Transcriber's notes:

Several chapters were omitted from the English translation of which this is a transcription. The reasons for this are given in the [footnotes].

Words originally printed in Greek are shown that way in some versions of this eBook. English transliterations were added to all versions by the Transcribers and are enclosed in {curly braces}.

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UNIVERSAL
CLASSICS
LIBRARY
EDITOR'S
AUTOGRAPH EDITION

ATTEST:
Robert Arnot
Managing Editor

UNIVERSAL CLASSICS
LIBRARY

ILLUSTRATED
WITH PHOTOGRAVURES
ON JAPAN VELLUM
HAND PAINTED
REPRODUCTIONS
AND FULL PAGE
PORTRAITS
OF
AUTHORS

M. WALTER DUNNE
PUBLISHER
NEW YORK AND LONDON

Copyright, 1901,
BY
M. WALTER DUNNE,
PUBLISHER

[GENERAL PREFACE]

Of the Library of Universal Classics and Rare Manuscripts, twenty volumes are devoted to the various branches of Government, Philosophy, Law, Ethics, English and French Belles Lettres, Hebraic, Ottoman, and Arabian Literature, and one to a collection of 150 reproductions, bound in English vellum, of the autographs, papers and letters of Rulers, Statesmen, Poets, Artists and Celebrities ranging through three centuries, crowned by an illuminated facsimile of that historic Document, the Magna Carta.

The series in itself is an epitome of the best in History, Philosophy and Literature. The great writers of past ages are accessible to readers in general solely through translations. It was, therefore, necessary that translations of such rare Classics as are embodied in this series should be of the best, and should possess exactitude in text and supreme faithfulness in rendering the author's thought. Under the vigilant scholarship of the Editorial Council this has been accomplished with unvarying excellence. The classification, selection and editing of the various volumes have been the subject of much earnest thought and consultation on the part of more than twenty of the best known scholars of the day.

The Universities of Yale, Washington, Cornell, Chicago, Pennsylvania, Columbia, London, Toronto and Edinburgh are all represented among the contributors, the writers of special introductions, or upon the consulting staff, the latter including the Presidents of five of the Universities mentioned. Among others who contribute special essays upon given subjects may be mentioned the late Librarian of the British Museum, Dr. Richard Garnett, who furnishes the essay introducing "Evelyn's Diary." From the Librarian of the National Library of France, Léon Vallée, comes the fascinating introduction to the celebrated "Memoirs of the Duc de Saint-Simon." The scholarly minister to Switzerland (late First Assistant Secretary of State), Dr. David J. Hill, lent his wide reading to the brilliant and luminous essay that precedes the "Rights of War and Peace." The resources of the Congressional Library at Washington, as well as of foreign libraries, have all been drawn upon in the gigantic task of compressing into the somewhat narrow limits of twenty volumes all that was highest, best, most enduring and useful in the various ramifications of literature at large.

The first section of the Library is devoted entirely to the manuscript reproductions of the autographs of celebrated men in all ranks and phases of life, covering a period of three centuries. They are, in fact, the American edition of the reproduction of rare and celebrated autographs drawn from the British Museum that was issued in England under the editorship of the Assistant Keeper of the Manuscripts. They afford an opportunity to the inquiring reader to study the characters of Rulers, Statesmen, Writers, and Artists through the medium of their chirography.

It has long been recognized that character is traceable through handwriting. So it is interesting to discern in the characters traced by Henry VIII the hardened, sensual and selfish character of that autocrat and polygamist; in the writing of Thomas Wolsey, those crafty traits combined with perseverance and mock humility which raised him wellnigh to supremacy in the realm and led him finally to a downfall more complete than any we read of in English history; and in that of Charles V, of Spain, the hard-headed continence of character and superb common sense which enabled him at the height of glory to retire to a monastery while yet there was "daylight in life," as he expressed it, "for the making of his soul." Apart from the historical interest of these Documents, this study of character as revealed in them will prove fascinating to thinking minds.

The Magna Carta, greatest of all historical charters wrung from the various kings of England from Henry I downward, was granted by King John at the pressing instance of the Barons and Commons of England toward the end of his ill-judged and unfortunate reign. Of this Document, celebrated and historic as it is, but little is known at large. Although Blackstone and other prominent lawyers have written upon it, information about it is hard to obtain. No reproduction of the original Document has ever been offered to American collectors. This facsimile is illuminated in colors with the shields of many of the Peers who compelled King John to accede to their demands for civil and religious liberty. The original charter was signed at a place called Runnymede (the Council Meadow) a spot between Windsor and Staines, on the 15th of June, 1215, about a year before the death of John. It practically guaranteed to the Commons of England all the civil and religious rights they enjoy to-day. It dealt with testamentary law as well, securing to widows all the legal rights which they to-day possess. It dealt with the rights of accused persons; with military service; with feudal tenure; with taxation, and it limited the heretofore autocratic power of the King to an extent unknown before in the history of the world. If we except the Declaration of Independence, it is the most interesting historical record of all time.

The Second Section of the Library (ten volumes) is devoted to the presentation of Government, Philosophy, Law and Ethics. This section embraces such names as Grotius, Plato, Sir George Cornewall Lewis, Adam Smith, Hamilton, Madison, Jay, Walter Bagehot, Spinoza, Schopenhauer, Machiavelli, as well as those builders of Ideal Governments, More, Bacon, Campanella and Rousseau.

Of all benefactors in Literature of the human race, Grotius may perhaps rank as first among his equals. Centuries have borne witness to the justness of his premises and the wisdom of his conclusions. The principles of national law laid down by him are to-day accepted as the axioms of the Science. Among the nations, perhaps the United States is most deeply interested in the right administration of the principles affirmed by Grotius in his gigantic work on the "Rights of War and Peace," and it was therefore most fitting, when the recent peace conference at The Hague completed the great structure of international comity, the foundations of which were laid by Grotius in 1625, that a silver wreath was laid by the representative of the United States upon the grave of the man to whom the Conference owed its initial impulse, although at a distance in time of nearly three centuries.

When the Publisher determined, under the advice of his Editorial Council, to publish Grotius, he found that only two volumes of the first edition were available in the Library of Congress. At much expense and trouble, he instituted a search in Europe and finally obtained the missing volume, which he presented to the Congressional Library, where it now is.

Sir George Cornewall Lewis's "Government of Dependencies" is characterized by the accuracy of its information. It is a reliable text book for the guidance of any nation in the treatment of its dependencies and colonies. It is a Classic that will survive as long as colonization remains to be done, and it is remarkable that although it was published for the first time sixty years ago, the illustrations afforded by the last two generations support the justice of its principles and the exactness of its deductions.

Adam Smith's "Essay on Colonies" presents an introductory view of the principles governing colonial policy. It is a fitting work to go hand in hand with the greater one of Sir George Cornewall Lewis. It is of practical use to American Statesmen, since the United States seems at present to be entering upon a world-wide colonial policy. Its practical wisdom, which has made it a Classic for all times, finds a special applicability in the conditions of to-day, for Adam Smith was a theorist in the best sense of the word, that is to say, he was a man whose breadth of view, instead of unfitting him for practical details, enabled him to deduce from the lessons of history and experience the right solutions for the problems of Colonial policy.

Plato's "Republic" and "Statesman" must be regarded to-day not merely as historical records of a by-gone philosophy, but as living, teaching dissertations upon theories which cannot fail to awaken in studious minds the highest ideals of life and government. Modern problems stated in the light of Plato's philosophy, as it is expressed in these books, will find readier solutions when examined in the light of its principles. No student of sociology, of politics, national and municipal, or of government in all its many-sided aspects, can afford to be without a knowledge of these immortal discourses.

Goldwin Smith has declared that of all expositions of constitutional Government, "The Federalist" ranks the highest. When Hamilton, Madison, and Jay first conceived the idea of printing in the common tongue their ideas upon the principles of free government, they unwittingly laid the foundations of the best commentary on the principles of popular government ever written. Political science owes to them the most important contribution to its literature made since its birth. The Essays are equally admirable for sagacity, simplicity, and patriotism, and while The Federalist will never be read for pleasure, it contains a mine of wisdom for the student and the constitutional lawyer, and as a text book of political science is without a parallel.

When Bagehot issued his work on the English Constitution, it was hailed by the critics as the most wonderful and philosophical dissertation on the subject in any language or from any pen. John Stuart Mill used to say that of all great subjects much remained to be written, and that especially was this true of the English Constitution. Bagehot's work, although affording the conclusion that monarchy in England exists as a logical necessity, is so unbiased in its premises, so logical and clear in its deductions, that this manifest fairness, although leading one to conclusions distasteful to a republican mind, must endear him to his readers. Dealing with a subject somewhat dry in its details, he invests inanimate objects with so much light that they become realities. In the highest sense he combines popularity and scholarship.

Spinoza's philosophy may be traced both to the influence of Bacon, his predecessor, and to Descartes, his contemporary. Its combination of positivism with the enthusiasm of piety characterizes his philosophy as unique in itself, for while treating man from a purely mechanical standpoint, it asserts that the mechanism itself is entirely divine. Spinoza was a voluntary martyr in the cause of Free Thought. He was at the same time both Pantheist and Monist, yet sincere in his devotion to nature and the God of nature. His religion naturally made him a Monist, while his philosophy led him to express the Pantheism that the lover of God in Nature cannot avoid. While he renounced his Judaism and entered the ranks of the Christian philosophers, he never received baptism. He may be ranked among the greatest of the German mystics, whose work had such profound influence upon the dogmatic Christianity of a later day. The epithet conferred on him, namely, "God-intoxicated," summarizes his whole attitude and the character of his philosophy better than any lengthy dissertation.

When Schopenhauer began to write, he declared himself a true disciple of Kant, but he modifies and adapts Kant's "Critique of Pure Reason" to such an extent that he reaches the attitude of opposition. This attitude he manifests throughout all his writings. He is truly an Apostle of Protest, but in spite of his positivist contradictions and his materialistic pantheism, he opens up a mine of suggestions to the literary and philosophical student. In spite of the apparent tragedy due to the conflict within him, we cannot help gathering from Schopenhauer an immensity of what is true, what is good and what is excellent. One thing especially noticeable about his writings is that while German philosophers are often ponderous and in fact nebulous, Schopenhauer is always clear, original, and readable.

To Machiavelli belongs by acclaim the honor of having written the ideal biography of a State. His clear, straightforward, concise statement of conditions and characters as he saw then is a model for all writers of record. He was the first great Italian historian, and no man has ever been more ardent in his patriotism or a more earnest supporter of government for and by the people. The greatest tribute to his inflexible honesty of character is the fact that while no man had greater opportunities to enrich himself at the cost of the State, he died leaving his family in the greatest poverty. His varied political experience, and his assiduous study of classic writers, gave him the ability as well as the desire to write the history of his native State. Time has pronounced this History to be a classic worthy of preservation, and the perspective of time has also enabled us to form a juster and greater estimate of its author.

The Ideal Republics and Empires that have been constructed from time to time by political dreamers have all the attractiveness of works like Pilgrim's Progress or Gulliver's Travels, combined with a philosophy and political insight that give them a double claim to be considered Classics. Modern progress may be more deeply indebted than we can estimate to the fantasies and airy castles of men like Rousseau, More, and Campanella. The four Ideal Republics or Governments described in this volume are perhaps the most famous of all, since they rank not only as great creations of the imagination but as literature of the highest class; and their writers have a further claim upon posterity from the fact that they helped to make history.

The Third and concluding Section of the Library deals with that tremendous range of world-wide literature which we call, for want of a better name, Belles Lettres. Goethe contributes his brilliant and sagacious observations on men and things as he communicated them to Eckerman. Landor, of whom Swinburne has said that Milton alone stands higher, both in prose and verse, furnishes us with his Classical Conversations. Montesquieu and Goldsmith are drawn on for their Persian and Chinese Letters. Lord Chesterfield gives us the irony and hard-headed criticism combined with worldly common sense contained in the Letters to His Son, and the various names best known in French and English Belles Lettres yield what is greatest in them. Ottoman Literature, comprising Arabian, Persian, and Hebraic Poems, affords the reader an insight into the romantic and dramatic character of the Oriental. The Dabistan, possibly the most extraordinary book ever written in the East, finds itself at home in this section, while the Literature of the Hebrews is ideally represented in that most wonderful of all monuments of human wisdom, and perhaps folly, the "Talmud," together with the basis of modern metaphysics, the "Kabbala."

The Sufistic Quatrains of Omar Khayyam are here for the first time presented complete in a collection of this order. The various editions of Fitzgerald are reprinted, collated, and to them is added the valuable Heron-Allen analysis of Fitzgerald's sources of inspiration. The very rare Whinfield version is found here complete; and for the first time in English appears M. Nicolas' French transcription of the Teheran Manuscript. It is safe to say that any lover of Omar wishing to add to his collection the versions here quoted would be compelled to disburse more than one hundred times the amount this book will cost him.

While the Library of Universal Classics does not claim to be the final condensation of the treasure houses of human philosophy and lore, whether practical or ideal, it does most emphatically assert its right to be called the most useful, most attractive, and most representative selection, within the limits assigned to it, of those world-masterpieces of literature which men, for lack of a more luminous name, call Classics.

HUGO GROTIUS

From an Original Painting.

THE RIGHTS OF
WAR AND PEACE

INCLUDING THE
LAW OF NATURE
AND OF NATIONS

TRANSLATED FROM THE ORIGINAL LATIN OF
GROTIUS

WITH NOTES AND ILLUSTRATIONS FROM
POLITICAL AND LEGAL WRITERS

BY
A. C. CAMPBELL, A. M.

WITH AN INTRODUCTION BY
DAVID J. Hill,
Assistant Secretary of State of the United States

M. WALTER DUNNE, PUBLISHER
NEW YORK & LONDON

Copyright, 1901,
BY
M. WALTER DUNNE,
PUBLISHER

[ILLUSTRATIONS]

[CONTENTS]

[INTRODUCTION]
The Work and Influence of Hugo Grotius.

The claims of the great work of Grotius, "De Jure Belli ac Pacis," to be included in a list of Universal Classics, do not rest upon the felicity of style usually expected in a classic composition. His work is marked by frequent rhetorical deformities, tedious and involved forms of reasoning, and perplexing obscurities of phraseology which prevent its acceptance as an example of elegant writing. Notwithstanding these external defects, it is, nevertheless, one of the few notable works of genius which, among the labors of centuries, stand forth as illustrations of human progress and constitute the precious heritage of the human race.

If it is not literature in the technical sense, the masterpiece of Grotius is something higher and nobler,—a triumph of intelligence over irrational impulses and barbarous propensities. Its publication marks an era in the history of nations, for out of the chaos of lawless and unreasoning strife it created a system of illuminating principles to light the way of sovereigns and peoples in the paths of peace and general concord.

I. The Reign of War.

The idea of peaceful equity among nations, now accepted as a human ideal, though still far from realization, was for ages a difficult, if not an impossible, conception. All experience spoke against it, for war was the most familiar phenomenon of history.

Among the Greek city-states, a few temporary leagues and federations were attempted, but so feeble were the bonds of peace, so explosive were the passions which led to war, that even among the highly civilized Hellenic peoples, community of race, language, and religion was powerless to create a Greek nation. It was reserved for the military genius of Alexander the Great, at last, by irresistible conquest, to bring the Greek Empire into being, to be destroyed in turn by superior force.

The Roman Empire almost achieved the complete political unity of Europe, and bound parts of three continents under one rule, but the corruption of the military power which held it together led to its inevitable dismemberment.

After the conflicts of the barbaric kingdoms which followed the dissolution of the Western Empire were ended by the predominance of the Frankish monarchy, the world believed that the Pax Romana was to be restored in Europe by the hand of Charles the Great; but the disruptive forces were destined to prevail once more, and the Holy Roman Empire never succeeded in reviving the power of ancient Rome. And thus the dream of a universal monarchy, of a central authority able to preside over kings and princes, adjusting their difficulties, and preserving the peace between them, was at last proved futile.

In each of the great national monarchies that had already risen or were still rising on the ruins of imperial dominion, particularly in France, England, Holland, and the States of Germany, a continuous internal conflict over questions of religion complicated the bitterness and destructiveness of foreign wars until Europe was reorganized by the Peace of Westphalia, in 1648.

It was in the midst of these wars that Grotius was born. He saw his own country rising from a baptism of blood and all Europe rent and torn by the awful struggle of the Thirty Years' War, in the midst of which his great work was written and to whose conclusion it served as a guide and inspiration. The Empire, dismembered, had been reduced to almost complete impotence, the Church had been disrupted, and no international authority was anywhere visible. Amid the general wreck of institutions Grotius sought for light and guidance in great principles. Looking about him at the general havoc which war had made, the nations hostile, the faith of ages shattered, the passions of men destroying the commonwealths which nourished them, he saw that Europe possessed but one common bond, one vestige of its former unity,—the human mind. To this he made appeal and upon its deepest convictions he sought to plant the Law of Nations.

II. The Predecessors of Grotius.

It is historically accurate to say, that, until formulated by Grotius, Europe possessed no system of international law. Others had preceded him in touching upon certain aspects of the rights and duties of nations, but none had produced a system comparable to his.

The earliest attempt to formulate recognized international customs was the formation of the early maritime codes, rendered necessary by the expansion of mediæval commerce from the end of the eleventh to the end of the sixteenth century, such as the "Jugemens d' Oléron," adopted by the merchants of France, England, and Spain, and reissued under other names for the merchants of The Netherlands and the Baltic. "The Consolato del Mare," a more elaborate compilation, was made, apparently at Barcelona, about the middle of the fourteenth century, and accepted generally by the traders of the chief maritime powers. It was in the cradle of commerce, therefore, that international law awoke to consciousness.

As the Church was often intrusted with the task of pacification, it is but natural to look among her representatives for the earliest writers on the laws of international relations. It is, in fact, among the theological moralists that we find the first students of this subject. As early as 1564, a Spanish theologian, Vasquez, conceived of a group of free states with reciprocal rights regulated by jus naturale et gentium, without regard to a world-power, either imperial or ecclesiastical. In 1612, Saurez pointed out that a kind of customary law had arisen from the usages of nations, and distinctly described a society of interdependent states bound by fundamental principles of justice.

At the close of the fifteenth and the beginning of the sixteenth centuries, a series of circumstances arose necessitating the extension of jurisprudence beyond its ancient boundaries, and thus tending to produce a group of international jurists. Among the juristic writers of this time are Balthazar Ayala, a Spanish jurisconsult, who died in 1584, having written in a historico-judicial spirit on the subject of war in his "De Jure et Officiis Belli"; Conrad Brunus, a German jurist, who wrote of the rights and duties of ambassadors in his "De Legationibus," published in 1548; and pre-eminent above all, Albericus Gentilis, an Italian professor of jurisprudence and lecturer at Oxford, a writer of force and originality, who published his "De Legationibus" in 1583 and his "De Jure Belli" in 1589.

III. The Life and Personality of Grotius.

HUGO GROTIUS, to use the Latin form of his name by which he is best known, or Hugo de Groot as he is called in Holland, descended from a race of scholars and magistrates, was born at Delft, on April 10th, 1583. His family history has been related with much detail by De Burigny, in his "Vie de Grotius," published in French at Amsterdam in 1754; and by Vorsterman van Oyen, in his "Hugo de Groot en Zijn Gesclacht," a complete genealogy in Dutch, published at Amsterdam in 1883, which gives the descendants of Grotius down to the present generation. His origin is traced from a French gentleman, Jean Cornets, who took up his residence in The Netherlands in 1402. His descendant, Cornelius Cornets, married the daughter of a burgomaster of Delft on condition that the future children of this marriage should bear the name of their mother's family, in order to perpetuate the distinction which it had achieved. The maternal name imposed by Cornelius Cornets's Dutch father-in-law, Dirk van Kraayenburg de Groot, was de Groot, meaning the Great, and is said to have been bestowed for signal services rendered to his country by the first who had borne it four hundred years before. From this marriage sprung a Hugo de Groot, distinguished for his learning in Greek, Latin, and Hebrew and five times burgomaster of his native city. His eldest son, Cornelius, was a noted linguist and mathematician who studied law in France and received high office in his own country, afterward becoming a professor of law and many times rector of the University of Leyden. Another son, John de Groot, the father of Hugo Grotius, studied there under the famous Lipsius, who speaks of him with the highest commendation. Four times burgomaster of Delft, John de Groot became curator of the University of Leyden, a position which he filled with great dignity and honor.

In his earliest years the young Hugo gave evidence of marked and varied ability. At eight he wrote Latin verses which betrayed poetic talent; at twelve he entered the University where he became a pupil of that prince of scholars, Joseph Scaliger, who directed his studies; and at fifteen he defended "with the greatest applause" Latin theses in philosophy and jurisprudence. His fame as a prodigy of diversified learning spread far and wide, and great scholars declared they had never seen his equal.

Grotius had won celebrity even in foreign lands when, in 1600, at the age of seventeen, he was admitted to the bar. The youthful prodigy had already accompanied the Grand Pensionary, John of Oldenbarneveld on a special embassy to France, where he was presented to Henry IV, who bestowed upon him his portrait together with a gold chain, and graciously called him "The Miracle of Holland." At Orleans he was made a Doctor of Laws.

Married in 1609 to Marie van Reigersberg, whose devotion was worthy of his deep affection, and loaded with public honors, having been named the official historian of the United Provinces and the advocate-general of two provinces, Holland and Zeeland, Grotius set his hand to a work entitled "Mare Librum," in which he defended the freedom of the sea and the maritime rights of his country against the arrogant pretensions of the Portuguese in suppressing the commerce of other nations in Eastern waters,—a treatise destined to become still more celebrated in the history of international law by Selden's reply, "Mare Clausum," written in 1635. Next, turning his attention to the history of The Netherlands, he devoted himself for a time to his "Annals of the War of Independence."

