruct the activities of the Dutch any more than, as the enemy of the Dutch, he had obstructed the activities of the Portuguese. While a trustful sense of security was thus attracting a vast number of ships, and while men who had several times been kindly received were not warned away by any recently issued interdiction, nevertheless—in scornful disregard for that consciousness of past benefactions which not even public enmity destroys among men of moderate virtue, as well as for the sacred obligations attached to a tacit covenant—when the abundance of merchandise accumulated was adjudged sufficient to make despoliation worth while, every one of those ships (the property of entirely unsuspecting persons) was seized, in all Iberian ports and particularly in those of Portugal. Subsequently, the Dutch were compelled to pay the highest conceivable prices in order to redeem the vessels seized.

In view of such costly losses, absolutely ruinous to many of the most firmly established houses, what course could be followed by a populous nation accustomed to supporting itself solely through commercial exchange, other than an attempt to repair those losses by new profits from trade? After a little while, spurred on afresh by the long-suffering disposition already noted and by the hope of recompense, as well as by their confident reliance upon their own recent kindnesses to theEdition: 1950; Page: [75] Portuguese, the Dutch fell into the old trap. Time after time this pattern of events recurred, owing to the perfidy of the one nation and the candour of the other. Eventually, the Portuguese added new brilliance to their successes by adopting the method of setting snares and committing robberies in alternate years.

Even when the Dutch state had been completely drained of resources in this manner (for there was hardly anyone who did not impute our impoverishment to these acts of violence more than to all the losses suffered through shipwreck), Iberian greed and cruelty remained unsatisfied.In the year 1598 For, after a long series of deeds of despoliation, when Philip the Third had finally succeeded to the throne and an incredible multitude of persons was being drawn anew to the practice of commerce, when a Edition: current; Page: [253] public promise of free transit had been received from the Archduke Albert and had not yet been revoked (or, in any case, had been revoked too late for notification of the change in intention to be given to the men already approaching by sea), suddenly, by a barbarous edict quite worthy of Mithridates, ships and merchandise were confiscated, the accounts of all agents were examined, and the men themselves (so grave is the crime of extending either kindly services or trust to Spaniards!) were imprisoned and dragged off to punishment, many thousands of them being delivered to the galleys. Indeed, even now Dutchmen would be held on Spanish ships, bound with the same fetters as assassins and robbers, Christians amid Turks and Moors, merchants themselves amid pirates, if that day—so auspicious for the cause of liberty!—which witnessed the battle of Nieuwpoort, had not delivered into our hands Francisco Mendoza, the Aragonese admiral, who was at the time in command of the war. For our citizens, redeemed in exchange for this hostage, returned to the shores of their countrymen, their strength wasted by starvation, chains, and lashes. Some have been released from a miserable servitude by the recent capture of Sluis and of Spinola’s ships. For who has not seen that pitiable throng, either when its members were thanking the most honourable States-General for the great kindness that enabled the exhausted victims of so many ills to breathe their last in their own native land rather than under the cruel hands of torturers, or elseEdition: 1950; Page: [75] when they were pleading, each with his own kinsmen and others bound to him by family ties, that such a crime should under no circumstances be left unavenged? And who has not been affected in some degree by this misery and by these losses? Who does not suffer, in consequence of this barbarous episode, some deprivation either of possessions or of friends? The loss could be estimated accurately at many millions, were it not for the fact that such an estimate would be too low to cover the torture, punishments, and mortal anguish inflicted upon the bodies of free men, injuries which transcend all reckoning.

Article VISome persons will assume that the Portuguese at least conduct themselves less savagely in the colonies and on the islands scattered far and wide among their possessions. For in their native land the commands of Edition: current; Page: [254] a ruler who is close at hand, and the wanton caprice of the magistrates, are perhaps influential factors. But even so, how can a people be guiltless that looks on at and allows such deeds? And whom may we justly punish, if an excuse of this kind is acceptable? To be sure, in foreign parts (that is to say, in regions where one may act with comparative safety), inborn character not totally devoid of humane qualities will manifest itself, giving rise to mutual courtesies and, in short, causing us to do as we would be done by, whenever possible. [In so far as the Portuguese are concerned, however, negative] testimony on this point will be furnished by all Dutchmen who have approached the shores of Portuguese colonies either because they were borne there by violent tempests, or because they sought to do business with the Portuguese in their ignorance of the exceedingly savage conduct characteristic of the latter. For men do not readily believe in the existence of practices which they themselves are incapable of following. I shall mention only a few recent instances of this kind.Edition: 1950; Page: [75a]

In the year 1598On the Ilha do Príncipe, when several of the chief personages from the fleet of Olivier [Van Noort] of Rotterdam (a fleet which has circumnavigated the globe four times) had been sent ashore and were being received with a display of flags of truce on both sides, the Portuguese, after striving unsuccessfully to entice a larger number to the shore, slew three of the men immediately, pursued the others as they fled to the sea, and killed two of these by shooting at the skiff. In the course of the same voyage and in the vicinity of Rio de Janeiro (in Brazil), two men who had been instructed to land were spirited away by means of an ambush which the Portuguese had prepared in advance. Moreover, cannon shots were fired at the ships, severing the ropes and also resulting in the death of one man. At the Doce River, indeed, the Dutch were prevented from even approaching the shore or making use of the fresh water.In the year 1599 Nor did a happier fate await those persons who, having set forth under the command of Laurent Becker, fell into Portuguese hands (more to be dreaded than the very rocks that rose on either side), after long tossing on the open sea. For their ship was finally driven into the harbour known as All-Saints’ Bay, and was confiscated as prize together with its cargo of Edition: current; Page: [255] merchandise, while the men were thrown into chains, a disaster all the more terrifying in view of the fact that several Frenchmen were said to have been hanged on the gallows, four years previously, at that very spot.In the year 1601 Neither do the diaries of Van Spielbergen indicate that any gentler treatment at the hands of the Portuguese and their emissaries is to be expected by persons landing, through whatsoever chance, on a certain partEdition: 1950; Page: [75] of the African coast. I shall refrain, however, from repeating here the account of these events [in Africa] which are described already in each man’s records, inasmuch as I must resume the discussion of matters particularly pertinent to our own subject.

Article VIINo one is ignorant of the fact that, just as the Castilians claim the greater part of America for themselves, so the Portuguese maintain that the commerce of the Ethiopian, Indian, and Brazilian oceans is peculiarly their own, and that all other persons should be excluded from any share therein. Although in addition to the British, both the French andEdition: 1950; Page: [76] the Italians, as well as all the peoples most closely connected with these nations, had refrained from making any concession to the Portuguese on this point, the Dutch (who are their enemies and who possess, moreover, tremendous maritime power) did not oppose the claim. To be sure, the injustice of the Portuguese demands was no less evident to the Dutch than to others; but our gentle disposition, which was always concerned with the question of how much we must necessarily do in warfare rather than with how much we might permissibly do, was influenced to a considerable extent, even in favour of our enemies, by memories of the early principate here and of the former fellowship in Portugal. Accordingly, as long as our people were able to derive support from the commerce with Iberian countries, even though this commerce had been attended by grave injuries, we felt that on the whole endurance of such injuries was the course to be followed before, and in preference to, venturing upon some other course that seemed likely to render more difficult the eventual conduct of negotiations for peace.

During ten years and more, this policy of patience was observed. After that period, indeed, when it became apparent that the enemy had entered upon a systematic attempt to subjugate through hunger and want Edition: current; Page: [256] the nation which it had been unable to subjugate by armed force—that is to say, when the Iberian trade that had hitherto constituted our people’s principal means of subsistence was cut off—we ourselves gradually began to turn our attention to lengthy voyages, and to distant nations which were known to the Portuguese but not subject to them. In adopting this course of action, however, the Dutch displayed so proper a blend of modesty and goodwill that, to any person examining each of their actions, one by one, it would be sufficiently evident that every step had been determined solely by regard for necessity.

In so far as the Dutch were concerned, meetings upon land and sea were amicable; and the Portuguese were even granted admittance to our ships and banquets. It pleased us to commit none of those acts which are held to be permissible among enemies: colonies were not attacked, ships were not set on fire, and the Portuguese were not even forbidden to come to the same marts of trade. But they were in no sense appeased either by the consideration that necessity was the cause of our voyages, or by the exceedingly peaceful manner in which we conducted ourEdition: 1950; Page: [76] business. For our chief crime lay in the fact that, instead of being crushed by want, we vied with the Portuguese in seeking those benefits to which nature has given all men free access. Yet, under this sole pretext, the Portuguese madness (for no other term will describe their attitude) flamed out with incredible force against the Dutch, whose inoffensiveness was such that, content to act only in self-defence, they could scarcely be impelled by the most shameful crimes to exact vengeance. This assertion will be borne out by the following account of events, which is admittedly incomplete since it embraces only the principal facts, from which the rest are to be inferred.

In the year 1594The Dutch, with Bernard of Medemblik as their guide, first undertook to approach that part of Ethiopia, bordering upon the ocean, which we call Guinea. The Portuguese, unwilling to rely upon their own unaided savagery, then persuaded the Africans (who shortly afterwards made a full confession) that robbers had arrived who would carry off the natives into captivity under the pretext of trading. Nor was it by words alone that the Portuguese created a spirit of hostility. They also offered a reward Edition: current; Page: [257] (for the African peoples, too, are open to corruption by this means) amounting to as much as a hundred florins for every person who had slain a Dutchman. Moreover, they taught the natives the trick of adulterating gold, which is a product sought from that locality. Again, when a voyage was made to Cape Corso in the same region, under the leadership of Simon Taye, and a report was circulated to the effect that the local chieftain had come to inspect the ship, the Portuguese bribedEdition: 1950; Page: [77] other persons to surround and slay certain Dutchmen who had sailed away some distance in a light boat; and this project was carried out. A similar misfortune befell a group of men from Delft who had come to that coast, when an African trader named Votiaeo [?],5 who enjoyed considerable influence among the Dutch because of frequent commercial dealings with them, was bought over to betray them. Some members of the group were slain; and some were taken as captives to the Portuguese citadel of São Jorge da Mina, a fate rather worse than death, so grievous is the menace of rackings and torments implicit therein. For it is a well-known fact that a Frenchman who had been brought to that same place and subsequently caught in the act of escaping, was placed inside a bronze cannon to be catapulted from it, so that the Portuguese might not fail to imitate Phalaris even in the very instrument of cruelty employed!6

In the year 1599It also happened at a considerably later date that a small Dutch vessel, betrayed by the winds at a point not far from the same citadel, was unexpectedly attacked and seized by the Portuguese. After the Dutchmen, Edition: current; Page: [258] taken by suprise, had leaped into the sea, they were dragged along by means of ropes, although they had been pierced through and through with darts and were already dead; and furthermore, in order that the governor of the citadel might be convinced that this fine deed had really been perpetrated, the heads of some victims were impaled upon stakes, while other heads were given to the barbarians serving as privileged soldiers7 of the Portuguese, in the hope that these barbaric warriors might thereby be rendered more ferocious in spirit. It is said that they cooked the heads over a fire to draw out the juices, and that they used the skulls for drinking vessels.

But hired hatred did not long avail against the candour of the Dutch; nor did the snares prepared for them avail for long against their foresight. Unwearied by the struggle amid so many perils, even to-day they frequent that coast, bringing no accusation against the Portuguese save by the example of their own good faith.

Nevertheless, to whatsoever land we turn our eyes, in all regions we behold this same savagery on the part of the Portuguese; for a trait that far exceeds the bounds customarily observed between enemies,Edition: 1950; Page: [77] does not deserve to be called “enmity.” It is clear from the logs kept by the men who made the voyages, that many experiences of the kind just described befell the Dutch in Brazil. We shall refrain from recounting all of those experiences, especially in view of the fact that events in the Orient (that is to say, in the East Indies) will furnish us with a wealth of material for such narrations, of a nature particularly appropriate to our argument.

Article VIII In the year 1595Finally, the Dutch undertook to investigate the East Indian regions, a plan as unquestionably just as it was obviously advantageous. For what, pray, are we to think of that attitude which I shall no longer characterize as insane greed for gain, but as envy pure and simple: the fierce insistence that so vast a portion of the world (extending along an immense coastline even from the Arabian Gulf—or rather, if we also take into account other Edition: current; Page: [259] regions, from the Strait of Gibraltar—to the utmost limits of the north, and spreading out to include islands so numerous that no man can reckon them or tell their names), should be dedicated exclusively to promoting the wealth, not to say the luxury, of a single people, while lying in great part neglected and useless, although this same territory would suffice to keep many nations engaged in commerce and supplied with sustenance? What of the fact that, long before the present day, the Venetians carried on trade with the East Indian peoples? What of the fact that even now the Arabs on the one hand, and on the other, the Chinese, are competing for the same trade? Will the Portuguese still dare to refuse to others any share in that which they themselves do not and cannot possess in its entirety?

Another point, too, must be considered in this connexion. At the time in question many East Indian tribes were averse not only to trade with the Portuguese, but even to contact with them and to the very sight of that people. Indeed, the Portuguese are regarded in those regions not as merchants but as foreign robbers, destructive of human liberty and aflame no less with avarice than with lust for dominion, so that noEdition: 1950; Page: [78] one associates with them any more than is absolutely unavoidable. For when they first came to that part of the world, they established colonies and strongholds, and then (the natives having been insufficiently perceptive as to the ultimate objective of these enterprises), they reduced all nearby territories to a state of slavery. Presently, by participating in the civil wars of the East Indians, wars to a great extent instigated by the Portuguese themselves, the latter acquired a share in the victories; whereupon they turned the power that had been increased through these wiles against the very persons by whose aid they had been rendered victorious. In this manner, stationing their garrisons far and wide, and relying upon their maritime might, they taught the entire region to fear them.

But I prefer to have the reader draw information from the writings of Spaniards, rather than from my own words, regarding the instances of unparalleled treachery, the mangling of women and children belonging to the households of native potentates, the disturbance of [East Indian] kingdoms through the poisonous activities of the Portuguese and the abominable cruelty displayed toward both subject and allied Edition: current; Page: [260] peoples. For I desire testimony to the fact that my purpose in entering upon a discussion of this matter is not the abusive reviling of any nation, but the disclosure of crimes whose cause ought to be publicly revealed. By this means, moreover, I shall acquire the right to claim the indulgence customarily accorded to litigants, when it is held that they are not inflicting an injury in their refutation of testimony advanced against them by an adversary or by other witnesses.

Certainly a great many writers are of the opinion that a comparison of Spanish conduct in America with Portuguese conduct among the East Indians, will show the Spaniards to be much more notable for violence and the Portuguese for perfidy; that is to say, the latter are no less malicious than the former, but the Spaniards are endowed with greater courage and strength. This perfidy, then, was the cause of the hatred felt by the East Indians, and of the voyages undertaken by the Dutch.

From the time of those early voyages until the present day, no deed has been so impious and abominable that these exceedingly avaricious men have not attempted or even accomplished it, with the purpose of driving the Dutch away from the regions in question. For, in that quarter of the globe, the crimes of the Portuguese are more noxious than those committed elsewhere, owing to the fact that they knew themselves to be inferior there in strength and consequently donned the mask of peace and friendship, whereby they were enabled not only to enjoy greater security for themselves, but also to make unexpected attacks, with more severe effects, upon entirely inoffensive persons.

We shall touch briefly upon all of the most serious crimes, dividing them not so much chronologically (although the factor of time will also be taken into account) as according to kind, under certain specificEdition: 1950; Page: [78] heads. We maintain that the Portuguese, acting both as a nation and as individuals, defamed the Dutch with false charges and stirred up enmity against them, conduct which resulted in the most hideous disasters; that, in addition, they themselves slew many of our men in cruel and perfidious fashion; and that they also took the lead in resorting to war, both publicly and privately, attacking even the East Indian peoples and ravaging them with fire and sword, because the latter had engaged in negotiations with the Dutch. Furthermore, I solemnly declare that I will Edition: current; Page: [261] not record anything in this connexion that I myself have not found to be confirmed by the clearest testimony.

Part II, Article I.At first, then, as long as the East Indian tribes were unfamiliar with the character of the Dutch, and as long as the Dutch were unfamiliar with the language of the East Indians, it was assumed, reasonably enough, that nothing would be easier than to block by malicious lies the approach of our people to the Orient. Although these calumnies were very far removed not merely from the truth but even from any resemblance to the truth, it had nevertheless been possible to find credence for them among ignorant peoples who were justifiably timid and distrustful after the advent of the Portuguese to those regions. For it would have been the simplest possible task to bring all Europeans alike into ill repute among men who had seen and endured so much wickedness. The Portuguese—telling their lies in comparative safety before experience intervened, so that they disseminated the report among all the native rulers and kingdoms—made a practice of declaring that pirates had come, whose home was the sea, whose trade was robbery, and who had no peaceful dwelling-place. By way of proof, they would point to the simple garb of the Dutch, whose every adornment consisted of arms or warlike engines. For the Portuguese, partly because foolish baubles are held in high esteem among barbarians and partly because they themselves are naturally vain, affect a luxurious style in dress and furnishings, whereas they take a rather indifferent attitude toward arms, as toward something uncouth.

