§ 1. The dispute in this place is twofold. For it is asked, if an enemy who offered an injury says that he disapproves of the deed and wishes to repair the loss according to an equitable judgment, whether the injured party is compelled to accept that satisfaction and abstain from war. Then, if the prince is free either to accept satisfaction or to pursue them in war, what ought to be advised to him, or what is expedient?
§ 2. The Doctors do not hold the same opinion in the former controversy. Some command men to abstain from war once satisfaction has been offered, when war has not yet been consecrated by bloodshed; but if the battle lines have now clashed and the battering ram has struck the wall, some think that satisfaction may be despised and war continued, while others think that men must abstain from war. It appears to me that a substantial distinction must be used and the matter explained by these propositions.
PROPOSITION I
An injury is inflicted either when possessions are taken away, when violence is brought upon bodies, or when reputation and honor are injured by slander; and sometimes all these are combined. Finally, it is inflicted when the divine majesty is injured by sacrileges or by the crime of unbelief or heresy. Each must be discussed individually. I understand these things, however, as done by a public judgment, that is, by the judgment of the whole state.
PROPOSITION II
Among these, the easiest compensation is for possessions taken away and for honor. For money and livestock can be restored or equal prices repaid. Honor also appears capable of being restored by retracting insults and acknowledging the slander. But two things make this matter more difficult.
The first is that not only must the things taken away be restored, but also the losses which followed must be compensated. For that which is decreed in a civil judgment—that expenses, losses, and loss of profit, absolutely everything, be repaid to equality—is also required in war. The second is that, after everything has been restored, a penalty must nevertheless be inflicted upon the wrongdoer, and indeed a twofold penalty. Namely, he must repay something to the man who suffered the injury for the insult he inflicted when he took things away by force, for the man’s fear, and for the anxiety and distress he endured while deprived of his property. For this reason, in Exodus 22:4, 7, and 9, the thief is compelled to render double to his neighbor.
When this has been done, the state also exacts another penalty in order to preserve the common good. Therefore, after stolen things have been returned and slander has been retracted, it punishes the theft by the gallows and the slander by exile, prison, or another means. Accordingly, the state which caused the injury ought to make satisfaction in that manner according to the laws. For it belongs to natural law that equality be established between those who have been made unequal by another’s injury. Nor is there one law for private persons and another for kingdoms among themselves. For just as, within the same kingdom or city, equality of justice must be preserved by the judge, so within the fellowship of the human race, of which kingdoms are members, equality must also be established among kingdoms, so that if one has taken anything from another by injury, it may restore it by justice. Yet this must be done with such moderation and mild judgment that satisfaction is received and the other state is not oppressed; for the laws which favor a person making restitution in private causes must be observed.
PROPOSITION III
In violated chastity and life taken away, restitution is most difficult. For since adulteries, abductions, acts of violence, and slaughters are punished by death, there appears to be no other manner of satisfaction than that the whole state which did these things offer itself to death and submit its necks to the axes. For all are murderers, all adulterers and abductors; and satisfaction appears to be nothing other than a full surrender to the victor’s free judgment.
There is an example in Sacred Scripture. For when the men of Gibeah had killed the Levite’s wife by their lust, the children of Israel from the assembly at Mizpah sent messengers throughout all Benjamin to say: “Why has so great a crime been found among you? Deliver the men of Gibeah who perpetrated this wickedness, that they may die and evil may be removed from Israel.” Behold: they demand that the evildoers be surrendered. When this was not done, all the defenders—that is, the whole tribe of Benjamin—were destined for death. One state appears to have the same right against another as all the children of Israel had against one tribe. Hence those who by private authority have injured another state are customarily surrendered.
Although this satisfaction appears capable of being required, it nevertheless ought not to be exacted so that all are punished; nor, if one king has harmed another king, is it necessary that he approach him in order to die or hand over his kingdom.
PROPOSITION IV
Therefore, when dealings are between different states, the moderation of satisfaction, so that justice may be preserved, must be made not according to written laws but according to natural law and the law of nations. In this, first, restitution is rendered easier when reputation and fortune have been injured. For it is not necessary to deliver anyone either to scourges or to the gallows, since by natural law the penalty of death was not established for those offenses; indeed, not even by the laws of all nations will theft be a capital crime.
But when chastity has been violated, although abduction and adultery have received the sentence of death by divine law, it is nevertheless not necessary even then that a state deliver itself to the sword. For those laws are judicial and belong to the Hebrews, not to all nations. Although the injured party can exact the death penalty if it has the guilty person in its power, the guilty state is nevertheless not bound to offer itself to death. The case of the Benjaminites was different, for by divine law they were bound to surrender or kill the guilty. They could have given satisfaction to other nations in another way if so great an injury had been inflicted upon a Canaanite or Moabite woman. David indeed committed adultery and homicide, yet he was not commanded either to die or to withdraw from the kingdom. A father also forgave Absalom the slaughter of his brother.
Accordingly, although some king, by the authority of the senate, the command of the people, and the consent of all, has injured another king through the slaughter of some men or by other means, if he himself and the people and senators truly repent, and if they are prepared to make satisfaction in every way, it ought not to be exacted from them that they all surrender themselves to the judgment of the injured, to death or chains. Rather, because of the multitude and the very many innocent persons, he who was injured ought to be content with some milder penalty, and either judge it himself or refer the matter to arbitrators. Joab indeed thought that a multitude ought to be spared even in battle.
The reason for this matter is that war is then not necessary, but it must not be waged without necessity. For either he will then fight in order to compensate his losses or to avenge an injury. But losses of wealth and honor are restored, while those of chastity and death are irreparable; let compensation be made according to equity and goodness. When they acknowledge the injury and offer appropriate satisfaction, it must be accepted. But because the penalty of death and servitude is most grave and a lesser one can be exacted, the injured party will act unjustly if he wishes to reduce an entire state to such severe conditions.