In 1613, Grotius added to his laurels as poet, jurist, and historian by entering the field of politics, and he was appointed Pensionary of Rotterdam upon the condition that he should continue in office during his own pleasure. It was during a visit to England upon a diplomatic mission in this same year that he met the great scholar Isaac Casaubon, who said in a letter to Daniel Heinsius: "I cannot say how happy I esteem myself in having seen so much of one so truly great as Grotius. A wonderful man! This I knew him to be before I had seen him; but the rare excellence of that divine genius no one can sufficiently feel who does not see his face and hear him speak. Probity is stamped on all his features."

Closely related by personal friendship as well as by his official duties to the Grand Pensionary, John of Oldenbarneveld, Grotius was destined to share with that unfortunate patriot the proscription and punishment which Maurice of Orange visited upon the two confederates in the defense of religious tolerance. Risking all as the apostles of peace, they were soon condemned to be its martyrs. Oldenbarneveld, having incurred the bitter hatred of the Stadtholder, was condemned to death by decapitation on May 12th, 1619. Grotius, less offensive to Maurice on account of his youth and his gracious personality, was sentenced six days later to perpetual imprisonment. On the 6th of June, 1619, he was incarcerated in the fortress of Loevestein.

Rigorously treated at first, his docility and resignation soon won the respect and affection of his keepers. Writing materials and books were in time accorded him, and finally, on condition that she would continue to share his captivity, he was granted the presence of his wife. The studious prisoner and his devoted companion completely disarmed all suspicion of an intention to escape, and the ponderous chest in which books came and went continued to bring periodic consolation to the mind of the busy scholar. A treatise on the truth of the Christian religion, a catechism for the use of his children, a digest of Dutch law, and other compositions served to occupy and alleviate the weary months of confinement, until one day when the time seemed opportune Madame Grotius secretly inclosed her husband in the great chest and it was borne away by two soldiers. Descending the stone steps of the prison the bearers remarked that the trunk was heavy enough to contain an Arminian, but Madame Grotius's jest on the heaviness of Arminian books smoothed over the suspicion, if one was really entertained, and the great jurist was sent in the chest safe to Gorcum, attended by a faithful domestic, where in the house of a friend the prisoner emerged without injury and in the guise of a stone mason hastened to Antwerp. From Antwerp he took refuge in France, where he arrived in April, 1621, and was joined by his faithful wife at Paris in the following October.

The bitterness of exile was now to be added to the miseries of imprisonment, for Grotius was not only excluded from The Netherlands, but in extreme poverty. His letters reveal his anguish of spirit at this period, but a generous Frenchman, Henri de Même, placed his country house at Balagni at his disposition, and there, supported by a small pension, which Louis XIII had graciously accorded him, though irregularly and tardily paid, Grotius commenced his great work, "De Jure Belli ac Pacis," in the summer of 1623.

Much speculation has been indulged in regarding the causes which led to the composition of this masterpiece, but a recent discovery has rendered all this superfluous, as well as the ascription of special merit to the Counselor Peyresc for suggesting the idea of the work. It is, indeed, to the pacific genius of Grotius more than to all other causes that the world owes the origin of his great work; for it sprang from his dominant thought, ever brooding on the horrors of war and the ways of peace, during more than twenty years, and never wholly satisfied till its full expression was completed.

In the winter of 1604, there had sprung out of his legal practice the idea of a treatise entitled "De Jure Praedae," fully written out, but never printed by its author. The manuscript remained unknown by all his biographers until it was brought to light and printed under the auspices of Professor Fruin at The Hague in 1868. This interesting document proves that not only the general conception but the entire plan and even the arrangement of the "De Jure Belli ac Pacis" were in the mind of Grotius when he was only twenty-one years of age. The difference between the earlier work and the later is chiefly one of detail and amplification, the difference which twenty years of reading, experience, meditation and maturity of faculty would inevitably create.

The curious may find in his letters the almost daily chronicle of his progress with his book to the time of its publication after excessive labors lasting more than a year. In March, 1625, the printing of the first edition, which had occupied four months, was completed and copies were sent to the fair at Frankfort. His honorarium as author consisted of two hundred copies, many of which he presented to his friends. From the sale of the remainder at a crown each, he was not able to reimburse his outlay. In the following August he wrote to his father and brother that if he had their approbation and that of a few friends, he would have no cause for complaint but would be satisfied. Louis XIII, to whom the work was dedicated, accepted the homage of the author and a handsomely bound copy, but failed to exercise the grace customary with monarchs by according a gratification. At Rome, the treatise was proscribed in the index in 1627. Almost penniless and suffering from his protracted toil, Grotius seemed destined to neglect and oblivion, yet from his exile he wrote to his brother: "It is not necessary to ask anything for me. If my country can do without me, I can do without her. The world is large enough...."

Invited to enter the service of France by Richelieu, Grotius would not accept the conditions which the Cardinal wished to impose,—such at least is the inevitable inference from his letters. His pension was not paid and his circumstances became so serious that one of his children had but a single coat. At length, pushed to the utmost extremity of want and instigated by his energetic wife, Grotius resolved to return to Holland. Driven from Rotterdam to Amsterdam, where he hoped to settle down as a lawyer, the States General twice ordered his arrest and named a price for his delivery to the authorities. The new Stadtholder, Frederick Henry, who, before succeeding his brother Maurice, had written kindly to Grotius after his escape from imprisonment, now approved his proscription. Abandoned by his prince as well as by his countrymen, Grotius once more turned his face toward exile and set out for Hamburg.

IV. The Work of Grotius.

It may be of interest at this point in the career of Grotius to describe briefly the character of the great work which was soon to win for him a new celebrity, and materially change his prospects in life.

The inspiration of his "De Jure Belli ac Pacis" was the love of peace, yet he was far from being one of those visionaries who totally condemn the use of armed force and proscribe all war as wrong and unnecessary. On the contrary, he seeks to discover when, how, and by whom war may be justly conducted.

His plan of treatment is as follows:—

In the First Book, he considers whether any war is just, which leads to the distinction between public and private war, and this in turn to a discussion of the nature and embodiment of sovereignty.

In the Second Book, the causes from which wars arise, the nature of property and personal rights which furnish their occasions, the obligations that pertain to ownership, the rule of royal succession, the rights secured by compacts, the force and interpretation of treaties, and kindred subjects are examined.

In the Third Book, the question is asked, "What is lawful war?" which prepares for the consideration of military conventions and the methods by which peace is to be secured.

From the authority of the Empire and the Church, no longer effectual as an international agency, Grotius appeals to Humanity as furnishing the true law of nations. Beginning with the idea that there is a kinship among men established by nature, he sees in this bond a community of rights. The society of nations, including as it does the whole human race, needs the recognition of rights as much as mere local communities. As nations are but larger aggregations of individuals, each with its own corporate coherence, the accidents of geographic boundary do not obliterate that human demand for justice which springs from the nature of man as a moral being. There is, therefore, as a fundamental bond of human societies a Natural Law, which, when properly apprehended, is perceived to be the expression and dictate of right reason. It is thus upon the nature of man as a rational intelligence that Grotius founds his system of universal law.

As this law of human nature is universally binding wherever men exist, it cannot be set aside by the mere circumstances of time and place, whence it results that there is a law of war as well as a law of peace. As this law applies to the commencement of armed conflicts, war is never to be undertaken except to assert rights, and when undertaken is never to be carried on except within the limits of rights. It is true that in the conflict of arms laws must be silent, but only CIVIL laws, which govern in times of peace. Those laws which are PERPETUAL, which spring from the nature of man as man, and not from his particular civil relations, continue even during strife and constitute the laws of war. To deny these, or to disobey them, implies a repudiation of human nature itself and of the divine authority which has invested it with rights and obligations. To disavow the imperative character of these perpetual laws, is to revert to barbarism.

It is necessary, however to distinguish between Natural Law, that principle of justice which springs from man's rational nature, and Conventional Law, which results from his agreements and compacts. Natural Law remains ever the same, but institutions change. While the study of abstract justice, apart from all that has its origin in the will or consent of men, would enable us to create a complete system of jurisprudence, there is another source which must not be neglected, since men have established the sanctity of certain rules of conduct by solemn convention.

The Law of Nations does not consist, therefore, of a mere body of deductions derived from general principles of justice, for there is also a body of doctrine based upon CONSENT; and it is this system of voluntarily recognized obligations which distinguishes international jurisprudence from mere ethical speculation or moral theory. There are CUSTOMS of nations as well as a universally accepted law of nature, and it is in this growth of practically recognized rules of procedure that we trace the evolution of law international—jus inter gentes—as a body of positive jurisprudence.

It is evident that the mind of Grotius is continually struggling to establish a science upon this positive basis, and it is this which gives a distinctive character to his effort. The great writers of all ages are cited with a superfluous lavishness, not so much to support his claims by an aggregation of individual opinions—still less to display his erudition, as his critics have sometimes complained—as to give a historic catholicity to his doctrine by showing that the laws he is endeavoring to formulate have, in fact, been accepted in all times and by all men. For this purpose also, he makes abundant use of the great authorities on Roman Law, whose doctrines and formulas were certain to carry conviction to the minds of those whom he desired to convince.

It is needless, perhaps, to point out that the work of Grotius is not and could not be a work of permanent authority as a digest of international law. His own wise appreciation of the positive and historical element—the authority derived from custom—should exempt him from the pretense of absolute finality. It is the Book of Genesis only that he has given us, but it is his indefeasible distinction to have recorded the creation of order out of chaos in the great sphere of international relationship, justly entitling him to the honor accorded to him by the spontaneous consent of future times as the Father of International Jurisprudence.

It is not difficult after more than three centuries of thought and experience to point out the defects in his doctrine. If he justifies slavery, it is not without ingenuity; for, he argues, if a man may sell his labor, why not his liberty? and if the conqueror may impose his will upon the property of the vanquished, why not also upon his person? If he identifies sovereignty with supreme power without any adequate conception of its ethical basis, he is at least as advanced in his thinking as the conceptions of his time, which had not yet grasped the idea of the state as a moral organism. If he has no adequate notion of neutrality, believing it to be the duty of a nation to enlist its energies for what it deems the right side, rather than to disavow all responsibility for actions foreign to its own interests, he is at least supported in this by the opinion of the multitude even at the present time; and even among jurists the modern conception of neutrality is hardly a century old. If the new schools of jurisprudence make light of Natural Law as a foundation of public and private rights, it is not certain that Grotius may not yet be vindicated as representing a doctrine at least as clear as any other which has been substituted for it. But, finally, to all these criticisms it may be answered, that no great thinker can be justly estimated except in relation to his predecessors and contemporaries. Measured by these, Grotius stands alone among the jurists of his century for originality of thought and power of exposition.

V. The Influence of Grotius's Work.

It was during his sojourn in Hamburg in 1633, eight years after the publication of his "De Jure," and while he was still suffering from painful pecuniary embarrassment, that Europe suddenly awoke to a sense of his importance; and, almost at one time, Poland, Denmark, Spain, England, and Sweden all extended friendly invitations urging him to enter into their public service. His fame as a jurist had become international and, rudely repelled by his native Holland, he became the center of European interest. Gustavus Adolphus had placed the work of Grotius along side his Bible under his soldier's pillow, as he prosecuted his campaigns in the Thirty Years' War. The first edition of that work, written in Latin, the cosmopolitan language of learned Europe, had been quickly exhausted and widely scattered. Another had soon been called for at Paris, but the death of Buon, the publisher, created obstacles to its appearance. A second edition had appeared at Frankfort in 1626, another at Amsterdam in 1631, and still another with notes by the author in 1632. The book had aroused the thought of kings as well as of scholars, and in the circles of high influence everywhere in Europe the name of Grotius had become well known. His book had excited the most opposite sentiments and awakened the most contradictory judgments, but among lawyers and statesmen its reception was from the first generally marked by admiration. In spite of exile, poverty, and misfortune, Grotius had become a European celebrity and was about to enter into the reward of his labors. He had created a code for war and a programme of peace, and henceforth no statesman could afford to neglect him.

Gustavus Adolphus, the king of Sweden, before his death on the battlefield of Lützen, had commended Grotius to his great Chancellor, Oxenstiern. By the death of Gustavus the Chancellor had, in 1633, recently come into the regency of the kingdom at a critical moment when a retreat from the bitter contest with the Empire seemed to be foredoomed unless prevented by the support and friendship of France. Recalling the commendation of the late king, Oxenstiern sought and found in Grotius an ambassador of Sweden to negotiate a new Franco-Swedish alliance. Accepting this appointment in 1634, Grotius arrived at Paris on his diplomatic mission on March 2d, 1635.

Richelieu, having failed to draw the great jurist into the orbit of his influence as a satellite, resented his appearance in a character so influential and honorable as that of ambassador of Sweden, and Grotius made little progress in his negotiation. Preoccupied with literature, he took more interest in the composition of a sacred tragedy on "The Flight into Egypt" than in reminding France of the existing treaty of Heilbronn or consolidating the new Franco-Swedish alliance. Where Grotius the theorist failed, Oxenstiern, the practical statesman, by a few dexterous strokes of diplomacy during a brief visit to Paris, easily succeeded; and the ambassador's mission was simplified to the rôle of a mere observer and reporter of occurrences.

By taste, nature, and training, Grotius was a jurist and not a diplomatist, and he soon realized that the two vocations, if not diametrically opposed, are at least separated from each other by a vast interval. His diplomatic correspondence betrays the keen observer and the conscientious moralist rather than the accomplished negotiator. Among the observations recorded in his dispatches, one may be quoted as an example of his penetration and his humor. Speaking of the Dauphin, the future Louis XIV, he says: "His frightful and precocious avidity is a bad omen for neighboring peoples; for he is at present on his ninth nurse, whom he is rending and murdering as he has the others!"

It is painful to behold the great father of international jurisprudence descending in his dispatches to petty details of precedence and alienating from himself the sympathies of his colleagues by ridiculous ceremonial pretensions. He would no longer visit Mazarin, because the Cardinal insisted on calling him Eminence instead of Excellence; Grotius considering this distinction of terms a slight upon his rank as ambassador. So persistent was he in these follies and so rancorous were the feuds that the apostle of peace elicited that, in December, 1636, less than two years after his arrival at Paris, he advised Sweden to send to France a simple Chargé d'Affaires, instead of an ambassador, in order to restore diplomatic relations.

His quarrels concerning precedence, which rendered him an object of ridicule at the French Court, were not the only griefs of the ambassador of Sweden. Inadequately recompensed, he was obliged to wait two years for his salary and finally, being reduced to a condition in which he could no longer maintain existence otherwise, he was compelled to demand of the royal treasury of France a part of the subsidies promised to the army of his adopted country. Weary of his importunities, the French government repeatedly requested his recall. Disgusted with his mission, Grotius at last abandoned the duties of his office to the intriguing adventurer, Cerisante, who was sent to aid him, and buried himself in his books until his return to Sweden at his own request in 1645.

Queen Christina of Sweden, a patroness of scholars, desirous of aiding Grotius and of retaining him in the service of her kingdom, made many offers and promises, but their execution being deferred, he became impatient of his lot, refused a position as counselor of state, and resolved to leave the country. His plan to abandon Stockholm secretly was prevented by a messenger of the queen who followed him to the port where he intended to embark and induced him to return for a farewell audience. With a handsome present of money and silver plate he took passage on a vessel placed at his disposition to convey him to Lübeck. Off the coast near Dantzic a violent tempest arose. On the 17th of August, 1645, the vessel was driven ashore and Grotius, overcome by his trying experiences, was taken ill at Rostock, where a few days later he passed away.

The later years of his life had been chiefly devoted to plans for the establishment of peace in the religious world, whose dissensions gave him great distress of mind.

The country of his birth, which had so long denied him citizenship, received him at last to the silent hospitality of the tomb. His body was taken to Delft, his native town, where his name is now held in grateful reverence.

At the time when Grotius left Stockholm, the last of the plenipotentiaries had arrived at Münster and Osnabrück to attend the great European congress convoked to terminate the hostilities of the Thirty Years' War. It is a tradition, but incapable of satisfactory proof, that it was with the purpose of being present at the councils of this congress that the author of "De Jure Belli ac Pacis" left Sweden for Germany. However this may be, it is certain that the mediation of the king of Denmark at Osnabrück and of the papal legate at Münster, though unsuccessful, was in accordance with the idea of Grotius expressed in the words: "It would be useful, and indeed it is almost necessary, that certain congresses of Christian powers should be held, in which controversies that have arisen among some of them may be decided by others who are not interested." The immediate establishment of an international tribunal, evidently contemplated in this suggestion, was not in harmony with the temper of those times; but it cannot be doubted that the Peace of Westphalia, whose treaties were to form a code of public law for Europe, was to a great degree an embodiment of the principles which Grotius was the first to enunciate.

His "De Jure Belli ac Pacis" had already become a classic even before the author's death, and special professorships were soon founded in the universities to expound its principles. It would be tedious to name the numerous editions, translations, and commentaries which have given it an exceptional place in the literature of Europe. This task has been in part performed, however, by Dr. Rogge in his "Bibliotheca Grotiana," published at The Hague in 1883, and intended to be a full bibliography of Grotius's works. The whole number of titles included is 462, but they do not comprise the writings of the generations of jurists who have been inspired by the great master or of the critics and biographers who have discussed his life and work.

Tardily, but with full contrition for the bitter wrong done to one of her greatest and noblest sons, the memory of Grotius has received from his native land abundant recognition and commemoration. The appropriate tomb that marks his resting place in the Nieuwe Kerk at Delft, symbolical of his learning, genius, and renown, was erected in 1781. On the 17th of September, 1886, a noble statue of the great jurist was unveiled in the public square of his native town in front of the church which contains his tomb. Thus, more than a century after his death, and again still another century later, Holland has paid her tribute of respect to her illustrious citizen.

The later years have also brought new honors to Grotius's feet. At the recent Peace Conference at The Hague was completed the great structure of international comity whose corner stone was laid by him in 1625. It was most fitting that an international congress called in the interest of peace should blend with the negotiation of conventions for the pacific settlement of disputes between nations by a permanent tribunal, and for the amelioration of the laws of war, a celebration of the distinguished writer whose great thought had at last borne such precious fruits. In pursuance of instructions received from the Secretary of State, the United States Commission invited their colleagues in the congress, the heads of the Dutch universities, and the high civic authorities to join with them in observing the 4th of July by celebrating the memory of the great jurist. With appropriate exercises in the apse of the old church, near the monument of Grotius and mausoleum of William the Silent, the representatives of twenty-six nations gathered to do him honor. A beautiful commemorative wreath of silver was laid upon Grotius's tomb bearing the inscription:

TO
THE MEMORY OF HUGO GROTIUS
IN
Reverence and Gratitude
from the United States of America
ON THE
Occasion of the International Peace Conference
AT
The Hague July 4th, 1899.

An eloquent oration by the Honorable Andrew D. White, Ambassador of the United States to Germany, and the head of the Commission, followed by other appropriate addresses, recalled the debt of mankind to the author of "De Jure Belli ac Pacis"; and thus the plenipotentiaries of the nineteenth century did homage to the exile of the sixteenth who had taught the world that even in the shock and storm of battle humanity cannot escape the dominion of its own essential laws, and that even independent states are answerable before the bar of human nature for obedience to principles imposed by a Power higher than the prerogatives of princes or the will of nations.

THE RIGHTS
OF
WAR AND PEACE,
INCLUDING
THE LAW OF NATURE AND OF NATIONS.

[BOOK I.]

[CHAPTER I.]

Of War—Definition of War—Right, of Governors and of the governed, and of equals—Right as a Quality divided into Faculty and Fitness—Faculty denoting Power, Property, and Credit—Divided into Private and Superior—Right as a Rule, natural and voluntary—Law of Nature divided—Proofs of the Law of Nature—Division of Rights into human and divine—Human explained—Divine stated—Mosaic Law not binding upon Christians.

I. The disputes arising among those who are held together by no common bond of civil laws to decide their dissensions, like the ancient Patriarchs, who formed no national community, or the numerous, unconnected communities, whether under the direction of individuals, or kings, or persons invested with Sovereign power, as the leading men in an aristocracy, and the body of the people in a republican government; the disputes, arising among any of these, all bear a relation to the circumstances of war or peace. But because war is undertaken for the sake of peace, and there is no dispute, which may not give rise to war, it will be proper to treat all such quarrels, as commonly happen, between nations, as an article in the rights of war: and then war itself will lead us to peace, as to its proper end.

II. In treating of the rights of war, the first point, that we have to consider, is, what is war, which is the subject of our inquiry, and what is the right, which we seek to establish. Cicero styled war a contention by force. But the practice has prevailed to indicate by that name, not an immediate action, but a state of affairs; so that war is the state of contending parties, considered as such. This definition, by its general extent, comprises those wars of every description, that will form the subject of the present treatise. Nor are single combats excluded from this definition. For, as they are in reality more ancient than public wars, and undoubtedly, of the same nature, they may therefore properly be comprehended under one and the same name. This agrees very well with the true derivation of the word. For the Latin word, Bellum, WAR, comes from the old word, Duellum, a DUEL, as Bonus from Duonus, and Bis from Duis. Now Duellum was derived from Duo; and thereby implied a difference between two persons, in the same sense as we term peace, Unity, from Unitas, for a contrary reason. So the Greek word, πολεμος {polemos} commonly used to signify war, expresses in its original, an idea of multitude. The ancient Greeks likewise called it λυη {lyê}, which imports a DISUNION of minds; just as by the term δυη {dyê}, they meant the DISSOLUTION of the parts of the body. Nor does the use of the word, War, contradict this larger acceptation of it. For though some times it is only applied to the quarrels of states, yet that is no objection, as it is evident that a general name is often applied to some particular object, entitled to peculiar distinction. Justice is not included in the definition of war, because the very point to be decided is, whether any war is just, and what war may be so called. Therefore we must make a distinction between war itself, and the justice of it.

