On the Law of War and Peace

De Jure Belli ac Pacis

by Hugo Grotius

Translated by A. C. Campbell
London, 1814

Book I

CHAPTER 1: On War and Right. 

CHAPTER 2: Inquiry Into the Lawfulness of War. 

CHAPTER 3: The Divison of War Into Public and Private and the Nature of 
Sovereign Power. 

Book II

CHAPTER 1: Defense of Person and Property. 

CHAPTER 2: The General Rights of Things. 

CHAPTER 3: On Moveable Property. 

CHAPTER 4: Title to Desert Lands by Occupancy, Possession, and 
Prescription. 

CHAPTER 5-8: [Omitted] 

CHAPTER 9: In What Cases Jurisdiction and Property Cease. 

CHAPTER 10: The Obligation Arising From Property. 

CHAPTER 11: On Promises 

CHAPTER 12: [Omitted] 

CHAPTER 13: On Oaths 

CHAPTER 14: [Omitted] 

CHAPTER 15: On treaties and on engagements Made by Delegates Exceeding 
their Power. 

CHAPTER 16: The interpretation of Treaties 

CHAPTER 17: On Damages Occasioned by Injury and the Obligation to Repair 
Them. 

CHAPTER 18: On the Right of Embassies. 

CHAPTER 19: On the Right of Burial 

CHAPTER 20: On Punishments. 

CHAPTER 21: On the Communication of Punishment. 

CHAPTER 22: On the Unjust Causes of War. 

CHAPTER 23: On Doubtful Causes 

CHAPTER 24: Precautions Against Rashly Engaging in War, Even Upon Just 
Grounds. 

CHAPTER 25: The Causes of Undertaking War for Others. 

Book III

CHAPTER 1: What is Lawful in War. 

CHAPTER 2: In What Manner the Law of Nations Renders the Property of 
Subjects Answerable for the Debts of Sovereigns. The Nature of Reprisals. 

CHAPTER 3: On Just or Solemn War According to the Law of Nations on 
Declarations of War. 

CHAPTER 4: On the Right of Killing an Enemy in Lawful War, and Committing 
Other Acts of Hostility. 

CHAPTER 5: On the Right to Lay Waste an Enemy's Country, and Carry off his 
Effects. 

CHAPTER 6: On the Acquisition of Territory and Property by Right of 
Conquest. 

CHAPTER 7: On the Right Over Prisoners of War. 

CHAPTER 8: On Empire Over the Conquered. 

CHAPTER 9: Of the Right of Postliminium. 

CHAPTER 10: [Omitted] 

CHAPTER 11: The Right of Killing Enemies, in Just War, to be Tempered With 
Moderation and Humanity 

CHAPTER 12: On Moderation in Despoiling an Enemy's Country. 

CHAPTER 13: On Moderation in Making Captures in War. 

CHAPTER 14: [Omitted] 

CHAPTER 15: On Moderation in Acquiring Dominion. 

CHAPTER 16: On Moderation with Respect to Things Excluded From the Right 
of Postliminium by the Law of Nations. 

CHAPTER 17: Respecting Those Who are Neutral in War. 

CHAPTER 18: [Omitted] 

CHAPTER 19: On Good Faith Between Enemies. 

CHAPTER 20: On the Public Faith, by Which War is Concluded; Comprising 
Treaties of Peace, and the Nature of Arbitration, Surrender Hostages, 
Pledges. 

CHAPTER 21: On Faith During the Continuance of War, on Truces, Safe-
Conducts, and the Redemption of Prisoners. 

CHAPTER 22: On the Faith on Those Invested With Subordinate Powers in War. 

CHAPTER 23: [Omitted] 

CHAPTER 24: On Tacit Faith. 

CHAPTER 25: Conclusion 

____________

              On the Law of War and Peace

                De Jure Belli ac Pacis

                    by Hugo Grotius

                        Book I

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. 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, polemos, commonly used to signify war, 
expresses in its original, an idea of multitude. The ancient Greeks 
likewise called it lye, which imports a DISUNION of minds; just as by the 
term dye, 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 be 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.

VII. [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 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 verse 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. From. 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 willful 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 con. sent 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. 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 
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, 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 St. Paul says, From. 
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, From. 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. 
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. 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 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 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. 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.

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 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 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. II. 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? 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.

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." I 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. From. 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, 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 form 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 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 St. Paul's explanation, it 
is an act binding upon the conscience, From. 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. [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 Rome, some of them inlisted 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, "f 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 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 
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 parncides, 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, if 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.

[Translator's Note: As Grotius has so fully established his argument, it 
is unnecessary to review his answer to further objections.]

CHAPTER 3: The Divison 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 the 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.

[Translator's Note: As the topics of the third section have been 
so fully stated in the second chapter, that section has been 
omitted, and the translation goes on from the second of the 
original to the fourth.]

IV. 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 offices; 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 justly 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. 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 he Galatians bad 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 he 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 hem 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. 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 right 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 him. self 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 HIPPOCRAT ET PLATONIS, the first power 
of the state.

VIII. And here is the proper place for refuting the opinion of 
those, who maintain that, every where 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, I 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 his 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 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 
Herodutus, 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 
he 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 dependen s, 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 cars; 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 no the nature of a 
right, although it would undoubtedly abridge its dignity, and 
diminish its spelndour.

[Translator's note: The translation proceeds from hence to the 
second book of the original, which seems to follow this part 
without any material break in the chain of argument: the 
intermediate sections relating to instances in the Roman Republic, 
which do not directly apply to the practice of modern 
governments.]

                      End of Book I

Book II

CHAPTER 1: Defense 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 homicides 
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 he case when Ascanius 
wounded the stag, which gave rise to the war between Turnus and Aeneas. 
But though here is an actual distinction between the justifiable causes, 
he 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 as put into the mouth of the Rhodians, calls beginnings. 
he Rhodian deputies said, "You Romans profess to believe that your wars 
are successful, because they are just: or do you boast so much of their 
victorious issue, as of he just principles, upon which you make them." In 
which sense Aelian styles them archaiopol and Diodorusiculus, in speaking 
of the war of the Lacedaemonians against the Eleans gives them the name of 
prophaneis and 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 
discussion; 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 arm; 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 per. 
sons. 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 tool, 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 them. 
selves 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 willfully 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, or 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.

[Translator's note: The tenth section is omitted in the translation, as 
the subject of Christian forbearance of which it treats, has already been 
discussed in the preceding book.]

XI. 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 it is 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 en. dangering 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.

[Translator's note: Sections XIII. XIV. and XV. of the original are 
omitted in the translation.]

XVI. 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 clone 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 say, that the justice of the 
cause changed sides and passed from the Lacedaemonians to the Thebans.


CHAPTER 2: 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. 

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. 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 overall 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 what. ever 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 subtlety. 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 subtlety. In the sixth oration of 
Dion Prusaeensis it is said, "the descendants have degenerated from the 
innocence of primitive times, contriving many subtle 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 primeval state of holding all things in 
common, attaching the ideas of property, first to moveable and next to 
immovable 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 eaves, 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 ease 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 allotted 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 foreigner, 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 chance 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, when. ever 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.

XI. There is another right, which is that of making use of the property of 
another, where such use is attended with no prejudice to the owner. For 
why, says Cicero, should not any one; when he can do it without injury to 
himself, allow another to share with him those advantages, which are 
useful to the receiver, and no way detrimental to the giver? Seneca 
therefore observes, that it is no favour to allow another to light his 
fire from your flame. And in the 7th book of Plutarch's Symposiacs, we 
find an observation, that when we have provisions more than sufficient for 
our own consumption it is wicked to destroy the remainder; or after 
supplying our own wants, to obstruct or destroy the springs of water; or 
after having finished our voyage, not to leave for other passengers the 
sea-marks, that have enabled us to steer our course.

XII. Upon the principles already established, a river, as such, is the 
property of that people, or of the sovereign of that people, through whose 
territories it flows. He may form quays, and buttresses upon that river, 
and to him all the produce of it belongs. But the same river, as a running 
water, still remains common to all to draw or drink it. Ovid introduces 
Latona thus addressing the Lydians, "Why do you refuse water, the use of 
which is common?" where he calls water a public gift that is common to 
men, taking the word public in a more general sense than as applied to any 
PEOPLE, a meaning in which some things are said to be public by the law of 
nations. And in the same sense Virgil has asserted water to be free and 
open to all men.

XIII. It is upon the same foundation of common right, that a free passage 
through countries, rivers, or over any part of the sea, which belongs to 
some particular people, ought to be allowed to those, who require it for 
the necessary occasions of life; whether those occasions be in quest of 
settlements, after being driven from their own country, or to trade with a 
remote nation, or to recover by just war their lost possessions. The same 
reason prevails here as in the cases above named. Because property was 
originally introduced with a reservation of that use, which might be of 
general benefit, and not prejudicial to the interest of the owner: an 
intention evidently entertained by those, who first devised the separation 
of the bounteous gifts of the creator into private possessions. There is a 
remarkable instance of this in the Mosaic history, when the leader of the 
children of Israel required a free passage for that people, promising to 
the King of Edom, and to the King of the Amorites, that he would go by the 
highway, without setting a foot upon the soil of private possessions, and 
that the people should pay the price of everything, which they might have 
occasion to use. Upon these equitable terms being rejected, Moses was 
justified in making war upon the Amorites. Because, says Augustin, an 
inoffensive passage, a right interwoven with the very frame of human 
society, was refused. The Greeks under the command of Clearchus, said, "we 
are upon the way to our home, if no one interrupt us; but every attempt to 
molest us, we are, with the assistance of heaven, determined to avenge."

Not unlike this answer of the soldiers under Clearchus is the question put 
to the different nations of Thrace by Agesilaus, who desired to know 
whether they wished him to pass through their country as a friend, or as 
an enemy. When the Boeotians hesitated upon some propositions made to them 
by Lysander, he asked them whether they intended that he should pass with 
erected or inclined spears, meaning by the expression in a hostile or a 
quiet manner. We are informed by Tacitus, that the Batavians, as soon as 
they came near the camp at Bonn, sent a message to Herennius Gallus, 
importing that "they had no hostile design; that if not obstructed, they 
would march in a peaceable manner; but if they met with op. position they 
would cut their way sword in hand." When Cimon in carrying supplies to the 
Lacedaemonians, had marched with his troops through some part of the 
Corinthian district, the Corinthians expostulated upon his conduct as a 
violation of their territory, because he had done it without asking their 
leave, at the same time observing, that no one knocks at another man's 
door, or presumes to enter the house without obtaining the master's leave. 
To whom he replied, you never knocked at the gates of Cleone and Megara, 
but broke them down, believing, I suppose, that no right ought to 
withstand the force of the mighty.

Now between these two extremes there is a middle course, requiring a free 
passage to be first asked; the refusal of which will justify the 
application of force. Thus Agesilaus in his return from Asia when he had 
asked a passage of the King of the Macedonians, who answered that he would 
consider of it, said, you may consider, if you please, but we shall pass 
in the mean time,

The fears, which any power entertains from a multitude in arms passing 
through its territories, do not form such an exception as can do away the 
rule already laid down. For it is not proper or reasonable that the fears 
of one party should destroy the rights of another. Especially, as 
necessary precautions and securities may be used, such as those, for 
instance, of requiring that the troops shall pass without arms, or in 
small bodies; a promise which the Agrippinians made to the Germans, and, 
as we are informed by Strabo, the practice still prevails in the country 
of the Eleans. Another security may be found in providing garrisons at the 
expense of the party, to whom the passage is granted; or in giving 
hostages; the condition, which Seleucus demanded of Demetrius, for 
permitting him to remain within his territories. Nor is the fear of 
offending that power which is the object of attack, a sufficient pretext 
for refusing the passage of the troops to the state that is engaged in a 
just war. Nor is it a proper reason to assign for a refusal, to say that 
another passage may be found; as every other power might allege the same, 
and by this means the right of passage would be entirely defeated The 
request of a passage therefore, by the nearest and most commodious way, 
without doing injury and mischief, is a sufficient ground upon which it 
should be granted. It alters the case entirely, if the party making the 
request is engaged in unjust war, and is marching with the troops of a 
power hostile to the sovereign of that territory; for in this instance, a 
passage may be refused. For the sovereign has a right to attack that power 
in his own territory, and to oppose its march.

Now a free passage ought to be allowed not only to persons, but to 
merchandise. For no power has a right to prevent one nation from trading 
with another at a remote distance; a permission which for the interest of 
society should be maintained. Nor can it be said that any one is injured 
by it. For though he may be thereby deprived of an exclusive gain, yet the 
loss of what is not his due, as a MATTER OF RIGHT, can never be considered 
as a damage or the violation of a claim.

XIV. But it will form a subject of inquiry, whether the sovereign of the 
country has a right to impose duties on goods carried by land, or upon a 
river or upon any part of the sea, which may form an accession to his 
dominions. It would undoubtedly be unjust for any burdens foreign to the 
nature of trade to be imposed upon such goods. Thus strangers merely 
passing through a country would have no right to pay a poll-tax, imposed 
to support the exigencies of the state. But if the sovereign incurs 
expence by providing security and protection to trade, he has a right to 
reimburse himself by the imposition of moderate and reasonable duties. It 
is the REASONABLENESS of them, which constitutes the justice of customs 
and taxes, Thus Solomon received tolls for horses and linen that passed 
over the Isthmus of Syria. Pliny, speaking of frankincense, observes that 
as it could not be transported but by the Gebanites, a duty upon it was 
paid to their king. In the same manner, as Strabo informs us in his fourth 
book, the people of Marseilles derived great wealth from the canal which 
Marius had made from the Rhone to the sea, by exacting tribute of all that 
sailed upon it to and fro with vessels. In the eighth book of the same 
writer, we are told that the Corinthians imposed a duty upon all goods, 
which, to avoid the dangerous passage of Cape Malea, were transported by 
land from sea to sea. The Romans too made the passage of the Rhine a 
source of tribute, and Seneca relates that a toll was paid for going over 
bridges. The works of legal writers abound in instances of this kind. But 
it frequently happens that extortion is practised in these matters, which 
Strabo forms into a subject of complaint against chiefs of the Arabian 
tribes, concluding that it would be unlikely for men of that lawless kind 
to impose upon the goods of merchants any duties that were not oppressive.

XV. Those going with merchandise or only passing through a country, ought 
to be allowed to reside there for a time, if the recovery of health, or 
any other just cause should render such residence necessary. For these may 
be reckoned among the innocent uses of our right. Thus Ilioneus in Virgil 
calls heaven to witness the injustice of the Africans in driving him and 
his shipwrecked companions from the hospitable use of the shore, and we 
are informed by Plutarch in his life of Pericles that all the Grecians 
approved of the complaint, which the Megarensians made against the 
Athenians, who had prohibited them from setting foot upon the soil of 
their territories, or carrying a vessel into their harbours. So the 
Lacedaemonians regarded this as the most sufficient grounds to justify the 
war.

From hence results the right of erecting a temporary hut, upon the shore, 
although, for instance, the same shore is allowed to be the property of 
the people of that place. For what Pomponius says of its being necessary 
to obtain the Praetor's leave, before a building can be raised upon the 
public shore, relates to structures of a permanent kind, when the massy 
piles of stone, as the Poet says, encroach upon the sea, and the 
affrighted fish feel their waves contracted.

XVI. Nor ought a permanent residence to be refused to foreigners, who, 
driven from their own country, seek a place of refuge. But then it is only 
upon condition that they submit to the established laws of the place, and 
avoid every occasion of exciting tumult and sedition. A reasonable rule, 
which the divine poet has observed, when he introduces Aeneas making an 
offer that Latinus, who had become his father-in-law, should retain all 
military and civil power. And in Dionysius of Halicarnassus, Latinus 
admits the proposal of Aeneas to be just; as he came through necessity in 
quest of a settlement. To drive away refugees, says Strabo, from 
Eratosthenes, is acting like barbarians; and a conduct like this in the 
Spartans was also condemned. St. Ambrose passes the same sentence of 
condemnation upon those powers, who refuse all admission to strangers. Yet 
settlers of this description have no right to demand a share in the 
government. A proposal of this kind made by the Minyae to the 
Lacedaemonians, who had received them, is very properly considered by 
Herodotus as insolent, and unreasonable.

XVII. It is indeed but an act of common humanity in a sovereign to allow 
strangers, at their request, liberty to fix their residence upon any waste 
or barren lands within his dominions, still reserving to himself all the 
rights of sovereignty, Seven hundred acres of barren and uncultivated 
land, as Servius observes, were given by the native Latins to the Trojans. 
Dion Prusaeensis, in his seventh oration, says, that they commit no crime 
of trespass, who take upon them to cultivate waste lands. The refusal of 
this privilege made the Ansibarians exclaim, "the firmament over our heads 
is the mansion of the deity: the earth was given to man; and what remains 
unoccupied, lies in common to all." Yet that complaint did not apply 
exactly to their case. For those lands could not be called unoccupied, as 
they served to supply the Roman army with forage for their cattle, which 
certainly furnished the Romans with a just pretext for refusing to grant 
their request. And with no less propriety the Romans asked the Galli 
Senones if it were right to demand lands already possessed, and to 
threaten to take them by force.

XVIII. Since the COMMON RIGHT TO THINGS has been established, the COMMON 
RIGHT TO ACTIONS follows next in order, and this right is either absolute, 
or established by the supposition of a general agreement amongst mankind. 
Now all men have absolutely a right to do such or such acts as are 
necessary to provide whatever is essential to the existence or convenience 
of life. CONVENIENCE is included in this right; for there is no occasion 
here to imagine an existence of the same necessity as was requisite to 
authorize the seizing of another's property. Because the point of 
discussion here is not whether any act is done AGAINST THE WILL of an 
owner, but whether we acquire what is necessary for our wants ACCORDING TO 
THE TERMS to which the owner has agreed. Supposing there is nothing 
illegal in the contract, nor any willful intention on his part to make it 
null and void. For any impediment created by the owner in such trans. 
actions, is repugnant to the very principles of natural justice, which 
suppose an equality of upright dealing to subsist in both the parties 
concerned. St. Ambrose calls a fraudulent conduct of that kind, an attempt 
to deprive men of their share in the goods of a common parent, to withhold 
the productions of nature which are the birthright of all, and to destroy 
that commerce which is the very support of life. For we are not treating 
of superfluities and luxuries, but of those things, which are essential to 
life, as physic, food and cloathing.

XIX. From what has already been proved, it follows that all men have a 
right to purchase the necessaries of life at a reasonable price, except 
the owners want them for their own use. Thus in a great scarcity of corn, 
there would be no injustice in their refusing to sell. And yet in such a 
time of necessity foreigners, who have been once admitted, cannot be 
driven away; but as St. Ambrose shews in the passage already quoted, a 
common evil must be borne by all alike.

XX. Now owners have not the same right in the sale of their goods: for 
others are at full liberty to determine whether they will purchase certain 
articles or not. The ancient Belgians, for instance, allowed not wines and 
other foreign merchandise to be imported among them. The same rule, we are 
informed by Strabo, was practised by the Nabathaean Arabians.

XXI. It is supposed to be generally agreed among man. kind, that the 
privileges, which any nation grants promiscuously to the subjects of 
foreign powers or countries, are the common right of all. Consequently the 
exclusion of any one people from these rights would be considered as an 
injury to that people. Thus, wherever foreigners in general are allowed to 
hunt, to fish, to shoot, to gather pearls, to succeed to property by 
testament, to sell commodities, or to form intermarriages, the same 
privileges cannot be refused to any particular people, unless they have by 
misconduct forfeited their right. On which account the tribe of Benjamin 
was debarred from intermarrying with other tribes.

XXII. It has sometimes been a subject of inquiry whether one nation may 
lawfully agree with another to exclude all nations but herself from 
purchasing certain productions, which are the peculiar growth of her soil. 
An agreement which, it is evident, may be lawfully made; if the purchaser 
intends to supply other nations with those articles at a reasonable price. 
For it is a matter of indifference to other nations OF WHOM they purchase, 
provided they can have a reasonable supply for their wants. Nor is there 
any thing unlawful in allowing one people an advantage over another in 
this respect, particularly for a nation who has taken another under her 
protection and incurred expence on that account. Now such a monopoly, 
under the circumstances already mentioned, is no way repugnant to the law 
of nature, though it may be sometimes for the interest of the community to 
prohibit it by express laws.


CHAPTER 3: On Moveable Property

Specification of moveable property — The difference between sovereignty 
and property — The right to movables by occupancy may be superseded by law 
Rivers may be occupied — Right to seas — On the treaties binding a people 
not to navigate the seas beyond certain bounds — Inquiry into the nature 
of the change which a river, changing its course, makes in the adjoining 
territories — What determination is to be made, where the river has 
entirely changed its channel — Sometimes a whole river may accrue to a 
territory — Things deserted belong to the first occupier.

I. AMONG the means of acquiring property, Paulus the Lawyer reckons one, 
which seems most natural, and that is, if by the ingenuity of art, or the 
exertions of labour we have given to any production its existence among 
the works of man. Now as nothing can naturally be produced, except from 
some materials before in existence, it follows that, if those materials 
were our own, the possession of them under any new shape, or commodity is 
only a CONTINUATION of our former property; if they belonged to no one, 
our possession comes under the class of title by occupancy: but if they 
were another's, no improvement of ours can by the law of nature give us a 
right of property therein.

II. Among those things, which belong to no one, there are two that may 
become the subjects of occupancy; and those are jurisdiction, or 
sovereignty and property. For jurisdiction and property are distinct from 
each other in their effects. The objects over which sovereignty may be 
exercised are of a twofold description, embracing both persons and things. 
But this is not the case with property, the right of which can extend only 
to the irrational and inanimate part of the creation. Though it might 
originally, for the most part, be the same act by which sovereignty and 
property were acquired, yet they are in their nature distinct. 
SOVEREIGNTY, says Seneca, belongs to PRINCES and PROPERTY to INDIVIDUALS. 
The sovereignty therefore, not only over subjects at home, but over those 
in the Prince's foreign dominions passes with the hereditary descent of 
the crown.

III. In places, where sovereignty is already established, the right to 
movables by occupancy, and indeed every, original right must give way to 
the superior sanction of law. And what any man before held by any such 
right, he would afterwards be considered as holding by the laws of the 
country. For those original rights were PERMISSIONS of the law of nature, 
and not commands that were to be PERPETUALLY enforced. For the continued 
establishment of such a right as that by prior occupancy, so far from 
promoting the welfare, would operate to the very destruction of human 
society. Although it may be said by way of objection, that the law of 
nations seems to admit of such a right, yet we may answer that if such a 
rule either is or has been commonly received in any part of the world, it 
has not the force of a general c in. pact binding upon different 
independent nations; but may be considered as one branch of the civil law 
of many nations, which any state has a right to continue, or repeal 
according to its own pleasure or discretion. There are many other things 
indeed which legal writers, in treating of the division and acquisition of 
property, consider as forming a part of the law of nations.

IV. Rivers may be occupied by a country, not including the stream above, 
nor that below its own territories. But the waters which wash its lands 
form an inseparable part of the current, making its way to the main sea. 
For to constitute the right to a property in its channel, it is sufficient 
that its sides, inclosed by the banks of that territory form its greatest 
part, and that the river itself compared with the land, makes but a small 
portion.

V. In the same manner, the sea appears capable of being made a property by 
the power possessed of the shore on both sides of it; although beyond 
those limits it may spread to a wide extent, which is the case with a bay, 
and with a straight beyond each of its outlets into the main sea or ocean. 
But this right of property can never take place where the sea is of such a 
magnitude, as to surpass all comparison with that portion of the land 
which it washes. And the right, which one people or prince possesses, may 
also be shared by a great number of states, among whose respective 
territories the sea flows. Thus rivers separating two powers may be 
occupied by both, to each of whom their use and advantages may be equal.

VI. Instances may be found of treaties by which one nation binds itself to 
another, not to navigate particular seas beyond certain bounds. Thus 
between the Egyptians and the Princes inhabiting the borders of the Red 
Sea, it was agreed, in ancient times, that the former should not enter 
that sea with any ship of war, nor with more than one merchant ship. In 
the same manner, in the time of Cimon, the Persians were bound by a 
treaty, made with the Athenians, not to sail with any ship of war between 
the Cyanean rocks and the Chelidonian islands; a prohibition, which, after 
the battle of Salamis, restricted any Persian armed vessel from sailing 
between Phaselis and the above named rocks. In the one year's truce of the 
Peloponnesian war, the Lacedaemonians were prohibited from sailing with 
any ships of war whatever, or indeed with any other ships of more than 
twenty tons burden. And in the first treaty, which the Romans, immediately 
after the expulsion of their kings, made with the Carthaginians, it was 
stipulated that neither the Romans, nor their allies should sail beyond 
the promontory of Pulchrum, except they were driven thither by stress of 
weather, or to avoid being captured by an enemy. But in either case they 
were to take nothing more than necessaries, and to depart before the 
expiration of five days. And in the second treaty, the Romans were 
prohibited from committing any acts of piracy, or even from trading beyond 
the promontory of Pulchrum, Massia and Tarscius.

In a treaty of peace between the Illyrians and Romans, the latter required 
that they should not pass beyond the Lissus with more than two frigates, 
and those unarmed. In the peace with Antiochus, he was bound not to sail 
within the capes of Calyeadnius and Sarpedon, except with ships carrying 
tribute, ambassadors, or hostages. Now the instances alluded to do not 
prove the actual occupancy of the sea, or the right of navigation. For it 
may happen that both individuals and nations may grant as a matter of 
favour or compact, not only what they have a competent right to dispose 
of, but that which is the common right of all men as well as of 
themselves. When this happens, we may say as Ulpian did on a like 
occasion, where an estate had been sold with a reservation, that the 
purchaser should not fish for Tunny to the prejudice of the seller. He 
observed that the sea could not be rendered subject to a service, but 
still the purchaser and those who succeeded to his possession, were bound 
in honour to observe that part of the contract.

VII. Whenever a river has changed its course, disputes have arisen between 
neighboring states to decide whether such an alteration creates any change 
in the adjoining territories, and to whom any addition of land occasioned 
by that change accrues. Disputes which must be settled according to the 
nature and manner of such acquisition. Writers, who have treated of the 
division of land, have described it as of a threefold nature: one kind 
they name DIVIDED and ASSIGNED land, which Frontinus the Lawyer calls 
LIMITED, because it is marked out by artificial boundaries. By land 
ASSIGNED, is meant that which has been appropriated to a whole community, 
comprehending a certain number of families; a hundred for instance: from 
whence it has derived that name. And those portions are called hundreds. 
There is another division called ARCIFINIUM, which is applied when the 
land is defended against an enemy by the natural boundaries of rivers or 
mountains. These lands Aggenus Urbicus calls OCCUPATORY, being such as 
have been occupied either by reason of their being vacant, or by the power 
of conquest. In the two first kinds of lands, because their extent and 
bounds are fixed and determined, though a river should change its course, 
it occasions no change of territory, and what is added by allusion will 
belong to the former occupant.

In arcifinious lands, where the bounds are formed by nature, any gradual 
change in the course of the river makes a change also in the boundaries of 
territory, and whatever accession is given by the river to one side, it 
will belong to the possessor of the land on that side. Because the 
respective nations are supposed originally to have taken possession of 
those lands, with an intention of making the MIDDLE of that river, as a 
natural boundary, the line of separation between them. Thus Tacitus in 
speaking of the Usipians and Tencterians, who border on the Cattians, 
says, "their territory lies on the banks of the Rhine, where that river, 
still flowing in one regular channel, forms a sufficient boundary."

VIII. Decisions like those above can only take place in instances, where 
the river has not altered its channel. For a river, dividing territories, 
is not to be considered barely as so much water, but as water flowing in a 
PARTICULAR CHANNEL, and inclosed WITHIN CERTAIN BANKS. For which reason an 
addition, a decrease, or such a change of small portions, as leaves the 
ancient appearance, upon the whole, nearly the same, allows us to consider 
the river as still the same. But if the whole face of the river is 
changed, the case will be entirely altered. For as a river may be entirely 
destroyed by the erection of dams upon the higher parts of its stream, or 
by digging canals, which carry off its waters in another direction: so by 
the desertion of its old channel, and breaking out for itself another 
course, it will not continue to be same river it was before, but will be 
completely a new one. In the same manner if a river has been dried up, the 
middle of its channel will remain as the boundary between neighbouring 
states, who in taking possession of the neighbouring territory originally 
intended the middle of such a river to be the line of separation, and 
under all changes to preserve the same as a permanent limit. But in 
doubtful cases, the territories bordering upon a river ought to be 
considered as arcifinious, because nothing can be a more apt mark of 
distinction than those impassable bounds assigned by nature. It very 
seldom indeed happens, that the artificial or civil admeasurements of 
territory can be regulated by such natural bounds, as they are, in 
general, the effect of original acquisition, or have been ceded by treaty.

IX. Although in doubtful cases, it has been said that the territories on 
each side of a river are determined by the middle of the channel; yet it 
may happen, and has happened, that the sole right to a river may belong to 
the territories on one side of it. Because that on the opposite side was 
of later occupancy, and subsequent to the possession of that river by the 
other power: or because this sole right may have been so settled by 
treaty.

X. It is not unworthy of observation that things which have had an owner, 
but have ceased to have one, become subject to the right by original 
acquisition. They are supposed to have been abandoned from the want of an 
owner, and therefore have returned to the original state of common stock. 
But at the same time it is proper to observe, that some times the original 
acquisition may have been made by a people or their sovereign, in such a 
manner as to give them or him not only those pre-eminent rights which 
constitute prerogative, but also the full title of property.

And this property again may be divided into smaller grants, and those 
again subdivided into other portions, to be held as dependent upon the 
original grantor, the Sovereign, or the Lord. Though the land may not be 
held by base service, or vassalage, yet it is possessed by some 
conditional tenure. For things are occupied by many kinds of right; among 
which may be reckoned the right of a person who expects property to be 
left to him under the condition of a trust. Seneca says, that an owner's 
being debarred from selling his lands, committing waste upon them, or even 
making improvements, is not to be taken as a proof that the property is 
not his. For that is a man's own, which he holds under any certain 
conditions. Since then property distributed in the manner above named is 
held of the sovereign, or of some inter. mediate Lord, who himself is 
tenant of the sovereign, it follows that any thing which wants an owner 
does not become the property of him, who can first seize it, but reverts 
to the state or to the sovereign.


CHAPTER 4: Title to Desert Lands by Occupancy, Possession, and 
Prescription.

Why Usucaption or Prescription cannot subsist between independent States, 
and Sovereigns — Long possession alleged as a ground of right — Inquiry 
into the intentions of men, which are not to be judged of by words alone — 
Intention to be judged of by acts — Intentions also to be judged of by 
omissions — How far length of time, silence, and non-possession, may 
confirm the conjecture of an abandoned right — Time immemorial generally 
thought to bar any claim — What constitutes time immemorial — Objections 
to a presumed desertion of property, considered without any conjecture, 
time immemorial appears to transfer and constitute a property — Inquiry 
whether persons yet unborn may thus be deprived of their right — Rules of 
civil law respecting Usucaption and Prescription as applied to the case of 
Sovereign Princes, explained.

I. A GREAT difficulty arises here respecting the right to property by 
uninterrupted possession for any certain time. For though time is the 
great agent, by whose motion all legal concerns and rights may be measured 
and determined, yet it has no effectual power of itself to create an 
express title to any property. Now those rights were introduced by the 
civil law; and it is not their long continuance, but the express 
provisions of the municipal law, which gives them their validity. They are 
of no force therefore, in the opinion of Vasquez, between two independent 
nations or sovereigns, or between a free nation and a sovereign: between a 
sovereign and an individual who is not his subject, or between two 
subjects belonging to different kings or nations. Which indeed seems true; 
and is actually the case; for such points relating to persons and things, 
are not left to the law of nature, but are settled by the respective laws 
of each country. As the -unqualified admission of this principle would 
lead to great inconvenience, and prevent the disputes of kings and nations 
respecting the bounds of territory from ever being adjusted; in order to 
eradicate the seeds of perpetual warfare and confusion, so repugnant to 
the interests and feelings of every people; the settlement of such 
boundaries is not left to the claims of prescriptive right; but the 
territories of each contending party are, in general, expressly defined by 
certain treaties.

II. To disturb any one in the actual and long possession of territory, has 
in all ages been considered as repugnant to the general interests and 
feelings of man. kind. For we find in holy writ, that when the King of the 
Ammonites demanded the lands situated between the rivers Arnon and Jabok, 
and those extending from the deserts of Arabia to the Jordan, Jepthah 
opposed his pretentions by proving his own possession of the same for 
three hundred years, and asked why he and his ancestors had for so long a 
period neglected to make their claim. And the Lacedaemonians, we are 
informed by Isocrates, laid it down for a certain rule admitted among all 
nations, that the right to public territory as well as to private property 
was so firmly established by length of time, that it could not be 
disturbed; and upon this ground they rejected the claim of those who 
demanded the restoration of Messena. 

Resting upon a right like this, Philip the Second was induced to declare 
to Titus Quintius, "that he would restore the dominions which he had 
subdued himself, but would upon no consideration give up the possessions 
which he had derived from his ancestors by a just and hereditary title. 
Sulpitius, speaking against Antiochus, proved how unjust it was in him to 
pretend, that because the Greek Nations in Asia had once been under the 
subjection of his forefathers, he had a right to revive those claims, and 
to reduce them again to a state of servitude. And upon this subject two 
historians, Tacitus and Diodorus may be referred to; the former of whom 
calls such obsolete pretentions, empty talking, and the latter treats them 
as idle tales and fables. With these opinions Cicero, in his 2nd book of 
Offices, agrees, asking "what justice there can be in depriving an owner 
of the land, which he has for many ages quietly possessed?"

III. Can it be said, in order to justify the disturbance of long enjoyed 
possessions, that the rightful owner INTENDED to assert his claim, when he 
never manifested such intention by any outward visible act? The effect of 
right which depends upon a man's intentions can never follow from a bare 
conjecture of his will, unless he has declared and proved it by some 
express and visible act. For actions being the only evidence of 
intentions, intentions can never of themselves alone without such acts be 
the object of human laws. No conjectures indeed respecting the acts of the 
mind can be reduced to mathematical certainty, but only to the evidence of 
probability at the utmost. For men by their words may express intentions 
different from their real ones, and by their acts counterfeit intentions 
which they have not. The nature of human society, however, requires that 
all acts of the mind, when sufficiently indicated, should be followed by 
their due effects. Therefore the intention, which has been sufficiently 
indicated, is taken for granted against him who gave such indication.

