On the Law of War and Peace
De Jure Belli ac Pacis
by Hugo Grotius (1583-1645)
CHAPTER 1: On War and Right
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.
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
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,
VIII. [Translator's note: The eighth Section is omitted, the greater part of it consisting of verbal criticism upon Aristotle's notions of geometrical and arithmetical justice; a discussion no way conducive to that clearness and simplicity, so necessary to every didactic treatise.]
IX. 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, 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 dikaomata, and the latter entolas.
X. Natural right is the dictate of right reason, shewing the
moral turpitude, or moral necessity, 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
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 verse of
"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.
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.
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
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
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. zz. 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
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, practiced
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
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
CHAPTER 2: 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
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
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. Judd. 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, I Sam. xxv. 28. to fight the battles of the Lord, that is to make lawful and just wars.
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 say s 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 he 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 aught 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 oĢ 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; no 'n 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 willful 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.
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 o 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
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? I 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. az. 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 irreconcilable war. Exod. xxvii. 18. 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 From. 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 Rabbies. 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.
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, 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
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
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 for 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 or 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
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
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. [Translator's note: The remainder of this section is omitted, Grotius himself stating it to be only a repetition and enlargement of his arguments immediately preceding it.]
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 the 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 Tertulian, 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, commanding a soldier, who was at the same time a Christan, 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
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,
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 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 little before observed, "we are but strangers, yet 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. 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 or 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. Indeed capital punishments were
not abolished even after
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.
[Translator's Note: As Grotius has so fully established his argument, it is unnecessary to review his answer to further objections.]
CHAPTER 1: What is Lawful in War.
What is lawful in war General Rules derived from the law of nature Stratagems and lies Arrangement of the following parts First rule, all things necessary to the end lawful Right resulting not only from the origin of a war, but from causes growing out of the same Certain
consequences justifiable, though not originally lawful What measures are lawful against those who furnish an enemy with supplies Stratagems Negative Positive Sometimes allowable to use words in a sense different from the general acceptation A lie according to the true notion of it injurious to the rights of others Falsehood allowable in order to deceive children or madmen Any one addressing another without intentions to deceive, not answerable for the misconceptions of a third person A person not answerable for the willful mistakes of those to whom he speaks The fictitious threats of a person in authority Fiction allowable in order to save the lives of the innocent, or to promote other equally important purposes Deception lawful against an enemy, but not including promises, or oaths To forbear using this privilege an act of
generosity and Christian simplicity Not allowable to urge others to what is unlawful for them, but not for us to do Allowable to use the services of deserters.
I. HAVING, in the preceding books, considered by what persons, and for what causes, war may be justly declared and undertaken, the subject necessarily leads to an inquiry into the circumstances, under which war may be undertaken, into the extent, to which it may be carried, and into
the manner, in which its rights may be enforced. Now all these matters may be viewed in the light of privileges resulting simply from the law of nature and of nations, or as the effects of some prior treaty or promise. But the actions, which are authorised by the law of nature, are those that
are first entitled to attention.
II. In the first place, as it has occasionally been observed, the means employed in the pursuit of any object must, in a great degree, derive the complexion of their moral character from the nature of the end to which they lead. It is evident therefore that we may justly avail ourselves of
those means, provided they be lawful, which are necessary to the attainment of any right. RIGHT in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses. On which account, a person, if he has no other means of
saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self- defence, which nature grants to every one. Besides, if any one has SURF and UNDOUBTED grounds to apprehend imminent danger from any thing belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may DETAIN it as a precautionary measure, till he can obtain satisfactory assurance of security.