When their calumnies were refuted by the first actual arrival of the Dutch, other lies began to circulate; that is to say, reports that theEdition: 1950; Page: [79] new-comers were Englishmen, treacherous and thieving persons, of a character as evil as any nurtured upon the earth. Moreover, with the purpose of aggravating the ill will felt by the East Indians and mindful of the fact that many of the coast-dwellers subject to Arabian rulers had joined the ranks of the Mohammedans, the Portuguese attributed to a band of men who were in fact entirely dissimilar from the Chinese, such traits of the latter as are most displeasing to the East Indians [of Mohammedan faith]. For it was charged that the Dutch were a people who Edition: current; Page: [262] revered no sacrosanct authority, being bound neither by religion nor by law, and that they squandered their ill-gotten wealth in a manner by no means less evil than the manner of its acquisition, since they wasted their resources in drunkenness, a vice regarded in those parts as no trifling disgrace. Another charge, odious even to the East Indians and unheard of among the Dutch, was that of perverted lust. In support of this accusation, attention was called to the fact that the Dutch were not accompanied by a train of women, as was customary with the Portuguese, whence it was inferred that the Dutch among themselves regarded nothing as illicit.

After these slanderous statements had also been disproved by direct contact with our men, another accusation was hurled against them, namely, that the country of their origin possessed a very powerful fleet, and that the object underlying their pretended interest in trade was nothing more nor less than the expulsion of the natives (once the territory had been explored) and the establishment of their own sovereignty. It was asserted that the native rulers and peoples would shortly perceive the truth of this charge, unless they appealed in time for an alliance with the Portuguese.

The facts above set forth were revealed in part by documents that were intercepted or voluntarily shown; in part, by the testimony of the nations and rulers who had been deceived.

First Episode in the year 1596Such was the course that was being pursued by three Portuguese—Francisco de Marez, Batalha, and Pessoa—at the courts of the Rajah of Demak (the sovereign ruler of Java, according to the Portuguese) and of the King of Damma, at the time when the Dutch first came to that region with a fleet of four ships commanded by as many captains. A similar method was being followed even among the inhabitants of Bantam, who were the first of all those peoples to conclude contracts with the Dutch. For in that vicinity, the Portuguese caught at every breath of suspicion. If the exhaustion consequent upon a long voyage, and a climate to which the Dutch were unaccustomed, had thinned the ranks of the sailors, the Portuguese would report that the missing men had been lost in battle while engaged in piracy at sea; or, if purchasing was deferred Edition: current; Page: [263] for seasonal reasons, they declared that even in such circumstances there could be no doubt but that the Dutch had come to plunder and were lying in wait for a favourable opportunity. With this same hope of creating suspicion, Portuguese representatives were sent to all of the Javanese ports—Pessoa to Sidajoe and to Tuban, Batalha to Panaroekan, and others to Japara, Jacatra, and Tandjong-Java—for the purpose ofEdition: 1950; Page: [79] bringing the Dutch into disrepute and purchasing hostility toward them. Moreover, not content with this one-sided deception, while they were retailing these stories about the Dutch to the Javanese, the Portuguese were also engaged in an unceasing attempt to frighten away the Dutch themselves from commercial undertakings (for access to our men was readily obtainable, and the Portuguese were even received at Dutch banquets) by expatiating upon the treacherous nature of the Javanese peoples.

Second Episode In the year 1599The merchants held back until reports should have been made regarding the initial ventures; but after the return of the first voyagers from Java, the Dutch began to go to Taprobane (an island famous in very ancient times, which is now called Sumatra),8 in ships commanded by Cornelis Houtman and dispatched under the auspices of a company established in Zeeland. In the region of Sumatra, Affonso Vicente, a Portuguese, was whispering to the King of Achin lies similar to those already fabricated for the Javanese.

Third Episode In the same yearAt the same time, the first voyage of Jacob Van Neck to the Moluccas took place. Nor did the governing authorities of Amboyna (the prefect and other principal personages) conceal the fact that the Portuguese had spread abroad identical lies in that locality. It was during this period, too, that the Portuguese were troubling the mind of the King of Ternate with calumnies of the same sort. The inhabitants of the Island of Great Banda were also being incited, by means of similar accusations, to drive out those Dutchmen who had remained after the departure of the ships. Indeed, this evil practice spread so far in its stealthy course that it reached Edition: current; Page: [264] and inflamed even the people of Borneo, a fact revealed by the report of the men who accompanied Olivier [Van Noort].

Neither were the Portuguese content to lie only once; on the contrary, resort was continually had to the same wiles.Fourth Episode In the year 1600 For it became evident to the Dutchmen who subsequently remained behind at Achin, in Sumatra, by order of Admiral Wilkens, that the great courtesy and the friendship of the King had been converted by these insulting calumnies into contempt and hatred, so that they found themselves not merely cut off from trade but also in peril of losing their very lives.

Fifth Episode In the same yearShortly afterwards, when Achin was visited by ships under the command of Pieter Both (an emissary of the later Dutch company), the same stratagems were employed anew at the same Court; that is to say, a Franciscan monk was sent as a so-called legate, together with a captain named Rodrigo da Costa Motamorio, to Malacca, which is a Portuguese colony situated on the mainland opposite Sumatra.Edition: 1950; Page: [80]

Sixth Episode In the year 1601Again, letters written to the King of Ternate in the Malaccan language on the occasion of Van Neck’s second trip, as well as the instructions given to the messenger and translated by an interpreter, contained similar accusations. Nevertheless, the King—though stricken with sudden fear and looking about, so to speak, for lurking plotters against his realm—was finally and with difficulty placated by entreaties, and dissuaded from handing over the Dutch in their innocence to the ferocity of their enemies.

Among the Chinese, too, what unrestrained and numerous attempts were made, in order to induce that people to turn against the Dutch! But the Chinese, who as a race possess quite acute powers of judgement, even now prefer to rely upon those faculties rather than to believe the Portuguese.

Seventh Episode In the year 1602No less vainly, at the time of the arrival of Jacob Heemskerck, did the Portuguese strive at the courts of the Queen of Patani and the King of Johore (these are kingdoms on a portion of the mainland which now belongs to Siam but which, in the opinion of some authorities, was formerly Edition: current; Page: [265] part of the Golden Chersonese),9 to cast suspicion by means of their accusations upon the friendship of the Dutch, which those rulers had most eagerly embraced. The lies of the Portuguese had by now lost their force and had been sufficiently refuted by Time itself, whose daughter (as the ancients quite rightly declared) is Truth.

Moreover, in the light of these facts which by some fortunate chance resisted concealment, may we not assume the existence of any number of similar facts not yet made public?

Article IIAccordingly, no one should think it strange, in view of the added weight lent to these calumnies by bribery, that it was possible to stir up enemies and assassins against the Dutch from a multitude of persons who were deceived or even venal. By this means, the Portuguese succeeded not only in securing peace for themselves and hardships for our men, but also in producing everywhere and simultaneously a state of agitation based upon blind suspicion; so that the Dutch, as a result of the wickedness of a few individuals, sought to avoid whole peoples whom they had esteemed, and were on the point of giving up their East Indian trade permanently because of these difficulties.

First Episode In the year 1596Indeed, it will be worth our while to give a detailed account of the treachery and snares which the Portuguese were devising on the occasion of the first Dutch landing in Java, at the very time when they were openly professing friendly sentiments toward our people (thus committing the worst sort of injury), were frequently boarding our ships, where they met with a kind reception, and were extending invitations in turn to the Dutch.

The Rajah of Demak, whom I mentioned above, was the ruler of all Java; or, at least, he was proclaimed as its ruler by the Portuguese at that time. Nevertheless, it was reported that he had lost not only supremacy over his domain but also the greater part of his fortune, while waging Edition: current; Page: [266] war against certain petty kings who were withholding theirEdition: 1950; Page: [80] allegiance. Poverty in a man of noble rank is a fertile source of audacity. Accordingly, the Rajah had provided himself, in compensation for all his losses, with these two things alone: extraordinary skill in the use of arms, in the highest degree possible to a man of that race; and (what is now regarded in that region as the last refuge of desperation) an alliance with the Portuguese, who were then honouring him with the title of Emperor. After bribing him to work for the destruction of the Dutch, the Portuguese had brought him to Bantam, where at the time in question some of our vessels lay. Moreover, they had plotted that the officers of those vessels should be invited to a banquet, so that the Rajah, under pretext of escorting the officers on their way back, might make a sudden attack upon the ships. The chief magistrate, or Regent, of Bantam (for he governs that kingdom in the name of a ward who is his kinsman), whose aid in this undertaking had been requested by the Portuguese, revealed the plot, first of all through a messenger and later in person, to envoys sent from the ships. Nor did the event belie his warnings.

Our men were invited to the entertainment. They excused themselves from attendance. A certain Portuguese named Pedro de Tayde, bound to the Dutch by the ties of honourable and intimate friendship, had withheld his assent from so villainous a deed; and therefore the others, fearing that the stratagem might be divulged through him, sent five of their number to butcher him while he lay unsuspecting at home and in bed. Their wicked plan was not frustrated.

In the meantime, seeing that the plot against the Dutch had failed, they urged the Rajah of Demak to maintain a ready force at his disposal and to fit out a fleet at the town of Jacatra; but the entire outline of this plot, too, was reported through an assistant of the slain de Tayde. This assistant was forcibly seized in Bantam by the Portuguese and cruelly tortured, because he had aided our cause.

The Portuguese were becoming convinced that they would accomplish nothing as long as the Regent of Bantam favoured us, and therefore they approached him with guile and with gifts. Nor was he averseEdition: 1950; Page: [81] to profit of any sort, an attitude strengthened especially by the hope of acquiring spoils from the Dutch and a reward from the Portuguese through one and the same act.

Edition: current; Page: [267]

In the first place, he persuasively solicited Dutch merchandise, carried it off for himself, and postponed until some future time his part in the process of exchange. While the Dutch were hesitating after being commanded to deliver more goods, the Regent summoned to his presence three ship’s captains—Houtman, Willem Lodewycksz, and Gilles Valckenier—together with ten other men, and suddenly ordered them to be bound with chains. Not even then did he make a secret of the fact that these things were being done at the request of the Portuguese, who pretended to be afraid that we might intercept their ship in the harbour when she sought to depart. Under this pretext, the Portuguese had entreated that the men above mentioned be detained as hostages, although the Regent also intimated to the captives that the former, by paying a bribe of four thousand reaes, were striving to influence him so that they might get those captives into their own hands. Meanwhile, fear of the most horrible torments was daily instilled into the poor wretches. At this very time, however, it so happened that the Javanese, at the instigation of the Portuguese, approached to attack certain light boats and skiffs belonging to the Dutch which had sailed out rather far; and when our men bravely repelled their assailants, the Regent of Bantam, warned by this achievement that the good qualities of such men were not to be despised, undertook to negotiate peace with them. Although the conditions imposed in this connexion were very unjust and involved payment of a ransom of two thousand reaes for captives taken without even any shadow of a lawful pretext, they were nevertheless accepted.

But wherever the state of affairs began to improve for us, the Portuguese on that very account increased the rewards offered for treachery. An envoy came from Malacca, bringing to the Regent and other chief personages of Bantam numerous gifts, among which were included six thousand reaes intended to purchase the slaughter of the Dutch. A reversal of sentiment immediately resulted: trade with our people was suspended; even the Chinese merchants dwelling in Bantam were forbidden to sell anything to the Hollanders. These signs of enmity were in themselves unmistakable; and at the same time, it was reported by the host of the Dutch in Bantam as well as by other friends that the lives of all our leaders had been sold to the Portuguese. Consequently, when the Regent of Bantam asked the chief men from the ships to visit him, with Edition: current; Page: [268] the pretended purpose of instructing them personally in regard to commercial regulations, not one of them complied with his request. As a result, dissension arose between the Portuguese and the people of Bantam, since the Portuguese demanded the return of the donationsEdition: 1950; Page: [81] made for a purpose that had not been executed, whereas the Bantamese would not renounce what they had received, regardless of the reasons for which it had been given. Accordingly, a new and different agreement was made, to the following effect: the Regent was to seize the Dutch ships forcibly, with the aid of the Portuguese, and these ships together with their cargoes of merchandise would be allotted to him, while the men would be handed over to the Portuguese; or, in the event that the ships should be destroyed, the Regent would receive, in addition to the six thousand reaes paid in advance, an additional two thousand by way of compensation.

As chance would have it, while these conferences concerning the lives of the Dutch were being held, the latter were in the process of withdrawing to another locality (not far from Bantam, to be sure), owing to their need of fresh water; and lo! there came a messenger from their host, reporting that a fleet was being made ready against their ships. Indeed, the Dutch themselves, prior to their departure, had witnessed certain preparations for the construction of such a fleet.10 Not only was danger thus averted through a stroke of good fortune, but the affair also gave rise to renewed dissension between the Portuguese and the Regent, who was of the opinion that the terms of their agreement did not make it obligatory for him to follow in pursuit of the Dutch after their withdrawal.

When the Hollanders had reached a point near Jacatra, the Portuguese secretly incited Toemenggoeng (a man of Bantam and their close friend) to entice some of the sailors to a place called Tandjong-Java, quite close to Jacatra, under pretence of an intention to sell them provisions; but Chinese merchants had forewarned our men that there were Portuguese Edition: current; Page: [269] stationed in that locality for the purpose of capturing or slaughtering the sailors. Toemenggoeng himself admitted the truth of this accusation when the Dutch, returning on a second voyage, found the Javanese hostile to the Portuguese and more friendly toward our own people. He excused the attempt, however, on the basis of those earlier disorders.

At Sidajoe, the most atrocious plots were fabricated under the direction of Francisco Pessoa, in the following manner. When the ships had arrived at that point and plans had been drawn up in collaboration with the Shabandar of Sidajoe (the title given to the chief local magistrate),11 Rasalala [the Rajah of Lalang?]12—a Portuguese by origin, born in Aveiro, but an apostate from the Christian faith and by no means unrenowned as the leader of the pirates in those regions—issued a report to the effect that spices were ready for purposes of trade and that the King of Sidajoe was disposed to be friendly. The men who wereEdition: 1950; Page: [82] sent to investigate the situation brought back the same account, since the evidence confirmed Rasalala’s statement. It was also reported that the King greatly desired to inspect the ships that had sailed to his shores over so vast an expanse of sea. This, too, was a most welcome announcement. Everything was decked out in a manner befitting both the delight felt by the Dutch and the majesty of the King. Sixty proas (that is to say, ships of a special kind) made their appearance, each of them bearing at least sixty men, a spectacle which the Dutch at the moment regarded as a display of royal pomp although, as the outcome proved, it was really a hostile army. Rasalala was sent ahead to ascertain whether Edition: current; Page: [270] or not our men had detected any hint of hostility, and found that everything was as he wished. He was invited to remain, but refused to do so. Hardly had Rasalala departed, when the Shabandar of Sidajoe boarded one of the ships: the Amsterdam by name. As the ship’s captain, Reinier Verhell, extended his right hand in welcome, the Shabandar, under cover of a pretended salute (for Egypt is not alone in nourishing Septimii) thrust his dagger into the captain; and at the same time the other conspirators privy to the crime, butchered the unsuspecting and incautious men upon the decks of the ship. Among the slain were Jan Schellinger (a sailor), Gilles Valckenier and nine others, aside from those who were merely wounded because the blows were badly aimed. The ship would have been captured, too, but for the fact that thirteen men (the majority of them only recently recovered from illness) had blocked the way into the lower parts of the vessel and, discharging the artillery, had caused wounds and panic whereby both those assailants who held the upper decks and those who were surrounding the ship’s sides were driven into the sea. This, for the time being, saved the situation; and the Portuguese heaped futile reproaches upon the imprudence of the untutored natives whose excessive haste had brought to naught the plans so cunningly laid. Nevertheless, the losses suffered by the Dutch had been so severe that lack of manpower compelled the sailors to abandon the ship, leaving it defenceless.

Second Episode In the year 1599, on September 11Let us turn now from the Hollanders to the Zeelanders, and from Java to Sumatra, where two ships commanded by the aforementioned Houtman came to port.

The notorious Affonso Vicente, a man whose cunning wasEdition: 1950; Page: [82] outstandingly malignant even among the Portuguese, was present at the court of Achin. Vicente, as well as certain other Portuguese, gradually insinuated himself into a position of intimacy with Houtman and with Houtman’s companions; for he made a show before them of enjoying great favour with the King and of being in a position to promote their interests among the people of Achin by his services as a friendly go-between. So zealously did he simulate this helpful attitude that on several occasions he conducted the Zeelanders to the palace, and even imparted Edition: current; Page: [271] information to them regarding certain plans entertained by the King, presenting it as secret knowledge which he had nevertheless been able to acquire from important personages who had been bribed. In the meantime, he stirred up the merchants who were residing in that region by suggesting, forsooth, that their business was being ruined as a result of the newly increased number of bidders! Vicente also excited the Shabandar Abdullah, the royal scribe Corco, and the King himself by calling attention to the fine ships and the prize so easily to be obtained. He had even devised the following pretext [for seizure of the prize]: the Dutch had decided to seek out the markets of Johore if the prices asked for merchandise [in Sumatra] should prove excessive; but a bitter and violent war was being waged at that time between the King of Johore and the people of Achin; and therefore (so Vicente urged), the ships should be seized before they could serve the enemy’s cause. When both avarice and hatred had thus been set aflame, a piece of trickery was arranged.