IV. But to proceed to proofs derived from actions. A thing is understood 
to be abandoned, when it is cast away; except it be under particular 
circumstances, as throwing goods overboard in a storm to lighten a ship, 
where the owner is not supposed to have abandoned all intention of 
recovery, should it ever be in his power. Again, by giving up or canceling 
a promissory note, a debt is deemed to be discharged. Paulus the Lawyer, 
says, a right to property may be renounced not only by words, but also by 
actions, or any other indication of the will. Thus, if an owner knowingly 
make a contract with any one who is in possession, treating him as if he 
were the rightful proprietor, he is naturally supposed to have 
relinquished his own pretensions. Nor is there any reason, why the same 
rule may not take place between sovereign princes, and independent states, 
as between individuals. In the same manner, a Lord by granting certain 
privileges to his Vassal, which he could not legally enjoy without a 
release from his former obligations, was supposed by such act to have 
given him his freedom. A power derived not from the civil law only, but 
from the law of nature, which allows every man to relinquish what is his 
own, and from a natural presumption that a person designed to do the act 
which he has given manifest proofs of his intention to do. In this sense, 
Ulpian may be rightly understood, where he says, that ACCEPTILATION or the 
verbal discharge of a debt is founded upon the law of nations.

V. Even omissions, taking all proper circumstances into consideration, 
come under the cognizance of the law. Thus the person, who knowing of an 
act, and being present at the commission of it, passes it over in silence, 
seems to give his consent to it; this was admitted by the Mosaic Law. 
Unless indeed it can be shewn that the same person was hindered from 
speaking either by fear or some other pressing circumstance. Thus a thing 
is accounted as lost when all hope of recovering it is given up; as for 
instance, if a tame animal, which was in our possession, be seized and 
carried off by a wild beast Goods too lost by shipwreck, Ulpian says, 
cease to be considered as our own, not immediately, but when they are lost 
beyond all possibility of being reclaimed, and when no proofs of the 
owner's intention to reclaim them can be discovered.

Now the case is altered, if persons were sent to inquire after the lost 
goods, or property, and a reward was promised to the finder. But if a 
person knows his property to be in the possession of another, and allows 
it to remain so for a length of time, without asserting his claim, unless 
there appear sufficient reasons for his silence, he is construed to have 
entirely abandoned all pretentious to the same. And to the same purpose he 
has said else. where, that a house is looked upon to be abandoned on 
account of the long silence of the proprietor.

The Emperor Antoninus Pius, in one of his rescripts, said there was but 
little justice in claiming interest upon money after a long period; for 
the length of time elapsed was an indication that the debtor had been 
excused from payment, from some motive of kindness.

There appears something similar to this in the nature of custom. For apart 
from the authority of civil laws, which regulate the time and manner of 
custom, and its introduction, it may arise from the indulgence of a 
sovereign to a conquered people. But the length of time from which custom 
derives the force of right, is not defined, but left to the arbitrary 
decision of what is sufficient to indicate general consent. But for 
silence to be taken as a valid presumption that property is deserted, two 
things are requisite: it must be a silence with a knowledge of the fact, 
and with a perfect freedom of will in the person concerned. For a silence 
founded in ignorance can have no weight; and where any other reason 
appears, the presumption of free consent must fail.

VI. Although the two requisites already named maybe produced, yet other 
reasons have their weight; among which length of time is not the least 
important. For in the first place, it can scarcely happen, that for a 
great length of time a thing belonging to any one should not some way or 
other come to his knowledge, as time might supply many opportunities. Even 
if the civil law did not interpose to bar remote pretensions, the very 
nature of things would shew the reasonableness of a shorter period of 
limitation being allowed to present than to absent claimants. If 
impressions of fear were pleaded by any one in excuse, yet their influence 
would not be of perpetual duration, and length of time would unfold 
various means of security against such fears, either from resources within 
himself, or from the assistance of others. Escaping beyond the reach of 
him he dreaded, he might protest against his oppression, by appealing to 
proper judges and arbitrators.

VII. Now as time immemorial, considered in a moral light, seems to have no 
bounds, silence for such a length of time appears sufficient to establish 
the presumption that all claim to a thing is abandoned, unless the 
strongest proofs to the contrary can be produced. The most able Lawyers 
have properly observed, that time according to the memory of man is not an 
hundred years, though probably it may not fall far short of that space. 
For a hundred years are the term beyond which human existence seldom 
reaches; a space, which in general completes three ages or generations of 
men. The Romans made this objection to Antiochus, that he claimed cities, 
which neither he himself, his father, nor his grandfather had ever 
possessed.

VIII. From the natural affection which all men have for themselves, and 
their property, an objection may be taken against the presumption of any 
one's abandoning a thing which belongs to him, and consequently negative 
acts, even though confirmed by a long period of time, are not sufficient 
to establish the above named conjecture.

Now considering the great importance deservedly attached to the settlement 
of CROWNS, all conjectures favourable to the possessors ought to be 
allowed. For if Aratus of Sicyon thought it a hard case, that PRIVATE 
possessions of fifty years' standing should be disturbed, how much 
weightier is that maxim of Augustus, that it is the character of a good 
man and a good subject to wish for no change in the present government, 
and, IN THE WORDS, WHICH THUCYDIDES HAS ASSIGNED TO ALCIBIADES, to support 
the constitution, under which he has been born? But if no such rules in 
favour of possession could be adduced, yet a more weighty objection might 
be found against the presumption, drawn from the inclination of every one 
to preserve his own right, which is the improbability of one man's 
allowing another to usurp his property for any length of time, without 
declaring and asserting his own right.

IX. Perhaps it may reasonably be said, that this matter does not rest upon 
presumption only, but that it is a rule, introduced by the voluntary law 
of Nations, that uninterrupted possession, against which no claim has been 
asserted, will entirely transfer such property to the actual possessor. 
For it is most likely that all nations by consent gave their sanction to 
such a practice, as conducive to their common peace. The term 
uninterrupted possession therefore has been very properly used to signify, 
as Sulpitius says in Livy, "that which has been held by one uniform tenour 
of right, without intermission." Or as the same author, in another place, 
calls it, I perpetual possession, that has never been called in question." 
For a transitory possession creates no title, And it was this exception 
which the Numidians urged against the Carthaginians, alleging that as 
opportunity offered, sometimes the Kings of the Numidians had appropriated 
to themselves the disputed possessions, which had always remained in the 
hands of the stronger party.

X. But here another question, and that of considerable difficulty, arises, 
which is, to decide, whether, by this desertion, persons yet unborn may be 
deprived of their rights. If we maintain that they MAY NOT, the rule 
already established would be of no avail towards settling the tranquillity 
of kingdoms, and security of property. For in most things some thing is 
due to the interests of posterity. But if we affirm that they MAY, it then 
seems wonderful that silence should prejudice the rights of those, who 
were unable to speak, before they had any existence, and that the act of 
OTHERS should operate to their injury. To clear up this point, we must 
observe that no rights can belong to a person before he has any existence, 
as, in the language of the schools, there can be no accident without a 
substance. Wherefore if a Prince, from urgent motives of policy, and for 
the advantage of his own native dominions, and subjects, should decline to 
accept an additional sovereignty, or for the same reasons, should 
relinquish that, which he had al. ready accepted, he would not be charged 
with injuring his heirs and successors, then unborn, who could have no 
rights before they had a natural existence. 

Now as a sovereign may EXPRESSLY declare a change of his will respecting 
such dominions, so that change may. in certain cases, be implied without 
such declaration.

In consequence of such a change either expressed or implied, before the 
rights of heirs and successors can be supposed to have any existence, the 
possession may be considered as entirely abandoned. The case here has been 
considered according to the LAW OF NATURE: for the civil law, among other 
fictions, introduced that of the law's personating those, who are not yet 
in being, and so preventing any occupancy from taking place to their 
prejudice; a regulation of the law established upon no slight grounds in 
order to preserve estates in families, although every means of 
PERPETUATING property to individuals, which prevents its transfer from 
hand to hand, may in some measure be detrimental to the public interest. 
From whence it is a received opinion, that length of time will give a 
property in those fees, which were originally conveyed, not by right of 
succession, but by virtue of primitive investiture. Covarruvias, a lawyer 
of great judgment, supports this opinion with the strongest arguments in 
favour of primogeniture, and applies it to estates left in trust. For 
nothing can prevent the civil law from instituting a right, which, though 
it cannot be lawfully alienated by the act of one party without consent of 
the other, yet, to avoid uncertainty in the tenure of present proprietors, 
may be lost by neglect of claim for a length of time. Still the parties 
thus deprived may maintain a personal action against those, or their 
heirs, through whose neglect their right has been forfeited.

XI. It is an inquiry of importance whether the law of usucaption and 
prescription, if it prevail in a prince's dominions, can be applied to the 
tenure of the crown, and all its prerogatives. Many legal writers, who 
have treated of the nature of sovereign power according to the principles 
of the Roman civil law, seem to affirm that it may be so applied. But this 
is an opinion to which we cannot accede in its full extent. For to make a 
law binding upon any one, it is requisite that the legislator should 
possess both power and will. A legislator is not bound by his law, as by 
the irrevocable and unchangeable controul of a superior. But occasions may 
arise that will demand an alteration or even a repeal of the law which he 
has made. Yet a legislator may be bound by his own law, not directly as a 
legislator, but as an individual forming part of the community: and that 
too according to natural equity, which requires that all the component 
parts should bear a reference to the whole. We find in holy writ, this 
rule observed by Saul in the beginning of his reign. 

Now that rule does not take place here. For we are considering the 
lawgiver, not as a part but as the REPRESENTATIVE and SOVEREIGN of the 
whole community. Nor indeed can any such intention in the lawgiver be pre. 
sumed to have existed. For legislators are not supposed to comprehend 
themselves within the rule of the law, except where the nature and subject 
of it are general, But sovereignty is not to be compared with other 
things; it so far surpasses them in the nobleness of its end, and the 
dignity of its nature. Nor is any civil law to be found which either does, 
or designs to comprehend sovereign power within the rules of prescription.

[Translator's note: The translation proceeds from the fourth to the ninth 
Chapter of the Second book of the original. The intermediate chapters, 
being chiefly a repetition of the author's former arguments, respecting 
the rights of the seas and rivers, and other kinds of dominions; and that 
relating to the rights of persons, being so fully treated in the first 
volume of Judge Blackstone's Commentaries, it seemed unnecessary to give 
them in the present work.]


CHAPTER 9: In What Cases Jurisdiction and Property Cease.

Jurisdiction and property cease, when the family of the owner bar, become 
extinct — In what manner the rights of a people may become extinct — A 
people becomes extinct when its essential parts are destroyed — A people 
does not become extinct by emigration — The existence of separate states 
not destroyed by a federal union.

I. and II. AFTER the preceding inquiries into the manner in which private 
property as well as sovereign power may be acquired and transferred, the 
manner, in which they cease, naturally comes next under consideration. It 
has been shewn before that the right to property may be lost by neglect; 
for property can continue no longer than while the will of ownership 
continues. There is also another manner in which property may cease to 
exist, without any express or implied alienation: and that is where the 
family either of a sovereign, or an owner, becomes extinct, a contingency 
for which provision must be made somewhat similar to a succession to the 
property of one who dies intestate. Wherefore if any one die, without any 
declaration of his will, and have no relations by blood, all the right, 
which he had, becomes extinct, and reverts, if a sovereign, to the hands 
of the nation, except where express provisions of law have been made to 
the contrary.

III. The same mode of reasoning applies to a nation. Isocrates, and after 
him the Emperor Julian, has said that states are immortal, or may be so. 
For a people is one of that kind of bodies which are formed of distinct 
parts, following each other in regular succession, and supplying the place 
of the deceased. This body goes under one name, forming, as Plutarch says, 
one constitution; or, in the language of Paulus the Lawyer, one spirit. 
Now the spirit or constitution in a people is the full and perfect harmony 
of civil life, from which emanates the sovereign power, the very soul of 
all government, and, as Seneca says, the vital breath which so many 
thousands draw.

These artificial bodies bear a close resemblance to the natural body, 
which, notwithstanding the alteration of its component particles, loses 
not its identity, so long as the general form remains. And therefore in 
the passage of Seneca, where he says, that no one is the same in his old 
age that he was in his youth, he means only as to natural substance. In 
the same manner Heraclitus, as cited by Plato in Cratylus, and Seneca in 
the place already quoted, has said, that we cannot descend TWICE into the 
same river. But Seneca afterwards corrects himself, adding, that the river 
retains its name, though the watery particles of which it is composed are 
perpetually changing. So Aristotle, too, in comparing nations to rivers, 
has said that the rivers are always called by the same name, though their 
several parts are fluctuating every moment. Nor is it the name alone which 
continues, but that principle also which Conon calls the constitutional 
system of the body, and Philo the spirit, that holds it together. So that 
a people, as Alphenus and Plutarch, in speaking of the late, but unerring 
approach of divine vengeance, maintain, though not one of its members of a 
former period be now living, is the same at present that it was a hundred 
years ago, as long as the spirit, which first framed and afterwards kept 
the body together, preserves its identity.

Hence has originated the custom, in addressing a people, of ascribing to 
them, who are now living, what happened to the same people many ages 
before; as may be seen both in profane historians, and in the books of 
holy writ. So in Tacitus, Antony the First serving under Vespasian, 
reminds the soldiers of the third legion of what they had done in former 
times, how under Mark Antony they had beaten the Parthians, and under 
Corbulo the Armenians. There was more of prejudice, therefore, than truth 
in the reproach, which Piso cast upon the Athenians of his own time, 
refusing to consider them as Athenians since they had become extinct by so 
many disasters, and were nothing more than a base mixture of all nations 
of the earth. We say there was more of prejudice than truth in this 
reproach. For though such a mixture might diminish the dignity, it could 
not destroy the existence of a people. Nor was he himself ignorant of 
this. For he reproaches the Athenians of his own day with their feeble 
efforts in former times against Philip of Macedon, and their ingratitude 
to their best friends. Now as a change of its component parts cannot 
destroy the identity of a people, not even for a thousand years or more; 
so neither can it be denied that a people may lose its existence in two 
ways; either by the extinction of all its members, or by the extinction of 
its form and spirit.

IV. A body is said to die, when its essential parts, and necessary form of 
subsistence are destroyed. To the former case may be referred the instance 
of nations swallowed up by the sea, as Plato relates, and others whom 
Tertullian mentions: or if a people should be destroyed by an earthquake, 
of which there are many instances in history, or should destroy 
themselves, as the Sidonians and Saguntines did. We are informed by Pliny, 
that in ancient Latium, fifty-three nations were destroyed without a 
single trace of them remaining. 

But what, it may be said will be the case, if out of such a nation so few 
remain that they cannot form a people? They will then retain that 
property, which they had before as private persons, but not in a public 
capacity. The same is the case with every community.

V. A people loses its form, by losing all or some of those rights, which 
it had in common; and this happens, either when every individual is 
reduced to slavery, as the Mycenaeans, who were sold by the Argives; the 
Olynthians by Philip, the Thebans by Alexander, and the Brutians, made 
public slaves by the Romans: Or when, though they retain their personal 
liberty, they are deprived of the rights of sovereignty. Thus Livy informs 
us respecting Capua, that the Romans determined, though it might be 
inhabited as a city, that there should be no municipal body, no senate, no 
public council, no magistrates, but that deprived of political 
deliberation, and sovereign authority, the inhabitants should be 
considered as a multitude; subject to the jurisdiction of a Praefect sent 
from Rome. Therefore Cicero, in his first speech against Rullus, says that 
there was no image of a republic left at Capua. The same may be said of 
nations reduced to the form of Provinces, and of those subjugated by 
another power; as Byzantium was to Perinthus, by the Emperor Severus, and 
Antioch to Laodicea, by Theodosius.

VI. But if a nation should emigrate, either spontaneously, on account of 
scarcity or any other calamity, or if by compulsion, which was the case 
with the people of Carthage in the third Punic war, while she retains her 
form, she does not cease to be a people; and still less so, if only the 
walls of her cities be destroyed, and therefore when the Lacedaemonians 
refused to admit the Messenians to swear to the peace of Greece, because 
the walls of their city were destroyed, it was carried against them in the 
General Assembly of the Allies.

Nor does it make any difference in the argument, whatever the form of 
government may be, whether regal, aristocratical, or democratical. The 
Roman people for instance was the same, whether under kings, consuls, or 
emperors. Even indeed under the most absolute form, the people is the same 
that it was in its independent state, while the king governs it as head of 
that people, and not of any other. For the sovereignty which resides in 
the king as the head, resides in the people likewise as the body of which 
he is the head; and therefore in an elective government, if the king or 
the royal family should become extinct, the rights of sovereignty, as it 
has been already shewn, would revert to the people.

Nor is this argument overthrown by the objection drawn from Aristotle, who 
says that, if the form of government is changed, the state no longer 
continues to be the same, as the harmony of a piece of music is entirely 
changed by a transition from the Doric to the Phrygian measure.

Now it is to be observed, that an artificial system may possess many 
different forms, as in an army under one supreme commander there are many 
subordinate parts, and inferior powers, while in the operations of the 
field it appears but as one body. In the same manner, the union of the 
legislative and executive powers in a state gives it the appearance of one 
form, while the distinction between subject and sovereign, and their still 
mutual relation give it another. The executive power is the politician's 
concern; the judicial, the lawyer's. Nor did this escape the notice of 
Aristotle. For he says it belongs to a science different from that of 
politics to determine whether, tinder a chancre in the form of government, 
the debts contracted under the old system ought to be discharged by the 
members of the new. He does this, to avoid the fault which he blames in 
many other writers, of making digressions from one subject to another.

It is evident that a state, which from a commonwealth has become a regal 
government, is answerable for the debts incurred before that change. For 
it is the same people, possessing all the same rights, and powers, which 
are now exercised in a different manner, being no longer vested in the 
body, but in the head. This furnishes a ready answer to a question some 
times asked, which is, what place in general assemblies of different 
states, ought to be assigned to a sovereign, to whom the people of a 
commonwealth have transferred all their power? Undoubtedly the same place 
which that people or their representatives had occupied before in such 
councils. Thus in the Amphictyonic council, Philip of Macedon succeeded to 
the place of the Phocensians. So, on the other hand, the people of a 
commonwealth occupy the place assigned to sovereigns.

[Translator's note: Section VII of the original is omitted in the 
translation.]

VIII. Whenever two nations become united, their rights, as distinct 
states, will not be lost, but will be communicated to each other. Thus the 
rights of the Albans in the first place, and afterwards those of the 
Sabines, as we are informed by Livy, were transferred to the Romans, and 
they became one government. The same reasoning holds good respecting 
states, which are joined, not by a federal UNION, but by having one 
sovereign for their head.

IX. On the other hand, it may happen that a nation, originally forming but 
one state, may be divided, either by mutual consent, or by the fate of 
war; as the body of the Persian Empire was divided among the successors of 
Alexander. When this is the case, many sovereign powers arise in the place 
of one, each enjoying its independent rights, whatever belonged to the 
original state, in common, must either continue to be governed as a common 
concern, or be divided in equitable proportions.

To this head may be referred the voluntary separation, which takes place 
when a nation sends out colonies. For thus a new people as it were is 
formed, enjoying their own rights; and as Thucydides says, sent out not 
upon terms of slavery, but equality, yet still owing respect and obedience 
to their mother-country. The same writer, speaking of the second colony 
sent by the Corinthians to Epidamnus, says, "they gave public notice that 
such as were willing to go should enjoy equal privileges with those that 
staid at home."


CHAPTER 10: The Obligation Arising From Property

Origin and nature of the obligation to restore what belongs to another — 
Obligation to restore to the rightful owner the profits that have accrued 
from the unjust possession of his personal or real property — A bona-fide 
possessor not bound to restitution if the thing has perished — Such bona-
fide possessor bound to the restitution of the profits remaining in his 
hands — Bound to make reparation for the consumption occasioned by his 
possession — A possessor not bound to make a recompence for a gift, with 
an exception — The sale of any thing that has been bought, obliges the 
seller to make restitution, with a certain exception — In what cases a 
bona-fide purchaser of what belongs to another may retain the price, or a 
part of it — He who has purchased a thing of one who is not the real 
owner, cannot return it to that seller — The possessor of a thing whose 
real owner is unknown, not bound to give it up to any one — A person not 
bound to restore money received upon a dishonest account, or for service 
done — Opinion that the property of things valued by weight, number and 
measure, may be transferred without consent of the owner, refuted.

I. HAVING explained in the preceding part the nature and rights of 
property, it remains for us to consider the obligation which we incur from 
thence.

Now this obligation proceeds from things either in existence, or not in 
existence, comprehending, under the name of things, the right also over 
persons, as far as is beneficial to us. The obligation, arising from 
things in existence, binds the person, who has our property in his power, 
to do all he can to put us again into possession of it. We have said to do 
all he can: for no one is bound to an impossibility, nor to procure the 
restoration of a thing at his own expence. But he is obliged to make every 
discovery which may enable another to recover his own property. For as in 
a community of things, it was necessary that a certain equality should be 
preserved, to prevent one man from having an undue share of the common 
stock; so upon the introduction of property, it became, as it were, a kind 
of established rule of society among the owners, that the person, who had 
in his possession. anything belonging to another should restore it to the 
lawful proprietor. For if the right of property extended no farther than 
barely to enable the owner to make a demand of restitution without 
ENFORCING it by LEGAL PROCESS, it would rest upon a very weak foundation, 
and scarce be worth the holding. Nor does it make any difference, whether 
a person has fairly or fraudulently obtained possession of a thing not 
belonging to him. For he is equally bound to restore it, both by the 
positive obligations of law, and by the principles of natural justice. The 
Lacedaemonians had nominally cleared themselves of the crime, by 
condemning Phaebidas, who, in violation of their treaty with the Thebans, 
had seized upon the citadel of Cadmea, but in reality they were guilty of 
injustice, by retaining the possession. And Xenophon has remarked that, 
such a singular act of injustice was punished by the signal providence of 
God, For the same reason Marcus Crassus, and Quintus Hortensius, are 
blamed for having retained part of an inheritance left them by a will, the 
making of which had been procured upon false pretences, but in the 
management of which they had no share. Cicero blames them, because it is 
understood to be settled by general agreement, that all men are to restore 
what they are possessed of, if another is proved to be the rightful owner. 
A principle by which property is firmly secured, and upon which all 
special contracts are founded, and any exceptions to this rule, contained 
in them, must be expressly named as such. This throws light upon the 
passage of Tryphoninus. "If a robber, says he, has spoiled me of my goods, 
which he has deposited with Seius, who knows nothing of the fact; the 
question is, whether he ought to restore them to the robber or to me. If 
we consider him as giving and receiving on his own account, GOOD FAITH 
requires that the deposit should be restored to him who gave it, If we 
consider the equity of the whole case, including all the persons concerned 
in the transaction, the goods should be restored to me, as the person 
unjustly deprived of them." And he properly adds, "I prove it to be strict 
justice to assign to every one his due, without infringing on the more 
just claims of another." Now it has be n shewn that the justest title on 
which any one can claim, is that which is coaeval with the property 
itself. From whence the principle laid down by Tryphoninus, that if any 
one unknowingly received goods as a deposit, and afterwards discovers them 
to be his own, he is not bound to restore them. And the question, which 
the same author puts a little before respecting goods deposited by one, 
whose property had been confiscated, is better settled by this principle, 
than by what he says elsewhere on the utility of punishment. For as to the 
nature of property, it makes no difference, whether it arises from the law 
of nations, or from the civil law; as it always carries with it peculiar 
qualities, among which may be reckoned the obligation, under which every 
possessor lies to restore a thing to its rightful owner. And hence it is 
said by Martian, that according to the law of nations, restitution may be 
demanded, of those, who have no legal title to the possession. From the 
same origin springs the maxim of Ulpian, that whoever has found a thing 
belonging to another, is bound to restore it, even without claiming or 
receiving a reward for finding it. The profits also are to be restored, 
with a deduction only of reasonable charges.

II. Respecting things, non-existent, or whose identity cannot be 
ascertained, is a principle generally received among mankind, that the 
person, who has become richer by that property, of which the rightful 
owner has been dispossessed, is bound to make him reparation in proportion 
to the benefit, which he has derived from his property. For the true 
proprietor may be justly said to have lost, what HE has gained. Now the 
very introduction of property was intended to preserve that equality, 
which assigns to every one his own.

Cicero has said, that it is contrary to natural justice, for one man to 
improve his own advantage at the expence of another, and in another place, 
that nature does not allow us to increase our resources, riches, and 
power, from the spoils of others. There is so much of equity in this 
saying, that many legal writers have made it the basis of their 
definitions, to supply the deficiency of the strict letter of the law, 
always appealing to equity as the most sure and clear rule of action.

If any one employ a slave, as his factor, to trade for him, he is bound by 
the acts of that factor, unless he has previously given notice that he is 
not to be trusted. But even if such notice has been given, where the 
factor has a property in the concern, or the master a profit, the notice 
shall be deemed a fraud. For, says Proculus, whoever makes an advantage 
from the loss of another is guilty of a fraud; a term implying every thing 
repugnant to natural justice and equity. He, who, at the instance of a 
mother, has put in bail for her son's advocate, has no action on the case 
against the advocate for what is called an assumpsit or undertaking. For 
it was not strictly his business, which the advocate managed; the bail was 
put in at the INSTANCE of the MOTHER. Yet according to the opinion of 
Papinian, an action on the case for the assumpsit, or undertaking will lie 
against the advocate, because it is with the bailor's money that he is 
discharged from the risque of the costs.

So a wife who has given to her husband money, which she may by law demand 
again, has a personal action of recovery against him, or an indirect 
action upon any thing purchased with the money. Because, as Ulpian says, 
it cannot be denied, that the husband has been made richer by it, and the 
question is, whether what he possesses belongs to his wife?

If I have been robbed by my slave, and any one has spent the money under 
the supposition that it was the slave's own property, an action may be 
maintained against that person, as being unjustly in possession of my 
property. According to the Roman laws, minors are not answerable for money 
borrowed. Yet if a minor has become richer by the loan, an indirect action 
will lie against him, or, if anything, belonging to another, has been 
pawned and sold by a creditor, the debtor should be released from the debt 
in proportion to what the creditor has received. Because, says 
Tryphoninus, what. ever the obligation may be, since the money raised 
accrued from the debt, it is more reasonable that it should redound to the 
benefit of the debtor than the creditor. But the debtor is bound to 
indemnify the purchaser, for it would not be reasonable that he should 
derive gain from another's loss. Now if a creditor, holding an estate in 
pledge for his money, has received from it rents and profits amounting to 
more than his real debt; all above that shall be considered as a discharge 
of so much of the principal.

But to proceed with other cases. If you have treated with my debtor, not 
supposing him to be indebted to me, but to another person, and have 
borrowed my money of him, you are obliged to pay me; not because I have 
lent you money; for that could only be done by mutual consent; but because 
it is reasonable and just, that my money, which has come into your 
possession, should be restored to me.

The later writers on the law have adduced this kind of reasoning in 
support of similar cases. Thus, for instance, if the goods of any one, who 
has been cast through default, have been sold, if he can make any good 
exception to the decision, he shall be entitled to the money arising from 
such sale. Again, when any one has lent money to a father for the 
maintenance of his son; if the father should become insolvent, he may 
bring an action against the son, provided the son is possessed of any 
thing through his mother.

These two rules being perfectly understood, there will be no difficulty in 
answering the questions often proposed by Lawyers and Theologians on such 
subjects.

III. In the first place it appears, that a person who has obtained 
possession of goods by fair means, is not bound to restitution, if those 
goods have perished, because they are no longer in his possession, nor has 
he derived any advantage from them. The case of unlawful possession which 
is left to the punishment of the law is entirely out of the question.

IV. In the next place a bona-fide possessor of a thing is bound to a 
restitution of the fruits or profits thereof remaining in his hand. The 
FRUITS or PRODUCE of the THING ITSELF are here meant. For the benefit 
derived from a thing owing to the industry bestowed upon it by the 
occupier thereof, cannot belong to the thing itself, though originally 
proceeding from it. The reason of this obligation arises from the 
institution of property. For the true proprietor of a possession is 
naturally proprietor of the fruits or produce of the same.

V. Such possessor in the third place is bound to make restitution of the 
thing, or reparation for the consumption of it occasioned by his 
possession. For he is conceived to have been made the richer thereby. Thus 
Caligula is praised for having, in the beginning of his reign, restored to 
different Princes along with their crowns, the intermediate revenues of 
their kingdoms.

VI. In the fourth place, an occupier of lands, for instance, is not bound 
to make a compensation for the produce thereof which he has not reaped, 
For if dispossessed, he has neither the thing itself, nor any thing in the 
place of it.

VII. In the fifth place, a possessor who has granted to a third person a 
thing of which a gift had been made to himself, is not bound to make a 
recompence to the original giver, unless he received it under stipulation, 
that if he granted it to a third person, and thereby spared his own 
property, he should make a return proportionable to such gain.

VIII. Sixthly, if any one has sold a thing which he has bought, he is not 
bound to restitution of more than the surplus arising from the sale. But 
if he had received it under stipulation to sell, he is bound to make 
restitution of the whole price, unless, in transacting the sale he has 
incurred an expence, amounting to the whole price, which he would not 
otherwise have done.

IX. Seventhly, a bona-fide purchaser of what belongs to another is obliged 
to make restitution to the real owner, nor can the price he paid be 
recovered. To this however there seems to be one exception, which is, 
where the owner could not have recovered possession without some expence; 
so for instance, if his property were in the hands of pirates. For then a 
deduction may be made of as much as the owner would willingly have spent 
in the recovery. Because the actual possession, especially of a thing 
difficult to be recovered, may be ascertained, and the owner deemed so 
much the richer by such recovery. And therefore, though in the ordinary 
course of law, the purchase of what belongs to one's self can never 
constitute a bargain, yet Paulus the Lawyer says, that it may do so, if it 
has been originally agreed that we are to pay for the re-possession of 
what another has belonging to us in his hands.

Nor is it in the least material, whether a thing has been bought with an 
intention of restoring it to the owner; in which case, some say, that an 
action for costs may be maintained, whilst others deny it, For an action 
on the case, to recover a compensation for business done arises from the 
artificial rules of CIVIL LAW and not solely from the simple dictates of 
natural justice; which are here the principal subject of inquiry.

Not unlike to this is what Ulpian has written on funeral expences, in 
which he says, that a compassionate judge will not rigidly regard the bare 
labour that has been given, but allowing some relaxation in favour of 
equity, will shew indulgence to the feelings of human nature.

The same writer, in another place has said, that if any one has transacted 
my business, not out of regard to me, but for his own interest, and has 
incurred expence on my account, he may bring an action on the case, not 
for what he has given, but for what I have gained by his labour and 
expence.

In the same manner, owners, by throwing whose goods overboard a ship has 
been lightened, may recover a compensation from others whose goods were by 
that means saved. Because those persons are considered so much the richer 
by the preservation of what would otherwise have been lost.

X. Eighthly, the person that has bought a thing of one, who is not the 
owner, cannot return it to that seller; because from the time that the 
thing came into his possession, he incurred an obligation to restore it to 
the lawful owner.

XI. Again, if any one is in possession of a thing, whose real owner is 
unknown, be is not naturally, and necessarily bound to give it to the 
poor; although this may be considered as an act of piety, a custom very 
properly established in some places. The reason of which is founded on the 
introduction of property. For, in consequence of that, no one except the 
real owner, can claim a right to any thing. To the person therefore, who 
cannot discover such an owner, it is the same as if there really were 
none.

XII. Lastly, a person is not obliged by the law of nature to restore 
money, which has been received upon a dishonest account, or for the 
performance of a legal act, to which that person was of himself bound. 
However it is not without reason that some laws have required restitution 
in such cases. The reason of this is, because no one is bound to part with 
any thing unless it belongs to another. But here the property is 
voluntarily transferred by the first owner.

The case will be altered, if there be any thing iniquitous in the manner 
of acquiring the thing; as if, for instance, it be gained by extortion. 
This gives rise to the obligation of submitting to penalties, which is not 
immediately to the present purpose.

XIII. The present subject may be concluded with a refutation of Medina's 
false opinion, that a property in things, belonging to another, may be 
transferred without consent of the owner; provided the things are such as 
are usually valued by weight, number and measure. Because things of that 
nature can be repaid in kind, or by an equivalent. But this is only, where 
such a mode of repayment has been previously agreed upon; or where it is 
understood to be established by law or custom; or where the thing itself 
has been consumed, and cannot be identically restored. But without such 
consent, either expressed or implied, or excepting the impossibility just 
mentioned, the things themselves must be restored.


CHAPTER 11: On Promises

Opinion, that the obligation to fulfil promises is not enacted by the law 
of nature, refuted — A bare assertion not binding — A promiser bound to 
fulfil his engagements, though no right to exact the performance of them, 
is thereby conveyed to another — What kind of promise gives such right — 
The promiser should possess the right use of reason — Difference between 
natural and civil law with respect to minors — Promises made under an 
error, or extorted by fear, how far binding — Promises valid, if in the 
power of the promiser to perform them — Promise made upon unlawful 
considerations, whether binding — Manner of confirming the promises made 
by others, and the conduct of Ambassadors who exceed their instructions, 
considered — Owners of ships, how far bound by the acts of the masters of 
such vessels, and merchants by the acts of their factors — Acceptance 
requisite to give validity to a promise — Promises sometimes revokable — 
The power of revoking a promise, explained by distinctions — Burdensome 
conditions annexed to a promise — Means of confirming invalid promises — 
Natural obligation arising from engagements made for others.

I. THE course of the subject next leads to an inquiry into the obligation 
of promises. Where the first object, that presents itself, is the opinion 
of Franciscus Connanus, a man of no ordinary learning. He maintains an 
opinion that the law of nature and of nations does not enforce the 
fulfillment of those agreements, which do not include an express 
contract.* Yet the fulfillment of them is right, in cases, where, even 
without a promise, the performance would be consonant to virtue and 
equity. In support of his opinion, he brings not only the sayings of 
Lawyers, but likewise the following reasons. He says, that the person, who 
makes, and he who believes, a rash promise, are equally to blame. For the 
fortunes of all men would be in imminent danger, if they were bound by 
such promises, which often proceed from motives of vanity rather than from 
a settled deliberation, and are the result of a light and inconsiderate 
mind. Lastly, the performance of whatever is any way just in itself, ought 
to be left to the free will of every one, and not exacted according to the 
rigid rules of necessity. He says that it is shameful not to fulfil 
promises; not because it is unjust, but because it argues a levity in 
making them.