Upon the same principle any one has a natural right to seize what belongs to him, and is unlawfully detained by another: or, if that is impracticable, he may seize something of equal value, which is nearly the same as recovering a debt. Recoveries of this kind establish a property in
the things so reclaimed; which is the only method of restoring the equality and repairing the breaches of violated justice. So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and every act that forms a part of the punishment, such as destroying an enemy's property and country by fire or any other way, falls within the limits of justice proportionable to the offence.
the court may give to the successful litigant other rights besides those belonging to the original matter of dispute. So those who join our enemies, either as allies or subjects, give us a right of defending ourselves against THEM also. So too a nation engaging in an unjust war, the injustice of which she knows and ought to know, becomes liable to make good all the expences and losses incurred, because she has been guilty of occasioning them. In the same manner those powers, who become auxiliaries in wars undertaken without any reasonable grounds, contract a degree of
guilt and render themselves liable to punishment in proportion to the injustice of their measures. Plato approves of war conducted so far, as to compel the aggressor to indemnify the injured and the innocent.
IV. In the third place, an individual or belligerent power may, in the
prosecution of a lawful object, do many things, which were not in the contemplation of the original design, and which in THEMSELVES it would not be lawful to do. Thus in order to obtain what belongs to us, when it is impossible to recover the specific thing, we may take more than our due, under condition of repaying whatever is above the real value. For the same reason it is lawful to attack a ship manned by pirates, or a house occupied by robbers, although in that ship, or that house there may be many innocent persons, whose lives are endangered by such attack.
But we have had frequent occasion to remark, that what is conformable to right taken in its strictest sense is not always lawful in a moral point of view. For there are many instances, in which the law of charity will not allow us to insist upon our right with the utmost rigour. A reason for which it will be necessary to guard against things, which fall not within the original purpose of an action, and the happening of which might be foreseen: unless indeed the action has a tendency to produce advantages, that will far outweigh the consequences of any accidental calamity, and the apprehensions of evil are by no means to be put in competition with the sure hopes of a successful issue. But to determine in such cases requires no ordinary penetration and discretion. But wherever there is any doubt, it is. always the safer -way to decide in favour of another's interest, than to follow the bent of our own inclination. "Suffer the tares to grow, says our divine teacher. least in rooting up the tares you root up the wheat also."
The general destruction, which the Almighty, in right of his supreme Majesty, has sometimes decreed and executed, is not a rule, which we can presume to follow. He has not invested men, in the exercise of power, with those transcendent sovereign rights. Yet he himself,
notwithstanding the unchangeable nature of his sovereign will, was inclined to spare the most wicked cities, if ten righteous persons could be found therein. Examples like these may furnish us with rules to decide, how far the rights of war against an enemy may be exercised or relaxed.
V. It frequently occurs as a matter of inquiry, how far we are authorised to act against those, who are neither enemies, nor wish to be thought so, but who supply our enemies with certain articles. For we know that it is a point, which on former and recent occasions has been contested with the greatest animosity; some wishing to enforce with all imaginary rigour the rights of war, and others standing up for the freedom of commerce.
In the first place, a distinction must be made between the commodities themselves. For there are some, such as arms for instance, which are only of use in war; there are others again, which are of no use in war, but only administer t o luxury; but there are some articles, such as money, provisions, ships and naval stores, which are of use at all times both in peace and war.
As to conveying articles of the first kind, it is evident that any one must be ranked as an enemy, who supplies an enemy with the means of prosecuting hostilities. Against the conveyance of commodities of the second kind, no just complaint can be made.- And as to articles of the third class, from their being of a doubtful kind, a distinction must be made between the times of war and peace. For if a power can not defend itself, but by intercepting the supplies sent to an enemy, necessity will justify such a step, but upon condition of making restoration, unless there be some additional reasons to the contrary. But if the conveyance of goods to an enemy tends to obstruct any belligerent power in the prosecution of a lawful right, and the person so conveying them possesses the means of knowing it; if that power, for instance, is besieging a town, or blockading a port, in expectation of a speedy surrender and a peace, the person, who furnishes the enemy with supplies, and the means of prolonged resistance, will be guilty of an aggression and injury towards that power. He will incur the same guilt, as a person would do by assisting a debtor to escape from prison, and thereby to defraud his creditor. His goods may be taken by way of indemnity, and in discharge of the debt. If the person has not yet committed the injury, but only intended to do so, the aggrieved power will have a right to detain his goods, in order to compel him to give future security, either by putting into his hands hostages, or pledges; or indeed in any other way. But if there are evident proofs of injustice in an enemy's conduct the person who supports him in such a case, by furnishing him with succours, will be guilty not barely of a civil injury, but his giving assistance will amount to a crime as enormous, as it would be to rescue a criminal in the very face of the judge. And on that account the injured power may proceed against him as a criminal, and punish him by a confiscation of his goods.