A small quantity of pepper was delivered to the Zeelanders, and the hope was held out that larger quantities would be provided from day to day. Having asserted that this supply was approaching on their ships of war, the Shabandar and Corco, accompanied by a huge body of men from Achin, and armed without exception, as was the custom among that people, boarded the Dutch vessels under a pretence of engaging in barter. They had brought food and drink mixed with a drug which induces insanity and which the natives call dutroa. 13 When the sailors had gorged somewhat greedily on this drug, they suddenly began to run about the gangways and decks, tossing their heads like persons deprived of sense and even like madmen. This seemed to be the moment for carrying out the deeds that had recently been plotted. The Zeelanders, crazed and separated from one another, were slaughtered as if they were cattle. The affair was not a battle, but mere butchery. Overcome simultaneously by dizziness and by wounds, the men breathed their last amid faltering words. For they were surrounded on all sides, too, by the East Indian proas, which had been equipped with arms through Portuguese Edition: current; Page: [272] assistance. Finally, the capture was complete, save that a very few Zeelanders, not yet overcome by the fatal banquet, had held out in an attempt both to defend their ships and to lay the savage foe low in his own bloodstained tracks with their artillery. The first ship (known as theEdition: 1950; Page: [83] Lion) freed itself from its assailants, assisted in liberating the second ship (named the Lioness), which had almost been captured, and advanced in an attack that routed the hitherto victorious men of Achin. Thus the ships were saved. Nevertheless, the sides of the vessels were dripping with the blood of innocent men, and Houtman himself, stabbed by the hand of his guest, was staining the dining-saloon with his own blood. Moreover, the poison was so potent that some of the sailors lay prostrate in a stupor during the days that followed, while others were driven by madness to inflict wounds upon one another. Nor was any gentler treatment accorded to the Dutchmen who were within the city at that time and in the power of the people of Achin, for they were slaughtered under the direction of the King’s own son, who had been won over to the Portuguese by gifts and promises. No less than seventy men were lost.

Third Episode In the year 1600, in AprilShortly afterwards, the King of Tuban, menacingly equipped with fourteen junks (a kind of boat common in the Orient) and fully fifteen hundred men, bore down upon the members of Van Neck’s party (including Adriaan Veen) who had remained behind upon the island of Banda; for he had been bribed to deprive them of their arms or even put them to death. Nor is there any doubt that the party would have perished, if Divine Providence had not guided newly arrived Dutch vessels, the Luna and the Lucifer, to that very island at precisely the opportune time.

Fourth Episode In the same yearIn compliance with a command received from the above-mentioned ruler of Tuban and from the Portuguese, the aforesaid Rasalala, who had grown famous through his robberies, had gone to almost all of the Moluccas accompanied by soldiers from Tuban and by twenty Portuguese officers, with the purpose of driving the Dutch traders from the entire region. This was the report obtained from Sarcius Maluca and from the Regent of Bantam, by the men who had set out with Wilkens. Certainly Edition: current; Page: [273] that pirate sailed from those parts with approximately forty proas directly to Java, where (so he had been given to understand) the Dutch vessels had come into port; for he was bound by an oath to capture or destroy any such vessel [that he could find]. With this end in view, he was soliciting aid in the name of the King of Tuban from the Regent of Bantam himself. From Java, Rasalala went on to Jacatra, with the intention of seizing such opportunities as might be propitious for the setting of his snares.

Fifth Episode In the same yearStill more grave was the peril threatening those voyagers who had come to the Royal Court at Achin, accompanying Van Neck on his second trip. By taking a hasty departure, however, the men who had remained in Achin prevented the success of the deceitful Portuguese plot.

Sixth Episode In the year 1601, in JanuaryOf course, it would not have sufficed to dispatch foreigners against the Dutch without also seeking an assassin on board their own vessels! A ship from Both’s fleet, under the command of Van Caerden and De Vlamingh, lay at anchor off Achin; and in the same locality thereEdition: 1950; Page: [83] was a Portuguese ship commanded by the aforementioned Rodrigo da Costa Motamorio. The gunner of the latter vessel, a man from Hamburg called Mattys Nieu, had discussed quite frequently with the captain of the watch and with Jan, the gunner of the Henry, as well as with the pilot and the under-pilot, a plan to slay the officers in command of the Dutch vessel (after admitting as members of the criminal conspiracy such persons as might be found suitable) and to take the ship itself to Malacca. Nieu promised that there would be a reward of not less than two thousand ducats for each man. But the good faith characteristic of the Dutch thwarted this treacherous undertaking.

Seventh Episode In the year 1602Again, while two ships—the Leyden and the Harlem by name—under the command of Van Groesbergen (an emissary of the second Dutch Company, who had set sail at the same time as Van Neck) lay anchored in the waters of Cochin China at Sinceon, that is to say, near the Polo-cambares River, the inhabitants of that region and their King himself set a trap for the Dutch vessels. This was done at the instigation of a Edition: current; Page: [274] Portuguese monk and because of his false accusations, as the King later confessed. The assailants seized and stabbed a score or more of Dutchmen, reduced twelve others to a state of illness and insanity with a beverage of poisoned arrack, and led six away into captivity. Moreover, the latter were not by any means men from the lowest class of sailors, and it was necessary to ransom them at the cost of two cannon and some merchandise.

Eighth Episode In the same yearYet again, upon the arrival in those parts, not long afterwards, of that Jacob Heemskerck to whose valour we owe the vengeance and the prize now under discussion, the King of Damma, a friend and ally of the Portuguese nation (as was evident from the outset), voluntarily offered the new-comer his services and an opportunity to trade in his kingdom, where a great quantity of rice is produced. He did so, however, in the hope of seizing the ships by a surprise attack. When this hope failed, the King detained as captives twenty men who had been sent on a commercial mission. Eight of them were ransomed. The others were not favoured even with this fate, but were set aside as creatures of little value, destined for use in the wars which were being waged at that time between the King of Damma and his neighbours. The latter group included the son of that Van der Does who was no less illustrious for learning than for noble lineage.

Article IIIBut the Portuguese were not satisfied with having caused hatredEdition: 1950; Page: [84] [of the Dutch among the natives]. For the fury characteristic of the Iberian peoples is not so phlegmatic that it will always await action by others, once the enemy has been sighted and the hope of doing injury has been conceived; and they are particularly disinclined to wait, in cases where confident expectation of success with impunity invites treachery and abominable deceit.

First Episode In the year 1596For example, when the Dutch first came to the islands of the Orient, the Portuguese urged Toemenggoeng of Bantam (through whose agency, at a later date, the snares at Tandjong-Java were laid) to invite the leaders of the expedition and the ship’s captains to dine at his villa, situated near the shore. Toemenggoeng himself afterwards revealed that the Portuguese Edition: current; Page: [275] planned to land at that very time from a ship lying near the same part of the coast, whereupon they meant to capture the guests and the host, release the latter immediately and carry the Dutch off to Malacca. He had refused to lend his assistance to the scheme, however, because he feared the Regent of Bantam. But the Portuguese—after corrupting the Regent himself (as we have already related), and after the seizure by Portuguese request of the captains Houtman and Valckenier together with some other men—became indignant because the Regent was mindful of his own profit rather than of their hatred. Consequently, they mixed poison with the food of both captives. The Shabandar of Bantam, when he perceived that the heads of the victims were swelling, that their abdomens were distended, and that they were at death’s door, averted their doom by means of a well-known curative concretion called “bezoar,” thus comporting himself more piously than those who boasted of being Christians. Cornelis Heemskerck, too, whom the captains had dispatched on a mission to the chief magistrate of the city, was sought and pursued everywhere by the Portuguese, with such fury that he was compelled to beg for refuge in the home of a Chinese named Lakmoy, where he hid among sacks filled with rice. When a search was made for him even there, he barely succeeded in escaping by disguising himself in Chinese attire and by allowing himself to be carried out, moreover, with the fishing equipment of his host, who pretended that he was taking a fishing trip.

Second Episode In the year 1600Similarly, when two vessels from the fleet of Van Neck were returning from the latter’s second voyage to the East Indies and had arrived at the island of Saint Helena, where four Portuguese ships were at that time assembled, the Dutch found it necessary to traverse quite a distance in search of water, and in doing so detected a fairly large number of armed Portuguese who had been stationed in ambush, doubtless for the purpose of intercepting our men as they approached.Edition: 1950; Page: [84]

Third Episode In the early part of the year 1601Again, what stronger proof of uncontrollable hatred could be offered, than the hostile acts repeatedly directed against the ships left by that same Van Neck at the island of Amboyna? For the Portuguese had publicly proclaimed that to every person who slew a Dutch seaman a reward of Edition: current; Page: [276] ten reaes would be given, and so on, with proportionately larger rewards for other victims according to their rank and dignity. Thus whoever should bring back the head of the commander of the expedition, Cornelis Heemskerck, would receive a thousand silver coins [or reaes?]. We know, of course, that bidding for heads is an Iberian custom.

But even these measures did not suffice. You shall learn now of a deed more infamous than any crime that was ever committed by the Carthaginians.Fourth Episode In the same yearForming part of the fleet commanded by Mahu, who was under orders to proceed to the Strait of Magellan, there was a ship called the Good Faith, a quality which that vessel was not destined to encounter. For, as she was sailing unaccompanied from the southern ocean to Tidor (which is one of the Moluccas and is included among the Portuguese colonies), the Portuguese approached her with the formal query: “Whence, whither and with what purpose do you come?” Balthasar de Cordes (who was acting as commanding officer because of the death of Jurriaen Boekholt) replied that the ship was bringing merchandise for purposes of barter. The Portuguese answered, in their turn, that they had cloves, and that some plan of exchange could easily be agreed upon if this should seem desirable. They voluntarily lent assistance to the Dutch sailors as the latter laboured to bring the ship closer to shore. Gifts were brought by the Dutch to the chief Portuguese officials. Trade agreements were formally concluded. De Cordes was told to come ashore with such sailors as were most readily available, in order to take back a gazelle that had been put aside to feed the Dutch; and in the meantime, other provisions were conveyed to the ship by the Portuguese, under the guise of gifts. These provisions, however, had been dipped in exceedingly swift poisons, undoubtedly as an additional precaution in view of the possibility that the bolder attempt which was under preparation at the same time might result in failure. The Dutch, menaced by two forms of death, were overtaken by the more evil fate; that is to say, they fell into the hands of the Portuguese. For the latter, admitted on board the ship because of the faith placed in the pacts, and bearing weapons which were concealed in their clothing, scattered in various directions so that they might seize each Dutchman individually, in the course of conversation. There-upon, they stabbed their hosts. Like victors in a battle, they tookEdition: 1950; Page: [85] Edition: current; Page: [277] possession of the vessel (now bereft of defenders), together with all that it bore. Meanwhile, de Cordes had first been struck down in the skiff in which he chanced to be returning, and was then beheaded. The body was cast into the sea. A like fate befell the other men whom the Portuguese had summoned from the ship under pretence of inviting them to partake of an afternoon repast, except that the hosts, sated with slaughter, spared several guests out of regard for their extreme youth; or possibly these youths were spared because Divine Providence so willed, lest no witness be left to so monstrous a crime, although the perpetrators themselves, for that matter, were not ashamed to boast of the deed.

I know that the reader is astounded. I know it to be scarcely credible that a nation which is, in the first place, Christian, and which also prides itself not a little on its cultured customs and way of life, should have dared such deeds and dared them, too, in violation of its own pledged and accepted word. What, then, shall I say? In what terms shall I continue the narrative? Where can I find language that will be neither grossly inadequate to describe the vile facts, nor yet completely beyond the limits of credibility despite its perfect truth? For more—yes, even more!—remains to be told: something crueller and more characteristically Iberian. The incidents just related were merely a prelude to the Portuguese fury.

Six men, beholding the disaster that had overtaken their comrades and the blood that had been shed on land and sea, took flight in a small boat, not with any fixed hope (for the Portuguese were threatening their bark on every side), but because they resolved to make trial of the waves, of the rocks, of any other peril whatsoever, rather than of Iberian cruelty. The Portuguese, however, called out to these men that they should give themselves up, that the revenge was complete, that their lives and bodies would be safe. An oath was sworn; but an oath is for the Portuguese an instrument of deception as truly as it is for other men a bond of security. When the Dutchmen had been transferred to a small caracore (which is a kind of boat quite common in those regions), a Portuguese officer ordered that they should be drawn up in a row; then, addressing a subordinate who was holding an unsheathed sword in his hand, this officer said: “Cut off the right arm of the man who is first in line,” to which he added, “Now cut off his left arm.” The commands were obeyed, and Edition: current; Page: [278] in such a manner, indeed, that one might have doubted which was the more barbarous, the person issuing the orders or the person who obeyed them. Moreover, the officer next ordered that the victim’s feetEdition: 1950; Page: [85] should be severed with separate strokes. The other captives, whom the same torments awaited, were standing by, more eager at that moment for death than they had ever been for life. Yet, as these examples were set before them, one after another, their emotion changed from fear to a mutual compassion. The trunks could be seen surviving their own mutilation and—worst of ills!—deprived of human likeness. Nevertheless, the perpetrators of the deed were much further removed from every semblance of humanity! Lastly, the heads were cut off. Two of the captives, however, were so spirited that they leaped still unharmed into the sea before their turn came at the hands of the swordsman. One of these two was drowned; the other escaped, and bore witness to that most abominable spectacle. In the following year, moreover, all of the details were revealed, when Wolphert Harmensz14 captured several Portuguese and undertook negotiations for an exchange that would liberate the men left in Tidor as captives. Although he was not successful in this enterprise, the military equipment and the remainder of the spoils taken from the ill-fated ship were recognized on board a Portuguese vessel by the Dutch, and were recovered.

Fifth Episode In the same year, in SeptemberWe have yet to speak of another crime, committed at approximately the same time, but even more execrable in that the sacred cloak of law was flung about an impious act despite the fact that the deed in question was permissible neither on the basis of any just cause nor in virtue of either local or Portuguese law.

Macao is the market town of the Chinese territory extending toward the Indian Ocean. At the request of the Portuguese, a concession in Macao had been set apart for them, where they might carry on trade, and also administer justice for their own people exclusively. Even with Edition: current; Page: [279] respect to Portuguese subjects, however, this judicial authority15 is not unrestricted. For, in accordance with their own customs, punishments of the gravest degree may be imposed upon freeborn persons only by the Governor of Goa, unless (as frequently occurs) the accused are sent all the way back to Portugal.

The second fleet, placed under the command of Van Neck, had been driven close to that very shore by the winds. Van Neck decided that men should be sent to investigate the lay of the land and to give an explanation of the arrival of the Dutch, while procuring fresh provisions. In compliance with these instructions, Martinus Ape (who wasEdition: 1950; Page: [86] discharging the duties of finance officer for the fleet) set forth with ten other men in a light boat and perceived, as he approached the land, that the usual tokens of peace were being displayed by the inhabitants. Trusting in this display, he advanced and was met by Dom Paulo, the chief official of the Portuguese in that locality, who was accompanied by an armed band which he had kept hidden till then in a monastery, or temple, situated upon the shore. After a few questions had been asked of the Dutch, they were hurried into the temple, where certain Mandarins (that is to say, Chinese senators) presented themselves with the purpose of ascertaining what manner of men had come to visit their land. Ape explained that the visitors were Dutch merchants and that they came to engage in trade, a claim which could be thoroughly verified by examining the ships themselves, laden with merchandise, if anyone wished to make such an examination. He added that these merchants brought letters from their Prince to the ruler of the Chinese. While he was making his explanation, the crowd of Portuguese that thronged about him was raising on all sides a clamour of abuse and slander, with the result that the Mandarins took their departure, although it is uncertain whether they did so only because of an insufficient understanding of Edition: current; Page: [280] the situation, or also because they had been corrupted by the gifts of the Portuguese. The latter pursued the investigation with the aid of torture. Nothing was discovered. All of the Dutchmen were dragged off together from the temple, placed under guard and bound with the heaviest of fetters. They were then cast into a hideously dark and filthy cave. In the meantime, Van Neck, doubtful and apprehensive as to what was delaying the return of his men, gave orders that a second and larger skiff should take soundings so that, once the depth of the waters had been ascertained, the ships might be brought nearer to the city. This skiff, however, was unable to cope satisfactorily with the winds, and all of the nine persons aboard it, including one of the pilots, were intercepted by the Portuguese. An inquisitor, called by the Portuguese an “auditor,” was in attendance. Recourse was had to the rack.

While these events were taking place, a rumour reached the neighbouring Chinese city of Canton, to the effect that, “foreigners sent ashore from their ships, had been seized by the Portuguese.” In consequence of this report, the chief magistrate of Canton, whose name was Capado, ordered that a large band of men should be sent out and that the captives should be brought before him. When the Portuguese found themselves caught in this predicament and dared not oppose the demands thus made, they resorted to fraud and to their usual wiles. From the whole throng of Dutchmen, they selected six men unacquainted with any language other than that of their native land, inasmuch as they were chosen from among the common sailors. As to the other captives (for nowEdition: 1950; Page: [86] that the rumour had spread, it was impossible to conceal the fact that there were more), the Portuguese falsely asserted that all the rest had died of diarrhoea during the last few days. Now, when the six Dutchmen above mentioned, prostrate at the feet of the Cantonese envoy, were plied with numerous questions through an interpreter who spoke in Portuguese, they lay like men without tongues, owing to their ignorance of that language and perhaps also to fear. The envoy demanded an answer to the accusations of the Portuguese, who were charging these poor sailors with piratical savagery, and when the latter could make no response even to these charges, the Portuguese insisted that their silence should be regarded as a confession. It is quite likely that a Edition: current; Page: [281] bribe was also given for the purpose of persuading the delegation to return while the business was yet unfinished, so to speak, leaving the captives in the power of the Portuguese. The Cantonese chief magistrate, however, was indignant at having been tricked through the inefficiency of his envoy, and was already drawing the inference, in agreement with the actual facts (for the Chinese are an extraordinarily shrewd race), that the purpose of the Portuguese actions was to turn other nations away from trade with the Chinese.