*[Editor's note: All the reasonings of Grotius, on this, and on every 
other point, are intended to apply not only to the transactions of 
individuals, but to the conduct and affairs of nations.]

In support of his opinion, he appeals also to the testimony of Tully, who 
has said, that those promises are not to be kept, which are prejudicial to 
the person to whom they are made, nor, if they are more detrimental to the 
giver than beneficial to the receiver. But if the performance of an 
engagement is begun upon the strength of a promise, but not finished, he 
does not require a complete fulfillment of the promise, but only some 
compensation to the party for the disappointment. Agreements, he 
continues, have no intrinsic force of obligation, but only what they 
derive from the express contracts, in which they are included, or to which 
they are annexed, or from the delivery of the thing promised. From whence 
arise actions, on the one side, and exceptions on the other, and bars to 
all claims of recovery.

But it is through favour of the laws alone, which give the efficacay of 
obligation to what is only fair and equitable in itself, that obligatory 
agreements, such as express covenants and other things of that kind, 
derive their force.

Now there is no consistency in this opinion, taken in the general sense 
intended by its author. For in the first place it immediately follows from 
thence, that there is no force in treaties between kings and different 
nations, till some part of them be carried into execution, especially in 
those places, where no certain form of treaties or compacts has been 
established. But no just reason can be found, why laws, which are a kind 
of general agreement among a people, and indeed are called so by 
Aristotle, and Demosthenes, should be able to give the force of obligation 
to compacts, and why the will of an individual, doing every thing to bind 
himself, should not have the same power; especially where the civil law 
creates no impediment to it. Besides, as it has been already said that the 
property of a thing may be transferred, where a sufficient indication of 
the will is given. Why may we not then convey to another the right to 
claim a transfer of our property to him, or the fulfillment of our 
engagements, as we have the same power over our actions, as over our 
property?

This is an opinion confirmed by the wisdom of all ages. For as it is said 
by legal authorities, that since nothing is so consonant to natural 
justice, as for the will of an owner, freely transferring his property to 
another, to be confirmed, so nothing is more conducive to good faith among 
men, than a strict adherence to the engagements they have made with each 
other. Thus a legal decision for the payment of money, where no debt has 
been incurred, except by the verbal consent of the party promising, is 
thought conformable to natural justice. Paulus the Lawyer also says, that 
the law of nature and the law of nations agree in compelling a person, who 
has received credit, to payment. In this place the word, COMPELLING, 
signifies a moral obligation. Nor can what Connanus says be admitted, 
which is, that we are supposed to have credit for a full performance of a 
promise, where the engagement has been in part fulfilled. For Paulus in 
this place is treating of an action where nothing is due; which action is 
entirely void, if money has been paid, in any way, whether according to 
the manner expressly stipulated, or any other. For the civil law, in order 
to discourage frequent causes of litigation, does not interfere with those 
agreements which are enforced by the law of nature and of nations.

Tully, in the first book of his Offices, assigns such force to the 
obligation of promises, that he calls fidelity the foundation of justice, 
which Horace also styles the sister of justice, and the Platonists often 
call justice, TRUTH, which Apuleius has translated FIDELITY, and Simonides 
has defined justice to be not only returning what one has received, but 
also speaking the truth.

But to understand the matter fully, we must carefully observe that there 
are three different ways of speaking, respecting things which ARE, or 
which, it is supposed, WILL be in our power.

II. The first of these ways is, where an assurance is given of future 
intentions, and if the assurance be SINCERE at the time it is given, 
though it should not be carried into effect, no blame is incurred, as it 
might afterwards not be found expedient. For the human mind has not only a 
natural power, but a right to change its purpose. Wherefore if any blame 
attaches to a change of opinion, or purpose, it is not to be imputed to 
the BARE ACT OF CHANGING, but to the CIRCUMSTANCES, under which it 
happens, especially when the former resolution was the best.

III. The second way is, when future intentions are expressed by outward 
acts and signs sufficient to indicate a resolution of abiding by present 
assurances. And these kind of promises may be called imperfect 
obligations, but conveying to the person to whom they are given no RIGHT 
to exact them. For it happens in many cases that we may be under an 
obligation of duty, to the performance of which another has no right to 
compel us. For in this respect the duty of fidelity to promises, is like 
the duties of compassion and gratitude. In such kinds of promises 
therefore the person to whom they are made, has no right, by the law of 
nature to possess himself of the effects of the promiser, as his own, nor 
to COMPEL him to the performance of his promise. 

IV. The third way is, where such a determination is confirmed by evident 
signs of an intention to convey a peculiar right to another, which 
constitutes the perfect obligation of a promise, and is attended with 
consequences similar to an alienation of property.

There may be two kinds of alienation, the one of our property, the other 
of a certain portion of our liberty. Under those of the former kind we may 
class the promises of gifts, and under the latter the promises of doing 
certain actions. On this subject we are supplied with noble arguments from 
the divine oracles, which inform us, that God himself, who can be limited 
by no established rules of law, would act contrary to his own nature, if 
he did not perform his promises. From whence it follows that the 
obligations to perform promises spring from the nature of that 
unchangeable justice, which is an attribute of God, and common to all who 
bear his image, in the use of reason. To the proofs of scripture here 
referred to, we may add the judgment of Solomon, "My son if thou hast been 
surety for thy friend, thou hast tied up thy hands to a stranger; thou art 
ensnared by the words of thy mouth, then art thou taken by the words of 
thine own mouth." Hence a promise is called by the Hebrews a bond or 
chain, and is compared to a vow. Eustathius in his notes on the second 
book of the Iliad, assigns a similar origin to the word uposcheseos or 
engagement. For he who has received the promise, in some measure takes and 
holds the person, that has made the engagement. A meaning not ill 
expressed by Ovid in the second book of his Metamorphoses, where the 
promiser says to him, to whom he had promised, "My word has become yours."

After knowing this, there remains no difficulty in replying to the 
arguments of Connanus. For the expressions of the lawyers, respecting BARE 
PROMISES refer only to what was introduced by the Roman laws, which have 
made a FORMAL STIPULATION the undoubted sign of a deliberate mind.

Nor can it be denied that there were similar laws among other nations. For 
Seneca, speaking of human laws, and promises made without proper 
solemnities, says, "What law, of any country, we may add, obliges us to 
the performance of bare promises?" But there may naturally be other signs 
of a deliberate mind, besides a formal stipulation, or any other similar 
act which the civil law requires, to afford grounds for a legal remedy. 
But what is not done with a deliberate mind, we are inclined to believe 
does not come under the class of perfect obligations; as Theophrastus has 
observed in his book on laws. Nay, even what is done with a deliberate 
mind, but' not with an intention of conceding our own right to another; 
though it cannot give any one a natural right of exacting its fulfillment, 
yet it creates an obligation not only in point of duty, but in point of 
moral necessity. The next matter to be considered is, what are the 
requisites to constitute a perfect promise.

V. The use of reason is the first requisite to constitute the obligation 
of a promise, which idiots, madmen, and infants are consequently incapable 
of making. The case of minors is somewhat different. For although they may 
not have a sound judgment, yet it is not a permanent defect, nor 
sufficient of itself to invalidate all their acts. It cannot be certainly 
defined at what period of life reason commences. But it must be judged of 
from daily actions, or from the particular customs of each country. 
Amongst the Hebrews a promise made by a male at the age of thirteen, and 
by a female at the age of twelve, was valid. In other nations, the civil 
laws, acting upon just -motives, declare certain promises made by wards 
and minors to be void, not only among the Romans, but among the Greeks 
also, as it has been observed by Dion Chrysostom in his twenty-fifth 
oration. To do away the effect of improvident promises, some laws 
introduce actions of recovery, or restitution. But such regulations are 
peculiar to the civil law, and have no immediate connection with the law 
of nature and of nations, any farther than that wherever they are 
established, it is consonant to natural justice that they should be 
observed. Wherefore if a foreigner enter into an agreement with a citizen 
or subject of any other country; he will be bound by the laws of that 
country, to which, during his residence therein, he owes a temporary 
obedience. But the case is different, where an agreement is made upon the 
open sea, or in a desert island, or by letters of correspondence. For such 
contracts are regulated by the law of nature alone, in the same manner as 
compacts made by sovereigns in their public capacity.

VI. The consideration of promises, made under an error, is a subject of 
some intricacy. For it, in general, makes a difference, whether the 
promiser knew the full extent of his promise, and the value of the thing 
promised, or not, or whether the contract, which was made, originated in 
fraudulent intention, or not, or whether one of the parties was privy to 
the fraud; and whether the fulfillment of it was an act of strict justice, 
or only of good faith. For according to the variety of these 
circumstances, writers pronounce some acts void and others valid, leaving 
the injured party a discretionary power to rescind or amend them.

Most of these distinctions originate in the ancient civil, and praetorian 
Roman law. Though some of them are not strictly founded in reason and 
truth. But the most obvious and natural way of discovering the truth is by 
referring to laws, which derive their force and efficacy from the general 
consent of mankind; so that if a law rests upon the presumption of any 
fact, which in reality has no existence, such a law is not binding. For 
when no evidence of the fact can be produced, the entire foundation, on 
which that law rests must fail. But we must have recourse to the subject, 
to the words and circumstances of a law, to determine when it is founded 
on such a presumption.

The same rule applies to the interpretation of promises. For where they 
are made upon the supposition of a fact, which in the end proves not to be 
true, they lose the force of obligations. Because the promiser made them 
upon certain conditions only, the fulfillment of which becomes impossible. 
Cicero, in his first book on the talents and character of an orator, puts 
the case of a father, who, under the supposition or intelligence that his 
son was dead, promised to devise his property to his nephew. But the 
supposition proving erroneous, and the intelligence false, the father was 
released from the obligation of the promise made to his relative. But if 
the promiser has neglected to examine the matter, or has been careless in 
expressing his meaning, he will be bound to repair the damage which 
another has sustained on that account. This obligation is not built on the 
strength of the promise, but on the injury, which it has occasioned. An 
erroneous promise will be binding, if the error was not the OCCASION of 
the promise. For here there is no want of consent in the party, who made 
it. But if the promise was obtained by fraud, the person so obtaining it 
shall indemnify the promiser for the injury sustained, if there has been 
any partial error in the promise, yet in other respects it shall be deemed 
valid.

VII. Promises extorted by fear are a subject of no less intricate 
decision. For here too a distinction is usually made between a well 
founded and a chimerical fear, between a just fear and a bare suspicion, 
and between the persons who occasion it, whether it be the person to whom 
the promise is given, or some other. A distinction is also made between 
acts purely gratuitous, and those in which both parties have an interest. 
For according to all this variety of circumstances some engagements are 
considered as void, others as revocable at the pleasure or discretion of 
the maker, and others as warranting a claim to indemnity for the 
inconvenience occasioned. But on each of these points there is great 
diversity of opinion.

There is some shew of reason in the opinion of those who, without taking 
into consideration the power of the civil law to annul or diminish an 
obligation, maintain that a person is bound to fulfil a promise which he 
has given under impressions of fear. For even in this case there was 
CONSENT, though it was extorted; neither was it conditional, as in 
erroneous promises, but absolute. It is called CONSENT. For as Aristotle 
has observed, those who consent to throw their goods overboard in a storm, 
would have saved them, had it not been for the fear of shipwreck. But they 
freely part with them considering all the circumstances of time and place.

VIII. To render a promise valid, it must be such as it is in the power of 
the promiser to perform. For which reason no promises to do illegal acts 
are valid, because no one either has, or ever can have a right to do them. 
But a promise, as was said before, derives all its force from the right of 
the promiser to make it, nor can it extend beyond that.

If a thing is not now in the power of the promiser, but may be so at some 
future time; the obligation will remain in suspense. For the promise was 
only made under the expectation of some future ability to fulfil it. But 
if a person has a controul over the condition upon which the promise is 
made, to realise it or not, he lies under a moral obligation to use every 
endeavour to fulfil it. But in obligations of this kind also, the civil 
law, from obvious motives of general utility, occasionally interposes its 
authority to make them void: obligations, which the law of nature would 
have confirmed.

IX. The next general inquiry, for the most part, refers to the validity of 
promises made upon any immoral or unlawful consideration; as if, for 
instance, any thing is promised to another on condition of his committing 
a murder. Here the very promise itself is wicked and unlawful, because it 
encourages the commission of a crime. But it does not follow that every 
FOOLISH or IMPROVIDENT promise loses the force of an obligation, as in the 
confirmation of imprudent or prodigal grants, for no further evil can 
result from a confirmation of what has been already given: and the 
invalidity of promises would be a greater evil than any that could result 
from a confirmation of the most improvident. But in promises made Upon 
IMMORAL and UNLAWFUL considerations, there is al. ways a criminality 
remaining, even while they continue unfulfilled. For during the whole of 
that time, the expectation of fulfillment carries with it the indelible 
mark of encouragement to the commission of a crime.

[Translator's note: Sections X, and XI of the original are omitted in the 
translation.]

XII. We are obliged to confirm the engagements made by others, acting in 
our name, if it is evident that they had special, or general instructions 
from us to do so. And in granting a commission with full powers to any 
one, it may so happen that we are bound by the conduct of that agent, even 
if he exceed the secret instructions which he has received. For he acts 
upon that ostensible authority, by which we are bound to ratify whatever 
he does, although we may have bound him to do nothing but according to his 
private instructions. This rule, we must observe, applies to the promises 
made by ambassadors in the name of their sovereigns, when, by virtue of 
their public credentials, they have exceeded their private orders.

XIII. From the preceding arguments, it is easy to understand how far 
owners of ships are answerable for the acts of the masters employed by 
them in those vessels, or merchants for the conduct of their factors. For 
natural equity will qualify the actions brought against them, according to 
the instructions and powers which they give. So that we may justly condemn 
the rigour of the Roman law, in making the owners of ships absolutely 
bound by all the acts of the masters employed. For this is neither 
consonant to natural equity, which holds it sufficient for each party to 
be answerable in proportion to his share, nor is it conducive to the 
public good. For men would be deterred from employing ships, if they lay 
under the perpetual fear of being answerable for the acts of their masters 
to an unlimited extent. And therefore in Holland, a country where trade 
has flourished with the greatest vigour, the Roman law has never been 
observed either now or at any former period. On the contrary, it is an 
established rule that no action can be maintained against the owner for 
any greater sum than the value of the ship and cargo.

For a promise to convey a right, acceptance is no less necessary than in a 
transfer of property. And in this case there is supposed to have been a 
precedent request, which is the same as acceptance. Nor is this 
contradicted by the promises which the civil law implies every one to have 
made to the state, WITHOUT ANY REQUEST OR FORMAL ACCEPTANCE.

XIV. A reason which has induced some to believe that the sole act of a 
promiser, by the law of nature, is sufficient. Our first position is not 
contradicted by the Roman law. For it no where says, that a promise has 
its full effect before acceptance, but only forbids the revocation of it 
which might prevent acceptance: and this effect results, not from NATURAL 
but from purely LEGAL rules. 

XV. Another question is, whether the acceptance alone of a promise is 
sufficient, or whether it ought to be communicated to the promiser before 
it can be made binding.

It is certain that a promise may be made two ways, either upon condition 
of its being fulfilled, if accepted, or upon condition of its being 
ratified, if the promiser is apprised of its being accepted. And in cases 
of mutual obligation, it is presumed to be taken in the latter sense; but 
it is better to take promises that are purely gratuitous in the former 
sense, unless there be evidence to the contrary.

XVI. From hence it follows, that a promise may be revoked, without the 
imputation of injustice or levity, BEFORE ACCEPTANCE, as no right has yet 
been conveyed; especially if ACCEPTANCE were made the condition of its 
being fulfilled. It may be revoked too if the party to whom it was made, 
should die before acceptance. Be. cause it is evident that the power to 
accept it or not, was conferred upon Him, and not upon his HEIRS. For to 
give a man a right, which may POSSIBLY descend to his heirs, is one thing, 
and to express an intention of giving it to his heirs is another. For it 
makes an essential difference upon what person the favour is conferred. 
This is understood in the answer made by Neratius, who said, that he did 
not believe the prince would have granted to one who was dead, what he 
granted, supposing him still alive. 

XVII. A promise may be revoked, by the death of the person appointed to 
communicate to a third the intention of the promiser. Because the 
obligation to the third person rested upon such communication. The case is 
different, where a public messenger is employed, who is not himself the 
obligatory instrument, but only the means through which it is conveyed. 
Therefore letters indicating a promise, or consent may be conveyed by any 
one. Yet there is a distinction to be made between a minister appointed to 
communicate a promise, and one appointed to make the promise in his own 
name.

For in the former case, a revocation will be valid, even though it has not 
been made known to the minister employed; but in the latter case, it will 
be entirely void, because the right of promising was committed to the 
minister, and fully depended upon his will; therefore the obligation of 
the promise was complete, as he knew of no intended revocation. So also in 
the former case, where a second person is commissioned to communicate the 
intentions of a donor to a third; even if the donor should die, the 
acceptance of the gift will be deemed valid, all that was requisite being 
performed on one part; though till that period the intention was 
revocable, as is evident in the case of bequests. But in the other case, 
where a person has received a full commission to execute a promise during 
the LIFE of the donor, should the donor die before the execution of it, 
and the person employed be apprised of his death; the commission, the 
promise, and the acceptance of it will then, at once, become void.

In doubtful cases, it is reasonable to suppose that it was the intention 
of the promiser, that the commission which he gave should be executed, 
unless some great change, as for instance, his own death should occur. Yet 
reasons in favour of a contrary opinion may easily be found and admitted, 
especially with respect to pious donations, which, at all events, ought to 
stand good. And in the same manner may be decided the long disputed 
question, whether an action on account of such a bequest could be brought 
against the heir. Upon which the author of the second book to Herennius 
says, that Marcus Drusus the praetor decided one way, and Sextus Julius 
another.

XVIII. The acceptance of a promise for a third person is a matter subject 
to discussion, in which there is a distinction to be observed between a 
promise made to a person of a thing, which is to be given to another, and 
a promise made directly to the person himself, on whom the former is to be 
conferred. If a promise is made to any one, where his own personal 
interest is not concerned, a consideration introduced by the Roman law, by 
acceptance he seems naturally to acquire a right which may be transferred 
to another for His acceptance, and this right will pass so fully, that in 
the mean time the promise cannot be revoked by the person who gave, though 
it may be released by him who received it. For that is a meaning by no 
means repugnant to the law of nature, and it is entirely conformable to 
the words of such a promise; nor can it be a matter of indifference to the 
person, through whom another is to receive a benefit.

But if a promise is made directly to one, on whom a thing is to be 
conferred, a distinction must be made, whether the person receiving such a 
promise has SPECIAL commission for acceptance, or one SO GENERAL as to 
include acceptance, or has it not. When a commission has been previously 
given, no farther distinction is necessary, whether the person be free or 
not, a condition which the Roman laws require. But it is plain that from 
such an acceptance, let the condition of the person be what it will, the 
promise is complete: because consent may be given and signified through 
the medium of another, For a person is supposed to have fully intended, 
what be has put into the power of another to accept or refuse.

Where there is no such commission, if another, to whom the promise was not 
directly made, accepts it with the consent of the promiser, the promise 
will be so far binding, that the promiser will not be at liberty to revoke 
it, before the person, in whose favour it was made has ratified, and 
afterwards chosen to release the engagement. Yet, in the mean time, the 
accepter cannot release it, as having derived no peculiar right from it 
himself, but only been used as an instrument in promoting the kind 
intentions and good faith of the promiser. The promiser therefore himself, 
by revoking it, is not doing violence to the perfect right of another, but 
only acting in contradiction to his own good faith.

XIX. From what has been said before, it is easy to conceive what opinion 
ought to be entertained of a burdensome condition annexed to a promise. 
For it may be annexed at any time, till a promise has been completed by 
acceptance, or an irrevocable pledge to fulfil it has been given. But the 
condition of a burden annexed to a favour intended to be conferred upon a 
third per. son, through the medium of any one, may be revoked before the 
person has confirmed it by his acceptance, On this point there is great 
difference of opinion. But upon impartial consideration the natural equity 
of any case may be easily seen without any great length of arguments.

XX. XXI. XXII. Another point of discussion relates to the validity of an 
erroneous promise, when the person, who made it, upon being apprised of 
his error is willing to adhere to his engagement. And the same inquiry 
applies to promises, which, arising out of fear or any other such motive, 
are prohibited by the civil law. What, it may be asked, will become of 
these promises, if that fear, or that motive has been removed?

To confirm such obligations, some think an internal consent of the mind 
alone in conjunction with some previous external act is sufficient. Others 
disapprove of this opinion, because they do not admit that an external act 
is a real sign of a subsequent intention. Therefore they require an 
express repetition of the promise and acceptance. Between these two 
opinions, the truth is most likely to be found. There may be an external 
act expressive of a promise, though unaccompanied with words; where one 
party's accepting and retaining a gift, and the other's relinquishing his 
right in it are sufficient to constitute a full consent.

To prevent civil laws from being confounded with natural justice, we must 
not omit noticing, in this place, that promises though founded in no 
EXPRESS motive, are not, any more than gifts, void by the law of nature.

Nor is a person who has engaged for another's performing any thing, bound 
to pay damages and interest for neglect, provided he has done every thing 
that was necessary on his part towards obtaining its accomplishment. 
Unless the express terms of the agreement, or the nature of the business 
require a stricter obligation, positively declaring that, under all 
circumstances whatever, the thing shall be performed.


CHAPTER 12: On Contracts

Human actions divided into simple or mixed — Gratuitous, or accompanied 
with mutual obligation — Acts by way of exchange, adjustment of what is to 
be given or done — Partnership — Contracts — Previous equality — As to 
knowledge of all circumstances — As to freedom of consent, requisite in 
contracts of exchange, of sale, of commission and loan — Price of things 
in what manner to be rated — Transfer of property by sale — What kind 
contrary to the law of nature — Money — Its use as the standard value of 
all things — No abatement in the rent or hire of a thing on account of 
ordinary accidents — Increase or diminution of just salaries — Usury, by 
what law forbidden — Interest not coming under the name of usury — 
Insurance — Partnerships of Trade, Naval Associations — Inequality in the 
terms of a contract no way repugnant to the law of nations.

I. and II. OF ALL human actions, wherein the interest of others is 
concerned, some are simple, and some are mixed. In those of the former 
description all service is purely gratuitous, but in the latter it is a 
traffic of exchange. In the one case the service is granted without a 
requital, but in the other it is accompanied with an obligation on both 
sides. Gratuitous services are either immediate in their effect, or to 
take place at some future time. A beneficial service may be said to be 
immediately performed, when it confers an advantage, to which the person 
so benefitted has no direct or absolute right. As a gift transfers 
property, where there is no previous right. A subject, which has been 
already discussed. And promises may be said to relate to some future gift, 
or action, of which a full and sufficient explanation has before been 
given.

Services accompanied with mutual obligation are those where the use of a 
thing is allowed to any one without a complete alienation, or where labour 
is given in expectation of some valuable consideration. Under the first of 
these heads we may reckon the loan and use of all consumable or 
inconsumable property: and under the latter we may place all commissions 
to transact business, or all trusts to preserve the property of another. 
Similar to which are all promises of something to be done, except that 
they regard a future time. And in this view we may consider all the 
actions, which are now to be explained.

III. In all acts of exchange, there is either an adjustment of shares, or 
the profits are regarded as a common stock. And such adjustments are made 
by the Roman Lawyers in the following terms, "I give this to receive that 
in return, I do this in order for you to do that, or I do this for you to 
give me that."* But the Romans exclude from that adjustment certain kinds 
of contracts, which they call EXPRESS ENGAGEMENTS. Not because they are 
entitled to any such peculiar name more than the simple acts of exchange 
already mentioned: but because from frequent use they have naturally 
derived a character similar to that of the original contract, from which 
they are named, though they are not attended exactly with the same 
circumstances, nor expressed directly in the same terms. Whereas in other 
contracts less frequently in use, the form was confined to an exact 
statement of all the circumstances of the case. An action upon which was 
therefore called by the Roman law an ACTION IN PRESCRIBED WORDS.

For the same reason, if those contracts, which are in general use, be 
accompanied with any of the requisite formalities, as in a bargain or 
sale, if the price had been agreed upon, though no part of the agreement 
had been performed by either of the parties, the civil law enforced an 
obligation to fulfil them. But as it considers those contracts which are 
seldom used, more in the light of voluntary engagements, depending upon 
the good faith of the respective parties, than upon legal obligation, it 
leaves both sides at liberty to relinquish them at any time prior to their 
being naturally performed.

Distinctions of this kind are unknown to the law of nature, which gives 
SIMPLE AGREEMENTS equal authority with those, that are included by 
civilians in the class of EXPRESS CONTRACTS, And on the score of antiquity 
their pretensions are far superior. It is therefore perfectly conformable 
to the principles of nature to reduce the adjustment of all agreements, 
without any regard to the distinction between SIMPLE and EXPRESS CONTRACT, 
to the three species already named. Thus, for instance, one thing is given 
for another, which constitutes barter, the most ancient kind of traffic; 
the next step in the progress of commercial intercourse is where one kind 
of money is given for another, a transaction which by mer. chants is 
called exchange; and a third species of contract is where money is given 
for any thing, as in the acts of selling and buying. Or the USE of one 
thing may be given for that of another; money also may be given for the 
USE of a thing, which last method constitutes the acts of letting and 
hiring.

The term use is to be understood here as applied not only to the bare 
unproductive use of a thing, but to that which is attended with profit, 
whether it be temporary, personal, hereditary or circumscribed, as was the 
case among the Hebrews with regard to transfers, which could be made for 
no longer a time than till the year of jubilee. The very essence of a loan 
consists in a return of the same kind of thing after a stated period. A 
return which can take place only in things regulated by weight, number, or 
measure, whether it be in commodities or money. But the exchange of labour 
branches out into various kinds of recompence or return. As, for instance, 
a person gives his labour for money, which in the daily transactions of 
life is called hire or wages: where one undertakes to indemnify another 
for accidental losses or damages, it is called insurance: a species of 
contract scarce known to the ancients, but now forming a very important 
branch in all mercantile and maritime concerns.

IV. Acts of communication are those, where each contributes a share to the 
joint stock. Perhaps on one side, money, and on the other, skill and 
labour may be given, But in whatever way these concerns are regulated, 
they come under the denomination of partnerships. With this class we may 
rank the alliances of different states in war. And of the same description 
are those naval associations of individuals, so frequently formed in 
Holland for protection against pirates or other invaders, which is 
generally called an ADMIRALTY, and to which the Greeks gave the name of a 
joint fleet.

V. and VI. Now mixed actions are either such in themselves, or made so by 
some adventitious circumstance, Thus if I knowingly give one person a 
greater price for a thing than I can purchase it for of another, the 
excess of price may be considered partly as a gift, and partly as a 
purchase. Or if I engage a goldsmith to make me any article with his own 
materials, the price which I give will be partly a purchase, and partly 
wages. The feudal system too might be considered as a train of mixed 
contracts. Where the grant of the fee might be considered as a beneficial 
act; but the military service required by the Lord, in return for his 
protection, gave the fee the nature of a contract, where a person did one 
thing expecting for it the performance of another. But if any payment is 
attached to it by way of acknowledgement, it partakes of the nature of a 
quit rent. So money sent to sea by way of venture is something compounded 
of a contract, of a loan, and of an insurance.

VII. All acts beneficial to others, except those that are purely 
gratuitous, come under the denomination of contracts.

VIII. In all contracts, natural justice requires that there should be an 
equality of terms: insomuch that the aggrieved party has an action against 
the other for overreaching him. This equality consists partly in the 
performance, and partly in the profits of the contract, applying to all 
the previous arrangements, and to the essential consequences of the 
agreement.

IX. As to an equality of terms previous to the contract, it is evident 
that a seller is bound to discover to a purchaser any defects, which are 
known to him, in a thing offered for sale; a rule not only established by 
civil laws, but strictly conformable to natural justice. For the words of 
agreement between contracting parties are even stronger than those, on 
which society is founded. And in this manner may be explained the 
observation of Diogenes the Babylonian, who in discussing this topic said, 
it is not every degree of silence, which amounts to concealment; nor is 
one person bound to disclose every thing, which may be of service to 
another. Thus for instance, a man of science is not strictly bound to 
communicate to another that knowledge, which might redound to his 
advantage. For contracts, which were invented to promote a beneficial 
intercourse among mankind, require some closer and more intimate 
connection than bare good-will to enforce their obligation. Upon which 
Ambrose has justly remarked, "that, in contracts, the faults of things 
exposed to sale ought to be made known, of which unless the seller has 
given intimation, though he may have transferred the right of property by 
sale, yet he is liable to an action of fraud."

But the same cannot be said of things not coming under the nature of 
contracts. Thus if any one should sell his corn at a high price, when he 
knows that many ships laden with grain are bound for that place, though it 
would be an act of kindness in him to communicate such intelligence to the 
purchasers, and though no advantage could be derived to him, from 
withholding the communication, but at the expence of charity, yet there is 
nothing unjust in it, or contrary to the general rules of dealing. The 
practice is vindicated by Diogenes in the passage of Cicero alluded to, he 
says, "I carried my commodities and offered them to sale, in selling them 
I demanded no greater price than others did; if the supply had been 
greater I would have sold them for less, and where is the wrong done to 
any one?" The maxim of Cicero therefore cannot generally be admitted, 
that, knowing a thing yourself, to wish another, whose interest it is to 
know it also, to remain ignorant of it, merely for the sake of your own 
advantage, amounts to a fraudulent concealment. By no means; for that only 
is a fraudulent concealment which immediately affects the nature of the 
contract: as for instance, in selling a house, to conceal the circumstance 
of its being infected with the plague, or having been ordered by public 
authority to be pulled down. But it is unnecessary to mention, that the 
person, with whom a seller treats, ought to be apprised of every 
circumstance attending the thing offered for sale; if it be lands, whether 
the tenure be subject to a rent-charge, or service of any kind, or be 
entirely free.

X. and XI. Nor is the equality that has been explained confined solely to 
the communication of all the circumstances of the case to the contracting 
parties, but it includes also an entire freedom of consent in both.

In the principal act itself, the proper equality requires that no more 
should be demanded by either party than what is just. Which can scarce 
have a place in gratuitous acts. To stipulate for a recompence in return 
for a loan, or for the service of labour or commission is doing no wrong, 
but constitutes a kind of mixed contract, partaking of the nature of a 
gratuitous act, and an act of ex. change. And in all acts of exchange, 
this equality is to be punctually observed. Nor can it be said that if one 
party promises more, it is to be looked upon as a gift. For men never 
enter into contracts with such intentions, nor ought the existence of such 
intentions ever be presumed, unless they evidently appear. For all 
promises or gifts, in these cases, are made with an expectation of 
receiving an equivalent in return." When, in the words of Chrysostom, in 
all bargains and contracts, we are anxious to receive MORE and give LESS 
than is due, what is this but a species of fraud or robbery?" The writer 
of the life of Isidorus in Photius, relates of Hermias, that when any 
thing, which he wished to purchase was valued at too low a rate, be made 
up the deficiency of the price, thinking that to act otherwise was a 
species of injustice, though it might escape the observation of others. 
And in this sense, may be interpreted the law of the Hebrews.

XII. There remains another degree of equality to be considered, arising 
out of the following case. It may happen in contracts that although 
nothing is concealed, which ought to be made known, nor more exacted or 
taken by one party than is due, yet there may be some inequality without 
any fault in either of the parties. Perhaps, for instance there might be 
some unknown defect in the thing, or there might be some mistake in the 
price. Yet, in such cases, to preserve that equality, which is an 
essential requisite in all contracts, the party suffering by such defect 
or mistake, ought to be indemnified by the other. For in all engagements 
it either is, or ought to be a standing rule, that both parties should 
have equal and just advantages.

It was not in every kind of equality that the Roman law established this 
rule, passing over slight occasions, in order to discourage frequent and 
frivolous litigation. It only interposed its judicial authority in weighty 
matters, where the price exceeded the just value by one half. Laws indeed, 
as Cicero has said, have power to compel, or restrain men, whereas 
philosophers can only appeal to their reason or understanding. Yet those, 
who are not subject to the power of civil laws ought to comply with 
whatever reason points out to them to be just: So too ought they, who are 
subject to the power of human laws, to perform whatever natural and divine 
justice requires, even in cases, where the laws neither give nor take away 
the right, but only forbear to enforce it for particular reasons.

XIII. There is a certain degree of equality, too, in beneficial or 
gratuitous acts, not indeed like that prevailing in contracts of exchange, 
but proceeding upon a supposition of the hardship, that any one should 
receive detriment from voluntary services, which he bestows. For which 
reason a voluntary agent ought to be indemnified for the expence or 
inconvenience, which he incurs, by undertaking the business of another. A 
borrower too is bound to repair a thing that has been damaged or 
destroyed. Because he is bound to the owner not only for the thing itself, 
by virtue of the property which he retains in it, but he owes a debt of 
gratitude also for the favour of the loan; unless it appears that the 
thing so lent would have perished, had it even remained in possession of 
the owner himself. In this case, the owner loses nothing by the loan. On 
the other hand, the depositary has received nothing but a trust. If the 
thing therefore is destroyed, he cannot be bound to restore what is no 
longer in existence, nor can he be required to make a recompence, where he 
has derived no advantage; for in taking the trust he did not receive a 
favour, but conferred one. In a pawn, the same as in a thing let out for 
hire, a middle way of deciding the obligation may be pursued, so that the 
person taking it is not answerable, like a borrower, for every accident, 
and yet he is obliged to use greater care, than a bare depositary, in 
keeping it safe. For though taking a pledge is a gratuitous acceptance, it 
is followed by some of the conditions of a contract. All these cases are 
conformable to the Roman law, though not originally derived from thence, 
but from natural equity. Rules, all of which may be found among other 
nations. And, among other works, we may refer to the third book and forty-
second chapter of the GUIDE FOR DOUBTFUL CASES, written by Moses 
Maimonides, a Jewish writer.

Upon the same principles the nature of all other contracts may be 
explained; but the leading features in those of certain descriptions 
seemed sufficient for a treatise like the present.