These are the reasons, which induce belligerent powers to issue manifestoes, as an appeal to other states, upon the justice of their cause, and their probable hopes of ultimate success. This question has been introduced under the article, which refers to the law of nature, as history supplies us with no precedent to deduce its establishment from the voluntary law of nations.
We are informed by
Polybius, in his first book, that the Carthaginians seized
some of the Romans, who were carrying supplies to their enemies, though
they afterwards gave them up, upon the demand of the Romans. Plutarch
says that when Demetrius had invested
VI. Wars, for the
attainment of their objects, it cannot be denied, must employ
force and terror as their most proper agents. But a
doubt is sometimes entertained, whether stratagem may
be lawfully used in war. The general sense of mankind seems to have
approved of such a mode of warfare. For
Homer commends his hero, Ulysses, no less for his ability in military stratagem, than for his wisdom. Xenophon, who was a philosopher as well as a
soldier and historian, has said, that nothing can be more useful in war than a
well-timed stratagem, with whom Brasidas, in Thueydides agrees, declaring it to be the method from which many
great generals have derived the most brilliant reputation. And in Plutarch, Agesilaus maintains, that deceiving an enemy is both just and lawful. The authority of Polybius may be
added to those already named; for he thinks, that it shews greater talent
in a general to avail himself of some favourable opportunity to employ
a stratagem, than to gain an open battle. This opinion
of poets, historians, and philosophers is supported by
that of Theologians. For Augustin has said that, in the prosecution of
a just war, the justice of the cause is no way affected by the attainment
of the end, whether the object be accomplished by stratagem or open
force, and Chrysostom, in his beautiful little treatise on the priestly
office, observes, that the highest praises are bestowed on those
generals, who have practised successful stratagems. Yet
there is one circumstance, upon which the decision of this question turns more than upon
any opinion even of the highest authority, and that is, whether
stratagem ought to be ranked as one of those evils, which are prohibited under
the maxim OF NOT DOING EVIL, THAT GOOD
VIII. A stratagem of a positive kind, when practised in actions, is called a feint, and when used in conversation it receives the name of a lie or falsehood. A distinction is made by some, between these two kinds of stratagems, who say, that words are signs of our ideas, but actions are not so. But there is more of truth in the opposite opinion, that words of themselves unaccompanied by the intention of the speaker, signify nothing more than the inarticulate cries would do of any one labouring under grief, or any other passion: which sounds come under the denomination of actions, rather than of speech. But should it be said that being able to convey to others the conceptions of his mind, by words adapted to the purpose, is a peculiar gift of nature, by which man is distinguished from other parts of the animated creation, the truth of this cannot be denied.
