Demosthenes against Aristocrates. [See.] Nor does benevolence oppose this as a command; setting aside human and divine law; except the thing stolen be a trifle which may be contemned; an exception rightly added by some. XII. 1 Let us look at the sense of the Hebrew Law, (Exod. xxii. 2) with which agrees the law of Solon, and of the Twelve Tables, and Plato's Laws. These laws all agree in distinguishing the nocturnal from the diurnal thief*. Some think that this is because by night we cannot tell whether he is a thief or a murderer, and therefore may kill him as a murderer. Others think it is because by night we have less chance of recovering the property. I think that neither is the true ground; but this; that no one ought to be slain directly for the sake of mere things, which would be done if I were to kill an unarmed flying thief with a missile, and so recover my goods: but if I am myself in danger of life, then I may repel the danger even with danger to the life of another; nor does this cease to hold, however I have come into that danger, whether by trying to retain my property, or to recover it, or to capture the thief; for in all these cases I am acting lawfully according to my right. 2 The difference depends then on this; that by night there is no testimony to be had; and therefore if the thief be found slain, credit is to be given to him who says that he slew him in defending his life: that is, if he be found with any hurtful instrument. Deut. xxii. 2: If a thief be found breaking up, should be translated, with a weapon for breaking through. So Jer. ii. 34. So the law of the Twelve Tables forbids the diurnal thief to be killed, except he defended himself with a weapon. On the other hand, Ulpian teaches that a man who kills a nocturnal thief does it with impunity, if he could not without peril avoid it. 3 And therefore, as I have said, the presumption is in favour of him who kills the nocturnal thief; but if there be testimony by which it appears that the slayer was not in danger of his life, the presumption ceases, and he is guilty of homicide. Add to this, that the law of the Twelve Tables required him who discovered a thief, either diurnal or nocturnal, to cry out aloud; namely, that neighbours or magistrates might come together for help and testimony. And as such concourse is easier by day than by night, therefore more credence is given in the case of the nocturnal danger. The case is similar with regard to the Hebrew law, Deut. xxii. 23, which directs that a maid who has been forced in the field is to be believed, but in the city, not, because she cried not being in the city. 4 To this is to be added, that in what happens by night, we have no means of knowing the extent of the danger, therefore it is more terrible. And therefore the Hebrew, like the Roman law, directs that which benevolence recommends, that no one should be slain only because • See Elements of Morality, 665. he takes a thing, but only if he who defends it comes into danger. Maimonides says, that the slaying of a man is permitted to a private person only to preserve what, lost, cannot be recovered, life and chastity. XIII. 1 What shall we say of the Gospel law? That it permits what the Mosaic law permitted; or that in this, as in other cases, the Gospel is more perfect than the Law, and requires more of us? I do not doubt that it does require more; for if Christ direct us to give up our coat and cloak, and Paul, to suffer unjust loss, rather than have recourse to the bloodless contest of law; they would have directed us to give up things of greater value, rather than put to death a man, the image of God, and sprung of the same blood with ourselves. Wherefore if our property can be preserved without peril of slaying, it is well; but if not, it is to be given up: except it be something on which our life and that of our family depends, and which cannot be recovered at law: as for instance, if the thief be unknown, and we have some hope that the matter will end without fatal consequences. 2 And though almost all, both Jurists and Theologians, hold that we may not only kill a man in defense of our property, but beyond that limit; as, if he be running off with what he has taken; yet we have no doubt that the opinion which we have stated was that of the early Christians. So Augustine. But this discipline has been relaxed by time. XIV. It is made a question whether the civil law, when it permits us to kill a thief with impunity, does not give us a Right to do so; since the civil law has the Right of life and death. But this is not so. In the first place, the Civil Law has not the Right of life and death in all cases, but only in cases of great crimes. The opinion of Scotus is probable, that we have no right to condemn any one to death except for the crimes so visited in the Mosaic Law, or those which are of the same atrocity. In fact, in so grave a case, we cannot have a knowledge of the divine will which can satisfy our minds, except from that law; which certainly does not punish theft with death. And moreover, the law neither does nor ought to give the Right of privately putting to death those who deserve death, except in very atrocious crimes; otherwise tribunals would be useless. Wherefore if the law allows us in any case to kill a thief with impunity, it takes away the punishment, but does not give the Right. XV. It follows, from what has been said, that private persons may join in single combat in two cases; first, if an assailant gives us the choice of single combat, being ready to kill us otherwise without combat; and secondly, if the king or magistrate set two condemned persons to fight in such a combat; in which case they may take their chance of surviving. But he who gives such command does not seem to do his duty well; for if the death of one was enough, it was better that he who should die should be chosen by lot. XVI. What has been said of the right of defending ourselves and our property, more peculiarly relates to private war, but so that it may be adapted to public war, attending to the diversity of conditions. For in private war the Right is momentary, and ceases as soon as the judge can be referred to. But public war does not arise, except when the judge's authority does not exist, or ends, has a prolonged character, and is constantly sustained by the accession of new losses and injuries. Besides in private war, defense alone is considered; but the public powers have the right not only of defending, but also of obtaining satisfaction. Hence they may prevent force not present, and threatening from afar; not directly (for that, as we have taught, is unjust,) but indirectly, by taking satisfaction for a delinquency begun, but not consummated*: of which we shall treat elsewhere. XVII. There is an intolerable doctrine in some writers, that by the Law of Nations we may rightly take arms against a power which is increasing, and may increase, so as to be dangerous. Undoubtedly, in deliberating of war, this may come into consideration, not as a matter of justice, but as a matter of utility; so that if the war be just on other accounts, it may, on this account, be prudent; and this is what the arguments of authors come to. But that the possibility of suffering force gives us the right of using force, is contrary to all notion of equity. Such is human life, that we are never in complete security. We must seek protection against uncertain fears from Divine Providence, and from blameless caution, not from force. XVIII. 