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have conquerel by force, so those should be received into our protection who throw themselves upon the honor of our general, and lay down their arms, even though the battering rams should have struck their walls. In which matter justico was cultivated with so much care among our countrymen, that it was a custom among our ancestors that they who received under their protection cities, or nations conquered in war, became their patrons.
Now, the justice of war was most religiously pointed out by the fecial law of the Romans. From this it may be understood that no war is just unless it is undertaken to reclaim property, or unless it is solemnly denounced and proclaimed beforehand. Popilius, as general, held a province where Cato's son served in his army. It happened that Popilius thought proper to disband one legion; he dismissed, at the sune time, Cato's son, who was serving in that legion. When, however, through love of a military life, he remained in the army, his father wrote to Popilius, that if he suffered him to continue in the service he should, for a second time bind him by the military oath ; because the obligation of the former having been annulled, he could not lawfully fight with the enemy,
So very strict was their observance of laws in making war. There is extant a letter of old Cato to his son on this occasion, in which he writes, “That he heard he had got his discharge from the consul, while he was serving as a soldier in Macedonia, during the war with Perseus. He, therefore, enjoins him to take care not to enter upon action ; for he declares that it is not lawful for a man who is not a soldier to fight with an enemy.
XII. And, indeed, there is another thing that I should observe, that he who ought properly be termed perduellis, that is, a stubborn foe, is called a hostis, and thereby the softness of the appellation lessens the horror of the thing; for by our ancestors he was called hostis whom we now call a
1 To reclaim property, etc.) “The formal and public declaration of war was an indispensable preliminary to it among the Romans. This declaration was either conditional or simple. The conditional was when it was made cum rerum repetitione, which sometimes not only implied satisfaction for property but punishment upon the offender. A simple declaration was without any condition, as when an injury could not be repaired; or when war was first declared by the other party."-See Grotius, lib 3. chap. 3. De Jure Belli, etc.-Guthrie.
stranger. This the twelve tables demonstrate : as in the words, “ a day appointed for the hostis to plead;" and again, “a Roman's right of property, as against a hostis, never terminates.” What can exceed the gentleness of this, to call those with whom you were at war by so soft an appellation ? It is true that length of time has affixed a harsher signification to this word, which has now ceased to be applied to the stranger, and remains peculiar to him who carries arms agains us.
Meanwhile, when we fight for empire, and when we seek glory in arms, all those grounds of war which I have already enumerated to be just ones, must absolutely be in force. But wars that are founded upon the glory of conquest alone, are to be carried on with less rancor ; for, as we treat a fellow-citizen in a different manner as a foe, than we do as an antagonist;—as with the latter the struggle is for glory and power, as the former for life and reputation ; ihus we fought against the Celtiberians and the Cimbrians as against enemies, the question being not who should command but who should exist; but we fought for empire against the Latines, the Sabines, the Samnites, the Carthaginians, and Pyrrhus. The Carthaginians, 'tis true, were faithless, and Hannibal was cruel, but the others were better principled. The speech of Pyrrhus about ransoming the captives is a noble one :
In war not crafty, but in battle bold,
As fate their lives, their freedom I will spare.
XIII. Nay, if even private persons should, induced by circumstances, make a promise to the enemy, even in this fidelity should be observed. Thus Regulus, when he was made a prisoner by the Carthaginians in the first Punic war, being sent to Rome to treat of an exchange of prisoners, he swore that he would return. The first thing he did when he came to Rome was to deliver his opinion in the senate that
the prisoners should not be restored ; and after that, when he was detained by his relations and friends, he chose to deliver himself up to a cruel death rather than to falsify his word to the enemy.
But in the second Punic war, after the battle of Cannæ, Hannibal sent ten Romans to Rome, under an oath that they would return to him unless they procured the prisoners to be ransomed; but the censors disfranchised, as long as they lived, all of them that were perjured, as well as him who had devised a fraudulent evasion of his oath. For when, by the leave of Hannibal, he had left the camp, he returned soon after, to say that he had forgotten something; and then again leaving the camp he considered himself free from the obligations of his oath, which he was with regard to the words but not the meaning of them ; for in a promise, what you thought, and not what you said, is always to be considy ered. But our forefathers set us a most eminent examplo of justice toward an enemy; for when a deserter from Pyrrhus offered to the senate to dispatch that prince by poison, the senate and C. Fabricius delivered the traitor up to Pyrrhus. Thus they disapproved of taking off by treachery an enemy who was powerful, and was carrying on against them an aggressive war.