To which we may add
that such communication may be made not only by words, but by
signs or gestures, like those used to the dumb; it makes no difference, whether those signs or gestures
have any natural connection with the thing they are intended to signify,
or whether such a connection is only assigned to them by custom. Equivalent to such signs or gestures is
handwriting, which may be considered, as a dumb language, deriving its force
not merely from the words used, and the particular form of the letters, but from the real intention of the
writer, to be gathered from thence: to be gathered either from the
resemblance between the characters and the intentions, as in the
Egyptian hieroglyphics, or from pure fancy, as among the Chinese. Here likewise another distinction is
necessary to be applied in the same manner, as was done before, in order to remove
all ambiguity in using the term Of THE LAW OF NATIONS. For
it was there said, that the laws established by independent and separate
states, whether or no those laws implied any mutual obligations, were denominated
the LAW OF NATIONS. So that
words, gestures, and signs, made use of to convey a meaning, imply an obligation, in all the persons concerned, to
receive and employ them in their common acceptation. But
the employment of OTHER MEANS, coming under NONE
OF THOSE DESCRIPTIONS, cannot be construed into a violation of any social
contract, although some may be deceived thereby. It is
We have an instance
of the former kind in the conduct of our Saviour, who, on the
way to Emmaus, pretended to the disciples, that he was going further; here was a harmless stratagem, unless
we interpret the words, as expressive of his intention to have gone
further, if he had not been prevented by their efforts and entreaties to
detain him. And in another part
of the sacred history it is said, that he intended to have passed by the
Apostles on the sea, that is, he intended to have done it, had he not been
so earnestly importuned by them to go into the ship. There
is another instance too in the conduct of Paul, who
circumcised Timothy, though he knew the Jews would conclude from thence, that
the ordinance of circumcision, which in reality had been
abolished, was still binding upon the descendants of
The Greek Fathers have given the name of ECONOMY, or MANAGEMENT to stratagems of this kind. On this subject there is an admirable sentiment in Clement of Alexandria, who, in speaking of a good man, says that "he will do many things for the benefit of his neighbour alone, which he would not otherwise have undertaken,"
One of these stratagems was practised by the Romans, who, during the time that they were besieged in the Capitol, threw some loaves of bread into the enemy's camp, that it might not be supposed they were pressed by famine. The feigned flight, which Joshua ordered his people to make, to assist him in his designs upon Ai, affords an instance of a stratagem of the second kind; the ensuing mischiefs of which may be considered, as some of the effects of lawful war. The ORIGINAL DESIGN of that pretended flight does not at all affect the question. The enemy took it for a proof of fear; and he was at liberty to do so, without debarring the other of his right to march this way, or that, with an accelerated or retarded motion, with a shew of courage, or an appearance of fear, as he might judge it most expedient.
History furnishes us with innumerable examples of deceptions practised with success upon an enemy, by assuming his arms, ensigns, colours, or uniforms; all which may be justified upon the same principle. For all these are actions, which any one may avail himself of at his pleasure, by departing from the usual course of his military system. For such points of 'discipline and system depend upon the will and fancy of the military commanders in each state, rather than upon any invariable custom, equally binding upon all nations.
IX. Those signs, by which the daily intercourse of life is maintained, form a subject of more weighty discussion, with which the consideration of lies or falsehood is necessarily interwoven. All stratagems of this kind are so direct a violation of all moral principle, both in their nature and consequences, that almost every page of the revealed will of God declares their condemnation. Solomon describes a righteous, that is, a good man, as one, who holds every false word in detestation, deprecating the least appearance of deception: and the Apostle's injunction accords with these sentiments, instructing his disciples not to lie to one another.
Nor is it in the high standard of perfection alone, which the divine records present, that such a recommendation of fair, open, and sincere dealing is to be found. It is the theme of praise with poets and philosophers, and the angry hero of the Grecian poet declares, that he detests the man, as an infernal being, who utters one thing with his tongue, while he conceals another in his heart. But making some allowance for poetic fiction-we find even the grave, sober, and discerning, Stagirite describing falsehood, as a vile, and abominable refuge, and painting truth as a lovely object, that must extort the warmest praise.
These are all great and high authorities in favour of open dealing. Yet there are names of no less weight, both among sacred and profane writers, whose opinions are a vindication of stratagems, when used upon PROPER occasions. One writer speaks of a case, where stratagem may be used, even for the benefit of the person, on whom it is practised, and adduces the instances of a physician, who, by means of a deception, overcame the perverseness of a patient, and wrought a salutary cure.