XIV. The general demand for any thing, as Aristotle has clearly proved, 
constitutes the true measure of its value, which may be seen particularly 
from the practice prevailing among barbarous nations of exchanging one 
thing for another. But this is not the only standard: for the humours and 
caprice of mankind, which dictate and controul all regulations, give a 
nominal value to many superfluities. It was luxury, says Pliny, that first 
discovered the value of pearls, and Cicero has somewhere observed , that 
the worth of such things can only be estimated by the desires of men.

But on the other hand, it happens that the plentiful supply of necessaries 
lowers their price. This Seneca, in the 15th chapter of his sixth book on 
benefits, proves by many instances, which he concludes with the following 
observation, " the price of every thing must be regulated by the market, 
and notwithstanding all your praises, it is worth nothing more than it can 
be sold for." To which we may add the authority of Paulus the Lawyer, who 
says, the prices of things do not depend upon the humours and interest of 
individuals, but upon common estimation, that is, as he explains himself 
elsewhere, according to the worth which they are of to all.

Hence it is that things are valued in proportion to what is usually 
offered or given for them, a rule admitting of great variation and 
latitude, except in certain cases, where the law has fixed a standard 
price. In the common price of articles, the labour and expence of the 
merchant in procuring them is taken into the account, and the sudden 
changes so frequent in all markets depend upon the number of buyers, 
whether it be great or small, and upon the money and marketable 
commodities, whether they be plentiful or scarce.

There may indeed be casualties, owing to which a thing may be lawfully 
bought or sold above or below the market price. Thus for instance, a thing 
by being damaged may have lost its original or common value, or that, 
which otherwise would not have been disposed of, may be bought or sold 
from some particular liking or aversion. All these circumstances ought to 
be made known to the contracting parties. Regard too should be had to the 
loss or gain arising from delay or promptness of payment.

XV. In buying and selling we must observe, that the bargain is completed 
from the very moment of the contract, even without delivery, and that is 
the most simple way of dealing. Thus Seneca says, that a sale is a 
transfer of one's right and property in a thing to another, which is done 
in all exchanges. But if it be settled that the property shall not be 
transferred immediately, still the seller will be bound to convey it at 
the stated period, taking in the mean time all the profits and losses.

Whereas the completion of bargain and sale, by giving the purchaser a 
right of possession and ejectment, and conveying to him the hazard with 
all the profits of the property, even before it is transferred, are 
regulations of the civil law not universally observed. Indeed some 
legislators have made the seller answerable for all accidents and damages, 
till the actual delivery of possession is made, as Theophrastus has 
observed in a passage in Stobaeus, under the title of laws, where the 
reader will find many customs, relating to the formalities of sale, to 
earnest, to repentance of a bargain, very different from the rules of the 
Roman law. And among the Rhodians, Dion Prusaeensis informs us that all 
sales and contracts were confirmed by being entered in a public register.

We must observe too that, if a thing has been twice sold, of the two sales 
the one is valid, where an immediate transfer of the property has been 
made, either by delivery of possession, or in any other mode. For by this 
means the seller gives up an absolute right, which could not pass by a 
promise alone.

XVI. It is not every kind of monopoly that amounts to a direct violation 
of the laws of nature. The Sovereign power may have very just reasons for 
granting monopolies, and that too at a settled price: a noble instance of 
which we find in the history of Joseph, who governed Egypt under the 
auspices of Pharaoh. So also under the Roman government the people of 
Alexandria, as we are informed by Strabo, enjoyed the monopoly of all 
Indian and Ethiopian goods. 

A monopoly also may, in some cases, be established by individuals, 
provided they sell at a reasonable rate. But all combinations to raise the 
necessary articles of life to an exorbitant rate, or all violent and 
fraudulent attempts to prevent the market from being supplied, or to buy 
up certain commodities, in order to enhance the price, are public injuries 
and punishable as such. Or indeed ANY WAY of preventing the importation of 
goods, or buying them up in order to sell them at a greater rate than 
usual, though the price, UNDER SOME PARTICULAR CIRCUMSTANCES, may not seem 
unreasonable, is fully shewn by Ambrose in his third book of Offices to be 
a breach of charity; though it come not directly under the prohibition of 
laws.

XVII. As to money, it may be observed that its uses do not result from any 
value intrinsically belonging to the precious metals, or to the specific 
denomination and shape of coin, but from the general application which can 
be made of it, as a standard of payment for all commodities. For whatever 
is taken as a common measure of all other things, ought to be liable, in 
itself, to but little variation. Now the precious metals are of this 
description, possessing nearly the same intrinsic value at all times and 
in all places. Though the nominal value of the same quantity of gold and 
silver, whether paid by weight or coin will be greater or less, in 
proportion to the abundance or scarcity of the things for which there is a 
general demand.

XVIII. Letting and hiring, as Caius has justly said, come nearest to 
selling and buying, and are regulated by the same principles. For the 
price corresponds to the rent or hire, and the property of a thing to the 
liberty of using it. Wherefore as an owner must bear the loss of a thing 
that perishes, so a person hiring a thing or renting a farm must bear the 
loss of all ordinary accidents, as for instance, those of barrenness or 
any other cause, which may diminish his profits. Nor will the owner, on 
that account, be the less entitled to the stipulated price or rent, 
because he gave the other the right of enjoyment, which at that time was 
worth so much, unless it was then agreed that the value should depend upon 
such contingencies.

If an owner, when the first tenant has been prevented from using a thing, 
shall have let it to another, all the profits accruing from it are due to 
the first tenant, for it would not be equitable that the owner should be 
made richer by what belonged to another.

XIX. The next topic, that comes under consideration, is the lawfulness of 
taking interest for the use of a consurnable thing; the arguments brought 
against which appear by no means such as to command our assent. For as to 
what is said of the loan of consumable property being a gratuitous act, 
and entitled to no return, the same reasoning may apply to the letting of 
inconsumable property for hire, requiring a recompence for the use of 
which is never deemed unlawful, though it gives the contract itself a 
different denomination.

Nor is there any more weight in the objection to taking interest for the 
use of money, which in its own nature is barren and unproductive. For the 
same may be said of houses and other things, which are unproductive and 
unprofitable without the industry of man.

There is something more specious in the argument, which maintains, that, 
as one thing is here given in return for another, and the use and profits 
of a thing cannot be distinguished from the thing itself, when the very 
use of it depends upon its consumption, nothing more ought to be required 
in return for the use, than what is barely equivalent to the thing itself.

But it is necessary to remark, that when it is said the enjoyment of the 
profits of consumable things, whose property is transferred, in the use, 
to the borrower or trustee, was introduced by an act of the senate, this 
does not properly come under the notion of Usufruct, which certainly in 
its original signification answers to no such right. Yet it does not 
follow that such a right is of no value, but on the contrary money may be 
required for surrendering it to the proprietor. Thus also the right of not 
paying money or wine borrowed till after a certain time is a thing whose 
value may be ascertained, the delay being considered as some advantage. 
Therefore in amortgage the profits of the land answer the use of money. 
But what Cato, Cicero, Plutarch and others allege against usury, applies 
not so much to the nature of the thing, as to the accidental circumstances 
and consequences with which it is commonly attended.

XX. There are some kinds of interest, which are thought to wear the 
appearance of usury, and generally come under that denomination, but which 
in reality are contracts of a different nature. The five shillings 
commission which a banker, for instance, charges upon every hundred 
pounds, is not so much an interest in addition to five per cent, as a 
compensation for his trouble, and for the risk and inconvenience he 
incurs, by the loan of his money, which he might have employed in some 
other lucrative way. In the same manner a person who lends money to many 
individuals, and, for that purpose, keeps certain sums of cash in his 
bands, ought to have some indemnity for the continual loss of interest 
upon those sums, which may be considered as so much dead stock. Nor can 
any recompence of this kind be branded with the name of usury. 
Demosthenes, in his speech against Pantaenetus, condemns it as an odious 
act of injustice, to charge with usury a man, who in order to keep his 
principal undiminished, or to assist another with money, lends out the 
savings of his industry and frugal habits, upon a moderate interest.

XXI. Those human laws, which allow a compensation to be made for the use 
of money or any other thing, are neither repugnant to natural nor revealed 
law. Thus in Holland, where the rate of interest upon common loans was 
eight per cent, there was no injustice in requiring twelve per cent of 
merchants; because the hazard was greater. The justice and reasonableness 
indeed of all these regulations must be measured by the hazard or 
inconvenience of lending. For where the recompence exceeds this, it 
becomes an act of extortion or oppression.

XXII. Contracts for guarding against danger, which are called insurances, 
will be deemed fraudulent and void, if the insurer knows beforehand that 
the thing insured is already safe, or has reached its place of 
destination, and the other party that it is already destroyed or lost. And 
that not so much on account of the equality naturally requisite in all 
contracts of exchange, as because the danger and uncertainty is the very 
essence of such con. tract. Now the premium upon all insurances must be 
regulated by common estimation.

XXIII. In trading partnerships, where money is contributed by both 
parties; if the proportions be equal, the profits and the losses ought to 
be equal also. But if they be unequal, the profits and the losses must 
bear the same proportion, as Aristotle has shewn at the conclusion of the 
eighth book of his Ethics. And the same rule will hold good where equal or 
unequal proportions of labor are contributed. Labor may be given as a 
balance against money, or both labor and money may be given, according to 
the general maxim that one man's labour is an equivalent for another man's 
money.

But there are various ways of forming these agreements. If a man borrows 
money to employ his skill upon in trading for himself, whether he gains or 
loses the whole, he is answerable to the owner for the principal. But 
where a man unites his labor to the capital of another in partnership, 
there he becomes a partner in the principal, to a share of which he is 
entitled. In the first of these cases the principal is not compared as a 
balance against the labor, but it is lent upon terms proportioned to the 
risk of losing it, or the probable gains to be derived from it. In the 
other case, the price of labour is weighed, as it were, against the money, 
and the party who bestows it, is entitled to an equivalent share in the 
capital.

What has been said of labour may be applied to voyages, and all other 
hazardous -undertakings. For it is contrary to the very nature of 
partnerships for any one to share in the gain, and to be exempt from the 
losses. Yet it may be so settled without any degree of injustice. For 
there may be a mixed contract arising out of a contract of insurance in 
which due equality may be preserved, by allowing the person, who has taken 
upon himself the losses, to receive a greater share of the gain than he 
would otherwise have done. But it is a thing quite inadmissible that any 
one should be responsible for the losses without partaking of the gains; 
for a communion of interests is so natural to society that it cannot 
subsist without it.

What has been said by writers on the civil law, that the shares are 
understood to be equal where they are not expressly named, is true where 
equal quotas have been contributed. But in a GENERAL partnership the 
shares are not to be measured by what may arise from this or that article, 
but from the probable profits of the whole.

XXIV. In naval associations the common motive of utility is self-defence 
against pirates: though they may sometimes be formed from less worthy 
motives. In computing the losses to be sustained by each, it is usual to 
estimate the number of men, the number of ships, and the quantity of 
merchandise protected. And what has hitherto been said will be found 
conformable to natural justice.

XXV. Nor does the voluntary law of nations appear to make any alteration 
here. However, there is one exception, which is, that where equal terms 
have been agreed upon, if no fraud has been used, nor any necessary 
information withheld, they shall be considered as equal in an external 
point of view. So that no action can be maintained in a court for such 
inequality. Which was the case in the civil law before Dioclesian's 
constitution. So among those, who are bound by the law of nations alone, 
there can be no redress or constraint on such account.

And this is the meaning of what Pomponius says, that in a bargain and 
sale, one man may NATURALLY overreach another: an allownace which is not 
to be construed, as a right, but is only so far a permission, that no 
legal remedy can be used against the person, who is determined to insist 
upon the agreement. 

In this place, as in many others, the word natural signifies nothing more 
than what is received by general custom. In this sense the Apostle Paul 
has said, that is naturally disgraceful for a man to wear long hair; a 
thing, in which there is nothing repugnant to nature, but which is the 
general practice among some nations. Indeed many writers, both sacred and 
profane, give the name of NATURAL to what is only CUSTOMARY and HABITUAL.


CHAPTER 13: On Oaths

Efficacy of oaths among Pagans — Deliberation requisite in oaths — The 
sense, in which oaths are understood to be taken, to be adhered to — To be 
taken according to the usual meaning of the words — The subject of them to 
be lawful — Not to counteract moral obligations — In what sense oaths are 
an appeal to God — The purport of oaths — To be faithfully observed in all 
cases — The controul of sovereigns over the oaths of subjects — 
Observations on our Saviour's prohibition of oaths — Forms substituted for 
oaths.

I. THE sanctity of an oath with regard to promises, agreements, and 
contracts, has always been held in the greatest esteem, in every age and 
among every people. For as Sophocles has said in his Hippodamia, "The soul 
is bound to greater caution by the addition of an oath. For it guards us 
against two things, most to be avoided, the reproach of friends, and the 
wrath of heaven." In addition to which the authority of Cicero may be 
quoted, who says, our forefathers intended that an oath should be the best 
security for sincerity of affirmation, and the observance of good faith. 
"For, as he observes in another place, there can be no stronger tie, to 
the fulfillment of our word and promise, than an oath, which is a solemn 
appeal to the testimony of God."

II. The next point, to be considered, is the original force and extent of 
oaths.

And in the first place the arguments, that have been used respecting 
promises and contracts, apply to oaths also, which ought never to be taken 
but with the most deliberate reflection and judgment. Nor can any one 
lawfully take an oath, with a secret intention of not being bound by it. 
For the obligation is an inseparable and necessary consequence of an oath, 
and every act accompanied with an obligation is supposed to proceed from a 
deliberate purpose of mind. Every one is bound likewise to adhere to an 
oath in that sense, in which it is usually understood to be taken. For an 
oath being an appeal to God, should declare the full truth in the sense in 
which it is understood. And this is the sense upon which Cicero insists 
that all oaths should be performed and adhered to in that sense, in which 
the party imposing them intended they should be taken. For although in 
other kinds of promises a condition may easily be implied, to release the 
promiser; yet that is a latitude by no means admissible in an oath. And on 
this point an appeal may be made to that passage, where the admirable 
writer of the Epistle to the Hebrews has said, GOD WILLING more abundantly 
to shew unto the heirs of the promise the immutability of his counsel 
confirmed it by an oath: that by two immutable things, in which it was 
impossible for God to deceive, we might have a strong consolation. In 
order to understand these words, we must observe that the sacred writers, 
in speaking of God, often attribute to him human passions, rather in 
conformity to our finite capacities, than to his infinite nature. For God 
does not actually change his decrees, though he may be said to do so, and 
to repent, whenever he acts otherwise than the words seemed to indicate, 
the occasion, on which they. were delivered, having ceased. Now this may 
easily be applied in the case of threats, as conferring no right; 
sometimes too in promises, where a condition is implied. The Apostle 
therefore names two things denoting immutability, a promise which confers 
a right, and an oath, which admits of no mental reservations.

From the above arguments it is easy to comprehend what is to be thought of 
an oath fraudulently obtained. For if it is certain that a person took the 
oath upon a supposition, which afterwards was proved to have no 
foundation, and but for the belief of which he would never have taken it, 
he will not be bound by it. But if it appears that he would have taken it 
without that supposition; he must abide by his oath, because oaths allow 
of no evasion.

III. The meaning of an oath should not be stretched beyond the usual 
acceptation of words. Therefore there was no breach of their oath in 
those, who, having sworn that they would not give their daughters in 
marriage to the Benjamites, permitted those that had been carried off to 
live with them. For there is a difference between giving a thing, and not 
recovering that which is lost.

IV. To give validity to an oath, the obligation, which it imposes ought to 
be lawful. Therefore a sworn promise, to commit an illegal act, to do any 
thing in violation of natural or revealed law, will be of no effect.

V. Indeed if a thing promised upon oath be not actually illegal, but only 
an obstruction to some greater moral duty, in that case also the oath will 
not be valid. Because it is a duty which we owe to God not to deprive 
ourselves of the freedom of doing all the good in our power.

VI. Oaths may differ in form, and yet agree in sub. stance. For they all 
ought to include an appeal to God, calling upon him to witness the truth, 
or to punish the falsehood of their assertions, both of which amount to 
the same thing. For an appeal to the testimony of a superior, who has a 
right to punish, is the same as requiring him to avenge an act of perfidy. 
Now the omniscience of God gives him power to punish, as well as to 
witness every degree of falsehood.

VII. It was a custom with the ancients to swear by persons or beings 
expressly distinct from the supreme creator, either imprecating the wrath 
of those by whom they swore, whether it were the sun, the heavens, or the 
earth; or swearing by their own heads, by their children, their country or 
their prince, and calling for destruction upon THEM, if there were any 
falsehood in their oaths.

Nor was this practice confined to Heathen nations only, but, as we are 
informed by Philo, it prevailed among the Jews. For he says that we ought 
not, in taking an oath upon every occasion, to have recourse to the maker 
and father of the universe, but to swear by our parents, by the heavens, 
the earth, the universe. Thus Joseph is said to have sworn by the life of 
Pharaoh, according to the received custom of the Egyptians. Nor does our 
Saviour, in the fifth chapter of St. Matthew's Gospel, intend, as it is 
supposed by some, to consider these oaths to be less binding than those 
taken expressly by the name of God. But as the Jews were too much inclined 
to make use of, and yet disregard them, he shews them that they are real 
oaths. For, as Ulpian has well observed, he who swears by his own life, 
seems to swear by God, bearing a respect and reference to his divine 
power. In the same manner Christ shews that he, who swears by the temple, 
swears by God who pre. sides in the temple, and that he who swears by 
Heaven, swears by God, who sits upon the Heavens. But the Jewish teachers 
of that day thought that men were not bound by oaths made in the name of 
created beings, unless some penalty were annexed, as if the thing, by 
which they swore, were consecrated to God. For this is the kind of oath 
implied in the word, korban, as BY A GIFT, And it is this error of theirs, 
which Christ refutes.

VIII. The principal effect of oaths is to cut short disputes. "An oath for 
confirmation, as the inspired writer of the Epistle to the Hebrews has 
said, is the end of all strife." So too we find in Diodorus Siculus, that 
an oath was regarded among the Egyptians as the surest pledge of sincerity 
that men could give. So that every one, in taking an oath, should express 
the real purpose of his mind, and render his actions conformable to those 
expressions. There is a beautiful passage on this subject, in Dionysius of 
Halicarnassus, who says, "the last pledge among men, whether Greeks or 
Barbarians, and it is a pledge, which no time can blot out, is that which 
takes the Gods, as witnesses to oaths and covenants."

IX. The substance of an oath too should be such, and conceived in such 
words, as to include not only the divine, but the human obligations, which 
it implies. For it should convey to the person, who receives it, the same 
security for his right, as he would derive from an express promise or a 
contract. But if either the words bear no reference to a person so as to 
confer upon him a right, or if they do refer to him but in such a manner 
that some opposition may be made to his claim, the force of the oath will, 
in that case, be such as to give that person no right from it; yet he who 
has taken it must still submit to the divine obligation, which the oath 
imposes. An example of which we have in a person, from whom a sworn 
promise has been extorted by fear. For here the oath conveys no right, but 
what the receiver ought to relinquish, for it has been obtained to the 
prejudice of the giver. Thus we find the Hebrew Kings were reproved by the 
prophets, and punished by God for not observing the oaths, which they had 
taken to the kings of Babylon.

X. The same rule applies not only to transactions between public enemies, 
but to those between any individuals whatsoever. For he, to whom the oath 
is taken, is not the only person to be considered; but a solemn regard 
must be paid to God, in whose name the oath is taken, and who possesses 
authority to enforce the obligation. For which reason it is impossible to 
admit the position of Cicero, that it is no breach of an oath to refuse 
paying to robbers the sum stipulated for having spared one's life; because 
such men are not to be ranked in the number of lawful enemies, but treated 
as the common enemies of all mankind, so that towards them no faith ought 
to be kept, nor even the sanctity of an oath observed.

XI. The power of superiors over inferiors, that is of sovereigns over 
subjects, with respect to oaths, is the next topic that comes under 
consideration. Now the act of a superior cannot annul the perfect 
obligation of an oath, which rests upon natural and revealed law. But as 
we are not, in a state of civil society, entirely masters of our own 
actions, which in some measure depend upon the direction of the sovereign 
power, which has a twofold influence with respect to oaths, in the one 
case applying to the person who takes, and in the other, to the person who 
receives them. This authority may be exercised over the person taking the 
oath, either by declaring, before it is taken, that it shall be made void, 
or by prohibiting its fulfillment, when taken. For the inferior or 
subject, considered as such, could not bind himself to engagements, beyond 
those allowed by the sovereign legislature. In the same manner, by the 
Hebrew Law, husbands might annul the oaths of wives, and fathers those of 
children, who were still dependent.

XII. In this place we may cursorily observe, that what is said in the 
precepts of Christ, and by St. James, agains swearing at all, applies not 
to an oath of affirmation, many instances of which are to be found in the 
writings of St. Paul, but to promissory oaths respecting uncertain and 
future events. This is plain from the opposition in the words of Christ. " 
You have heard it hath been said by them of old time, thou shalt not 
forswear thyself, but shalt perform unto the Lord thine oath. But I say to 
you, swear not at all." And the reason given for it by St. James, is that 
I you fall not into hypocrisy," or be found deceivers; for so the word 
HYPOCRISY signifies in the Greek.

Again it is said by St. Paul, that all the promises of God in Christ are 
YEA and AMEN, that is are certain and undoubted. Hence came the Hebrew 
phrase, that a just man's YEA is YEA, and his NO is NO. On the other hand, 
persons, whose actions differ from their affirmations, are said to speak 
YEA and NO, that is their affirmation is a denial, and their denial an 
affirmation.

In this manner St. Paul vindicates himself from the charge of lightness of 
speech, adding that his conversation had not been YEA, and NO.

XIII. Affirmations are not the only modes of obligation. For in many 
places signs have been used as pledges of faith; thus among the Persians 
giving the right hand was considered the firmest tie. So that where any 
form is substituted for an oath, the violation of it will be an act of 
perjury. It has been said of Kings and Princes in particular, that their 
faith is the same as an oath. On which account Cicero, in his speech for 
Dejotarus, commends Caesar no less for the vigour of his arm in battle, 
than for the sure fulfillment of the pledge and promise of his right hand.

[Translator's note: The nature of oaths, contracts and promises having 
been so fully discussed in the preceding chapters, the translation 
proceeds from the thirteenth to the fifteenth chapter of the original, the 
fourteenth being in a great measure only a repetition of our author's 
former arguments upon the subject.]


CHAPTER 15: On Treaties and on Engagements Made by Delegates Exceeding 
their Power.

Public Conventions — Divided into treaties, engagements, and other 
compacts — Difference between treaties and the engagements made by 
delegates exceeding their powers — Treaties founded on the law of nature — 
Their origin — Treaties founded on still more extensive principles — 
Treaties with those, who are strangers to the true religion, prohibited 
neither by the Jewish nor Christian law — Cautious respecting such 
treaties — Christians bound to unite against the enemies of the Christian 
religion — Among a number of Allies in war, which of them have the first 
pretensions to assistance — Tacit renewal of treaties — The effect of 
perfidy in one of the contracting parties considered — How far the 
unauthorized engagements of delegates are binding, when the sovereigns 
refuse to ratify them — The Caudian Convention considered — Whether the 
knowledge and silence of the Sovereign makes those unauthorized 
conventions binding — The Convention of Luctatius considered.

I. ULPIAN has divided conventions into two kinds, public and private, and 
he has not explained a public convention upon the usual principles, but 
has confined it to a treaty of peace, which he alleges as his first 
example, and he has made use of the engagements entered into by the 
generals of two contending powers, as an instance of private conventions. 
By public conventions therefore he means those, which cannot be made but 
by the authority and in the name of the sovereign power, thus 
distinguishing them not only from the private contracts of individuals, 
but ALSO from the PERSONAL contracts of sovereigns themselves. And indeed 
private injuries and contracts, no less than public treaties frequently 
prove the origin of wars. And as private contracts have been already so 
amply discussed, the higher order of contracts, which come under the 
denomination of treaties, will necessarily form the leading part in our 
farther inquiries.

II. and III. Now public conventions may be divided into treaties, 
engagements, and other compacts.

The ninth book of Livy may be consulted on the distinction between 
treaties and engagements, where the historian informs us, that treaties 
are those contracts, which are made by the express authority of the 
sovereign power, and in which the people invoke the divine vengeance on 
their heads, if they violate their engagements. Among the Romans the 
persons employed in declaring war and making peace, were in the conclusion 
of these solemn treaties, always accompanied by the principal herald, who 
took the oath in the name of the whole people. A sponsio, or ENGAGEMENT, 
is what was made by persons, who had no express commission for that 
purpose from the sovereign power, and whose acts consequently required a 
further ratification from the sovereign himself.

The Senate of Rome, we are informed by Sallust, judged very properly in 
passing a decree, that no treaty could be' made without their consent and 
that of the people. Livy relates that Hieronymus, king of Syracuse, having 
entered into a convention with Hannibal, sent afterwards to Carthage to 
have it converted by the state into a league. For which reason Seneca the 
elder has said, applying the expression to persons invested with a special 
commission for that purpose, that a treaty, negotiated by the general, 
binds the whole of the Roman people, who are supposed to have made it. 

But in monarchies, the power of making treaties belongs to the king alone, 
a maxim which the language of poetry, no less than the records of history, 
shews to have been held in all ages. Euripides, whose sentiments are 
always conformable to nature, and popular opinion, in his Tragedy of the 
Suppliants, says, "It rests with Adrastus to take the oath, to whom, as 
sovereign, the sole right of binding the country by treaties belongs."

No subordinate magistrates have such a power of binding the people; nor 
will the acts of a smaller portion bind the greater, an argument used in 
favour of the Romans against the Gauls. For there was a majority of the 
people with Camillus, the dictator.

But it remains to be considered how far the acts of those, who have 
engaged for the people, without any public authority, are binding. Perhaps 
it may be said that the contracting parties have discharged their 
responsibility when they have done all in their power towards the 
fulfillment of their obligation. That might be the case in promises, but 
the obligation in public contracts is of a stricter kind. For the party 
contracting requires something in return for the engagements he makes. 
Hence the civil law, which rejects all promises made by one person for the 
performance of some act by another, renders him who engages for the 
ratification of a thing liable to pay damages and interest.

IV. The most accurate distinction in treaties, is that which makes the 
foundation of some rest purely upon the law of nature, and others upon the 
obligations, which men have either derived from the law of nature, or 
added to it. Treaties of the former kind are, in general, made, not only 
between enemies, as a termination of war; but in ancient times were 
frequently made, and, in some degree, thought necessary among men in the 
formation of every contract. This arose from that principle in the law of 
nature, which established a degree of kindred among mankind. Therefore it 
was unlawful for one man to be injured by another. And this natural 
justice universally prevailed before the deluge. But after that event, in 
process of time, as evil dispositions and habits gained ground, it was by 
degrees obliterated. So that one people's robbing and plundering another, 
even when no war had been commenced or declared, was deemed lawful. 
Epiphanius calls this the Scythian fashion. Nothing is more frequent in 
the writings of Homer than for men to be asked, if they are robbers? A 
question, as Thueydides informs us, by no means intending to convey 
reproach, but purely for information. In an ancient law of Solon's mention 
is made of companies formed for robbery: and, we find from Justin, that, 
till the times of Tarquin, piracy was attended with a degree of glory.

In the law of the Romans it was a maxim, that nations, which had not 
entered into terms of amity, or into treaties with them were not to be 
considered as enemies. But if any thing belonging to the Romans fell into 
their hands, it became theirs; or any citizen of Rome, taken by them, 
became a slave; and the Romans would treat any person belonging to that 
nation, in the same manner. In this case the right of postliminium is 
observed. So at a remote period, before the times of the Peloponnesian 
war, the Corcyraeans were not considered as enemies by the Athenians, 
though there was no treaty of peace subsisting between them, as appears 
from the speech of the Corinthians given by Thucydides. Aristotle commends 
the practice of plundering barbarians, and in ancient Latium an enemy 
signified nothing but a foreigner.

In the class of treaties referred to in this section may be ranked those 
made between different states for the mutual preservation of the rights of 
hospitality and commerce, as far as they come under the law of nature. 
Arco makes use of this distinction, in his speech to the Achaeans, as 
reported by Livy, where he says he does not require an offensive and 
defensive alliance, but only such a treaty as may secure their rights from 
infringement by each other, or prevent them from harbouring the fugitive 
slaves of the Macedonians. Conventions of this kind were called by the 
Greeks, strictly speaking, PEACE in opposition to TREATIES.

V. Treaties founded upon obligations added to those of the law of nature 
are either equal, or unequal Equal treaties are those, by which equal 
advantages are secured on both sides. The Greeks call them ALLIANCES, and 
sometimes alliances upon an equal scale. But treaties of the latter kind 
are more properly leagues than treaties, and where one of the parties is 
inferior in dignity, they are called INJUNCTIONS, or INJUNCTIONS ANNEXED 
TO COVENANTS. Demosthenes in his speech on the liberty of the Rhodians 
says, all nations ought to guard against forming such leagues, as 
approaching too near to servitude.

Treaties of both kinds, whether of peace or alliance are made from motives 
of some advantage to the parties. By equal treaties of peace, the 
restoration of prisoners, the restoration or cession of conquered places, 
and other matters providing for its due maintenance, are settled, a 
subject that will be more fully treated of hereafter, in stating the 
effects and consequences of war. Treaties of alliance upon equal 
conditions relate either to commerce, or to contributions for the joint 
prosecution of a war, or to other objects of equal importance. Equal 
treaties of commerce may vary in their terms. For instance it may be 
settled that no duties shall be imposed upon the goods of the subjects, 
belonging to each of the contracting powers: or that the duties upon their 
respective commodities shall be lower than the duties upon those of any 
other nation. The first of these examples may be found in an ancient 
treaty between the Romans and Carthaginians, in which there is a clause, 
making an exception of what is given to the notary and public crier. Or it 
may be settled that no higher duties than those existing at the time the 
treaty is made shall be imposed, or that they shall not be augmented 
beyond a certain rate.

So in alliances of war the contracting parties are required to furnish 
equal numbers of troops or ships, a kind of alliance which, as Thueydides 
explains it, calls upon the united powers to hold the same states for 
common enemies or friends: we find, in many parts of Livy, alliances of 
this description among states, for the mutual defence of their territories 
or for the prosecution of some particular war, or against some particular 
enemy, or against all states excepting their respective allies. Polybius 
has given a treaty of this kind, made between the Carthaginians and 
Macedonians. In the same manner the Rhodians bound themselves by treaty to 
assist Atigonus Demetrius against all enemies except Ptolemy. There are. 
other objects too for which equal treaties are made. Thus one power may 
bind another to build no forts in their neighbourhood which might prove an 
annoyance, to give no encouragement to rebellious subjects, to allow the 
troops of an enemy no passage through their country.

VI. From equal treaties, the nature of unequal treaties may easily be 
understood. And where two powers contract, this inequality may be on the 
side either of the superior, or of the inferior power. A superior power 
may be said to make an unequal treaty, when it promises assistance without 
stipulating for any return, or gives greater advantages than it engages to 
receive. And on the part of the inferior power this inequality subsists 
when, as Isocrates says in his PANEGYRIC, her privileges are unduly 
depressed; so that engagements of this kind may be called injunctions or 
commands rather than treaties. And these may, or may not, be attended with 
a diminution of their sovereign power.

Such a diminution of sovereign power followed the second treaty between 
the Carthaginians and Romans, by which the former were bound to make no 
war but with the consent of the Roman people; so that from that time, 
Appian says, the Carthaginians were compelled by treaty to comply with the 
humour of the Romans. To this kind may be added a conditional surrender, 
except that it leads not to a DIMINUTION, but to an ENTIRE TRANSFER of the 
sovereign dignity and power.

VII. The burdens attached to unequal treaties, where no diminution of 
sovereignty takes place, may be either transitory or permanent.

TRANSITORY burdens are those, by which the payment of certain sums of 
money is imposed, the demolition of certain works and fortifications, the 
cession of certain countries and the delivery of ships or hostages are 
required. But PERMANENT conditions are those, which require the tribute of 
homage and submission from one power to another.

Nearly approaching to such treaties are those, by which one power is 
debarred from having any friends or enemies, but at the pleasure of 
another, or from allowing a passage and supplies to the troops of any 
state, with whom that power may be at war. Besides these there may be 
conditions of an inferior and less important kind; such as those, which 
prohibit the building of forts in certain places; maintaining armies, or 
having ships beyond a certain number; navigating certain seas, or raising 
troops in certain countries; attacking allies or supplying enemies. Some 
conditions indeed go so far as to prohibit a state from admitting 
refugees, and to demand annulling all former engagements with every other 
power. Numerous examples of such treaties are to be found in historians 
both ancient and modern.

Unequal treaties may be made not only between the conquerors and the 
conquered but also between mighty and impotent states, between whom no 
hostilities have ever existed.

VIII. In considering treaties, it is frequently asked, whether it be 
lawful to make them with nations, who are strangers to the Christian 
religion; a question, which, according to the law of nature, admits not of 
a doubt. For the rights, which it establishes, are common to all men 
without distinction of religion.

The gospel has made no change in this respect, but rather favours 
treaties, by which assistance in a just cause may be afforded even to 
those, who are strangers to religion. For to embrace opportunities of 
doing good to all men is not only permitted as laudable, but enjoined as a 
precept. For in imitation of God, who makes his sun to rise upon the 
righteous and the wicked, and refreshes them both with his gracious rain, 
we are commanded to exclude no race of men from their due share of our 
services. Yet, in equal cases, it admits of no doubt, that those within 
the pale of our own religious communion have a preferable claim to our 
support.

IX. In addition to the foregoing arguments we may observe that as all 
Christians are considered as members of one body, which are required to 
feel for the pains and sufferings of each other, this precept applies not 
only to individuals, but to nations and kings in their public capacity. 
For the rule of duty is not to be measured by the inclination of 
individuals, but by the injunctions of Christ. And in some cases the 
ravages of an impious enemy can only be opposed by a firm alliance among 
Christian kings, and governments. And it is a duty from which nothing, but 
inevitable necessity, and their immediate attention being engrossed by the 
prosecution of other wars, can excuse them. 