III. As the Rights of War is the title, by which this treatise is distinguished, the first inquiry, as it has been already observed, is whether any war be just, and, in the next place, what constitutes the justice of that war. For, in this place, right signifies nothing more than what is just, and that, more in a negative than a positive sense; so that RIGHT is that, which is not unjust. Now any thing is unjust, which is repugnant to the nature of society, established among rational creatures. Thus for instance, to deprive another of what belongs to him, merely for one's own advantage, is repugnant to the law of nature, as Cicero observes in the fifth Chapter of his third book of offices; and, by way of proof, he says that, if the practice were general, all society and intercourse among men must be overturned. Florentinus, the Lawyer, maintains that is impious for one man to form designs against another, as nature has established a degree of kindred amongst us. On this subject, Seneca remarks that, as all the members of the human body agree among themselves, because the preservation of each conduces to the welfare of the whole, so men should forbear from mutual injuries, as they were born for society, which cannot subsist unless all the parts of it are defended by mutual forbearance and good will. But as there is one kind of social tie founded upon an equality, for instance, among brothers, citizens, friends, allies, and another on pre-eminence as Aristotle styles it, subsisting between parents and children, masters and servants, sovereigns and subjects, God and men. So justice takes place either amongst equals, or between the governing and the governed parties, notwithstanding their difference of rank. The former of these, if I am not mistaken, may be called the right of equality, and the latter the right of superiority.

IV. There is another signification of the word RIGHT, different from this, but yet arising from it, which relates directly to the person. In which sense, RIGHT is a moral quality annexed to the person, justly entitling him to possess some particular privilege, or to perform some particular act. This right is annexed to the person, although it sometimes follows the things, as the services of lands, which are called REAL RIGHTS, in opposition to those merely PERSONAL. Not because these rights are not annexed to persons, but the distinction is made, because they belong to the persons only who possess some particular things. This moral quality, when perfect is called a FACULTY; when imperfect, an APTITUDE. The former answers to the ACT, and the latter to the POWER, when we speak of natural things.

V. Civilians call a faculty that Right, which every man has to his own; but we shall hereafter, taking it in its strict and proper sense, call it a right. This right comprehends the power, that we have over ourselves, which is called liberty, and the power, that we have over others, as that of a father over his children, and of a master over his slaves. It likewise comprehends property, which is either complete or imperfect; of the latter kind is the use or possession of any thing without the property, or power of alienating it, or pledges detained by the creditors till payment be made. There is a third signification, which implies the power of demanding what is due, to which the obligation upon the party indebted, to discharge what is owing, corresponds.

VI. Right, strictly taken, is again twofold, the one, PRIVATE, established for the advantage of each individual, the other, SUPERIOR, as involving the claims, which the state has upon individuals, and their property, for the public good. Thus the Regal authority is above that of a father and a master, and the Sovereign has a greater right over the property of his subjects, where the public good is concerned, than the owners themselves have. And when the exigencies of the state require a supply, every man is more obliged to contribute towards it, than to satisfy his creditors.

VII. Aristotle distinguishes aptitude or capacity, by the name of worth or merit, and Michael of Ephesus, gives the epithet of SUITABLE or BECOMING to the equality established by this rule of merit.

IX.[1] There is also a third signification of the word Right, which has the same meaning as Law taken in its most extensive sense, to denote a rule of moral action, obliging us to do what is proper. We say OBLIGING us. For the best counsels or precepts, if they lay us under no obligation to obey them, cannot come under the denomination of law or right. Now as to permission,[2] it is no act of the law, but only the silence of the law, it however prohibits any one from impeding another in doing what the law permits. But we have said, the law obliges us to do what is proper, not simply what is just; because, under this notion, right belongs to the substance not only of justice, as we have explained it, but of all other virtues. Yet from giving the name of a RIGHT to that, which is PROPER, a more general acceptation of the word justice has been derived. The best division of right, in this general meaning, is to be found in Aristotle, who, defining one kind to be natural, and the other voluntary, calls it a LAWFUL RIGHT in the strictest sense of the word law; and some times an instituted right. The same difference is found among the Hebrews, who, by way of distinction, in speaking, call that natural right, PRECEPTS, and the voluntary right, STATUTES: the former of which the Septuagint call δικαιώματα {dikaiômata}, and the latter ἐντολας {entolas}.

X. Natural right is the dictate of right reason, shewing the moral turpitude, or moral necessity,[3] of any act from its agreement or disagreement with a rational nature, and consequently that such an act is either forbidden or commanded by God, the author of nature. The actions, upon which such a dictate is given, are either binding or unlawful in themselves, and therefore necessarily understood to be commanded or forbidden by God. This mark distinguishes natural right, not only from human law, but from the law, which God himself has been pleased to reveal, called, by some, the voluntary divine right, which does not command or forbid things in themselves either binding or unlawful, but makes them unlawful by its prohibition, and binding by its command. But, to understand natural right, we must observe that some things are said to belong to that right, not properly, but, as the schoolmen say, by way of accommodation. These are not repugnant to natural right, as we have already observed that those things are called JUST, in which there is no injustice. Some times also, by a wrong use of the word, those things which reason shews to be proper, or better than things of an opposite kind, although not binding, are said to belong to natural right.

We must farther remark, that natural right relates not only to those things that exist independent of the human will, but to many things which necessarily follow the exercise of that will. Thus property, as now in use, was at first a creature of the human will. But, after it was established, one man was prohibited by the law of nature from seizing the property of another against his will. Wherefore, Paulus the Lawyer said, that theft is expressly forbidden by the law of nature. Ulpian condemns it as infamous in its own nature; to whose authority that of Euripides may be added, as may be seen in the verses of Helena:

"For God himself hates violence, and will not have us to grow rich by rapine, but by lawful gains. That abundance, which is the fruit of unrighteousness, is an abomination. The air is common to men, the earth also, where every man, in the ample enjoyment of his possession, must refrain from doing violence or injury to that of another."

Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For although the power of God is infinite, yet there are some things, to which it does not extend. Because the things so expressed would have no true meaning, but imply a contradiction. Thus two and two must make four, nor is it possible to be otherwise; nor, again, can what is really evil not be evil. And this is Aristotle's meaning, when he says, that some things are no sooner named, than we discover their evil nature. For as the substance of things in their nature and existence depends upon nothing but themselves; so there are qualities inseparably connected with their being and essence. Of this kind is the evil of certain actions, compared with the nature of a reasonable being. Therefore God himself suffers his actions to be judged by this rule, as may be seen in the xviiith chap. of Gen. 25. Isa. v. 3. Ezek. xviii. 25. Jer. ii. 9. Mich. vi. 2. Rom. ii. 6., iii. 6. Yet it sometimes happens that, in those cases, which are decided by the law of nature, the undiscerning are imposed upon by an appearance of change. Whereas in reality there is no change in the unalterable law of nature, but only in the things appointed by it, and which are liable to variation. For example, if a creditor forgive me the debt, which I owe him, I am no longer bound to pay it, not because the law of nature has ceased to command the payment of a just debt, but because my debt, by a release, has ceased to be a debt. On this topic, Arrian in Epictetus argues rightly, that the borrowing of money is not the only requisite to make a debt, but there must be the additional circumstance of the loan remaining undischarged. Thus if God should command the life, or property of any one to be taken away, the act would not authorise murder or robbery, words which always include a crime. But that cannot be murder or robbery, which is done by the express command of Him, who is the sovereign Lord of our lives and of all things. There are also some things allowed by the law of nature, not absolutely, but according to a certain state of affairs. Thus, by the law of nature, before property was introduced, every one had a right to the use of whatever he found unoccupied; and, before laws were enacted, to avenge his personal injuries by force.

XI. The distinction found in the books of the Roman Law, assigning one unchangeable right to brutes in common with man, which in a more limited sense they call the law of nature, and appropriating another to men, which they frequently call the Law of Nations, is scarcely of any real use. For no beings, except those that can form general maxims, are capable of possessing a right, which Hesiod has placed in a clear point of view, observing "that the supreme Being has appointed laws for men; but permitted wild beasts, fishes, and birds to devour each other for food." For they have nothing like justice, the best gift, bestowed upon men.

Cicero, in his first book of offices, says we do not talk of the justice of horses or lions. In conformity to which, Plutarch, in the life of Cato the elder, observes, that we are formed by nature to use law and justice towards men only. In addition to the above, Lactantius may be cited, who, in his fifth book, says that in all animals devoid of reason we see a natural bias of self-love. For they hurt others to benefit themselves; because they do not know the evil of doing wilful hurt. But it is not so with man, who, possessing the knowledge of good and evil, refrains, even with inconvenience to himself, from doing hurt. Polybius, relating the manner in which men first entered into society, concludes, that the injuries done to parents or benefactors inevitably provoke the indignation of mankind, giving an additional reason, that as understanding and reflection form the great difference between men and other animals, it is evident they cannot transgress the bounds of that difference like other animals, without exciting universal abhorrence of their conduct. But if ever justice is attributed to brutes, it is done improperly, from some shadow and trace of reason they may possess. But it is not material to the nature of right, whether the actions appointed by the law of nature, such as the care of our offspring, are common to us with other animals or not, or, like the worship of God, are peculiar to man.

XII. The existence of the Law of Nature is proved by two kinds of argument, a priori, and a posteriori, the former a more abstruse, and the latter a more popular method of proof. We are said to reason a priori, when we show the agreement or disagreement of any thing with a reasonable and social nature; but a posteriori, when without absolute proof, but only upon probability, any thing is inferred to accord with the law of nature, because it is received as such among all, or at least the more civilized nations. For a general effect can only arise from a general cause. Now scarce any other cause can be assigned for so general an opinion, but the common sense, as it is called, of mankind. There is a sentence of Hesiod that has been much praised, that opinions which have prevailed amongst many nations, must have some foundation. Heraclitus, establishing common reason as the best criterion of truth, says, those things are certain which generally appear so. Among other authorities, we may quote Aristotle, who says it is a strong proof in our favour, when all appear to agree with what we say, and Cicero maintains that the consent of all nations in any case is to be admitted for the law of nature. Seneca is of the same opinion, any thing, says he, appearing the same to all men is a proof of its truth. Quintilian says, we hold those things to be true, in which all men agree. We have called them the more civilized nations, and not without reason. For, as Porphyry well observes, some nations are so strange that no fair judgment of human nature can be formed from them, for it would be erroneous. Andronicus, the Rhodian says, that with men of a right and sound understanding, natural justice is unchangeable. Nor does it alter the case, though men of disordered and perverted minds think otherwise. For he who should deny that honey is sweet, because it appears not so to men of a distempered taste, would be wrong. Plutarch too agrees entirely with what has been said, as appears from a passage in his life of Pompey, affirming that man neither was, nor is, by nature, a wild unsociable creature. But it is the corruption of his nature which makes him so: yet by acquiring new habits, by changing his place, and way of living, he may be reclaimed to his original gentleness. Aristotle, taking a description of man from his peculiar qualities, makes him an animal of a gentle nature, and in another part of his works, he observes, that in considering the nature of man, we are to take our likeness from nature in its pure, and not in its corrupt state.

XIII. It has been already remarked, that there is another kind of right, which is the voluntary right, deriving its origin from the will, and is either human or divine.

XIV. We will begin with the human as more generally known. Now this is either a civil right, or a right more or less extensive than the civil right. The civil right is that which is derived from the civil power. The civil power is the sovereign power of the state. A state is a perfect body of free men, united together in order to enjoy common rights and advantages. The less extensive right, and not derived from the civil power itself, although subject to it, is various, comprehending the authority of parents over children, masters over servants, and the like. But the law of nations is a more extensive right, deriving its authority from the consent of all, or at least of many nations.

It was proper to add MANY, because scarce any right can be found common to all nations, except the law of nature, which itself too is generally called the law of nations. Nay, frequently in one part of the world, that is held for the law of nations, which is not so in another. Now this law of nations is proved in the same manner as the unwritten civil law, and that is by the continual experience and testimony of the Sages of the Law. For this law, as Dio Chrysostom well observes, is the discoveries made by experience and time. And in this we derive great advantage from the writings of eminent historians.

XV. The very meaning of the words divine voluntary right, shows that it springs from the divine will, by which it is distinguished from natural law, which, it has already been observed, is called divine also. This law admits of what Anaxarchus said, as Plutarch relates in the life of Alexander, though without sufficient accuracy, that God does not will a thing, because it is just, but that it is just, or binding, because God wills it. Now this law was given either to mankind in general, or to one particular people. We find three periods, at which it was given by God to the human race, the first of which was immediately after the creation of man, the second upon the restoration of mankind after the flood, and the third upon that more glorious restoration through Jesus Christ. These three laws undoubtedly bind all men, as soon as they come to a sufficient knowledge of them.

XVI. Of all nations there is but one, to which God particularly vouchsafed to give laws; and that was the people of Israel, whom Moses thus addresses in the fourth Chap. of Deuteronomy, ver. 7. "What nation is there so great who hath God so nigh unto them, as the Lord our God is in all things that we call upon him for? And what nation is there so great, who have statutes and judgments so righteous, as all this law, which I set before you this day!" And the Psalmist in the cxlvii. Psalm, "God shewed his word unto Jacob, his statutes and ordinances unto Israel. He hath not dealt so with any nation, and as for his judgments they have not known them." Nor can we doubt but that those Jews, with whom we may class Tryphon in his dispute with Justin, are mistaken, who suppose that even strangers, if they wish to be saved, must submit to the yoke of the Mosaic Law. For a law does not bind those, to whom it has not been given. But it speaks personally to those, who are immediately under it. Hear O Israel, and we read everywhere of the covenant made with them, by which they became the peculiar people of God. Maimonides acknowledges and proves the truth of this from the xxxiii. Chapter and fourth verse of Deuteronomy.

But among the Hebrews themselves there were always living some strangers, persons devout and fearing God, such was the Syrophoenician woman, mentioned in the Gospel of St. Matthew, xv. 22. Cornelius the Centurion. Acts. x. the devout Greeks, Acts xviii. 6. Sojourners, or strangers, also are mentioned. Levit. xxv. 47. These, as the Hebrew Rabbis themselves inform us, were obliged to observe the laws given to Adam and Noah, to abstain from idols and blood, and other things, that were prohibited; but not in the same manner to observe the laws peculiar to the people of Israel. Therefore though the Israelites were not allowed to eat the flesh of a beast, that had died a natural death; yet the strangers living among them were permitted. Deut. xiv. 21. Except in some particular laws, where it was expressly said, that strangers no less than the native inhabitants were obliged to observe them. Strangers also, who came from other countries, and were not subject to the Jewish laws, might worship God in the temple of Jerusalem, but standing in a place separate and distinct from the Israelites. I. Kings viii. 41. 2 Mac. iii. 35. John xii. 20. Acts viii. 27. Nor did Elisha ever signify to Naaman the Syrian, nor Jonas to the Ninevites, nor Daniel to Nebuchadnezzar, nor the other Prophets to the Tyrians, the Moabites, the Egyptians, to whom they wrote, that it was necessary for them to adopt the Mosaic Law.

What has been said of the whole law of Moses applies to circumcision, which was a kind of introduction to the law. Yet with this difference that the Israelites alone were bound by the Mosaic Law, but the whole posterity of Abraham by the law of circumcision. From hence we are informed by Jewish and Greek Historians, that the Idumaeans, or Edomites were compelled by the Jews to be circumcised. Wherefore there is reason to believe that the numerous nations, who, besides the Israelites, practised circumcision, and who are mentioned by Herodotus, Strabo, Philo, Justin, Origen, Clemens, Alexandrinus, Epiphanius, and Jerom, were descended from Ishmael, Esau, or the posterity of Keturah. But what St. Paul says, Rom. ii. 14. holds good of all other nations; that the Gentiles, not having the law, yet doing by nature the things contained in the law, become a law to themselves. Here the word nature may be taken for the primitive source of moral obligation; or, referring it to the preceding parts of the Epistle, it may signify the knowledge, which the Gentiles acquired of themselves without instruction, in opposition to the knowledge derived to the Jews from the law, which was instilled into them from their cradle, and almost from their birth. "So the Gentiles show the work, or the moral precepts of the law, written in their hearts, their consciences also bearing witness, and their thoughts the mean while accusing or else excusing one another." And again in the 26th ver.; "If the uncircumcision keep the righteousness of the law, shall not his uncircumcision be counted for circumcision?" Therefore Ananias, the Jew, as we find in the history of Josephus, very properly taught Tzates, or as Tacitus calls him, Ezates, the Adiabenian, that even without circumcision, God might be rightly worshipped and rendered propitious. For though many strangers were circumcised, among the Jews, and by circumcision bound themselves to observe the law, as St. Paul explains it in Gal. v. 3.; they did it partly to obtain the freedom of the country; for proselytes called by the Hebrews, proselytes of righteousness, enjoyed equal privileges with the Israelites. Num. xv.: and partly to obtain a share in those promises, which were not common to mankind, but peculiar to the Jewish people, although it cannot be denied, that in later ages an erroneous opinion prevailed, that there was no salvation out of the Jewish pale. Hence we may infer, that we are bound by no part of the Levitical law, strictly and properly so called; because any obligation, beyond that arising from the law of nature, must proceed from the express will of the law-giver. Now it cannot be discovered by any proof, that God intended any other people, but the Israelites to be bound by that law. Therefore with respect to ourselves, we have no occasion to prove an abrogation of that law; for it could never be abrogated with respect to those, whom it never bound. But the Israelites were released from the ceremonial part, as soon as the law of the Gospel was proclaimed; a clear revelation of which was made to one of the Apostles, Acts x. 15. And the other parts of the Mosaic law lost their peculiar distinction, when the Jews ceased to be a people by the desolation and destruction of their city without any hopes of restoration. Indeed it was not a release from the law of Moses that we, who were strangers to the Commonwealth of Israel, obtained by the coming of Christ. But as before that time, our hopes in the goodness of God were obscure and uncertain, we gained the assurance of an express covenant, that we should be united in one Church with the seed of Israel, the children of the patriarchs, their law, that was the wall of separation between us, being broken down. Eph. ii. 14.

XVII. Since then the law given by Moses imposes no direct obligation upon us, as it has been already shown, let us consider whether it has any other use both in this inquiry into the rights of war, and in other questions of the same kind. In the first place, the Mosaic law shows that what it enjoins is not contrary to the law of nature. For since the law of nature is perpetual and unchangeable, nothing contradictory to it could be commanded by God, who is never unjust. Besides the law of Moses is called in the xix. Psalm an undefiled and right law, and St. Paul, Rom. vii. 12, describes it to be holy, just, and good. Its precepts are here spoken of, for its permissions require a more distinct discussion. For the bare permission, signifying the removal of an impediment, or prohibition, has no relation to the present subject. A positive, legal permission is either full, granting us power to do some particular act without the least restriction, or less full, only allowing men impunity for certain actions, and a right to do them without molestation from others. From the permission of the former kind no less than from a positive precept, it follows that what the law allows, is not contrary to the law of nature.[4] But with regard to the latter kind of permission, allowing impunity for certain acts, but not expressly authorizing them, we cannot so readily conclude those acts to be conformable to the law of nature.[5] Because where the words of permission are ambiguous in their meaning, it is better for us to interpret according to the established law of nature, what kind of permission it is, than from our conception of its expediency to conclude it conformable to the laws of nature. Connected with this first observation there is another, expressive of the power that obtains among Christian Princes to enact laws of the same import with those given by Moses, except such as related entirely to the time of the expected Messiah, and the Gospel then unrevealed, or where Christ himself has in a general or particular manner established any thing to the contrary. For except in these three cases, no reason can be devised, why any thing established by the law of Moses should be now unlawful. In the third place it may be observed, that whatever the law of Moses enjoined relating to those virtues, which Christ required of his disciples, should be fulfilled by Christians now, in a greater degree, from their superior knowledge, and higher motives. Thus the virtues of humility, patience, and charity are required of Christians in a more perfect manner than of the Jews under the Mosaic dispensation, because the promises of heaven are more clearly laid before us in the Gospel. Hence the old law, when compared with the Gospel, is said to have been neither perfect nor faultless, and Christ is said to be the end of the law, and the law our schoolmaster to bring us to Christ. Thus the old law respecting the Sabbath, and the law respecting tithes, show that Christians are bound to devote not less than a seventh portion of their time to divine worship, nor less than a tenth of their fruits to maintain those who are employed in holy things, or to other pious uses.

[CHAPTER II.]
Inquiry Into the Lawfulness of War.

Reasons proving the lawfulness of War—Proofs from History—Proofs from general consent—The Law of Nature proved not repugnant to War—War not condemned by the voluntary Divine Law preceding the Gospel—Objections answered—Review of the question whether War be contrary to the Law of the Gospel—Arguments from Scripture for the negative Opinions—Answer to the Arguments taken from Scripture for the affirmative—The opinions of the primitive Christians on the subject examined.

I. After examining the sources of right, the first and most general question that occurs, is whether any war is just, or if it is ever lawful to make war. But this question like many others that follow, must in the first place be compared with the rights of nature. Cicero in the third book of his Bounds of Good and Evil, and in other parts of his works, proves with great erudition from the writings of the Stoics, that there are certain first principles of nature, called by the Greeks the first natural impressions, which are succeeded by other principles of obligation superior even to the first impressions themselves. He calls the care, which every animal, from the moment of its birth, feels for itself and the preservation of its condition, its abhorrence of destruction, and of every thing that threatens death, a principle of nature. Hence, he says, it happens, that if left to his own choice, every man would prefer a sound and perfect to a mutilated and deformed body. So that preserving ourselves in a natural state, and holding to every thing conformable, and averting every thing repugnant to nature is the first duty.