X. To reconcile such a variety of discordant opinions, it may be necessary to devise some way of examining falsehood both in its more extensive, and more confined acceptation. Nor is speaking an untruth, UNAWARES, to be considered in the nature of a lie, but the falsehood, which comes within the limits here defined, is the KNOWN and DELIBERATE UTTERANCE of any thing contrary to our real conviction, intention, and understanding.
Words, or signs,
importing the same meaning as words, are generally taken for
conceptions of the mind, yet it is no lie for any man to utter a falsehood, which he believes to be true; but
the propagation of a truth, which any one believes to be false, IN Him
amounts to a lie. There must be in the
use of the words therefore an INTENTION to deceive, in order to constitute a falsehood in the proper and
common acceptation. Consequently, when
any one single word, or the whole tenour of a discourse, admits of more
significations than one, either by the use of some popular phrase, some
term of art, or intelligible figure of speech, in that case if the speaker's intention correspond with any one of
those meanings, he cannot be charged with using falsehood, although it
is possible that a hearer may take his words in a very different sense. It is true that using such an ambiguous method of speaking on
On the other hand, it may happen to be not only censurable, but even wicked to use such a manner of speaking, where either the honour of God or the welfare of mankind is concerned, or indeed any matter, which demands explicit avowals, and open dealing. Thus in contracts every thing necessary to their fulfillment ought to be fully disclosed to those concerned. There is an apposite expression of Cicero, who says, that every degree of deception ought to be banished from all contracts, and there is in the old Athenian Laws a proverb, conformable to this, which says, there must be nothing, but open dealing in markets.
XI. In strictness of speech such ambiguity is excluded from the notion of a lie. The common notion of a lie therefore is something spoken, written, marked, or intimated, which cannot be understood, but in a sense different from the real meaning of the speaker. But a lie, in this stricter acceptation, having some thing unlawful in its very nature, necessarily requires that a distinction should be made between it and that latitude of expression already explained. And if this acceptation be properly considered, at least according to the opinion prevailing in all nations, it seems, that no other explanation of it is necessary to be given, except that it is a violation of the existing and permanent rights of the person, to whom a discourse, or particular signs, are directed. It is a violation of the rights of ANOTHER; for it is evident, that no one can utter a falsehood with a view to impose upon himself. The rights here spoken of are peculiarly connected with this subject. They imply that liberty of judgment, which men are understood, by a kind of tacit agreement, to owe to each other in their mutual intercourse. For this, and this alone is that mutual obligation, which men intended to introduce, as soon as they began to use speech, or other signs of equal import. For without such an obligation the invention of those signs would have been perfectly nugatory. It is requisite too, that at the time a discourse is made, such a right or obligation should remain in full force.
A right may indeed have existed and afterwards have become obsolete, owing to the rise or occurrence of some new right: which is the case with a debt, that may be released by acquittance, or nonperformance of a condition. It is farther requisite, to constitute a VIOLATION OF THIS RIGHT, that the ensuing injury should immediately affect the PERSON ADDRESSED: as in contracts, there can be no injustice, but what affects one of the parties, or persons concerned.
And perhaps under the
head of this right, it may not be improper to assign a
place to that
The right to a discovery of the whole truth may be relinquished by the express consent of the persons, who are engaged in a treaty: the one may declare his intention not to disclose certain points, and the other may allow of this reserve. There may be also a tacit presumption, that there are just reasons for such reserve which may perhaps be necessary out of regard to the rights of a third person: rights which, in the common judgment of all sober men, may be sufficient to counterbalance any obligation in either of the persons engaged in the treaty to make a full disclosure of his views and sentiments. These principles, duly considered, will supply many inferences to reconcile any seeming contradiction in the opinions, that have been advanced.
