International law; Natural law; War (International law)
The proofs that have been already produced, to shew that to repel
violence is not repugnant to natural law, afford a satisfactory reason
to justify 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,
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. It is a matter beyond all doubt that the liberty of private
redress, which once existed, 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
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