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silent; but let this be understood of laws civil, judicial, proper to peace, not of those laws which are perpetual and accommodated to all time. For it is excellently said by Dio Prusæensis that between enemies written laws - that is, civil laws not in force, but that unwritten laws are; namely, those which nature dictates or the consent of nations institutes. We may learn this from the old formula of the Romans,-"I decide that those things may be sought by a pure and pious war." The same old Romans, as Varro remarked, undertook war tardily, and without allowing themselves any license, because they thought that no war except a pious one ought to be undertaken. Camillus said that wars were to be carried on no less justly than bravely. Africanus said that the Romans began just wars and ended them. Again in Livy we read, "War has its laws no less than peace." And Seneca admires Fabricius as a great man, and, what is most difficult, a man innocent even in war and who thought that there were wrongs even toward an enemy.
27. How great the power of the conscience of justice is the writers of histories everywhere show, often ascribing victory to this cause mainly. Hence have arisen these proverbs,- that it is the cause which makes the soldier brave or base; that he rarely comes safe back who goes out on the bad side; that hope is the ally of the good cause; and others to the same effect. Nor ought any persons to be moved by the occasional success of unjust designs; for it is enough if the equity of the cause has an efficacy, and that a great one, in action, even though this efficacy, as happens in human affairs, is often prevented from taking effect, being counteracted by other causes. And, further, in conciliating friendships, which nations, as well as individuals, need on many accounts, a great effect must be assigned to an opinion that we do not hastily or unjustly undertake war and that we carry it on religiously; for no one readily joins himself to those whom he believes to think lightly of right laws and good faith.
28. I, for the reasons which I have stated, holding it to be most certain that there is among nations a common law of rights which is of force with regard to war and in war, saw many and grave causes why I should write a work on that subject. For I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed, recourse being had to arms for slight
reasons or no reason; and, when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were thenceforth authorized to commit all crimes without restraint."
29. And the sight of these atrocities has led many men, and these, estimable persons, to declare arms forbidden to the Christian whose rule of life mainly consists in love to all men. And to this party sometimes John Ferus and our countryman Erasmus seem to approximate,—men much devoted to peace, both ecclesiastical and civil. But they take this course, as I conceive, with the purpose with which; when things have been twisted one way, we bend them the other, in order to make them straight. But this attempt to drive things too far is often so far from succeeding that it does harm, because the excess which it involves is easily detected, and then detracts from the authority of what is said, even within the limits of truth. We are to provide a remedy for both disorders, both for thinking that nothing is allowable and that everything is.
30. Moreover, having practised jurisprudence in public situations in my country with the best integrity I could give, I would now, as what remains to me, unworthily ejected from that country graced by so many of my labors, promote the same subject, jurisprudence, by the exertion of my private diligence. Many, in preceding times, have designed to invest the subject with the form of an art or science; but no one has done this. Nor can it be done except care be taken in that point which has never yet been properly attended to,— to separate instituted law from natural law. For natural law, as being always the same, can be easily collected into an art, but that which depends upon institution, since it is often changed and is different in different places, is out of the domain of art, as the perceptions of individual things in other cases also is.
31. If, then, those who have devoted themselves to the study of true justice would separately undertake to treat of separate parts of natural and permanent jurisprudence, omitting all which derives its origin from the will of man alone; if one would treat of laws, another of tributes, another of the office of judges, another of the mode of determining the will of parties, another of the evidence of facts,— we might, by collecting all these parts, form a complete body of such jurisprudence. 32. What course we think ought to be followed in the exe
cution of such a task we show by act rather than by words, in this present work, in which is contained by far the noblest part of jurisprudence.
33. For in the First Book (after a preface concerning the origin of rights and laws) we have examined the question whether any war be just. Next, in order to distinguish between public and private war, we have to explain the nature of sovereignty, what peoples, what kings, have it entire, what partial, who with a right of alienation, who otherwise; and afterward we have to speak of the duty of subjects to superiors.
34. The Second Book, undertaking to expound all the causes from which war may arise, examines what things are common, what are property, what is the right of persons over persons, what obligation arises from ownership, what is the rule of royal succession, what right is obtained by pact or contract, what is the force and interpretation of treaties, of oaths private and public, what is due for damage done, what is the sacredness of ambassadors, the right of burying the dead, and the nature of punishments.
35. The Third Book has for its subject, in the first place, what is lawful in war; and, when it has drawn a distinction between that which is done with impunity, or may even, in dealing with foreigners, be defended as consistent with rights, and that which is really free from fault, it then descends to the kinds of peace and to conventions in war.
