In proof of this be it observed that princes have authority not only over their own subjects, but also over foreigners, so far as to prevent them from committing wrongs, and this is by the law of nations and by the authority 433 of the whole world. Nay, it seems to be by natural law also, seeing that otherwise society could not hold together unless there was somewhere a power and authority to deter wrongdoers and prevent them from injuring the good and innocent. Now, everything needed for the government and preservation of society exists by natural law, and in no other way can we show that a State has by natural law authority to inflict pains and penalties on its citizens who are dangerous to it. But if a State can do this to its own citizens, society at large no doubt can do it to all wicked and danger¬ ous folk, and this can only be through the instrumentality of princes. It is, therefore, certain that princes can punish enemies who have done a wrong to their State and that after a war has been duly and justly under- taken the enemy are just as much within the jurisdiction of the prince who undertakes it as if he were their proper judge. Confirmation hereof is furnished by the fact that in reality peace and tranquillity, which are the end and aim of war, can not be had unless evils and damages be visited on the enemy in order to deter them from the like conduct in the future.
All this is also proved and confirmed by the authority and examples of good men. For, as said above, the Maccabees made war not only to recover the things which they had lost, but also to avenge their wrongs. And some most Christian princes and most religious Emperors have done the same 434 thing. Moreover, shame and disgrace are not wiped away from a State merely by its rout of its enemies, but also by its visiting severe punishment On the Law of War.
and castigation on them. Now, among the things which a prince is bound to defend and preserve for his State are its honor and authority.
20. Many doubts are suggested by what has just been said. In the Doubt 1 first place, there is a doubtful point in connection with the justice of a war, ^haThas whether it be enough for a just war that the prince believes himself to have been said. a just cause. On this point let my first proposition be: This belief is not Proposi- always enough. And for proof I rely, first, on the fact that in some matters tlon of less moment it is not enough either for a prince or for private persons to believe that they are acting justly. This is notorious, for their error may be vincible and deliberate, and the opinion of the individual is not enough to render an act good, but it must come up to the Standard of a wise man’s judgment, as appears from Ethics, bk. 2. Also the resuit would otherwise be that very many wars would be just on both sides, for although it is not a common occurrence for princes to wage war in bad faith, they nearly always think theirs is a just cause. In this way ali belligerents would be innocent and it would not be lawful to kill them. Also, were it otherwise, 435 even Turks and Saracens might wage just wars against Christians, for they think they are thus rendering God Service.
21. Second proposition: It is essential for a just war that an exceed- ingly careful examination be made of the justice and causes of the war and that the reasons of those who on grounds of equity oppose it be listened to.
For (as the comic poet says) “A wise man must make trial of everything Terence. by words before resorting to force,” and he ought to consuit the good and wise and those who speak with freedom and without anger or bitterness or greed, seeing that (as Sallust says) “where these vices hold sway, truth is Saiiust. not easily distinguished.” This is self-evident. For truth and justice in moral questions are hard of attainment and so any careless treatment of them easily leads to error, an error which will be inexcusable, especially in a concern of great moment, involvmg danger and calamity to many, and they our neighbors, too, whom we are bound to love as ourselves.
22. Second doubt: Whether subjects are bound to examine the cause Doubtu. of a war or whether they may serve in the war without any careful scrutiny thereof, just as the lictors had to enforce the praetor’s decree without ques- tioning. On this doubt let my first proposition be: If a subject is con- J^oposi- vinced of the injustice of a war, he ought not to serve in it, even on the tI0n 436 command of his prince. This is ciear, for no one can authorize the killing of an innocent person. But in the case before us the enemy are innocent. Therefore they may not be killed. Again, a prince sins when he commences a war in such a case. But “not only are they who commit such things worthy of death, but they, too, who consent to the doing thereof” ( Romans, ch. 1). Therefore soldiers also are not excused when they fight in bad faith. Again, it is not lawful to kill innocent citizens at the prince’s com¬ mand. Therefore not aliens either.
23. Hence flows the corollary that subjects whose conscience is against coroiiary. the justice of a war may not engage in it whether they be right or wrong.
This is ciear, for “whatever is not of faith is sin” {Romans, ch. 14).
Franciscus de Victoria Proposi- tion II.
Proposi- tion III.
Proposi- tion IV.
Doubt III.
Proposi¬ tiori I.