X. Another question frequently arises, which is, when two states are 
engaged in war with each other, to which of them a power, equally allied 
to both, ought in preference to give assistance. Here too we must observe 
there can be no obligation to support unjust wars. On which account that 
confederate power, which has justice on its side, will have a claim to 
preference, if engaged in war with another not comprehended in the number 
of confederates, or even if engaged with one of the confederates 
themselves.

But if two powers engage in a war, equally unjust on both sides, a third 
power, united in confederacy with both, will prudently abstain from 
interference. Again, if two powers allied to us are engaged in a just war 
against others, with whom we have no connection; in the supplies of men or 
money that we furnish to either we ought to follow the rule, observed in 
the case of personal creditors.

But if personal assistance, which cannot be divided, is required of the 
contracting party, in that case the preference must be given to the 
engagements of the longest standing. However the case of a subsequent 
treaty, which makes the engagements of a more binding and extensive 
nature, will form an exception to this rule.

XI. The tacit renewal of a treaty ought not to be presumed upon at the 
expiration of the period, limited for its continuance, unless certain acts 
be performed, which can expressly be construed as a renewal of it, and can 
be taken in no other sense.

XII. If one of the parties violates a treaty, such a violation releases 
the other from its engagements. For every clause has the binding force of 
a condition. And as an example of this, a passage from Thucydides may be 
quoted, where that historian says that "for one power to accede to a new 
confederacy, and to desert an ally who has neglected to fulfil his 
engagements, is no breach of a treaty; but not to assist another power in 
conformity to sworn engagements amounts to a violation thereof." And this 
is generally true, except where it has been agreed to the contrary, that a 
treaty shall not be null and relinquished for trifling disgusts and 
miscarriages.

XIII. Conventions are as various and numerous as treaties, and the 
distinction made between them is owing more to the difference of power in 
those by whom they are made, than to any real difference in their own 
nature. But there are two particular points of inquiry materially 
connected with all conventions, the first of which relates to the extent 
of the negotiator's obligation, when the sovereign or the state refuses to 
ratify a convention, whether he is bound to make an indemnity to the other 
party for the disappointment, to restore things to the situation they were 
in before he treated, or to deliver up his own person. The first opinion 
seems conformable to the Roman civil law, the second to equity as it was 
urged by the tribunes of the people, L. Livius, and J. Melius, in the 
dispute about the peace of Caudium; but the third is that most generally 
adopted, as was done respecting the two famous conventions of Caudium and 
Numantia. But there is one caution particularly to be observed, and that 
is, that the sovereign is no way bound by such unauthorised conventions, 
until he has ratified them. In the convention alluded to, if the Samnites 
had intended to bind the Roman people, they should have retained the army 
at Caudium, and sent ambassadors to the senate and people at Rome, to 
discuss the treaty, and learn upon what terms they chose to redeem their 
army.

XIV. Another question is, whether the knowledge and silence of the 
sovereign bind him to the observance of a convention. But here it is 
necessary to make a distinction between an absolute convention, and one 
made upon condition of its being ratified by the sovereign. For as all 
conditions ought to be literally fulfilled, such a condition, on failure 
of fulfillment, becomes void.

This principle was very properly observed in the convention made between 
Luctatius and the Carthaginians; to which the people refused to accede, as 
it had been made without their consent. A new treaty therefore was made by 
public authority.

The next thing to be considered is, whether there may not be some act of 
consent besides silence. For without some visible act, silence is not of 
itself sufficient to warrant a probable conjecture of intention. But if 
certain acts are done which can be accounted for upon no other grounds 
than those of consent, they are supposed to ratify a treaty. Thus if the 
convention of Luctatius had contained many clauses, some of them 
relinquishing certain rights, and those clauses had been always duly 
observed by the Romans, such observance would be justly taken for a 
ratification of the treaty.


CHAPTER 16: The Interpretation of Treaties

The external obligation of promises — Words where other conjectures are 
wanting to be taken in their popular meaning — Terms of art to be 
interpreted according to the acceptation of the learned in each art, 
trade, and science — Conjectures requisite to explain ambiguous or 
seemingly contradictory terms — Interpretation of treaties from the 
subject-matter — From consequences, from circumstances and connection — 
Conjectures taken from motives — The more strict or more extensive 
interpretation — Treaties favourable, odious, mixed or indifferent — The 
good faith of kings and nations in treaties of equal validity with law — 
Rules of interpretation formed from the above named distinctions — Whether 
the word allies, in a treaty, is limited to those, who were such at the 
time of making it, or applies to all who are, or hereafter may become such 
— Interpretation of the prohibition of one party's making war without the 
consent or injunction of the other — Of the freedom granted to Carthage — 
Distinction between personal and real treaties — A treaty made with a king 
continues even during his expulsion by an usurper, such a treaty extends 
not to an invader — What kind of promises ought to have the preference — 
The extent of obvious conjectures — The performance of a commission by 
doing something equivalent — Interpretation restricted more closely than 
the bare signification of the words implies — From an original defect of 
intention — From failure of the sole motive — From a defect in the subject 
— Observations on the last named conjectures — Emergencies repugnant to 
the original intention, by rendering it unlawful or burdensome — 
Conjectures taken from a comparison of one part of the writings with 
another Rules to be observed — In dubious cases, writings not absolutely 
requisite to the validity of a contract — Contracts of Sovereigns not to 
be interpreted by the Roman law — Whether the words of the person 
accepting or offering the engagement ought to be most regarded — This 
explained by a distinction.

I. IF WE consider the promiser alone, be is naturally bound to fulfil his 
engagements. Good faith, observes Cicero, requires that a man should 
consider as well what he intends, as what lie says. But as acts of the 
mind are not, of themselves visible it is necessary to fix upon some 
determinate mark, to prevent men from breaking their engagements, by 
allowing them to affix their own interpretation to their words. It is a 
right, which natural reason dictates, that every one who receives a 
promise, should have power to compel the promiser to do what a fair 
interpretation of his words suggests. For otherwise it would be impossible 
for moral obligations to be brought to any certain conclusion. Perhaps it 
was in this sense that Isocrates, treating of agreements, in his 
prescription against Callimachus, maintains that the laws enacted on this 
subject are the common laws of all mankind, not only Greeks, but 
barbarians also. It is for this very reason, that specific forms have been 
assigned for treaties, which are to be drawn up in terms of unequivocal 
and certain meaning. The proper rule of interpretation is to gather the 
intention of the parties pledged, from the most* probable signs. And these 
are of two kinds, namely, words and conjectures, which may be considered 
either separately, or together.

II. Where we have no other conjecture to guide us, words are not to be 
strictly taken in their original or grammatical sense, but in their common 
acceptation, for it is the arbitrary will of custom, which directs the 
laws and rules of speech.* It was a foolish act of perfidy therefore in 
the Locrians, when they promised they would adhere to their engagements as 
long as they stood upon that soil, and bore those heads upon their 
shoulders, in order to evade their promise to cast away the mould, which 
they had previously put within their shoes, and the heads of garlick, 
which they had laid upon their shoulders. Acts of treachery like these, 
Cicero, in the third book of his Offices, has properly observed, instead 
of mitigating, tend to aggravate the guilt of perjury.

III. In terms of art which are above the comprehension of the general bulk 
of mankind, recourse, for explanation, must be had to those, who are most 
experienced in that art; thus from consulting legal writers, we may 
conceive the nature of particular crimes, or from the pages of the same 
authors, derive our notions of sovereign power.

It is a just remark of Cicero's, that the language of logic is not that of 
daily and familiar intercourse: the writers of that class have phrases 
peculiar to themselves: which indeed is the case with arts of every 
description. So in treaties, where military arrangements occur, an army is 
defined to be a number of soldiers capable of OPENLY invading a foreign, 
or an enemy's country. For historians everywhere make a distinction 
between the private incursions of robbers, and what is done by a lawful 
and regular army. What constitutes an army must be therefore judged of by 
the enemy's force. Cicero defines an army to consist of six legions and 
auxiliaries. Polybius says, that a Roman army in general amounted to 
sixteen thousand Romans, and twenty thousand auxiliaries. But a military 
force might be composed of a less number of troops than this. In the same 
manner the number of ships sufficient for any purpose will amount to a 
fleet, and a place able to hold out against an enemy may be called a fort.

IV. It is necessary to make use of conjecture, where words or sentences 
admit of many meanings: A mode of expression when included in one word, is 
called by Logicians, a synonymous term, and, when extending to two or more 
words, a doubtful phrase. In the same manner it is necessary to have 
recourse to conjecture whenever a seeming contradiction occurs in the 
expressions of a treaty. For in that case we must try to discover such 
conjectures, as will reconcile, if possible, one part with another. For if 
there be an evident contradiction, the contracting parties by their latter 
determinations, must have intended to abrogate their former; as no one can 
design to make contradictory resolutions at the same time. Indeed all acts 
depending upon the human will, as in the case of laws and testaments, 
which depend upon the will of one party, and in contracts and treaties, 
which depend upon that of two or more, all these acts are liable to 
changes, with a subsequent change of will in the parties concerned. In all 
such cases any obscurity in the language obliges us to have recourse to 
conjectures, which are sometimes so obvious, as to point out a meaning 
directly contrary to that of the words in their usual acceptation. Now the 
principal sources of conjecture are to be found in the subject-matter, the 
consequences, and the circumstances and connection.

V. From the subject or matter, as for instance, in the word day. Thus if a 
truce be made for thirty days, here civil and not natural days are meant. 

So the word donation is sometimes used to signify a transfer, according to 
the nature of the business. In the same manner too the word arms, which in 
general signifies military instruments, is sometimes applied to troops, 
and may be taken in either sense, according to the particular occasion. 
Every interpretation must be given according to the intention understood. 
Thus the promise of a free passage given upon the evacuation of a town, 
implies also that the troops shall pass without molestation. If a number 
of ships are to be given up, perfect and not mutilated ships are meant. 
And in all similar cases a similar judgment must be formed according to 
the natural tenor of the words. 

VI. Another source of interpretation is derived from the consequences, 
especially where a clause taken in its literal meaning would lead to 
consequences foreign or even repugnant to the intention of a treaty. For 
in an ambiguous meaning such an acceptation must be taken as will avoid 
leading to an absurdity or contradiction. The cavil of Brasidas therefore 
is highly abominable, who, promising that he would evacuate the Boeotian 
territory, said he did not consider that as Boeotian territory, which he 
occupied with his army; as if the ancient bounds were not intended, but 
only what remained unconquered, an evasion, which entirely annulled the 
treaty

VII. From the circumstances or context another source of interpretation is 
derived. No inconsiderable light maybe thrown upon the meaning of an 
expression from the circumstance of its being used by the same person to, 
express the same intentions on other similar occasions, and from its 
relation to what goes before, and what follows the place, where it stands. 
For in all doubtful cases, we have reason to suppose that the contracting 
parties mean to be consistent with their former opinions and intentions. 
Thus in Homer, in the agreement between Paris and Menelaus, that Helen 
should be given up to the conqueror, when compared with what follows, it 
is evident that by the conqueror is meant the combat. ant, who killed the 
other. This rule of interpretation, Plutarch illustrates by the conduct of 
judges, "who passing by what is obscure rest their decisions upon clear 
and unambiguous points."

VIII. As to the motives, which are sometimes taken for a rule of 
interpretation, there may be other substantial ones, besides those 
immediately expressed, for the passing of a law or the making of a treaty. 
Yet the strongest conjecture is that which arises from certain proof that 
the will was actuated by some reason, operating as a sole and sufficient 
motive. For there are frequently MANY motives, and sometimes the will is 
influenced by its own choice independent of any other reason. In the same 
manner a grant made, in contemplation of a marriage, will be void, if the 
marriage never takes place. 

IX. It is further to be observed that many words have a variety of 
acceptations, some more limited and others more extensive; which may be 
owing either to the application of a general name to a particular class of 
things, as in the words kindred and adoption; or to the use of masculines 
to express animals both of the male and female kind, where nouns of a 
common gender are wanting. In terms of art too, words are often taken in a 
metaphorical or extended sense: thus in the civil law death signifies 
banishment; but in its popular acceptation a dissolution of the parts of 
the natural body.

X. In promises likewise, some things are of a favour. able, some an 
odious, and others of a mixed or indifferent description. Favourable 
promises are those which contain an equality of terms, or which bear some 
relation to the common good, the magnitude and extent of which increases 
the favour of the promise: so that all engagements more conducive to peace 
than to war are to be considered as those of a favourable complexion, and 
alliances for mutual defence are always regarded as a more laudable object 
than those for offensive war.

Treaties of an odious kind are those which lay greater burdens on one 
party than on the other, which contain penalties for non-performance, or 
which lead to an abrogation or infraction of former treaties. Whereas, 
though engagements of a mixed nature may create a deviation from former 
treaties, they may be taken either in a favourable or odious light, 
according to the magnitude, or object of the change produced. If it be for 
the sake of peace, it is better, taking all circumstances into 
consideration, to rank them with those of a favourable kind.

XI. The distinction made by the Roman law between acts of equity and those 
of strict justice, cannot GENERALLY be applied to the law of nations, 
though it may in some cases be adopted. Thus in any transaction between 
the subjects of two countries, in each of which the same form of legal 
proceeding is observed, the parties are supposed to treat without any 
intention of deviating from the common rule and form, unless they have 
expressly determined to the contrary. But in acts for which no common rule 
is prescribed, as in donations and free promises, there the parties are 
supposed to treat according to the strict letter of the agreement.

XII. After the establishment of the former positions, the subject 
naturally proceeds to the rules themselves, which are to be observed in 
the interpretation of treaties. And in the first place we may remark, that 
in things, which are not of an odious nature, words are to be taken 
strictly in their popular meaning, and where they admit of exceptions, or 
have more significations than one, it is lawful to use that which is most 
extensive. As it has been already observed, that both Logicians and 
Grammarians frequently use particular terms in a general sense. Thus 
Cicero in pleading for Caecina, justly maintains that the interlocutory 
decree, ordering THAT THE PERSON EJECTED FROM HIS INHERITANCE SHOULD BE 
REINSTATED IN THE POSSESSION, implies not only an ejectment, but extends 
to any forcible prevention of the owner's taking possession.

In things of a favourable nature, if the parties engaged are acquainted 
with the legal principles, upon which they proceed, or rest upon the 
judgment of those who are so, the words used may be taken in their most 
extensive signification, including even terms of art and of law. Again, we 
must never have recourse to a metaphorical interpretation, except where 
the literal meaning would lead to a direct absurdity, or would defeat the 
intention of a treaty.

On the other hand a passage may be interpreted in a more limited 
signification, than the words themselves bear, if such interpretation be 
necessary, to avoid injustice or absurdity. If no such necessity exist, 
but equity or utility manifestly require a restriction to the literal 
meaning, it must be most rigidly adhered to, except where circumstances 
compel us to do otherwise. But in things of an odious nature a figurative 
expression may be allowed in order to avoid inconvenience or injustice. 
Therefore, when any one makes a grant, or relinquishes his right, though 
he express himself in the MOST GENERAL terms, his words are usually 
RESTRICTED to that meaning, which it is probable he intended. And in cases 
of this kind, the hope of retaining a thing is sometimes taken for the act 
of possession. In the same manner it is understood that subsidies of men, 
promised by one party only, are to be maintained at the expence of the 
power, who requires them.

XIII. It is a famous question whether the word ALLIES includes only those 
who were such at the time of making the treaty, or those who might 
afterwards become so: as was the case in the treaty made between the Roman 
people and the Carthaginians at the conclusion of the war that had 
originated in a dispute about Sicily, by which treaty it was stipulated 
that both powers should forbear attacking the allies of each other. Hence 
the Romans inferred that although the convention made with Asdrubal, by 
which he was prohibited from passing the Iberus, had been of no service to 
them, as it had not been ratified by the Carthaginians, yet if the 
Carthaginians sanctioned the conduct of Hannibal in his attack upon the 
people of Saguntum with whom the Romans, after the making of that 
convention, had entered into an alliance, they should consider themselves 
as authorised to declare war against the Carthaginians for having violated 
a solemn treaty. Upon which Livy reasons in the following manner, "By the 
clause in favour of allies on both sides, there was sufficient security 
for the Saguntines. For there was no limitation of the words to those, who 
were allies at that time, nor were they such as to exclude either power 
from making new alliances. But if both sides were at liberty to make new 
alliances, who could think it just to deprive the new allies of that 
protection to which they would be entitled from treaties of amity? The 
exclusion could reasonably go no further than to declare that the allies 
of the Carthaginians should not be seduced to renounce their engagements, 
nor if they did so, be admitted into alliance with the Romans."

The last passage is taken, almost word for word, from the third book of 
Polybius. On which we may observe that the word ALLIES may strictly mean 
those, who were so at the time, when the treaty was made, and, without any 
forced interpretation, may also be extended to embrace those, who 
afterwards became such. To which of these interpretations the preference 
is to be given may be seen from the rules above given: and according to 
those rules, it will be found, that alliances formed after the making of 
the treaty will not be comprehended in it, because it relates to the 
breach of a treaty, the violation of which is an odious act, and tends to 
deprive the Carthaginians of the liberty of redressing themselves by force 
against those who were supposed to have injured them; a liberty sanctioned 
by the law of nature, and not to be abandoned on any slight occasion. Were 
the Romans debarred then by this rule from making any treaty with the 
Saguntines, and defending them after they became allies? No! they had a 
right to defend them, not by virtue of any treaty, but upon principles of 
natural justice, which no treaty can annul. The Saguntines therefore with 
respect to both powers were in the same situation, as if no engagement had 
been made in favour of allies. In this case, it was no breach of treaty 
for the Carthaginians, upon just grounds, to commence hostilities against 
the Saguntines, nor for the Romans to defend them. Upon the same 
principle, in the time of Pyrrhus, it had been stipulated, by treaty, 
between the Carthaginians and Romans, that if either of them afterwards 
entered into any engagement with Pyrrhus, the party so contracting should 
reserve to itself the right of sending succours to the other, if attacked 
by that king. Though in that case the war ON BOTH SIDES could not be just, 
yet it would involve no infraction of any treaty. This is an example of a 
case in equal treaties.

XIV. The case of an unequal treaty may be put, where it is agreed that one 
of the confederate parties shall not make war, without the consent, or by 
the injunction of the other, which was stipulated in the treaty between 
the Romans and Carthaginians, after the conclusion of the second Punic 
war. When the term WAR is applied to war of every description, 
particularly to offensive rather than defensive war; in a dubious case, it 
must be limited to its proper signification, lest the treaty should 
operate as too great a restraint upon the liberty of that power, which has 
engaged in the unequal treaty.

XV. Of the same kind is the promise given by the Romans, that Carthage 
should be free, which could never mean the enjoyment of complete 
independence, by a people, who had long before lost the right of making 
war, and many of their other privileges. Yet it left them some degree of 
liberty, so much at least, that they should not be obliged to remove the 
seat of their government at the command of any foreign power, and gave 
them a pledge that their city should not be disturbed. It was in vain then 
for the Romans to urge that it was only the city which was intended. 
Whereas those acquainted with the use of metaphorical language know that 
by the city is frequently meant the inhabitants, and government with its 
privileges, and not the mere walls and houses. For the term, BEING LEFT 
FREE, implies that the people should enjoy their own laws.

XVI. The nature of personal and real treaties is a frequent subject of 
inquiry, which may properly be examined in this place. Indeed in all 
transactions with a free people, the engagements entered into with them 
are of a real nature; because the subject of them is a permanent thing. So 
permanent, that, although a republican be changed into a regal government, 
a treaty will remain in force: for the political body continues the same, 
although the head be changed, and the sovereign power, which before was 
diffused among many members, is now centered in one. Yet this rule will 
admit of an exception, where it is evident that the specific form of 
government made an essential part of the treaty, as when two states make a 
federal union for the mutual preservation of their political systems. But 
if a treaty be made with a KING OR SOVEREIGN PRINCE, it does not 
consequently follow that it is to be considered only as a PERSONAL and not 
a REAL treaty. For the name of a person may be inserted in a treaty, not 
merely to give it the character of a personal treaty, but to point out the 
contracting parties. And this will be still more evident, if, as is usual 
in most treaties, a clause is annexed declaring it to be perpetual, or 
made for the good of the kingdom, or with the king himself, and his 
successors, and it will also be considered as a real treaty, even if it is 
stated to be passed for a definite time. The treaty between the Romans and 
Philip, King of the Macedonians, seems to have been of this description, 
which, upon the refusal of his son to continue it, gave rise to a war.

Other forms too besides those already named, and the subject itself, will 
frequently supply no improbable grounds of conjecture. But if the 
conjectures are equal on both sides, it will remain that favourable 
treaties are supposed to be real or permanent, and odious ones only 
personal. All treaties of peace or commerce are favourable. Yet all 
treaties of war are not odious, especially those of the defensive kind, 
such a character belonging only to offensive wars, from the contemplation 
of the calamities which they inflict. It is presumed too, that in the 
formation of treaties, the character of each party is taken into the 
account, and that both are persuaded that neither of them will commence 
hostilities, but from just and important causes.

What is usually said of societies terminating with the death of the 
parties, has no connection with this subject, but relates to private 
societies, the cognizance of which belongs to the civil law. Whether it 
was right or wrong therefore in the people of Fidenae, the Latins, Tuscans 
and Sabines, upon the death of Romulus, Tullus, Ancus, Priscus, Servius, 
to abandon the respective treaties made with those kings, it is impossible 
for us now to decide, those treaties being no longer extant. On the same 
point, Justin maintains a discussion, whether those states, which had been 
tributary to the Medes, were upon a change of government, released from 
their obligations. For the thing to be considered is, whether the 
convention with the Medes had been a voluntary act of their own. Indeed 
the argument of Bodinus can by no means be admitted, which is, that 
treaties made with kings extend not to their successors; For the 
obligation of an oath is limited to the person of him, who takes it. It is 
true that the oath itself can bind only the person who takes it; yet the 
engagements, which it confirms, will be binding upon his heirs. Nor is it 
to be taken for an established maxim, that oaths are the only foundation, 
on which treaties rest. The engagement itself is sufficiently binding, the 
oaths being only added to give it the greater sanctity. In the Consulship 
of Publius Valerius, the Roman people had taken an oath to muster at the 
command of the Consul. Upon his death, he was succeeded by Lucius Quintius 
Cincinnatus. Some of the tribunes began to quibble, pretending that the 
people were released from their obligation. Upon which Livy, in his third 
book, remarks, that "at that time they had not degenerated into the 
disregard of religious obligations, which marked his age: nor did every 
one allow himself a latitude in explaining oaths, and laws, but thought 
that he was bound to conform to their literal meaning."

XVII. A treaty made with a king continues in force, even though the same 
king or his successor should be banished from the kingdom by rebellious 
subjects. For the rights of a king, among which his alliances may be 
reckoned, remain unimpaired, during the temporary loss of his throne. A 
case to which the expression of Lucan may be applied, that "order never 
loses its rights under any change of circumstances."

XVIII. On the other hand, any war, if it be with the consent of the lawful 
sovereign, made upon the invader of his kingdom, or upon the usurper of a 
free people's rights before his usurpation has received public sanction, 
will be deemed no infraction of any former treaty with the established 
authorities of that kingdom or country, For acts of usurpation convey not 
immediately any right beyond that of bare possession. And this is what was 
said by Titus Quintius to Nabis, "We made no treaty of alliance and amity 
with you, but with the just and lawful king of the Lacedaemonians." For in 
treaties the characters of KING, SUCCESSOR, and the LIKE, carry with them 
an idea of a peculiar and lawful right, which must always render the cause 
of USURPERS odious.

XIX. It was a question formerly discussed by Chrysippus, whether a prize 
promised to him, who first reached the goal, could be given to two, who 
reached it at the same time, or to neither. But as rewards of merit are 
things of a favourable nature, it is the juster opinion that they should 
divide the prize. Although Scipio, Caesar and Julian acted more liberally, 
in giving the entire prizes to each of those who had ascended the walls 
together.

What has been already said upon the literal or figurative application of 
the words, in interpreting treaties, will be sufficient.

XX. There is also another kind of interpretation, arising from 
conjectures, which apply exactly to the signification of the words 
containing a promise or engagement; and that is of a twofold description, 
either extending or limiting the meaning. But it is more difficult to 
extend than to limit the acceptation of expressions. For as in all matters 
the want of one essential requisite is sufficient to defeat their effect; 
so in engagements, those conjectures, which extend the obligation are not 
readily to be admitted. And it is much more difficult here than in the 
case above mentioned; where words allow a more extensive but less familiar 
acceptation. For here it is seeking a conjecture to extend the words of a 
promise: the conjecture therefore, which is to create an obligation, ought 
to be very certain. Nor is it sufficient that there is some resemblance in 
the motives; for the motive produced to confirm an obligation must be 
exactly the same as that of the case under consideration. Neither is it 
always proper to allege a motive for extending an obligation; because, as 
it has been already said, motives, in actuating us to form engagements, 
may sometimes be swayed by the will which often acts independently of any 
just motive. To authorise therefore such an extension, it must be evident 
that the motive, produced as an example and authority, was the sole and 
effectual cause, which influenced the promiser, and that he considered it 
in the same extensive view; for otherwise it would have been unjust and 
prejudicial. The ancients in their treatises on rhetoric follow the same 
rule, when, in speaking of the LETTER and DESIGN, they give us one 
invariable form of expressing the same sentiment, but in their syllogisms 
or arts of reasoning they point out a way of interpreting what is not 
written, by what is written. In the same manner too legal writers lay down 
rules for avoiding frauds. Now if at a time, when there was no other mode 
of fortifying towns, than by surrounding them with walls, it were 
stipulated that a certain place should not be so surrounded, it is evident 
that to employ any other means of fortification would be a breach of that 
treaty.

As in the above case the interpretation must be extended to guard against 
every possible evasion, so in the following example, the prohibition to 
assemble an armed force to assail us includes all kinds of violence and 
force, by which our lives and security may be endangered.

[Translator's note: The case of a promise made on the supposition of a 
posthumous child's dying, instanced by our author in this place, bears so 
near a resemblance to that of a father's bequeathing his property to 
another, believing his son to be dead, that it is omitted in this chapter 
having been already given under the head of erroneous promises in the xi. 
chapter and 6th section of this book.]

XXI. Hence may be solved the question to be found in Gellius, respecting a 
commission, whether it can be fulfilled by doing, not the immediate act 
required, but some thing equivalent to it, or in a manner more beneficial 
than in the form prescribed. For this deviation from the written rule may 
be proper and lawful, where the prescribed form is not essential towards 
attaining the object, or where, by departing from it, that object can be 
better accomplished, according to the answer given by Scaevola, that the 
person required to be bail and security for another, may give an order to 
a third person to pay that money to the creditor. But where such a 
latitude of interpretation is not evidently admissible, we must adhere to 
what Gellius has said in the same place, that it would be a dissolution of 
all trusts, if the party acting in commission were, in all cases, left to 
his own discretion, rather than bound by his written instructions..

XXII. An interpretation, restricted more closely than the literal 
signification of the words containing a promise absolutely requires, may 
arise either from some original defect in the intention of the promiser, 
or from some sub. sequent emergency repugnant to such intention. Thus if 
it were evident that an absurdity would follow the fulfillment of a 
promise, this would be sufficient to prove an original defect in the 
intention, because no man can be supposed to have deliberately intended 
doing an absurd act. Or if the sole and effectual reason, by which the 
promise was influenced, should have ceased, the obligation also would be 
void, the sole ground on which it rested being no longer in existence.

XXIII. In the next place, where any sufficient reason can evidently be 
assigned for a promise or engagement, it is not the substance of the 
promise itself, which is to be considered, so much as the reason for which 
that promise was given.

XXIV. Thirdly, the contending parties must always be supposed to have in 
contemplation the subject, and nothing but the subject, however extensive 
a signification the words may seem to bear. This method of interpretation 
also is handled by the ancient rhetorical writers, in speaking of 
expression and design, and they place it under the head of VARIATIONS IN 
OPINION.

XXV. In speaking of motives and reasons, it is proper to observe, that 
they some times comprehend things, considered not according to their 
actual existence, but according to their moral consequences: in which case 
it is by no means right to limit the words of a treaty to their literal 
meaning, but the utmost extent of interpretation is allowable, in order to 
maintain the spirit as well as the letter of such treaties. Thus if it be 
stipulated that no troops or ships shall be brought to a certain place, or 
within a certain distance, the prohibition excludes ALL ships or troops 
from being brought thither, even under the fairest and most harmless 
pretences. For the purport of the treaty is to guard not only against 
actual mischief but even against remote danger.

It is a point often disputed, whether the continuance of things in their 
present state is a tacit condition, on which the fulfillment of all 
promises is founded. A position that can by no means be maintained, unless 
it appears that such continuance was the sole motive upon which the 
treaties were made. As in many parts of history, we read of ambassadors 
having relinquished their missions, and returned home, upon finding the 
state of things so changed that the object of their embassies was at an 
end.

XXVI. When an emergency arises repugnant to the general intention of an 
act, it is explained by the ancient masters of rhetoric under the head of 
expression and design. Now this variation between the emergency and the 
intention is of a twofold nature. For the will and its intention are to be 
collected either from natural reason or from some outward sign. In judging 
of the will by natural reason, Aristotle, who has treated the subject with 
great accuracy, makes the MIND the SEAT OF JUDGMENT, and the WILL the SEAT 
OF EQUITY, which he nobly defines to be the correction of that, wherein 
the law, by reason of its universal nature is defective.

And upon this principle all wills and treaties ought to be interpreted. 
For as all cases could neither be foreseen nor expressed by the lawgiver, 
it is necessary to leave a power of excepting the cases, which he himself 
would have excepted if he were present. Yet this is not to be done upon 
light grounds; for that would be exercising a controul over the acts of 
another; but is only to be established upon the clearest evidence and 
strongest proofs. The clearest proof we can have of a want of equity, is 
where following the literal meaning of the words would be unlawful, that 
is, repugnant to natural or divine precepts. For such things, as are 
incapable of obligation, are necessarily to be excepted. Quintilian the 
elder, says, " some things although comprehended within the meaning of no 
law form a natural exception." Thus any one, who has promised to return a 
sword, that has been given up to him, ought not to return it into the 
hands of a madman, as danger might result from it to himself or to other 
innocent persons. Likewise a thing, which has been deposited with any one, 
ought not to be returned to the hands of the person, who gave the pledge, 
if the real owner demands it. I prove this says Triphonius to be justice, 
which assigns to every one his own without disturbing the still juster 
claims of another. For the reason, it has been already observed, is 
founded on the institution of property, which makes it unjust not to 
return a thing when the real owner is known.

XXVII. The need of equity too will appear in cases, where following the 
literal meaning of the words will not be absolutely unlawful, yet, upon a 
fair estimation, will be found too hard and intolerable. It might impose a 
hardship inconsistent with the general condition of human nature, or, upon 
comparing the person and matter under consideration with each other, it 
might be found at variance with the general intent of all law, which is to 
prevent evil and to redress injury. Thus, if a person has lent a sum of 
money, or any other thing, for a CERTAIN time, he may justly require the 
repayment or restoration of it WITHIN that time, if he has great need of 
it himself: for acts of kindness are of such a nature, that no one can be 
supposed intentionally to bind himself thereby to manifest inconvenience 
or prejudice. In the same manner a sovereign, who has promised assistance 
to an ally, will, IN EQUITY, be excused from fulfilling his engagement, if 
he wants all his strength at home to ward off danger or hostilities. The 
grant also of immunities or privileges in ORDINARY cases, cannot be 
pleaded as an exemption or exception from the services, which the state in 
PARTICULAR emergencies requires.

From the above instances it appears that Cicero has too loosely worded his 
proposition, "that such promises, as are prejudicial to the person, to 
whom they are given, are not to be kept, nor, if they are more prejudicial 
to the party giving, than beneficial to the person receiving them. "For it 
should not be left to the promiser to judge, whether the fulfillment of 
his engagement will be serviceable to the party receiving it, except in 
the case of the madman cited above: nor is any TRIVIAL or IMAGINARY 
prejudice that might result from it, sufficient to release the obligation. 
But it ought to be such, as, according to the nature of the act, would 
necessarily be supposed to form an exception. Thus any one, having 
promised his assistance to a neighbour at a certain period, would not be 
bound to his engagement, if he were detained at home by the sickness of a 
father or a child. A case, which Cicero, in his first book of offices, has 
put in the following terms, "If any one has undertaken to manage a cause, 
and, in the mean time, his son is taken ill, it will be no breach of duty 
in him not to perform what he has promised." There is a passage in the 
fourth book of Seneca, ON BENEFITS, to the same effect. "I am liable, says 
he, to be charged with levity, and a breach of faith, if, things 
continuing as they were, when I made a promise, I do not perform my 
engagement. But if any change has taken place, it leaves me at liberty to 
reconsider the matter, and releases the obligation. I promised my support 
in court, and it afterwards appeared that the cause would be prejudicial 
to my own father. I promised to take a journey, but afterwards heard that 
the road was infested with robbers. I promised my presence on some 
particular occasion, but was prevented from attending by the sickness of a 
son. In all these cases, to bind me to my engagement, the circumstances 
ought to re. main exactly the same as they were when I made the promise."

XXVIII. It has been said that there are other indications of intention, 
which require an equitable exception in favour of the present case. And 
among such proofs there can be nothing stronger than the same words used 
in another place, not where they directly oppose the present meaning, for 
that would amount to a contradiction, but where they clash with it, owing 
to some unexpected emergency, which the Greek Rhetoricians call a 
circumstantial disagreement.

XXIX. When there is any accidental collision between one part of a written 
document and another, Cicero, in the second book of his treatise ON 
INVENTION, has given rules for deciding which of them ought to have the 
preference. Though his arrangement is not very accurate, yet it is by no 
means to be neglected. To supply therefore this defect of accuracy, the 
rules may be digested in the following order.

In the first place, a PERMISSION ought to give way to a COMMAND: because a 
permission appears to be granted only in case there is no weightier 
objection than its being an exception to a positive precept, nor any 
preponderance in favour of an opposite determination. Consequently, as the 
writer to Herennius says, what is positively prescribed is more powerful 
than a bare permission. 

In the next place what is required to be one at a FIXED time should have 
the preference to what may be done at ANY time. From whence it follows 
that the PROHIBITIONS of a treaty are generally of more weight than its 
INJUNCTIONS: because the prohibitory power operates at ALL times. But it 
is not so with injunctions, unless an express time for their fulfillment 
is named, or they contain a tacit prohibition.

