Conse XI. Certain duties are also to be observed, even towards those who have wronged you; for there is a mean even in revenge and punishments. Nay, I am not certain whether part of our conduct would proceed upon chance. But there could be no confidence in promises, if men were not obliged to perform them; the obligation, therefore, to perform promises is essential to the same ends, and in the same degree. Where the terms of promise admit of more senses than one, the promise is to be performed in that sense in which the promiser apprehended at the time that the promisee received it."" Dr. Paley sums up his argument in the following words:-" From the account we have given of the obligation of promises, it is evident that this obligation depends upon the expectations which we knowingly and voluntarily excite. quently, any action or conduct towards another, which we are sensible excites expectations in that other, is as much a promise, and creates as strict an obligation, as the most express assurances.' The exceptions which Paley admits to the obligation of promises are the following:-"1. Promises are not binding where the performance is impossible. 2. Promises are not binding where the performance is unlawful. 3. Promises are not binding where they contradict a former promise. 4. Promises are not binding before acceptance; that is, before notice given to the promisee. 5. Promises are not binding which are released by the promisee. And, 6. Erroneous promises are not binding in certain cases; as where the error proceeds from the mistake or misrepresentation of the promisee; or, secondly, When the promise is understood by the promisee to proceed upon a certain supposition, or when the promiser apprehended it to be so understood, and that supposition turns out to be false; then the promise is not binding." It is only necessary to cite another passage with reference to extorted promises. It seems obvious here to remark, that in the case of promises, or even declarations, unjustly extorted-as by the highwayman or the inquisitor-a doubt may very naturally arise, whether the absence of all right on the part of the extorting party, does not involve a correlative freedom on the part of the victim, to declare the truth, or to fulfil the promise. This point Dr. Paley leaves (unnecessarily, as I think) undecided. "It has," he says, "long been controverted amongst moralists, whether promises be binding which are extorted by violence or fear. The obligation of all promises results, we have seen, from the necessity or the use of that confidence which mankind repose in them. The question, therefore, whether these promises are binding, will depend upon this: whether mankind, upon the whole, are benefited by the confidence placed on such promises? A highwayman attacks you, and being disappointed of his booty, threatens or prepares to murder you. You promise, with many solemn asseverations, that if he will spare your life he shall find a purse of money left for him at a place appointed. Upon the faith of this promise he forbears from further violence. Now, your life was saved by the confidence reposed in a promise extorted by fear; and the lives of many others may be saved by the same. This is a good consequence. On the other hand, confidence in promises like these greatly facilitates the perpetration of robberies; they may be made the instruments of almost unlimited extortion. This is a bad consequence; and in the question between the importance of these opposite consequences, resides the doubt concerning the obligations of such promises." it is not sufficient for the person who has injured you to repent of the wrong done, so that he may never be guilty of the like in future, and that others may not be so forward to offend in the same manner. Now, in government the laws of war are to be most especially observed; for since there are two manners of disputing, one by debating, the other by fighting, though the former characterises men, the latter, brutes, if the former cannot be adopted, recourse must be had to the latter. Wars, therefore, are to be undertaken for this end, that we may live in peace without being injured; but when we obtain the victory, we must preserve those enemies who behaved without cruelty or inhumanity during the war: for example, our forefathers received, even as members of their state, the Tuscans, the Aqui, the Volscians, the Sabines, and the Hernici, but utterly destroyed Carthage and Numantia. I am unwilling to mention Corinth; but I believe they had some object in it, and particularly they were induced to destroy it, lest the advantages of its situation should invite the inhabitants to make war in future times. In my opinion, we ought always to consult for peace, which should have in it nothing of perfidy. Had my voice been followed on this head, we might still have had some form of government (if not the best), whereas now we have none. And, while we are bound to exercise consideration toward those whom we have conquered by force, so those should be received into our protection who throw themselves upon the honour of our "The insolence and brutality of anger, when we indulge its fury without check or restraint is, of all objects, the most detestable. But we admire that noble and generous resentment which governs its pursuit of the greatest injuries, not by the rage which they are apt to excite in the breast of the sufferer, but by the indignation which they naturally call forth in that of the impartial spectator; which allows no word, no gesture, to escape it beyond what this more equitable sentiment would dictate; which never, even in thought, attempts any greater vengeance, nor desires to inflict any greater punishment, than what every indifferent person would rejoice to see executed."-Smith's "Moral Sentiments," part 1, chap. 5. "The nobleness of pardoning appears, upon many occasions, superior even to the most perfect propriety of resenting. When either proper acknowledgments have been made by the offending party, or even without any such acknowledgments, when the public interest requires that the most mortal enemies should unite for the discharge of some important duty, the man who can cast away all animosity, and act with confidence and cordiality towards the person who had most grievously offended him, seems justly to merit our highest admiration.