Chapter 3

The Division of War Into Public and Private and the Nature of Sovereign Power

July 20, 2022

I. The kinds of war are:

  1. Private - This is done by the sovereign.

  2. Public - This is done by private persons without authority from the state.

  3. Mixed - This is done, on one side by public authority, and on the other by private persons.

But private war, from its greater antiquity, is the first subject for inquiry.

Repelling violence is not repugnant to natural law. This justifies private war, as far as the law of nature is concerned.

But perhaps it may be thought that since public tribunals have been erected, private redress of wrongs is not allowable.

An objection which is very just.

Yet although public trials and courts of justice are not institutions of nature, but erected by the invention of men, yet as it is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested person, than by the partiality and prejudice of the party aggrieved, natural justice and reason will dictate the necessity and advantage of every one’s submitting to the equitable decisions of public judges.

Paulus, the Lawyer, observes that “what can be done by a magistrate with the authority of the state,56 should never be intrusted to individuals; as private redress would give rise to greater disturbance. And “the reason, says King Theodoric, why laws were invented, was to prevent any one from using personal violence, for wherein would peace differ from all the confusion of war, if private disputes were terminated by force?” And the law calls it force for any man to seize what he thinks his due, without seeking a legal remedy.

II.

The liberty of private redress existed before. It was greatly abridged after courts of justice were established.

Yet there may be cases, in which private redress must be allowed, as for instance, if the way to legal justice were not open.

For when the law prohibits any one from redressing his own wrongs, it can only be understood to apply to circumstances where a legal remedy exists. Now the obstruction in the way to legal redress may be either temporary or absolute.

Temporary, where it is impossible for the injured party to wait for a legal remedy, without imminent danger and even destruction. As for instance, if a man were attacked in the night, or in a secret place where no assistance could be procured. Absolute, either as the right, or the fact may require.

Now there are many situations, where the right must cease from the impossibility of supporting it in a legal way, as in unoccupied places, on the seas, in a wilderness, or desert island, or any other place, where there is no civil government. All legal remedy too ceases by fact, when subjects will not submit to the judge, or if he refuses openly to take cognizance of matters in dispute. The assertion that all private war is not made repugnant to the law of nature by the erection of legal tribunals, may be understood from law given to the Jews, wherein God thus speaks by the mouth of Moses, Exod. xxii. 2. “If a thief be found breaking up, that is, by night, and be smitten that he dies, there shall no blood be shed for him, but if the sun be risen upon him, there shall be blood shed for him.”

Now this law, making so accurate a distinction in the merits of the case, seems not only to imply impunity for killing any one, in self-defence, but to explain a natural right, founded not on any special divine command, but on the common principles of justice. From whence other nations have plainly followed the same rule. The passage of the twelve tables is well known, undoubtedly taken from the old Athenian Law,57

“If a thief commit a robbery in the night, and a man kill him, he is killed lawfully.” Thus by the laws of all known and civilized nations, the person is judged innocent, who kills another, forcibly attempting or endangering his life; a conspiring and universal testimony, which proves that in justifiable homicide, there is nothing repugnant to the law of nature.

IV.

Public war, according to the law of nations, is either:

  • SOLEMN or FORMAL, or
  • LESS SOLEMN, or INFORMAL.

“Lawful war” is the formal kind just as a lawful marriage is the cohabitation of slaves.

This opposition by no means implies that it is not allowed to any man, if he pleases, to make a codicil, or to slaves to cohabit in matrimony, but only, that, by the civil law, FORMAL WILLS and SOLEMN MARRIAGES, were attended with peculiar privileges and effects.

These observations were the more necessary; because many, from a misconception of the word just or lawful, think that all wars, to which those epithets do not apply, are condemned as unjust and unlawful. Now to give a war the formality required by the law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both of which are so essential that one is insufficient without the other.

A public war is LESS SOLEMN having no formalities, even against private persons, and by any magistrate whatever.

And indeed, considering the thing without respect to the civil law, every magistrate, in case of resistance, seems to have a right to take up arms, to maintain his authority in the execution of his office; as well as to defend the people committed to his protection. But as a whole state is by war involved in danger, it is an established law in almost all nations that no war can be made but by the authority of the sovereign in each state.