Seeing that a new delegation was about to be dispatched with a demand for the surrender of every one of the captives without exception, the Portuguese agents in Canton sent notice in advance regarding this intention to their men at Macao, in order that the latter might take counsel betimes for their own interests, since otherwise their fraudulent conduct would be exposed. Never before had such consternation arisen among the Portuguese. For they perceived the utter impossibility of refusing to surrender the Dutchmen, yet there could be no doubt as to the suspicions and infamy which they would stir up against themselves if the surrender took place. Confronted with this dilemma, they sought refuge in crime and audacity, mindful undoubtedly of the fact that it is foolish to observe moderation in wrongdoing. It was their plan to slay all of the prisoners, under the pretence of executing a judicial sentence, so that it would not be possible to give them up. But their own magistrate, Paulo (for we must not suppress testimony to the innocence of any person whatsoever), delayed action for a long while. Indeed, what kind of judicial sentence would that be, imposed in a city not his own, against foreigners and the lives of freeborn persons? Should the accused not be sent to Lisbon, or at least, to the Governor? With the greatest difficulty, the inquisitor finally prevailed upon Paulo to permit that his name be affixed to the sentence.

Thus it came to pass that six men of Holland—O fatherland!Edition: 1950; Page: [87] O justice and law, and liberty vainly defended at home!—were subjected to the cruellest and most hideous punishment, suited to robbers and pirates, by Portuguese sojourners in that Kingdom of China which the Hollanders had sought amid so many hardships and perils, and where their presence was in turn desired. The Chinese looked on pityingly at Edition: current; Page: [282] this spectacle and afterwards prayed, with averted faces, that these men might not be left unavenged, whatsoever race and whatsoever region of the earth had sent them as guests to Chinese waters and shores, if they worshipped any divinity or had any native land.

But the deed which I am now about to recount was perhaps even more cruel. The eleven men who remained, and whose death of course would have to be kept secret, lest the Portuguese be convicted of the lie previously told to the envoy, were led in bonds, at midnight (so that they might be defrauded even of human witnesses and human pity), to that very shore which they had approached after sighting the signals of peace; and there, weighted with rocks, they were rolled into the sea. But even while treading the last bit of earth, even while tossed about only half-alive on the waves, they cried out (so we may well believe) not that life, which is rightly very dear to all, should be spared to them; not that they might at least be buried in their own blessed land by the hands of their wives and children; but rather, with their final faltering breath, for this one boon—that a crime so wicked might not long remain unrevealed.

God has heard their cry. Men, too, have heard it.

In the first place, four Chinese who came to Bantam gave an account of all these events, just as they had occurred, to the aforesaid Lakmoy (a very powerful personage) and to many others as well. Lakmoy transmitted the information to the Dutch; and at the same time the report was spread far and wide throughout Java and the entire region of the East Indies. In those islands it was a matter of common knowledge that certain Hollanders, after the Portuguese in defiance of plighted faith had condemned them to death by hanging, had entreated in a language which could be understood (that is to say, in Portuguese) that theirEdition: 1950; Page: [87] fate should be remembered by their fellow countrymen. Consequently, when Wijbrandt Van Warwijck arrived in the Indies, all of the natives, aroused by the atrocity of the crime, were saying that the Dutch would be unworthy to look upon the light of day if they failed to exact fitting vengeance for such perfidy.

But the matter did not rest there. God sent the Dutch a witness to the whole series of events, one who had himself beheld a part of them, and had heard of them in part from incontrovertible authorities, including Edition: current; Page: [283] the very Portuguese who had committed the deeds as well as other persons who had been eyewitnesses. I refer to that Martinus Ape whom we mentioned just above. Out of that pitiable throng, he alone, save for two seventeen-year-old boys, was granted a respite, though not actually saved, through the entreaties of the Portuguese priests, even after he had been condemned and led forth for execution. In other respects, these priests have been exceedingly hostile toward the Dutch, so that in this circumstance, too, one may recognize the intervention of Divine Providence. Ape was sent from Macao to Malacca, and from Malacca to Goa, whence—his life having been spared by the Governor, despite the fruitless protests of the magistrates—he set out for Portugal. But he was detained again in Bayona, a town of Galicia, where once more his customary good fortune protected him. For after a long interval during which a letter from the King was awaited, Ape was finally released. He departed, and two days later the letter arrived, summoning him to the Royal Court and, beyond any shadow of doubt, to what would have been his death.

Sixth Episode In the year 1602, in OctoberIn the light of such a remarkable example, hardly any other incident will seem worthy of narration. Nevertheless, we find that there was another, more recent and no less illustrative of perfidy, which befell the companions of Van Warwijck at the island of Annobon, two degrees distant from the Equator. At this spot, quite shortly before, while some Frenchmen were on their way to attend Mass, many of them had been slaughtered almost at the very altar, and the rest had been captured. First of all, then, in this same place, when the Portuguese saw the Dutch heralds coming towards them and displaying the insignia of peace, they loosed their weapons against persons who by the law of nations should have been regarded as inviolable. One man fell. Not long afterwards, eight more Dutchmen were intercepted by means of an ambuscade and were put to death; others were wounded. Furthermore, even after a parley had been requested and granted, and in the very midst of the solemn conference, the Portuguese tore down the flag of truce that had been raised on their own side and, conducting themselves as if the bonds of good faith had also been loosed, attacked with weapons the incautious and Edition: current; Page: [284] entirely unsuspecting Dutchmen; nor did they fail to inflict injury in so doing.Edition: 1950; Page: [88]

Article IVThus we maintain that the Portuguese are men of bad faith, assassins, poisoners, and betrayers. We have taken note of the crimes which are recorded above, and because of which (as no moderately rational person will deny) war could and should have been undertaken against the Portuguese quite apart from any connexion between those crimes and the King of Spain. But I shall not press even this point. On the contrary, if I do not succeed in proving, by the clearest possible narration of various episodes, that the Portuguese, before they had been harmed by the Dutch in any way whatsoever, treated the Dutch nation and Dutchmen as enemies, waging public war against them in the Orient, and that armed force was first employed by the Portuguese themselves, then it will not be my wish that other considerations should avail the cause which I plead.

First Episode In the year 1596When the Dutch ships that first set sail for the East Indies had been following that course for a month, they encountered four Portuguese vessels, or caracks, which appeared not all at one time, but separately. Subsequent events served to indicate that these caracks, isolated as they were, could have been captured; and one of them came so close that it undoubtedly would have been seized and held, if the Dutch had so desired. But our men made no attempt of this kind. In fact, after offering every sort of kindly service, they sailed past without inflicting any injury. Moreover, when they had reached Java and the atrocious crimes of the Portuguese were presently revealed, these same men nevertheless refrained from taking vengeance, although it would have been easy to seize the ship that was bearing the Malaccan envoy, who even at that time was a wholesale vendor of Dutch blood.

The Portuguese, on the other hand, had already associated themselves with the plans of the Rajah of Demak to the extent of agreeing to combine their own maritime forces with his fleet for the purpose of making war upon the Dutch and intercepting the ships that passed between Java Edition: current; Page: [285] and the islands of Panjang. Soon afterwards, when some of the Dutch were attempting to return to their ships at Bantam, they found the port blockaded by the Portuguese. In regard to this matter, the Shabandar advised the Dutch that considerations of good faith made their security within the city the concern of the Regent, but that they would have need of their own foresight and valour to prevent any untoward incident outside the city limits. The Portuguese also lent their assistance in the plots woven by Toemenggoeng, which we have already described, and in the treachery devised at Sidajoe.Edition: 1950; Page: [88]

Second Episode In the year 1597As the Dutch prolonged their stay at Bantam, the Portuguese and the Regent of Bantam himself became allies in certain warlike enterprises whose basic pacts have been outlined in an earlier part of this chapter. Moreover, a band of men appeared under the leadership of Manoel, brother of the Governor of Goa, a band sent out by the state and sworn to the task of destroying the Dutch. There were four very large battleships, three ships of war of the kind known to us as galleys, and almost thirty brigantines. This force had been prepared by the Portuguese for use against the Hollanders, whom they were seeking. Enraged by the discovery that the Hollanders had departed, the Portuguese even turned the weapons taken up against us upon the inhabitants of Bantam (to such extremes is Portuguese hatred carried!), alleging as a pretext either the failure of the Bantamese to prohibit the departure of the Hollanders, or their failure to participate equally with the Portuguese in the subsequent pursuit.

Ask yourselves then, O fellow citizens, whether forbearance should be shown to men who from the outset were so disposed that they considered themselves injured if they were unable to inflict injury, and who regard as enemies not only the Dutch themselves but also all persons who do not seem sufficiently hostile toward the Dutch! Their purposes, their inclinations, and their plans were such as we have described; the outcome alone was of a contrary nature. The Portuguese were defeated by the Javanese, a defeat which constituted an added reason for a more yielding attitude in regard to the Dutch.

Edition: current; Page: [286]

Even under these circumstances, however, the fury of the foe and his mad lust for battle were not abated.Third Episode In the year 1599, on September 13 For when Houtman came to Achin, in Sumatra (as we have already related), under the auspices of the Zeelanders, a temporary pretence on the part of the Portuguese gave the impression that the laws of friendship had been re-established there, in contrast with the earlier policy of offence; but in reality the Portuguese spirit of hostility remained unappeased, despite the terrific disaster it had succeeded in bringing upon our naval force when the latter was torn to pieces through the agency of the inhabitants of Achin and in defiance of every dictate of divine law and good faith. Savagely persisting in their molestations, and with the aim of completing the work begun through others, the Portuguese themselves rushed upon the wretched remnants of Dutch ships and sailors, with battle standards unfurled and in a hostile fleet that included approximately twelve ships of war. Force was repelled only by force.

Fourth Episode In the same yearThe first voyage of Van Neck took place at almost the same time. Van Neck (as the Bishop of Malacca himself testifies, in a letterEdition: 1950; Page: [89] addressed to the King of the Spanish realms) had caused no injury or loss whatsoever to the Portuguese or to any man. Now, it was by his order that a ship called the Utrecht sailed to Amboyna and thence to the [other] Moluccas, where the voyagers suffered truly grievous injuries at the hands of a hostile people (for Tidor, one of the Moluccas, is held by the Portuguese), and where they presently learned that men had also been sent to Malacca and to the Philippines in order to procure assistance in driving the Dutch out of the entire region and preventing their appearance there in the future. But the peril thus threatened was forestalled by the withdrawal of the Dutch.

Fifth Episode In the early part of the year 1601Nevertheless, owing to the fact that Cornelis Heemskerck (who had been left behind by Van Neck) remained at Amboyna with two ships, the Portuguese persevered night and day in their threats against our light boats and skiffs; and after an interval marked by ventures of little importance, they completed the task of equipping twenty-two caracores and three brigantines. Not daring to make an assault, however, even in Edition: current; Page: [287] such circumstances, they devoted themselves to arranging—under cover of the dark, or by secretly ascending various promontories—snares and conflagrations which the prudent and ever-watchful Dutchmen easily avoided.

Sixth Episode In May of the same yearShortly afterwards, it so happened that Adriaan Veen sent three men, in an East Indian proa, across the sea to Cornelis Heemskerck, that is to say, from Banda to Amboyna. One of these three was Jacob (surnamed Waterman), a surgeon by profession. The Portuguese fell upon them unexpectedly, in vastly superior numbers and strength, so that no recourse against the assailants remained other than flight. Two of the three Dutchmen hurled themselves into the sea and after strenuous efforts reached a nearby island where, dwelling in solitude among wild beasts, they nevertheless found all their surroundings to be more gentle than the Portuguese. The third man, Jacob, who did not know how to swim, fell into cruel hands. It is certain that he was slain. According to a persistent rumour that spread through all the East Indies, he was torn asunder and the pieces of his body were scattered about by means ofEdition: 1950; Page: [89] four ships of war violently rowed in different directions. Nor is there any less reason for crediting this report than there is for believing the account (recorded in an earlier part of this chapter) of what was done to the Frenchmen16 who were placed in bronze cannon and shot out as missiles. It is at least an established fact that many persons saw Jacob’s head after it had been severed from his body and hoisted high above the caracore, as if on a frame for the display of spoils.

Seventh Episode In the same yearIn the meantime, the fleet previously mentioned, which was intended to drive the Dutch from the Moluccas and from Banda, was being fitted out more fully. Furthermore, letters and messengers were being dispatched to all the ruling personages of Java and other islands, intimating that the activities in question had been undertaken by the Portuguese in order to protect the natives from despoliation by the Hollanders, and Edition: current; Page: [288] that the forces of all those rulers and peoples ought therefore to unite with the Portuguese, as with the true liberators of the Orient. Van Neck had already paid a second visit to the regions involved, but when he was warned in advance by the Regent of Bantam regarding this matter, he made his way to Ternate with two ships, trusting in the worth of his cause and in his own valour. There he ascertained that what he had heard was entirely true. For the King of that island was being incited to lend aid against the Dutch; and furthermore, the Portuguese—with two caracks, the same number of galleys, and one warship—were hugging the shore and awaiting a favourable time and occasion for setting fire to the Dutch ships. In that same spot, a battle took place in which artillery was employed.

Article VAssuredly, all of these facts furnish such clear and palpable proof of a hostility transcending the bounds of human hatred, that any person who craves more certain evidence must be blind even to the light of noonday. For what fuller proof could be desired than the fact that the Portuguese, in pursuing their noxious course, spared neither the reputation nor the property nor the lives of the Dutch, just as they spared themselves neither expense nor danger nor even violation of good faith?Edition: 1950; Page: [90]

Nevertheless, there is one additional point which stirs me still more deeply, and by which the noble spirits of those who cherish the fatherland and its fair fame will, I believe, be yet more keenly affected. For I shall show that the Portuguese raged no less savagely against all the peoples who permitted the entry of the Dutch for purposes of trade, than they did against the Dutch themselves—or indeed, even more savagely, in proportion to the more warlike qualifications and greater power of those peoples—with the result, naturally, that throughout the whole Orient the very name of Holland grew to be utterly abhorrent as the symbol of a loathsome curse, the fount and origin of every calamity for the natives.

First Episode In the early part of the year 1601Thus we find (without pausing to repeat here any of the details relative to the war against the people of Bantam which has been described above) that at the time of the appearance in Amboyna of Cornelis Heemskerck, Edition: current; Page: [289] whom we have already mentioned more than once, the Portuguese had publicly outlawed under pain of death not only the Dutch but likewise the chief men of that locality, and had set a price of one hundred reaes on the head of each man affected by the order. They had also provided an inducement for the assassination of the governor of the citadel located at that point, by promising the same reward as in the case of the commander of the Dutch fleet, thus informing the inhabitants of the island that they must share a common fate with the Dutch. During the same period, finding themselves quite unable to prevail against our ships, the Portuguese made a vigorous attack upon Lusitello, a walled town on the island of Amboyna. After being driven back, they abandoned the assault in favour of a siege. The situation had become critical for the defenders of the town, owing to a lack of provisions, when the leaders of the islanders formally approached our men as suppliants, begging for protection and material aid. The arrival of Dutch ships resulted in the delivery of the besieged, and brought glory to the Dutch themselves.

The Portuguese, however, renewed all their threats immediately afterwards. For they boasted far and wide, not only that they would prevent the name of Hollander from ever again being heard in thoseEdition: 1950; Page: [90] regions, but also that they would lay waste every city and every island where our compatriots had set foot.

Second Episode Toward the close of the year 1601, and in the early part of the year 1602The Spanish royal fleet which, as a favour to the King of Calicut, had subdued Cunala (the pirate chief of the Malabar Indians, notorious for his fifty years of freebootery and his usurpation of the royal insignia), was dispatched upon the completion of that war, from Goa all the way to the Strait of Sunda, which lies between Java and Sumatra, with instructions that the force of the said fleet should be turned in this direction. Simultaneously, ships from other Portuguese colonies were assembling. The combined forces now numbered almost thirty vessels: five galleons from Goa, including one commanded by Andrés Hurtado de Mendoza (Admiral of the fleet), another commanded by Thomaz Souza de Rocha, a third under the command of Francisco Silva Meneses, a fourth under Antonio Souza, and a fifth under Lopes Dalmeyda; two caracks from Malacca, commanded by Trajano Rodrigues Castelbranco Edition: current; Page: [290] and Jorge Pinto; one from Cochin China, under the command of Sebastião Suares, and, for the rest, brigantines or galleys entrusted to the orders of André Rodrigues Palota.