But from the knowledge of these principles, a notion arises of their being agreeable to reason, that part of a man, which is superior to the body. Now that agreement with reason, which is the basis of propriety, should have more weight than the impulse of appetite; because the principles of nature recommend right reason as a rule that ought to be of higher value than bare instinct. As the truth of this is easily assented to by all men of sound judgment without any other demonstration, it follows that in inquiring into the laws of nature the first object of consideration is, what is agreeable to those principles of nature, and then we come to the rules, which, though arising only out of the former, are of higher dignity, and not only to be embraced, when offered, but pursued by all the means in our power.

This last principle, which is called propriety, from its fitness, according to the various things on which it turns, sometimes is limited to a very narrow point, the least departure from which is a deviation into vice; sometimes it allows a wider scope, so that some actions, even laudable in themselves, may be omitted or varied without crime. In this case there is not an immediate distinction between right and wrong; the shades are gradual, and their termination unperceived; not like a direct contrast, where the opposition is immediately seen, and the first step is a transgression of the fixed bounds.

The general object of divine and human laws is to give the authority of obligation to what was only laudable in itself. It has been said above that an investigation of the laws of nature implies an inquiry, whether any particular action may be done without injustice: now by an act of injustice is understood that, which necessarily has in it any thing repugnant to the nature of a reasonable and social being. So far from any thing in the principles of nature being repugnant to war, every part of them indeed rather favours it. For the preservation of our lives and persons, which is the end of war, and the possession or acquirement of things necessary and useful to life is most suitable to those principles of nature, and to use force, if necessary, for those occasions, is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves.

Xenophon says, that every animal knows a certain method of fighting without any other instructor than nature. In a fragment of Ovid's, called the Art of Fishery, it is remarked, that all animals know their enemy and his means of defence, and the strength and measure of their own weapons. Horace has said, "the wolf attacks with its teeth, the bull with its horns, and whence is this knowledge derived but from instinct?" On this subject Lucretius enlarges, observing that "every creature knows its own powers. The calf butts with its forehead, before its horns appear, and strikes with all imaginable fury." On which Galen expresses himself in the following manner, "every animal appears to defend itself with that part of its body, in which it excels others. The calf butts with its head before its horns have grown, and the colt strikes with its heel before its hoofs are hard, as the young dog attempts to bite before his teeth are strong." The same writer in describing the use of different parts of the body, says, "that man is a creature formed for peace and war. His armour forms not an immediate part of his body; but he has hands fit for preparing and handling arms, and we see infants using them spontaneously, without being taught to do so." Aristotle in the 4th book, and tenth chapter of the history of animals, says, "that the hand serves man for a spear, a sword, or any arms whatever, because it can hold and wield them." Now right reason and the nature of society which claims the second, and indeed more important place in this inquiry, prohibit not all force, but only that which is repugnant to society, by depriving another of his right. For the end of society is to form a common and united aid to preserve to every one his own. Which may easily be understood to have obtained, before what is now called property was introduced. For the free use of life and limbs was so much the right of every one, that it could not be infringed or attacked without injustice. So the use of the common productions of nature was the right of the first occupier, and for any one to rob him of that was manifest injustice. This may be more easily understood, since law and custom have established property under its present form. Tully has expressed this in the third book of his Offices in the following words, "if every member could have separate feeling, and imagine it could derive vigour from engrossing the strength of a neighboring part of the body, the whole frame would languish and perish. In the same manner if every one of us, for his own advantage, might rob another of what he pleased, there would be a total overthrow of human society and intercourse. For though it is allowed by nature for every one to give the preference to himself before another in the enjoyment of life and necessaries, yet she does not permit us to increase our means and riches by the spoils of others." It is not therefore contrary to the nature of society to provide and consult for ourselves, if another's right is not injured; the force therefore, which inviolably abstains from touching the rights of others, is not unjust. For as the same Cicero observes some where in his Epistles, that as there are two modes of contending, the one by argument, and the other by force, and as the former is peculiar to man, and the latter common to him with the brute creation, we must have recourse to the latter, when it is impossible to use the former. And again, what can be opposed to force, but force? Ulpian observes that Cassius says, it is lawful to repel force by force, and it is a right apparently provided by nature to repel arms with arms, with whom Ovid agrees, observing that the laws permit us to take up arms against those that bear them.

II. The observation that all war is not repugnant to the law of nature, may be more amply proved from sacred history. For when Abraham with his servants and confederates had gained a victory, by force of arms, over the four Kings, who had plundered Sodom, God approved of his act by the mouth of his priest Melchisedech, who said to him, "Blessed be the most high God, who hath delivered thine enemies into thine hand." Gen. xiv. 20. Now Abraham had taken up arms, as appears from the history, without any special command from God. But this man, no less eminent for sanctity than wisdom, felt himself authorized by the law of nature, as it is admitted by the evidence of Berosus, and Orpheus, who were strangers.

There is no occasion to appeal to the history of the seven nations, whom God delivered up into the hands of the Israelites to be destroyed. For there was a special command to execute the judgment of God upon nations guilty of the greatest crimes. From whence these wars are literally styled in scripture, Battles of the Lord, as undertaken, not by human will, but by divine appointment. The xvii. chapter of Exodus supplies a passage more to the purpose, relating the overthrow which the Israelites, conducted by Moses and Joshua, made of the Amalekites. In this act, there was no express commission from God, but only an approval after it was done. But in the xix. chap. of Deut. ver. 10, 15. God has prescribed general and standing laws to his people on the manner of making war, by this circumstance shewing that a war may be just without any express commandment from him. Because in the same passage, a plain distinction is made between the case of the seven nations and that of others. And as there is no special edict prescribing the just causes for which war may be undertaken, the determination of them is left to the discovery of natural reason. Of this kind is the war of Jephthah against the Ammonites, in defence of their borders. Jud. xi. and the war of David against the same people for having violated the rights of his Ambassadors. 2 Sam. x. To the preceding observations may be added, what the inspired writer of the Epistle to the Hebrews says of Gideon, Barack, Sampson, Jephthah, David, Samuel, and others, who by faith made war upon kingdoms, prevailed in war and put whole armies of their enemies to flight. Heb. xi. 33, 34. The whole tenor of this passage shews, that the word faith implies a persuasion, that what they did was believed to be agreeable to the will of God. In the same manner, David is said, by a woman distinguished for her wisdom, 1 Sam. xxv. 28. to fight the battles of the Lord, that is to make lawful and just wars.

III. Proofs of what has been advanced, may be drawn also from the consent of all, especially, of the wisest nations. There is a celebrated passage in Cicero's speech for Milo, in which, justifying recourse to force in defence of life, he bears ample testimony to the feelings of nature, who has given us this law, which is not written, but innate, which we have not received by instruction, hearing or reading, but the elements of it have been engraven in our hearts and minds with her own hand: a law which is not the effect of habit and acquirement, but forms a part in the original complexion of our frame: so that if our lives are threatened with assassination or open violence from the hands of robbers or enemies, ANY means of defence would be allowed and laudable. He proceeds, reason has taught this to the learned, necessity to the barbarians, custom to nations, and nature herself to wild beasts, to use every possible means of repelling force offered to their bodies, their limbs and their lives. Caius and Lawyer says, natural reason permits us to defend ourselves against dangers. And Florentinus, another legal authority, maintains, that whatever any one does in defence of his person ought to be esteemed right. Josephus observes, that the love of life is a law of nature strongly implanted in all creatures, and therefore we look upon those as enemies, who would openly deprive us of it.

This principle is founded on reasons of equity, so evident, that even in the brute creation, who have no idea of right, we make a distinction between attack and defence. For when Ulpian had said, that an animal without knowledge, that is without the use of reason, could not possibly do wrong, he immediately adds, that when two animals fight, if one kills the other, the distinction of Quintius Mutius must be admitted, that if the aggressor were killed no damages could be recovered; but if the other, which was attacked, an action might be maintained. There is a passage in Pliny, which will serve for an explanation of this, he says that the fiercest lions do not fight with each other, nor do serpents bite serpents. But if any violence is done to the tamest of them, they are roused, and upon receiving any hurt, will defend themselves with the greatest alacrity and vigour.

IV. From the law of nature then which may also be called the law of nations, it is evident that all kinds of war are not to be condemned. In the same manner, all history and the laws of manners of every people sufficiently inform us, that war is not condemned by the voluntary law of nations. Indeed Hermogenianus has said, that wars were introduced by the law of nations, a passage which ought to be explained somewhat differently from the general interpretation given to it. The meaning of it is, that certain formalities, attending war, were introduced by the law of nations, which formalities were necessary to secure the peculiar privileges arising out of the law. From hence a distinction, which there will be occasion to use hereafter, between a war with the usual formalities of the law of nations, which is called just or perfect, and an informal war, which does not for that reason cease to be just, or agreeable to right. For some wars, when made upon just grounds, though not exactly conformable, yet are not repugnant to the law, as will be explained more fully hereafter. By the law of the nations, says Livy, provision is made to repel force by arms; and Florentinus declares, that the law of nations allows us to repel violence and injury, in order to protect our persons.

V. A greater difficulty occurs respecting the divine voluntary law. Nor is there any force in the objection that as the law of nature is unchangeable, nothing can be appointed even by God himself contrary to it. For this is true only in those things, which the law of nature positively forbids or commands; not in those which are tacitly permitted by the same law. For acts of that kind, not falling strictly within the general rule, but being exceptions to the law of nature, may be either forbidden or commanded. The first objection usually made against the lawfulness of war is taken from the law given to Noah and his posterity, Gen. ix. 5, 6, where God thus speaks, "Surely the blood of your lives will I require; at the hand of every beast will I require it, and at the hand of every man; at the hand of every man's brother will I require the life of man. Whoever sheds man's blood, by man shall his blood be shed; for in the image of God made he man." Here some take the phrase of requiring blood, in the most general sense, and the other part, that blood shall be shed in its turn, they consider as a bare threat, and not an approbation; neither of which acceptations can be admitted. For the prohibition of shedding blood extends not beyond the law itself, which declares, Thou shalt not kill; but passes no condemnation upon capital punishments or wars undertaken by public authority.

Neither the law of Moses, nor that given to Noah established any thing new, they were only a declaratory repetition of the law of nature, that had been obliterated by depraved custom. So that the shedding of blood in a criminal and wanton manner is the only act prohibited by those commandments. Thus every act of homicide does not amount to murder, but only that, which is committed with a wilful and malicious intention to destroy the life of an innocent person. As to what follows about blood being shed in return for blood, it seems to imply not a mere act of personal revenge, but the deliberate exercise of a perfect right, which may be thus explained; it is not unjust, according to the principles of nature that any one should suffer in proportion to the evil he has done, conformably to the judicial maxim of Rhadamanthus, that if any one himself suffers what he has done, it is but just and right. The same opinion is thus expressed by Seneca the father; "it is but a just retaliation for any one to suffer in his own person the evil which he intended to inflict upon another." From a sense of this natural justice, Cain knowing himself guilty of his brother's blood said, "whosoever finds me shall kill me."

But as in those early times, when men were few, and aggressions rare, there was less occasion for examples, God restrained by an express commandment the impulse of nature which appeared lawful, he forbad any one to kill the murderer, at the same time prohibiting all intercourse with him, even so far as not to touch him.[6]

Plato has established this in his laws, and the same rule prevailed in Greece, as appears from the following passage in Euripides, "our fathers of old did well in banishing from their intercourse and sight any one that had shed another's blood; imposing banishment by way of atonement, rather than inflicting death." We find Thucydides of the same opinion, "that anciently lighter punishments were inflicted for the greatest crimes; but in process of time, as those penalties came to be despised, legislators were obliged to have recourse to death in certain cases." We may add to the above instances the remark of Lactantius, that as yet it appeared a sin to punish even the most wicked men with death.

The conjecture of the divine will taken from the remarkable instance of Cain, whom no one was permitted to kill passed into a law, so that Lanech, having perpetrated a similar deed, promised himself impunity from this example.—Gen. iv. 24.

But as before the deluge, in the time of the Giants, the practice of frequent and wanton murders had prevailed; upon the renewal of the human race, after the deluge, that the same evil custom might not be established, God thought proper to restrain it by severer means. The lenity of former ages was laid aside, and the divine authority gave a sanction to the precepts of natural justice, that whoever killed a murderer should be innocent. After tribunals were erected, the power over life was, for the very best reasons, conferred upon the judges alone. Still some traces of ancient manners remained in the right which was granted, after the introduction of the Mosaic Law, to the nearest in blood to the person killed.

This interpretation is justified by the authority of Abraham, who, with a perfect knowledge of the law given to Noah, took arms against the four Kings, fully persuaded that he was doing nothing in violation of that law. In the same manner Moses ordered the people to fight against Amalekites, who attacked them; following in this case the dictates of nature, for he appears to have had no special communication with God. Exod. xvii. 9. Besides, we find that capital punishments were inflicted upon other criminals, as well as murderers, not only among the Gentiles, but among those who had been impressed with the most pious rules and opinions, even the Patriarchs themselves. Gen. xxxviii. 24.

Indeed upon comparing the divine will with the light of nature, it was concluded, that it seemed conformable to justice, that other crimes of great enormity should be subject to the same punishment as that of murder. For there are some rights, such as those of reputation, chastity, conjugal fidelity, submission of subjects to their princes, all of which are esteemed of equal value with life itself, because on the preservation of these the peace and comfort of life depend. The violation of any of those rights is little less than murder itself.

Here may be applied the old tradition found among the Jews, that there were many laws, which were not ALL mentioned by Moses, given by God to the sons of Noah; as it was sufficient for his purpose, that they should afterwards be comprehended in the peculiar laws of the Hebrews. Thus it appears from xviii. chap. of Leviticus, that there was an ancient law against incestuous marriages, though not mentioned by Moses in its proper place. Now among the commandments given by God to the children of Noah, it is said, that death was expressly declared to be the punishment not only for murder, but for adultery, incest, and robbery, which is confirmed by the words of Job xxxi. 11. The law of Moses too, for the sanction of capital punishments, gives reasons which operate no less with other nations, than with the Jewish people. Levit. xviii. 25–30. Psa. ci. 5. Prov. xx. 8. And particularly respecting murder it is said, the land cannot be cleansed unless the blood of the murderer be shed. Numb. xxv. 31–33. Besides, it were absurd to suppose that the Jewish people were indulged with the privilege of maintaining the public safety, and that of individuals by capital punishments, and asserting their rights by war, and that other kings and nations were not allowed the same powers. Nor do we find that those kings or nations were forewarned by the Prophets, that the use of capital punishments, and that all wars, were condemned by God in the same manner as they were admonished of all other sins. On the other hand, can any one doubt, as the law of Moses bore such an express image of the divine will respecting criminal justice, whether other nations would not have acted wisely in adopting it for their example? It is certain that the Greeks, and the Athenians in particular did so. From hence came the close resemblance which the Jewish bore to the old Athenian law, and to that of the twelve tables of Rome. Enough has been said, to shew that the law given to Noah cannot bear the interpretation of those, who derive from it their arguments against the lawfulness of all war.

VI. The arguments against the lawfulness of war, drawn from the Gospel, are more specious. In examining which it will not be necessary to assume, as many do, that the Gospel contains nothing more than the law of nature, except the rules of faith and the Sacraments: an assumption, which in its general acceptation is by no means true. It may readily be admitted, that nothing inconsistent with natural justice is enjoined in the gospel, yet it can never be allowed, that the laws of Christ do not impose duties upon us, above those required by the law of nature. And those, who think otherwise, strain their arguments to prove that many practices forbidden by the gospel, as concubinage, divorce, polygamy, were made offences by the law of nature. The light of nature might point out the HONOUR of abstaining from such practices, but the SINFULNESS of them could not have been discovered without a revelation of the will of God. Who for instance would say, that the Christian precept of laying down our lives for others was an obligation of the law of nature? 1 John iii. 16. It is said by Justin the Martyr, that to live according to the bare law of nature is not the character of a true believer. Neither can we follow those, who, adopting another meaning of no inconsiderable import, construe the precept delivered by Christ in his sermon on the mount, into nothing more than an interpretation of the Mosaic Law. For the words, "you have heard it was said to them of old, but I say to YOU," which are so often repeated, imply something else. Those of old were no other than contemporaries of Moses: for what is there repeated as said to those of OLD are not the words of the teachers of the law, but of Moses, either LITERALLY, or in THEIR meaning. They are cited by our Saviour as his express words, not as interpretations of them: "Thou shalt not kill," Exod. xx. whoever killeth shall be in danger of Judgment, Levit. xxi. 21. Numb. xxxv. 16, 17, 30. "Thou shalt not commit adultery," Exod. xx. "whosoever shall put away his wife, let him give her a writing of divorcement." Deut. xxiv, 1. "Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths." Exod. xx. 7. Numb. xxx. 2. "An eye for an eye, and a tooth for a tooth," may be demanded in justice. Levit. xxxiv. 20. Deut. xix. 21. "Thou shalt love thy neighbour," that is, an Israelite. Levit. xix. 18. "and thou shalt hate thine enemy," that is, any one of the seven nations to whom friendship or compassion was forbidden to be shewn. Exod. xxxiv. 11. Deut. vii. 1. To these may be added the Amalekites, with whom the Israelites were commanded to maintain irreconcileable war. Exod. xxvii. 19. Deut. xxv. 19.

But to understand the words of our Saviour, we must observe that the law of Moses is taken in a double sense, either as containing some principles in common with human laws, such as imposing restraint upon human crimes by the dread of exemplary punishments. Heb. ii. 2. And in this manner maintaining civil society among the Jewish people: for which reason it is called, Heb. vii. 16, the law of a carnal commandment, and Rom. iii. 17. the law of works: or it may be taken in another sense, comprehending the peculiar sanctions of a divine law, requiring purity of mind, and certain actions, which might be omitted without temporal punishments. In this sense it is called a spiritual law, giving life to the soul. The teachers of the law, and the Pharisees considering the first part as sufficient, neglected to instruct the people in the second and more important branch, deeming it superfluous. The truth of this may be proved, not only from our own writings, but from Josephus also, and the Jewish Rabbis. Respecting this second part we may observe, that the virtues which are required of Christians, are either recommended or enjoined to the Hebrews, but not enjoined in the same degree and extent as to Christians. Now in both these senses Christ opposes his own precepts to the old law. From whence it is clear, that his words contain more than a bare interpretation of the Mosaic law. These observations apply not only to the question immediately in hand, but to many others; that we may not rest upon the authority of the Mosaic law farther than is right.

VII. Omitting therefore the less satisfactory proofs, as a leading point of evidence to shew that the right of war is not taken away by the law of the gospel, that passage in St. Paul's Epistle to Timothy may be referred to, where the Apostle says, "I exhort therefore that, first of all, supplications, prayers, intercessions, and giving of thanks be made for all men; for Kings, and for all that are in authority, that we may lead a quiet and peaceable life, in all godliness and honesty; for this is good and acceptable in the sight of God our Saviour, who would have all men to be saved, and to come to the knowledge of the truth." 1 Eph. ii. 1, 2, 3. From this passage, the following conclusions may be drawn; in the first place, that Christian piety in kings is acceptable to God, that their profession of Christianity does not abridge their rights of sovereignty. Justin the Martyr has said, "that in our prayers for Kings, we should beg that they may unite a spirit of wisdom with their royal power," and in the book called the Constitutions of Clement, the Church prays for Christian rulers, and that Christian Princes may perform an acceptable service to God, by securing to other Christians the enjoyment of quiet lives. The manner in which the Sovereign secures this important end, is explained in another passage from the same Apostle. Rom. xiii. 4. "He is the minister of God to thee for good. But if thou do evil, fear, for he beareth not the sword in vain; for he is the minister of God, an avenger to execute wrath upon them, that do evil." By the right of the sword is understood the exercise of every kind of restraint, in the sense adopted by the Lawyers, not only over offenders amongst his own people, but against neighboring nations, who violate his own and his people's rights. To clear up this point, we may refer to the second Psalm, which although it applies literally to David, yet in its more full and perfect sense relates to Christ, which may be seen by consulting other parts of scripture. For instance, Acts iv. 25. xiii. 33. For that Psalm exhorts all kings to worship the son of God, shewing themselves, as kings, to be his ministers, which may be explained by the words of St. Augustine, who says, "In this, kings, in their royal capacity, serve God according to the divine commandment, if they promote what is good, and prohibit what is evil in their kingdoms, not only relating to human society, but also respecting religion." And in another place the same writer says, "How can kings serve the Lord in fear, unless they can prohibit and punish with due severity offences against the law of God? For the capacities in which they serve God, as individuals, and as kings, are very different. In this respect they serve the Lord, as kings, when they promote his service by means which they could not use without regal power.

The same part of the Apostle's writings supplies us with a second argument, where the higher powers, meaning kings, are said to be from God, and are called the ordinance of God; from whence it is plainly inferred that we are to honour and obey the king, from motives of conscience, and that every one who resists him, is resisting God. If the word ordinance meant nothing more than a bare permission, that obedience which the Apostle so strenuously enjoins would only have the force of an imperfect obligation. But as the word ordinance, in the original, implies an express commandment and appointment, and as all parts of the revealed will of God are consistent with each other, it follows that the obedience of subjects to sovereigns is a duty of supreme obligation. Nor is the argument at all weakened by its being said, that the Sovereigns at the time when St. Paul wrote, were not Christians. For it is not universally true, as Sergius Paulus, the deputy governor of Cyprus, had long before professed the Christian religion. Acts xiii. 12. There is no occasion to mention the tradition respecting Abgarus the King of Edessa's Epistle to our Saviour; a tradition mingled with falsehood, though, in some measure founded upon truth. For the question did not turn upon the characters of the Princes, whether they were godly or not, but whether THEIR holding the kingly office was repugnant to the law of God. This St. Paul denies, maintaining that the kingly office, even under all circumstances, was appointed by God, therefore it ought to be honoured from motives of conscience, which, properly speaking, are under the controul of God alone. So that Nero, and King Agrippa whom Paul so earnestly entreats to become a Christian, might have embraced Christianity, and still retained, the one his regal, and the other his imperial authority, which could not be exercised without the power of the sword. As the legal sacrifices might formerly be performed by wicked Priests; in the same manner regal power would retain its indelible sanctity, though in the hands of an ungodly man.

