The illustrious Hugo Grotius Of the law of warre and peace with annotations, III parts, and memorials of the author's life and death.

CXXXVI. What they should do, when they are in doubt.

BUt, if a man doubt, whether the thing be lawfull or no, must he then obey, or not? Most Authors are of opinion, that he must obey: nor doth that hinder, D•…•… not, what you doubt of: because (say they) * 1.1 he that doubts contemplatively, may in his active judgment be out of doubt; For he may believe, that in a doubtfull matter he ought to obey his superiour. And tru∣ly it cannot be denyed, but this disse∣ction of a twofold judgment hath place in many actions. The Civil Laws, not of * 1.2 the Romans only but of other Nations, i•…•… such a circumstance, do not only gra•…•…

Impurity † 1.3 to those that obey, but also de∣ny any Civil action against them. He doth the damage, say they, who commands it to be done: and he, who must needs obey, is in no fault. Necessity of the power ex∣cuseth, & the like. Aristotle himself in the fist his Ethicks, among those that do some∣thing unjust, but not unjustly, annume∣rates the servant of a Master comman∣ding; and he saith, He doth unjustly, from whom the action takes beginning; upon this ground, because the faculty de∣liberative is not full, according to that verse * 1.4;

Those men enjoy but one half of their soul, Whom their imp r ous Masters words controul.

And that of Tacitus: The Gods have given the Prince supreme judgment of * 1.5 things: to sub ects is left the glory of obe∣dience. Piso's son (in the same writer) was by Tiberius absolv'd from the crime of the Civil war; Because the son was not able to reject the commands of the Father.

Seneca: A servant is not a Censurer, but a minister of his Masters will. And spe∣cially * 1.6 in this question of warfare Auga∣stin thought so; for so he speaketh: A just man, if perhaps he serveth under a se∣crilegious * 1.7 King, may rightly fight at his command, if keeping civil order, he be either sure what is commanded him is not against the Command of God, or be 〈◊〉〈◊〉 sure that it is: so that perhaps the King may be guilty of iniquity in his command, but the soldier innocent in his obedient. The like he saith * 1.8 in other places. And hence it is a common received opinion, that, as to subjects, a war may be on both sides just, that is, without injustice † 1.9, Yet this is not without its difficulty. And our Countryman Adrian * 1.10, who waste last Bishop of Rome of the Cisalpins, de∣fends the contrary opinion: which may be confirmed, not by that reason precisely that he brings, but by this which is 〈◊〉〈◊〉 urgent: Because he that doubts contem∣platively, ought by his active judgmenta chuse the safer part: And it is the 〈◊〉〈◊〉 part to abstein from war. The Essens 〈◊〉〈◊〉 commended, for swearing, among other things, That they would never do any er•…•… harm, no not if they were commanded And their Imitators the Pythagoreans who as Jamblicus testifies, absteined from * 1.11 war, adding this for the reason, because is so bloody. Nor is it any material obje∣ction, that on the other side there is d•…•…

ger of inobedience. For, when Both are uncertain (for if the war is unjust, then in avoiding thereof is no inobedience) that is faultless, which of the two is less. Now, inobedience, in such matters, is of * 1.12 its own nature less evill than homicide and slaughter, especially of many Inno∣cents. The Antients tell how Mercury, * 1.13 being accus'd for killing Argus at the command of Jupiter, defended himself, and yet the Gods durst not absolve him † 1.14. Nor is it of great weight, which some bring on the con∣trary; That it will come to pass, if that be admitted, that the Commonwealth will be oft undone; be∣cause it is not expedient (for the most part) the reasons of Counsel's should be published and made known to the people. For, grant this to be t•…•…ue concerning the suasory causes of war, it is not true of the justifick; which must be clear and evident, and therefore such as may and ought to be openly declared † 1.15. And thus do some learned men inter∣that in Genesis 14. 14. to this sense, that Abrahams servants, before the battell, were fully instructed by him concerning

the Justice of his arms * 1.16 Certainly, de∣nuntiations, as we shall shew hereafter, were wont to be made openly, and the cause exprest, that all mankind, as i•…•… were, might examin and know the justice of it. Prudence indeed is a vertue (as it seemed to Aristotle) proper to Gover∣nors; but Justice to man, as he is man. Now, in my judgment, that opinion of Adrian is clearly to be followed, if the subject not only be in doubt, but is in∣duc'd by probable Arguments, and incli∣ned rather to believe that the war is un∣just: especially, if it be not defensive, but offensive. And so it is probable, that the Executioner of a man condemned, either by his presence at the Tryall, or by the confession of the party, ought so far to understand the case, that he may be afraid he hath deserved death † 1.17: which, in 〈◊〉〈◊〉 paces, is the custome: and the Hebrew Law * 1.18 looks this way, when, in the st•…•…∣ning of one condemned, it requires the witnesses to go before the people.

