order, that is to say, the Third and Fourth Laws. These are invalidated (as we have pointed out elsewhere) by the force of the Thirteenth Law, not only when they come into conflict with the First or Second Law, but even when there is occasion to apply the Fifth or Sixth, inasmuch as the Fifth and Sixth inherently embrace the First and Second, as well as the Third and Fourth Laws themselves. But, by the same token, if any act is committed in excess of what is commanded by the laws of the first and third orders [Laws I, II, V, and VI], or against any person at whom the said laws are not aimed, that act will exceed the limits defining a just mode of warfare.
Enemies attack us, and are attacked in turn, in a twofold manner: corporeally, and by attack upon property. Consequently, four [47] συζυγίαι, or “reciprocal combinations,” are to be considered.a That is to say, either we attack in our turn the body of him who has attacked our bodies; or we despoil the despoiler; or we inflict damage upon the property of the person who imperils our lives, or we unsheathe our swords in defence of our own property. It has been shown above that none of these procedures is essentially unjust. Now let us see to what extent they are permissible.
Granting, then, that we are permitted to wound or even to despoil another in defence of our lives or property (I put the assumption in these terms so that it may refer to the First and Second Laws, and not to the commission of a crime), nevertheless, we ought to desist from violent action against him as soon as the danger is past: for example, when victory has been achieved. If we are laying claim to property of our own or to something which is owed us, it will not be permissible, after we obtain the thing thus claimed, to arrogate to ourselves any additional object. If we seek vengeance for a wrong inflicted, that vengeance, too, should be tempered to accord with the measure of the wrong, in observance of
The rule whereby the punishment befits
The crime. . . .a
The question at present under discussion differs, of course, from that treated in the preceding chapter; for we were concerned there with the necessity for an underlying cause, whereas in the present chapter we are adding to the causal considerations the requisite of moderation. Senecab holds that those persons are properly called cruel, who have cause to inflict punishment but observe no moderation in so doing.
New explanation
In this connexion it must be noted, moreover, lest one person should suffer in another’s stead from the ills of war, that an obligation is sometimes incurred in consequence of one’s own act or an act committed in common with others, whereas sometimes it is incurred in consequence of another’s conduct but through one’s own previous or subsequent act. In regard to the laws of the first order, this distinction has no force; for those laws are concerned only with the act itself and take no account of intent. It frequently happens, however, that the distinction does have a bearing upon cases involving contract, as may also occur in the case of a delict, in so far as the punishment for the delict is pecuniary or pertains to property.c The institution of bail rests upon this principle. But the laws refuse to recognize the vicarious acceptance of corporal punishment,d for the reason that no one can place under liability that which he does not own.e God has given us ownership over things; ownership over ourselves, He has retained for Himself. Therefore, we may transfer our goods when it pleases us to do so, but we may not lay down our lives;f just as private property, but not power over himself, is given to a slave. 47 a]
Accordingly, in the first place, the obligation incurred by one ally in consequence of an act committed by another ally, arises from an act of the former, that is to say, from an actual deed and not merely as a result of the contract of alliance. For, with respect to the debt incurred, the theologiansa have declared, most admirably and on the basis of natural equity, that all persons who have in any way contributed to the causes of inequality, are under an obligation to contribute to the causes of equality; moreover, it is maintained that a contribution to inequality has been made, not only by the individuals who personally perform the act of violent seizure or detention, but also by those other individuals who furnish the command, advice, consent, or labour for the act of deprivation, or who subsequently obstruct the making of restitution. But all allies do one or the other of these two things; and therefore, it is necessary to regard the joint obligation thus created,b as binding upon every person by whose aid the unjust party is rendered bolder or the opposing party, more fearful. This is an unchanging principle applicable to all warfare. With respect to punishments,c on the other hand, it is likewise unquestionably true that those individuals who fail to give material aid but who nevertheless lend encouragement by their advice, are liable to punishment, also, and even to the very same punishment as that incurred by the principal actors in the case; for such individuals are themselves offenders. [47]
As for the state, it is bound by the act of its magistrated as if by the force of a contract, just as he who has set up a director or agent in [47′] some matter is bound;e and at times this binding obligation embraces even liability to punishment. For those persons are liable, who have transferred authority over themselves to such representatives as might prove to be the source of injury to others, since he who has put his trust in an unworthy individual would seem to be involved,a so to speak, in the fraudulence [of the latter]. Thus it is by no means undeservedly that,
For every folly of their kings, the Greeks
Pay penalties. . . .b
Nor was that situation unreasonable which caused Hesiodc to lament as follows:
ὄφῤ ἀποτίσῃ
δη̑μος ἀτασθαλίας βασιλἑων,
So that the impious sins which stem from kings, The people expiate. . . .
This same principle is put into practice by God Himself, who not infrequently has punished the people for the sins of princes, a point that could be illustrated with many notable examples.d In the words of the blessed Justin:e πικροτάτη τιμωρία τω̑ν ἔμαρτηκότων βασιλἑων τιμωρία του̑ λαου̑; “The most bitter punishment imposed on erring princes, is the punishment exacted of the people.” Ambrose,f too, has said: “The delinquency of kings results in the punishment of peoples; for, just as we are protected by the virtue of kings, so also are we endangered by their transgressions.”
Furthermore, a state is bound by the act of its citizen:g not in an absolute sense, of course, but in cases where the state itself fails to render justice, thereby making the cause of the offender its own. For liability is incurred by the act of approval no less than by the act of command.a It was on this very ground (so we read) that the Amphictyons in ancient times condemned the Scyrians,b some of whom had practised piracy with impunity. In this sense, the state is not bound entirely by another’s act; for its own action is also involved, not only because the state [by failing to render justice] impedes another in the attainment of his right, but also because it sins in contravention of its duty under the Ninth Rule, which indicates that just judicial recourse should be provided for foreigners as well as for citizens. Moreover, it cannot be doubted that he who fails to prohibit that which he can and should prohibit, is liable for the consequences of the act in question, a principle applicable to debts involving punishment as well as to other debts. Hesiodc has this fact in mind when he says: [48]
πολλάκι καὶ ξύμπασα πόλις κακου̑ ἀνδρὸς ἐπαυρει̑.
Often a nation pays the penalty For one man’s wickedness. . . .
To Hesiod’s observation, Proclusd appends the following admirable explanatory