A third argument is derived from the words of John the Baptist, who, at a time when many thousands of the Jews served in the Roman armies, as appears from the testimony of Josephus and others, being seriously asked by the soldiers, what they should do to avoid the wrath of God, did not command them to renounce their military calling, which he ought to have done, had it been inconsistent with the law and will of God, but to abstain from violence, extortion, and false accusation, and to be content with their wages. In reply to these words of the Baptist, so plainly giving authority to the military profession, many observed that the injunction of the Baptist is so widely different from the precepts of Christ, that He seemed to preach one doctrine and our Lord another. Which is by no means admissible, for the following reasons. Both our Saviour and the Baptist made repentance the substance of their doctrine; for the kingdom of heaven was at hand. By the Kingdom of Heaven is meant a new law, as the Hebrews used to give the name of Kingdom to their law. Christ himself says the Kingdom of Heaven began to suffer violence from the days of John the Baptist. Matt. xi. 12. John is said to have preached the baptism of repentance for the remission of sins. Mark i. 4. The Apostles are said to have done the same in the name of Christ. Acts xi. 38. John requires fruits worthy of repentance, and threatens destruction to those, who do not produce them. Matt. iii. 8, 10. He also requires works of charity above the law. Luke iii. 2. The law is said to have continued till John, that is, a more perfect law is said to have commenced from his instruction. He was called greater than the prophets, and declared to be one sent to give the knowledge of salvation to the people by announcing the gospel. He makes no distinction between himself and Jesus on the score of doctrine, only ascribing pre-eminence to Christ as the promised Messiah, the Lord of the Kingdom of Heaven, who would give the power of the holy spirit to those, who believed in him. In short, the dawning rudiments of knowledge, which proceeded from the forerunner, were more distinctly unfolded and cleared up, by Christ himself, the light of the world.

There is a fourth argument, which seems to have no little weight, proceeding upon the supposition, that if the right of inflicting capital punishments were abolished, and princes were deprived of the power of the sword to protect their subjects against the violence of murderers and robbers, wickedness would triumphantly prevail, and the world would be deluged with crimes, which, even under the best established governments, are with so much difficulty prevented or restrained. If then it had been the intention of Christ to introduce such an order of things as had never been heard of, he would undoubtedly by the most express and particular words, have condemned all capital punishments, and all wars, which we never read that he did. For the arguments, brought in favor of such an opinion, are for the most part very indefinite and obscure. Now both justice and common sense require such general expressions to be taken in a limited acceptation, and allow us, in explaining ambiguous words, to depart from their literal meaning, where our strictly adhering to it would lead to manifest inconvenience and detriment.

There is a fifth argument, maintaining that no proof can be adduced that the judicial part of the Mosaic Law, inflicting sentence of death, ever ceased to be in force, till the city of Jerusalem, and the civil polity of the Jews were utterly destroyed, without hopes of restoration. For in the Mosaic dispensation no assignable term is named for the duration of the law; nor do Christ and his Apostles ever speak of its abolition, except in allusion to the overthrow of the Jewish state. Indeed on the contrary, St. Paul says, that the High Priest was appointed to judge according to the law of Moses. Acts xxiv. 3. And Christ himself, in the introduction to his precepts, declares that he came not to destroy the law, but to fulfil it. Matt. v. 17. The application of his meaning to the ritual law is very plain, for it was only the outline and shadow of that perfect body, of which the Gospel formed the substance. But how is it possible that the judicial laws should stand, if Christ, according to the opinion of some, abolished them by his coming? Now if the law remained in force as long as the Jewish state continued, it follows that the Jewish converts to Christianity if called to the magisterial office, could not refuse it on the score of declining to pass sentence of death, and that they could not decide otherwise than the law of Moses had prescribed.

Upon weighing the whole matter, the slightest ground cannot be discovered for supposing that any pious man, who had heard those words from our Saviour himself, would have understood them in a sense different from that which has been here given. It must however be admitted that, before the Gospel dispensation permission or impunity was granted to certain acts and dispositions, which it would neither be necessary nor proper to examine at present, upon which Christ did not allow his followers to act. Of this kind was the permission to put away a wife for every offence, and to seek redress by law for every injury. Now between the positive precepts of Christ and those permissions there is a difference, but not a contradiction. For he that retains his wife, and he that forgoes his right of redress, does nothing CONTRARY to the law, but rather acts agreeably to the SPIRIT of it. It is very different with a judge, who is not merely permitted, but commanded by the law to punish a murderer with death, incurring guilt in the sight of God, if he should act otherwise. If Christ had forbidden him to put a murderer to death, his prohibition would have amounted to a contradiction, and it would have abolished the law.

The example of Cornelius the Centurion supplies a sixth argument in favor of this opinion. In receiving the holy spirit from Christ, he received an indubitable proof of his justification; he was baptized into the name of Christ by Peter, yet we do not find that he either had resigned or was advised by the Apostle to resign his military commission. In reply to which some maintain, that when instructed by Peter in the nature of the Christian religion, he must have been instructed to form the resolution of quitting his military calling. There would be some weight in their answer, if it could be shown that an absolute prohibition of war is to be found among the precepts of Christ. And as it can be found nowhere else, it would have been inserted in its proper place among the precepts of Christ, that after ages might not have been ignorant of the rules of duty. Nor as may be seen in the xix. chap. of the Acts of the Apostles and the 19th ver. is it usual with St. Luke, in cases where the personal character and situation of converts required an extraordinary change of life and disposition, to pass over such a circumstance without notice.

The seventh argument is like the preceding, and is taken from the example of Sergius Paulus, which has been already mentioned. In the history of his conversion there is not the least intimation of his abdicating the magistracy, or being required to do so. Therefore silence respecting a circumstance, which would naturally and necessarily have been mentioned, may be fairly taken as a proof that it never existed. The conduct of St. Paul supplies us with an eighth argument on this subject. When he understood that the Jews lay in wait for an opportunity to seize and kill him, he immediately gave information of their design to the commander of the Roman garrison, and when the commander gave him a guard of soldiers to protect him on his journey, he made no remonstrance, nor ever hinted either to the commander or the soldiers that it was displeasing to God to repel force by force. Yet this is the same Apostle who, as appears from all his writings, 2 Tim. iv. 2. neither himself neglected nor allowed others to neglect any opportunity of reminding men of their duty. In addition to all that has been said, it may be observed, that the peculiar end of what is lawful and binding, must itself be lawful and binding also. It is lawful to pay tribute, and according to St. Paul's explanation, it is an act binding upon the conscience, Rom. xiii. 3, 4, 6. For the end of tribute is to supply the state with the means of protecting the good, and restraining the wicked. There is a passage in Tacitus very applicable to the present question. It is in the fourth book of his history, in the speech of Petilius Cerealis, who says, "the peace of nations cannot be preserved without armies, nor can armies be maintained without pay, nor pay supplied without taxation." There is a sentiment similar to this of the historian, in St. Augustin, he says, "for this purpose we pay tribute, that the soldier may be provided with the necessaries of life."

The tenth argument is taken from that part of the xxv. chap. of the Acts of the Apostles, where Paul says, "If I have wronged any man, or done any thing worthy of death, I refuse not to die." From whence the opinion of St. Paul may be gathered, that, even after the publication of the gospel, there were certain crimes which justice not only allowed but required to be punished with death; which opinion St. Peter also maintains. But if it had been the will of God that capital punishments should be abolished, Paul might have cleared himself, but he ought not to have left an impression on the minds of men, that it was at that time equally lawful as before to punish the guilty with death. Now as it has been proved, that the coming of Christ did not take away the right of inflicting capital punishments, it has at the same time been proved, that war may be made upon a multitude of armed offenders, who can only be brought to justice by defeat in battle. The numbers, the strength and boldness of the aggressors, though they may have their weight in restraining our deliberations, cannot in the least diminish our right.

The substance of the eleventh argument rests not only upon our Saviour's having abolished those parts of the Mosaic law, which formed a wall of separation between the Jews and other nations, but upon his allowing the moral parts to remain, as standing rules, approved by the law of nature, and the consent of every civilized people, and containing whatever is good and virtuous.

Now the punishing of crimes, and the taking up arms to avenge or ward off injuries are among those actions, which by the law of nature rank as laudable, and are referred to the virtues of justice and beneficence. And here is the proper place to animadvert slightly upon the mistake of those, who derive the rights of war, possessed by the Israelites, solely from the circumstance of God having given them the land of Canaan and commissioned them to drive out the inhabitants. This may be one just reason, but it is not the sole reason.

For, prior to those times, holy men guided by the light of nature undertook wars, which the Israelites themselves afterwards did for various reasons, and David in particular, to avenge the violated rights of ambassadors. But the rights, which any one derives from the law of nature, are no less his own than if God had given them: nor are those rights abolished by the law of the Gospel.

VIII. Let us now consider the arguments, by which the contrary opinion is supported, that the pious reader may judge more easily, to which side the scale inclines.

In the first place, the prophecy of Isaiah is generally alleged, who says the time shall come, "when nations shall beat their swords into plow-shares, and turn their spears into pruning hooks. Nation shall not lift up sword against nation, neither shall they learn war any more." ii. 4. But this prophecy, like many others, is to be taken conditionally, alluding to the state of the world that would take place, if all nations would submit to the law of Christ, and make it the rule of life, to which purpose God would suffer nothing to be wanting on his part. For it is certain, that if all people were Christians, and lived like Christians, there would be no wars, which Arnobius expresses thus, "If all men, knowing that it is not their corporeal form alone which makes them men, but the powers of the understanding, would lend a patient ear to his salutary and pacific instructions, if they would trust to his admonitions rather than to the swelling pride and turbulence of their senses, iron would be employed for instruments of more harmless and useful operations, the world enjoy the softest repose and be united in the bands of inviolable treaties." On this subject Lactantius, reproaching the Pagans with the deification of their conquerors, says, "what would be the consequence, if all men would unite in concord? Which might certainly be brought to pass, if, abandoning ruinous and impious rage, they would live in justice and innocence." Or this passage of the prophecy must be understood literally, and, if taken in that sense, it shews that it is not yet fulfilled, but its accomplishment must be looked for in the general conversion of the Jewish people. But, which ever way you take it, no conclusion can be drawn from it against the justice of war, as long as violent men exist to disturb the quiet of the lovers of peace.[7]

IX. In examining the meaning of written evidence, general custom, and the opinions of men celebrated for their wisdom have usually great weight; a practice which it is right to observe in the interpretation of holy scripture. For it is not likely that churches, which had been founded by the Apostles, would either suddenly or universally have swerved from those opinions, which the Apostles had briefly expressed, in writing, and afterwards more fully and clearly explained to them with their own lips, and reduced to practice. Now certain expressions of the primitive Christians are usually alleged by those who are adverse to all wars, whose opinions may be considered and refuted in three points of view.

In the first place, from these expressions nothing more can be gathered than the private opinions of certain individuals, but no public opinion of the Churches. Besides these expressions for the most part are to be found only in the writings of Origen, Tertullian and some few others, who wished to distinguish themselves by the brilliancy of their thoughts, without regarding consistency in their opinions. For this same Origen says, that Bees were given by God as a pattern for men to follow in conducting just, regular, and necessary wars; and likewise Tertullian, who in some parts seems to disapprove of capital punishments, has said, "No one can deny that it is good the guilty should be punished." He expresses his doubts respecting the military profession, for in his book upon idolatry, he says, it is a fit matter of inquiry, whether believers can take up arms, or whether any of the military profession can be admitted as members of the Christian Church. But in his Book entitled, the Soldier's Crown, after some objections against the profession of arms, he makes a distinction between those who are engaged in the army before baptism, and those who entered after they had made the baptismal vow. "It evidently, says he alters the case with those who were soldiers before their conversion to Christianity; John admitted them to baptism, in one instance Christ approved, and in another Peter instructed a faithful Centurion: yet with this stipulation, that they must either like many others, relinquish their calling, or be careful to do nothing displeasing to God." He was sensible then that they continued in the military profession after baptism, which they would by no means have done, if they had understood that all war was forbidden by Christ. They would have followed the example of the Soothsayers, the Magi, and other professors of forbidden arts, who ceased to practice them, when they became Christians. In the book quoted above, commending a soldier, who was at the same time a Christian, he says, "O Soldier glorious in God."

The second observation applies to the case of those, who declined or even refused bearing arms, on account of the circumstances of the times, which would have required them to do many acts inconsistent with their Christian calling. In Dolabella's letter to the Ephesians, which is to be found in Josephus, we see that the Jews requested an exemption from military expeditions, because, in mingling with strangers, they could not conveniently have observed the rites of their own laws and would have been obliged to bear arms, and to make long marches on the Sabbaths. And we are informed by Josephus that, for the same reasons, the Jews obtained their discharge of L. Lentulus. In another part, he relates that when the Jews had been ordered to leave the city of Rome, some of them enlisted in the army, and that others, who out of respect to the laws of their country, for the reasons before mentioned, refused to bear arms, were punished. In addition to these a third reason may be given, which was that they would have to fight against their own people, against whom it was unlawful to bear arms, especially when they incurred danger and enmity for adhering to the Mosaic law. But the Jews, whenever they could do it, without these inconveniences, served under foreign princes, previously stipulating, as we are informed by Josephus, for liberty to live according to the laws and rules of their own country. Tertullian objects to the military service of his own times on account of dangers, and inconveniences very similar to those, which deterred the Jews. In his book on Idolatry, he says, "it is impossible to reconcile the oath of fidelity to serve under the banners of Christ, with that to serve under the banners of the Devil." Because the soldiers were ordered to swear by Jupiter, Mars, and the other Heathen Gods. And in his book on the Soldier's Crown, he asks, "if the soldier be to keep watch before the temples, which he has renounced, to sup where he is forbidden by the Apostle, and to guard in the night the Gods, whom he has abjured in the day?" And he proceeds with asking, "if there be not many other military duties, which ought to be regarded in the light of sins?"

The third point of view, in which the subject is to be considered, relates to the conduct of those primitive Christians, who, in the ardour of zeal, aimed at the most brilliant attainments, taking the divine counsels for precepts of obligation. The Christians, says Athenagoras, never go to law with those, who rob them.

Salvian says, it was commanded by Christ that we should relinquish the object of dispute, rather than engage in law suits. But this, taken in so general an acceptation, is rather by the way of counsel, in order to attain to a sublimer mode of life, than intended as a positive precept. Thus many of the primitive Fathers condemned all oaths without exception, yet St. Paul, in matters of great importance, made use of these solemn appeals to God. A Christian in Tatian said, "I refuse the office of Praetor," and in the words of Tertullian, "a Christian is not ambitious of the Aedile's office." In the same manner Lactantius maintains that a just man, such as he wishes a Christian to be, ought not to engage in war, nor, as all his wants can be supplied at home, even to go to sea. How many of the primitive fathers dissuade Christians from second marriages? All these counsels are good, recommending excellent attainments, highly acceptable to God, yet they are not required of us, by any absolute law. The observations already made are sufficient to answer the objections derived from the primitive times of Christianity.

Now in order to confirm our opinions, we may observe that they have the support of writers, even of greater antiquity, who think that capital punishments may be inflicted, and that wars, which rest upon the same authority, may be lawfully engaged in by Christians. Clemens Alexandrinus says, that "a Christian, if, like Moses, he be called to the exercise of sovereign power, will be a living law to his subjects, rewarding the good, and punishing the wicked." And, in another place, describing the habit of a Christian, he says, "it would become him to go barefoot, unless he were a soldier." In the work usually entitled the Constitutions of Clemens Romanus, we find that "it is not all killing which is considered unlawful, but only that of the innocent; yet the administration of judicial punishments must be reserved to the supreme power alone." But without resting upon individual authorities, we can appeal to the public authority of the church which ought to have the greatest weight. From hence it is evident that none were ever refused baptism, or excommunicated by the church, merely for bearing arms, which they ought to have been, had the military profession been repugnant to the terms of the new covenant. In the Constitutions just quoted, the writer speaking of those who, in the primitive times, were admitted to baptism, or refused that ordinance, says, "let a soldier who desires to be admitted be taught to forbear from violence, and false accusations, and to be content with his regular pay. If he promises obedience let him be admitted." Tertullian in his Apology, speaking in the character of Christians, says, "We sail along with you, and we engage in the same wars," having a little before observed, "we are but strangers, yet we have filled all your cities, your islands, your castles, your municipal towns, your councils, and even your camps." He had related in the same book that rain had been obtained for the Emperor Marcus Aurelius by the prayers of the Christian soldiers.[8] In his book of the crown, he commends a soldier, who had thrown away his garland, for a courage superior to that of his brethren in arms, and informs us that he had many Christian fellow soldiers.

To these proofs may be added the honours of Martyrdom given by the Church to some soldiers, who had been cruelly persecuted, and had even suffered death for the sake of Christ, among whom are recorded three of St. Paul's companions, Cerialis who suffered martyrdom under Decius; Marinus under Valerian; fifty under Aurelian, Victor, Maurus, and Valentinus, a lieutenant general under Maximian. About the same time Marcellus the Centurion, Severian under Licinius. Cyprian, in speaking of Laurentinus, and Ignatius, both Africans, says, "They too served in the armies of earthly princes, yet they were truly spiritual soldiers of God, defeating the wiles of the Devil by a steady confession of the name of Christ, and earning the palms and crowns of the Lord by their sufferings." And from hence it is plain what was the general opinion of the primitive Christians upon war, even before the Emperors became Christians.

It need not be thought surprising, if the Christians of those times were unwilling to appear at trials for life, since, for the most part, the persons to be tried were Christians. In other respects too, besides being unwilling to witness the unmerited sufferings of their persecuted brethren, the Roman laws were more severe than Christian lenity could allow of, as may be seen from the single instance of the Silanian decree of the Senate.[9] Indeed capital punishments were not abolished even after Constantine embraced and began to encourage the Christian religion. He himself among other laws enacted one similar to that of the ancient Romans, for punishing parricides, by sewing them in a sack with certain animals, and throwing them into the sea, or the nearest river. This law is to be found in his code under the "title of the murders of parents or children." Yet in other respects he was so gentle in punishing criminals, that he is blamed by many historians for his excessive lenity. Constantine, we are informed by historians, had at that time many Christians in his army, and he used the name of Christ as the motto upon his standards. From that time too the military oath was changed to the form, which is found in Vegetius, and the soldier swore, "By God, and Christ, and the holy spirit, and the majesty of the Emperor, to whom as next to God, homage and reverence are due from mankind." Nor out of so many Bishops at that time, many of whom suffered the most cruel treatment for their religion, do we read of a single one, who dissuaded Constantine, by the terrors of divine wrath from inflicting capital punishments, or prosecuting wars, or who deterred the Christians, for the same reasons, from serving in the armies. Though most of those Bishops were strict observers of discipline, who would by no means dissemble in points relating to the duty of the Emperors or of others. Among this class, in the time of Theodosius, we may rank Ambrose, who in his seventh discourse says, "there is nothing wrong in bearing arms; but to bear arms from motives of rapine is a sin indeed," and in his first book of Offices, he maintains the same opinion, that "the courage which defends one's country against the incursions of barbarians, or protects one's family and home from the attacks of robbers, is complete justice." These arguments so decidedly shew the opinions of the primitive Christians in the support of just and necessary war, that the subject requires no farther proof or elucidation.

Nor is the argument invalidated by a fact pretty generally known, that Bishops and other Christians often interceded in behalf of criminals, to mitigate the punishment of death, and that any, who had taken refuge in churches, were not given up, but upon the promise of their lives being spared. A custom was introduced likewise of releasing all prisoners about the time of Easter. But all these instances, if carefully examined, will be found the voluntary acts of Christian kindness, embracing every opportunity to do good, and not a settled point of public opinion condemning all capital punishments. Therefore those favours were not universal; but limited to times and places, and even the intercessions themselves were modified with certain exceptions.[10]

[CHAPTER III.]
The Division of War Into Public and Private and the Nature of Sovereign Power.

The Division of War into public and private—Examples to prove that all private War is not repugnant to the Law of Nature since the erection of Courts of Justice—The Division of Public War into formal, and informal—Whether the suppression of Tumults by subordinate Magistrates be properly public War—Civil Power, in what it consists—Sovereign Power further considered—The opinion of those, who maintain that the Sovereign Power is always in the people, refuted, and their arguments answered—Mutual subjection refuted—Cautions requisite to understand the nature of Sovereign Power—Distinction of the real differences that exist under similar names—Distinction between the right to Sovereign Power, and the mode of exercising it.

I. The first and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons. But private war, from its greater antiquity, is the first subject for inquiry.

The proofs that have been already produced, to shew that to repel violence is not repugnant to natural law, afford a satisfactory reason to justify private war, as far as the law of nature is concerned. But perhaps it may be thought that since public tribunals have been erected, private redress of wrongs is not allowable. An objection which is very just. Yet although public trials and courts of justice are not institutions of nature, but erected by the invention of men, yet as it is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested person, than by the partiality and prejudice of the party aggrieved, natural justice and reason will dictate the necessity and advantage of every one's submitting to the equitable decisions of public judges. Paulus, the Lawyer, observes that "what can be done by a magistrate with the authority of the state, should never be intrusted to individuals; as private redress would give rise to greater disturbance. And "the reason, says King Theodoric, why laws were invented, was to prevent any one from using personal violence, for wherein would peace differ from all the confusion of war, if private disputes were terminated by force?" And the law calls it force for any man to seize what he thinks his due, without seeking a legal remedy.