1 Nor do we agree that those who have deserved war, have a Right to defend themselves; namely, because few persons are content with taking satisfaction to the mere extent of the injury. For that fear of an uncertainty cannot give a Right to force: and so, a person accused of a crime has not a right of forcibly resisting the ministers of justice, for fear of being over-punished. 2 He who has injured another ought first to offer him satisfaction at the arbitration of a good man; and if this fail, his warfare will be righteous. So Hezekiah acted, 2 Kings xviii. 7, 14, and xix. 1. So Pontius the Samnite urged that this was all that could be required. [See Livy.] So when the Thebans had done this, Aristides says that justice had passed over to their side. The broad differences marked in this article between public war and private self-defense shew how improperly the latter is called war. W. W. I. Obtains if inevitable; VIII. Excepting an equal Necessity in the owner: WE XVII. Right to wastes. XVIII. Right to necessary acts. XIX. Right of buying. XX. Right of selling. XXIII. Rights ex jure and ex bene ficio. XXIV. Right of exclusive dealing. Some things are ours by the E treat now of the Causes of War; and first, of Injury done us with respect to what is ours. Common Right of mankind; others by our own Special Right. We will begin with the Common Right of mankind. This Right either directly regards corporal things, or certain acts. Corporal things are either unappropriated, or the property of some one. Unappropriated things are either such as cannot be appropriated, or such as can. Hence we must consider the origin of Property, or Ownership, which the jurists call Dominium. II. 1 God gave the human race generally a right to the things of a lower nature, at the Creation, and again, after the Deluge. Every thing was common and undivided, as if all had one patrimony. Hence each man might take for his use what he would, and consume what he could. Such a Universal Use was then a Right, as Property is now, What each one had taken, another could not take from him by force without wrong. Cicero compares this state of things to the theatre, which though it be common, yet when a man has taken any place, it is his. And this state might have continued, if men had remained in great simplicity, or had lived in great mutual good will. One of these two conditions, a community of goods arising from extreme simplicity, we may see in some of the peoples of America, who have lived for many generations in that state without inconvenience. The other, a community of goods from mutual charity, was exhibited formerly among the Essenes, and then among the first Christians at Jerusalem, and now in many places among Ascetics. The simplicity of the first races of men was proved by their nakedness. They were rather ignorant of vices than acquainted with virtue: as Trogus says of the Scythians. So Tacitus, Macrobius, the Book of Wisdom, St Paul. Their business was the worship of God, of which the Tree of Life was a symbol, (see Revelation xxii. 2). They lived easily on what the earth, without labour, spontaneously produced. 2 But men did not continue in this simple and innocent life, but applied their minds to various arts, of which the symbol was the Tree of the Knowledge of good and evil; that is, of those things which may be used ill or well. So Philo, Solomon, Dio Prusæensis. [See.] The oldest arts, agriculture and pasture, appeared in the first brothers (Cain and Abel); not without a division of possessions already shewing itself, and even not without bloodshed. And at length when the good were corrupted by intercourse with the bad, came the life of the Giants, that is, times of violence. And when the world was cleared by the Deluge, instead of that ferine life, followed the pursuit of pleasure, with wine and lawless love. 3 But the concord was especially broken by a more generous vice, ambition: of which the Tower of Babel was the sign; and then different men divided the earth among them and possessed it. Yet still there remained among neighbours a community, not of their flocks and herds, but of their pastures; for there was enough for all for a time: until, cattle increasing, the land was divided, not according to nations as before, but according to families. And some made and occupied their own wells, things most necessary in a thirsty region, and not sufficing for many. This is the account of the sacred history, sufficiently agreeing with the account given by philosophers and poets. 4 There we learn what was the cause why men departed from the community of things, first of moveables, then of immoveables: namely, because when they were not content to feed on spontaneous produce, to dwell in caves, to go naked, or clothed in bark or in skins, but had sought a more exquisite kind of living, there was need of industry, which particular persons might employ on particular things. And as to the common use of the fruits of the earth, it was prevented by the dispersion of men into different localities, and by the want of justice and kindness which interfered with a fair division of labour and sustenance. 5 And thus we learn how things became Property; not by an act of the mind alone: for one party could not know what another party wished to have for its own, so as to abstain from that; and several parties might wish for the same thing; but by a certain pact, either express, as by division, or tacit, as by occupation: for as soon as community was given up, and while division was not instituted, it must be supposed to have been a matter of agreement among all, that what |