24. Second proposition: Senators and petty rulers and in general all who are admitted on summons or voluntarily to the public council or the prince’s council ought, and are bound, to examine into the cause of an unjust war. This is ciear; for whoever can save his neighbor from danger and harm is bound to do so, especially when the danger is that of death and greater ilis, as is the case in war. But the persons referred to can avert the war, supposing it to be unjust, if they lend their wisdom and weight to an examination into its causes. Therefore they are bound so to do. Again, if by their neglect an unjust war be entered on, they are con- senting parties thereto, for that which a man could and ought to prevent is imputed to him, if he does not prevent it. Again, a king is not by 437 himself capable of examining into the causes of a war and the possibility of a mistake on his part is not unlikely and such a mistake would bring great evil and ruin to multitudes. Therefore war ought not to be made on the sole judgment of the king, nor, indeed, on the judgment of a few, but on that of many, and they wise and upright men.
25. Third proposition: Other lesser folk who have no place or audience in the prince’s council or in the public council are under no obligation to examine the causes of a war, but may serve in it in reliance on their betters. This is proved, first, by the fact that it is impossible and inexpe- dient to give reasons for all acts of state to every member of the commonalty.
Also by the fact that men of the lower orders, even if they perceived the injustice of a war, could not stop it, and their voice would not be heeded. Therefore, any examination by them of the causes of a war would be futile.
Also by the fact that for men of this sort it is enough proof of the justice of war (unless the contrary be quite certain) that it is being waged after public counsel and by public authority. Therefore no further examination on their part is needed.
26. Fourth proposition: Nevertheless the proofs and tokens of the injustice of the war may be such that ignorance would be no excuse even to subjects of this sort who serve in it. This is ciear, because such ignorance might be deliberate and adopted with evil intent towards the enemy. 438 Also, were this otherwise, unbelievers would be excused when they follow their chieftains to war against Christians and it would be unlawful to kill them, it being certain that they deem themselves to have a just cause of war. Also, the soldiers who crucified Christ, ignorantly following Pilate’s order, would be excused. Also, the Jewish mob would be excused which was led by the elders to shout “Away with Him, crucify Him.”
27. Third doubt: What should be done when the justice of the war is doubtful, that is, when there are apparent and probable reasons on both sides. First proposition: As regards the princes themselves, it seems that if one be in lawful possession, the other may not try to tum him out by war and armed force, so long as the doubt remains. For example: Suppose the King of France to be in lawful possession of Burgundy and that it be doubtful whether he has or has not right thereto. The Emperor may not try to oust him by arms; nor on the other hand may the French King On the Law of War.
seize Naples or Milan, if there be doubt who is entitled to it. The proof is that in doubtful matters the party in possession has the better position. Therefore it is not lawful to dispossess the possessor in favor of a doubtful cause. Further, if the matter were being heard by a lawful judge, he would never in case of doubt dispossess the party in possession. Therefore, if we 439 postulate that those princes who are asserting a right are judges in their own cause, they may not lawfully eject a possessor so long as there is any doubt about the title. Further, in the suits and causes of private persons it is never permissible in a doubtful matter to dispossess a lawful possessor. Therefore not in the causes of princes; for the laws are the princes’ laws. Therefore, if by human law it is not permissible in a doubtful matter to dis¬ possess a lawful possessor, it can quite validly be objected to princes, “Obey the law thyself hast made, seeing that a man ought to adopt the same law for himself which he has enjoined on others.” Also, were it otherwise, a war could be just on both sides and would never be settled. For if in a doubtful matter it were lawful for one side to assert his claim by force,theother might make armed defense, and after the one had obtained what he claimed, the other might afterwards claim it back, and so there would be war without end, to the ruin and tribulation of peoples.
28. Second proposition: If the city or province in regard of which JJJJJ1’ the doubt arises has no lawful possessor, as, for instance, if it were open by reason of the death of the lawful lord and there is a doubt whether the King of Spain or the King of France be the heir and no certainty in point of law can be attained, it seems that, if one party wants to settle and make a division or compromise as to part of the claim, the other is bound to accept his proposal, even if that other be the stronger and able to seize the whole by armed force; nor would he have a just cause of war. The proof is that when the merits of a quarrel are equal, one side does no wrong 440 by claiming an equal part of the thing in dispute. Further, in private disputes also, where the matter is in doubt, one party may not seize the whole thing. Also, in the same way the war would be just on both sides. Also, a just judge would not decree and award the whole thing to either party.
29. Third proposition: He who is in doubt about his own title is bound, even though he be in peaceable possession, to examine carefully into the cause and give a quiet hearing to the arguments of the other side, if so be he may thus attain certitude either in favor of himself or the other.