--Id. part 6, section 3. general, and lay down their arms, even though the battering rams should have struck their walls. In which matter justice was cultivated with so much care among our countrymen, that it was a custom among our ancestors that they who received under their protection cities, or nations conquered in war, became their patrons. Now, the justice of war was most religiously pointed out by the fecial law of the Romans. From this it may be understood that no war is just unless it is undertaken to reclaim property,* or unless it is solemnly denounced and proclaimed beforehand. Popilius, as general, held a province where Cato's son served in his army. It happened that Popilius thought proper to disband one legion; he dismissed, at the same time, Cato's son, who was serving in that legion. When, however, through love of a military life, he remained in the army, his father wrote to Popilius, that if he suffered him to continue in the service he should, for a second time bind him by the military oath; because the obligation of the former having been annulled, he could not lawfully fight with the enemy. war. So very strict was their observance of laws in making There is extant a letter of old Cato to his son on this occasion, in which he writes, "That he heard he had got his discharge from the consul, while he was serving as a soldier in Macedonia, during the war with Perseus. He, therefore, enjoins him to take care not to enter upon action; for he declares that it is not lawful for a man who is not a soldier to fight with an enemy. XII. And, indeed, there is another thing that I should observe, that he who ought properly be termed perduellis, that is, a stubborn foe, is called a hostis, and thereby the softness of the appellation lessens the horror of the thing; for by our ancestors he was called hostis whom we now call a stranger. This the twelve tables demonstrate: as in the * To reclaim property, &c.] "The formal and public declaration of war was an indispensable preliminary to it among the Romans. This declaration was either conditional or simple. The conditional was when it was made cum rerum repetitione, which sometimes not only implied satisfaction for property but punishment upon the offender. A simple declaration was without any condition, as when an injury could not be repaired; or when war was first declared by the other party."-See Grotius, lib. 3. chap. 3. De Jure Belli, &c.—Guthrie. words, "a day appointed for the hostis to plead ;" and again, "a Roman's right of property, as against a hostis, never terminates." What can exceed the gentleness of this, to call those with whom you were at war by so soft an appellation? It is true that length of time has affixed a harsher signification to this word, which has now ceased to be applied to the stranger, and remains peculiar to him who carries arms against us. Meanwhile, when we fight for empire, and when we seek glory in arms, all those grounds of war which I have already enumerated to be just ones, must absolutely be in force. But wars that are founded upon the glory of conquest alone, are to be carried on with less rancour; for, as we treat a fellow citizen in a different manner as a foe, than we do as an antagonist;-as with the latter the struggle is for glory and power, as the former for life and reputation;— thus we fought against the Celtiberians and the Cimbrians as against enemies, the question being not who should command but who should exist; but we fought for empire against the Latines, the Sabines, the Samnites, the Carthaginians, and Pyrrhus. The Carthaginians, 'tis true, were faithless, and Hannibal was cruel, but the others were better principled. The speech of Pyrrhus about ransoming the captives is a noble one: In war not crafty, but in battle bold, No wealth I value, and I spurn at gold. I swear, by all the gods of open war, As fate their lives, their freedom I will spare. This sentiment is truly noble, and worthy the descendant of the acidæ. XIII. Nay, if even private persons should, induced by circumstances, make a promise to the enemy, even in this fidelity should be observed. Thus Regulus, when he was made a prisoner by the Carthaginians in the first Punic war, being sent to Rome to treat of an exchange of prisoners, he swore that he would return. The first thing he did when he came to Rome was to deliver his opinion in the senate that the prisoners should not be restored; and after that, when he was detained by his relations and friends, he chose to deliver himself up to a cruel death rather than to falsify his word to the enemy. But in the second Punic war, after the battle of Cannæ, Hannibal sent ten Romans to Rome, under an oath that they would return to him unless they procured the prisoners to be ransomed; but the censors disfranchised, as long as they lived, all of them that were perjured, as well as him who had devised a fraudulent evasion of his oath. For when, by the leave of Hannibal, he had left the camp, he returned soon after, to say that he had forgotten something; and then again leaving the camp he considered himself free from the obligations of his oath, which he was with regard to the words but not the meaning of them; for in a promise, what you thought, and not what you said, is always to be considered.* But our forefathers set us a most eminent example of justice towards an enemy; for when a deserter from Pyrrhus offered to the senate to despatch that prince by poison, the senate and C. Fabricius delivered the traitor up to Pyrrhus. Thus they disapproved of taking off by treachery an enemy who was powerful, and was carrying on against them an aggressive war. Enough has now been said respecting the duties connected with warfare; but we must bear in mind, that justice is due * As oaths are designed for the security of the imposer, it is manifest that they must be interpreted and performed in the sense in which the imposer intends them; otherwise they afford no security to him. And this is the meaning and reason of the rule, "jurare in animum imponentis."Paley's "Moral and Political Philosophy," book 3, chap. 16. Against the practice of administering oaths as demoralizing, we may instance two authorities. "The effect," says Dymond, " of instituting oaths is to diminish the practical obligation of simple affirmation. The law says you must speak the truth when you are upon your oath, which is the same thing as to say that it is less harm to violate truth when you are not on your oath. The court sometimes reminds a witness that he is upon oath, which is equivalent to saying, If you were not we should think less of your mendacity. The same lesson is inculcated by the assignation of penalties to perjury and not to falsehood." "There is," says Godwin, in his "Political Justice," book 6, c. 5, "no cause of insincerity, prevarication, and falsehood more powerful than the practice of administering oaths in a court of justice. All attempts to strengthen the obligations of morality, by fictitious and spurious motives, will, in the sequel, be found to have no tendency but to relax them." |