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Chapter III. The Division of War into publick and private; together with an Explication of the Supreme Power
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240 u c h a p t e r i i i u The Division of War into Publick and Private. An Explication of the supreme Power. I. The most general and most necessary Division of War is this, that one War is private, another publick, and another mixed; that is a publick War, which is made on each Side by the Authority of the 1 Civil Power. Private War is that which is made between private Persons,withoutpublick Authority. Mixed War is that which is made on one Side by publick Authority, and on the other by mere private Persons.Butletusfirstspeak of private War, which is the most antient. That some Sort of private War may be lawfully waged, as far as respects the Law of Nature, I think has been fully proved by what I have said above, where it was shewn, that it is not repugnant to the Law of Nature, for any one to repel Injuries by Force. But perhaps some will think, that it is not lawful, at least since the establishment of publick Judges; for tho’ Courts of Justice are not from Nature, but human ApI . (1) Auctore eo, qui jurisdictionem habet. By the Authority of the Civil Power. The Reason of his expressing himself so, is, because on one hand, by the Term War, he understands all taking of Arms with a View of deciding a Quarrel, in opposition to the Way of terminating a Difference, by Recourse to a common Judge; and on the other, includes under the Name of Publick War, even that which is carried on by an inferior Power, without the Orders of the Sovereign Power; as appears from what he says, § 4 and 5. Thus all the Criticisms of the Commentators fall to the Ground; who do not consider, that our Author was at full Liberty to define his Terms as he pleased; provided he always fixes the same Ideas to them, and reasons on them conclusively. I. The Division of War into publick and private. war as publick and private 241 pointment; yet, since it is much honester, and more conducive to the Peace of Mankind, that Differences should be decided by a third Person that is disinterested, than that every Man should be allowed to do himself Justice in his own Cause, whereintheIllusionsofSelf-Lovearemuch to be apprehended: Equity itself, and naturalReason,adviseustosubmit to so laudable an Institution. Paulus the Lawyer says, 2 That is not to be allowed to private Persons, which may be done publickly by a Magistrate; lest it be the Occasion of great Troubles. The Reason why Laws were invented , says King Theodorick, is, 3 that none should use Violence, and do himself Justice; for wherein does War differ from Peace, if private Persons determine their Disputes by Force? And Laws call that Force, whensoever 4 a Man would take that which he thinks is due, without having Recourse to a Judge. II. Undoubtedly, the Liberty allowed before is now much restrained, since the erecting of Tribunals: Yet there are some Cases wherein that Right still subsists; that is, when the Way to legal Justice is not open. For the Law which forbids a Man to pursue his Right any other Way, ought to be understood with this equitable Restriction, that one finds Judges to whom he may apply. Now the Way to legal Justice may fail, either for some Time or absolutely. It fails for some Time only, when the Judge cannot be waited for 1 without certain Danger or Damage. It fails absolutely , either by Right or Fact: By Right, if a Man be 2 in Places not inhabited,asontheSeas,inaWilderness,indesartIslands;andanyother Places where there is no Civil Government. By Fact, if Subjects will not 2. Digest. Lib. L.Tit. XVII.De DiversisReg.Juris, Leg.176.SeeJamesGodfrey’s Comment on that Law. 3. Cassiod. Var. Epist. Lib. IV. Ep. X. See also the Edict of Theodoric, Cap. X. and CXXIV. Grotius. 4. Digest. Lib. IV. Tit. II. Quod metûs causa, &c. Leg. XIII. This is what the Latins call, in the Law Stile, Injicere manum, To lay Hands on; as is remarked by Servius, the antient Commentator on Virgil. In Aeneid. X. v. 419. Grotius. II. (1) As when a Man is attacked either in the Night, or even by Day, in private Places; or when such as see us in Danger, will not, or cannot, assist us, and bring the Aggressor to Justice. See B. II. Chap. I...