Among those treaties, which, in the above named respects, are equal, the 
preference is given to such as are more particular, and approach nearer to 
the point in question. For where particulars are stated, the case is 
clearer, and requires fewer exceptions than general rules do.

Those prohibitions which have a penalty annexed to them, are of greater 
weight than those, which have not; and those with a greater penalty are 
enforced in preference to those that have a less. Those engagements also 
which are founded -upon causes of less magnitude and importance ought to 
give way to those which have more laudable and useful objects in view.

Lastly it is to be observed that a subsequent law or treaty always repeals 
a former.

From what has been said an inference may be drawn in favour of sworn 
treaties or agreements that they ought to be taken in the most usual 
acception of the words, rejecting all implied limitations and exceptions, 
and such as are not immediately necessary to the subject. Consequently in 
a case, where a sworn treaty or engagement may happen to clash with 
another not enforced by the obligation of an oath, the preference ought to 
be given to the former.

XXX. It is often asked whether in doubtful points, a contract should be 
deemed perfect, before the writings are made and delivered. We find in 
Appian's history of the Mithridatic war, that it was upon this very ground 
Murena objected to the convention between Sylla and Mithridates. However 
it appears plain, unless it has been settled to the contrary, that writing 
ought to be considered admissible as evidence of a contract, though not as 
part of the substance, otherwise it is usually expressed, as in the truce 
with Nabis, which was to be ratified from the clay the terms were WRITTEN 
and DELIVERED to him.

XXXI. We can by no means admit the rule laid down by some writers, who 
maintain, that all engagements of kings, and states, ought to be 
explained, as far as it is possible, upon the principles of the Roman law: 
unless indeed it can be made to appear that among some states, in their 
intercourse with each other, the CIVIL LAW is received as the LAW OF 
NATIONS; a presumption which ought not to be hastily granted.

XXXII. As to the doubt, which Plutarch advances in his Symposiacs, whether 
the words of the party offering, or those of the one accepting a condition 
ought to be most attended to, it appears that where the party accepting 
the terms is the promiser, the nature and substance of the transaction 
will depend upon his words, if they are absolute and unqualified. For if 
the offer is regarded as a positive engagement to do certain acts, then 
the full extent of it will be seen by the necessary repetition of the same 
words in the promise. But before a condition is accepted, it is evident, 
as was seen in the chapter on promises, that the promiser is not bound to 
its fulfillment; for no right has been conferred by the one party, or 
acquired by the other. Therefore the offer of a condition of this kind 
does not amount to a perfect promise.


CHAPTER 17: On Damages Occasioned by Injury and the Obligation to Repair 
Them.

On Damages occasioned by injury, and the obligation to repair them — Every 
misdemeanor obliges the aggressor to repair the loss — By loss is meant 
any thing repugnant to right strictly so called — Distinction between 
fitness and strict right — Loss or diminution of possession includes every 
injury done to the produce as well as the property itself — Loss estimated 
from the time that gain ceases Injuries done by principals — By 
accessories — Injuries done by the neglect of principal or of secondary 
agents — What persons are implicated in those charges, and in what degrees 
— The parties engaged answerable for all consequences — The case where 
homicide or any other act of violence ensues — Case of robbery — Or theft 
— Promises obtained through fraud or unjust fear — In what cases the 
consequences are imputable to the suffering party — How far the law of 
nations authorises states to take advantage of an enemy's fear — How far 
sovereigns are answerable for any acts of violence committed by their 
subjects — The case where subjects in violation of their sovereign's 
permission and orders commit acts of piracy upon allied or neutral states 
— No one answerable by the law of nature for the mischief done by his 
cattle, his slaves, or his ship — Damages allowed for injuries done to 
reputation or honour — What kind of reparation allowed.

I. IT HAS been said above that the rights due to us arise from three 
sources, which are contract, injury and law. It is unnecessary here to 
dwell upon the nature of contracts which has been already so fully 
discussed. The next point therefore to which we proceed is an inquiry into 
the rights resulting to us from injuries received. Here the name of crime 
or misdemeanor is applied to every act of commission or neglect repugnant 
to the duties required of all men, either from their common nature or 
particular calling. For such offences naturally create an obligation to 
repair the loss or injury that has been sustained.

II. By loss is meant a diminution of what any one possesses, whether it be 
a right derived to him purely from the law of nature, or from the addition 
of human authority, that is from the law of property, contract, or civil 
law. God has given life to man, not to destroy, but to preserve it; 
assigning to him for this purpose a right to the free enjoyment of 
personal liberty, reputation, and the controul over his own actions. The 
manner, in which property and contracts convey to any one a right to 
things, as well as to the service of another, has been shewn in the 
preceding part of this treatise. In the same manner from the law every man 
derives his peculiar right; because the law has the same, if not greater 
power over persons and things than individuals themselves have. Thus by 
the appointment of law, a ward has a right to demand the strictest 
diligence of a guardian, the state of a magistrate, and not only the 
state, but every subject has a right to require it; where the law 
expressly declares or evidently implies that certain acts shall be 
performed. But the bare circumstance of an action being fit or proper 
gives not the right of POLITICAL justice to demand its performance, nor 
does the neglect of it entitle the party suffering to any legal redress. 
Because it does not follow that a thing must belong to a person because it 
is fit or beneficial for him. Thus, as Aristotle says, there is no actual 
injustice, though it may be illiberal to refuse assisting another with 
money. To the same purpose Cicero, in his speech for Cneius Plancus, says, 
that giving their votes to whom they please, or withholding them if they 
think proper, is the true characteristic of a free people. He afterwards, 
indeed, corrects his assertion by adding, that they may happen to do what 
they like, rather than what they ought to do, taking the word OUGHT to 
signify propriety.

III. A precaution is necessary here, in order to avoid confounding things 
of a different kind.

Now those who are entrusted with the power of appointing magistrates, are 
bound, from motives of public good, to chuse the properest persons, and 
this is what the state has a RIGHT to require of them. They are bound 
therefore to repair any loss which the state may sustain by the choice of 
improper persons. So any subject who is not disqualified, though he has no 
peculiar right to an office, has an equal right with others to endeavour 
to obtain it. In the exercise of which right, if, he is obstructed by 
violence or fraud, he may recover damages, not to the full value of the 
office which he sought, but according to the probable loss which he may 
reasonably be supposed to have suffered. Similar to which is the right of 
a legatee, when a testator has been prevented by fraud or violence from 
making a bequest. For the capability of receiving a legacy is a kind of 
right, which to obstruct a testator from conferring, is undoubtedly an 
injury.

IV. The loss or diminution of any one's possessions is not confined to 
injuries done to the SUBSTANCE alone of the property, but includes every 
thing affecting the produce of it, whether it has been gathered or not. If 
the, owner himself had reaped it, the necessary expence of reaping, or of 
improving the property to raise a produce, must also be taken into the 
account of his loss, and form part of the damages. For it is an 
established maxim that no one ought to derive benefit from the loss of 
another.

V. Damages are to be computed too, not according to any ACTUAL gain, but 
according to the REASONABLE expectation of it. Which in the case of a 
growing crop may be judged of by the general abundance or scarcity of that 
particular season.

VI. But besides the person immediately doing an injury, others may be 
bound also to repair the losses of the suffering party. For as a person 
may be guilty of offences by negligence as well as by the commission of 
certain acts, so they may be done also by accessories, as well as 
principals. Now a principal in any crime or offence is one, that urges to 
the commission of it, that gives all possible consent, that aids, abets, 
or in any shape is a partner in the perpetration of it.

VII. An accessory is one who gives his counsel, approbation, and assent. 
For where is the difference, says Cicero, in his second Philippic, between 
advising an act, and approving of it?

VIII. and IX. The obligation to repair the losses suffered by negligence 
may be considered in a two-fold light. Firstly, when any person, whose 
peculiar office it is, neglects either to forbid the commission of an 
injury, or to assist the injured party. And secondly, when the person, who 
ought to do it, either does not dissuade from the commission of an 
offence, or passes over in silence, what he is bound to make known. In 
these cases, when it is said that a person OUGHT to do, or to forbear 
doing certain actions, it is meant that he is bound by that right, which 
strict justice requires, whether that duty arises from law, or from the 
capacity, which the person bears. For though it may be wrong to omit any 
duty enjoined by the law of charity, there can be no redress for such 
omission, but every LEGAL REMEDY must be founded on some PECULIAR RIGHT.

X. It is to be observed also that all the parties above mentioned, if they 
have been the real occasion of loss to any one, or have abetted the person 
doing him the injury, are so far implicated in the guilt, as to be liable 
to full damages, or, at least, proportionably to the part they have taken. 
For it may and often does happen that a crime would have been committed by 
an offender, even without the aid of other principals or accessories. In 
which case he alone is answerable. Yet neither principals nor accessories 
will be allowed to plead as an excuse, that if they had not aided or 
abetted, others would have been found to assist and encourage the 
perpetrator in the commission of the act. Especially, if it appears that 
without such assistance from them the crime would never have been 
committed. For those other imaginary abettors would themselves have been 
answerable, if they had given their advice or aid. 

XI. In the scale of implication the first degree applies to those, who by 
their authority, or other means have compelled or urged any one to the 
commission of an offence. On failure of these the perpetrator himself has 
the greatest share of guilt, and next to him, others who have been 
concerned. In short, all individuals, whose hands have been engaged in the 
perpetration, are guilty, though they have not been the sole authors of 
the act.

XII. Now he who is answerable for an act, is answerable for all the 
injurious consequences attending it. Seneca in one of his controversies, 
treating upon this point, puts the case of a plane-tree set on fire, by 
which a house was burnt, and he subjoins the following remark, "although 
the mischief went further than was intended, yet the person doing it was 
answerable for the WHOLE, as much, as if he had done it by design. For any 
one that puts his defence upon the plea of UNINTENTIONAL INJURY, ought to 
have abstained from all mischief whatsoever." When Ariarathes, king of 
Cappadocia had wantonly obstructed the channel of the river Melas, which 
discharges itself into the Euphrates, the swell of waters bursting the 
mounds, the Euphrates rose to such a height, as to occasion excessive 
damage to the Cappadocians, the Galatians, and the Phrygians. Upon which 
the decision of the matter being left to the Romans, they imposed upon him 
a fine of three hundred talents.

XIII. XIV. XV. and XVI. But to proceed with other instances of injury, 
which render the parties committing them liable to repair the losses 
occasioned thereby. The case of excusable homicide may be alleged as one, 
wherein the person, who has committed it, is bound to make every 
reasonable compensation to the family, dependents, and connections of the 
deceased party, in proportion to the loss, which they have sustained from 
his death. As Michael the Ephesian in the fifth book of Aristotle's Ethics 
has observed, that the compensation made to the parents, the wife or 
children of the deceased is nearly the same as if it could be made to 
himself. The writer is here speaking of excusable homicide, that is, when 
the person by whom it is committed, does it not in the immediate discharge 
of some legal duty. Wherefore if any one, in defending himself, has killed 
another from whom he might have escaped, though he may have violated the 
law of charity, yet he has not incurred the penalty of a capital offence.

Upon the same principle the person, who has maimed or mutilated another, 
will be bound to make him a compensation, proportionably to the means of 
subsistence which he is deprived of by such a calamity.

A thief or a robber is bound to restore what has been taken, and to return 
it with all the improvements it may have acquired, or to make reparation 
to the owner, in proportion to the gain, which the privation has prevented 
him from making, or to the actual value of the thing itself. If the thing 
has been irretrievably consumed, the estimation of damages must be made, 
according to a medium between the highest and the lowest value.

To this class of offences and due reparation may be referred all frauds 
upon the public revenue, all unjust decisions, or all false evidence, by 
which states or individuals are injured.

XVII. Contracts, or promises obtained by fraud, violence or undue fear 
entitle the injured party to full restitution. For perfect freedom from 
fraud or compulsion, in all our dealings, is a RIGHT which we derive from 
natural law and liberty.

With the same class of offenders we may rank all men in office, who are 
unwilling to discharge their duty without a bribe.

XVIII. When a person has HIMSELF been the occasion of the fraud or 
violence, the consequences are imputable to his own conduct. For where a 
voluntary act gives rise to INVOLUNTARY consequences, those consequences, 
considered in a moral light, are to be deemed the fruits growing out of 
the exercise of a free will.

XIX. But to connect the preceding cases and arguments with public and 
national concerns, it is necessary to observe, that it is a maxim 
introduced and established by the consent of all nations that the wars 
which are declared and conducted by the authority of the sovereign power 
on both sides are alone entitled to the denomination of just wars: And the 
enemy has no right to demand restitution for what the prosecution of such 
wars has reduced him to abandon through fear. It is upon this principle we 
admit the distinction which Cicero has made between an enemy, towards whom 
the consent and law of nations oblige us to observe many common rights, 
and between robbers and pirates. For any thing given up to pirates or 
robbers, through fear, is no lawful prize: but it may be recovered, unless 
a solemn oath of renunciation has been taken. This is not the case with 
the captures made in just war.

The justification which Polybius makes for the Carthaginians, in the 
second Punic war, carries with it an appearance of equity, though it is 
not a question immediately founded upon the law of nations. They alleged 
as a reason for their making that war, that, when they were engaged in 
quelling a mutiny of their own mercenaries, the Romans had declared war, 
seized upon Sardinia, and levied contributions of money.

XX. Sovereign Princes and States are answerable for their neglect, if they 
use not all the proper means within their power for suppressing piracy and 
robbery. And on this account the Scyrians were formerly condemned by the 
Amphictyonic council.

When some of the states of the united Provinces had, on a particular 
occasion, granted commissions to many privateers, and those adventurers 
plundered friends and enemies alike, and became general pirates, it was a 
subject of great discussion, whether those states were justified in having 
made use of the services of desperate and abandoned men, without exacting 
sufficient security for their good conduct. At that time, it was 
maintained that they were bound to nothing more, than to punish or deliver 
up the offenders, if they could be found, and to see justice done by a 
forfeiture of their property. For they themselves had neither authorised 
those UNJUST acts of plunder, nor shared in the fruits of them. They had 
even strictly prohibited the privateers from molesting the subjects of 
friendly powers. As to their taking securities, there was no obligation to 
do that: for they had a right to grant a GENERAL commission to all their 
subjects to seize upon the enemy's property: a thing, which had frequently 
been done. Nor could that particular commission be considered as an act of 
injustice against either allies or neutrals; since even without such 
permission individuals might have fitted and sent out armed vessels. The 
states could not foresee, nor consequently provide against the misconduct 
of those adventurers, who had exceeded their commission; and if nations 
were to decline using the assistance of wicked men, no army could ever be 
collected. And it has been confirmed by the authority both of France and 
England, that a sovereign cannot answer for every injury done to the 
subjects of a friendly power by his naval or military forces; especially 
if it is plain that they acted in violation of his orders.

But in what cases any one is released from being answerable for what is 
done by his subordinate agents, is a point not so much for the law of 
nations, as for the municipal law, and particularly the maritime code of 
each country to decide. In a case similar to that alluded to, a decision 
of the supreme court of judicature was made against the Pomeranians two 
centuries at least before. 

XXI. It is the CIVIL law too, which makes an owner answerable for the 
mischief or damage done by his slave, or by his cattle. For in the eye of 
natural justice he is not to blame. So neither is the person, whose ship, 
by running foul of another, has damaged it, though by the laws of many 
nations, and of ours among the rest, the damages are usually divided 
between both parties, owing to the difficulty of deciding, who was in 
fault.

XXII. Damages are allowed too for any injury done to our honour or 
reputation, by assault, slander, or various other ways. In which, as well 
as in theft and other crimes the nature of the offence is to be estimated 
by its consequences. For the reparation in such cases answers to the 
penalty imposed for crimes. And that reparation is made some times by 
acknowledging the injured party's innocence; and some times by a 
compensation in money, which is a standard value of all things.


CHAPTER 18: On the Right of Embassies.

Right of Embassies, an obligation arising out of the law of nations — 
Where it obtains — Whether Embassies are always to be admitted — Dismissal 
or punishment of ambassadors engaging in plots not to be considered as a 
harsh measure, but an act of self-defence — A power to whom no ambassador 
has been sent, not bound to respect the rights of embassy — An enemy to 
whom an ambassador is sent bound to respect his rights — The law of 
retaliation no plea for ill treatment of an ambassador — This right of 
protection extends to an ambassador's suite, if he thinks proper to claim 
it — To his moveable property — Examples of obligation without the right 
of compulsion — Importance of the sacred character of ambassadors.

I. HITHERTO the pursuit of our inquiries has led us to examine those 
rights to which we are entitled by the law of nature, occasionally 
touching upon those points where its authority is farther confirmed by the 
voluntary law of nations. And that voluntary law as it is called, gives 
rise to certain obligations, which now remain for our discussion, and in 
which the rights of embassadors form a leading feature. Almost every page 
of history offers some remark on the inviolable rights of ambassadors, and 
the security of their persons, a security sanctioned by every clause and 
precept of human and revealed law. Nor is it surprising that the persons 
of those should be deemed inviolable, who form the principal link in that 
chain, by which sovereigns and independent states maintain their 
intercourse with each other. To offer violence to them is not only an act 
of INJUSTICE, but, as Philip in his letter to the Athenians says, is 
acknowledged by all to be an act of IMPIETY.

II. But whatever rights the law of nations may confer upon ambassadors, it 
is necessary in the first place to observe, that none are entitled to 
them, but those, who are sent by the sovereigns of independent countries 
to each other. For the privileges of provincial, or municipal deputies 
sent to the states general of any country are regulated by the particular 
laws of that country and not by the law of nations.

Thus we find, in the first book of Livy, an ambassador styling himself a 
public messenger of the Roman People; and, in the sixth book of the same 
historian, we have a declaration of the senate, confining the rights of 
embassies to the intercourse between foreign powers, and excluding 
citizens from the same privileges in their transactions with each other. 
Upon this topic, the authority of Cicero may be cited, who, in order to 
shew the impropriety of sending ambassadors to Antony, observes, that they 
are not dealing with a Hannibal or a foreign enemy, but with one of their 
own citizens. 

Now Virgil has so clearly explained WHO are to be reckoned FOREIGNERS, 
that we need not have recourse to lawyers, to understand what is so well 
expressed by the poet, who says, "I look upon every country as foreign, 
which owns not the sway of our sceptre." Aen. vii. 369.

A state therefore connected with another though by an unequal treaty, if 
it retain its independence, will have a right of sending embassies. The 
Princes of Germany, who were in some respects subject to the Emperor, as 
their head, being Sovereign Princes possessed the right of sending 
ambassadors to foreign states. But Kings who have been entirely subdued in 
just war, and stripped of their dominions, have, with all their other 
sovereign rights, lost that of sending ambassadors. It was for this 
reason, that Paulus Aemilius made prisoners of the messengers sent to him 
by Perseus, whom he had conquered.

In civil wars necessity sometimes gives birth to new rights in violation 
of former rules. When for instance, a kingdom is so equally divided 
between two parties, that it is a matter of doubt which of them 
constitutes the nation, or in a disputed succession between two claimants 
of the crown; the kingdom may be considered as forming two nations at the 
same time. Tacitus, considering each party in such cases, as entitled to 
the rights of the law of nations, condemns the Flavians for having, in the 
rage of civil dissensions, violated, in the persons of the Vitellian 
ambassadors, those privileges, which are respected even among FOREIGN 
nations. Pirates and robbers, as they form no civil community, cannot rest 
any claim to protection and support upon the law of nations. Tiberius, as 
we are informed by Tacitus, when Tacfarinas sent ambassadors to him, 
spurned at the idea of treating with a robber, as with a lawful enemy. Yet 
sometimes a pledge of public faith, and the rights of embassy are allowed 
to men of that description, which was done by Pompey to the fugitives from 
the Pyrenean forest.

III. There are two points upon which the privileges granted by the law of 
nations to ambassadors turn. In the first place, they have a right to be 
admitted into any country, and secondly to be protected from all personal 
violence. Respecting the former of these points, there is a passage in the 
eleventh book of Livy, where Hanno, a Carthaginian senator inveighs 
against Hannibal for not having admitted into his camp ambassadors, who 
came from the allies, and on their behalf; as he had thereby overturned 
the law of nations. 

But this rule by no means compels nations to give an UNQUALIFIED admission 
to all ambassadors. For that is what the law of nations can never intend: 
it only prohibits the refusal of admission without sufficient grounds.

There are various motives which may afford a sufficient plea for such 
refusal. There may be an objection to the power who offers to treat, to 
the person sent upon the embassy, or perhaps to the object of his mission. 
Thus at the suggestion of Pericles, Melesippus, the Lacedaemonian 
ambassador, was sent out of the territories of Athens; because he came 
from an enemy, who had no pacific intentions. The senate of Rome said, 
that they could receive no embassy from Carthage, as long as the 
Carthaginian army remained in Italy. The Achaeans refused to admit the 
ambassadors of Perseus, who were secretly MEDITATING war against the 
Romans. Upon the same grounds Justinian rejected an embassy from Totilas, 
and the same was done by the Goths at Urbino to messengers from 
Belisarius. Polybius relates in the third book of his history, that every 
power drove away the ambassadors of the Cynethensians, as they were so 
infamous a people.

We have an instance of the second kind, where the objection is made to the 
PERSON sent on an embassy, in the case of Theodore, who was called the 
atheist, and whom Lysimachus refused to receive in the character of an 
ambassador sent from Ptolemy, and the same thing has frequently happened 
to others, against whom peculiar motives of aversion have existed.

In the third place, there may be sufficient grounds for refusing to admit 
an ambassador, if the object of his mission be of a suspicious kind, as 
was the case with that of Rhabsbakeh the Assyrian, whom Hezekiah had 
reason to suspect of coming with a design to excite his people to 
rebellion. Or the refusal may be justified, where it is not consistent 
with the dignity or circumstances of one power to enter into any treaty, 
or intercourse with another. For this reason the Romans sent a declaration 
to the Aetolians, that they should send no embassy, but with the 
permission of their general, and Perseus was not allowed to send one to 
Rome, but to Licinius. Jugurtha's ambassadors too, as Sallust informs us, 
were ordered to leave Italy within the space of ten days, unless they came 
with offers from that prince to surrender himself, and his kingdom. 

There may often be the best reasons for a sovereign's refusing to allow of 
a RESIDENT minister at his court; a practice, so general in the present 
day, but totally unknown to the ages of antiquity.

IV. As to the personal exemption of ambassadors from arrest, constraint, 
or violence of any kind, it is a subject of some difficulty to determine, 
owing to the varieties of opinion entertained by the most celebrated 
writers on the question. In the consideration of this matter, our 
attention is directed in the first place to the personal privileges and 
exemptions of ambassadors themselves, and next to those of their 
attendants, and their goods. With respect to their persons, some writers 
are of opinion, that it is ONLY from UNJUST VIOLENCE, and ILLEGAL 
CONSTRAINT, that the law of nations protects ambassadors. For they imagine 
that their privileges are to be explained according to the common 
principles of the law of nature. Others again suppose that ambassadors are 
not amenable to punishment for ALL offences, but only for such as amount 
to a transgression of the law of NATIONS, the principles of which are of 
such general extent, as to include the law of nature: consequently there 
can be no offences for which an ambassador is not punishable, except for 
those actions that are made such by the positive rules of MUNICIPAL or 
CIVIL LAW.

Others again consider these public representatives of states and crowned 
heads, as only liable to punishment for offences affecting the dignity or 
governments of the sovereigns to whom they are sent. While, on the other 
hand, there are some writers who maintain that for any state to punish an 
ambassador for ANY CRIME WHATEVER is highly dangerous to the independence 
of foreign powers; but that all offenders of that description ought to be 
left to the laws of their respective countries, to be punished or not, 
according to their deserts, upon due complaint being made to the 
sovereigns by whom they were sent 

Some few writers, indeed, in laying down the rule to be observed in such 
cases, have decided that an appeal should be made to other independent and 
disinterested powers, which may be considered rather as a matter of 
DISCRETION, than Of ABSOLUTE RIGHT. But the advocates of all these various 
systems have come to no definite conclusion in support of their favourite 
opinions. For this is a right which cannot, like the law of nature, be 
established upon unchangeable rules, but derives all its efficacy from the 
will of nations. Nations if they had thought proper, certainly might have 
laid down ABSOLUTE rules of security for ambassadors, or coupled them with 
certain exceptions. The argument is supported on one side by the urgent 
necessity of heinous crimes being punished, and on the other, the utmost 
latitude of exemption is favoured on account of the utility of embassies, 
the facility of sending which ought to be encouraged by every possible 
privilege, and security. To settle the point therefore, we must consider 
how far nations have agreed among themselves upon these principles; the 
proofs of which can only be found in the evidence of history.

Many instances may be produced in favour of both opinions. And in cases 
like this, the opinions of those celebrated for their judgment and 
knowledge will be of no small weight, but in some cases we must rest upon 
conjectures- On this subject the two eminent historians, Livy and Sallust, 
may be quoted as authorities, the former of whom, in mentioning the 
ambassadors of Tarquin, who had been guilty of fomenting treasonable 
conspiracies at Rome, says, " that although they deserved to be treated as 
enemies for their guilty conduct, yet the privilege, which they derived 
from the law of nations, prevailed over every other consideration. "Here 
we see that the rights of ambassadors could not be annulled even by the 
most criminal acts of hostility. But the observation made by Sallust, — 
relates rather to those who come in the train of an embassy than to 
ambassadors themselves. The law of nations surely then will not deny the 
same privilege to a principal, which it evidently allows to those who form 
but a subordinate part in the public mission. The historian says, that 
"Bomilcar was arraigned and tried rather upon principles of equity and 
natural justice, than in conformity to the law of nations, as he belonged 
to the train of Jugurtha; who had come to Rome under the pledge of public 
faith."

Equity and natural justice require punishment to be inflicted on ALL 
offenders, whereas the law of nations makes an exception in favour of 
ambassadors, and those who have the public faith for their protection. 
Wherefore to try or punish ambassadors, is contrary to the law of nations, 
which prohibits many things, that are permitted by the law of nature.

The law of nations, thus deviating from the law of nature, gives rise to 
those interpretations and conjectures, which reconcile with the principles 
of justice a greater extension of privileges than the law of nature 
strictly allows. For if ambassadors were protected against nothing more 
than violence and illegal constraint, their privileges would confer no 
extraordinary advantage. Besides, the security of ambassadors is a matter 
of much greater moment to the public welfare than the punishment of 
offences. Because reparation for the misconduct of an ambassador may be 
looked for from the sovereign, by whom he is sent, unless that sovereign 
chuses to expose himself to hostilities by approving of his crimes. An 
objection to such privileges is made by some, who assert, that it is 
better for one person to be punished than for whole nations to be involved 
in war. But if a sovereign has SECRETLY given his sanction to the 
misconduct of his ambassador, his APPARENT intentions to punish that 
ambassador will not deprive the injured power of the right to seek redress 
by commencing hostilities.

On the other hand, the right of ambassadors would rest upon a very 
slippery foundation if they were accountable, for their actions, to any 
one but their own sovereigns. For as the interests of powers sending, and 
of those receiving ambassadors, are in general different, and some times 
even opposite, if a public minister were obliged to consult the 
inclinations of both, there would be no part of his conduct, to which they 
might not impute some degree of blame. Besides although some points are so 
clear, as to admit of no doubt, yet universal danger is sufficient to 
establish the equity and utility of a general law. For this reason it is 
natural to suppose, that nations have agreed, in the case of ambassadors, 
to dispense with that obedience, which every one, by general custom, owes 
to the laws of that foreign country, in which, at any time, he resides. 
The character, which they sustain, is not that of ordinary individuals, 
but they represent the Majesty of the Sovereigns, by whom they are sent, 
whose power is limited to no local jurisdiction. As Cicero, in his eighth 
Philippic, speaking of a certain ambassador, says, "he carried with him 
the Majesty of the Senate, and the authority of the State." From hence it 
is concluded, that an ambassador is not bound by the laws of the country, 
where he resides. If he commit an offence of a trivial nature, it may 
either be suffered to pass unnoticed, or he may be ordered to leave the 
country.

Polybius relates an instance of an ambassador, who was ordered to leave 
Rome, for having assisted some hostages in making their escape. Hence it 
is obvious why the Romans inflicted corporeal punishment upon an 
ambassador of Tarentum, because the Tarentines were at that time their own 
subjects, by right of conquest.

If a crime is of a notorious nature, affecting the government, an 
ambassador may be sent home, and his sovereign required to punish, or 
deliver him up, as we read of the Gauls having done to the Fabians. But, 
as we have before occasionally observed, all human laws are framed upon 
such principles, as, in cases of extreme necessity, to admit of equitable 
relaxations, among which the privileges of ambassadors may be reckoned. 
But these extreme cases of necessity may, according to the law of nations, 
as will be seen hereafter, in discussing the effects of just and solemn 
war, prevent punishment in CERTAIN cases, though not in ALL. For it is not 
the act of punishment itself, which is objected to, either in respect to 
time, or manner, but the exemption is created to prevent the greater 
public evil, which might arise from the punishment of the offender. To 
obviate therefore any imminent danger, if no other proper method can be 
devised, ambassadors may be detained and interrogated.

Thus the Roman Consuls seized the ambassadors of Tarquin, previously 
taking care to secure their papers, to prevent the evidence, which they 
might afford, from being destroyed. But if an ambassador excites and heads 
any violent insurrection, he may be killed, not by way of punishment, but 
upon the natural principle of self-defence, The Gauls therefore might have 
put to death the Fabii, whom Livy calls violators of the law of nature.

V. Mention has before been frequently made of the exemptions, by which 
ambassadors are protected from all personal constraint and violence, and 
it is understood that all powers are bound by a tacit agreement, as it 
were, from the time of admitting an ambassador, to respect these 
exemptions. It MAY and indeed sometimes DOES happen, that one power gives 
notice to another that no ambassador will be received, and if one is sent, 
that he will be treated as an enemy. A declaration to this effect was made 
by the Romans to the Aetolians, and, on another occasion, the Vejentian 
ambassadors were ordered to leave Rome, with a menace, if they refused to 
comply, of being treated in the same manner as the Roman ambassadors had 
been treated by their king Tolumnius, who had put them to death. The 
Samnites too forbade the Romans to go to any council in Samnium, under 
pain of forfeiting their lives, or, at least, their personal safety.

The above law does not bind a power, through whose territories ambassadors 
pass without leave. For, if they are going to an enemy of that power, or 
returning from him, or are engaged in any hostile design, they may 
lawfully be treated as enemies; which was done by the Athenians in the 
case of the messengers passing between the Persians and Spartans, and by 
the Illyrians in that of those, who carried on the intercourse between the 
Essians and Romans. Xenophon maintains that in certain cases they may be 
made prisoners, as Alexander made those, who were sent from Thebes and 
Lacedaemon to Darius, and the Romans those, whom Philip sent to Hannibal, 
and Latius those of the Volseians. For to treat ambassadors with any 
degree of rigour, EXCEPT UPON THOSE SUFFICIENT GROUNDS, would be deemed 
not only a breach of the law of nations, but a personal offence against 
the sovereigns, to whom they are going, or by whom they are sent. Justin 
informs us, that Philip II. king of Macedon, sent an ambassador to 
Hannibal with credentials, empowering him to make an alliance, and that, 
when this ambassador was seized and carried before the Senate of Rome, 
they dismissed him without farther molestation, not out of respect to the 
king, but to prevent a doubtful enemy from becoming a decided one.

VI. But if an embassy, admitted by an ENEMY is en. titled to all the 
privileges of the law of nations, much more so is one, admitted by a power 
UNFRIENDLY, but not engaged in ACTUAL HOSTILITIES. Diodorus Siculus says, 
that a messenger with a flag of truce claims all the security of peace, 
even in the midst of war. The Lacedaemonians, who had murdered the heralds 
of the Persians, were said by that act to have confounded every 
distinction between right and wrong, as it is acknowledged by all nations. 
For legal writers lay it down as a rule, that to offer personal violence 
to ambassadors, whose characters are deemed sacred, is a defiance of the 
law of nations, and Tacitus calls the privileges we are now discussing, 
the rights of embassy, sanctified by the law of nations.

Cicero, in his first speech against Verres, asks, if ambassadors ought not 
to be safe in the midst of an enemy's country, or even in his camp? 
Innumerable other instances of this kind might be produced from the 
highest authorities both ancient and modern. And it is with reason that 
such privileges are revered, for in the midst of war many circumstances 
arise, which cannot be decided but through ambassadors, and it is the only 
channel through which proposals of peace can be made, and confirmed.

VII. It is frequently made a subject of inquiry, whether the ambassador of 
a sovereign, who has exercised any act of cruelty or rigour, will be 
subject to the law of retaliation. History furnishes many instances, in 
which punishment has been inflicted in such a manner. But history is 
sometimes nothing more than a catalogue of actions marked with injustice, 
and ungovernable fury. Whereas the law of nations, by its privileges, 
designs to secure the dignity not only of sovereigns themselves, but also 
that of the ambassadors whom they employ. Consequently there is a tacit 
agreement understood to be made with the latter, that HE shall be exempt, 
not only from any ill treatment, that may affect the principal, but from 
such likewise, as may affect himself. So that it was a magnanimous answer, 
conformable to the law of nations, which Scipio made, when the Roman 
ambassadors had been ill-treated by the Carthaginians, and the 
Carthaginian ambassadors were brought before him, upon his being asked, in 
what manner they should be treated, he replied, not as the Roman 
ambassadors had been by the Carthaginians. Livy adds, that he said, he 
would do nothing unbecoming the character and laws of the Roman people. 
Valerius Maximus assigns the same language to the Consuls, on an occasion 
similar, but prior to this. In addressing Hanno, they said, "the pledge of 
faith, which our state has given, releases you from any such fear." For 
even at that time, Cornelius Asina, in violation of his public character, 
had been arrested and thrown into prison by the Carthaginians.

VIII. The train too of an ambassador, and all the plate belonging to him 
are entitled to a peculiar kind of protection. Which gave rise to the 
passage in the ancient song of the Heralds, "O Sovereign, do you make me a 
royal messenger from the Roman citizens? and do you confer the same 
privileges on my train and every thing, which belongs to me?" And by the 
Julian law, an injury affecting not only ambassadors, but even their 
attendants, is pronounced to be a violation of public right.