II. It is a matter beyond all doubt that the liberty of private redress, which once existed, was greatly abridged after courts of justice were established. Yet there may be cases, in which private redress must be allowed, as for instance, if the way to legal justice were not open. For when the law prohibits any one from redressing his own wrongs, it can only be understood to apply to circumstances where a legal remedy exists. Now the obstruction in the way to legal redress may be either temporary or absolute. Temporary, where it is impossible for the injured party to wait for a legal remedy, without imminent danger and even destruction. As for instance, if a man were attacked in the night, or in a secret place where no assistance could be procured. Absolute, either as the right, or the fact may require. Now there are many situations, where the right must cease from the impossibility of supporting it in a legal way, as in unoccupied places, on the seas, in a wilderness, or desert island, or any other place, where there is no civil government. All legal remedy too ceases by fact, when subjects will not submit to the judge, or if he refuses openly to take cognizance of matters in dispute. The assertion that all private war is not made repugnant to the law of nature by the erection of legal tribunals, may be understood from law given to the Jews, wherein God thus speaks by the mouth of Moses, Exod. xxii. 2. "If a thief be found breaking up, that is, by night, and be smitten that he dies, there shall no blood be shed for him, but if the sun be risen upon him, there shall be blood shed for him." Now this law, making so accurate a distinction in the merits of the case, seems not only to imply impunity for killing any one, in self-defence, but to explain a natural right, founded not on any special divine command, but on the common principles of justice. From whence other nations have plainly followed the same rule. The passage of the twelve tables is well known, undoubtedly taken from the old Athenian Law, "If a thief commit a robbery in the night, and a man kill him, he is killed lawfully." Thus by the laws of all known and civilized nations, the person is judged innocent, who kills another, forcibly attempting or endangering his life; a conspiring and universal testimony, which proves that in justifiable homicide, there is nothing repugnant to the law of nature.

IV.[11] Public war, according to the law of nations, is either SOLEMN, that is FORMAL, or LESS SOLEMN, that is INFORMAL. The name of lawful war is commonly given to what is here called formal, in the same sense in which a regular will is opposed to a codicil, or a lawful marriage to the cohabitation of slaves. This opposition by no means implies that it is not allowed to any man, if he pleases, to make a codicil, or to slaves to cohabit in matrimony, but only, that, by the civil law, FORMAL WILLS and SOLEMN MARRIAGES, were attended with peculiar privileges and effects. These observations were the more necessary; because many, from a misconception of the word just or lawful, think that all wars, to which those epithets do not apply, are condemned as unjust and unlawful. Now to give a war the formality required by the law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both of which are so essential that one is insufficient without the other.

Now a public war, LESS SOLEMN, may be made without those formalities, even against private persons, and by any magistrate whatever. And indeed, considering the thing without respect to the civil law, every magistrate, in case of resistance, seems to have a right to take up arms, to maintain his authority in the execution of his office; as well as to defend the people committed to his protection. But as a whole state is by war involved in danger, it is an established law in almost all nations that no war can be made but by the authority of the sovereign in each state. There is such a law as this in the last book of Plato on Laws. And by the Roman law, to make war, or levy troops without a commission from the Prince was high treason. According to the Cornelian law also, enacted by Lucius Cornelius Sylla, to do so without authority from the people amounted to the same crime. In the code of Justinian there is a constitution, made by Valentinian and Valens, that no one should bear arms without their knowledge and authority. Conformably to this rule, St. Augustin says, that as peace is most agreeable to the natural state of man, it is proper that Princes should have the sole authority to devise and execute the operations of war. Yet this general rule, like all others, in its application must always be limited by equity and discretion.

In certain cases this authority may be communicated to others. For it is a point settled beyond all doubt that subordinate magistrates may, by their officers, reduce a few disobedient and tumultuous persons to subjection, provided, that to do it, it requires not a force of such enormous magnitude as might endanger the state. Again, if the danger be so imminent as to allow of no time for an application to the sovereign executive power, here too the necessity is admitted as an exception to the general rule. Lucius Pinarius the Governor of Enna, a Sicilian garrison, presuming upon this right, upon receiving certain information that the inhabitants had formed a conspiracy to revolt to the Carthaginians, put them all to the sword, and by that means saved the place. Franciscus Victoria allows the inhabitants of a town to take up arms, even without such a case of necessity, to redress their own wrongs, which the Prince neglects to avenge, but such an opinion is rejected by others.

V. Whether the circumstances, under which subordinate magistrates are authorised to use military force, can properly be called public war or not, is a matter of dispute among legal writers, some affirming and others denying it. If indeed we call no other public war, but that which is made by magisterial authority, there is no doubt but that such suppressions of tumult are public wars, and those who in such cases resist the magistrate in the execution of his office, incur the guilt of rebellion against superiors. But if public war is taken in the higher sense of FORMAL war, as it undoubtedly often is; those are not public wars; because to entitle them to the full rights of such, the declaration of the sovereign power and other requisites are wanting. Nor do the loss of property and the military executions, to which the offenders are subject, at all affect the question.[12] For those casualties are not so peculiarly attached to formal war, as to be excluded from all other kinds. For it may happen, as in an extensive empire for instance, that persons in subordinate authority, may, when attacked, or threatened with attack, have powers granted to commence military operations. In which case the war must be supposed to commence by the authority of the sovereign power; as a person is considered to be the author of a measure which by virtue of his authority he empowers another to perform. The more doubtful point is, whether, where there is no such commission, a conjecture of what is the will of the sovereign power be sufficient. This seems not admissible. For it is not sufficient to consider, what we suppose would be the Sovereign's pleasure, if he were consulted; but what would be his actual will, in matters admitting of time for deliberation, even though he were not formally consulted; if a law was to be passed upon those matters. "For though UNDER SOME PARTICULAR CIRCUMSTANCES, it may be necessary to waive consulting the will of the sovereign, yet this would by no means authorise it as a GENERAL PRACTICE. For the safety of the state would be endangered, if subordinate powers should usurp the right of making war at their discretion. It was not without reason, that Cneus Manlius was accused by his Lieutenants of having made war upon the Galatians without authority from the Roman people. For though the Galatians had supplied Antiochus with troops, yet as peace had been made with him, it rested with the Roman people, and not with Manlius to determine in what manner the Galatians should be punished for assisting an enemy. Cato proposed that Julius Caesar should be delivered up to the Germans for having attacked them in violation of his promise, a proposal proceeding rather from the desire to be rid of a formidable rival, than from any principle of justice.

The case was thus; the Germans had assisted the Gauls, enemies of the Roman people, therefore they had no reason to complain of the injury done to them, if the war against the Gauls, in which they had made themselves a party concerned, was just. But Caesar ought to have contented himself with driving the Germans out of Gaul, the province assigned him, without pursuing them into their own country, especially as there was no farther danger to be apprehended from them; unless he had first consulted the Roman people. It was plain, then, the Germans had no right to demand the surrender of Caesar's person, though the Romans had a right to punish him for having exceeded his commission. On a similar occasion the Carthaginians answered the Romans; "It is not the subject of inquiry whether Hannibal has besieged Saguntum, by his own private or by public authority, but whether justly or unjustly. For with respect to one of our own subjects it is our business to inquire by what authority he has acted; but the matter of discussion with you is, whether he has broken any treaty." Cicero defends the conduct of Octavius and Decimus Brutus, who had taken up arms against Antony. But though it was evident that Antony deserved to be treated as an enemy, yet they ought to have waited for the determination of the Senate and people of Rome, whether it were for the public interest not to take notice of his conduct or to punish it, to agree to terms of peace with him, or to have recourse to arms. This would have been proper; for no one is obliged to exercise the right of punishing an enemy, if it is attended with probable danger.

But even if it had been judged expedient to declare Antony an enemy, the choice of the persons to conduct the war should have been left to the Senate and people of Rome. Thus when Cassius demanded assistance of the Rhodians, according to treaty, they answered they would send it, if the senate thought proper. This refutation of Cicero's opinion will serve, along with many other instances to be met with; as an admonition not to be carried away by the opinions of the most celebrated writers, particularly the most brilliant orators, who often speak to suit the circumstances of the moment. But all political investigation requires a cool and steady judgment, not to be biased by examples, which may rather be excused than vindicated.

Since then it has already been established that no war can lawfully be made but by the sovereign power of each state, in respect to all the questions connected with war, it will be necessary to examine what that sovereign power is, and who are the persons that hold it.

VI. The moral power then of governing a state, which is called by Thucydides the civil power, is described as consisting of three parts which form the necessary substance of every state; and those are the right of making its own laws, executing them in its own manner, and appointing its own magistrates. Aristotle, in the fourth book of his Politics, comprises the sovereignty of a state in the exercise of the deliberative, executive, and judicial powers. To the deliberative branch he assigns the right of deciding upon peace or war, making or annulling treaties, and framing and passing new laws. To these he adds the power of inflicting death, banishment, and forfeiture, and of punishing also for public peculation. In the exercise of judicial power, he includes not only the punishment of crimes and misdemeanors, but the redress of civil injuries.[13] Dionysius of Halicarnassus, points out three distinguishing marks of sovereign power; and those are, the right of appointing magistrates, the right of enacting and repealing laws, and the right of making war and peace. To which, in another part, he adds the administration of justice, the supreme authority in matters of religion, and the right of calling general councils.

A true definition comprehends every possible branch of authority that can grow out of the possession and exercise of sovereign power. For the ruler of every state must exercise his authority either in person, or through the medium of others. His own personal acts must be either general or special. He may be said to do GENERAL acts in passing or repealing laws, respecting either temporal matters, or spiritual concerns, as far as the latter relate to the welfare of the state. The knowledge of these principles is called by Aristotle the masterpiece in the science of government.

The particular acts of the Sovereign are either directly of a public nature, or a private, but even the latter bear reference to his public capacity. Now the acts of the sovereign executive power of a directly public kind are the making of peace and war and treaties, and the imposition of taxes, and other similar exercises of authority over the persons and property of its subjects, which constitute the sovereignty of the state. Aristotle calls the knowledge of this practice political and deliberative science.

The private acts of the sovereign are those, in which by his authority, disputes between individuals are decided, as it is conducive to the peace of society that these should be settled. This is called by Aristotle the judicial power. Thus the acts of the sovereign are done in his name by his magistrates or other officers, among whom ambassadors are reckoned. And in the exercise of all those rights sovereign power consists.

VII. That power is called sovereign, whose actions are not subject to the controul of any other power, so as to be annulled at the pleasure of any other human will. The term ANY OTHER HUMAN WILL exempts the sovereign himself from this restriction, who may annul his own acts, as may also his successor, who enjoys the same right, having the same power and no other. We are to consider then what is the subject in which this sovereign power exists. Now the subject is in one respect common, and in another proper, as the body is the common subject of sight, the eye the proper, so the common subject of sovereign power is the state, which has already been said to be a perfect society of men.

Now those nations, who are in a state of subjugation to another power, as the Roman provinces were, are excluded from this definition. For those nations are not sovereign states of themselves, in the present acceptation of the word; but are subordinate members of a great state, as slaves are members of a household. Again it happens that many states, forming each an independent body, may have one head. For political are not like natural bodies, to only one of which the same head can belong. Whereas in the former, one person can exercise the function of the head to many distinct bodies. As a certain proof of which, when the reigning house has become extinct, the sovereign power returns to the hands of the nation. So it may happen, that many states may be connected together by the closest federal union, which Strabo, in more places than one calls a system, and yet each retain the condition of a perfect, individual state, which has been observed by Aristotle and others in different parts of their writings. Therefore the common subject of sovereign power is the state, taken in the sense already explained. The proper subject is one or more persons according to the laws and customs of each nation. This is called by Galen in the sixth book de placitis Hippocrate et Platonis, the first power of the state.

VIII. And here is the proper place for refuting the opinion of those, who maintain that, everywhere and without exception, the sovereign power is vested in the people, so that they have a right to restrain and punish kings for an abuse of their power. However there is no man of sober wisdom, who does not see the incalculable mischiefs, which such opinions have occasioned, and may still occasion; and upon the following grounds they may be refuted.

From the Jewish, as well as the Roman Law, it appears that any one might engage himself in private servitude to whom he pleased. Now if an individual may do so, why may not a whole people, for the benefit of better government and more certain protection, completely transfer their sovereign rights to one or more persons, without reserving any portion to themselves? Neither can it be alleged that such a thing is not to be presumed, for the question is not, what is to be presumed in a doubtful case, but what may lawfully be done. Nor is it any more to the purpose to object to the inconveniences, which may, and actually do arise from a people's thus surrendering their rights. For it is not in the power of man to devise any form of government free from imperfections and dangers. As a dramatic writer says, "you must either take these advantages with those imperfections, or resign your pretensions to both."

Now as there are different ways of living, some of a worse, and some of a better kind, left to the choice of every individual; so a nation, "under certain circumstances, WHEN for instance, the succession to the throne is extinct, or the throne has by any other means become vacant," may chuse what form of government she pleases. Nor is this right to be measured by the excellence of this or that form of government, on which there may be varieties of opinion, but by the will of the people.

There may be many reasons indeed why a people may entirely relinquish their rights, and surrender them to another: for instance, they may have no other means of securing themselves from the danger of immediate destruction, or under the pressure of famine it may be the only way, through which they can procure support. For if the Campanians, formerly, when reduced by necessity surrendered themselves to the Roman people in the following terms:—"Senators of Rome, we consign to your dominion the people of Campania, and the city of Capua, our lands, our temples, and all things both divine and human," and if another people as Appian relates, offered to submit to the Romans, and were refused, what is there to prevent any nation from submitting in the same manner to one powerful sovereign? It may also happen that a master of a family, having large possessions, will suffer no one to reside upon them on any other terms, or an owner, having many slaves, may give them their liberty upon condition of their doing certain services, and paying certain rents; of which examples may be produced. Thus Tacitus, speaking of the German slaves, says, "Each has his own separate habitation, and his own household to govern. The master considers him as a tenant, bound to pay a certain rent in corn, cattle, and wearing apparel. And this is the utmost extent of servitude."

Aristotle, in describing the requisites, which fit men for servitude, says, that "those men, whose powers are chiefly confined to the body, and whose principal excellence consists in affording bodily service, are naturally slaves, because it is their interest to be so." In the same manner some nations are of such a disposition that they are more calculated to obey than to govern, which seems to have been the opinion which the Cappadocians held of themselves, who when the Romans offered them a popular government, refused to accept it, because the nation they said could not exist in safety without a king. Thus Philostratus in the life of Apollonius, says, that it was foolish to offer liberty to the Thracians, the Mysians, and the Getae, which they were not capable of enjoying. The example of nations, who have for many ages lived happily under a kingly government, has induced many to give the preference to that form. Livy says, that the cities under Eumenes would not have changed their condition for that of any free state whatsoever. And sometimes a state is so situated, that it seems impossible it can preserve its peace and existence, without submitting to the absolute government of a single person, which many wise men thought to be the case with the Roman Republic in the time of Augustus Caesar. From these, and causes like these it not only may, but generally does happen, that men, as Cicero observes in the second book of his offices, willingly submit to the supreme authority of another.

Now as property may be acquired by what has been already styled just war, by the same means the rights of sovereignty may be acquired. Nor is the term sovereignty here meant to be applied to monarchy alone, but to government by nobles, from any share in which the people are excluded. For there never was any government so purely popular, as not to require the exclusion of the poor, of strangers, women, and minors from the public councils. Some states have other nations under them, no less dependent upon their will, than subjects upon that of their sovereign princes. From whence arose that question, Are the Collatine people in their own power? And the Campanians, when they submitted to the Romans, are said to have passed under a foreign dominion. In the same manner Acarnania and Amphilochia are said to have been under the dominion of the Aetolians; Peraea and Caunus under that of the Rhodians; and Pydna was ceded by Philip to the Olynthians. And those towns, that had been under the Spartans, when they were delivered from their dominion, received the name of the free Laconians. The city of Cotyora is said by Xenophon to have belonged to the people of Sinope. Nice in Italy, according to Strabo, was adjudged to the people of Marseilles; and the island of Pithecusa to the Neapolitans. We find in Frontinus, that the towns of Calati and Caudium with their territories were adjudged, the one to the colony of Capua, and the other to that of Beneventum. Otho, as Tacitus relates, gave the cities of the Moors to the Province of Baetia. None of these instances, any more than the cessions of other conquered countries could be admitted, if it were a received rule that the rights of sovereigns are under the controul and direction of subjects.

Now it is plain both from sacred and profane history, that there are kings, who are not subject to the controul of the people in their collective body; God addressing the people of Israel, says, if thou shalt say, "I will place a king over me"; and to Samuel "Shew them the manner of the king, who shall reign over them." Hence the King is said to be anointed over the people, over the inheritance of the Lord, over Israel. Solomon is styled King over all Israel. Thus David gives thanks to God, for subduing the people under him. And Christ says, "the Kings of the nations bear rule over them." There is a well known passage in Horace, "Powerful sovereigns reign over their own subjects, and the supreme being over sovereigns themselves." Seneca thus describes the three forms of government, "Sometimes the supreme power is lodged in the people, sometimes in a senate composed of the leading men of the state, sometimes this power of the people, and dominion over the people themselves is vested in a single person." Of the last description are those, who, as Plutarch says, exercise authority not according to the laws, but over the laws. And in Herodotus, Otanes describes a monarch as one whose acts are not subject to controul. Dion Prusaeensis also and Pausanias define a monarchy in the same terms.

Aristotle says there are some kings, who have the same right, which the nation elsewhere possesses over persons and property. Thus when the Roman Princes began to exercise regal power, the people it was said had transferred all their own personal sovereignty to them, which gave rise to the saying of Marcus Antoninus the Philosopher, that no one but God alone can be judge of the Prince. Dion. L. liii. speaking of such a prince, says, "he is perfectly master of his own actions, to do whatever he pleases, and cannot be obliged to do any thing against his will." Such anciently was the power of the Inachidae established at Argos in Greece. For in the Greek Tragedy of the Suppliants, Aeschylus has introduced the people thus addressing the King: "You are the state, you the people; you the court from which there is no appeal, you preside over the altars, and regulate all affairs by your supreme will." King Theseus himself in Euripides speaks in very different terms of the Athenian Republic; "The city is not governed by one man, but in a popular form, by an annual succession of magistrates." For according to Plutarch's explanation, Theseus was the general in war, and the guardian of the laws; but in other respects nothing more than a citizen. So that they who are limited by popular controul are improperly called kings. Thus after the time of Lycurgus, and more particularly after the institution of the Ephori, the Kings of the Lacedaemonians are said by Polybius, Plutarch, and Cornelius Nepos, to have been Kings more in name than in reality. An example which was followed by the rest of Greece. Thus Pausanias says of the Argives to the Corinthians, "The Argives from their love of equality have reduced their kingly power very low; so that they have left the posterity of Cisus nothing more than the shadow of Kings." Aristotle denies such to be proper forms of government, because they constitute only a part of an Aristocracy or Democracy.

Examples also may be found of nations, who have not been under a perpetual regal form, but only for a time under a government exempt from popular controul. Such was the power of the Amimonians among the Cnidians, and of the Dictators in the early periods of the Roman history, when there was no appeal to the people, from whence Livy says, the will of the Dictator was observed as a law. Indeed they found this submission the only remedy against imminent danger, and in the words of Cicero, the Dictatorship possessed all the strength of royal power.

It will not be difficult to refute the arguments brought in favour of the contrary opinion. For in the first place the assertion that the constituent always retains a controul over the sovereign power, which he has contributed to establish, is only true in those cases where the continuance and existence of that power depends upon the will and pleasure of the constituent: but not in cases where the power, though it might derive its origin from that constituent, becomes a necessary and fundamental part of the established law. Of this nature is that authority to which a woman submits when she gives herself to a husband. Valentinian the Emperor, when the soldiers who had raised him to the throne, made a demand of which he did not approve, replied; "Soldiers, your election of me for your emperor was your own voluntary choice; but since you have elected me, it depends upon my pleasure to grant your request. It becomes you to obey as subjects, and me to consider what is proper to be done."

Nor is the assumption true, that all kings are made by the people, as may be plainly seen from the instances adduced above, of an owner admitting strangers to reside upon his demesnes on condition of their obedience, and of nations submitting by right of conquest. Another argument is derived from a saying of the Philosophers, that all power is conferred for the benefit of the governed and not of the governing party. Hence from the nobleness of the end, it is supposed to follow, that subjects have a superiority over the sovereign. But it is not universally true, that all power is conferred for the benefit of the party governed. For some powers are conferred for the sake of the governor, as the right of a master over a slave, in which the advantage of the latter is only a contingent and adventitious circumstance. In the same manner the gain of a Physician is to reward him for his labour; and not merely to promote the good of his art. There are other kinds of authority established for the benefit of both parties, as for instance, the authority of a husband over his wife. Certain governments also, as those which are gained by right of conquest, may be established for the benefit of the sovereign; and yet convey no idea of tyranny, a word which in its original signification, implied nothing of arbitrary power or injustice, but only the government or authority of a Prince. Again, some governments may be formed for the advantage both of subjects and sovereign, as when a people, unable to defend themselves, put themselves under the protection and dominion of any powerful king. Yet it is not to be denied, but that in most governments the good of the subject is the chief object which is regarded: and that what Cicero has said after Herodotus, and Herodotus after Hesiod, is true, that Kings were appointed in order that men might enjoy complete justice.