Enough has now been said respecting the duties connected with warfare ; but we must bear in mind, that justice is due
" As oaths are designed for the security of the imposer, it is manifest that they must be interpreted and performed in the sense in which the imposer intends them; otherwise they afford no security to him. And this is the meaning and reason of the rule, "jurare in animum imponentis.”—Paley's “Moral and Political Philosophy," book 3, chap. 16.
Against the practice of administering oaths as demoralizing, we may instance two authorities. "The effect,” says Dymond, “ of instituting oaths is to diminish the practical obligation of simple affirmation. The law says you must speak the truth when you are upon your oath, which is the same thing as to say that it is less harm to violate truth when you are not on your oath. The court sometimes reminds a witness that he is upon oath, which is equivalent to saying, If you were not we should think less of your mendacity. The same lesson is inculcated by the assignation of penalties to perjury and not to falsehood.” “There is," says Godwin, in his “Political Justice,” book 6, c. 5, “no cause of insincerity, prevarication, and falsehood more powerful than the practice of administering oaths in a court of justice. All attempts to strengthen the obligations of morality, by fictitious and spurious motives, will, in the sequel, be found to have no tendency but to relax them."
even to the lowest of mankind; and nothing can be lower than the condition and fortune of a slave. And yet those prescribe wisely who enjoin us to put them upon the samo footing as hired laborers, obliging them to do their work, but giving them their dues. Now, as injustice may be dono two ways, by force or fraud; fraud being the property of a fox, force that of a lion; both are utterly repugnant to society, but fraud is the more detestable. But in the whole system of villainy, none is more capital than that of the men, who, when they most deceive, so manage as that they may seem to be virtuous men. Thus much, then, on the subject of justice.
XIV. Let my now, as I proposed, speak of beneficenco and liberality, virtues that are the most agreeable to the nature of man, but which involve many precautionary considerations. For, in the first place, we are to take care lest our kindness should hurt both those whom it is meant to assist, and others. In the next place, it ought not to exceed our abilities; and it ought to be rendered to each in proportion to his worth. This is the fundamental standard of justice to which all these things should be referred. For they who do kindnesses which prove of disservice to the person they pretend to oblige, should not be esteemed beneficent nor generous, but injurious sycophants. And they who injure one party in order to be liberal to another, are guilty of the same dishonesty as if they should appropriate to themselves what belongs to another.'
Now many, and they especially who are the most ambitious after grandeur and glory, rob one party to enrich another; and account themselves generous to their friends if they enrich them by whatever means. This is so far from being consistent with, that nothing can be more contrary to, our duty. We should therefore take care to practice that kind of generosity that is serviceable to our friends, but hurtful to
1 "Liberality in princes is regarded as a mark of beneficence. But when it occurs that the homely bread of the honest and industrious is often thereby converted into delicious cakes for the idle and the prodigal, we soon retract our heedless praises. The regrets of a prince for having lost a day were noble and generous, but had he intended to have spent it in acts of generosity to his greedy courtiers, it was better lost than misemployed after that manner."--Hume's “ Dissertation on the Passions," section 2.
none. Upon this principle, when Lucius Sylla and Caius Cæsar took property from its just owners and transferred it to strangers, in so doing they ought not to be accounted generous ; for nothing can be generous that is not at the same time just.
Our next part of circumspection is, that our generosity never should exceed our abilities. For they who are moro generous then their circumstances admit of are, first, guilty in this, that they wrong their relations ; because they bestow upon strangers those means which they might, with greater justice, give or leave to those who are nearest to them. Now a generosity of this kind is generally aitended with a lust to ravish and to plunder, in order to be furnished with the means to give away. For it is easy to observe, that most of them are not so much by nature generous, as they are misled by a kind of pride to do a great many things in order that they may seem to be generous ; which things seem to spring not so much from good will as from ostentation. Now such a simulation is more nearly allied to duplicity than to generosity or virtue.
The third head proposed was, that in our generosity we should have regard to merit; and, consequently, examine both the morals of the party to whom we are generous, and his disposition toward us, together with the general good of society, and how far he may have already contributed to our own interest. Could all those considerations be united, it were the more desirable ; but the object in whom is united the most numerous and the most important of them, ought to have the greatest weight with us.
XV. But as we live not with men who are absolutely perfect and completely wise, but with men who have great merit if they possess the outlines of worth, we are, I think, from thence to infer, that no man is to be neglected in whom there appears any indication of virtue; and that each should be regarded in proportion as he is adorned with the milder virtues of modesty, temperance, and that very justice of which I have so largely treated. For fortitude and greatness of spirit is commonly too violent in a man who is not completely wise and perfect; but the aforesaid virtues seem to belong more to a good man.
Having said thus much of morals; with regard to the