This is proved by the fact that a man who is in doubt and neglects to ascer- tain the truth is not in possession in good faith. So also, in a matrimonial cause, if the man who is in lawful possession entertains a doubt whether in truth the woman is his or the other’s,it is certain that he is bound to examine the question. Therefore the same principle applies in other causes. Also, princes are judges in their own cases, inasmuch as they have no superior.
But it is certain that, if any one raises any objection to a lawful possessor, the judge is bound to examine the case. Therefore in a doubtful matter princes are bound to examine their own case.
Fr ancis cus de Victoria Proposi- tion IV.
Adrian’s opin- ion about subjects.
Proposi- tion V, wherein the opinion of Adrian is refuted.
This passage Contra Faustum, c.75, though not in quite the same words.
30. Fourth propositiori: After examination of the case the lawful possessor is not bound to quit possession so long as the doubt reasonably persists, but may lawfully retain it. This is manifestly so, for, firstly, no judge could divest him of it. Therefore he is not bound to give it up, 441 either the whole or part. Also, in a matrimonial cause where the matter is doubtful, the man is under no obligation to give up his possession, as is laid down in X, 5, 39, 44, and in X, 4, 21, 2. Therefore the like is not required in other causes. And Adrian expressly holds (qu. 2, Quotlib. 2) that a party in doubt may retain his possession, and he applys this rule to princes in a doubtful matter. But concerning subjects who are in doubt with regard to the justice of a war, Adrian indeed says ( Quotlib. 2, on the first principal argument) that a subject in such a case, that is, one who is in doubt whether the alleged cause of a war is a sufficient one or simply whether there exists some sufficient cause for declaring war, may not serve in such a war, even at the command of his prince. The proof is that he exposes himself to the danger of mortal sin. Also, what is not of faith is sin, a doctrine which, according to the doctors and to truth, is to be under- stood as condemnatory, not only where the conscience is assured or based on opinion, but also where it is in doubt. Sylvester seems to hold the same doctrine, under the word bellum, I, § 9.
31. But let this be my fifth proposition: In the first place, there is no doubt that in a defensive war subjects may, even though the matter be doubtful, follow their prince to the war; nay, that they are bound to follow him, and also in an offensive war. The first proof is in the fact that, as 442 has been said, a prince is not able, and ought not, always to render reasons for the war to his subjects, and if subjects can not serve in war except they are first satisfied of its justice, the State would fall into grave perii and the door would be opened to wrongdoing. Also, in doubtful matters the safer course ought to be adopted. Now, if subjects in a case of doubt do not follow their prince to the war, they expose themselves to the risk of betraying their State tothe enemy, and this is a much more serious thing than fighting against the enemy despite a doubt. Therefore they ought rather to fight. Also, this is manifestly proved by the fact that the lictor is bound to carry out the decree of the judge, even though he has his doubts about its justice, for there would be serious danger in the opposite course. Also, St.Augustine writing against theManichaeans, defends this line of argument, where he says: “If a righteous person be in the military service of a sacrilegious king, he may consistently go to war at his command, provided that it is certain that the command laid on him is not contrary to the Divine precepts or that it is not certain whether it beso”(C. 23, qu.i,can. quid culpatur). Herewehave St. Augustine expressly declaring that if it is not certain — that is, if there is a doubt — whether it be against God’s precepts, the subject may lawfully go to the war. And however Adrian may twist and turn, he can not free himself from the authority of St. Augustine, for our proposition is, beyond cavil, the conclusion at which St. Augustine arrives. Nor does it avail to 443 say that such a person ought to get rid of his doubt and make his conscience On the Law of War.
On the Law of War.
acquiesce in the justice of the war, for it remains that, mortally speaking, this is impossible, as in other cases of doubt. Now, Adrian’s mistake seems to be in thinking that, if I am in doubt whether this war is just for my prince or whether there be a just cause for this war, it immediately follows that I am in doubt whether or no I ought to go to this war. I admit that I am no wise justified in doing what my conscience doubts about and that, if I am doubtful about the lawfulness of doing any given thing, I sin if I do it. But any doubt of mine about the justice of this war does not necessarily involve a doubt whether I ought to fight or serve in this war. Nay, it is quite the other way about. For although I may doubt whether the war is just, yet the next point is that I may lawfully serve in the field at my prince’s command. It is precisely the same as with a lictor who has his doubts whether the judge’s decree is just, it does not follow therefrom that he doubts whether or no he ought to carry it into execution; he knows that he is bound to carry it into execution. So, also, if the doubt be whether this woman be my wife; I am, consequent upon such doubt, bound to render her conjugal rights.