There is such a law as this in the last book of Plato on Laws. And by the Roman law, to make war, or levy troops without a commission from the Prince was high treason. According to the Cornelian law also, enacted by Lucius Cornelius Sylla, to do so without authority from58 the people amounted to the same crime. In the code of Justinian there is a constitution, made by Valentinian and Valens, that no one should bear arms without their knowledge and authority. Conformably to this rule, St. Augustin says, that as peace is most agreeable to the natural state of man, it is proper that Princes should have the sole authority to devise and execute the operations of war. Yet this general rule, like all others, in its application must always be limited by equity and discretion.

In certain cases this authority may be communicated to others. For it is a point settled beyond all doubt that subordinate magistrates may, by their officers, reduce a few disobedient and tumultuous persons to subjection, provided, that to do it, it requires not a force of such enormous magnitude as might endanger the state. Again, if the danger be so imminent as to allow of no time for an application to the sovereign executive power, here too the necessity is admitted as an exception to the general rule. Lucius Pinarius the Governor of Enna, a Sicilian garrison, presuming upon this right, upon receiving certain information that the inhabitants had formed a conspiracy to revolt to the Carthaginians, put them all to the sword, and by that means saved the place. Franciscus Victoria allows the inhabitants of a town to take up arms, even without such a case of necessity, to redress their own wrongs, which the Prince neglects to avenge, but such an opinion is rejected by others.

V.

Whether the circumstances, under which subordinate magistrates are authorised to use military force, can properly be called public war or not, is a matter of dispute among legal writers, some affirming and others denying it. If indeed we call no other public war, but that which is made by magisterial authority, there is no doubt but that such suppressions of tumult are public wars, and those who in such cases resist the magistrate in the execution of his office, incur the guilt of rebellion against superiors. But if public war is taken in the higher sense of FORMAL war, as it undoubtedly often is; those are not public wars; because to entitle them to the full rights of such, the declaration of the sovereign power and other requisites are wanting. Nor do the loss of property and the military executions, to which the offenders are subject, at all affect the question.12

For those casualties are59 not so peculiarly attached to formal war, as to be excluded from all other kinds. For it may happen, as in an extensive empire for instance, that persons in subordinate authority, may, when attacked, or threatened with attack, have powers granted to commence military operations. In which case the war must be supposed to commence by the authority of the sovereign power; as a person is considered to be the author of a measure which by virtue of his authority he empowers another to perform. The more doubtful point is, whether, where there is no such commission, a conjecture of what is the will of the sovereign power be sufficient. This seems not admissible. For it is not sufficient to consider, what we suppose would be the Sovereign’s pleasure, if he were consulted; but what would be his actual will, in matters admitting of time for deliberation, even though he were not formally consulted; if a law was to be passed upon those matters.

“For though UNDER SOME PARTICULAR CIRCUMSTANCES, it may be necessary to waive consulting the will of the sovereign, yet this would by no means authorise it as a GENERAL PRACTICE. For the safety of the state would be endangered, if subordinate powers should usurp the right of making war at their discretion. It was not without reason, that Cneus Manlius was accused by his Lieutenants of having made war upon the Galatians without authority from the Roman people.

For though the Galatians had supplied Antiochus with troops, yet as peace had been made with him, it rested with the Roman people, and not with Manlius to determine in what manner the Galatians should be punished for assisting an enemy. Cato proposed that Julius Caesar should be delivered up to the Germans for having attacked them in violation of his promise, a proposal proceeding rather from the desire to be rid of a formidable rival, than from any principle of justice.

The case was thus; the Germans had assisted the Gauls, enemies of the Roman people, therefore they had no reason to complain of the injury done to them, if the war against the Gauls, in which they had made themselves a party concerned, was just. But Caesar ought to have contented himself with driving the Germans out of Gaul, the province assigned him, without pursuing them into their own country, especially as there was no farther danger to be apprehended from them; unless he had first consulted the Roman people. It was plain, then,60 the Germans had no right to demand the surrender of Caesar’s person, though the Romans had a right to punish him for having exceeded his commission. On a similar occasion the Carthaginians answered the Romans; “It is not the subject of inquiry whether Hannibal has besieged Saguntum, by his own private or by public authority, but whether justly or unjustly.

For with respect to one of our own subjects it is our business to inquire by what authority he has acted; but the matter of discussion with you is, whether he has broken any treaty.” Cicero defends the conduct of Octavius and Decimus Brutus, who had taken up arms against Antony. But though it was evident that Antony deserved to be treated as an enemy, yet they ought to have waited for the determination of the Senate and people of Rome, whether it were for the public interest not to take notice of his conduct or to punish it, to agree to terms of peace with him, or to have recourse to arms. This would have been proper; for no one is obliged to exercise the right of punishing an enemy, if it is attended with probable danger.

