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CHAPTER VIII

Concerning the Forms to Be Followed in Undertaking and Waging War

Question VII

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

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

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

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

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

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

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

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

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

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

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

Force

New explanation

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

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

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

A paradoxical contention

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

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

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

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

Since each man, moved by wrath, was wont to plan

Vengeance more harsh than just laws now allow,

Men wearied of a life of violence. . . .

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

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

In the light of the foregoing discussion, it is clear that the causes for the infliction of punishment are natural, and derived from that precept which we have called the First Law. Even so, is not the power to punish essentially a power that pertains to the state? Not at all! On the contrary, just as every right of the magistrate comes to him from the state, so has the same right come to the state from private individuals; and similarly, the power of the state is the result of collective agreement, as we demonstrated in our discussion of the Third Rule.^a Therefore, since no one is able to transfer a thing that he never possessed, it is evident that the right of chastisement was held by private persons before it was held [40′] by the state. The following argument, too, has great force in this connexion: the state inflicts punishment for wrongs against itself, not only upon its own subjects but also upon foreigners; yet it derives no power over the latter from civil law, which is binding upon citizens only because they have given their consent; and therefore, the law of nature, or law of nations, is the source from which the state receives the power in question.

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

θεμιστεύει δὲ ἕκαστος

παίδων ἠδ’ ἀλόχων.

For wives and children, each man made the laws.

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

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

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

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

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

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

Conclusion VII, Article I

Accordingly, we conclude that a private war is undertaken justly in so far as judicial recourse is lacking.

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

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

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

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

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

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

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

Euripides,^b too, had already written:

λόγοισι πείθων, εἰ δὲ μή βίᾳ δορός.

I shall achieve my aim through words; or else, Should words fail, force will serve my ends. . . .

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

New explanation

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

Clarigatio or Rerum repetitio

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

The second necessary step is the order for war, or decree condemning the opposing side, issued by the state which has been injured or whose citizen has been injured, or by a magistrate of that state.^c From this practice certain formulas arose. The first ran as follows: “I bear witness that the said nation is unjust and does not make just reparation.” Another formula was couched in the following terms:^d “‘[What is your opinion¹¹] regarding the things, the suits, the causes, concerning which formal claims have been presented by the pater patratus¹² of the Roman People of the Quirites to the pater patratus of the Nation of the Ancient Latins and to the men of the Ancient Latins, which things the latter nation has not paid, delivered nor acted upon, and which should have been delivered, acted upon and paid?’ ‘I hold that these things should be sought in a blameless and righteous war, and to that course I lend my vote and approval.’” A third formula was worded thus: “Because the tribes of the Ancient Latins have committed acts and offences adverse to the Roman People of the Quirites, and because the Roman People of the Quirites has commanded that war be made on the Ancient Latins and furthermore the Roman Senate of the Quirites has voted, agreed upon, and decreed the waging of war against the Ancient Latins, I, therefore, together with the Roman People, declare and make war upon the Nation of the Ancient Latins.”

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

Θησεύς σ’ ἀπαιτει̑ πρὸς χάριν θάψαι νεκρούς,

συγγείτον’ οἰκω̑ν γαι̑αν, ἀξιω̑ν τυχει̑ν,

φίλον τε θἑσθαι πάντ’ Ἐρεχθειδω̑ν λεών.

κἂν μὲν θἑλωσιν αἰνἑσαι, παλίσσυτος στει̑χ’. ἢν δ’ ἀπιστω̑σ’, οἵδε δεύτεροι λόγοι. κω̑μον δἑχεσθαι τὸν ἐμὸν ἀσπιδηφόρον.

Theseus, ruler of a neighbouring land, Asks for the dead that he may bury them. To win Athenian friendship, grant this plea. If it be granted, herald, turn thou back; If disobeyed, speak then these other words: “Look soon to see my men arrayed in arms.” [45′]

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

Denuntiatio or Indictio

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

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

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

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

Conclusion VII, Article II

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

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

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

When that time comes, [the lawful time for strife,]

It shall be licit to contend in hate,

And play the plunderer’s part. . . .

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

Who, of a foe, would ask: “Is this deceit

Or valor?” . . .^c

For we seek to do harm to our foes,

ἢ δόλῳ ἠὲ βίῃ, ἢ ἀμφαδὸν ἠὲ κρυφηδόν;^d

Whether by fraud or unmasked violence, By stealth or openly. . . .

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

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

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

The rule whereby the punishment befits

The crime. . . .^a

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

New explanation

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

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

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

For every folly of their kings, the Greeks

Pay penalties. . . .^b

Nor was that situation unreasonable which caused Hesiod^c to lament as follows:

ὄφῤ ἀποτίσῃ

δη̑μος ἀτασθαλίας βασιλἑων,

So that the impious sins which stem from kings, The people expiate. . . .

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

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

πολλάκι καὶ ξύμπασα πόλις κακου̑ ἀνδρὸς ἐπαυρει̑.

Often a nation pays the penalty For one man’s wickedness. . . .

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

Solely because of one man’s frenzied guilt,

The guilt of Ajax, son of Oileus,^e

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

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

Conclusion VII, Article III, Part I

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

New explanation

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

καθαρὸς ἅπας τοι πολεμίους ὃς ἂν κτάνῃ.

That man is undefiled and dutiful Who slays a public enemy. . . .

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

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

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

There is no law to spare the captive foe,

Or bar his punishment. . . .

Nor is the answer given him,

That act which law forbids not, shame forbids,

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

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

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

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

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

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

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

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

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

New explanation

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

Corollary I

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

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

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

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

He is the best of soldiers who aims first

And last, ’mid wars, to keep good faith intact.^e

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

New explanation

Moreover, the will is bound not only by treaties and pacts, but also by agreements tacitly indicated. For example, any person who has placed himself under the protection of another in such a way as to be in the possession and under the power of that protector, makes himself for the time being a part, as it were, of the latter, and by his silence promises clearly enough that he will devise nothing prejudicial to the welfare and sovereign status of the said protector. Thus we abhor traitors and [51′] suborned assassins and—far more intensely—poisoners.^a