On the Law of War and Peace
De Jure Belli ac Pacis
by Hugo Grotius (1583-1645)
CHAPTER 1: On War and Right
Of War Definition of War Right, of Governors and of the governed, and of equals Right as a Quality divided into Faculty and Fitness Faculty denoting Power, Property, and Credit Divided into Private and Superior Right as a Rule, natural and voluntary Law of Nature divided Proofs of the Law of Nature Division of Rights into human and divine Human explained Divine stated Mosaic Law not binding upon Christians.
I. THE disputes arising among those who are held together by no common bond of civil laws to decide their dissensions, like the ancient Patriarchs, who formed no national community, or the numerous, unconnected communities, whether under the direction of individuals, or kings, or persons invested with Sovereign power, as the leading men in an aristocracy, and the body of the people in a republican government; the disputes, arising among any of these, all bear a relation to the circumstances of war or peace. But because war is undertaken for the sake of peace, and there is no dispute, which may not give rise to war, it will be proper to treat all such quarrels, as commonly happen, between nations, as an article in the rights of war: and then war itself will lead us to peace, as to its proper end.
II. In treating of the rights of war, the
first point, that
we have to consider,
is, what is war,
which is the subject of our inquiry, and what
is the right, which we seek to establish.
IV. There is another signification of the
different from this, but
from it, which relates directly to the person.
RIGHT is a moral quality
annexed to the person, justly entitling
him to possess some particular privilege, or to perform
right is annexed to the person, although it sometimes follows
the things, as the services of lands, which
V. Civilians call a faculty that Right, which every man has to his own; but we shall hereafter, taking it in its strict and proper sense, call it a right. This right comprehends the power, that we have over ourselves, which is called liberty, and the power, that we have over others, as that of a father over his children, and of a master over his slaves. It likewise comprehends property, which is either complete or imperfect; of the latter kind is the use or possession of any thing without the property, or power of alienating it, or pledges detained by the creditors till payment be made. There is a third signification which implies the power of demanding what is due, to which the obligation upon the party indebted, to discharge what is owing, corresponds.
VI. Right, strictly taken, is again
twofold, the one
PRIVATE, established for
of each individual, the other,
VIII. [Translator's note: The eighth Section is omitted, the greater part of it consisting of verbal criticism upon Aristotle's notions of geometrical and arithmetical justice; a discussion no way conducive to that clearness and simplicity, so necessary to every didactic treatise.]
IX. There is also a third signification of the word Right, which has the same meaning as Law, taken in its most extensive sense, to denote a rule of moral action, obliging us to do what is proper. We say OBLIGING us. For the best counsels or precepts, if they lay us under no obligation to obey them, cannot come under the denomination of law or right. Now as to permission, it is no act of the law, but only the silence of the law it however prohibits any one from impeding another in doing what the law permits. But we have said, the law obliges us to do what is proper, not simply what is just; because, under this notion, right belongs to the substance not only of justice, as we have explained it, but of all other virtues. Yet from giving the name of a RIGHT to that, which is PROPER, a more general acceptation of the word justice has been derived. The best division of right, in this general meaning, is to be found in Aristotle, who, defining one kind to be natural, and the other voluntary, calls it a LAWFUL RIGHT in the strictest sense of the word law; and some times an instituted right. The same difference is found among the Hebrews, who, by way of distinction, in speaking, call that natural right, PRECEPTS, and the voluntary right, STATUTES: the former of which the Septuagint call dikaomata, and the latter entolas.
X. Natural right is the dictate of right
reason, shewing the
or moral necessity, of
any act from its agreement or
disagreement with a rational nature, and consequently
that such an act
forbidden or commanded by God,
the author of nature. The actions,
upon which such a dictate is given, are
either binding or unlawful in
themselves, and therefore necessarily understood to be
commanded or forbidden
by God. This
mark distinguishes natural right, not only from
human law, but from the law, which God himself has been
by some, the voluntary
divine right, which does not command or
forbid things in themselves either binding or unlawful,
them unlawful by
its prohibition, and
binding by its command. But, to
understand natural right, we must observe
that some things are said to
that right, not properly, but, as the schoolmen say, by way of
are not repugnant to natural right, as we have
already observed that those things are called
We must farther remark, that natural right
relates not only
to those things
that exist independent
of the human will, but to many things, which
necessarily follow the exercise of that will.