The city of Bantam, which had previously been the first to receive the Dutch, was likewise the first to be hailed to punishment. According to information obtained later from Francisco Souza (the son of João Teves, an accountant in Lisbon) as well as from other captives, the Portuguese plan involved, first, an assault upon the market-place (known as the Bazaar) outside of the city, toward which the leaders of the attacking party and those persons from among the populace who had been bought over by the Portuguese were to converge suddenly at a given signal; and from there, after breaking through the defence of the Chinese guards, the assailants would rush upon the city itself. Success was felt to be so certain that bitter contention arose between the monks and the Jesuits over the prospective allotment of sees. Moreover, orders had been given that, once Bantam was stripped of its defences, Banda,Edition: 1950; Page: [91] Amboyna, and Ternate should be compelled to submit to Spanish rule. With these ends in view, the Portuguese had brought not only instruments of warfare, but also money and spices, as rewards to be given the barbarians in exchange for treachery.

God shattered their monstrous arrogance, abruptly and unexpectedly, as He is wont to do in extraordinary manifestations of His power. Precisely at the moment when the Portuguese were intent on the destruction of Bantam, the Dutch, ignorant of these plans, arrived with the purpose of trading, in several ships commanded by Wolphert Harmensz, a man especially entitled to honourable mention, since not merely the East India Company but the very reputation of the Dutch (so I venture to say) has scarcely ever been more deeply indebted to any individual. A small Chinese vessel came to meet Harmensz, at the Strait of Sunda itself. A [Chinese] sailor gave warning that the open sea was beset by the Portuguese [and Spanish] fleet, so that, being aware of the Portuguese desire for the destruction of the Dutch, he was taking anticipatory measures in order that the latter might have an opportunity to flee unharmed. For no one supposed that a battle would take place, inasmuch as the opponents were in every respect far from evenly matched. From a numerical Edition: current; Page: [291] standpoint, what could be accomplished by Wolphert’s four ships and one cutter, as against thirty enemy vessels? From the standpoint of bulk, the total tonnage of all the Dutch vessels was not equal even to that of the single ship that bore Andrés Hurtado. As for the men available on the respective sides, the entire number attached to the Dutch fleet amounted to three hundred and fifteen, whereas the Spanish fleet carried eight hundred Portuguese and, in addition, at least fifteen hundred East Indian soldiers, not to mention the throng comprised in the crews. The Dutch were inferior in everything save their spirit and their cause. Nevertheless, when they visualized the baseness of flight, the disgrace to their nation and the harm17 that would be suffered by each man’s household if the East Indian trade of the Dutch should be lost to posterity, they sailed through the strait and advanced until they were within sightEdition: 1950; Page: [91] of the enemy. The Portuguese growled in indignation. Sounding the war-trumpet and unfurling their battle flags, they roused the echoes with the din of artillery and, as they neared each of the opposing ships, called continually upon the Dutch to lower their sails and announce their surrender. But our men, who had by no means been taught in their native land to conduct themselves in the manner suggested, deliberately spread their sails in order to check with deeds this verbal insolence; and, borne toward the foe by the winds, they proceeded to defend themselves by discharging their weapons. Fortune favoured the brave, even though one of the Dutch guns blew up during the initial stages of the battle, causing great consternation. The Dutch recovered their courage, however, and resumed the struggle, capturing first one Portuguese ship and then another. Several of the captured vessels were so thoroughly riddled with shots that they could be of no further use, and therefore they were sunk, after the men had been taken off. The Portuguese, instantly subdued by this defeat (a reaction typical of persons who are excessively bold while circumstances are auspicious), did not dare to engage in battle during the days that followed, despite the fact that the winds favoured them. On the other hand, after the manner of wild beasts that do not lay aside Edition: current; Page: [292] their wrath even when stripped of their strength, the enemy set fire to a number of their own ships, which were then launched against the Dutch in an attempt to satisfy the demands of hatred without disregarding the voice of fear. All in vain! For the fires burned themselves out within those very ships.

While the Dutch were pressing forward with an eagerness born of the conviction that the doors of trade would not be thrown open to them unless the enemy was routed, the Portuguese abandoned Bantam in cowardly fashion, and fled to the Moluccas. The victors, refraining from pursuit, approached the city thus liberated by them, in order that they might first accomplish the purpose for which they had come. A marvellous tale could be told regarding the congratulations and rejoicings with which they were received as conquerors by the Javanese, and the great fame which attached itself to the Hollanders and spread throughout the islands, so that this occasion may truly be described as the dawn of a supremely happy day for both the Dutch and the Oriental peoples.

But the Portuguese were cruel even in their flight. For, keepingEdition: 1950; Page: [92] at a distance and believing themselves to be far removed from the avenger, they proceeded to indulge in unpunished acts of robbery; nor had the turn for the worse in their fortunes wrought any change of heart in these men who were bewitched by hatred, aside from the fact that they were desirous of greater security while they sinned.Third Episode In the same year (1602) Accordingly, they hastened first to Amboyna, where at that time no Dutch ships were stationed. Itys, as well as the other inadequately fortified towns of Amboyna, and subsequently all of the surrounding country-side, were attacked and devastated by them. The inhabitants were subjected to the same savage treatment that the people of the Low Countries had often suffered at the hands of the Spaniards. Slaughter was practised without distinction of age or sex; little children and women were slain indiscriminately. Nor were they merely slain; for some of the Portuguese cut off the limbs of young children before the very eyes of the parents, and others searched with their swords both the wombs of pregnant women and bodies that were unquestionably innocent. A number of natives, whom time had favoured with an opportunity for flight, abandoned Edition: current; Page: [293] their ancestral homes and property after being warned by these examples, and betook themselves to deserted regions, full of bristling forests or precipitous mountains. Another group crossed over to the neighbouring island of Ceram.

It so happened that a Dutch cutter had been sent to that locality by Wolphert [Harmensz.], who was staying in Banda at the time. A deputation from Amboyna encountered the cutter and accompanied it to Banda, rejoicing in the midst of so many sorrows. Admitted to the presence of the commander, displaying in their very aspect the stamp of their current misfortunes, and even interrupted by tears, the men from Amboyna related the experiences which they had undergone. They added (though the fact was sufficiently self-evident) that these disasters had befallen them because they had cultivated commercial relations with the Dutch. Accordingly, they argued amid entreaties—in the name of God, who was granting the Dutch such felicitous voyages upon the ocean and such brilliant victories over the Spaniards; in the name of the justice characteristic of Hollanders and famous as a result of their commercial activities; and in the name of that good faith which the suppliants, following the dictates of their judgement, now regarded as the last source of aid in their desperate straits—that the Dutch should not suffer them, exiled as they were from their native land and utterly destitute, to become in addition the playthings of an enemy unsurpassed in cruelty.

Any human being whatsoever, and most of all any DutchmanEdition: 1950; Page: [92] (for the Dutch are by nature gentle and compassionate), might well have been moved by this plea. The commander, indeed, had been more than a little troubled by it, but he realized that the business entrusted to him as his chief care could not be neglected for the sake of these unfortunates. The time of year, too, was one that called for diligence in the conduct of trade. He therefore excused himself, while expressing the hope that the Dutch Prince and State would take to heart the cause of vengeance in behalf of the people of Amboyna. As the one measure permitted by circumstances, he released the captives whom he had taken in the battle of the Strait of Sunda (including Francisco Souza himself), freeing them without ransom and sending them to the Portuguese in Amboyna. He also supplied them with arms and provisions, so that this kindly deed Edition: current; Page: [294] would be in no respect incomplete. His hope was that the spirit of the Portuguese, howsoever savage, might be elevated and softened by the example he was setting, and that they might be induced to adopt a gentler attitude in their own turn toward the inhabitants of Amboyna, by this merciful forbearance toward the Portuguese themselves on the part of the victorious Dutch. But the outcome belied his hope. The deed of goodwill was worse than wasted upon men completely lacking in justice, men who were wont to interpret ingenuousness as folly and moderation as cowardice: not only was nothing gained by the generous gesture, but the Portuguese even persisted in their crimes all the more boldly because of it, rendered confident by so notable an example of clemency that there was no act of brigandage which they could not commit with impunity.

Fourth Episode In the same yearAt last, however, when opportunities for plunder and cruelty had begun to fail them in Amboyna, they pressed on to Makian (one of the Moluccas), with seven warships, four galleons, and several caracores. There they loosed their rage, torturing the inhabitants, laying waste the fields and burning down the houses. Moreover, the chief city of the island (Tabosos [?]18 by name) was set on fire by the Portuguese, and sank in ashes. Makian, to be sure, and also the adjacent islands, are under the rule of the King of Ternate, who was showing the Dutch people a great deal of kindness at that time, an attitude which was a source of anger to the Portuguese and of misfortune to the natives. In fact, at that very moment a ship called the Utrecht from the fleet of WolphertEdition: 1950; Page: [93] [Harmenszoon] (the smallest ship of all) had stopped at Ternate for purposes of trade, in company with a cutter. The inhabitants of Makian, apparently remembering that regal rank goes hand in hand with the duty of defending subjects, came to Ternate and sought out their ruler with the plea that he should either restore the dwellings of which they had been forcibly deprived, or else provide his wretched people with some safer shelter. The King made ready to go to the aid of his subjects, and Edition: current; Page: [295] also prevailed upon the Dutch to stand by him, although two ships scarcely worthy to be reckoned as such would furnish very little assistance against a whole fleet.

As [the King and his party] sailed nearer, they beheld the ill-fated island alight with flames and, shortly thereafter, the Portuguese, rushing to attack them in the most ferocious manner. For the courage of the Portuguese had increased when they saw themselves matched against East Indians, a hundred of whom they customarily regard as scarcely comparable to one individual from among their own men. Nevertheless, partly in consequence of advice offered by the Dutch, partly owing to the indignation felt by the victims of such grievous injuries, and also because the good fortune of the Dutch had by now created a belief in the possibility of vanquishing the Portuguese, an equal conflict was waged throughout the entire day between opponents unequal in skill and in strength.

A month later, the King of Ternate again set forth accompanied by the Dutch. Sailing past the island of Tidor, and encountering fifteen Portuguese caracores, he paused—motionless and with weapons held in check—waiting until the foe should call down upon himself the vengeance of God and man by being the first to enter upon the task of slaughter. As soon as this had occurred, the King rose up in all his courage and just desire for revenge. After capturing one of the Portuguese ships, he returned triumphantly to his kingdom.

In the meantime, the Portuguese had desolated Makian so thoroughly that the island was stripped of practically everything save the bare and lifeless soil. Moreover, just as a devouring flame spreads to new objects with a force that increases in proportion to its earlier inroads, so the Portuguese, coveting richer spoils in consequence of those already acquired, approached Ternate itself, with five [war]ships and four galleons. There the Dutch (who hitherto had remained close to the shore),Edition: 1950; Page: [93] seeing themselves surrounded by a multitude of enemies, first weighed anchor and then laid for themselves a more open course. Next, mindful of the fact that their mission was commercial and not martial, and of the further fact that they had already incurred rather grave losses in wasted time and scarcity of cargo, they departed with the King’s permission, Edition: current; Page: [296] leaving behind some of their own men who were to cultivate his friendship and through whose aid and advice he might better prepare himself against the enemy. For the Portuguese, restored to even greater arrogance by the withdrawal of the Dutch, had attacked the island and were ravaging and burning certain nearby districts which had been abandoned by the terrified inhabitants.

Even now, the Portuguese continue to wage war against the King of Ternate, although it has been reported that at a later date their audacity in that contest most fortunately diminished.

Nor should we omit to mention the considerable care taken by them lest any distinction whatsoever be made between themselves and the Castilians, who are old enemies of the Dutch. Indeed, in this war centring about Ternate and directed primarily against us, the Portuguese made use of auxiliary troops and of ships sent from Manila (for the Castilians have found their way to that city, too), just as they sought aid from the Philippines on other occasions which we have already noted. Thus the two peoples in question, who in other respects are sufficiently lacking in mutual concord, nevertheless make it quite clear that they have banded together for the purpose of destroying the Dutch.

Fifth Episode In the same yearWe come now to the last part of our narrative, which has to do with the King of Johore. When I think of this monarch, I sincerely feel as if I were gazing upon the supreme and true reward of our voyages to the East Indies, and as if I were justly giving thanks to the tutelar deity of a fortunate fatherland.

For when Jacob Heemskerck came to the East Indian lands and while he was staying at Patani, whence he directed his attempts to gain access to the ruler of Johore, the King responded not only by letter butEdition: 1950; Page: [94] also through his brother, the Prince of Siak, saying that he would be most happy to welcome Heemskerck, that his kingdom and its commerce were freely accessible, and that Heemskerck had only to behold them in order to assure himself both that the territory of Johore was richer than the other regions in those goods which the Dutch were seeking, and that the sovereign of Johore himself differed greatly from the other East Indian rulers in his inclinations and sentiments. He added Edition: current; Page: [297] that the good faith of the Hollanders was clearly evident to him, and that he would esteem nothing more highly than the friendship of those whom he knew to be as faithful to their allies as they were invincible to their enemies.

When the Portuguese learned of these negotiations, they dispatched a deputation from Malacca which was under orders not only to discourage the King, by means of slanderous lies, from engaging in trade with the Dutch, but also to threaten that implacable war would be waged against him if he did not desist from his purpose. But even these measures did not induce him to break his promises. He answered the Portuguese in a spirited yet equitable manner, to the following effect: he himself had never found the Hollanders to be as the Portuguese depicted them; to be sure, he had heard that injuries inflicted were valiantly avenged by them, and he really did not see how such vengeance could be censured; in any case, since he entertained no desire to inflict injury, he placed full confidence in the Hollanders; if any enmity existed between them and the Portuguese, that was a matter which in no wise concerned him; nor, indeed, was it right that the Portuguese should issue orders to him as to what his conduct ought to be within his own kingdom; on the contrary, it would be more fitting if the Portuguese, as occupants of Malacca (for the King of Johore claimed that region, too, as his own by ancestral right, even though he had been forced to relinquish possession), should obey his laws. These observations proved so offensive to ears impatient of the truth, that three warships and five brigantines were straightway sent to the mouth of the river flowing through the Kingdom of Johore, for the twofold purpose of blocking the approach of the Dutch, and harassing the inhabitants of the territory near that same shore with slaughter, with pillage, and, in short, in theEdition: 1950; Page: [94] true Portuguese manner. The King wrote to Heemskerck (who at that time was near the island of Tiuman,In the year 1603 engaged in preparing vengeance for the injuries suffered by himself and by his allies), giving a full and careful account of all these matters, and entreating Heemskerck to prevent the benefactions conferred by the said monarch upon the Hollanders from bringing destruction upon the benefactor.

The outcome clearly revealed how holy and how pleasing, in the eyes Edition: current; Page: [298] of our Heavenly Father, is the defence of those who have been unjustly oppressed. For the door to Johore was thrown open, commercial agreements were concluded, and—in the very locality where the Portuguese had practised their policy of rapine against the King of Johore because of their hatred for the Dutch, and while that ruler himself witnessed the capture from on board a Dutch vessel—a conquered Portuguese ship fell into Dutch hands.

In the light of the foregoing account, it is evident that the men who sailed to the East Indies as emissaries of the various Dutch companies (now united in a single organization) did not regard the Portuguese as enemies, even though the latter were enemies in actual fact. On the contrary, we see that these emissaries, in an attempt to establish amicable relations, waived the right to make war as long as it was at all possible for them to do so. Thus the first ship’s captains to be sent out were not even given the official papers, or mandates, conferring martial powers, which as a general rule are not denied to any Dutchman. Furthermore, although such papers were indeed received by the captains dispatched at a later date, they were used very sparingly. For the recipients availed themselves of these mandates either in order to defend against actual attacks their own lives and the fortunes entrusted to them, a course of action rendered obligatory by the precepts of nature and the principle of good faith, or else on their own initiative, as an aggressive measure against the perils that threatened them, lest they should continually be, or seem to be, beset by fear. These were the motives that inspired the conduct of Van Neck at Tidor, and of Wolphert [Harmenszoon] at Bantam.

Finally, after a long series of crimes that made a mockery of Dutch candour in the manner already noted by us, the laws of war, which had remained inactive and in a more or less dormant state, were revived and openly put into practice. Even then, the Dutch did not choose to squander human life recklessly in the Portuguese fashion. On the contrary, the war was waged with almost excessive clemency. Thus nothing beyond repayment of the vast expenditures required for the protection of men, ships, and property was exacted by the armed force of the Dutch from Edition: current; Page: [299] the very persons whose armed violence had necessitated those expenditures.In the year 1602, on March 16

First of all, a carack was seized by the Zeelanders, who took this step (near the island of Saint Helena) very tardily and only after displaying great patience. The seizure did not occur, moreover, until the Zeelanders had been provoked by a hostile response to their overtures and by previous recourse to armed attack on the part of the Portuguese. Furthermore, even though the Zeelanders had learned that those same Portuguese were under orders to make war upon them, and even though they were acquainted with the plans for the execution of the orders, nevertheless, being mindful in victory of their own humanity rather than of the injuries for which others were responsible, they not only saved those of their enemies who were in immediate danger of drowning, but actually transported the latter overseas to an island lying off the coast of Brazil. There the Zeelanders provided additional assistance in the form of supplies of every kind, and built a small boat for the Portuguese (not without expenditure of time and toil) to facilitate contact with the mainland.