32. The fourth doubt is: Whether a war can be just on both sides. The following is my answer: First proposition: Apart from ignorance the 444 case clearly can not occur, for if the right and justice of each side be certain, it is unlawful to fight against it, either in offense or in defense. Second proposition: Assuming a demonstrable ignorance either of fact or of law, it may be that on the side where true justice is the war is just of itself, while on the other side the war is just in the sense of being excused from sin by reason of good faith, because invincible ignorance is a complete excuse. Also, on the side of the subjects at any rate, this may often occur; for even if we assume that a prince who is carrying on an unjust war knows about its injustice, stili (as has been said) subjects may in good faith follow their prince, and in this way the subjects on both sides may be doing what is lawful when they fight.
33. Hence arises the fifth doubt: Whether one who has in ignorance gone in an unjust war and subsequently is convinced of its injustice is bound to make amends therefor. This may be asked both about a prince and about a subject. My first proposition is: If the injustice of the war had been within reach of proof by him, he is bound when he learns of its injustice to give back what he has taken away and not yet consumed — that is, to the extent to which he has been enriched; but he need make no amends as regards what he has consumed, because the rule of law is that a person who is not in fault ought not to be damnified, just as one who in good faith attended a sumptuous banquet given by a thief where stolen things were consumed would be under no obligation to give redress therefor, save 445 perhaps up to the amount that his meal would have cost him at horne. Sylvester, however, says, under the word bellum, I, § 9, that if our man was in doubt about the injustice of the war yet followed his lord’s authority, he is liable to make good everything, because it was with bad faith that he fought.
The cause of Adrian’s error.
Doubt IV.
Proposi¬ tion I.
Proposi¬ tion II.
Although their prince knows the in¬ justice of the war, the sub¬ jects on each side may sometimes lawfully fight.
Doubt V.
Proposi¬ tion I.
Sylvester’s opinion.
Franciscus de Victoria Proposi- tion II; against Sylvester’8 opinion.
Note!
Doubt I, arising from the last Prin¬ cipal question.
Argument for the affirm¬ ative.
Proof 2.
Proof 3- Proof 4.
Confirmation.
Now, let my second propositiori, in conformity with the foregoing, be: Our man is not bound to make good what has been consumed, any more than the other side would be, because (as has been said) his fighting was lawful and in good faith. Sylvester’s contention would, however, be sound if the man had really been in doubt whether it was lawful for him to go to the war, for he would then be acting against his conscience. Now, much attention must be paid to the admitted fact that a war may be just and lawful in itself and yet owing to some collateral circumstance may be unlaw- ful. For it is admitted that one may be entitled to recapture a city or a province and yet that, because of some scandal, this may become quite un- lawful. For inasmuch as (according to what has been said before) wars ought to be waged for the common good, if some one city can not be recaptured without greater evils befalling the State, such as the devastation of many cities, great slaughter of human beings, provocation of princes, occasions for new wars to the destruction of the Church (in that an opportunity is given to pagans to invade and seize the lands of Christians), it is indubi- table that the prince is bound rather to give up his own rights and abstain from war. For it is ciear that if the King of France, for example, had a 446 right to retake Milan, but by the war both the Kingdom of France and the Duchy of Milan would suffer intolerable ilis and heavy woes, it would not be right for him to retake it. This is because that war ought to take place either for the good of France or for the good of Milan. Therefore, when, on the con- trary, great ilis would befall each side by the war, it could not be a just war.
34. With regard to another question, namely, what degree of stress is lawful in a just war, there are also many doubts. The first is: Whether it is lawful in war to kill the innocent. It seems that it is; because, in the first place, the Sons of Israel slew children at Jericho, as appears from Joshua, ch. 6, and afterwards Saul slew children in Amalek (I Samuel, ch. 15), and in both these cases it was by the authority and at the bidding of God. “Now, whatever is written is written for our instruction,” as appears from Romans, ch. 15. Therefore, if a war of the present day be just, it will be lawful to kill the innocent.
35. With regard to this doubt, let my first proposition be: The delib¬ erate slaughter of the innocent is never lawful in itself. This is proved, firstly, by Exodus, ch. 23: “The innocent and righteous slay thou not.” Secondly, the basis of a just war is a wrong done, as has been shown above.