property, as now in use,
was at first a
creature of the human will. But,
after it was established,
one man was prohibited by the
law of nature from seizing the
of another against his will. Wherefore,
Lawyer said, that
theft is expressly
forbidden by the law of nature. Ulpian
as infamous in its
own nature; to whose authority that of Euripides may be
added, as may be seen in the verse of
"For God himself hates violence, and will not have us to grow rich by rapine, but by lawful gains. That abundance, which is the fruit of unrighteousness, is an abomination. The air is common to men, the earth also where every man, in the ample enjoyment of his possession, must refrain from doing violence or injury to that of another."
Now the Law of Nature is so unalterable,
that it cannot be
changed even by God
himself. For although the power of
God is infinite, yet there are
some things, to
which it does not extend. Because
the things so expressed would
have no true meaning, but imply a
contradiction. Thus two and two
must make four,
nor is it possible to be
otherwise; nor, again, can what is
really evil not be evil. And
Aristotle's meaning, when he says,
that some things are no sooner named,
than we discover their evil nature.
as the substance of things in their nature and existence
depends upon nothing
but themselves; so there are
qualities inseparably connected with
their being and essence. Of
this kind is the
evil of certain actions,
the nature of a reasonable being. Therefore
his actions to be judged
by this rule, as may be seen in the
xviiith chap. of Gen. 25. Isa.
v. 3. Ezek. xviii.
25. Jer. ii. 9.
XI. The distinction found in the books of the Roman Law, assigning one unchangeable right to brutes in common with man, which in a more limited sense they call the law of nature, and appropriating another to men, which they frequently call the Law of Nations, is scarcely of any real use. For no beings, except those that can form general maxims, are capable of possessing a right, which Hesiod has placed in a clear point of view, observing "that the supreme Being has appointed laws for men; but permitted wild beasts, fishes, and birds to devour each other for food." For they have nothing like justice, the best gift, bestowed upon men.
XII. The existence of the Law of Nature is proved by two kinds of argument, a priori, and a posteriori, the former a more abstruse, and the latter a more popular method of proof.
. . .
XIII. It has been already remarked, that there is another kind of right, which is the voluntary right, deriving its origin from the will, and is either human or divine.
XIV. We will begin with the human as more generally known. Now this is either a civil right, or a right more or less extensive than the civil right. The civil right is that which is derived from the civil power. The civil power is the sovereign power of the state. A state is a perfect body of free men, united together in order to enjoy common rights and advantages. The less extensive right, and not derived from the civil power itself, although subject to it, is various, comprehending the authority of parents over children, masters over servants, and the like. But the law of nations is a more extensive right, deriving its authority from the consent of all, or at least of many nations.
It was proper to add MANY, because scarce any right can be found common to all nations, except the law of nature, which itself too is generally called the law of nations. Nay, frequently in one part of the world, that is held for the law of nations, which is not so in another. Now this law of nations is proved in the same manner as the unwritten civil law, and that is by the continual experience and testimony of the Sages of the Law. For this law, as Dio Chrysostom well observes, is the discoveries made by experience and time. And in this we derive great advantage from the writings of eminent historians.
XV. The very meaning of the words divine voluntary right, shows that it springs from the divine will, by which it is distinguished from natural law, which, it has already been observed, is called divine also.
. . .
XVI. Of all nations there is but one, to
particularly vouchsafed to
and that was the people of
. . .
XVII. Since then the law given by Moses imposes no direct obligation upon us, as it has been already shown, let us consider whether it has any other use both in this inquiry into the rights of war, and in other questions of the same kind. In the first place, the Mosaic law shows that what it enjoins is not contrary to the law of nature.
. . .(This section argues that principles of the Jewish law also apply to non-Jews (Christians)).