But even if it had been judged expedient to declare Antony an enemy, the choice of the persons to conduct the war should have been left to the Senate and people of Rome. Thus when Cassius demanded assistance of the Rhodians, according to treaty, they answered they would send it, if the senate thought proper. This refutation of Cicero’s opinion will serve, along with many other instances to be met with; as an admonition not to be carried away by the opinions of the most celebrated writers, particularly the most brilliant orators, who often speak to suit the circumstances of the moment. But all political investigation requires a cool and steady judgment, not to be biased by examples, which may rather be excused than vindicated.

Since then it has already been established that no war can lawfully be made but by the sovereign power of each state, in respect to all the questions connected with war, it will be necessary to examine what that sovereign power is, and who are the persons that hold it.

VI.

The moral power then of governing a state, which is called by Thucydides the civil power, is described as consisting of three parts which form the necessary substance of every state; and those are the right of making its own laws, executing them in its own manner, and61 appointing its own magistrates.

In the fourth book of his Politics, Aristotle divides the sovereignty of a state in the exercise of the 3 powers:

  1. Deliberative
  • This has the right of deciding on peace or war, making or annulling treaties, framing and passing new laws
  1. Executive
  • This has the power of inflicting death, banishment, and forfeiture, and of punishing also for public peculation
  1. Judicial
  • This has the punishment of crimes and misdemeanors, and the redress of civil injuries.13

Dionysius of Halicarnassus, points out 3 distinguishing marks of sovereign power:

  1. The right of appointing magistrates
  2. The right of enacting and repealing laws
  3. The right of making war and peace.

To which, in another part, he adds the administration of justice, the supreme authority in matters of religion, and the right of calling general councils.

A true definition comprehends every possible branch of authority that can grow out of the possession and exercise of sovereign power. For the ruler of every state must exercise his authority either in person, or through the medium of others. His own personal acts must be either general or special.

He may be said to do GENERAL acts in passing or repealing laws, respecting either temporal matters, or spiritual concerns, as far as the latter relate to the welfare of the state. The knowledge of these principles is called by Aristotle the masterpiece in the science of government.

The particular acts of the Sovereign are either directly of a public nature, or a private, but even the latter bear reference to his public capacity. Now the acts of the sovereign executive power of a directly public kind are the making of peace and war and treaties, and the imposition of taxes, and other similar exercises of authority over the persons and property of its subjects, which constitute the sovereignty of the state. Aristotle calls the knowledge of this practice political and deliberative science.

62 The private acts of the sovereign are those, in which by his authority, disputes between individuals are decided, as it is conducive to the peace of society that these should be settled. This is called by Aristotle the judicial power. Thus the acts of the sovereign are done in his name by his magistrates or other officers, among whom ambassadors are reckoned. And in the exercise of all those rights sovereign power consists.

VII. That power is called sovereign, whose actions are not subject to the controul of any other power, so as to be annulled at the pleasure of any other human will. The term ANY OTHER HUMAN WILL exempts the sovereign himself from this restriction, who may annul his own acts, as may also his successor, who enjoys the same right, having the same power and no other. We are to consider then what is the subject in which this sovereign power exists. Now the subject is in one respect common, and in another proper, as the body is the common subject of sight, the eye the proper, so the common subject of sovereign power is the state, which has already been said to be a perfect society of men.

Now those nations, who are in a state of subjugation to another power, as the Roman provinces were, are excluded from this definition. For those nations are not sovereign states of themselves, in the present acceptation of the word; but are subordinate members of a great state, as slaves are members of a household. Again it happens that many states, forming each an independent body, may have one head.

For political are not like natural bodies, to only one of which the same head can belong. Whereas in the former, one person can exercise the function of the head to many distinct bodies. As a certain proof of which, when the reigning house has become extinct, the sovereign power returns to the hands of the nation. So it may happen, that many states may be connected together by the closest federal union, which Strabo, in more places than one calls a system, and yet each retain the condition of a perfect, individual state, which has been observed by Aristotle and others in different parts of their writings.

Therefore the common subject of sovereign power is the state, taken in the sense already explained. The proper subject is one or more persons according to the laws and customs of each nation. This is called by Galen in the sixth book de placitis Hippocrate et Platonis, the first power of the state.