The Hollanders were somewhat slower even in resorting to such action. Not a single seizure was made by them prior to the capture of the carack by Heemskerck, which took place when they were particularly stirred by the disasters visited upon their friends, and after theyEdition: 1950; Page: [95] themselves had endured seven years of injuries and losses in the East Indies, resulting from the violence or the perfidy of a hostile people. Not without reason, then, do we marvel that any doubt should be entertained as to whether that seizure was a rightful act.

Edition: current; Page: [300]

CHAPTER XII: Wherein It Is Shown That Even If the War Were a Private War, It Would Be Just, and the Prize Would Be Justly Acquired by the Dutch East India Company; and Wherein, Too, the Following Theses Are Presented:

Here follows an analytical discussion.Edition: 1950; Page: [96]1

1. Access to all nations is open to all, not merely by the permission but by the command of the law of nations.

2. Infidels cannot be divested of public or private rights of ownership merely because they are infidels, whether on the ground of discovery, or in virtue of a papal grant, or on grounds of war.

3. Neither the sea itself nor the right of navigation thereon can become the exclusive possession of a particular party, whether through seizure, through a papal grant, or through prescription (that is to say, custom).

Edition: current; Page: [301]

4. The right to carry on trade with another nation cannot become the exclusive possession of a particular party, whether through seizure, or through a papal grant, or through prescription (that is to say, custom).

For if the seizure of the carack is carefully considered in the light of the doctrines above set forth concerning justice in relation to war and to spoils, we shall find that there is absolutely no respect in which the said seizure fails to accord perfectly with those doctrines.

First of all, then, with a view to covering all of the points included in that discussion of justice, let us treat of the incident as if we were dealing not with an act of public warfare (as is really the case) but with an act of private warfare. In other words, I suggest the following procedure: consider the cause of the East India Company as something apart from the public cause of the Dutch nation; imagine that the Company consists, not of Dutchmen who have long been at war with the Portuguese, but rather of any other [people]2 whatsoever, such as Frenchmen, Germans, Englishmen, or Venetians; and reflect carefully as to whether, in these circumstances, [any reason would exist to prevent us from] regarding the prize as justly and blamelessly acquired. After weighing the private cause involved, examine the public cause. Furthermore, in regard to both these phases of the subject, ask yourselves what was permissible [with respect to] the authors of the war who were Edition: current; Page: [302] acting on their own behalf, [and] what, [on the other hand,] was permissible [with respect to] allies. Turn your attention next to the question of the subjects, and weigh all the classifications and definitions of cause from the standpoint of the individuals involved.

Deduction from Article I, Conclusion V Initial passage and part relative to demonstration or explanation of same; Chap. vi, supra, pp. 92 ff.Now, in regard to the first phase of this examination, and in so far as it relates to the persons concerned, we find that Nature—the mistress and sovereign authority in this matter—withholds from no human being the right to carry on private wars; and therefore, no one will maintain that the East India Company is excluded from the exercise of that privilege, since whatever is right for single individuals is likewise right for a number of individuals acting as a group.

Accordingly, let us pass on to an investigation of the next point to be considered: the cause from which the war arises. We have already observeda that those same causes which render war just for the aggressor when they themselves are just, transfer this quality to the party defending itself b if that justice is wrongfully claimed for them. Therefore, let us ask of the Portuguese themselves, what it is that they require of the East India Company. Undoubtedly they will reply that their sole demand is this: that no one save themselves shall approach the East Indies for purposes of trade. Such a request, even if it were justly made, would still not serve automatically as an excuse for the stratagems and perfidious crimes above described. Nevertheless, since this pretext is pertinentEdition: 1950; Page: [96] to many of the points under discussion, it should be given consideration at the very outset.

Now, in the first place, we hold that, by the authority of that primary law of nations whose essential principles are universal and immutable, it is permissible for the Dutch to carry on trade with any nation whatsoever.

Thesis IFor God has not willed that nature shall supply every region with all the necessities of life; and furthermore, He has granted pre-eminence in different Edition: current; Page: [303] arts to different nations. Why are these things so, if not because it was His Will that human friendships should be fostered by mutual needs and resources, lest individuals, in deeming themselves self-sufficient, might thereby be rendered unsociable? In the existing state of affairs, it has come to pass, in accordance with the design of Divine Justice, that one nation supplies the needs of another, so that in this way (as Plinya observes) whatever has been produced in any region is regarded as a product native to all regions. Thus we hear the poets sing,

  • Nor yet can ev’ry soil bear ev’ry fruit;b

and again,

  • Others [the seething bronze] will mould [in lines
  • More fair. . . .]c

together with the remainder of the same passage.3

Consequently, anyone who abolishes this system of exchange, abolishes also the highly prized fellowship4 in which humanity is united. He destroys the opportunities for mutual benefactions. In short, he does violence to nature herself. Consider the ocean, with which God has encircled the different lands, and which is navigable from boundary to boundary; consider the breath of the winds in their regular courses and in their special deviations, blowing not always from one and the same region but from every region at one time or another: are these things not sufficient indications that nature has granted every nation access to every other nation? In Seneca’sd opinion, the supreme blessing conferred by Edition: current; Page: [304] nature resides in these facts: that by means of the winds she brings together peoples who are scattered in different localities, and that she distributes the sum of her gifts throughout various regions in such a way as to make reciprocal commerce a necessity for the members of the human race.

Therefore, the right to engage in commerce pertains equally to all peoples; and jurisconsultsa of the greatest renown extend the application of this principle to the point where they deny that any state or prince has the power to issue a general prohibition forbidding others to enjoy access to or trade with the subjects of that state or prince. This doctrine is the source of the sacrosanct law of hospitality. It is the basis of the Trojan complaints:Edition: 1950; Page: [97]

  • What kind of men are these? What land allows
  • So barbarous a custom? We are barred
  • From welcome to its shores. . . .b

This other passage, too, is pertinent:

  • A harmless landing-place we crave, and air
  • And water, which are free to all. . . .c

Moreover, we know that certain wars have been undertaken precisely on such grounds. This was true, for example, of the Megarean war against the Athenians,d and of the Bolognese war against the Venetians.e Similarly, Victoriaf holds that, if the Spaniards should be prohibited by the American Indians from travelling or residing among the latter, or if they should be prevented from sharing in those things which are common property under the law of nations or by custom—if, in short, they should be debarred from the practice of commerce—these causes might serve them as just grounds for war against the Indians; and, indeed, as Edition: current; Page: [305] grounds more plausible than others [discussed by Victoria in an earlier section of the same work]. A like example is recorded in the story of Mosesa and in a passage from Augustineb based upon that story. I allude to the fact that the Israelites waged war justly against the Amorites because the right of inoffensive transit through the Amorite territory was denied them, even though such transit ought to be freely permitted according to the absolutely just law of human fellowship. Hercules, too, made war upon the King of the Orchomenians,c and the Greeks (under the leadership of Agamemnon) upon the King of the Mysians, on this same ground, namely, that highways are (so to speak) free and open by natural disposition, as Baldusd has declared. Yet again, according to Tacitus,e the Germans accused the Romans of preventing conferences and assemblages among the various tribes, and of blocking off lands, rivers, and, in a sense, the very skies. Nor did the Christians in earlier times find any more acceptable justification for their crusades against the Saracens than the charge that the latter were barring the Christians from access to the land of Palestine.f

From the doctrine above set forth, it follows that the Portuguese, even if they were the owners of the regions sought by the Dutch, would nevertheless be inflicting an injury if they prevented the Dutch from entering those regions and engaging in commerce therein. How much more unjust, then, is the existing situation, in which persons desirous of commerce with peoples who share that desire, are cut off from the latter by the intervention of men who are not invested with power either over the said peoples or over the route to be followed! For there is no stronger reason underlying our abhorrence even of robbers and pirates thanEdition: 1950; Page: [97] the fact that they besiege and render unsafe the thoroughfares of human intercourse.

Edition: current; Page: [306]

In any case, we hold that the Portuguese are not the owners of the regions visited by the Dutch (that is to say, Java, Sumatra, and most of the Moluccas), on the basis of the incontrovertible argument that no one is owner of a thing which has never been taken into his possession either by his own direct action or by another party acting in his name. The islands in question now have, and always have had, their own rulers, governments, statutes, and legal systems. The Portuguese, like other peoples, are permitted to carry on trade there. Indeed, by paying the tributes levied and also by the very act of petitioning the rulers for the right of trade, the Portuguese themselves testify clearly enough to the fact that they are not the owners of those lands, but foreign visitors. Their very residence in the islands is allowed as a favour.

Moreover, aside from the fact that title does not suffice to constitute ownership, since possession is also a requisite (for possession of a thing is different from the right to seek possession thereof), I go so far as to assert that the Portuguese do not even have any title to ownership of the said regions which has not been taken from them by the pronouncements of learned men, among whom certain Spanish authorities are included.

In the first place, if the Portuguese maintain that those territories have passed into their hands as a reward for discovery, their contention will find support neither in law nor in fact.

DiscoveryFor discovery consists, not in perceiving a thing with the eye, but in actual seizure, as is intimated by the Emperor Gordian in one of his letters.a Thus the philologistsb treat the expressions “to discover” (invenire) and “to take possession of ” (occupare) as synonymous terms; and, according to all Latin usage,c we have “discovered” only that which we have acquired (adepti), the opposite process being that of “loss” (perdere). Furthermore, natural reason itself, the express statements of the Edition: current; Page: [307] law, and their interpretation by men of considerable learning,a all clearly indicate that discovery suffices to create a title to ownership only when possession is an accompanying factor;b that is to say, only in cases where movable articles are seized, or immovable property is marked off by boundaries and placed under guard.c In the particular case under discussion, it is in nowise possible to maintain that this requisite hasEdition: 1950; Page: [98] been met; for the Portuguese have no garrisons stationed in those East Indian lands.

Besides, what answer can be made to the objection that the Portuguese cannot in any sense at all be said to have found the East Indies, a region exceedingly well known for so many centuries past, even as early as the time of Horace? [For we find these lines in his Epistles:]d

  • The busy trader flees from poverty,
  • Across the seas to India’s farthest isle.

And what of the fact that the Romanse have described for us with the utmost exactitude the greater part of Taprobane?5 The other islands, too, Edition: current; Page: [308] were already known not only to the neighbouring Persians and Arabs but also to some European peoples, and in particular to the Venetians—before the Portuguese came to know them.

Thesis IIIn addition to the foregoing arguments, however, it should be noted that even discovery imparts no legal right save in the case of those things which were ownerless prior to the act of discovery.a But at the time when the Portuguese first came to the East Indies, the natives of that region—though they were in part idolaters, in part Mohammedans, and sunk in grievous sinb—nevertheless enjoyed public and private ownership of their own property and possessions, an attribute which could not be taken from them without just cause. This is the conclusion expounded by the Spaniard Victoria with irrefutable logic and in agreement with other authorities of the greatest renown.

Victoriac declares that “Christians, whether laymen or clerics, may not deprive infidels of their civil power and sovereignty merely on the ground that the latter are infidels, unless they have been guilty of some other wrong.” For the factor of religious faith, as Saint Thomasd rightly observes, does not cancel the natural or human law from which ownership has been derived. On the contrary, it is heretical to hold that infidels are not the owners of the property that belongs to them.e And the act of snatching from them, on the sole ground of their lack of faith, those goods which have been taken into their possession, is an act of thievery and rapine no less than it would be if perpetrated against Christians. Thus Victoria correctly maintains that the Spaniards acquired no greater right over the American Indians in consequence of that defect of faith, than the Indians would have possessed over the Spaniards if any of the former had been the first foreigners to come to Spain.

Edition: current; Page: [309]

Furthermore, the Indians of the Orient are neither insane nor irrational, but clever and sagacious, so that not even in this respect can a pretext for their subjugation be found. For that matter, any such pretext is in itself clearly unjust. Long ago, Plutarcha pointed outEdition: 1950; Page: [98] that ἔμερω̑σαι τὰ βαρβαρικά [the civilizing of barbarians] served as πρόφασις πλεονεξίας [a cloak for greed], or in other words, that shameless lust for another’s property was wont to take cover under the excuse of introducing civilization into barbaric regions. Nowadays, even this pretext of bringing reluctant peoples to an acceptance of more refined customs—an explanation to which recourse was had in earlier times by the Greeks and by Alexander—is regarded in the judgement of all the theologians,b and particularly in that of the Spaniards, as unjust and impious.

Secondly,6 if the Portuguese are basing their claim upon the apportionment made by Pope Alexander the Sixth, it will be necessary to take under consideration before everything else the question of whether or not the Pope was interested exclusively in settling the disputes between the Portuguese and the Castilians. This task he was of course empowered to discharge in his capacity as chosen arbiter between the two peoples,c since the respective rulers themselves had previously concluded certain treaties on that very point. If we assume that the settlement of those disputes was the Pope’s sole aim, we must infer that the apportionment was drawn up only with reference to the Spaniards and the Portuguese and therefore will not affect the other peoples of the world. Or was it, instead, his intention to bestow almost a third of the whole earth upon each of the two nations above mentioned? Even in such circumstances—that is to say, if he had intended and had been empowered to make such a donation—nevertheless, it would not necessarily follow that the Portuguese had become the owners of the Orient, since it is not the act of Edition: current; Page: [310] donation but the subsequent delivery that creates ownership.a Therefore, in order to give validity to such a claim, it would be necessary to add the title of actual possession to the title of donation.

Furthermore, anyone who chooses to make a thorough examination of the question of law, whether divine or human, weighing the matter independently of his personal interests, will readily discern that a donation of this kind, concerning as it does the property of others, is without effect. I shall not enter here into any dispute as to the power pertaining to the Pope (in other words, to the Bishop of the Church of Rome); nor shall I make any assertion save on the basis of a hypothesis accepted by the most erudite of those persons who attribute the highest possible degree of authority to the papal office, and among whom the Spaniards in particular are included. The latter have boldly asserted (and I use their own words), that the Pope is not the civil or temporal lord of the whole earth;b for, with their characteristic acuteness, they have readily grasped these facts: that Christ the Lord renounced all earthly sovereignty;c that in His human form He certainly did not possess dominion over the entire world; and that if He had possessed such dominion, this sovereign right could not by any series of arguments be attributed to the Pope or transferred on a vicarious basis to the Church of Rome, inasmuch as it is indubitably true that in other respects, also, Christ possessed many things to which the Pope did not fall heir.d Certain other admissions should also be noted, namely: that even if the Pope did have worldly power of this kind, he would still not be right in exercising it, since he ought to be content with his spiritual jurisdiction;e that, in any case, he would in nowise be able to cede such power to secularEdition: 1950; Page: [99] princes; that, moreover, if he does possess any temporal power, he possesses Edition: current; Page: [311] it, as the phrase goes, for spiritual ends;a and that, consequently, he has no power at all over infidel peoples, since they are not members of the Church.

Thus it follows from the opinions laid down by Cajetan and by Victoria as well as from the preponderant authority of both theologians and canonists,b that there is no sound claim to be urged against the East Indians, either on the ground that the Pope as lord of the East Indian lands gave away this territory by an unrestricted act of donation, or on the ground that the inhabitants fail to acknowledge the papal dominion; and indeed, it is also clear that even the Saracens were never despoiled on such grounds.

Now that we have disposed of the pretexts just discussed, having plainly shown that (as Victoriac himself declares) the Hispanic peoples did not carry with them to still more distant regions any right to take possession of the lands to which they sailed, there remains for consideration only one possible title, based upon war. Such a title, even if it were in itself just, still could not create ownership save through the right attaching to captured property, that is to say, only after seizure. But the Portuguese, far from seizing the lands in question, were not engaged at the time in any war with the majority of the peoples visited by the Dutch. Consequently, there was no legal right that they could claim; for even if they had suffered injuries of any sort at the hands of the East Indians, it could reasonably be assumed that those injuries had been forgiven, in view of the long period of peace and the friendly commercial relations that had been established.

As a matter of fact, there was no pretext that the Portuguese could offer for going to war, since anyone who makes war upon barbarians (as the Spaniards did upon the American Indians) is wont to advance one of two pretexts: either that he is prevented by the said barbarians from Edition: current; Page: [312] engaging in trade, or else that the latter refuse to accept the doctrines of the true faith.

The Portuguese certainly did obtain rights of trade from the East Indians, so that they have no cause for complaint in this respect.

As for the other excuse, it would be quite as unjusta as the argument advanced by the Greeks against the barbarians, to which Boethiusb refers in these terms:Edition: 1950; Page: [99]

  • Do they wage savage frays and unjust wars,
  • Seeking to perish by eachother’s swords,
  • Because they dwell apart, with unlike ways?
  • This is no just sufficient cause for rage.