BOOK 2: Inquiry Into the Lawfulness of War
Reasons proving the lawfulness of War Proofs from History Proofs from general consent The Law of Nature proved not repugnant to War War not condemned by the voluntary Divine Law preceding the Gospel Objections answered Review of the question whether War be contrary to the Law of the Gospel Arguments from Scripture for the negative Opinions Answer to the Arguments taken from Scripture for the affirmative The opinions of the primitive Christians on the subject examined.
sources of right, the first and most general
question that occurs, is whether any war is just, or
if it is ever
make war. But
this question like many others that follow, must in the
first place be compared with the rights of
But from the knowledge of these principles, a notion arises of their being agreeable to reason, that part of a man, which is superior to the body. Now that agreement with reason, which is the basis of propriety, should have more weight than the impulse of appetite; because the principles of nature recommend right reason as a rule that ought to be of higher value than bare instinct. As the truth of this is easily assented to by all men of sound judgment without any other demonstration, it follows that in inquiring into the laws of nature the first object of consideration is, what is agreeable to those principles of nature, and then we come to the rules, which, though arising only out of the former, are of higher dignity, and not only to be embraced, when offered, but pursued by all the means in our power.
This last principle, which is called propriety, from its fitness, according to the various things on which it turns, sometimes is limited to a very narrow point, the least departure from which is a deviation into vice; sometimes it allows a wider scope, so that some actions, even laudable in themselves, may be omitted or varied without crime. In this case there is not an immediate distinction between right and wrong; the shades are gradual, and their termination unperceived; not like a direct contrast, where the opposition is immediately seen, and the first step is a transgression of the fixed bounds.
The general object of divine and human laws is to give the authority of obligation to what was only laudable in itself. It has been said above that an investigation of the laws of nature implies an inquiry, whether any particular action may be done without injustice: now by an act of injustice is understood that, which necessarily has in it any thing repugnant to the nature of a reasonable and social being. So far from any thing in the principles of nature being repugnant to war, every part of them indeed rather favours it. For the preservation of our lives and persons, which is the end of war, and the possession or acquirement of things necessary and useful to life is most suitable to those principles of nature, and to use force, if necessary, for those occasions, is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves.
. . . (Deleted section argues every animal has its own way of defending itself.)
II. The observation that all war is not repugnant to the law of nature, may be more amply proved from sacred history. . . .
This principle is founded on reasons of equity, so evident, that even in the brute creation, who have no idea of right, we make a distinction between attack and defence. For when Ulpian had said, that an animal without knowledge, that is without the use of reason, could not possibly do wrong, he immediately adds, that when two animals fight, if one kills the other, the distinction of Quintius Mutius must be admitted, that if the aggressor were killed no damages could be recovered; but if the other, which was attacked, an action might be maintained. There is a passage in Pliny, which will serve for an explanation of this, he say s that the fiercest lions do not fight with each other, nor do serpents bite serpents. But if any violence is done to the tamest of them, they are roused, and upon receiving any hurt, will defend themselves with the greatest alacrity and vigour.
IV. From the law of nature then which may also be called he law of nations, it is evident that all kinds of war are not to be condemned. In the same manner, all history and the laws of manners of every people sufficiently inform us, that war is not condemned by the voluntary law of nations. Indeed Hermogenianus has said, that wars were introduced by the law of nations, a passage which aught to be explained somewhat differently from the general interpretation given to it. The meaning of it is, that certain formalities, attending war, were introduced by the law of nations, which formalities were necessary to secure the peculiar privileges arising out of the law. From hence a distinction, which there will be occasion to use hereafter, between a war with the usual formalities o£ the law of nations, which is called just or perfect, and an informal war, which does not for that reason cease to be just, or agreeable to right. For some wars, when made upon just grounds, though not exactly conformable, yet are not repugnant to the law, as will be explained more fully hereafter. By the law of the nations, says Livy, provision is made to repel force by arms; and Florentinus declares, that the law of nations allows us to repel violence and injury, in order to protect our persons.
V. A greater difficulty occurs respecting the divine voluntary law. Nor is there any force in the objection that as the law of nature is unchangeable, nothing can be appointed even by God himself contrary to it. For this is true only in those things, which the law of nature positively forbids or commands; no 'n those which are tacitly permitted by the same law. For acts of that kind, not falling strictly within the general rule, but being exceptions to the law of nature, may be either forbidden or commanded. The first objection usually made against the lawfulness of war is taken from the law given to Noah and his posterity, Gen. ix. 5, 6, where God thus speaks, "Surely the blood of your lives will I require; at the hand of every beast will I require it, and at the hand of every man ; at the hand of every man's brother will I require the life of man. Whoever sheds man's blood, by man shall his blood be shed; for in the image of God made he man." Here some take the phrase of requiring blood, in the most general sense, and the other part, that blood shall be shed in its turn, they consider as a bare threat, and not an approbation; neither of which acceptations can be admitted. For the prohibition of shedding blood extends not beyond the law itself, which declares, THOU SHALT NOT KILL; but passes no condemnation upon capital punishments or wars undertaken by public authority.
