save perchance for those who are ashamed to vindicate themselves by legal means.” Quintilian’s assertion is clearly equivalent to these words from the decree of the Roman Emperor [Theodosius]:h “even if one of them [the Jews] be implicated in crime, the authority of judgements and the protective force of public law have been established in our midst for this very purpose, namely, to preclude the possibility that any individual should be in a position to indulge in direct personal vengeance.” Theodorici supports the same view when he tells us that, “Pious reverence for the laws is found to have its origin in this very principle: that nothing shall be done by violence, nothing on individual impulse.”
Force
New explanation
On the other hand, we have shown in a preceding passagea that just wars which are nevertheless private, do spring from the four causes already mentioned; whence it follows that the Ninth and Twelfth Laws must sometimes become invalid, or rather, dormant. Now, they become dormant in obedience to the principle laid down in the Thirteenth [37′] Law, that is to say, as a result of necessity based upon the superior laws; and it is understood that this necessity arises when judicial means for the attainment of our rights are defective. For in so far as such a defect exists, to that extent recourse to force—or, in other words, private execution in accordance with the natural order—is just.b But as soon as judicial means can be employed, then, as we stated in our discussion of the thirteen laws, all of the said laws must be observed simultaneously. It should be noted, moreover, that the defect in judicial recourse is sometimes of brief duration, sometimes of a more or less continuous nature.c
The defect is of brief duration whenever our rights have not yet been violated but the matter does not permit of the delay necessary for judicial procedure.d In the first place, then, as Balduse has said, whatever is expedient for self-defence in such cases, is likewise permissible; for a crisis that threatens our lives permits of no delay. The jurists,f indeed, approve of everything done to ward off danger, or through fear of death, or for the protection of our persons, or in order to repel violence, in so far as it is impossible for us to defend ourselves becomingly or effectively in any other way. This contention is equivalent to that rule of blameless self-defence which is so frequently reiterated.g Similarly, it is permissible for us to defend or recover our own property, even with the assistance of groups of men assembled for that purpose, but only if such action is taken at once. For after an interval during which there has been time to appear before a judge, force should no longer be used. In regard to the collection of debts, it is my belief that no concession has been made other than that relative to the seizure of pledges, or “the laying on of hands” (as the legal phrase goes), in cases where we are in danger of forfeiting our rights because the debtor has fled;a so that, as soon as the matter can be laid before a judge, the latter, rather than the creditor acting for himself, will award the debtor’s possession to the creditor in payment of the debt. Thus we find that among the Athenians, ἀνδρο ληψίας,b that is to say, seizure of human beings as pledges, was permitted to private individuals; but the question of whether the pledges had been rightfully or wrongfully given was a matter for public judgement. A similar concession is made in the case of crimes, when it seems that the transgressor is on the verge of escaping punishment; for by commonly accepted lawc (special laws being at times more indulgent) it is permissible to seize and detain the guilty person, though only on condition that he be handed over at once to a judge, since the laws forbid the maintenance of private prisons.d [38]
As regards continuous lack of means for judicial settlement, the authoritiese maintain that there are two ways in which such a defect may occur: it may be either a defect in law or a defect in fact. It is a defect in law when in a given place there is no one possessing jurisdiction, a state of affairs which may exist in desert lands, on islands, on the ocean or in any region where the people have no government. The defect is one of fact whenever the person to whom jurisdiction properly pertains, is disregarded by those subject to him, or when he is not at leisure to conduct a judicial inquiry.a In such cases, as Castrensisb rightly observes, the situation becomes very much what it was before states and courts of justice were established.c But in those days human beings were governed in their mutual relations solely by the six laws which we laid down first of all. Those six precepts were the source of all law, and also of the principle that each individual was the executor of his own right, a principle consonant with the natural order, as we have already remarked, and as is indicated by the conduct of other living creatures.d Accordingly, from this point of view, it will be permissible not only to defend oneself and one’s own possessions, but also to recover such possessions after any interval, howsoever long, and to pay oneself from the property of debtors. [39]2
A paradoxical contention
Thus I find that there is universal agreement as to the fact that just private wars may arise from three of the four causes enumerated above.3
There remains for consideration the fourth cause, wrongdoing; and, unless I am mistaken, no one will doubt that this cause, too, in so far as it leads only to the exaction of restitution for the injured party, can justly give rise to private wars. For it is no less truly my right to exact whatever amount is involved because of injury inflicted, than it is to seek possession either of my own property or of property due me on some other basis.
It is not so easy to decide the question of whether or not a private individual may under any circumstances seek to impose punishment for a crime. Indeed, since a great many persons maintain that the power to punish has been granted to the state alone (wherefore judgements, too, are [habitually] termed “public”), it might seem that private application of force is ruled out entirely. The best method we can adopt for the discussion of this point will be found, however, in the consideration of what was permissible for individuals prior to the establishment of states.
When the Emperor Theodosius asserts (in the decree quoted in part just above)a that the judicial system was established precisely for the purpose of preventing any individual from indulging in private vengeance, he certainly implies that in his opinion vengeance was permissible for private individuals before the said system was adopted. But a change was introduced in regard to that privilege, owing to the fact that the bounds of moderation were easily overstepped either through love of self or through hatred of another. Nor is there any great difference between this development in the matter of vengeance and the developments relative to defence of property and collection of debts; for, although each individual formerly conducted these latter transactions personally, the establishment of courts of justice was undertaken in order to avert the perils arising from this earlier practice. Lucretiusb expresses the same idea very clearly indeed, in the following lines:
Since each man, moved by wrath, was wont to plan
Vengeance more harsh than just laws now allow,
Men wearied of a life of violence. . . .
Ciceroa himself, after observing that the law of nature is the principle implanted in us not by opinion but by innate force, places vengeance, which he describes as the opposite of gratitude, among the manifestations of the natural law; and I note that the most eminent theologiansb do not condemn him on this score. Moreover, in order that there [39′] may be no doubt as to the exact scope of the concept included under the term “vengeance,” Cicero defines it as “that act by which, defensively or punitively, we repel violence and abuse from ourselves and from those close to us whom we should hold dear,” and also as “that act whereby we inflict punishment for wrongdoing.” Civilis is quoted by Tacitusc as saying: “In accordance with the law of nations, I demand the infliction of punishment.” In Scriptural history,d too, Samson declares that he has incurred no guilt by inflicting injury in his turn upon the Philistines who injured him when they carried off his wife; and afterwards, when he has completed the act of vengeance, he once more