Notes

• * 1.1

  Quod dubitas, ne seceris.
• * 1.2

  L. damnum. de R. J. L. Liber bomo. D. ad L. Aquil. L. non videtur. §. qui jussit de R. I. Paul. l. 5. sen. tit. 22. §. 1. Leges Long. tit. 96. de 〈◊〉〈◊〉 effoss. Leges Wistgot. l. 2. tit. 2. c. 2. L. 8, tit. 1. c. 1.
• † 1.3

  Chrysostom. de providentia, 3. Many magi∣strates accus'd for unjust slaughter have been punisht oft: but never was any Exe∣cutioner call'd in question, for they are ex∣cus'd by the necessity layd upon them, proceeding from the d g∣nity of the Commander, and the fear of the O∣beyer. Ulplan out of Celsus saith, a ser∣vant hath not offended, who hath obeyed his Masters command. Mi∣thridates dismist the servants of Attilius, being conscicus of the plot against his life, u punished; and the children likewise of one that had revolted from him: Appian. Tiber'us Gracchus was acquitted from the fault of the Numantin league, because he had offended at the command of another. In v lente necessitas non est. Seneca.
• * 1.4

  Et illud quo Philo utitur: 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.5

  Anual. 3. The∣m stius in his 9. oration, saith, Princes are like to rea∣son, soldiers to wrath.
• * 1.6

  Controv. 3. 9.
• * 1.7

  Lib. 22. c. 74. cont. Faustum.
• * 1.8

  De Civit. Dei, lib. 1. c. 26. & de lib. arbit. l. 1.
• † 1.9

  Sil. in verb. bell. 1. n. 9. concl. 4. Cast. in l. 5. D. de In∣stit. Soto l. 5. q. 1. art. 7. Covar. in c. pece. p. 2. §. 10. Quis ju∣stius induat ar∣ma, Scire ne∣fas.
• * 1.10

  Adr. quaest. quod. l. 2. See an example of those that fol∣lowed this opi∣nion in Scaf∣naburgensis.
• * 1.11

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Jamb.
• * 1.12

  Baldus 2. Cons. 385. Sotus de Det. secr. memb. 3. q. 2. in resp. ad 1.
• * 1.13

  Vict. de jure bell. u. 25.
• † 1.14

  Nec Pothi∣num Prolomaei satellitem Martialis, cum ait: Antoni tamen est pejor, quam causa Pothini; Hic sacinus domino praestitit, ille sibi.
• † 1.15

  Tertull. Caeterum suspecta lex est, quae pro∣bari se non vult: improba autem, si non probata dominetur. Achilles apud Papinium Ulyssi:—Quae Danais tanti primordia belli, Ede: libet justas binc sumere protinus irat. Apud eundem Theseus: Ite alacres, tantae{que} precor considite causae. Propert. dixerat. Frangit & attollit vires in milite causa: Quae nisi justa subest, excutit arma pudor. Cui par illud panegyristae: Tantum inter •…•…ma bona conscientia sibi vindicat, ut jam caeperit non virtutis magis quam integritatis esse victoria.
• * 1.16

  Herod in Jo sephus tells the Jews after an overthrow in Arabia: I am willing to shew you, how just∣ly we under∣took this war, being com∣peld by the affronrs of our enemies. For by the know∣ledge hereof, you will be greatly stirred up to shew your courage. Aegid. Regius de act. supern. disp. 31. dub. 5. n. 85. Bannes 2. 2. 9. 40. art. 1. Molina tract. 2. disp. 113.
• † 1.17

  Wherefore the servants of Saul, more ho∣nest than Doeg, would not slay the Priests of Nob, their cause being unheard, 1 Sam 22. 17. And Ahabs third Captain of fifty would not hurt Elij ab 2 Reg. 1. 13. And some Executioners, converted to Christ, af∣terward used not this office, as unsafe. Vide Martyrol. & 〈◊〉〈◊〉 l. 1. c. 7.
• * 1.18

  Deut. 17.