. . . (Long arguement that prohibition on killing does not extend to prohibition on use of violence or death to punish wrongs.)
VI. The arguments against the lawfulness of war, drawn from the Gospel, are more specious. . . (Long argument that the Christian Gospels also do not support an argument against all war.)
. . . More of the samearguments to refute Christian arguments against all violence and all war.
[Translator's Note: As Grotius has so fully established his argument, it is unnecessary to review his answer to further objections.]
CHAPTER 1: What is Lawful in War.
What is lawful in war General Rules derived from the law of nature Stratagems and lies Arrangement of the following parts First rule, all things necessary to the end lawful Right resulting not only from the origin of a war, but from causes growing out of the same Certain
consequences justifiable, though not originally lawful What measures are lawful against those who furnish an enemy with supplies Stratagems Negative Positive Sometimes allowable to use words in a sense different from the general acceptation A lie according to the true notion of it injurious to the rights of others Falsehood allowable in order to deceive children or madmen Any one addressing another without intentions to deceive, not answerable for the misconceptions of a third person A person not answerable for the willful mistakes of those to whom he speaks The fictitious threats of a person in authority Fiction allowable in order to save the lives of the innocent, or to promote other equally important purposes Deception lawful against an enemy, but not including promises, or oaths To forbear using this privilege an act of
generosity and Christian simplicity Not allowable to urge others to what is unlawful for them, but not for us to do Allowable to use the services of deserters.
I. HAVING, in the preceding books, considered by what persons, and for what causes, war may be justly declared and undertaken, the subject necessarily leads to an inquiry into the circumstances, under which war may be undertaken, into the extent to which it may be carried, and into the manner in which its rights may be enforced. Now all these matters may be viewed in the light of privileges resulting simply from the law of nature and of nations, or as the effects of some prior treaty or promise. But the actions, which are authorised by the law of nature, are those that
are first entitled to attention.
II. In the first place, as it has occasionally been observed, the means employed in the pursuit of any object must, in a great degree, derive the complexion of their moral character from the nature of the end to which they lead. It is evident therefore that we may justly avail ourselves of those means, provided they be lawful, which are necessary to the attainment of any right. RIGHT in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses. On which account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self- defence, which nature grants to every one. Besides, if any one has SURF and UNDOUBTED grounds to apprehend imminent danger from any thing belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may DETAIN it as a precautionary measure, till he can obtain satisfactory assurance of security.
Upon the same principle any one has a natural right to seize what belongs to him, and is unlawfully detained by another: or, if that is impracticable, he may seize something of equal value, which is nearly the same as recovering a debt. Recoveries of this kind establish a property in the things so reclaimed; which is the only method of restoring the equality and repairing the breaches of violated justice. So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and every act that forms a part of the punishment, such as destroying an enemy's property and country by fire or any other way, falls within the limits of justice proportionable to the offence.
guilt and render themselves liable to punishment in proportion to the injustice of their measures. Plato approves of war conducted so far, as to compel the aggressor to indemnify the injured and the innocent.
IV. In the third place, an individual or belligerent power may, in the prosecution of a lawful object, do many things, which were not in the contemplation of the original design, and which in THEMSELVES it would not be lawful to do. Thus in order to obtain what belongs to us, when it is impossible to recover the specific thing, we may take more than our due, under condition of repaying whatever is above the real value. For the same reason it is lawful to attack a ship manned by pirates, or a house occupied by robbers, although in that ship, or that house there may be many innocent persons, whose lives are endangered by such attack.
But we have had frequent occasion to remark, that what is conformable to right taken in its strictest sense is not always lawful in a moral point of view. For there are many instances, in which the law of charity will not allow us to insist upon our right with the utmost rigour. A reason for which it will be necessary to guard against things, which fall not within the original purpose of an action, and the happening of which might be foreseen: unless indeed the action has a tendency to produce advantages, that will far outweigh the consequences of any accidental calamity, and the apprehensions of evil are by no means to be put in competition with the sure hopes of a successful issue. But to determine in such cases requires no ordinary penetration and discretion. But wherever there is any doubt, it is. always the safer -way to decide in favour of another's interest, than to follow the bent of our own inclination. "Suffer the tares to grow, says our divine teacher. least in rooting up the tares you root up the wheat also."