But these privileges of attendants are only granted so far as an 
ambassador himself may think proper: so that if any of them has committed 
an offence, he must be required to deliver up the offender to punishment. 
He must be REQUIRED to give him up. Because no violence, in taking an 
offender of that description must be -used. When the Achaeans had arrested 
some Lacedaemonians, who were along with the Roman ambassadors, the Romans 
raised a great outcry against the act, as a violation of the law of 
nations. Sallust's opinion in the case of Bomilcar has already been 
referred to.

But should the ambassador refuse to give up such offender, redress must be 
sought in the same manner, as would be done with respect to the ambassador 
himself. As to his authority over his household, and the asylum, which he 
may afford in his house to fugitives, these depend upon the agreement made 
with the power, to whom he is sent, and do not come within the decision of 
the law of nations.

IX. Neither can the moveable property of an ambassador, nor any thing, 
which is reckoned a personal appendage, be seized for the discharge of a 
debt, either by process of law, or even by royal authority. For, to give 
him full security, not only his person but every thing belonging to him 
must be protected from all compulsion. If an ambassador then has 
contracted a debt, and, as is usual, has no possession in the country, 
where he resides: first of all, courteous application must be made to 
himself, and, in case of his refusal, to his sovereign. But if both these 
methods of redress fail, recourse must be had to those means of recovery, 
which are used against debtors residing out of the jurisdiction of the 
country.

X. Nor is there, as some think, any reason to fear, that if such extensive 
privileges were established, no one would be found willing to enter into 
any contract with an ambassador, or to furnish him with necessary 
articles. For the same rule will hold good in the case of ambassadors, as 
in that of Kings. As sovereigns, who for the best of reasons, are placed 
above the reach of legal compulsion, find no difficulty in obtaining 
credit.

XI. The importance of such exemptions maybe easily inferred from the 
innumerable instances, in which both sacred and profane history abound, of 
wars undertaken on account of the ill-treatment of ambassadors. The war 
which David made against the Ammonites, on that account, affords us a 
memorable instance from holy writ, and as a profane writer, Cicero may be 
cited, who deemed it the most justifiable ground of the Mithridatic war.


CHAPTER 19: On the Right of Burial

Right of burying the dead founded on the law of nations — Origin of this 
right — Due to enemies — Whether due to those guilty of atrocious crimes — 
Whether to those, who have committed suicide — Other rights also 
authorised by the law of nations.

I. THE right of burying the dead is one of those originating in the 
voluntary law of nations. Next to the right of ambassadors Dion Chrysostom 
places that of burying the dead, and calls it a moral act, sanctioned by 
the unwritten law of nature: And Seneca, the elder, ranks the law, which 
commands us to commit the bodies of the dead to their parent earth, among 
the UNWRITTEN precepts, but says, they have a stronger sanction than the 
RECORDED laws of all ages can give. For, in the language of the Jewish 
writers, Philo and Josephus, they are marked with the seal of nature, and 
under the name of nature, we comprehend the customs, that are common to 
all mankind, and agreeable to natural reason.

We find it some where said by Aelian, that our common nature calls upon us 
to cover the dead, and some writer, in another place, observes that all 
men are reduced to an equality by returning to the common dust of the 
earth. Tacitus informs us, in b. vi. of his Annals, that, when Tiberius 
made a general massacre of all, who had been connected with Sejanus, and 
that he forbad them the rites of burial, every one was struck with horror 
to see the last offices of humanity refused; offices, which Lysias the 
orator calls the common hopes of our nature.

As the ancients measured the moral character of every people by their 
observance or neglect of these rights, in order to give them a greater 
appearance of sanctity, they ascribed their origin to the authority and 
institutions of their Gods; so that in every part of their writings we 
meet with frequent mention of the rights of ambassadors, and the rights of 
burial, as founded upon divine appointment.

In the Tragedy of the Suppliants, Euripides calls it the law of the Gods, 
and in the Antigone of Sophocles, the heroine makes the following reply to 
Creon, who bad forbidden any one under pain of death, to give the rites of 
burial to Polynices, "A prohibition, like this, was not revealed by the 
supreme will, nor by that heaven-born justice, which has established those 
laws of respect for the dead: nor did I think that you could command 
mortals to transgress the unwritten and inviolable laws of God, They were 
not established to-day, nor yesterday, but from all eternity and will for 
ever be in force. Their sources are unknown. Am I through fear of a 
mortal, and by obeying his unjust commands, to incur the wrath of Heaven?"

The authority of Isocrates, and of Herodotus, and that of Xenophon, in the 
sixth book of his Grecian History, may be appealed to in support of the 
honours, that have at all times been paid to the dead. In short, these 
offices of humanity are recommended by the conspiring testimony of the 
orators, historians, poets, philosophers and divines of all ages, who have 
dignified them with the names of the most splendid virtues.

II. There seems to be no general agreement of opinion upon the origin of 
funeral rites, and the variety of ways, in which they were performed. The 
Egyptians EMBALMED, and most of the Greeks BURNED the bodies of the dead 
before they committed them to the grave. Cicero, in the 22d chapter of his 
second Book on Laws, speaks of the interment alone, which is now in use, 
as the most ancient method, and that, which is most congenial to nature, 
and in this he is followed by Pliny.

Some think that men paid it as a VOLUNTARY debt of nature, which they knew 
that, AT ANY RATE, they would be obliged to discharge. For the divine 
sentence, that the body should return to the dust, from which it was 
taken, was not passed upon Adam only, but, as we find it acknowledged by 
the writings of Greece and Rome, extended to the whole human race, Cicero, 
from the Hypsipyle of Euripides, says, "Earth must be returned to earth," 
and in the twelfth chapter of Solomon's Ecclesiastes, there is a passage 
to the same purport, that "the dust shall return to the earth as it was, 
but the spirit to God, who gave it." Euripides has enlarged on this 
subject in the character of Theseus in his Suppliants, I Suffer the dead 
to be laid in the lap of the earth; for every thing returns to its 
original state, the spirit to heaven, and the body to the earth: Neither 
of them is given in plenary possession, but only for a short use: The 
earth soon demands back the bodies, to which she had given birth and 
nourishment." In the same manner Lucretius calls the earth "a prolific 
parent and a common grave." Pliny also describes the earth, as receiving 
us at our birth, cherishing our growth, supporting us to the very last, 
and, when all the other parts of nature have forsaken us, taking us to her 
maternal bosom, and covering us with a mantle.

There are some, who think that the custom of burial was bequeathed to us 
by our first parents as a testamentary hope of a resurrection. For we are 
instructed by Democritus to believe, that our bodies are preserved in the 
earth under the promise of a restoration to life. And Christians in 
particular have frequently ascribed the custom of decent burial to the 
same hope. Prudentius, a Christian poet says, "What can be the meaning of 
hallowed rocks, or splendid monuments, except that they are the 
depositories of bodies, consigned not to death, but to a temporary sleep?"

But the most obvious explanation is to be found in the dignity of man, who 
surpassing other creatures, it would be a shame, if his body were left to 
be devoured by beasts of prey. It is an act of compassion then, said 
Quintilian, to preserve the bodies of men from ravages of birds and 
beasts. For to be tore by wild beasts, as Cicero observes in his first 
book ON INVENTION, is to be robbed of those honours, in death, which are 
due to our common nature. And the Roman Poet, makes a lamentation over one 
of his heroes, that he had no pious mother to lay his body in the grave, 
but he would be left a prey to birds, or thrown into the river as food for 
fishes. Aen. x. 557-560.

But to speak from still higher authority, God, by the mouth of his 
prophets, threatens the wicked that they shall have burial like that of 
the brutes, and that the dogs shall lick their blood. Such a menace 
denounced against the wicked, as a punishment, shews that it is an 
indignity done to out nature, when, in the words of Lactantius, the image 
of God is cast out, to the insults of beasts of prey. But in such 
indignity if there was even nothing repugnant to the feelings of men, 
still the nakedness and infirmities of our perishable nature should not be 
exposed to the eye of day.

Consequently the rights of burial, the discharge of which forms one of the 
offices of humanity, cannot be denied even to enemies, whom a state of 
warfare has not deprived of the rights and nature of men. For, as Virgil 
observes, all animosity against the vanquished and the dead must cease. 
Aen. xi. 104. Because they have suffered the last of evils that can be 
inflicted. " We have been at war, I grant, says Statius, but our hatred 
has fallen, and all our enmity is buried in the grave." And Optatus 
Milevitanus assigns the same reason for reconciliation. "If there have 
been struggles among the living, your hatred surely must be satisfied with 
the death of an adversary. For the tongue of strife is now silenced."

III. Upon the principles advanced above, it is agreed by all that public 
enemies are entitled to burial. Appian calls it the common right of war, 
with which, Tacitus says, no enemy will refuse to comply. And the rules, 
respecting this, are, according to Dio Chrysostom, observed, even while 
the utmost rage of war still continues. "For the hand of death, as the 
writer just quoted observes, has destroyed all enmity towards the fallen, 
and protected their bodies from all insult." Examples to this purpose may 
be found in various parts of history. Alexander ordered those of the 
enemy, that were killed at the battle of Issus to be honoured with the 
rites of burial, and Hannibal did the same to Caius Flaminius, Publius 
Aemilius, Tiberius Gracchus, and Marcellus, the Roman Generals. So that 
you would suppose, says Silius Italicus, he had been paying these honours 
to a Carthaginian General. The Romans treated Hanno, and Pompey 
Mithridates in the same manner. If it were necessary to quote more 
instances, the conduct of Demetrius on many occasions, and that of Antony 
to king Archelaus might be named.

When the Greeks were at war with the Persians, in one part of their 
military oath they swore to bury all the dead belonging to the ALLIES, and 
when they were victorious, to bury even the BARBARIANS. After a battle, it 
was -usual for both sides to obtain leave to bury the dead. Pausanias, in 
his account of the Athenian affairs, mentions the practice of the 
Athenians who buried the Medes, regarding it as an act of piety due to all 
men. We find from the Jewish writers, that for the same reason, their high 
priests, who were forbidden to come near a dead body, if they found one, 
were obliged to bury it. But Christians deemed BURIAL an act of such 
importance, that they would allow their church-plate to be melted down, 
and sold to defray the expences as they would have done to maintain the 
poor, or to redeem captives.

There are some few instances to the contrary, but they are reprobated by 
the universal feelings of mankind, and such cruelty deprecated in the most 
solemn terms. Claudian calls it a bloody deed to plunder the dead, and 
still more so to refuse them the covering of a little sand.

IV. Respecting those, who have been guilty of atrocious crimes, there is 
reason to entertain some doubt, whether the right of burial is due to 
them. 

The divine law indeed, that was given to the Hebrews, and which is fraught 
with every precept of virtue and humanity, ordered those, who were 
crucified, which was the most ignominious kind of punishment that could be 
inflicted, to be buried on the same day. Owing to this law, as Josephus 
observes, the Jews paid such regard to burial, that the bodies of those, 
who were executed publicly as criminals, were taken away before sun-set, 
and committed to the ground. And other Jewish writers are of opinion that 
this was intended as a degree of reverence to the divine image, after 
which man was formed.

To allow burial to criminals must have been the practice in the time of 
Homer: for we are told, in the third book of the Odyssey, that Egisthus, 
who had added the crime of murder to that of adultery, was honoured with 
funeral ceremonies by Orestes, the son of the murdered king. It was the 
custom with the Romans, as may be seen from Ulpian, never to refuse giving 
the bodies of criminals to their relatives, to bury. The Emperors, 
Diocletian, and Maximian, in a rescript, declared, that they did not 
refuse to deliver up, for burial, those, who had deservedly been put to 
death for their crimes.

In reading the history of civil wars; we find more frequent instances of 
indignities offered to the dead, than in the accounts of any foreign wars. 
In some cases, the bodies of executed criminals are exposed to public 
view, and hung in chains, a custom the propriety of which is very much 
doubted both by Theological and Political writers. So far from approving 
of the practice, we find such writers bestowing praises upon many, who had 
ordered funeral honours to be paid to those, who would not themselves have 
allowed the same to others. An action of this kind was done by Pausanias 
the Lacedaemonian, who, being urged by the people of Aegina to retaliate 
upon the Persians for their treatment of Leonidas, rejected the advice, as 
unbecoming his own character and the Grecian name. The Pharisees allowed 
burial even to King Jannaeus Alexander, who had treated the dead bodies of 
their countrymen with every kind of insult. Though indeed on certain 
occasions, God may have punished some offenders with the loss of such a 
right, he did so by virtue of his own prerogative, which places him above 
the restrictions of all law. And when David exposed the head of Goliah, it 
was done to one, who was an alien, and a despiser of God, and might be 
justified by that law, which confined the name and privileges of neighbour 
to the Hebrews.

V. There is one thing not improper to be observed, that the rule 
prevailing among the Hebrews with respect to burying the dead, contained 
an exception, as we are informed by Josephus, excluding those, who had 
committed suicide. Nor is it surprising that a mark of ignominy should be 
affixed to those, on whom death itself cannot be inflicted as a 
punishment. Aristotle in the fifth book of his Ethics, speaks of the 
infamy universally attached to suicide. Nor is the observation at all 
weakened by the opinions of some of the Grecian poets, that as the dead 
are void of all perception, they cannot be affected either by loss or 
shame. For it is a sufficient reason to justify the practice, if the 
living can be deterred from committing actions, for which they see a mark 
of infamy set upon the dead.

In opposition to the Stoics, and others, who admitted the dread of 
servitude, sickness, or any other calamity, or even the ambitious love of 
glory to be a just cause of voluntary death, in opposition to them, the 
Platonists justly maintain, that the soul must be retained in the custody 
of the body, from which it cannot be released, but at the command of him, 
who gave it. On this subject there are many fine thoughts in Plotinus, 
Olympiodorus, and Macrobius on the dream of Scipio.

Brutus, following the opinions of the Platonists, had formerly condemned 
the death of Cato, whom he himself afterwards imitated. He considered it 
as an act of impiety for any one to withdraw himself from his allegiance 
to the supreme being, and to shrink from evils, which he ought to bear 
with fortitude. And Megasthenes, as may be seen, in Strabo book xv. 
remarked the disapprobation, which the Indian sages expressed of the 
conduct of Calanus: for it was by no means agreeable to their tenets, that 
any one, through impatience, should quit his post in life. In the fifth 
book of Quintus Curtius, there is an expression of King Darius to this 
effect, that he had rather die by another's guilty hand than by his own. 
In the same manner the Hebrews call death a release, or dismission, as may 
be seen not only in the Gospel of St. Luke, ch. ii. v. 19, but in the 
Greek version of the Old Testament, Gen. xv. 2, and Numb. xx, towards the 
conclusion: and the same way of speaking was used by the Greeks. Plutarch, 
in speaking of consolation, calls death the time, when God shall relieve 
us from our post.

VI. There are certain other rights too, which owe their origin to the 
voluntary law of nations, such as the right of possession from length of 
time, the right of succession to any one who dies intestate, and the right 
resulting from contracts, though of an unequal kind. For though all these 
rights, in some measure, spring from the law of nature, yet they derive 
their confirmation from human law, whether it be in opposition to the 
uncertainty of conjecture, or to certain other exceptions, suggested by 
natural reason: points, all of which have been slightly touched upon in 
our discussions on the law of nature.


CHAPTER 20: On Punishments.

Definition and origin of punishment — In what manner punishment relates to 
strict justice — The right of punishing allowed by the law of nature, to 
none, except to those, who are innocent of the crimes and misdemeanours to 
be punished — Difference of motive between human and divine punishment — 
In what sense revenge is naturally unlawful — The advantages of 
punishment, threefold — The law of nature allows any one to inflict 
punishment upon an offender, yet with a distinction — The regard which the 
law of nations pays to the benefit of the injured party, in the infliction 
of punishment — General utility of punishments — What is determined by the 
law of the Gospel, in this respect — Answer to the objections founded upon 
the mercy of God, as displayed in the Gospel — Capital punishments 
objected to as cutting off all possibility of repentance — Not safe for 
private Christians to inflict punishments, even when allowed to do so, by 
the law of nations — Prosecutions, for certain offences, to be carried on 
in the name of the public and not of individuals — Internal acts not 
punishable by man — Open acts, when inevitable through human infirmity not 
punishable — Actions, neither directly nor indirectly injurious to 
society, not punishable by human laws — The reasons of that exemption — 
The opinion, that pardon can never be granted, refuted — Pardon shewn to 
be allowable before the establishment of penal law — But not in all cases 
— Allowable also subsequently to the establishment of penalties — Internal 
and external reasons — Opinion, that there can be no just reason for 
dispensing with laws, except where such dispensation can be implied as 
authorised by the law, examined and refuted — Punishment estimated by the 
desert of the offender — Different motives compared — Motives which ought 
to restrain men from sin — Scale of offences according to the precepts of 
the Decalogue — Capacity of the offender — Punishment mitigated from 
motives of charity, except where there are stronger motives of an opposite 
kind — Facility or familiarity of crimes aggravates their nature — 
Clemency, proper exercise of — Views of the Jews and Romans in inflicting 
punishment — War considered as a punishment — Whether hostilities can 
justly be commenced for intended aggressions — Whether Kings and Nations 
are justified in making war to punish offences against the law of nature, 
not immediately affecting themselves or their subjects — The opinion, that 
jurisdiction is naturally necessary to authorise punishment, refuted — 
Distinction between the law of nature, and civil customs, and the divine 
voluntary law — The question, whether war can be undertaken to punish acts 
of impiety considered — The being of God, whence known Refusal to embrace 
the Christian religion not a sufficient cause of war — Cruel treatment of 
Christians, justifiable cause of war — Open defiance of religion 
punishable.

I. IN THE preceding part of this treatise, where the causes, for which war 
may be undertaken, were explained, it was considered in a two-fold light, 
either as a reparation for injuries, or as a punishment. The first of 
these points having been already cleared up, the latter, which relates to 
punishments, remains to be discussed, and it will require a more ample 
investigation; for the origin and nature of punishment, not being 
perfectly understood, has given rise to many errors.

Punishment taken in its most general meaning signifies the pain of 
suffering, which is inflicted for evil actions. For although labour may 
some times be imposed instead of punishment; still it is considered in 
that case, as a hardship and a grievous burden, and may therefore properly 
be classed with sufferings. But the inconveniences, which men are some 
times exposed to, by being excluded from the intercourse of society and 
the offices of life, owing to infectious disorders, or other similar 
causes, which was the case with the Jews on account of many legal 
impurities, these temporary privations are not to be strictly taken for 
punishments: though from their resemblance to each other, they are often, 
by an abuse of terms, confounded.

But among the dictates laid down by nature, as lawful and just, and which 
the ancient Philosophers call the law of Rhadamanthus, the following maxim 
may be placed, THAT IT IS RIGHT FOR EVERY ONE TO SUFFER EVIL PROPORTIONED 
TO THAT WHICH HE HAS DONE.

Which gave occasion to Plutarch, in his book on exile, to say that 
"justice is an attribute of God, avenging all transgressions of the divine 
law; and we apply it as the rule and measure of our dealings with each 
other. For though separated by the arbitrary or geographical bounds of 
territory, the eye of nature looks upon all, as fellow subjects of one 
great empire." Hierocles gives a fine character of justice, calling it the 
healing remedy of all mischief. Lactantius in speaking of the divine wrath 
calls it "no inconsiderable mistake in those, who degrade human or divine 
punishment with the name of cruelty or rigour, imagining that some degree 
of blame must always attach to the punishment of the guilty." What has 
been said of the inseparable connection of a penalty with every offense is 
similar to the remark of Augustin, "that to make a punishment JUST, it 
must be inflicted for some crime." He applies the expression to explain 
the divine justice, where through human ignorance, the offence is often 
undiscoverable though the judgment may be seen.

II. There are diversities of opinion whether punishment comes under the 
rank of ATTRIBUTIVE or that of STRICT justice. Some refer it to justice of 
the attributive kind, because offences are punished more or less, in pro. 
portion to their consequences, and because the punishment is inflicted by 
the whole community, as it were, upon an individual.

It is undoubtedly one of the first principles of justice to establish an 
equality between the penalty and the of. fence. For it is the business of 
reason, says Horace, in one of his Satires, to apply a rule and measure, 
by which the penalty may be framed upon a scale with the of. fence, and in 
another place, he observes, that it would be contrary to all reason to 
punish with the rack a slave, who deserved nothing more than the whip. I. 
Sat. iii. v. 77, and 119. The divine law, as may be seen from the xxv. 
Chapter of Deuteronomy, rests upon the same principle.

There is one sense, in which all punishment may be said to be a matter of 
strict justice. Thus, when we say that punishment is due to any one, we 
mean nothing more than that it is right he should be punished. Nor can any 
one inflict this punishment, but the person, who has a right to do so. Now 
in the eye of the law, every penalty is considered, as a debt arising out 
of a crime, and which the offender is bound to pay to the aggrieved party. 
And in this there is something approaching to the nature of contracts. For 
as a seller, though no EXPRESS stipulation be made, is understood to have 
bound himself by all the USUAL, and NECESSARY conditions of a sale, so, 
punishment being a natural consequence of crime, every heinous offender 
appears to have VOLUNTARILY incurred the penalties of law. In this sense 
some of the Emperors pronounced sentence upon malefactors in the following 
manner, "you have brought this punishment upon Yourselves." Indeed every 
wicked action done by design was considered as a voluntary contract to 
submit to punishment. For, as Michael the Ephesian observes on the fifth 
book of Aristotle's Nicomachean Ethics, the ancients gave the name of 
contract, not only to the voluntary agreements which men made with each 
other, but to the obligations arising from the sentence of the law.

III. But to whom the right of punishing properly belongs, is a matter not 
determined by the law of NATURE. For though reason may point out the 
necessity of punishing the guilty, it does not specify the PERSON, to whom 
the execution of it is to be committed.

Natural reason indeed does so far point out the person, that it is deemed 
most SUITABLE for a SUPERIOR ONLY to be invested with the power of 
inflicting punishment. Yet this demonstration does not amount to an 
ABSOLUTE NECESSITY, unless the word superior be taken in a sense implying, 
that the commission of a crime makes the offender inferior to every one of 
his own species, by his having degraded himself from the rank of men to 
that of the brutes, which are in subjection to man; a doctrine, which some 
Theologists have maintained. Philosophers too agreed in this. For 
Democritus supposed that power -naturally belonged to superior merit, and 
Aristotle was of opinion that both in the productions of nature and art 
the inferior were provided for the use of the superior parts.

From this opinion there arises a necessary consequence, that in a case 
where there are equal degrees of guilt in two parties, the right of 
punishment belongs to neither.

In conformity to, which, our Saviour, in the case of the woman taken in 
adultery, pronounced that whoever of the accusers was without sin, meaning 
sins of equal enormity, should cast the first stone. John viii. 7. He said 
so for this reason, because in that age the manners of the Jews were so 
corrupt, that, under a great parade of sanctity, the most enormous vices, 
and the most wicked dispositions were concealed. A character of the times 
which the Apostle has painted in the most glowing colours, and which he 
closes with a reproof similar to what his divine master had given, " 
therefore thou art inexcusable, O man, whosoever thou art that judgest: 
for wherein thou judgest another thou condemnest thyself; for thou that 
judgest doest the same things." Rom, ii. 1. Applicable to which there is a 
remark of Seneca's, that "no sentence, which is passed by a guilty person 
can have any weight." And in another place, the same writer observes, that 
"if we look into ourselves and consider whether we have been guilty of 
the offences we are going to condemn, we shall be more moderate in our 
judgments."

IV. Another part of our inquiry respects the end pro. posed by punishment. 
For by what has hitherto been said, it was only meant to shew that in 
punishing the guilty no injury is done to them. Still the absolute 
necessity of punishment does not follow from thence. For the pardon of the 
guilty on many occasions has been considered as the most beauteous feature 
in the divine and human character. Plato is celebrated for his saying that 
"justice does not inflict punishment for the evils that are done and 
cannot be retrieved; but to pre. vent the same from being clone for the 
time to come." From Thucydides we find that Diodorus in addressing the 
Athenians on the conduct of the Mitylenaeans, advises them "to forbear 
punishing their avowed injustice, unless it was probable that the 
punishment would be attended with some good effect."

These maxims may be true with regard to human punishments: for one man 
being so nearly allied to another by blood, no degree of suffering should 
be inflicted, but for some consequent good. But the case is different with 
respect to God, to whom Plato injudiciously applies the above sentiments. 
For though the divine counsels will undoubtedly have the good of men in 
view, as the end of all punishment, yet the bare reformation of the 
offender cannot be the sole object. Since the divine justice, though 
tempered with mercy must adhere to the truth of the revealed word, which 
threatens the wicked with punishment or destruction.

The honour therefore of God, as well as the example held up to men, will 
be a consequence resulting from his punishment of the wicked.

V. A dramatic writer has said that "the pain of an enemy is a hearing 
remedy to a wounded spirit," in which he agrees with Cicero and Plutarch: 
in the opinion of the former "pain is mitigated by the punishment of an 
adversary," and in that of the latter "satisfaction is a sweet medicine to 
a troubled mind."

But a disposition like this, when stripped of all disguise and false 
colouring, will be found by no means suitable to the reasonable soul of 
man, whose office it is to regulate and controul the affections. Nor will 
that disposition receive any sanction from the law of nature, who in all 
her dictates, inclines to unite men in society by good will, rather than 
to separate them by cherishing animosity. For it is laid down by reason, 
as a leading axiom in her code of laws, that no man shall do any thing 
which may hurt another, unless it be for the purpose of some evident and 
essential good. But the pain of an enemy considered solely of such, is no 
benefit to us, but a false and imaginary one, like that derived from 
superfluous riches or things of the same kind. 

In this acceptation revenge is condemned both by Christian teachers and 
heathen philosophers. In this respect, the language of Seneca approaches 
very near to the perfection of Christian morals. He calls revenge, in its 
usual and proper acceptation, a term of inhumanity, differing from injury 
only in degree. For retaliation of pain can be considered as nothing 
better than excusable sin. Juvenal, after describing the different 
tempers, over which revenge exercises the most powerful dominion, and 
shewing the amiable characters over which it has no influence, concludes 
it to be the pleasure of a little and infirm mind. 

From the preceding arguments it is plain that punishment cannot justly be 
inflicted from a spirit of revenge. We proceed therefore to consider the 
advantages attending its just infliction.

VI. This seems the most proper place for reviewing those distinctions in 
the motives of punishment, which have been used by Plato in his Gorgias, 
and by Taurus the philosopher in a passage quoted by Gellius in the 
fourteenth chapter of his fifth book. These distinctions seem to result 
naturally from the end of all punishment. Plato indeed considers the 
amendment of the offender, and the example given to others, as the two 
principal motives: but Taurus has added a third, which he calls 
satisfaction, and which is defined by Clemens Alexandrinus, to be 
repayment of evil, contributing to the benefit of both the aggrieved and 
avenging party. Aristotle passing over example as a motive, confines the 
object of punishment to the amendment or correction of the offender. But 
Plutarch has not made the same omission: for he has said, that "where 
immediate punishment follows the execution of a heinous crime, it both 
operates to deter others from committing the same crime, and administers 
some degree of consolation to the injured and suffering person." And this 
is what Aristotle calls commutative justice. But these matters require a 
more minute inquiry. We may observe therefore that there is nothing 
contrary either to human or divine law, in punishments, which have the 
good of the offender, or that of the injured party, or of any persons 
whatsoever in view.

The three proper ends are obtained by that kind of punishment, which some 
philosophers have called correction, some chastisement, and others 
admonition. Paulus the Lawyer, has given it the name of correction; Plato 
styles it a lesson of instruction, and Plutarch a medicine of the soul, 
reforming and healing the sufferer, while it operates as a painful remedy. 
For as all deliberate acts, by frequent repetition, produce a propensity, 
which ripens into habit, the best method of reforming vices in their 
earliest stage is to deprive them of their sweet savour by an infusion of 
subsequent pain. It is an opinion of the Platonists, repeated by Apuleius, 
that "impunity and the delay of reproof are more severe and pernicious to 
an offender than any punishment whatsoever," and, in the words of Tacitus, 
"violent disorders must be encountered with remedies proportionably 
strong."

VII. The power of inflicting the punishment, subservient to this end, is 
allowed by the law of nature to any one of competent judgment, and not 
implicated in similar or equal offences. This is evident as far as verbal 
reproof goes, from the maxim of Plautus, that "to bestow merited reproof 
upon a friend is useful, upon certain occasions, though by no means a 
grateful office." But in all kinds of constraint and compulsion, the 
difference made between the persons, who are allowed, and who are not 
allowed to exercise it is no appointment of natural law, but one of the 
positive institutions of the civil law. For no such natural distinction 
could be made, any farther than that reason would intrust parents with the 
peculiar use of such an authority, in consideration of their affection. 
But laws, in order to avoid animosities, have, with respect to the 
authority of punishing, passed over the common kindred subsisting among 
mankind, and confined it to the nearest degrees of relation: as may be 
seen in many records, and particularly in the code of Justinian, under the 
title of the POWER OF RELATIVES TO CORRECT IN ORDER TO REFORM OFFENDERS. 
And Cyrus, in the v. book and viii. chapter of Xenophon's history of the 
Expedition, addresses the soldiers to the following purport, "If I punish 
any one for his good, I am willing to submit to justice; but would it not 
be equally reasonable that parents and masters should submit to justice, 
for having corrected children, or the Surgeon be responsible for having 
used the incision-knife, where the patient's case required it?"

But this kind of corrective punishment does not extend to death, which 
cannot be considered, as a benefit in itself, except INDIRECTLY and By WAY 
OF REDUCTION, as it is called by Logicians, who, in order to confirm 
negatives, reduce them to things of an opposite kind. Thus, in Mark xiv. 
21, when our Saviour says, that it were better for some, they had never 
been born, so, for incurable dispositions, it is better, that is would be 
a less evil, to die than to live; since it is certain that by living they 
will grow worse. Plutarch calls such men a pest to others, but the 
greatest pest to themselves. Galen says that capital punishments are 
inflicted to prevent men from doing harm by a longer course of iniquity, 
and to deter others by the fear of punishment, adding that it is better 
men should die, when they have souls so infected with evil, as to be 
incurable.

There are some, who think that these are the persons meant by the Apostle 
John, who describes them as sinning a sin unto death. But as their 
arguments are not satisfactory, charity requires that no one should be 
deemed incorrigible, except upon the clearest grounds. So that punishment 
with such an end in view can only be inflicted for important causes.

VIII. The benefit accruing to an injured person from the punishment of an 
offender consists in his being secured in future against a recurrence of 
the same injury from that offender, or from others. There are three ways 
of preventing this recurrence-by removing the offender — by depriving him 
of the power of doing harm, or lastly by compelling him to better habits 
of thought or action, which is the reformation produced by the punishment 
already spoken of. It is not every kind of punishment, which can produce 
such effects; it must be open and conspicuous, to operate as an example, 
that may deter others from the commission of the same crimes. A vindictive 
punishment, inflicted by an injured individual, or by any other person, 
when it is restrained by bounds and limitations of this kind, has nothing 
unlawful in it considering the law of nature by itself, apart from all 
human and divine institutions, and every adventitious circumstance, that 
may create a deviation from the primitive dictates of nature. We have said 
that it may be inflicted by any other individual, as well as by the 
injured person: for it is comformable to nature, that one man should 
assist another. But as our judgment is apt to be biassed by our 
affections, in cases, where our interest is concerned; since the formation 
of families into states, judges have been appointed, and invested with the 
power of punishing the guilty, whereby the natural liberty of personal 
redress, originally allowed to individuals, was abolished, or at least 
abridged. And it is only in places, on the seas for instance, where no 
judicial remedy can be obtained, that this natural liberty continues in 
force. There is a circumstance related of Julius Caesar, applicable to 
this subject. While he was only in a private station, being taken prisoner 
by some pirates, after he had redeemed himself by a sum of money, he 
applied to the proconsul for redress. But his application being neglected, 
he fitted out a certain number of ships, attacked and defeated the 
pirates, and ordered them all to be crucified.

The practice of private individuals, exercising punishment, was the origin 
of single combats, so familiar to the Germans before the introduction of 
Christianity, and not yet sufficiently laid aside. We are informed by 
Velleius Paterculus, in his second book, that the Germans were surprised 
to see the forms of Roman jurisprudence, and those disputes, which they 
themselves decided by the sword, settled by law. By the Jewish law, the 
nearest in blood to the deceased were allowed to k ill a murderer, if 
taken beyond the places of refuge. And the Jewish interpreters observe, 
that in GENERAL the infliction of punishment, as a retaliation for murder, 
it intrusted to no hand, but that of the judge: as it is difficult for an 
individual in his own case to moderate his resentment. The same custom of 
allowing individuals to avenge their own wrongs prevailed among the 
ancient Greeks, as we find from the words of Thecelymenes, in Homer's 
Odyssey. But it prevailed most in countries, where public courts of 
justice were not established. From hence St. Augustin defines those wars 
to be just, which are intended to avenge injuries. And Plato, in his 
twelfth book ON A COMMONWEALTH, justifies the prolongation of hostilities, 
till the aggressor is reduced to submit to just, and equitable terms.

IX. GENERAL Utility which was considered as the third end proposed by 
punishment, may be divided into the same number of parts, as the benefit 
accruing from thence to individuals. For these are the objects in view, 
either to prevent the individual, who has injured one person, from doing 
injury to others: an object which can be accomplished only by removing the 
offender, disarming him of the means of farther injury, or by reforming 
him: or it may be inflicted to deter others from being allured, by an 
example of impunity, to commit acts of molestation or enmity. And the 
infliction of punishment, for such reasons, is a RIGHT granted by the law 
of nature to every individual. Upon this principle, Plutarch observes in 
the life of Pelopidas, that good men are designed by nature for the office 
of perpetual magistracy, and superiority belongs to those, in whom the 
characters of truth and justice unite.