XII. In the first place, many things may be said to madmen, or children, the LITERAL MEANING of which may not be true, without incurring the guilt of willful falsehood. A practice which seems to be allowed by the common sense of all mankind. Quintilian, speaking of the age of puerility, says, it is a period of life, when many useful truths may be taught in the dress of fiction. Another reason given is, that as children and madmen possess no perfect power of judging, impositions of that kind can do no injury to their rights, in such respects.
XIII. Secondly, when a conversation is addressed to any one, who is not thereby deceived, although a third person, not immediately addressed, may misconceive the matter, there is no willful falsehood in the case. No WILFUL FALSEHOOD towards the person addressed: because he feels no greater injury from thence, than an intelligent hearer would do from the recital of a fable, or the use of a metaphor, irony, or hyperbole in speech. It cannot be said that an injury is done to the person, who accidentally and cursorily hears a matter, and misconceives it: for being no way concerned, there is no obligation due to him. As he misconceives a thing addressed to ANOTHER, and not to HIMSELF, he must take upon his own head all the consequences of the mistake. For, properly speaking, the discourse, WITH RESPECT TO HIM, IS no discourse, but an inexpressive sound that may signify one thing as well as another. So that there was nothing wrong in the conduct of Cato the Censor, who made a false promise of assistance to his confederates, nor in that of Flaccus, who informed others that Aemilius had taken the enemy's city by storm, although the enemy were deceived by it. Plutarch mentions an instance of the same kind in the life of Agesilaus. Here no communication was made to the enemy, and the prejudice he sustained was an accidental thing no way unlawful in itself, either to be wished for or procured.
XIV. In the third place, whenever it is certain that the person, on whom a deception is practised, discovers that the intent of it was to do him a service; he will not feel it as a grievance, nor can it come -under the strict denomination of a lie or falsehood. It will be no more an INJURY, than it would be a THEFT in any one, presuming upon an owner's consent, to take something belonging to that owner, in order to convert it to his use in a very beneficial way. For in cases of notorious certainty, a PRESUMPTION may be taken for express consent. But it is evident that no man would CONSENT to receive an INJURY.
From hence it appears, that a person is guilty of no treachery, who uses unfounded or fictitious motives to console a friend in distress, as Arria did to Paetus upon the death of his son, of which there is an account in Pliny's Epistles, or in a general, who in a perilous situation should avail himself of false intelligence, to encourage his troops, by which perhaps a victory might be gained.
It may be observed likewise, that the injury done to the freedom of judgment is, in such a case, of less consequence, because it is but momentary, and the real fact is soon discovered.
XV. There is a fourth case, which bears a near affinity to those above mentioned, and that is, when any one, possessing preeminent authority, orders another, in a subordinate capacity, to execute some device or stratagem, conducive either to his individual, or to the public welfare. Which Plato seems to have had particularly in view, in allowing those in authority to avail themselves of pretexts, or stratagems. The same writer is very correct in his notion of not making such a device a characteristic of that authority, which belongs to the supreme being. For all such devices, however justifiable they may be in CERTAIN CASES, strongly betray that imperfection, which is inseparable from all human systems.
The stratagem, which Joseph employed to obtain further discoveries without making himself known to his brethren, is much commended by Philo, as a mark of great policy, when, contrary to the convictions and feelings of his own mind, he accused them of being spies, and afterwards charged them with theft. It was by a stratagem of the same kind, that Solomon gave proof of his inspired wisdom, when he used the FICTITIOUS threat of dividing the living child in order to discover the real mother.
XVI. The fifth case, which allows a stratagem to be practised, is that, where it may be the ONLY means of saving the life of an innocent person, of obtaining some object of equal importance, or of diverting another from the perpetration of some horrid design. The heathen poet has given a beautiful illustration of this in his praises of Hypermnestra, whose conduct he calls "a splendid stratagem, ennobling the virgin to all posterity."