The general destruction, which the Almighty, in right of his supreme Majesty, has sometimes decreed and executed, is not a rule, which we can presume to follow. He has not invested men, in the exercise of power, with those transcendent sovereign rights. Yet he himself,
notwithstanding the unchangeable nature of his sovereign will, was inclined to spare the most wicked cities, if ten righteous persons could be found therein. Examples like these may furnish us with rules to decide, how far the rights of war against an enemy may be exercised or relaxed.
V. It frequently occurs as a matter of inquiry, how far we are authorised to act against those, who are neither enemies, nor wish to be thought so, but who supply our enemies with certain articles. For we know that it is a point, which on former and recent occasions has been contested with the greatest animosity; some wishing to enforce with all imaginary rigour the rights of war, and others standing up for the freedom of commerce.
In the first place, a distinction must be made between the commodities themselves. For there are some, such as arms for instance, which are only of use in war; there are others again, which are of no use in war, but only administer t o luxury; but there are some articles, such as money, provisions, ships and naval stores, which are of use at all times both in peace and war.
As to conveying articles of the first kind, it is evident that any one must be ranked as an enemy, who supplies an enemy with the means of prosecuting hostilities. Against the conveyance of commodities of the second kind, no just complaint can be made.- And as to articles of the third class, from their being of a doubtful kind, a distinction must be made between the times of war and peace. For if a power can not defend itself, but by intercepting the supplies sent to an enemy, necessity will justify such a step, but upon condition of making restoration, unless there be some additional reasons to the contrary. But if the conveyance of goods to an enemy tends to obstruct any belligerent power in the prosecution of a lawful right, and the person so conveying them possesses the means of knowing it; if that power, for instance, is besieging a town, or blockading a port, in expectation of a speedy surrender and a peace, the person, who furnishes the enemy with supplies, and the means of prolonged resistance, will be guilty of an aggression and injury towards that power. He will incur the same guilt, as a person would do by assisting a debtor to escape from prison, and thereby to defraud his creditor. His goods may be taken by way of indemnity, and in discharge of the debt. If the person has not yet committed the injury, but only intended to do so, the aggrieved power will have a right to detain his goods, in order to compel him to give future security, either by putting into his hands hostages, or pledges; or indeed in any other way. But if there are evident proofs of injustice in an enemy's conduct the person who supports him in such a case, by furnishing him with succours, will be guilty not barely of a civil injury, but his giving assistance will amount to a crime as enormous, as it would be to rescue a criminal in the very face of the judge. And on that account the injured power may proceed against him as a criminal, and punish him by a confiscation of his goods.
These are the reasons, which induce belligerent powers to issue manifestoes, as an appeal to other states, upon the justice of their cause, and their probable hopes of ultimate success. This question has been introduced under the article, which refers to the law of nature, as history supplies us with no precedent to deduce its establishment from the voluntary law of nations.
. . .
Wars, for the
attainment of their objects, it cannot be denied, must employ
and terror as their most proper agents. But
doubt is sometimes
entertained, whether stratagem may
be lawfully used in war. The general
sense of mankind seems to have
approved of such a mode of warfare. For
commends his hero, Ulysses, no less for his ability in
than for his wisdom. Xenophon, who
was a philosopher as well as a
soldier and historian, has said, that nothing can be more
useful in war than
well-timed stratagem, with whom Brasidas, in Thueydides
it to be the method from which many
great generals have derived the
most brilliant reputation. And in
Plutarch, Agesilaus maintains, that deceiving
an enemy is both just and lawful. The
authority of Polybius may be
to those already named; for he thinks, that it shews greater talent
a general to avail himself of some favourable opportunity to employ
stratagem, than to gain an open battle. This
of poets, historians,
and philosophers is supported by
that of Theologians. For Augustin
has said that, in the prosecution of
a just war, the justice of the
cause is no way affected by the attainment
of the end, whether the object
be accomplished by stratagem or open
force, and Chrysostom, in his beautiful
little treatise on the priestly
office, observes, that the highest
praises are bestowed on those
generals, who have practised successful
there is one circumstance, upon which the decision
of this question turns more than upon
any opinion even of the highest
authority, and that is, whether
stratagem ought to be ranked as one
of those evils, which are prohibited under
the maxim OF NOT DOING EVIL,
VIII. A stratagem of a positive kind, when practised in actions, is called a feint, and when used in conversation it receives the name of a lie or falsehood. A distinction is made by some, between these two kinds of stratagems, who say, that words are signs of our ideas, but actions are not so. But there is more of truth in the opposite opinion, that words of themselves unaccompanied by the intention of the speaker, signify nothing more than the inarticulate cries would do of any one labouring under grief, or any other passion: which sounds come under the denomination of actions, rather than of speech. But should it be said that being able to convey to others the conceptions of his mind, by words adapted to the purpose, is a peculiar gift of nature, by which man is distinguished from other parts of the animated creation, the truth of this cannot be denied.