But as it requires a painful degree of patience to examine into facts, and 
no inconsiderable share of skill and equity to affix the extent of 
punishments; in order to prevent quarrels from arising through the 
presuming conceit, which every man entertains of his own wisdom, and to 
which others are averse to yield; in all well regulated communities, it 
has been usual to select for the tribunals of justice those, who were 
deemed worthy of such honour, or likely to become so, from their integrity 
and wisdom. Democritus has said, there would have been no occasion for 
laws to prevent every man from living according to his own humour, if one 
had not done injury to another. For envy was the origin of strife. But as 
we have just observed, that it happens, in the case of revenge, so in this 
kind of punishment, inflicted for the sake of example, there are traces 
and remains of ancient law, in those places, and among those persons, that 
are subject to no CIVIL jurisdiction; and in certain other cases besides. 
Thus any Hebrew, according to the customs of that people, if he should 
turn away from God, or from the law of God, or should seduce others to 
false worship, might immediately be put to death by any one whatsoever. 
The Hebrews call that an act of ZEAL, which was first done by Phinehas, 
and which afterwards became a custom. Thus Mattathias slew a Jew, who was 
polluting himself with Grecian rites. In the same manner, in the book 
commonly called the third book of Maccabees, it is related that three 
hundred other Jews were put to death by their own countrymen. Nor could 
any other pretext be assigned for stoning Stephen, and conspiring against 
Paul. Philo, and Josephus abound in instances of this kind. There are many 
countries where we may trace the remains of primitive law, in the plenary 
power al. lowed to masters over their slaves, and to parents over their 
children, extending even to inflict the punishment of death. So the Ephori 
of Sparta might put a citizen to death without the formality of trial. 
From what has been said, it is easy to infer what punishment the law of 
nature authorises, and how far it has remained in force. 

X. We come now to consider whether the law of the Gospel has confined that 
liberty within closer bounds. It has been observed in another part of this 
treatise, that it is not surprising that some things, which are allowed by 
natural and civil law, should be forbidden by the divine law, owing to its 
great perfection, and the superiority of its rewards over any thing that 
human nature can bestow. To the attainment of which it is not unreasonable 
that virtues should be required, far exceeding the simple precepts of 
nature. Those kinds of correction that leave neither any mark of infamy, 
nor any permanent injury, but are suited to the age, or other 
circumstances of the sufferer, if inflicted by those, who derive such a 
permission from human laws, for instance by parents, guardians, or 
masters, contain nothing repugnant to the precepts of the Gospel, as may 
be clearly understood from the nature of the thing itself. For they are 
remedies to the mind no less harmless than medicines ungrateful to the 
palate are to the body. But as to revenge the case is different For the 
infliction of punishment, only to gratify resentment, so far from being 
conformable to the Gospel, has been shewn above to be repugnant even to 
the law of nature.

The Jewish law indeed not only forbids the cherishing of hatred against a 
neighbour, that is, one of the same country and people, but requires 
certain common acts of kindness to be bestowed even upon enemies of that 
description. The Gospel therefore, comprehending all men under the 
appellation of neighbour, not only forbids us to hurt our enemies, but 
commands us to do them good; a commandment clearly stated in the Gospel of 
St. Matthew. Yet the law permitted the Jews to seek revenge for injuries 
of a more grievous kind, not with their own hands, but by appealing to the 
judge. But Christ does not give us the same permission, as appears from 
that opposition which he makes between the permissions of former times, 
and those of his own law. "You have heard that it was said an eye for an 
eye — but I say unto you, love your enemies, etc."

For although what follows relates peculiarly to the repelling of injury, 
and, in some measure, abridges this permission, yet it passes a much 
greater censure upon revenge, rejecting it as an indulgence suitable only 
to a more imperfect, and carnal state.

To inflict punishment by way of retaliation was disapproved of even by 
those of the Jews, who were distinguished for their worth and wisdom; 
because they regarded not only the LETTER, but the PURPOSE and SPIRIT of 
the law. This appears from Philo, in whose writings we find the Jews of 
Alexandria, upon the calamity of Flaccus, their persecutor, addressing 
themselves to God in the following language, "We do not rejoice, 0 Lord, 
in the calamity or punishment of an enemy, being taught by thy holy laws 
to feel for the miseries of men." And in this case we may apply that 
general command given by Christ to forgive all who have offended or 
injured us, that is, neither to do, nor to wish them evil, through 
resentment of the evil they have done to us. But what can be said of 
revenge, not as regarding the past, but as providing security for the 
future? Here too Christ requires of his followers the same disposition to 
pardon injuries, particularly, if the offender shews any probable signs of 
repentance. Luke xvii. 3. Eph. iv. 32. Col. iii. 13. In those passages a 
full remission is intended, such a remission as restores the offender to 
his former situation of friendship or confidence: and consequently nothing 
can be required of him under the name of punishment. Besides, if there 
were no such marks of repentance, the reparation of a loss is not to be 
pursued with to much rigour; a doctrine inferred from the precept of 
Christ enjoining us to give up the garment along with the cloak.

But if it is likely that connivance at an offence will be attended with 
imminent inconvenience and even danger to ourselves, we should be 
contented with such securities as may be effectual, and at the same time 
operate with as little prejudice as possible to the offender. For even 
among the Jews, the law of retaliation was not in use, as we are informed 
by Josephus, and other writers of that nation. But in addition to the 
expence incurred, which the law treats of as a separate point, the injured 
party usually received a pecuniary fine instead of retaliation; the 
repayment of expences being considered simply as a restitution, and not a 
penalty.

It remains now to consider punishment, as providing for the PUBLIC and not 
INDIVIDUAL security, which is accomplished either by removing the guilty 
person out of the way or by restraining him from doing farther mischief, 
or by deterring others through the severity of example, none of which 
means it has been clearly proved were abolished by Christ; for in giving 
his precepts be affirmed that he destroyed no part of the law. The law Of 
MOSES indeed, which in these respects was to remain in force as long as 
the Jewish Polity existed, strictly enjoined magistrates to punish murder 
and other similar crimes. But if the precepts of Christ could exist in 
conjunction with the law of Moses, as far as it imposed capital 
punishments, surely they may exist in conjunction with human laws, which 
in this respect are but an imitation of the divine laws.

XI. Some, in support of an opposite opinion, allege the supreme mercy of 
God, as it is displayed in the new covenant, and which is given as an 
example for men, and for magistrates, in particular, to follow, who, in 
the exercise of authority, execute the laws of the Deity. This opinion may 
in some measure be true, but not to that extent, which the authors of it 
intend. For the great mercy of God displayed in the new covenant has a 
peculiar reference to offences against the primitive law, or even against 
the law of Moses, before the time that men had received a knowledge of the 
Gospel. For offences committed after the promulgation of the Gospel, 
especially if they are accompanied with a hardened obstinacy, are treated 
with much severer judgments than any that were declared by Moses. For God 
punishes sins of that kind not only in a future state, but in the present 
life. But for sins of that kind, to obtain the act of mercy and 
indulgence, the offender must inflict punishment upon himself, not in a 
slight or trivial manner, but with a heartfelt sorrow, and resolution to 
sin no more.

In the same manner it is maintained that if men are actuated by 
repentance, they are ENTITLED to impunity. We do not say that men are 
never actuated by sincere repentance; but it is not every kind of avowal 
or acknowledgment, by which God is moved to remit the WHOLE of a 
punishment, as appears from the case of David. As the supreme judge 
therefore might dispense with the full penalty of the law, inflicting 
death, and yet exercise no inconsiderable severity upon offenders, so now 
he may dispense with the sentence of eternal death, at the same time 
leaving the sinner to find an early grave by the stroke of some calamity, 
or by the hand of human justice.

XII. and XIII. Another objection made against capital punishments is that 
such a kind of sentence and execution is cutting off a criminal from all 
possibility of repentance. But those, who make the objection, must know, 
that in cases of that kind, venerable and upright judges use the greatest 
precautions, and suffer no one to be hurried away to execution, without a 
reasonable time allowed for reflection and deep abhorrence of his crime: a 
repentance, which though prevented by the interposing hand of death from 
producing the fruits of righteousness, we have reason to suppose, from the 
case of the thief pardoned on the cross, may be accepted with God.

But if on the other hand it be said that longer life might have been of 
more avail to serious repentance, we may observe that, in some cases, the 
reply of Seneca may be made, that to men of that description death is 
often the greatest blessing which can be bestowed; for, in the words of 
Eusebius, their career of wickedness cannot otherwise be shortened, or 
reformed. These in addition to the preceding arguments in the former part 
of this treatise may be deemed a sufficient answer to those, who assert 
that all capital punishments, and even all punishments, without exception, 
are abolished by the precepts of our Saviour. The Apostle, consigning to 
the office of kings the use of the sword, as an exercise of his divine 
commission to avenge all wrongs, instructs us to pray for kings, that, as 
true Christians, in their royal capacity, they may be a protection to the 
innocent. An end, which even after the introduction of the gospel, could 
not easily be obtained, owing to the depravity of mankind, if the violence 
of some were not restrained by the exemplary punishment, of others. Such 
authority is the more necessary, when even in the midst of so many 
examples and punishments, the lives of the innocent are scarcely secure. 
There have been indeed, it cannot be denied, happy instances where the 
sentence of death was changed for that of perpetual labour, a practice, as 
we are informed by Diodorus, followed by Sabacon, king of Egypt, a prince 
renowned for his piety. Balsamon observes that the penal laws of Rome, 
inflicting death, were most of them changed by the Christian emperors of 
later times, and other kinds of punishment were substituted, that the 
guilty might receive deeper impressions of repentance, and their 
punishment operate as a more durable example.

XIV. From what has been said, it may be inferred, how unsafe it is for a 
private Christian, whether from motives of personal interest, or from 
those of the public good, to take upon himself the punishment of an 
offender, and particularly to inflict death. Although, as it has been said 
before, it may, IN SOME CASES, be allowed by the law of nations. A 
permission, that has given rise to the laudable practice, prevailing in 
some countries of furnishing adventurers with public instructions and 
commissions to chase and capture pirates, wherever they may be found. But 
those adventurers may be considered as discharging a public duty rather 
than as acting upon their own authority.

XV. A custom not unlike to which prevails in many places, of not allowing 
individuals to bring criminal charges against others at their own 
pleasure: that office belonging to persons invested with public authority 
to undertake it. So that no one can contribute towards shedding the blood 
of another, but as an act of necessary duty. In reference to this custom, 
a canon of the council of Eliberis excluded from the communion any 
believer who had been instrumental in causing the proscription or death of 
another.

[Translator's note: Sections XVI and XVII of the original, relating only 
to the refutation of certain abstruse opinions, are omitted in the 
translation.]

XVIII. It is proper now to consider whether all wicked acts are of that 
kind, which are punishable by human laws. In reply to which we may answer 
that they certainly are not. In the first place, mere acts of the mind, or 
criminal intentions, though by subsequent confession, or some other 
accident, they may come to the knowledge of others, are not punishable by 
human laws. Because, as it was proved in a former part of this treatise, 
it is not consonant to the law of nature, that INTENTIONS ONLY should give 
rise to any right, or obligation amongst men. And in this sense the maxim 
of the Roman law is to be taken, THAT NO ONE DESERVES PUNISHMENT FOR MERE 
THOUGHTS. Yet this does not prevent intentions, when they have an 
influence upon the conduct, from being considered as actual deeds, and 
equally deserving of punishment.

XIX. In the second place, even outward acts, cannot be punished by men 
where they arise through some inevitable infirmity of human nature. For 
although there can be no sin, except where there is a freedom of will, yet 
to be at all times free from all infirmity and sin, is more than can be 
expected from the condition of man. So that Sopater, Hierocles and Seneca 
among the Philosophers; Philo among the Jews; Thucydides among the 
historians; and innumerable writers among Christians have maintained that 
sin is interwoven with our very nature. Nay indeed, a doubt may be 
entertained whether such acts can rightly and properly be called sins. For 
though seeming to be voluntary actions, they will be found, when minutely 
considered, not to proceed from a free and deliberate exercise of the 
will. "Laws, says Plutarch in the life of Solon, should be framed to suit 
possible cases, the legislator may obtain every beneficial end by 
punishing a few offenders, where the indiscriminate punishment of 
multitudes would be attended with no good effect."

There are some actions, which though not imputable to human nature itself, 
are inevitable consequences of the influence of bodily habits on the mind. 
Actions like these are punishable in human courts, owing to the 
criminality of voluntary contracting, or of not sufficiently guarding 
against, those habits. 

XX. In the third place, human courts of justice cannot take cognizance of 
those offences, which neither directly nor indirectly, affect the public 
or individuals. For no reason can be assigned, why such offences should 
not be left to the judgments of God, whose all-seeing eye must know them, 
whose equity will weigh them, and whose power can punish them. It would be 
unnecessary therefore, and presumptuous in human tribunals to assume such 
decisions. However we must except from this rule those corrective kinds of 
punishment,, designed for the reformation of offenders, even where their 
conduct is no way injurious to others.

Neither are those actions punishable, which are directly opposite to the 
virtues of compassion, liberality, or gratitude, in the performance of 
which virtues natural justice allows of no compulsion.

XXI. The point, necessarily to be considered next, is the opinion, whether 
it is lawful some times to grant pardon. For the Stoics maintain it not to 
be lawful, as may be seen from a fragment in Stobaeus, under the title of 
MAGISTRACY, from Cicero's speech for Murena, and towards the conclusion of 
Seneca's books on Clemency; but their arguments are fallacious, and 
unsubstantial. They say "that pardon is the remission of a penalty, that 
OUGHT to be paid; but a wise man does every thing, which he OUGHT to do." 
Here the fallacy lies in the use of the word OUGHT. For if it means that 
an offender owes a penalty, that is, that he may be punished without 
injustice, it will not necessarily follow that the person who does not 
punish him, is doing what he ought not to do. But if the word be taken to 
imply that a good man, or a wise man, ought at all events, to exact the 
penalty, it may be observed in reply that THIS does not always hap. pen, 
and therefore, in this sense, the penalty or punishment may be considered, 
not as a debt, but only a permission. And this will hold good, both before 
and after the establishment of penal laws. 

XXII. Before the establishment of penal laws, punishment, beyond all 
doubt, might be inflicted; because by the law of nature, every offender 
made himself subject to punishment; but it is not a natural and inevitable 
consequence of its being lawful, that it should be enforced. For this 
depends upon the connection between the ends, for which punishments were 
established, and the punishments themselves. If the ends proposed 
therefore are not immediately necessary, in a moral point of view, or if 
other ends of a different kind, but not less wise and salutary should be 
devised, or that the ends originally designed may be obtained by some 
other means, in all these cases, the right of punishment may be saved, 
there being no immediate occasion to inflict it. Thus for instance, where 
an offence is known to very few, there can be no immediate occasion for a 
public punishment, by way of exemplary exposure, which in some cases might 
be even injurious to society rather than productive of advantage. Upon 
which Cicero in a letter to his brother makes a pertinent remark, 
respecting one Zeuxis, observing that "had he once been brought into 
court, he could not have been released, but there was no necessity that a 
search should be made for him, in order to bring him to trial." — In the 
next place the right and end of punishment may be dispensed with, where a 
man's own services, or those of his family are sufficient to outweigh the 
consideration of his offences. "For, in the words of Seneca, an act of 
kindness eclipses the fault of an injury." — And in the last place, where 
reproof operates upon an offender, as a means of correction and amendment, 
or where the injured party is satisfied with an acknowledgment of the 
offence, the occasion for punishment is done away. It was this motive to 
clemency, which the son of David had in view, where he observes that it 
behoves the righteous to be merciful. For as all punishment, especially of 
the more severe cast, has in it some thing, which tho' not repugnant to 
justice, is at variance, at least, with charity, reason easily suffers us 
to forbear inflicting it, unless that forbearance is opposed by some 
weightier, juster, and more undeniable motive of charity.

XXIII. Cases may occur where it is absolutely necessary to inflict 
punishment, as upon notorious, and atrocious criminals, or where it is for 
the public good, to dispense with that severity, or where the judicial 
authorities may use their own discretion in mitigating or enforcing the 
sentence of the law. Upon which Seneca pertinently remarks, that the 
exercise of lenity should always be an act of free deliberation. As to the 
disputes of the Stoics on these points, they are, in the opinion of Cicero 
and others, debates upon words rather than things: consequently they are 
less worthy of philosophical contemplation.

XXIV. There seems to be a greater difficulty in deciding what is to be 
done, subsequently to the establishment of penal laws; because a 
legislator is bound, in some measure, by his own laws. But this, as it was 
proved in a former part of this treatise, is only true with respect to the 
legislator, in his individual capacity, as a private member of the state, 
but not in his public character, in which he represents the whole Majesty 
and Authority of the state itself. As such, he can entirely repeal the 
law: for it is the nature of all human laws, to depend upon the will of 
the maker, not only for their origin, but also for their duration. Yet a 
lawgiver ought not, upon trivial grounds, to repeal a statute, for, in so 
doing he would be acting against the rules of sovereign justice. But as 
the legislator has power to repeal the whole of a law, so in the case of 
some particular person, or individual action, he may relax its rigour, 
allowing it to remain in other respects, as it stood before. As an example 
of this, the actions of the Deity may be cited, who, according to the 
testimony of Lactantius, in enacting his laws, did not deprive himself of 
the exercise of his mercy, to grant pardons. "The Emperor, says Augustin, 
may recall his sentence, pardon and release a criminal; because, as he 
further explains it, the person who has power to make laws, is not 
INVARIABLY bound to observe them." Yet this privilege of departing from 
the letter must never be used but for the most important reasons. Although 
such reasons cannot be precisely defined, yet it is certain that, since 
the establishment of civil law, more weighty ones are required to 
authorise such pardons, than before that period. Because punishments have 
derived an additional sanction from the authority of the law, which ought 
to be respected and observed.

XXV. The reasons for releasing any one from the penalties of the law, are 
of two kinds, either internal or external.

An internal reason, to justify a departure from the sentence of the law, 
must be one, where the punishment is severe when compared with the 
offence.

XXVI. An external reason is one arising from some favourable circumstance 
in the character of the offender, or some fair hopes that may be 
entertained of his future conduct. And these reasons will have the most 
weight n cases, where the particular motives for making the law cease to 
operate. For although a general reason unopposed by any other of a 
weightier kind, may sufficiently authorise the enaction of a law; yet 
where the peculiar reason, for which that law was made, has ceased to 
exist, the relaxation of it, or even a total dispensation will be attended 
with less danger to the universal authority of law in general.

Such a dispensation indeed is most allowable, where an offence has been 
committed through ignorance, though the party so committing it is not 
entirely free from blame, or through some invincible infirmity of mind, in 
all which cases, a Christian ruler will have an eye to the example of God, 
who, under the old covenant, appointed many such offences to be atoned for 
by certain expiatory offerings: Levit. iv. and v.: and, in the New 
Testament, he has expressly declared his intention to pardon such 
offences, upon due repentance. Luke xxiii. 34. ; Heb. iv. 15. and V. 2.; 1 
Tim. 1. 13. And Chrysostom observes, that Theodosius, impressed with those 
words of our Saviour, "Father, forgive them, for they know not what they 
do, I was led to grant a pardon to the people of Antioch.

XXVII. And hence it is evident, how mistaken Ferdinand Vasquez is in his 
judgment, when he maintains that there can be no just reason for 
dispensing with a law, that is, for releasing any one from its 
obligations, except where the lawgiver, upon being consulted, expressly 
declares that he never intended it should be observed to its full extent. 
For he does not make the proper distinction between an equitable 
interpretation, and the entire relaxation of a law. For which reason, in 
another place, he reproves Thomas, and Sotus, because they say that a law 
is binding although the particular reason of its being made may have 
ceased, as if they supposed that the mere letter of the law was the source 
of its obligation, an opinion which they never did entertain. So far from 
every relaxation coming under the idea of equity, properly so called; 
those relaxations may be freely granted or refused, which could not be 
done in matters of equity, to which even acts of charity or those of 
reasonable policy do not strictly belong. For there is a great difference 
between the repeal of a law upon fair or urgent grounds, and a 
legislator's declaring that at the time of passing the law he had not the 
particular offence or case in contemplation. 

Having thus far considered the nature of dispensations, we proceed to a 
review of the merits upon which they may be granted.

XXVIII. From what has been said above, it appears that in punishments, two 
things are to be regarded, the offence, and the object for which they are 
inflicted. It is consonant to justice that no one should receive greater 
punishment than he deserves; upon which Cicero, in one of his letters, 
observes, that, "the same moderation, which is commended in all other 
things, ought to be observed in punishments." Papinian therefore calls 
punishment an estimation of demerit; but this equality established between 
crime and punishment, says Demosthenes in his Letter in behalf of the 
children of Lycurgus, is not the only thing to be considered: the object 
and intention also of the delinquent must be weighed and taken into the 
account. But, if care be taken to inflict no more punishment than is due 
for an offence; it may be greater or less, in proportion to the utility to 
be de. rived from thence.

XXIX. In examining the different degrees of guilt, we ought to take into 
the account the motives which impelled the offender to commit the act -the 
motives, which ought to have restrained him therefrom, and how far he was 
capable of yielding to either. Scarce any one does a wicked action without 
some motive, or so far strips himself of the nature of man, as to delight 
in such acts from pure malignity. Most men are led away by the indulgence 
of their appetites, which engender sin. Under the name of appetite also 
may be comprehended the strong desire of avoiding evil, which is the most 
consonant to nature, and therefore to be reckoned amongst the most 
laudable of all desires. So that offences committed for the sake of 
avoiding death, imprisonment, pain, or extreme want are generally deemed 
the most excusable.

Which gave occasion to Demosthenes to say, I that we are justly more 
exasperated against those, who, abounding in riches, commit evil actions, 
than against those, who are impelled by want to do the same. Humane judges 
are always ready to make allowance for necessity: but where wealth is 
united with injustice, no pre. text can be pleaded in excuse." On this 
score, Polybius excuses the Acarnanians, for having neglected, when 
threatened with impending danger themselves, to fulfil the terms of a 
defensive treaty made with the Greeks against the Aetolians.

Besides the desire of avoiding evil there are other desires tending to 
some good, either real or imaginary. Real advantages, considered apart 
from virtues, and those actions, which have a virtuous tendency, are 
either such as give delight themselves, or, like abundance of riches, can 
procure those things, which administer to pleasure. Among advantages 
purely imaginary, we may reckon that of desiring to excel others, from a 
spirit of rivalry, rather than from any laudable intention, or the power 
of gratifying resentments, which the farther they deviate from natural 
justice the more shocking they are to natural feeling. These appetites the 
Apostle has described in terms of marked censure, calling them, the "lust 
of the flesh, the lust of the eye, the pride of life." Here the first 
member of the sentence expresses the love of pleasure, the second implies 
the insatiable love of riches, and the third comprehends the pursuit of 
vain glory, and the desire of revenge.

XXX. The very injustice of all offences ought to be a GENERAL motive with 
men, to restrain them from the commission of them. For at present we are 
not considering sins of any kind, but those, which extend their 
consequences beyond the offender himself, and affect others. And injustice 
is the more heinous and criminal in proportion to the greatness of the 
injury, which it inflicts.

In the highest rank of crimes and misdemeanours therefore, we may place 
those, which are carried into complete execution: and lower in the scale 
we find those criminal designs, which have proceeded some degrees, but not 
to the last stage of completion. For the aggravation of a criminal intent 
is measured by the length to which it goes. In either class that kind of 
injustice, is most notorious, which tends to disturb the common peace of 
society, and therefore is injurious to greater numbers. Private wrongs 
follow in the next degree. The greatest of which are those affecting life, 
and very great, though somewhat inferior in the degrees of enormity, are 
those, that disturb the peace of families, which is founded on the 
marriage -contract. And the last description of wrongs are those affecting 
the property of individuals, either by taking it with open violence, or 
obtaining or injuring it by fraudulent means.

Some are of opinion that a more accurate order of division might have been 
used; but that which is here followed is the same used by God himself in 
the delivery of his commandments. For under the name of parents are 
included not only those, who are naturally such, but sovereign princes, 
magistrates, and rulers of every description, whose authority is the key-
stone of the fabric of society. Next follows the prohibition of murder; 
the prohibition of adultery, as a violation of the marriage bond; the 
prohibition of theft, and false evidence: and the catalogue of offences 
concludes with the prohibition of criminal desires. Among the immediate 
causes to restrain the commission of a crime, not only the cruelty of the 
act itself, but all the remote and possible consequences should be taken 
into the account. If a fire is begun, or the barriers, that keep out the 
waves, are broken down, the perpetrator brings upon his own head the blood 
of thousands, and all the guilt of that ruin by which they perish.

In addition to the general characters of injustice above described, we may 
annex the crime of being undutiful to parents, unkind to relatives, or 
ungrateful to benefactors, which are each of them a violation of natural, 
and in some respects of civil law. The repetition of these offences too 
aggravates their enormity: because wicked habits are sometimes worse than 
wicked actions. Hence we may comprehend the natural justice of that rule, 
which the Persians followed, comparing the past life of an offender with 
his present transgression. And this ought to have some weight in cases 
where a crime does not originate from habit, but from a momentary 
occasion. But not so, where a course of former rectitude has been changed 
into an unvaried course of wickedness. For in such cases, God himself has 
declared by the mouth of his prophet Ezekiel, that he has no regard to the 
former life. Even profane writers have the same clear views upon the 
subject; for Thueydides observes, that degeneracy from a righteous to a 
wicked course incurs double punishment: for offences are least pardonable 
in those, who know the difference between right and wrong. In this respect 
all praise and admiration are due to the wisdom of the primitive 
Christians, who, in estimating the magnitude of offences, weighed the 
preceding and the subsequent conduct of a transgressor against the action, 
for which he was to be punished, as may be seen from the council of 
Ancyra, and other councils. It heightens the enormity of an offence, where 
it is committed in violation of an express prohibition of the law. For, in 
the language of Tacitus, "the fear of prohibition may sometimes operate as 
a restraint, but where men once act in defiance of that, fear and shame 
have lost all their force."

XXXI. The capacity of the person too, with respect to judgment, 
disposition, age, education, and every other circumstance must be taken 
into consideration, when we look for resistance, or submission to the 
suggestions of wicked inclinations. The thought of immediate danger 
augments fear, and recent, unallayed pain inflames anger; so that in 
either case the calm dictates of reason cannot be heard. Offences 
therefore springing from the influence of such impressions, are of a less 
odious complexion than those arising from the love of pleasure, or the 
indulgence of hatred. Because there is less excuse for actions of the 
latter kind, the delay, or total forbearance of which could occasion no 
serious inconvenience. For it must always be kept in mind, that where 
there are more powerful impediments to the exercise of judgment, and more 
urgent persuasives to natural feeling, the criminality of an offence is 
proportionably softened. And these are the rules for measuring the degrees 
of pardon or punishment.

XXXII. The Pythagoreans maintain that justice lies in proportioning the 
punishment to the offence: a rule which cannot be admitted to the full 
extent of requiring an aggressor to suffer nothing more than a bare 
requital of the injury he has occasioned. For this is at variance with the 
most perfect laws, which in cases of theft sometimes require fourfold, and 
sometimes fivefold restitution to be made. And the Athenian law, besides 
compelling a thief to pay double the value of what he had taken sentenced 
him to many days' imprisonment. Among the Indians, as we are informed by 
Strabo, the person, who had maimed another, was condemned, in addition to 
the penalty of retaliation, to lose his hand. Nor is it right, as Philo, 
in explaining the punishment of murder, justly observes, for the suffering 
of an innocent and guilty person to be exactly the same. And hence it is 
easy to see why certain crimes not carried into actual execution, and 
therefore less injurious than those, which are so, are punished only 
proportionably to the design. In this manner false witnesses were treated 
by the Jewish law; and by the Roman law, those who walked ready armed to 
commit murder. Consequently a greater degree of punishment is due, where 
the criminal intention is completed But as death is the severest 
punishment that can be inflicted, and one that can never be repeated; the 
sentence of all human law rests there: though by the custom of some 
countries death is accompanied with torture, in cases of extreme atrocity.

XXXIII. In many instances, the magnitude of a punishment can only be 
measured by the situation of the person on whom it is to be inflicted. 
Thus a fine imposed upon the poor would be a heavy sentence, though it 
would scarcely affect the rich; and a man of high rank would feel the 
weight of a disgrace, that would but lightly touch an ignoble person. Such 
distinctions are frequently used by the Roman law, often degenerating into 
acts of partiality; a fault from which the law of Moses is entirely free. 
And the above rules may be considered as the scale for estimating the 
different degrees of punishment.

XXXIV. Though punishment does not exceed the bounds of justice, yet in 
certain cases it may be mitigated in favour of a criminal, from motives of 
mercy, except where such lenity to the guilty is deemed cruelty to the 
innocent, whose safety is thereby endangered. For the escape of a criminal 
is often an encouragement to his own perseverance in iniquity, and to that 
of others, who are encouraged by the example. Necessity indeed requires 
the sharpest remedies for the suppression of crimes; especially, where the 
incentives of habit and a facility to commit them prevail.

XXXV. The divine law given to the Hebrews punished the stealing of cattle 
from a pasture with more severity than breaking into a house, on account 
of the ease with which the former of those crimes might be committed. 
Exod. xxii. 1-9. Justin in speaking of the Scythians, describes them as 
"punishing theft with more severity than any other crime; for as they have 
no covered habitations to protect their flocks, and herds from 
depredations, what could be safe, if thieving were allowed?" Though the 
FAMILIARITY of certain crimes may prevent us from being surprised at their 
perpetration, it by no means diminishes their atrocity, or demands a 
mitigation of punishment. But, as Saturninus says, "the giant-strides of 
crimes must be impeded with the strongest bands." In trials for offences, 
clemency may be indulged, but in the passing of laws severity should be 
regarded: For the GENERAL nature of law requires that offences should be 
pursued with rigour: but in trials, in which individuals are the objects 
concerned, there may be circumstances to aggravate or diminish the 
offence: which leaves room for the discretionary exercise of rigour or 
lenity.

XXXVI. and XXXVII. The inclination to mitigate penalties, where the urgent 
motives to enforce them no longer exist, is a point of compassion 
perfectly distinct from the abolition of punishment altogether.

Nor has any thing been omitted, that might tend to clear up this difficult 
and delicate question. But every point, we trust, has been examined in its 
proper place, either respecting the magnitude of crimes, as measured by 
the injury done, the habitual commission of such offences, or the 
influence of the motives, sufficient to encourage or restrain them. Indeed 
the character of the offender affords the most conclusive means for 
judging of his capacity to commit the crime; and that of the sufferer 
often contributes something towards enabling us to estimate the due 
proportion of the penalty. The circumstances of the time, when-the place, 
where-or the facility, with which a crime is perpetrated, tend to 
aggravate, or lessen its enormity. The length of time intervening between 
a criminal design and its execution gives us some opportunity to examine 
how far the perpetrator was actuated by a malicious purpose. But the true 
complexion of a crime is to be discovered, partly from the nature of those 
appetites, to which it owes its birth; and partly, on the other hand, from 
the nature of the motives which ought to have restrained them. By this 
class of appetites the magnitude of a crime may be judged of; and the 
consequences are the motives which should operate to restrain them.

XXXVIII. It has been shewn before, and it is a truth founded upon 
historical fact, that wars are undertaken, as acts of punishment, and this 
motive, added to that of redress for injuries, is the source, from which 
the duties of nations, relating to war, take their rise. But it is not 
every injury, that can be construed into a just ground of war. For laws, 
whose vengeance is meant to protect the innocent, and to fall upon the 
guilty, do not regard every case, as a sufficient warrant for their 
exertion. So that there is much truth in the opinion of Sopater, who says 
that there are trivial and common offences, which it is better to pass 
over unnoticed, than to punish.

XXXIX. The maxim laid down by Cato, in his speech in defence of the 
Rhodians, that it is not right any one should be punished upon the bare 
suspicion of his having intended to commit aggression or injury, was well 
applied in that place; because no positive decree of the people of Rhodes 
could be alleged against them, nor was there any other proof beyond the 
CONJECTURE of their wavering in their policy. But this maxim is not 
universally true.

For where intention has proceeded to any outward and visible signs of 
insatiable ambition and injustice, it is deemed a proper object of 
jealousy, and even of punishment. Upon this principle, the Romans, as may 
be seen from Livy's account in the X1ii. book and xxx. chapter of his 
history, thought themselves justified in declaring war against Perseus, 
King of Macedon, unless he gave satisfactory proof, that he had no hostile 
intentions against them, in the naval and military armaments, which he was 
preparing. And we are informed by the same historians, that the Rhodians 
urged it as a rule established by the laws and customs of all civilized 
states; that if any one wished the destruction of an enemy, he could not 
punish him with death, unless he had actually done something to deserve 
it.

But it is not every unjust design, though indicated by some outward act, 
which can authorize and direct hostilities. For if the actual commission 
of crimes and aggressions is, in some cases, proper to be overlooked, much 
more will it be a mark of deliberate caution to use the same forbearance, 
where nothing further than the pure design of aggression appears. A 
forbearance which Cicero justifies upon the possibility that the enemy may 
have repented of his design, before the execution of it. No conclusive 
inference can be drawn from the severity of Mosaic Law against all 
intended acts of impiety and murder. For, in comparing human laws with the 
divine counsels, whose depths we cannot sound, we are liable to run into 
error; and the impulse of anger, where it is attended with no fatal 
consequence, is a case in which the infirmity of human nature calls for 
pardon. For altho' the precepts of the decalogue are designed to lay a 
restraint upon unlawful desires as well as upon unlawful actions, yet in 
addition to the spiritual sense, that which is called the carnal, or 
external commandment applies to those dispositions that are manifested by 
some open act. This interpretation may be deduced from a passage in the 
gospel of St. Mark, c. x. 19, where the prohibition to defraud is 
immediately preceded by the injunction not to steal. So that intended 
aggressions are not to be punished by force of arms, except in cases of 
atrocity, where the very design threatens consequences of the greatest 
danger. All punishment therefore must have in view either security against 
future aggressions, reparation for the injury done to national or private 
honour, or it must be used as an example of awful severity.

XL. It is proper also to observe that kings and those who are possessed of 
sovereign power have a right to exact punishment not only for injuries 
affecting immediately themselves or their own subjects, but for gross 
violations of the law of nature and of nations, done to other states and 
subjects. For the liberty of inflicting punishment for the peace and 
welfare of society, which belonged to individuals in the early ages of the 
world, was converted into the judicial authority of sovereign states and 
princes; a right devolving upon them not only as rulers of others, but as 
subject to the controul of no earthly power. For that is a right, which 
can belong to no subject. It is never safe to leave the entire assertion 
of a man's own rights, or the punishment of his wrongs, to his own 
judgment; for he cannot be entirely disinterested in his own cause. 
Partiality will make him fall short of, or prejudice will make him exceed 
the bounds of justice. It was the theme of praise bestowed upon the heroes 
of antiquity, that in their most arduous undertakings they avenged the 
wrongs of others rather than their own. Upon this principle there can be 
no hesitation in pronouncing all wars to be just, that