Moreover, St. Thomas, the Council of Toledo, Gregory, and practically all of the theologians, canonists, and juristsc arrive at the following conclusion: howsoever convincingly and fully the true faith may have been preached to barbarians (it is understood, of course, that quite a different question arises in the case of peoples previously subject to Christian princes, and likewise in the case of apostates), and even though the said barbarians may have refused to accept that faith, it is still not permissible to make war upon them or to deprive them of their goods merely on these grounds. It will be worth our while to quote in this connexion the exact words of Cajetan:

Some infidels (says Cajetan)d do not fall under the temporal jurisdiction of Christian princes either in law or in fact. Take as an example the case of pagans who were never subjects of the Roman Empire, and who dwell in lands where the term “Christian” was never heard. For surely the rulers of such persons are legitimate rulers, despite the fact that they are infidels and regardless of whether the government in question is a monarchical régime or a commonwealth; nor are they to be Edition: current; Page: [313] deprived of dominion over their own peoples on the ground of lack of faith, since dominion falls within the realm of positive law7 while lack of faith is a matter subject to divine law, and since the latter form of law does not abrogate the positive form, a point already established in the discussion of this question. Indeed, I do not know of any legal precept relative to such persons, in so far as temporal matters are concerned. No king, no emperor, not even the Church of Rome, is empowered to undertake war against them for the purpose of seizing their lands or reducing them to temporal subjection. Such an attempt would be based upon no just cause of war; for the emissaries sent forth to take possession of the world, by Jesus Christ the King of Kings, unto Whom power was given in heaven and on earth [Matthew, xxviii. 18], were not armed professional soldiers, but holy preachers, sheep in the midst of wolves [Matthew, x. 16; Luke, x. 3]. Thus I do not read in the OldEdition: 1950; Page: [100] Testament, in connection with the occasions on which it was necessary to seize possession by armed force, that war was ever declared against any nation of infidels on the ground that the latter did not profess the true faith. I find, instead, that the reason for such declarations of war was the unwillingness of the infidels to concede the right of passage, or the fact that they had attacked the faithful (as the Midianites did, for example), or a desire on the part of the believers to recover their own property, bestowed upon them by divine bounty. Hence it follows that we should be committing a very grave sin, if we strove to extend by such means the realm of the faith of Jesus Christ. Moreover, this course of action would not make us the legitimate masters of the infidels; we should merely be committing robbery on a large scale and placing ourselves under an obligation to make restitution as unjust conquerors or captors. Men of integrity ought to be sent as preachers to these infidels, in order that unbelievers may be induced by teaching and by example to seek God; but men ought not to be sent with the purpose of crushing, despoiling and tempting unbelievers, bringing them into subjection, and making them twofold more the children of hell [than the emissaries themselves],8 after the fashion of the Pharisees.

Edition: current; Page: [314]

We are told, too,a that pronouncements to precisely the same effect have frequently been issued by the Senate in Spain and by the theologians (especially the Dominicans), ruling that the American Indians should be converted to the faith not through war but solely through the preaching of the Word, and that the liberty taken from them on the pretext of conversion should be restored to them. This policy is said to have been approved by Pope Paul III and by the Emperor Charles V, King of the Spanish realms. For the rest, we shall not dwell here upon the fact that in most regions the Portuguese are in no sense advancing the cause of religion, nor even making any effort to do so, since they are intent only upon gain. Nor shall we pause to comment upon the further fact that one might truthfully apply to the Portuguese in the East Indies the observation made by the Spanish writer Victoriab regarding the Spaniards in America, namely: that no reports are received of miracles, portents, or examples of pious conduct, such as might impel others to embrace the same faith, whereas, on the contrary, there are numerous reports of inducements to sin, criminal acts, and impiety.

Therefore, since the Portuguese lack both possession and title to possession, since the property and sovereign powers of the East Indians ought not to be regarded as things that had no owner prior to the advent of the Portuguese, and since that property and those powers—belonging as they did to the peoples of the Indies—could not rightly be acquired by other persons, it follows that the said peoples are not Portuguese chattels, but free men possessed of full social and civil rights [sui iuris]. On this point there is no doubt, even among Spanish authorities.cEdition: 1950; Page: [100]

Thesis IIIGranting, then, that the Portuguese have not acquired any legal right over the East Indian peoples, lands or governments, let us ascertain Edition: current; Page: [315] whether or not the former have been able to bring the sea and matters of navigation, or the conduct of trade, under their own jurisdiction.

We shall consider first the question of the sea. Although the sea is variously described in the phraseology of the law of nations as res nullius, as common property and as public property, the significance of these different terms will be very easily explained if, in imitation of the method employed by all the poets since the days of Hesiod as well as by the ancient philosophers and jurists, we draw a chronological distinction between things which are perhaps not differentiated from one another by any considerable interval of time, but which do indeed differ in certain underlying principles and by their very nature. Moreover, we ought not to be censured if, in our explanation of a right derived from nature, we avail ourselves of the authority and express statements of persons generally regarded as pre-eminent in natural powers of judgement.

New explanation Ownership and common possessionAccordingly, it must be understood that, during the earliest epoch of man’s history, ownership [dominium] and common possession [communio] were concepts whose significance differed from that now ascribed to them.a For in the present age, the term “ownership” connotes possession of something peculiarly one’s own, that is to say, something belonging to a given party in such a way that it cannot be similarly possessed by any other party; whereas the expression “common property” is applied to that which has been assigned to several parties, to be possessed by them in partnership (so to speak) and in mutual concord, to the exclusion of other parties. Owing to the poverty of human speech, however, it has become necessary to employ identical terms for concepts which are not identical. Consequently, because of a certain degree of similitude and by analogy, the above-mentioned expressions descriptive of our modern customs are applied to another right, which existed in early times. Thus with reference to that early age, the term “common” is nothing more nor less than the simple antonym of “private” [ proprium]; and the word “ownership” denotes the power to make use rightfully of common [i.e. public] property. This attribute the Scholastics Edition: current; Page: [316] choose to describe as a concept of fact but not of law. For the legal right now connoted by the term “use” [usus] is of a private nature; or, in other words (if I may borrow from the phraseology of the Scholastics),a “use” carries with it a privative force with respect to all extraneous parties.

There was no private property under the primary law of nations, to which we also give the name of “natural law,” from time to time, and which the poets represent in some passages as prevailing in the Golden Age while in other passages they assign it to the reign of Saturn or of Justice. In fact, we find this statement in the works of Cicero:b “There is, however, no such thing as private property in the natural order.” Horace,c too, wrote as follows:

  • Nor he, nor I, nor any man, is made
  • By Nature private owner of the soil.

For in the eyes of nature no distinctions of ownership were discernible. In this sense, then, we say that all things were common property in those distant days, meaning just what the poets do when they declare that the men of earliest times made acquisitions on behalf of the community, and that the communal character of goods was maintained by justice in accordance with a sacred pact. In order to clarify this point, they explain that fields were not divided by boundary lines in that age, and thatEdition: 1950; Page: [101] there were no commercial transactions.

  • The mingled farms throughout the countryside
  • Showed that all things seemed common to all men.d

The word “seemed” was properly included in these lines, in recognition of the changed meaning of the term “common,” to which we alluded above. This concept of common ownership had reference, of course, to the use of the things involved.

Edition: current; Page: [317]
  • . . . To all the way was open;
  • The use of all things was a common right.a

Thus a certain form of ownership did exist, but it was ownership in a universal and indefinite sense. For God had given all things, not to this or that individual, but to the human race; and there was nothing to prevent a number of persons from being joint owners, in this fashion, of one and the same possession. But such a concept would be completely irrational if we were giving to the term “ownership” its modern significance, involving private possession [ proprietas], an attribute which did not reside in any person during that epoch. In fact, it has been most aptly observed that,

  • . . . All things belonged to him
  • Who put them to his use. . . .b

It is evident, however, that the present-day concept of distinctions in ownership was the result, not of any sudden transition, but of a gradual process whose initial steps were taken under the guidance of nature herself. For there are some things which are consumed by use, either in the sense that they are converted into the very substance of the user and therefore admit of no further use,c or else in the sense that they are rendered less fit for additional service by the fact that they have once been made to serve. Accordingly, it very soon became apparent, in regard to articles of the first class (for example, food and drink), that a certain form of private ownership was inseparable from use. For the essential characteristic of private property is the fact that it belongs to a given individual in such a way as to be incapable of belonging to any other individual. This basic concept was later extended by a logical process to include articles of the second class, such as clothing and various other things capable of being moved or of moving themselves. Because of these developments, it was not even possible for all immovable things (fields, for instance) to remain unapportioned, since the use of such Edition: current; Page: [318] things, while it does not consist directly in their consumption, is nevertheless bound up [in some cases] with purposes of consumption (as it is when arable lands and orchards are used with a view to obtaining food, or pastures for [animals intended to provide] clothing), and since there are not enough immovable goods to suffice for indiscriminate use by all persons.Edition: 1950; Page: [101]

The recognition of the existence of private property led to the establishment of a law on the matter, and this law was patterned after nature’s plan. For just as the right to use the goods in question was originally acquired through a physical act of attachment, the very source (as we have observed) of the institution of private property, so it was deemed desirable that each individual’s private possessions should be acquired, as such, through similar acts of attachment. This is the process known as “occupation” [occupatio], a particularly appropriate term in connexion with those goods which were formerly at the disposal of the community. Senecaa has in mind that very process, when he says, in one of his tragedies:

  • A common opportunity for crime
  • Awaits the one who first shall grasp the chance [occupanti].

Again, speaking as a philosopher, heb makes this statement: “[. . . there are several kinds of common ownership.] The equestrian rows of seats belong to all the Roman knights; yet the place that I have occupied in those rows becomes my own.” Similarly, Quintilianc notes that certain things created for all, become the reward of the industrious. Cicero,d too, declares that some goods are acquired, in consequence of long occupancy, as the property of those who came upon them before they had been taken into anyone’s possession. This occupancy, [or tenure,] must be continuous, however, in the case of things that resist possession, such as wild beasts. In other cases, the only requisite is that the status of possession Edition: current; Page: [319] initiated by a physical act shall be continued mentally. With respect to movables, moreover, occupancy implies physical seizure [apprehensio]; with respect to immovables, it implies some activity involving construction or the definition of boundaries. It is for this reason that Hermogenianus,a [in listing certain effects of the law of nations,] mentions immediately after “determination of property rights,” these two items: “establishment of boundaries for lands” and “erection of buildings.” The same stage in the development of private property is described by the poets. Virgilb wrote:

  • ’Twas then men learned to capture beasts with snares,
  • To practise trickery with birdlime, too.

In the works of Ovid,c we find the following passage:

  • Then first were houses sought by humankind.
  • . . . . . . . . . . . . . . . . . .
  • Surveyors marked with careful, long-drawn lines,
  • The bound’ries for the soil which hitherto
  • Had been a common good like sun and air.

At a subsequent stage in the evolution of property, as Hermogenianus indicates [in the above-mentioned list], commerce began to be widely practised; and for the sake of commerce, so Ovidd tells us,9

  • The keels of ships leapt over unknown waves.

During the same period, moreover, the establishment of states was first undertaken.

Accordingly, we find that those things which were wrested from the original domain of common ownership have been divided into two categories. Edition: current; Page: [320] For some are now public property, or in other words, they are owned by the people, which is the true meaning of the expressionEdition: 1950; Page: [102] “public property”; and others are strictly private property, that is to say, they belong to individuals.

Nevertheless, occupancy of public possessions is achieved by the same method as occupancy of private possessions. Senecaa makes this observation: “We designate as ‘territory of the Athenians,’ or ‘territory of the Campanians,’ lands which the inhabitants in their turn divide among themselves by fixing private boundaries.” For every individual nation

  • Established kingdoms marked with bound’ry lines
  • And built new cities. . . .b

In like manner, Ciceroc notes that the territory of Arpinum is said to belong to the people of Arpinum, and that of Tusculum to the Tusculans. To this he adds the following comment: “. . . and the apportionment of private property is similar. Accordingly, since each individual’s part of those things which nature gave as common property becomes his own, let each person retain possession of that which has fallen to his lot.” On the other hand, lands that did not fall into the possession of any nation in the process of apportionment, are called by Thucydidesd ἀόριστον, that is to say, “undefined” regions, marked by no fixed limits.

From the foregoing discussion, two inferences may be drawn. The first runs as follows: those things which are incapable of being occupied, or which never have been occupied, cannot be the private property of any owner,e since all property has its origin as such in occupancy. The second inference may be stated thus: all those things which have been so constituted by nature that, even when used by a specific individual, they nevertheless suffice for general use by other persons without discrimination, retain to-day and should retain for all time that status which Edition: current; Page: [321] characterized them when first they sprang from nature. Ciceroa upheld this principle, when he wrote: “Herein, to be sure, lies the most comprehensive of the bonds uniting men to men and all to all; and in observance thereof, our common participation in all things produced by nature for mankind’s common use should be maintained.”

Now, the category thus defined includes everything capable of serving the convenience of a given person without detriment to the interests of any other person; and this concept (according to Cicerob) is the source of the maxim, “Deny to no one the water that flows by.” For running water, considered as such and not as a stream, is classed by the jurists among the things that are common to all. Ovidc adopts the same classification in the following lines:

  • Why would you withhold water from my lips?
  • The use of water is a common right.
  • Nor sun nor air nor water’s gentle flow
  • Are private things by natural design.
  • The gifts I seek are public property.Edition: 1950; Page: [102]

Thus Ovid contends that the goods above mentioned are not private possessions according to nature’s plan; just as Ulpiand declares that by the said plan they are free to all. For, in the first place, they proceeded originally from nature and have not yet been placed under the ownership of anyone (as Neratiuse points out); and in the second place, it is evident (as Cicerof observes) that nature produced them for our common use. Ovid employs the term “public” in its old sense,g moreover, applying it to things that are the property not of a particular nation but of human society in general. In the precepts of the law of nations, too, such things are described as “public,” that is to say, as the common possession of all Edition: current; Page: [322] men and the private possession of none.a Air falls into this class for two reasons: first, because it is not possible for air to be made subject to occupancy; secondly, because all men have a common right to the use of air. For the same reasons, the sea is an element common to all, since it is so vast that no one could possibly take possession of it, and since it is fitted for use by all, “with reference to purposes of navigation and to purposes of fishing, as well.”b Furthermore, the right that exists in regard to the sea exists likewise in regard to anything that the latter has diverted from other uses and made its own, such as the sands of the sea, of which the portion merging into the land is called the shore. Therefore, Ciceroc is justified in asking, “What is so common . . . as is the sea to those who are tossed by the waves, or the shore to castaways?” Similarly, Virgild asserts that the air, the water, and the shore are freely accessible to everyone.

These, then, are the things described by the Romanse as common to all under natural law, or as public under the law of nations, which (according to the foregoing discussion) is another way of expressing the same concept. In like manner, the Romans sometimes describe the use of such things as common, while at other times they refer to it as public.

Nevertheless, even though the said things are correctly called res nullius in so far as private ownership is concerned, they are very different from those which are also res nullius but which have not been assigned for common use: e.g. wild beasts, fish, and birds. Items belonging to the latter class can be made subject to private ownership, provided that someone does take possession of them; whereas items falling within the former class have been rendered forever exempt from such ownership by the unanimous agreement of mankind, in view of the fact that the right to use them, pertaining as it does to all men, can no more be taken from humanity as a whole by one individual than my property can be taken Edition: current; Page: [323] from me by you. Among the prime functions of justice Ciceroa lists this very task of leading men to make use of common possessions for common interests. The Scholastics would say that the one class is common in a positive sense, and the other, in a privative sense. This distinction is not only familiar to the jurists, but also representative of the popular belief.

Thus Athenaeus depicts the master of the feast as maintaining that the sea is common property, whereas fish become the property of the persons who catch them. And again, in Plautus’ play entitled TheEdition: 1950; Page: [103] Rope, b the fisherman assents when the young slave says,

  • The sea’s most certainly common to all;

but when the slave adds,

  • ’Tis common property, found in the sea,

the fisherman justly objects,

  • Whatever is caught by my net and hook
  • Is mine in the truest sense. . . .

It is, then, quite impossible for the sea to be made the private property of any individual; for nature does not merely permit, but rather commands, that the sea shall be held in common.c Furthermore, not even the shore can become private property.

These statements should be qualified, however, by the addition of an interpretative comment, to the following effect: if any part of the things in question is susceptible of occupancy in accordance with nature’s plan, that part may become the property of the person occupying it, in so far as is possible without impeding its common use. This principle is rightly accepted. For, under such circumstances, there is no longer any occasion to apply either of the two restrictive norms above-mentioned, which prohibit the transfer of certain things to the realm of private rights. Consequently, Edition: current; Page: [324] since the erection of buildings upon a given site constitutes a form of occupancy, it will be permissible to erect buildings upon the shorea subject to the condition (expressly laid down by Pomponiusb) that one must be able to do so without inconveniencing other persons. Following Scaevola,c we shall interpret this condition as meaning that the public use (that is to say, the common use) of the shore may not be impeded. Moreover, the person who constructs the building will become the owner of the site, since the latter was not previously the private property of any individual, nor was it needed for the common use. Accordingly, it belongs to the person who occupies it, but only for the duration of such occupancy.d For the sea would seem to resist possession, after the fashion of a wild beast which is no longer the property of its captor once it has regained its natural liberty. In precisely this fashion, the shore returns to the sea, under the principle of postliminium.

We have also shown that anything capable of becoming private property through the process of occupancy, is likewise capable of becoming public property [in the modern sense], or in other words, the possession of a particular nation.