. . .
One of these stratagems was practised by the Romans, who, during the time that they were besieged in the Capitol, threw some loaves of bread into the enemy's camp, that it might not be supposed they were pressed by famine. The feigned flight, which Joshua ordered his people to make, to assist him in his designs upon Ai, affords an instance of a stratagem of the second kind; the ensuing mischiefs of which may be considered, as some of the effects of lawful war. The ORIGINAL DESIGN of that pretended flight does not at all affect the question. The enemy took it for a proof of fear; and he was at liberty to do so, without debarring the other of his right to march this way, or that, with an accelerated or retarded motion, with a shew of courage, or an appearance of fear, as he might judge it most expedient.
History furnishes us with innumerable examples of deceptions practised with success upon an enemy, by assuming his arms, ensigns, colours, or uniforms; all which may be justified upon the same principle. For all these are actions, which any one may avail himself of at his pleasure, by departing from the usual course of his military system. For such points of 'discipline and system depend upon the will and fancy of the military commanders in each state, rather than upon any invariable custom, equally binding upon all nations.
IX. Those signs, by which the daily intercourse of life is maintained, form a subject of more weighty discussion, with which the consideration of lies or falsehood is necessarily interwoven. All stratagems of this kind are so direct a violation of all moral principle, both in their nature and consequences, that almost every page of the revealed will of God declares their condemnation. Solomon describes a righteous, that is, a good man, as one, who holds every false word in detestation, deprecating the least appearance of deception: and the Apostle's injunction accords with these sentiments, instructing his disciples not to lie to one another.
Nor is it in the high standard of perfection alone, which the divine records present, that such a recommendation of fair, open, and sincere dealing is to be found. It is the theme of praise with poets and philosophers, and the angry hero of the Grecian poet declares, that he detests the man, as an infernal being, who utters one thing with his tongue, while he conceals another in his heart. But making some allowance for poetic fiction-we find even the grave, sober, and discerning, Stagirite describing falsehood, as a vile, and abominable refuge, and painting truth as a lovely object, that must extort the warmest praise.
These are all great and high authorities in favour of open dealing. Yet there are names of no less weight, both among sacred and profane writers, whose opinions are a vindication of stratagems, when used upon PROPER occasions. One writer speaks of a case, where stratagem may be used, even for the benefit of the person, on whom it is practised, and adduces the instances of a physician, who, by means of a deception, overcame the perverseness of a patient, and wrought a salutary cure.
X. To reconcile such a variety of discordant opinions, it may be necessary to devise some way of examining falsehood both in its more extensive, and more confined acceptation. Nor is speaking an untruth, UNAWARES, to be considered in the nature of a lie, but the falsehood, which comes within the limits here defined, is the KNOWN and DELIBERATE UTTERANCE of any thing contrary to our real conviction, intention, and understanding.
. . .
On the other hand, it may happen to be not only censurable, but even wicked to use such a manner of speaking, where either the honour of God or the welfare of mankind is concerned, or indeed any matter, which demands explicit avowals, and open dealing. Thus in contracts every thing necessary to their fulfillment ought to be fully disclosed to those concerned. There is an apposite expression of Cicero, who says, that every degree of deception ought to be banished from all contracts, and there is in the old Athenian Laws a proverb, conformable to this, which says, there must be nothing, but open dealing in markets.