Moreover, he is a judge in this cause because of the other party’s offense; but when satisfaction is offered, he deals as though with a party. And although he still sustains the role of judge, he is nevertheless also bound to hear the party as a party, or as a judge hears a party. I am moved especially to think that the matter must be handled mildly because otherwise there would be absolutely no end of waging war, since no one readily entrusts himself to the judgment of an armed enemy. These observations concern the whole state.
§ 3. But if the injured king demands that all offer themselves to death, or surrender so that the free judgment of life and death may rest with him, or at least that, their lives having been granted, they all subject themselves to him and change the form of their state, I think that those who inflicted the injury must do this if they caused great losses, devastated fields, and plundered cities; for here there is equality of compensation. In lesser matters they will not do it—for example, if they mocked ambassadors, as the Ammonites did when they sent David’s ambassadors away with disgrace. I think that so great a satisfaction ought not to be made in such a case and is unjustly exacted. David’s victory was cruel because they additionally prepared war in order to overthrow him. For many innocent men and all their posterity would be compelled to pay for those deeds. Therefore, they will be able to close the gates and defend themselves as against a tyrant who inflicts punishments greater than the offenses.
The whole difficulty, however, lies in this: when a private person has committed something worthy of death, he cannot defend himself against the ministers of justice, but must submit to the judge’s pronounced sentence. Here, however, the state is guilty and the injured prince is the judge. Sentence is rendered when war is decreed; death is announced to the defendant when war is declared. Therefore, the state which inflicted the injury is bound to die and serve, and because this sentence is just the king can execute it, whatever satisfaction may be offered.
But in this matter there are so many dissimilarities that the argument is rendered weak. For the sentence of a king declaring war upon enemies is, and ought to be, different from that of a judge condemning a defendant. The judge’s intention is that the defendant die on account of his crime. But the king’s intention is to compel the enemy by force to give satisfaction for the loss, not that the king upon whom he declares war, and that king’s princes and guilty people, should die—much less that everyone, even the innocent, should serve in slavery—but that equitable satisfaction be made for the injury. Accordingly, although death is decreed for those upon whom war is declared, it is nevertheless not decreed absolutely for all, but under this condition: unless they give satisfaction.
Moreover, there is a great difference among defendants. A private person pays for his offense with his own head; his wife, children, and kinsmen are immune. But the death of guilty persons in a state is followed also by the destruction and enslavement of many innocent persons. Therefore, they can first beg pardon and offer wealth and other things which they can give while preserving their own life and liberty and that of their people. If these are despised, they can defend themselves by arms against an excessively harsh sentence.
For what shall we say to citizens who have offended in this manner? They will say: “We have sinned. Money was taken away; it shall be restored. Insults were cast; we grieve at the deed. A slaughter was committed; we are all guilty, some as its authors; we shall surrender them. We shall give satisfaction in another way. If he commands us all to die, to leave wives widowed, children orphaned, and our country bereft of men, this is more grievous than ought to be commanded by a moderate enemy. If he commands us to serve, this very thing is more grievous than death. We are suppliants, and we do not beg off punishment; rather, we ask for punishment, but one short of death and servitude. But if we do not obtain this, now that the cause of war has changed, it is lawful to hope for victory.”
It is not lawful to wage war against such men; they can defend themselves. The foundation is that no one is bound by natural law to kill a thief or murderer, but can affect him with another penalty, as I said before. Indeed, laws can be passed in some state that a murderer not be punished by death, especially if he sinned only by consent and assistance. Therefore, he is not compelled to this penalty by the law of nature, nor by the laws of an enemy state to which he is not subject, nor by the law of nations, for this is milder: it is customary to spare very many men conquered even in a most cruel war.
PROPOSITION V
When war is already being waged, if, while the enemy’s battle line is giving way, they ask pardon and offer satisfaction, it belongs to charity to spare them; nevertheless, the prince is not bound by justice to do so, for he has now caught the evildoer in the very act, and the latter puts forward prayers only for the sake of escape. If, after some battles have been fought on either side, he still promises to give satisfaction, the prince is bound to hear and accept him, provided this is not done deceitfully, to gain time until auxiliaries arrive. The reason is that he who truly grieves that he has offended and is prepared for satisfaction now begins to be innocent; and therefore, on account of the reasons I advanced before, satisfaction ought to be accepted on behalf of the state.
§ 4. I would give counsel to the injured prince that, as soon as the enemy has acknowledged that he erred and has offered a small satisfaction for a great offense, he should accept it. Indeed, let him act in such a way that by his own clemency he mitigates the penalty and imposes nothing harsh or insulting. So far as can be done, let him provide for the loss of those whose interest is involved; yet rather than pursue war, let him make satisfaction from his own property and teach his subjects that certain disadvantages must be endured for the common good.
For thus he will avoid the most dangerous war of all, namely that which is to be waged against desperate men. If they see the extremity before them, they will resist most fiercely, since they are to fight for life and liberty. Then all men who pity them will come to their aid as they can, and will execrate the man who drives them to such grave necessities. But if all else fails, they will deliver themselves into the dominion and jurisdiction of any more powerful man. When the Fidenates despaired of the victor’s mercy, they burned themselves with fire; the Saguntines killed themselves, and more effort was required in one city—and not a populous one—than in subjugating the vast kingdoms of Asia.
Let him also consider this: that many are innocent, many have sinned from necessity, many from levity, and most from error. Let him make a great distinction among the causes. For those who were openly wicked and cruel contrary to the law of nations are punished more severely.