But wrong is not done by an innocent person. Therefore war may not be employed against him. Thirdly, it is not lawful within a State to punish 447 the innocent for the wrongdoing of the guilty. Therefore this is not lawful among enemies. Fourthly, were this not so, a war would be just on both sides, although there was no ignorance, a thing which, as has been shown, is impossible. And the consequence is manifest, because it is certain that innocent folk may defend themselves against any who try to kill them.
And ali this is confirmed by Deuteronomy, ch. 20, where the Sons of Israel were ordered to take a certain city by force and to slay every one except women and little ones.
On the Law of War.
36. Hence it follows that even in war with the Turks it is not allowable to kill children. This is ciear, because they are innocent. Aye, and the same holds with regard to the women of unbelievers. This is ciear, because so far as the war is concerned, they are presumed innocent; but it does not hold in the case of any individual woman who is certainly guilty. Aye, and this same pronouncement must be made among Christians with regard to harmless agricultural folk, and also with regard to the rest of the peace- able civilian population, for all these are presumed innocent until the con- trary is shown. On this prmciple it follows that it is not lawful to slay either foreigners or guests who are sojourning among the enemy, for they are presumed innocent, and in truth they are not enemies. The same 448 principle applies to clerics and members of a religious order, for they in war are presumed innocent unless the contrary be shown, as when they engage in actual fighting.
37. Second proposition: Sometimes it is right, in virtue of collateral circumstances, to slay the innocent even knowingly, as when a fortress or city is stormed in a just war, although it is known that there are a number of innocent people in it and although cannon and other engines of war can not be discharged or fire applied to buildings without destroying innocent together with guilty. The proof is that war could not otherwise be waged against even the guilty and the justice of belligerents would be balked. In the same way, conversely, if a town be wrongfully besieged and rightfully defended, it is lawful to fire cannon-shot and other missiles on the besiegers and into the hostile camp, even though we assume that there are some children and innocent people there.
Great attention, however, must be paid to the point already taken, Note! namely, the obligation to see that greater evils do not arise out of the war than the war would avert. For if little effect upon the ultimate issue of the war is to be expected from the storming of a fortress or fortified town wherein are many innocent folk, it would not be right, for the purpose of assailing a few guilty, to slay the many innocent by use of fire or engines 449 of war or other means likely to overwhelm indifferently both innocent and guilty. In sum, it is never right to slay the guiltless, even as an indirect and unintended resuit, except when there is no other means of carrying on swer of the the operations of a just war, according to the passage (St. Matthew, ch. 13) author- “Let the tares grow, lest while ye gather up the tares ye root up also the wheat with them.”
38. Here a doubt may arise whether the killing of guiltless persons is J“u‘“clden1 lawful when they may be expected to cause danger in the future; thus, for example, the children of Saracens are guiltless, but there is good reason to fear that when grown up they will fight against Christians and bring on them all the hazards of war. Moreover, although the adult male civilians of the enemy who are not soldiers are presumed to be innocent, yet they will hereafter carry a soldier’s arms and cause the hazard named. Now, is it lawful to slay these youths? It seems so, on the same principle which justifies the incidental killing of other guiltless persons. Also ( Deuteronomy, i8o Franciscus de Victoria The author’s answer.
On the argu- ment for the affirmative.
ch. 20) the Sons of Israel were ordered when assaulting any city to slay “every adult male.” Now, it can not be presumed that ali of these would be guilty.
My answer is that although this kdling may possibly be defended, yet I believe that it is in no wise right, seeing that evil is not to be done even 450 in order to avoid greater evil stili, and it is intolerable that any one should be killed for a future fault. There are, moreover, other available measures of precaution against their future conduct, namely, captivity, exile, etc., as we shall forthwith show. Hence it follows that, whether victory has already been won or the war is stili in progress, if the innocence of any soldier is evident and the soldiers can let him go free, they are bound to do so.
To the argument on the opposite side my rejoinder is that the slaughter in the instances named was at the special command of God, who was wroth against the people in question and wished to destroy them utterly, just as he sent fire on Sodom and Gomorrah which devoured both guiltless and guilty together. He, however, is Lord of ali and has not given this license as a common law. And the same answer might be made to that passage in Deuteronomy, ch. 20. But, inasmuch as what is there enjoined is in the ali future time, it would rather seem Doubt II.
Proposi¬ tiori I.
Corollary.
On the pasonomy. that the Lord enjoined it because ali adult males in an enemy State are deemed guilty, and guiltless can not be distinguished from guilty. There- fore all may be killed.