XI. In strictness of speech such ambiguity is excluded from the notion of a lie. The common notion of a lie therefore is something spoken, written, marked, or intimated, which cannot be understood, but in a sense different from the real meaning of the speaker. But a lie, in this stricter acceptation, having some thing unlawful in its very nature, necessarily requires that a distinction should be made between it and that latitude of expression already explained. And if this acceptation be properly considered, at least according to the opinion prevailing in all nations, it seems, that no other explanation of it is necessary to be given, except that it is a violation of the existing and permanent rights of the person, to whom a discourse, or particular signs, are directed. It is a violation of the rights of ANOTHER; for it is evident, that no one can utter a falsehood with a view to impose upon himself. The rights here spoken of are peculiarly connected with this subject. They imply that liberty of judgment, which men are understood, by a kind of tacit agreement, to owe to each other in their mutual intercourse. For this, and this alone is that mutual obligation, which men intended to introduce, as soon as they began to use speech, or other signs of equal import. For without such an obligation the invention of those signs would have been perfectly nugatory. It is requisite too, that at the time a discourse is made, such a right or obligation should remain in full force.
A right may indeed have existed and afterwards have become obsolete, owing to the rise or occurrence of some new right: which is the case with a debt, that may be released by acquittance, or nonperformance of a condition. It is farther requisite, to constitute a VIOLATION OF THIS RIGHT, that the ensuing injury should immediately affect the PERSON ADDRESSED: as in contracts, there can be no injustice, but what affects one of the parties, or persons concerned.
perhaps under the
head of this right, it may not be improper to assign a
place to that
The right to a discovery of the whole truth may be relinquished by the express consent of the persons, who are engaged in a treaty: the one may declare his intention not to disclose certain points, and the other may allow of this reserve. There may be also a tacit presumption, that there are just reasons for such reserve which may perhaps be necessary out of regard to the rights of a third person: rights which, in the common judgment of all sober men, may be sufficient to counterbalance any obligation in either of the persons engaged in the treaty to make a full disclosure of his views and sentiments. These principles, duly considered, will supply many inferences to reconcile any seeming contradiction in the opinions, that have been advanced.
XII. In the first place, many things may be said to madmen, or children, the LITERAL MEANING of which may not be true, without incurring the guilt of willful falsehood. . . .
XIII. Secondly, when a conversation is addressed to any one, who is not thereby deceived, although a third person, not immediately addressed, may misconceive the matter, there is no willful falsehood in the case. . . .
XIV. In the third place, whenever it is certain that the person, on whom a deception is practised, discovers that the intent of it was to do him a service; he will not feel it as a grievance, nor can it come -under the strict denomination of a lie or falsehood. It will be no more an INJURY, than it would be a THEFT in any one, presuming upon an owner's consent, to take something belonging to that owner, in order to convert it to his use in a very beneficial way. For in cases of notorious certainty, a PRESUMPTION may be taken for express consent. But it is evident that no man would CONSENT to receive an INJURY.
From hence it appears, that a person is guilty of no treachery, who uses unfounded or fictitious motives to console a friend in distress, as Arria did to Paetus upon the death of his son, of which there is an account in Pliny's Epistles, or in a general, who in a perilous situation should avail himself of false intelligence, to encourage his troops, by which perhaps a victory might be gained.
It may be observed likewise, that the injury done to the freedom of judgment is, in such a case, of less consequence, because it is but momentary, and the real fact is soon discovered.
XV. There is a fourth case, which bears a near affinity to those above mentioned, and that is, when any one, possessing preeminent authority, orders another, in a subordinate capacity, to execute some device or stratagem, conducive either to his individual, or to the public welfare. Which Plato seems to have had particularly in view, in allowing those in authority to avail themselves of pretexts, or stratagems. The same writer is very correct in his notion of not making such a device a characteristic of that authority, which belongs to the supreme being. For all such devices, however justifiable they may be in CERTAIN CASES, strongly betray that imperfection, which is inseparable from all human systems.
The stratagem, which Joseph employed to obtain further discoveries without making himself known to his brethren, is much commended by Philo, as a mark of great policy, when, contrary to the convictions and feelings of his own mind, he accused them of being spies, and afterwards charged them with theft. It was by a stratagem of the same kind, that Solomon gave proof of his inspired wisdom, when he used the FICTITIOUS threat of dividing the living child in order to discover the real mother.