36. The undertaking such a work appeared to me the more worthy of the labor which it must cost, because, as I have said, no one has treated the whole of the argument; and those who have treated parts thereof have so treated them that they have left much to the industry of others. Of the old philosophers nothing is extant of this kind, neither of the Greeks, among whom Aristotle is said to have written a book called the Laws of War,* nor of those (the fathers) who wrote as Christians in the early period of the Church,— which is much to be regretted; and even of the books of the ancient Romans concerning the law recognized by their Feciales, or "Heralds' College," we have received nothing but the name. [See Cic. Off. i. 11; iii. 29.] Those who have made what they call Summa of Cases of Conscience have introduced chapters, as concerning other things, so concerning war, concerning promises, concerning oaths, concerning reprisals.
* But the true reading is Δικαιώματα πόλεων (not πο λέμων), the Laws of States. — Barbeyrac.
37. I have also seen special books concerning the laws of war, written partly by theologians, as Francis Victoria,* Henry Gorichem,† William Matthæi [Mathison?], Johannes de Carthagena; some by doctors of law, as Johannes Lupus, § Francis Arias, Joannes à Lignano, Martinus Laudensis.** But all
these have said very little, considering the copiousness of the argument, and said it in such a way that they have mingled and confounded law natural, law divine, law of nations, civil law, and canon law.
38. What was most wanting in all these — namely, illustrations from history-the learned Faber †† has undertaken to supply in some chapters of his Semestria, but no further than served his own special purpose and only giving references. The same has been done more largely, and that by applying a multitude of examples to certain maxims laid down, by Balthazar Ayala,‡‡ and still more largely by Albericus Gentilis, §§ whose labor, as I know it may be serviceable to others, and confess it has been to me, so what may be faulty in his style, in his arrangement, in his distinctions of questions, and of the different kinds of law, I leave to the judgment of the reader. I will only say that in the decision of controversies he is often wont to follow either a few examples that are not always to be approved of or else the authority of modern lawyers in opinions given, not a few of which are accommodated to the interest of those that consult them, and not founded upon the nature of equity and justice. The causes for which a war is denominated just or
*A Spanish Dominican who lived in the sixteenth century. The treatise here mentioned is De Indis et Jure Belli, and appears among his twelve theological lectures.
A Dutchman, so named from the place of his birth, and chancellor of Cologne. He lived about the middle of the fifteenth century, and wrote a treatise Del Bello Justo.
His book was printed at Rome in 1609.
SA native of Segovia. His treatise De Bello et Bellatoribus may be found in a large collection called Tractatus Tractatuum. Tom. xvi. of the Venice edition, 1584.
A Spaniard. His book is in the same volume of the same collection, under the title De Bello et ejus Justitia.
¶ A native of Bologna. His treatise De Bello is in the same volume.
** His name was Garat. His treatise De Bello appears in the same volume of the collection. It was reprinted at Louvain in 1648, with the treatise of Ayala, spoken of afterward.
†† Peter du Faur of St. Jori, Councillor of the Grand Council, afterward Master of Requests, and at last First President of the Parliament of Thoulouse. He was scholar to Cujas. His work entitled Semestrium Libri Tres has been several times printed at Paris, Lyons, and Geneva.
‡‡ He was a native of Antwerp, of Spanish extraction. His treatise De Jure et Officiis Bellicis was printed at that city in 1597.
§§ Professor at Oxford about 1600. His book is De Jure Belli.
unjust, Ayala has not so much as touched upon. Gentilis has indeed described, after his manner, some of the general heads; but many prominent and frequent cases of controversy he has not even touched upon.
39. We have been careful that nothing of this kind be passed over in silence, having also indicated the sources from which we derive our judgments, so that it may be easy to determine any question that may happen to be omitted by us. It remains now that I briefly explain with what aids and with what care I undertook this work.
In the first place it was my object to refer the truth of the things which belong to natural law to some notions, so certain that no one can deny them without doing violence to his own nature. For the principles of such natural law, if you attend to them rightly, are of themselves patent and evident almost in the same way as things which are perceived by the external senses, which do not deceive us if the organs are rightly disposed and if other things necessary are not wanting. Therefore, Euripides, in his Phanissæ, makes Polynices, whose cause he would have to be represented manifestly just, express himself thus:
I speak not things hard to be understood,
And he immediately adds the judgment of the chorus (which consisted of women, and these, too, barbarians), approving what he said.
40. In order to give proofs on questions respecting this natural law, I have made use of the testimonies of philosophers, historians, poets, and finally orators. Not that I regard these as judges from whose decision there is no appeal,- for they are warped by their party, their argument, their cause,—but I quote them as witnesses whose conspiring testimony, proceeding from innumerable different times and places, must be referred to some universal cause, which, in the questions with which we are here concerned, can be no other than a right deduction proceeding from the principles of reason or some common consent. The former cause of agreement points to the law of nature, the latter to the law of nations; though the difference of these two is not to be collected from the testimonies themselves (for writers everywhere confound the law