Now this admission by no means goes to establish the inference that kings are amenable to the people. For though guardianships were invented for the benefit of wards, yet the guardian has a right to authority over the ward. Nor, though a guardian may for mismanagement be removed from his trust, does it follow that a king may for the same reason be deposed. The cases are quite different, the guardian has a superior to judge him; but in governments, as there must be some dernier resort, it must be vested either in an individual, or in some public body, whose misconduct, as there is no superior tribunal before which they can be called, God declares that he himself will judge. He either punishes their offences, should he deem it necessary; or permits them for the chastisement of his people.

This is well expressed by Tacitus: he says, "you should bear with the rapacity or luxury of rulers, as you would bear with drought, or excessive rains, or any other calamities of nature. For as long as men exist there will be faults and imperfections; but these are not of uninterrupted continuance, and they are often repaired by the succession of better times." And Marcus Aurelius speaking of subordinate magistrates, said, that they were under the controul of the sovereign: but that the sovereign was amenable to God. There is a remarkable passage in Gregory of Tours, where that Bishop thus addresses the King of France, "If any of us, Sir, should transgress the bounds of justice, he may be punished by you. But if you exceed them, who can call you to account? For when we address you, you may hear us if you please; but if you will not, who can judge you, except him, who has declared himself to be righteousness?" Among the maxims of the Essenes, Porphyry cites a passage, that "no one can reign without the special appointment of divine providence." Irenaeus has expressed this well, "Kings are appointed by him at whose command men are created; and their appointment is suited to the condition of those, whom they are called to govern." There is the same thought in the Constitutions of Clement, "You shall fear the King, for he is of the Lord's appointment."

Nor is it an objection to what has been said, that some nations have been punished for the offences of their kings; for this does not happen, because they forbear to restrain their kings, but because they seem to give, at least a tacit consent to their vices, or perhaps, without respect to this, God may use that sovereign power which he has over the life and death of every man to inflict a punishment upon the king by depriving him of his subjects.

IX. There are some who frame an imaginary kind of mutual subjection, by which the people are bound to obey the king, as long as he governs well; but his government is subject to their inspection and controul. If they were to say that his duty to the sovereign does not oblige any one to do an act manifestly unjust and repugnant to the law of God; they would say nothing but what is true and universally admitted, but this by no means includes a right to any controul over the Prince's conduct in his lawful government. But if any people had the opportunity of dividing the sovereign power with the king, the privileges of the one, and the prerogatives of the other ought to be defined by certain bounds, which might easily be known, according to the difference of places, persons, or circumstances.

Now the supposed good or evil of any act, especially in political matters which admit of great variety of opinions and much discussion, is not a sufficient mark to ascertain these bounds. From whence the greatest confusion must follow, if under pretence of promoting good or averting evil measures, the people might struggle for the Prince's jurisdiction: a turbulent state of affairs, which no sober minded people ever wished to experience.

X. After refuting false opinions, it remains to apply some cautions, which may point out the way to ascertain correctly the person to whom sovereign power, in every state, of right belongs. The first caution necessary is to avoid being deceived by ambiguous terms, or appearances foreign to the real subject. For instance, among the Latins, although the terms PRINCIPALITY and KINGDOM are generally opposed to each other, when Caesar says, that the father of Vercingetorix held the principality of Gaul, and was put to death for aiming at sovereign power; and when Piso, in Tacitus calls Germanicus the son of a Roman Prince, not of a Parthian King; and when Suetonius says, that Caligula was on the point of converting the power of a prince into that of a king; and Velleius asserts that Maroboduus not contented with the authority of a prince over voluntary adherents and dependents, was grasping in his mind at regal power; yet we find these terms though in reality very distinct were often confounded. For the Lacedaemonian chiefs, the descendants of Hercules, though subject to the controul of the Ephori, were nevertheless called kings: and Tacitus says, that among the ancient Germans there were kings, who governed more by the influence of persuasion than by the authority of power. Livy too, speaking of king Evander, describes him as reigning more by personal authority than by his regal power; and Aristotle, Polybius, and Diodorus give the names of Kings to the Suffetes or Judges of the Carthaginians. In the same manner Solinus also calls Hanno King of the Carthaginians. Strabo speaks of Scepsis in Troas, that having incorporated the Milesians into the state, it formed itself into a Democracy, leaving the descendants of the ancient kings the title, and something of the dignity of kings.

On the other hand, the Roman emperors, after they had exercised openly, and without any disguise, a most absolute monarchical power, were notwithstanding called Princes. And in some popular states the chief magistrates are graced with ensigns of royalty.

Again the states general, that is the convention of those who represent the people, divided into classes according to Gunther, consist of three orders, which are the Prelates, the Nobles, and Deputies of large towns. In some places, they serve as a greater council to the king, to communicate to him the complaints of his people, which might otherwise be kept from his ears; leaving him at the same time full liberty to exercise his own discretion upon the matters so communicated. But in other places they form a body with power to inquire into the prince's measures, and to make laws.

Many think that in order to know whether a prince be sovereign or not, it is proper to inquire whether his title to the crown is by election or inheritance. For they maintain that hereditary monarchies alone are sovereign. But this cannot be received as a general criterion. For sovereignty consists not merely in the TITLE to the throne, which only implies that the successor has a right to all the privileges and prerogatives that his ancestors enjoyed, but it by no means affects the nature or extent of his powers. For right of election conveys all the powers, which the first election or appointment conferred. Among the Lacedaemonians the crown was hereditary even after the institution of the Ephori. And Aristotle describing the chief power of such a state, says, "Of these kingdoms, some are hereditary, and others elective." In the heroic times most of the kingdoms in Greece were of this description, as we are informed by Thucydides. The Roman empire, on the contrary, even after the power of the Senate and people was abolished, was given or confirmed by election.

XI. Another caution is necessary. For to inquire into the matter of a right is not the same thing as to examine the nature of its tenure. A distinction which takes place not only in corporeal but in incorporeal possessions. For a right of passage or carriage through a ground is no less a right than that which entitles a man to the possession of the land itself. Now some hold these privileges by a full right of property, some by an usufructuary, and others by a temporary right. Thus the Roman Dictator had sovereign power by a temporary right. In the same manner kings, both those who are the first of their line elected to the throne, and those who succeed them in the lawful order, enjoy an usufructuary right, or inalienable right. But some sovereigns hold their power by a plenary right of property; when for instance it comes into their possession by the right of lawful conquest, or when a people, to avoid greater evils, make an unqualified surrender of themselves and their rights into their hands.

The opinion of those can never be assented to, who say that the power of the Dictator was not sovereign, because it was not permanent. For in the moral world the nature of things is known from their operations. The powers attended with equal effects are entitled to equal names. Now the Dictator for the time being performed all acts with the same authority as the most absolute sovereign; nor could any other power annul his acts. The permanence therefore of uncertainty alters not the nature of a right, although it would undoubtedly abridge its dignity, and diminish its splendour.[14]

[BOOK II.]

[CHAPTER I.]
Defence of Person and Property.

Causes of War—Defence of person and property—What are called justifiable causes of war—Justifiable causes of War are Defence, recovery of one's property or debt, or the punishment of offences committed—War for defence of life, justifiable, and lawful—This kind of war lawful against an aggressor only—The danger must be present and real, not an imaginary danger—Lawful to kill any one attempting to maim one's person, or violate one's chastity—Occasions where this right may be lawfully waved—This right to be waved particularly with respect to the person of the Sovereign, which is sacred and inviolable—Homicide in defence of one's property allowed by the law of nature—How far homicide is permitted by the law of Moses—Self-defence in public war—Not lawful to attack any power solely on account of its increasing greatness—The hostile measures of an aggressor, not to be justified on the plea of self-defence.

I. The causes of war by which are meant the justifiable causes, are now to be considered. For in some cases motives of interest operate distinctly from motives of justice. Polybius accurately distinguishes these motives from each other, and from the beginning of the war, or that which gave occasion to the first acts of hostility; as was the case when Ascanius wounded the stag, which gave rise to the war between Turnus and Aeneas. But though there is an actual distinction between the justifiable causes, the pretexts, and the beginning of war; yet the terms used to express them are often confounded. For what we call justifiable causes, Livy, in the speech which he has put into the mouth of the Rhodians, calls beginnings. The Rhodian deputies said, "You Romans profess to believe that your wars are successful, because they are just; nor do you boast so much of their victorious issue, as of the just principles, upon which you make them." In which sense Aelian styles them ἀρχας πολεμων {archas polemôn} and Diodorus Siculus, in speaking of the war of the Lacedaemonians against the Eleans gives them the name of προφασεις {prophaseis} and ἀρχας {archas}.

The principal drift of our argument rests upon these justifiable causes, to which the sentiment of Coriolanus in Dionysius of Halicarnassus, particularly applies, he says, "in the first place, I beseech you to consider how you may find pious and just pretexts for the war." And Demosthenes in his second Olynthiac, makes a similar observation, "I think, says he, that as in a ship, or house, or any other fabric, the lowest parts ought to be the strongest; so in all political measures the motives and pretexts ought to be laid deeply in the principles of truth and justice." The following language of Dion Cassius is no less applicable to the question. "Justice must be made the principal ground of our actions. For with such support there is the best hope of success to our arms. But without that, any point which may be gained for the moment has no firm ground to rest upon." To which may be added, the words of Cicero, who maintains those wars to be unjust, which are made without sufficient cause. And in another place, he reproves Crassus for having intended to pass the Euphrates, when there was no cause of war. Which is no less true of public than of private wars. Hence come the complaints of Seneca, "Why do we restrain homicide, and the murder of individuals, but glory in the crime of slaughter, which destroys whole nations? Avarice and cruelty know not any bounds. By decrees of the Senate, and of the people cruel acts are authorized, and measures, which are pursued by order of the state, are forbidden to individuals." Wars indeed undertaken by public authority are attended with certain effects of right, and have the sanction of opinion in their favour. But they are not the less criminal, when made without just cause. For which reason Alexander was not improperly styled a robber by the Scythian ambassadors, as may be seen in Quintus Curtius. Seneca and Lucan give him the same appellation; the Indian sages call him a madman; and a pirate once presumed to rank him with his own class. Justin speaks of Philip in the same terms, who, says he, in deciding a dispute between two rival kings, stripped both of their dominions with all the treachery and violence of a robber. Augustin has a pertinent remark on this subject. He says, what are unjustly acquired dominions, but the spoils of robbery? In the same strain, Lactantius says, "Men, captivated with the appearances of vain glory, give the names of virtues to their crimes." Injury, or the prevention of injury forms the only justifiable cause of war. "And, in the language of the same Augustin, all the evil consequences of war are to be laid at the door of the aggressor." Thus the Roman Herald in a declaration of war makes a solemn appeal against the aggressor, as having violated the laws of nations, and refused proper satisfaction.

II. The grounds of war are as numerous as those of judicial actions. For where the power of law ceases, there war begins. Now there are methods in law to prevent intended injuries, as well as actions for those actually committed. For CIVIL INJURIES various methods of redress, or prevention are appointed by the law; and by the same power securities are provided to prevent the commission of crimes and misdemeanors. In civil cases, the party aggrieved may recover damages for the injuries sustained; and in crimes, which are offences against the public, the aggressor must submit to actual punishment. Plato, in his ninth book on laws, very properly makes the same distinction, as Homer had done before him.

Now reparation or indemnity relates to what either does or did belong to us; which gives rise to real and personal actions. These ascertain our right to the damages, which are our due, either from an agreement, or from an injury received. A right which is termed in law a right by contract, or injury. Crimes, which are offences against society, are prosecuted by indictment, that is by an accusation in the name of the sovereign.

The justifiable causes generally assigned for war are three, defence, indemnity, and punishment, all which are comprised in the declaration of Camillus against the Gauls, enumerating all things, which it is right to defend, to recover, and the encroachment on which it is right to punish.

There is an omission in this enumeration, unless the word recover be taken in its most extensive sense. For recovering by war what we have lost, includes indemnity for the past, as well as the prosecution of our claim to a debt. Plato has not omitted to notice this distinction, for he has said, "that wars are made to punish not only oppression or robbery, but also fraud and deception." With whom Seneca agrees; for to command payment of what you owe, he calls, "an equitable sentence, stamped with the authority of the law of nations." Indeed the form which was prescribed for the Roman heralds to use in declarations of war, bears exactly the same import. For therein the aggressor is charged with having neither given, paid, nor done what was due. Sallust in one of his fragments, has made a Tribune, in his harangue to the people, say, "As a final settlement of all discussions, I demand restitution according to the law of nations."

St. Augustin, in defining those to be just wars, which are made to avenge injuries has taken the word avenge in a general sense of removing and preventing, as well as punishing aggressions. This appears to be his meaning from the following sentence of the passage, in which he does not enumerate the particular acts, which amount to injury, but adds, by way of illustration, that "the state or nation, which has neglected to punish the aggressions of its own subjects, or to make reparation for the losses occasioned by those aggressions, is a proper object of hostility and attack." Prompted by this natural knowledge of right and wrong, the Indian King, as we are informed by Diodorus, accused Semiramis of having commenced war against him without having received any injury. Thus the Romans expostulated with the Senones, that they ought not to attack a people who had given them no provocation. Aristotle in the second book and second chapter of his Analytics, says, war generally is made upon those who have first done an injury. Quintus Curtius describes the Abian Scythians, as the best acquainted with the principles of justice of any of the Barbarians. For they declined having recourse to arms, unless provoked by aggression. A just cause then of war is an injury, which though not actually committed, threatens our persons or property with danger.

III. It has already been proved that when our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided: an instance, as it has been shewn, on which the justice of private war rests. We must observe that this kind of defence derives its origin from the principle of self-preservation, which nature has given to every living creature, and not from the injustice or misconduct of the aggressor. Wherefore though he may be clear of guilt, as for instance a soldier in actual service, mistaking my person for that of another, or a madman in his frenzy, or a man walking in his sleep, none of these cases deprive me of the right of self-defence against those persons. For I am not bound to submit to the danger or mischief intended, any more than to expose myself to the attacks of a wild beast.

IV. It admits of some doubt, whether those, who unintentionally obstruct our defence, or escape, which are necessary to our preservation, may be lawfully maimed or killed. There are some, even Theologians, who think they may. And, certainly if we look to the law of nature alone, according to its principles, our own preservation should have much more weight with us, than the welfare of society. But the law of charity, especially the evangelical law, which has put our neighbour upon a level with ourselves, does not permit it.

Thomas Aquinas, if taken in a right sense, has justly observed, that in actual self-defence no man can be said to be purposely killed. Indeed, it may some times happen that there is no other way for a person to save himself, than by designedly doing an act, by which the death of an aggressor must inevitably ensue. Yet here the death of any one was not the primary object intended, but employed as the only means of security, which the moment supplied. Still it is better for the party assaulted, if he can safely do it, to repel or disable the aggressor than to shed his blood.

V. The danger must be immediate, which is one necessary point. Though it must be confessed, that when an assailant seizes any weapon with an apparent intention to kill me I have a right to anticipate and prevent the danger. For in the moral as well as the natural system of things, there is no point without some breadth. But they are themselves much mistaken, and mislead others, who maintain that any degree of fear ought to be a ground for killing another, to prevent his SUPPOSED intention. It is a very just observation made by Cicero in his first book of Offices, that many wrongs proceed from fear; as when the person, who intends to hurt another, apprehends some danger to himself unless he took that method. Clearchus, in Xenophon, says, I have known some men, who partly through misrepresentation, and partly through suspicion, dreading one another, in order to prevent the supposed intentions of their adversaries, have committed the most enormous cruelties against those who neither designed, nor wished them any harm.

Cato in his speech for the Rhodians, says, "Are we to prevent them by doing first, what we say they intended to do to us?" On this subject there is a remarkable passage in Aulus Gellius, "When a Gladiator prepares to enter the lists for combat, such is his lot that he must either kill his adversary, or be killed himself. But the life of man is not circumscribed by the hard terms of such an over-ruling necessity, as to oblige him to do an injury to prevent him from receiving one." Quintilian has quoted a passage from Cicero, wherein the orator asks, "Whoever made such a decision, or to whom could such a point be yielded without the most imminent danger, that you have a right to kill the person, by whom you say, you fear that you shall afterwards be killed yourself?" To which this passage of Euripides, may be applied, "If your husband, as you say, intended to have killed you, you ought to have waited, till he actually did make the attempt." Conformably to which Thucydides, in the first book of his history, has expressed himself in the following terms, "The issue of war is uncertain, nor ought we to be so far transported by our fears, as to engage in immediate and open hostilities." The same writer too in his luminous description of the dangerous factions, that had arisen in the Grecian states, condemns the approbation bestowed on the person, that injured or destroyed another from whom he himself apprehended injury or destruction."

Livy says, "Men, to guard against their alarms, make themselves objects of terror; averting the danger from their own heads, by imposing upon others the necessity of either doing or suffering the evil which they themselves fear." Vibius asked a person, that appeared armed in the forum, "Who gave you permission to shew your fear in this manner?" A question not inapplicable to the present subject, and much commended by Quintilian. Livia also in Dion says, that great infamy redounds to those, who by anticipation perpetrate the criminal act, which they fear.

Now if any one intend no immediate violence, but is found to have formed a conspiracy to destroy me by assassination, or poison, or by false accusation, perjury, or suborned witnesses, I have no right to kill him. For my knowledge of the danger may prevent it. Or even if it were evident that I could not avoid the danger without killing him; this would not establish my right to do so. For there is every presumption that my knowing it will lead me to apply for the legal remedies of prevention.

VI. and VII. The next thing to be considered is, what must be said upon the mutilation of a limb. Now, as the loss of a limb, especially that of a principal limb in the body, is a grievous detriment, and nearly equal to the loss of life, to which may be added the probability of death ensuing from such a calamity; the lawfulness of killing any one, who makes such an attempt, if the danger cannot otherwise be avoided, scarce admits of a doubt. Neither is there any more difficulty in allowing the same right for the personal defence of chastity, the preservation of which, both in the common estimation of men, and by the divine law, is deemed of equal value with life itself. We have an example of this in Cicero, Quintilian, and Plutarch, in the person of one of Marius's tribunes, who was killed by a soldier. Among the actions of women, who have defended themselves, Heliodorus records that of Heraclea, which he calls a just defence of her injured honour.

VIII. Though some, as it has been already said, admit the lawfulness of killing the person, who attempts with open violence to destroy one's life, yet they deem it more commendable to spare the life of another, even at the hazard of one's own. Yet to persons, in whose preservation the public interest is involved, they will grant an exemption from this rule of forbearance. Indeed it seems unsafe to impose upon ANY, whose lives are of importance to others, a rule of forebearance so contrary to all the principles of all law. This exemption therefore must be allowed to all vested with any public office, which makes them responsible for the safety of others; as the generals who conduct armies, or the rulers of the state, and many others in similar situations; to whom may be applied the lines of Lucan—"When the lives and safety of so many nations depend upon yours, and so great a portion of the world has chosen you for its head; it is cruelty to expose yourself wilfully to death."

IX. On the other hand it may happen, that the aggressor may be one whose person is rendered sacred and inviolable by all divine, human, and natural laws; which is the case with respect to the person of the Sovereign. For the law of nature regards not only the principles of STRICT JUSTICE, but comprises other virtues also, as temperance, fortitude, and discretion, making the observance of them in certain cases, binding as well as honourable. To observe these we are bound also by the law of charity.

Nor is the truth of this argument at all weakened by what Vasquez has advanced, who maintains that the Sovereign who attempts the life of an individual loses, in reality, the character of Sovereign: a doctrine fraught with equal absurdity and danger. For sovereignty cannot any more than property be forfeited by any particular act of delinquency; unless it has been previously and expressly so enacted by the fundamental laws of the state. For such a rule of forfeiture, which would be productive of universal anarchy and confusion, never has been, nor ever will be established among any civilized people. For the maxim, "that all government is framed for the benefit of the subject and not of the Sovereign," which Vasquez and many other writers lay down as a fundamental law, though it may be generally true in theory, is by no means applicable to the question. For a thing loses not its existence, by losing some part of its utility. Nor is there sufficient consistency in his observation, that every individual desires the safety of the commonwealth on his own account, and therefore every one ought to prefer his own safety to that of the whole state. For we wish for the public welfare not on our own account alone, but also for the sake of others.

The opinion of those who think that friendship arises from necessity alone, is rejected as false, by the more sound Philosophers; as we feel a spontaneous and natural inclination towards friendly intercourse. Charity indeed often persuades, and in some instances commands us to prefer the good of many to our own single advantage. To which the following passage from Seneca is very applicable. "It is not surprising that princes, and kings, or whatever name the guardians of the public welfare may bear, should be loved with a veneration and affection, far beyond those of private friendship. For all men of sober judgment, and enlarged information deem the public interest of higher moment than their own. Their attachment therefore must be warmest to the person on whom the well being and prosperity of the state depends." And to the same effect, St. Ambrose in his third book of Offices, says, "every man feels a greater delight in averting public than private danger." Seneca, the writer already quoted, produces two instances, the one of Callistratus at Athens, and the other of Rutilius at Rome, who refused to be restored from banishment thinking it better for two individuals to suffer hardship, than for the public to be plunged into calamities.

XI.[15] The next object to be considered, relates to injuries affecting our property. In strict justice, it cannot be denied that we have a right to kill a robber, if such a step is inevitably necessary to the preservation of our property. For the difference between the value of life and property is overbalanced by the horror which a robber excites, and by the favourable inclination felt by all men towards the injured and innocent. From whence it follows, that regarding that right alone, a robber may be wounded or killed in his flight with the property, if it cannot otherwise be recovered. Demosthenes in his speech against Aristocrates, exclaims, "By all that is sacred, is it not a dreadful and open violation of law, not only of written law, but of that law which is the unwritten rule of all men, to be debarred from the right of using force against the robber as well as against the enemy; who is plundering your property?" Nor is it forbidden by the precepts of charity, apart from all consideration of divine and human law, unless where the property is of little value, and beneath notice; an exception, which some writers have very properly added.