XVII. It is evident that many writers of acknowledged wisdom, and sober judgment, have carried the point farther than has been done in this treatise, in allowing the use of false representations to an enemy. In cases, where public enemies are concerned, they maintain, that it is lawful to deviate from those strict rules of avowing and disclosing all our intentions, which they prescribe, on all other occasions. Such is the opinion of Plato and Xenophon among the Greeks, of Philo among the Jews, and Chrysostom among Christians. It may not perhaps be amiss to cite, in this place, the message sent by the men of Jabesh Gilead to the Ammonites, by whom they were besieged, and also that of the prophet Elisha, and at the same time to mention the conduct of Valerius Laevinus, who boasted of having killed Pyrrhus.
The third, the fourth and fifth observations above made, may be illustrated from what is said by Eustratus, Archbishop of Nice, "An able and upright counsellor is not obliged to disclose the whole truth: for there may be occasions, when it may be necessary for him to recommend the means of deceiving an enemy, or to employ some stratagem towards a friend, where it may turn to his advantage."
XVIII. What has been said of false speaking must be understood as applied to affirmative declarations, which can be prejudicial to no persons, but public enemies: it can by no means be taken to include promises. For promises confer upon the person, to whom they are made, a peculiar right to claim their full performance. And this is a rule, which must take place, even between public enemies; a rule to which existing hostilities are not allowed to form an exception. It is a maxim proper to be enforced in TACIT, as well as in EXPRESS agreements: as when a parley or conference is demanded, there is always an IMPLIED promise, that both sides shall attend it with perfect safety. But these are points reserved for the discussion of another part of this treatise.
XIX. It will be necessary to repeat an observation made before, with respect to oaths, both of the affirmative and promissory kind, where it was maintained that they exclude all exceptions, all mental reservations towards the person, to whom they are made, being regarded not merely as a solemn transaction with that individual, but as a steadfast appeal to God. Such an appeal to the supreme being demands the performance of an oath, even if it gave the individual no right to the same.
At the same time it was observed, that a sworn declaration is not like one of any other kind, where an application of terms different from their usual meaning may supply the speaker with an excuse for evading their import. But truth requires every declaration and promise to be made in terms, which it is supposed that every man of integrity and clear judgment will understand, spurning at the impious thought, that men may be deceived by oaths, as children are by toys and trifles.
XX. Some nations and individuals indeed have rejected the use of those stratagems, which even the law of nature allows to be employed as a means of self-defence against an enemy. But they did so, not from any opinion of their unlawfulness, but from a noble loftiness of mind, and from a confidence in their own strength. Aelian has preserved a saying of Pythagoras, "that there are two things, in which man approaches nearest to God, in always speaking the truth, and doing good to others." Aristotle, somewhere in his Ethics, calls speaking truth, the freedom of a great soul, and Plutarch says, that falsehood is the qualification of a slave. But an adherence to truth, in simplicity of heart, is not the only duty required of Christians, in this respect, they are commanded to abstain from all vain discourse, as having for their example him, in whose mouth there was found no guile.
XXI. With respect to the actions of men, there is another rule which may properly come under this head, and that is, the unlawfulness of urging or persuading any one to do an unlawful act. For instance, no subject has a right to lift his hand against his sovereign, to deliver up a town without public authority, or to despoil his neighbour of his goods. It would be unlawful then to encourage the subject of an enemy, as long as he continues his subject, to do any of these acts. For the person, who urges another to do a wicked act, makes himself a partner in his guilt. Nor can it be received as a just answer, that urging a subject to the perpetration of such a deed is nothing more than employing the lawful means of destroying an enemy. For though it may be necessary and just to destroy him, if possible, yet that is not the way, in which it should be done. Augustin has well observed, that it makes no difference whether any one should commit a crime himself, or employ another as his instrument.
But employing the spontaneous offers of a deserter's not contrary to the laws of war, and is a very different action from that of seducing a subject from his allegiance.