Thus Celsuse held that the shore included within the limits of the Roman Empire belonged to the Roman nation; and if this contention was correct, it was not at all strange that the said nation, acting through its prince or praetor, was able to allow its subjects a certain form of occupancy in regard to the shore.f This kind of occupancy, however, no less than the private form, should be subject to the restriction that it must not extend to a point where it will infringe upon the uses for which the law of nations provides. Accordingly, no one could be prevented by the Roman People from approaching the shore of the sea,g spreading his Edition: current; Page: [325] nets there to dry, and performing other acts which—as mankindEdition: 1950; Page: [103] had willed once and for all—were to be forever permissible to all men.a

The sea, on the other hand, differs by nature from the shore, in that the former (save for a very small portion thereof) cannot easily be built upon nor enclosed; and furthermore, even if this were not the case, the sea could hardly be so employed without hindrance to its common use. Nevertheless, if some tiny part of it does prove susceptible of such occupancy, that part is conceded to the occupant. Thus Horaceb was exaggerating when he wrote:

  • The fishes note the sea’s diminished breadth
  • When piers are laid that jut into the deep.

Certainly Celsusc maintains that piles driven into the sea are the property of him who placed them there, although the same authority adds that no such concession should be made if the structure in question is an impediment to the subsequent use of the sea. Ulpiand likewise declares that this protection must be extended to the rights of the person who has constructed a foundation in the sea provided that no damage to anyone else results therefrom, whereas the interdict prohibiting the erection of a building in any public place will undoubtedly be applicable if the structure is likely to conflict with the interests of another person. Similarly, Labeoe holds that if any structure of this kind is erected in the sea, recourse may properly be had to the interdict forbidding the construction therein of “anything whereby a harbour, a roadstead, or the course of navigation might be rendered less satisfactory.”

The principle applicable in regard to navigation—namely, that the activity in question shall remain open to all—should also be applied in connexion with fishing. No transgression will have been committed, however, if someone fences in a fishing-pool for himself in some small portion of the sea, surrounding it with stakes and thus turning the spot Edition: current; Page: [326] into private property, just as Lucullus brought the sea to his own villa by cutting through a mountain near Naples.a I suppose, indeed, that the marine fish-ponds mentioned by Varrob and by Columellac were of this nature. Martial,d too, in his description of Apollinaris’ villa at Formiae, referred to the same device as follows:

  • Whene’er the deep doth feel the Wind God’s sway,
  • Apollinaris’ table mocks the storm,
  • Securely stocked with produce of its own.

Yet again, we find this comment in the works of Ambrose:e “You bring the very sea into your estates, so that there may be no lack of fish.”

New explanationThe foregoing remarks will serve to clarify the meaning of Paulus in the passage where he says that if a given individual possesses a private right to any part of the sea, he will be entitled to apply the interdict Uti possidetis [in the event that he is hindered from exercising the said right]. Paulusf adds that this device was of course intended for use in private suits, and not in those of a public nature (among which are included the suits that may be brought in accordance with the common law of nations); but he holds that the case which he describes would relate to the enjoyment of a right based on a private—rather than on a public, or common—title. For (as the testimony of Marcianusg indicates) whatever has been subjected to occupancy and was properly susceptible of such subjection, no longer comes under the law of nations as the sea does. For example, if any person had prevented Lucullus or Apollinaris from fishing in one of the private preserves that they had constructed by enclosing a small portion of the sea, then, in the opinion ofEdition: 1950; Page: [104] Paulus, the owner of the preserve would have been entitled to avail himself Edition: current; Page: [327] of an interdict—based, that is to say, on grounds of private possession—and not merely to bring an action for damages. Indeed, even in the case of a small inlet of the sea, just as in the case of a river-fork,a if I have taken over the locality as an occupant, if I have fished there, and above all if by pursuing this course over a period of many years I have formally proclaimed my intention of establishing private possession of the inlet, then I may prohibit other persons from enjoying the same rights (a conclusion drawn from the statement of Marcianusb), precisely as I might do so with respect to a lake forming part of my own domain. This rule holds good for the duration of my occupancy, even as we have already shown that it does in regard to the shore.

If the region involved exceeds the limits proper to a small inlet, the said rule will not be applicable, for it might interfere with the common use of that region. Thus it has been assumed that I may prohibit fishing by any other person in front of my dwelling or country-seat, but the assumption lacks any legal basis. In fact, it is so gravely lacking in this respect that Ulpian,c in rejecting it, declares that anyone who is made the object of such a prohibition may bring an action for damages. The Emperor Leod (whose laws we do not observe) changed this ruling, in defiance of the underlying legal principles, and maintained that πρόθυρα, or coastal waters “opening out upon” the sea, were the private property of the persons dwelling along the shore, to whom he also assigned the fishing rights attached to such waters. He laid down one condition, however, for the applicability of his own ruling, namely, that the site in question should be brought under occupancy by means of certain structures which would block it off and which the Greeks called ἐποχαί e [checks, i.e. breakwaters]. Leof doubtless assumed that no person would begrudge another a tiny portion of the sea as long as he himself had access to [practically] all of its waters for fishing. Certainly it Edition: current; Page: [328] would be intolerably wicked for any individual to cut off a large part of the sea from public use, even if he were able to do so. Such wickedness is deservedly assailed by Saint Ambrose,a in the following terms: “They claim whole tracts of the sea for themselves by right of formal acquisition; and they remind us that rights over fishing, in precisely the same fashion as those over homeborn slaves, are subject to their will under conditions of servitude. ‘This curve of the sea,’ says one, ‘is mine; that curve belongs to someone else.’ The mighty divide the very elements among themselves.”

In short, the sea is included among those things which are not articles of commerce, that is to say, the things that cannot become part of anyone’s private domain.b Hence it follows—in the opinion of the more erudite authorities, and in the correct and strict sense—that no part of the sea may be regarded as pertaining to the domain of any given nation. Placentinus would seem to have been aware of this fact when he said that the sea was common to all in such a degree that no being save God alone could possess ownership over it. Apparently, too, Johannes Faberc was sensible of the same fact when he asserted that the sea had been left sui iuris, and still remained in that primeval state in which all things had been held in common.

If this were not the case, there would be no difference betweenEdition: 1950; Page: [104] things common to all, such as the sea, and things designated as public in the strict sense of the term, such as rivers. It was possible for a particular nation to take possession of a river, as of something enclosed within its own boundaries, but it was not possible to take possession of the sea in the same way. The dominion of a nation over its territories, however, must be the result of occupancy by that nation, just as private ownership results from occupation by individuals. This truth was perceived by Celsus,d who drew a very clear distinction between the shores of the sea, which the Roman nation was empowered to occupy (though Edition: current; Page: [329] only subject to the condition that the common use of the shores should not be impeded by that act), and the sea itself, which retained its pristine nature unimpaired. Nor is there any law that points to a contrary doctrine. The laws cited by writers who have held a contrary view,a relate in point of fact either to islands, which are clearly susceptible of occupation, or to harbours, which (properly speaking) are not common, but public. Furthermore, those authoritiesb who maintained that the sea was a part of the Roman Empire, interpreted their own statement in such a way as to restrict that Roman right over the sea to functions of protection and jurisdiction, distinguishing it from the right of ownership. Perhaps, too, the said authorities paid insufficient heed to the fact that it was not in virtue of a private right, but through a common maritime right possessed by other free nations also, that the Roman People were authorized to distribute fleets for the protection of sailors, and to punish pirates captured at sea.

On the other hand, we admit that it was possible for agreements to be drawn up between specific nations, stipulating that persons captured upon the sea in this or that particular region should be subject to judgement by this or that particular state; and we furthermore admit that, in this sense, boundaries upon the seas were indeed defined, for convenience in distinguishing the different areas of jurisdiction. Such an arrangement is binding, to be sure, upon the parties who have imposed a legal agreement of this kind upon themselves; but it is not binding in like manner upon other peoples, nor does it convert an area thus delimited into the private property of any possessor, for it merely establishes a right that has force between the contracting parties.c

This distinction, which is in conformity with natural reason, derives further confirmation from a reply made on a certain occasion by Ulpian,d when the jurist was asked whether the owner of two maritime Edition: current; Page: [330] estates had possessed the power to impose upon one of them, which he was selling, a servitude involving a prohibition against fishing from that estate in a certain part of the sea. Ulpian answered that the actual object concerned—namely, the sea—could not be subjected to aEdition: 1950; Page: [105] servitude, since it was by natural dispensation open to all; but he added that the factor of good faith implicit in a contract, demanded the observance of the conditions attaching to the sale, so that the parties actually in possession and those succeeding to the right of possession were personally bound by the said conditions. It is true that Ulpian was referring to private sales and to private law; but the same principle is equally applicable to the present discussion concerning the territories and laws of nations, since nations in their relation to the whole of mankind occupy the position of private individuals.a

Similarly,b the revenues levied on maritime fisheries and regarded as belonging to the Crown, constitute a binding obligation, not in their effect upon the object of the levies (namely, the sea or the particular fishery in question) but in their effect upon the persons concerned. Accordingly, it was perhaps permissible to make such levies compulsory in regard to subjects, over whom the state or prince exercises a legislative power that is valid by common consent; whereas, in so far as foreigners are concerned, fishing rights should everywhere be exempt from public charges, lest a servitude be imposed upon the sea, which cannot properly be subjected to any servitude. For, in the case of the sea, the basic principle involved is not the same as it would be in the case of a river, since the latter has a public character (that is to say, it is the property of the nation), so that even the right to fish therein may be conceded or leased by the nation or by the prince.c In fact, the ancientsd interpreted this right in such a way as to grant the lessee recourse to the interdict “Regarding the use of a public place,” subject to the following condition: “provided that the privilege of using that place, shall have been leased Edition: current; Page: [331] to the party in question by one who has the right of leasing it.” This condition could not be met in cases involving the sea.a For the rest, those persons who include fishing itself among the perquisites of the Crown have paid insufficient attention to the very passage which they themselves cite, an error that has not escaped the notice of Andrea d’Isernia and Jacopo Alvarotto.b

We have shown it to be impossible that any private right over the sea itself (for we made an exception in regard to small forks of the sea), should pertain to any nation or private individual, since occupation of the sea is impermissible both in the natural order and for reasons of public utility. Our examination of this question was undertaken, moreover, for the purpose of making it clear that the Portuguese have not established a private right over that part of the sea which one traverses in sailing to the East Indies. For both of the factors impeding private ownership are infinitely more cogent in this particular case than in any of the others mentioned. What constitutes merely a difficulty in those other cases is in the present instance an absolute impossibility; andEdition: 1950; Page: [105] what we condemned as an injustice in a different connexion is in this instance utterly barbarous and even inhuman.

We are not treating here of an inner sea which washes against the land on all sides and is in some places no wider than a mere river; but it is quite certain that the Roman jurists were referring to just such a concept in the above-mentionedc celebrated opinions opposing private avarice. The subject of our discussion is the Ocean, which was described in olden times as immense, infinite, the father of created things, and bounded only by the heavens; the Ocean, whose never-failing waters fed not only upon the springs and rivers and seas, according to the ancient belief, but upon the clouds, also, and in a certain measure upon the stars themselves; in fine, that Ocean which encompasses the terrestrial home of mankind with the ebb and flow of its tides, and which cannot be held nor enclosed, being itself the possessor rather than the possessed.

Edition: current; Page: [332]

Moreover, the question at issue is not limited to some bay or strait located in the Ocean, nor even to the entire expanse of its waters visible from the shore. On the contrary, the Portuguese claim for themselves the whole tract lying between two parts of the world which are separated by spaces so vast that in the course of many centuries those two regions were not able to make themselves known to each other. Indeed, if the share of the Spaniards (who join in the same claim) is added to the share demanded by the Portuguese, very nearly the entire Ocean will have been delivered into the hands of two peoples, while all the remaining nations will find themselves restricted to the narrow waters of the north. Thus nature will have been sorely deceived; for when she encompassed all peoples with this watery element, she believed that it would likewise suffice for all. If anyone should cut off from the common domain, and reserve to himself, nothing more than sovereignty and dominion over so vast a body of water, he would nevertheless be regarded as a seeker after immoderate power; if he should forbid others to fish therein, he would not escape the stigma of monstrous cupidity; but what shall we say of one who obstructs even navigation upon those waters, despite the fact that he himself would suffer no loss in consequence of such navigation?

If the sole owner of a fire forbade another to take fire therefrom,Edition: 1950; Page: [106] or to take light from his light, I should prosecute him to the bitter end as a criminal under the law of human fellowship. For the very force and essence of that law are indicated in the words of Ennius:a

  • His own light shines no less when he hath lit
  • Another’s lamp therefrom. . . .

Why, then, since it is possible to do so without injury to oneself, should one not bestow upon another a share in those things which will be useful to the recipient and whose bestowal will not harm the giver?b It is to goods of this kind that the philosophersc refer, when they maintain that Edition: current; Page: [333] certain benefits should be accorded not merely to foreigners but even to ingrates.

Furthermore, that attitude which comes under the head of jealousy when it relates to private possessions, must be characterized as savagery when common property is involved. For it is the height of wickedness that a thing which is no less mine than yours by natural dispensation and by the common consent of nations, should be appropriated by you in such exclusive fashion that you deny me even its use, although that concession would render the property appropriated in nowise less your own than it was, previously.

Then, too, it should be noted that even those persons who fasten upon the possessions of others, or take for themselves exclusively property that is common to all, defend themselves on the ground that a certain form of possession has been established by them. For the institution of private property arose from original occupancy, as we have already indicated; and consequently, detention of a given thing, even though it be unjust detention, produces in a sense a semblance of ownership.

But have the Portuguese people encompassed that expanse of ocean with fortifications erected on all sides, as we are wont to do when tracts of land are seized, in such fashion that they have acquired the power to exclude whomsoever they will? Or is this so far from being the case that the Portuguese, in apportioning the world to the disadvantage of other peoples, have failed even to defend their claim by marking out boundaries (whether natural or artificial), relying instead upon an imaginary line? If this claim is to be recognized, and if such a method of measurement suffices to constitute valid possession, the geometers must have taken the earth from us long since, just as the astronomers must also have taken the heavens. Where, then, in the present case, do we encounter that factor of corporeal attachment without which ownership has never been established? Surely it must be obvious that no conceivable case could better illustrate the truth of the doctrine propounded by our own learned authorities,a namely: that the sea, since it is as incapable of Edition: current; Page: [334] being seized as the air, cannot have been attached to the possessions of any particular nation.

If, on the other hand, the Portuguese describe as “occupancy” the acts of navigating at an earlier date than other peoples and of more or less opening the way, what contention could be more absurd? ForEdition: 1950; Page: [106] there is no part of the sea upon which someone has not been the first to enter, so that it would necessarily follow from such a contention that every navigable region had been “occupied” by some voyager. Thus we should be excluded from all parts of the sea. Indeed, it would even be necessary to admit that the [earliest] circumnavigators of the globe had acquired for themselves the whole Ocean! But no one is ignorant of the fact that a ship sailing over the sea no more leaves behind itself a legal right than it leaves a permanent track. In any case, the claim put forward by the Portuguese—namely, that no one had sailed over the aforesaid tracts of the Ocean before they themselves did so—is by no means true. For a large part of the waters in question, in the neighbourhood of Mauritania, was navigated in quite ancient times;a and a more distant portion of those same waters, lying toward the East, was traversed as far as the Arabian Gulf in the course of the victories won by Alexander the Great. There are, moreover, many indications that the people of Cadiz were formerly well acquainted with this navigable area: for example, the traces of ships recognized as remnants of wrecked Spanish vessels by Gaius Caesar, the [adopted] son of Augustus, when the former was in command over the Arabian Gulf; and the statement made by Caelius Antipater to the effect that he had seen a man who had voyaged from Spain to Ethiopia on a commercial mission. These very waters were known to the Arabs, also, if we may accept as true the account given by Cornelius Nepos, in which it is related that one of his contemporaries, a certain Eudoxus, sailed from the Arabian Gulf as far as Cadiz while fleeing from Lathyrus the King of Alexandria. Again, it is absolutely certain that the Carthaginians, who enjoyed great maritime power, did not long remain in ignorance regarding that part of the Ocean. For Hanno, in the days when Carthage was mighty, made the voyage from Cadiz to the borders Edition: current; Page: [335] of Arabia (that is to say, by sailing around the promontory that is now known as the Cape of Good Hope, although the ancient name appears to have been Hesperion Ceras); and he included in his record a description of the entire route, specifying the position of the coast and of the various islands, and stating that at the farthest point reached the sea had not ended but his supplies were indeed coming to an end.Edition: 1950; Page: [107] Furthermore, the route described by Pliny,a the embassies dispatched by the East Indians to Augustus as well as those sent from the island of Taprobane10 to Claudius, and subsequently the recorded deeds of Trajan and the writings of Ptolemy, have made it sufficiently evident thatEdition: 1950; Page: [106] navigation was customary at the height of Rome’s power also, from the Gulf of Arabia to India, to the islands of the Indian Ocean, and even to the Golden Chersonese, which many persons identify withEdition: 1950; Page: [107] Japan.11 Indeed, as early as the age of Strabo,b according to his own testimony, a fleet belonging to Alexandrian merchants set sail from the Arabian Gulf in search of the farthest regions both of Ethiopia and of India, although few ships dared to attempt that voyage in ancient times. The Roman people derived rich revenue from these sources. Plinyc adds that companies of archers were attached to the ships, owing to fear of pirates; that every year India alone drew from the Roman Empire fifty million sesterces, or—if Arabia and China were also to be taken into account—that the sum received from the Empire amounted to one hundred million sesterces; and that the merchandise from those regions was sold for a hundred times as much. These examples recorded by anti