XVI. The fifth case, which allows a stratagem to be practised, is that, where it may be the ONLY means of saving the life of an innocent person, of obtaining some object of equal importance, or of diverting another from the perpetration of some horrid design. . . .
XVII. It is evident that many writers of acknowledged wisdom, and sober judgment, have carried the point farther than has been done in this treatise, in allowing the use of false representations to an enemy. In cases, where public enemies are concerned, they maintain, that it is lawful to deviate from those strict rules of avowing and disclosing all our intentions, which they prescribe, on all other occasions. Such is the opinion of Plato and Xenophon among the Greeks, of Philo among the Jews, and Chrysostom among Christians. It may not perhaps be amiss to cite, in this place, the message sent by the men of Jabesh Gilead to the Ammonites, by whom they were besieged, and also that of the prophet Elisha, and at the same time to mention the conduct of Valerius Laevinus, who boasted of having killed Pyrrhus.
The third, the fourth and fifth observations above made, may be illustrated from what is said by Eustratus, Archbishop of Nice, "An able and upright counsellor is not obliged to disclose the whole truth: for there may be occasions, when it may be necessary for him to recommend the means of deceiving an enemy, or to employ some stratagem towards a friend, where it may turn to his advantage."
XVIII. What has been said of false speaking must be understood as applied to affirmative declarations, which can be prejudicial to no persons, but public enemies: it can by no means be taken to include promises. For promises confer upon the person, to whom they are made, a peculiar right to claim their full performance. And this is a rule, which must take place, even between public enemies; a rule to which existing hostilities are not allowed to form an exception. It is a maxim proper to be enforced in TACIT, as well as in EXPRESS agreements: as when a parley or conference is demanded, there is always an IMPLIED promise, that both sides shall attend it with perfect safety. But these are points reserved for the discussion of another part of this treatise.
XIX. It will be necessary to repeat an observation made before, with respect to oaths, both of the affirmative and promissory kind, where it was maintained that they exclude all exceptions, all mental reservations towards the person, to whom they are made, being regarded not merely as a solemn transaction with that individual, but as a steadfast appeal to God. Such an appeal to the supreme being demands the performance of an oath, even if it gave the individual no right to the same.
At the same time it was observed, that a sworn declaration is not like one of any other kind, where an application of terms different from their usual meaning may supply the speaker with an excuse for evading their import. But truth requires every declaration and promise to be made in terms, which it is supposed that every man of integrity and clear judgment will understand, spurning at the impious thought, that men may be deceived by oaths, as children are by toys and trifles.
XX. Some nations and individuals indeed have rejected the use of those stratagems, which even the law of nature allows to be employed as a means of self-defence against an enemy. But they did so, not from any opinion of their unlawfulness, but from a noble loftiness of mind, and from a confidence in their own strength. Aelian has preserved a saying of Pythagoras, "that there are two things, in which man approaches nearest to God, in always speaking the truth, and doing good to others." Aristotle, somewhere in his Ethics, calls speaking truth, the freedom of a great soul, and Plutarch says, that falsehood is the qualification of a slave. But an adherence to truth, in simplicity of heart, is not the only duty required of Christians, in this respect, they are commanded to abstain from all vain discourse, as having for their example him, in whose mouth there was found no guile.
XXI. With respect to the actions of men, there is another rule which may properly come under this head, and that is, the unlawfulness of urging or persuading any one to do an unlawful act. For instance, no subject has a right to lift his hand against his sovereign, to deliver up a town without public authority, or to despoil his neighbour of his goods. It would be unlawful then to encourage the subject of an enemy, as long as he continues his subject, to do any of these acts. For the person, who urges another to do a wicked act, makes himself a partner in his guilt. Nor can it be received as a just answer, that urging a subject to the perpetration of such a deed is nothing more than employing the lawful means of destroying an enemy. For though it may be necessary and just to destroy him, if possible, yet that is not the way, in which it should be done. Augustin has well observed, that it makes no difference whether any one should commit a crime himself, or employ another as his instrument.
But employing the spontaneous offers of a deserter's not contrary to the laws of war, and is a very different action from that of seducing a subject from his allegiance.