XII. The sense of the Jewish law on this point is now to be considered. The old law of Solon, to which Demosthenes, in his speech against Timocrates, appeals, agrees with it. From hence the substance of the Twelve Tables, and Plato's maxim in his ninth book of laws were taken. For they all agree in making a distinction between a thief who steals by day, and the robber, who commits the act by night; though they differ about the REASON of this distinction. Some think this distinction arises from the difficulty of discerning by night, whether an aggressor comes with an intent to murder or steal, and therefore he ought to be treated as an assassin. Others think the distinction is made, because as it is difficult to know the person of the thief, there is less probability of recovering the goods. In neither case do the framers of laws seem to have considered the question in its proper light. Their evident intention is to prohibit the killing of any one, merely on account of our property; which would happen, for instance, by killing a thief in his flight in order to recover the goods he had stolen. But if our own lives are endangered, then we are allowed to avert the danger, even at the hazard of another's life. Nor is our having run into the danger any objection; provided it was done to preserve or to recover our goods, or to take the thief. For no imputation of guilt can attach to us in any of these cases, while we are employed in doing a lawful act, nor can it be said that we are doing wrong to another by exercising our own right.

The difference therefore made between a thief in the night and a thief in the day, arises from the difficulty of procuring sufficient evidence of the fact. So that if a thief is found killed, the person who says, that he was found by him with a destructive weapon, and killed by him in his own defence, will easily gain belief. For the Jewish law supposes this, when it treats of a thief in the act of piercing, or, as some translate it, with a stabbing instrument. This interpretation accords with the law of the twelve tables, which forbids any one to kill a thief in the day time, except he defend himself with a weapon. The presumption therefore against a thief in the night is that he defended himself in such a manner. Now the term weapon comprehends not only an instrument of iron, but as Caius interprets this law, a club, or a stone. Ulpian on the other hand, speaking of a thief taken in the night, says that the person who kills him will incur no guilt, provided that in saving his property he could not spare his life, without endangering his own. There is a presumption, as it has been already observed, in favour of the person who has killed a thief taken in the night. But if there be evidence to prove, that the life of the person who killed the thief was in no danger; then the presumption in his favour fails, and the act amounts to murder.

The law of the twelve tables indeed required, that the person who took a thief either in the day time, or in the night, should make a noise that, if possible, the magistrates or neighbours might assemble to assist him and give evidence. But as such a concourse could more easily be assembled in the day time than in the night, as Ulpian observes upon the passage before quoted from Demosthenes, the affirmation of a person declaring the danger he was in during the night is more readily believed. To which an additional observation may be made, that, even under equal circumstances, the danger which happens by night can be less examined, and ascertained, and therefore is the more terrible. The Jewish law therefore, no less than the Roman, acting upon the same principle of tenderness forbids us to kill any one, who has taken our goods, unless for the preservation of our own lives.

XVI.[16] What has been already said of the right of defending our persons and property, though regarding chiefly private war, may nevertheless be applied to public hostilities, allowing for the difference of circumstances. For private war may be considered as an instantaneous exercise of natural right, which ceases the moment that legal redress can be obtained. Now as public war can never take place, but where judicial remedies cease to exist, it is often protracted, and the spirit of hostility inflamed by the continued accession of losses and injuries. Besides, private war extends only to self-defence, whereas sovereign powers have a right not only to avert, but to punish wrongs. From whence they are authorised to prevent a remote as well as an immediate aggression. Though the suspicion of hostile intentions, on the part of another power, may not justify the commencement of actual war, yet it calls for measures of armed prevention, and will authorise indirect hostility. Points, which will be discussed in another place.

XVII. Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorises one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favour. The causes which entitle a war to the denomination of just are somewhat different from those of expediency alone. But to maintain that the bare probability of some remote, or future annoyance from a neighbouring state affords a just ground of hostile aggression, is a doctrine repugnant to every principle of equity. Such however is the condition of human life, that no full security can be enjoyed. The only protection against uncertain fears must be sought, not from violence, but from the divine providence, and defensive precaution.

XVIII. There is another opinion, not more admissible, maintaining that the hostile acts of an aggressor, may be considered in the light of defensive measures, because, say the advocates of this opinion, few people are content to proportion their revenge to the injuries they have received; bounds which in all probability the party aggrieved has exceeded, and therefore in return becomes himself the aggressor. Now the excess of retaliation cannot, any more than the fear of uncertain danger, give a colour of right to the first aggression, which may be illustrated by the case of a malefactor, who can have no right to wound or kill the officers of justice in their attempts to take him, urging as a plea that he feared the punishment would exceed the offense.

The first step, which an aggressor ought to take, should be an offer of indemnity to the injured party, by the arbitration of some independent and disinterested state. And if this mediation be rejected, then his war assumes the character of a just war. Thus Hezekiah when he had not stood to the engagements made by his ancestors, being threatened with an attack from the King of Assyria on that account, acknowledged his fault, and left it to the King to assign what penalty he should pay for the offence. After he had done so, finding himself again attacked, relying on the justice of his cause, he opposed the enemy, and succeeded by the favour of God. Pontius the Samnite, after restoration of the prizes had been made to the Romans, and the promoter of the war delivered up into their hands, said, "We have now averted the wrath of heaven, which our violation of treaties had provoked. But the supreme being who was pleased to reduce us to the necessity of restoration, was not equally pleased with the pride of the Romans, who rejected our offer. What farther satisfaction do we owe to the Romans, or to Heaven, the arbiter of treaties? We do not shrink from submitting the measure of YOUR resentment, or of OUR punishment to the judgment of any people, or any individual." In the same manner, when the Thebans had offered the most equitable terms to the Lacedaemonians, who still rose higher in their demands, Aristides says, that the justice of the cause changed sides and passed from the Lacedaemonians to the Thebans.

[CHAPTER II.]
The General Rights of Things.

The general rights of things—Division of what is our own—The origin and progress of property—Some things impossible to be made the subject of property—The Sea of this nature, in its full extent, or in its principal parts—Unoccupied lands may become the property of individuals, unless they have been previously occupied by the people at large—Wild beasts, fishes, birds, may become the property of him who seizes them—In cases of necessity men have a right of using that which has already become the property of others—To sanction this indulgence, the necessity must be such that it cannot otherwise be avoided—This indulgence not allowed where the possessor is in an equal degree of necessity—The party thus supplying his wants from another's property, bound to make restitution whenever it is possible. The application of this principle to the practice of war—The right to use the property of another, provided that use be no way prejudicial to the owner—Hence the right to the use of running water—The right of passing through countries, and by rivers explained—An inquiry into the right of imposing duties on merchandise—The right of residing for a time in a foreign state—The right of exiles to reside in the dominions of a foreign state, provided they submit to its laws—In what manner the right of occupying waste places is to be understood—The right to certain articles necessary to the support of human society, and life—The general right of purchasing those articles at a reasonable price—The right to sell, not of equal force and extent—The right to those privileges which are promiscuously granted to foreigners—Inquiry whether it be lawful to contract with any people for the purchase of their productions on condition of their not selling the same to others.

I. Among the causes assigned to justify war, we may reckon the commission of injury, particularly such as affects any thing which belongs to us. Now we establish this claim to any thing as our own either by a right COMMON to us as men, or acquired by us in our INDIVIDUAL capacity. But to begin with that which is the common right of all mankind; we may observe that it comprises what is called by legal authorities, Corporeal and Incorporeal rights.[17]

Things corporeal are either unappropriated, or made the subjects of private property. Now the things unappropriated, are such that it may be either possible or impossible for them to be reduced to a state of private property.[18] In order therefore to understand this more clearly, it will be necessary to take a survey of the origin of property.

II. God gave to mankind in general, dominion over all the creatures of the earth, from the first creation of the world; a grant which was renewed upon the restoration of the world after the deluge. All things, as Justin says, formed a common stock for all mankind, as the inheritors of one general patrimony. From hence it happened, that every man seized to his own use or consumption whatever he met with; a general exercise of a right, which supplied the place of private property. So that to deprive any one of what he had thus seized, became an act of injustice. Which Cicero has explained in his third book, on the bounds of good and evil, by comparing the world to a Theatre, in which the seats are common property, yet every spectator claims that which he occupies, for the time being, as his own. A state of affairs, which could not subsist but in the greatest simplicity of manners, and under the mutual forbearance and good-will of mankind. An example of a community of goods, arising from extreme simplicity of manners, may be seen in some nations of America, who for many ages have subsisted in this manner without inconvenience. The Essenes of old, furnished an example of men actuated by mutual affection and holding all things in common, a practice adopted by the primitive Christians at Jerusalem, and still prevailing among some of the religious orders. Man at his first origin, requiring no clothing, afforded a proof of the simplicity of manners in which he had been formed. Yet perhaps, as Justin says of the Scythians, he might be considered as ignorant of vice rather than acquainted with virtue; Tacitus says, that in the early ages of the world, men lived free from the influence of evil passions, without reproach, and wickedness; and consequently without the restraints of punishment. In primitive times there appeared among mankind, according to Macrobius, a simplicity, ignorant of evil, and inexperienced in craft: a simplicity which in the book of Wisdom seems to be called integrity, and by the Apostle Paul simplicity in opposition to subtilty. Their sole employment was the worship of God, of which the tree of life was the symbol, as it is explained by the ancient Hebrews, whose opinion is confirmed by the Book of Revelation.

Men at that period subsisted upon the spontaneous productions of the ground: a state of simplicity to which they did not long adhere, but applied themselves to the invention of various arts, indicated by the tree of knowledge of good and evil, that is the knowledge of those things which may be either used properly, or abused; which Philo calls a middle kind of wisdom. In this view, Solomon says, God hath created men upright, that is, in simplicity, but they have sought out many inventions, or, in the language of Philo, they have inclined to subtilty. In the sixth oration of Dion Prusaeensis it is said, "the descendants have degenerated from the innocence of primitive times, contriving many subtile inventions no way conducive to the good of life; and using their strength not to promote justice, but to gratify their appetites." Agriculture and pasturage seem to have been the most ancient pursuits, which characterized the first brothers. Some distribution of things would necessarily follow these different states; and we are informed by holy writ, that the rivalry thus created ended in murder. At length men increasing in wickedness by their evil communications with each other, the race of Giants, that is of strong and violent men appeared, whom the Greeks denominate by a title, signifying those who make their own hands and strength the measure of justice.

The world in progress of time being cleared of this race by the deluge, the savage was succeeded by a softer and more sensual way of life, to which the use of wine proved subservient, being followed by all the evil consequences of intoxication. But the greatest breach in the harmony of men was made by ambition, which is considered in some measure, as the offspring of a noble mind. Its first and most eminent effects appeared in the attempt to raise the tower of Babel; the failure of which caused the dispersion of mankind, who took possession of different parts of the earth.

Still after this a community of lands for pasture, though not of flocks, prevailed among men. For the great extent of land was sufficient for the use of all occupants, as yet but few in number, without their incommoding each other. In the words of the Poet, it was deemed unlawful to fix a land mark on the plain, or to apportion it out in stated limits. But as men increased in numbers and their flocks in the same proportion, they could no longer with convenience enjoy the use of lands in common, and it became necessary to divide them into allotments for each family. Now in the hot countries of the East, wells would be objects of great importance, for the refreshment of their herds and flocks; so that in order to avoid strife and inconvenience, all would be anxious to have them as possessions of their own. These accounts we derive from sacred history, and they are found to agree with the opinions maintained upon this subject by Philosophers and Poets, who have described the community of goods, that prevailed in the early state of the world, and the distribution of property which afterwards took place. Hence a notion may be formed of the reason why men departed from the primaeval state of holding all things in common, attaching the ideas of property, first to moveable and next to immoveable things.

When the inhabitants of the earth began to acquire a taste for more delicate fare than the spontaneous productions of the ground, and to look for more commodious habitations than caves, or the hollow of trees, and to long for more elegant cloathing than the skins of wild beasts, industry became necessary to supply those wants, and each individual began to apply his attention to some particular art. The distance of the places too, into which men were dispersed, prevented them from carrying the fruits of the earth to a common stock, and in the next place, the WANT of just principle and equitable kindness would destroy that equality which ought to subsist both in the labour of producing and consuming the necessaries of life.

At the same time, we learn how things passed from being held in common to a state of property. It was not by the act of the mind alone that this change took place. For men in that case could never know, what others intended to appropriate to their own use, so as to exclude the claim of every other pretender to the same; and many too might desire to possess the same thing. Property therefore must have been established either by express agreement, as by division, or by tacit consent, as by occupancy. For as soon as it was found inconvenient to hold things in common, before any division of lands had been established, it is natural to suppose it must have been generally agreed, that whatever any one had occupied should be accounted his own. Cicero, in the third book of his Offices says, it is admitted as an universal maxim, not repugnant to the principles of natural law, that every one should rather wish himself to enjoy the necessaries of life, than leave them for the acquisition of another. Which is supported by Quintilian, who says, if the condition of life be such, that whatever has fallen to the private use of any individual, becomes the property of such holder, it is evidently unjust to take away any thing which is possessed by such a right. And the ancients in styling Ceres a law-giver, and giving the name of Thesmophoria to her sacred rights, meant by this to signify that the division of lands had given birth to a new kind of right.

III. Notwithstanding the statements above made, it must be admitted that some things are impossible to be reduced to a state of property, of which the Sea affords us an instance both in its general extent, and in its principal branches. But as some are willing to make this concession with regard to individuals, but not with regard to nations, the position advanced in the beginning of this section may be proved from the following moral argument, that as in this case the reason no longer subsists why men should hold all things in common, the practice ceases also. For the magnitude of the sea is such, as to be sufficient for the use of all nations, to allow them without inconvenience and prejudice to each other the right of fishing, sailing, or any other advantage which that element affords. The same may be said of air as common property, except that no one can use or enjoy it, without at the same time using the ground over which it passes or rests. So that the amusement of fowling cannot be followed, except by permission, without trespassing upon the lands of some owner, over which the birds fly.

The same appellation of COMMON may be given to the sand of the shore, which being incapable of cultivation, is left free to yield its inexhaustible supplies for the use of all.

There is a natural reason also, which renders the sea, considered in the view already taken, incapable of being made property: because occupancy can never subsist, but in things that can be confined to certain permanent bounds. From whence Thucydides gives the name of infinite space to unoccupied lands, and Isocrates speaking of that occupied by the Athenians calls it that which has been measured by us into alloted parts. But fluids, which cannot be limited or restrained, except they be contained within some other substance, cannot be occupied. Thus ponds, and lakes and rivers likewise, can only be made property as far as they are confined within certain banks. But the ocean as it is equal to, or larger than the earth, cannot be confined within the land: so that the ancients said the earth was bounded in by the sea like a girdle surrounding it. Nor can any imaginable division of it have been originally framed. For as the greatest part of it was unknown, it was impossible that nations far removed from each other could agree upon the bounds to be assigned to different parts.

Whatever therefore was the common property of all, and after a general division of all other things, retained its original state, could not be appropriated by division, but by occupancy. And the marks of distinction and separation by which its different parts were known, followed such appropriation.

IV. The next matters to be noticed are those things, which though not yet made property, may be reduced to that condition. Under this description come waste lands, desert islands, wild beasts, fishes, and birds. Now in these cases there are two things to be pointed out, which are a double kind of occupancy that may take place; the one in the name of the Sovereign, or of a whole people, the other by individuals, converting into private estates the lands which they have so occupied. The latter kind of individual property proceeds rather from assignment than from free occupancy. Yet any places that have been taken possession of in the name of a sovereign, or of a whole people, though not portioned out amongst individuals, are not to be considered as waste lands, but as the property of the first occupier, whether it be the King, or a whole people. Of this description are rivers, lakes, forests, and wild mountains.

V. As to wild beasts, fishes, and birds, it is to be observed that the sovereign of the respective lands, or waters where they are found, has a legal right to prohibit any one from taking them, and thereby acquiring a property in them. A prohibition extending to foreigners, as well as subjects. To foreigners; because by all the rules of moral law they owe obedience to the sovereign, for the time during which they reside in his territories. Nor is there any validity in the objection founded on the Roman Law, the Law of nature, or the Law of nations, which, it is said, declare such animals to be beasts of chace free to every one's hunting. For this is only true, where there is no civil law to interpose its prohibition; as the Roman law left many things in their primitive state, which by other nations were placed upon a very different footing. The deviations therefore from the state of nature, which have been established by the civil law, are ordained by every principle of natural justice to be obeyed by mankind. For although the civil law can enjoin nothing which the law of nature prohibits, nor prohibit any thing which it enjoins, yet it may circumscribe natural liberty, restraining what was before allowed; although the restraint should extend to the very acquisition of property, to which every man AT FIRST had a right by the law of nature.

VI. The next thing to be considered is the right, which men have to the common use of things, already appropriated; terms, in which at the first sight there appears to be some inconsistency, as it appears that the establishment of property has absorbed every right that sprung from a state of things held in common. But this is by no means the case. For the intention of those, who first introduce private property, must be taken into the account. And it was but reasonable to suppose, that in making this introduction of property, they would depart as little as possible from the original principles of natural equity. For if written laws are to be construed in a sense, approaching as nearly as possible to the laws of nature, much more so are those customs which are not fettered with the literal restrictions of written maxims. From hence it follows that in cases of extreme necessity, the original right of using things, as if they had remained in common, must be revived; because in all human laws, and consequently in the laws relating to property, the case of extreme necessity seems to form an exception.

Upon this principle is built the maxim that if in a voyage provisions begin to fail, the stock of every individual ought to be produced for common consumption; for the same reason a neighbouring house may be pulled down to stop the progress of a fire: or the cables or nets, in which a ship is entangled, may be cut, if it cannot otherwise be disengaged. Maxims, none of which were introduced by the civil law, but only explained by it according to the rules of natural equity.

Now among Theologians also it is a received opinion, that if in urgent distress, any one shall take from another what is absolutely necessary for the preservation of his own life, the act shall not be deemed a theft. A rule not founded, as some allege, solely upon the law of charity, which obliges every possessor to apply some part of his wealth to relieve the needy; but upon the original division of lands among private owners, which was made with a reservation in favour of the primitive rights of nature. For if those who at first made the division had been asked their opinion upon this point, they would have given the same reason that has just been advanced. Necessity, says Seneca, the great protectress of human infirmity breaks through all human laws, and all those made in the spirit of human regulations. Cicero in his eleventh Philippic, says, that Cassius went into Syria, which might be considered as another's province, if men adhered to written laws, but if these were abolished, it would be considered as his own by the law of nature. In the sixth book and fourth chapter of Quintus Curtius, we find an observation, that in a common calamity every man looks to himself.

VII. Now this indulgence must be granted with precautions and restrictions, to prevent it from degenerating into licentiousness. And of these precautions, the first requires the distressed party to try every mode of obtaining relief, by an appeal to a magistrate, or by trying the effect of entreaty to prevail upon the owner to grant what is necessary for his pressing occasions. Plato allows any one to seek water from his neighbour's well, after having dug to a certain depth in his own without effect. Solon limits the depth to forty cubits; upon which Plutarch remarks, that he intended by this to relieve necessity and difficulty, but not to encourage sloth. Xenophon in his answer to the Sinopians, in the fifth book of the expedition of Cyrus, says, "wherever we come, whether into a barbarous country or into any part of Greece, and find the people unwilling to afford us supplies, we take them, not through motives of wantonness, but from the compulsion of necessity."

VIII. In the next place this plea of necessity cannot be admitted, where the possessor is in an equal state of necessity himself. For under equal circumstances the owner has a better right to the use of his possessions. Though Lactantius maintains that it is no mark of folly to forbear thrusting another from the same plank in a shipwreck in order to save yourself. Because you have thereby avoided hurting another: a sin which is certainly a proof of wisdom to abstain from. Cicero, in the third book of his offices, asks this question, if a wise man, in danger of perishing with hunger, has not a right to take the provisions of another, who is good for nothing? To which he replies; By no means. For no one's life can be of such importance as to authorize the violation of that general rule of forbearance, by which the peace and safety of every individual are secured.

IX. In the third place, the party thus supplying his wants from the property of another, is bound to make restitution, or give an equivalent to the owner, whenever that is possible. There are some indeed, who deny this, upon the ground that no one is bound to give an indemnity for having exercised his own right. But strictly speaking, it was not a full and perfect right, which he exercised; but a kind of permission, arising out of a case of necessity, and existing no longer than while the necessity continued. For such a permissive right is only granted in order to preserve natural equity in opposition to the strict and churlish rigour of exclusive ownership.

X. Hence it may be inferred, that, in the prosecution of a just war, any power has a right to take possession of a neutral soil; if there be real grounds, and not imaginary fears for supposing the enemy intends to make himself master of the same, especially if the enemy's occupying it would be attended with imminent and irreparable mischief to that same power. But in this case the restriction is applied that nothing be taken but what is actually necessary to such precaution and security. Barely occupying the place is all that can be justified: leaving to the real owner the full enjoyment of all his rights, immunities, and jurisdiction, and all the productions of his soil. And this must be done too with the full intention of restoring the place to its lawful Sovereign, whenever the necessity, for which it was occupied, may cease. The retaining of Enna, Livy says, was either an act of violence, or a necessary measure; by violence meaning the least departure from necessity. The Greeks, who were with Xenophon being in great want of ships, by Xenophon's own advice, seized upon those that were passing, still preserving the property untouched for the owners, supplying the sailors with provisions, and paying them wages. The principal right therefore, founded upon the original community of goods, remaining since the introduction of property, is that of necessity, which has just been discussed.