Commentary on the Law of Prize and Booty. Hugo Grotius

Чтение книги онлайн.

СКАЧАТЬ of these precepts are of a general and necessary character, save that they are naturally and implicitly subject to one exception:^d that is to say, whenever a case arises in which the laws appear to conflict with one another—a situation described by the rhetoricians as τὴν κατὰ περίστασιν μάχην, “a conflict produced by circumstances”—the principle embodied in the superior law is upheld, and the inferior law is set aside. Accordingly, the law of all laws, so to speak, may be stated as follows: In cases where [the laws] can be observed simultaneously, let them [all] be observed; when this is impossible, the law of superior rank shall prevail.^a

      Now, this very point as to which law is of superior rank, may be determined on the dual basis of the origin and the purpose of the precepts involved. For, from the standpoint of origin, the divine law is superior to human law, and the latter to civil law.^b From the standpoint of purpose, that which concerns one’s own good is preferred to that which concerns another’s good; the greater good, to the lesser, and the removal of a major evil, to the promotion of a minor good. If, for example, your life is imperilled in the wilderness as the result of an attack from some individual, under circumstances of time and place that do not permit of recourse to a judge, you will rightly defend yourself, disregarding the Ninth Law, relative to judicial procedure.^c For that matter, not even the Third Law, which forbids you to injure another, will be an obstacle to such righteous self-defence; for otherwise you would not be able to exercise your right under the First Law, which commends your own [14] life to your care.^d Similarly, if any person holds property of mine in his possession without reimbursing me for it, and if that person is preparing for flight so that there is no hope of recalling him for trial, then I must have recourse to the Sixth Law, which requires that good be done to the doers of good, or in other words, that the loss [suffered by the benefactor] be compensated by gain,^e since the above-mentioned precept regarding judicial procedure ceases to apply. Nor will the Fourth Law, forbidding the seizure of another’s property, serve as an obstacle to my recovery of compensation contributory to my livelihood in accordance with the Second Law. For no one should be compelled to throw away his own property. But as soon as that imminent peril of death or loss shall cease, it will be obligatory to observe the different laws, no longer in mutual conflict, at one and the same time.

      We have seen what constitutes a “right” (ius); and from this concept we derive also the definition of a “wrong” or “injury” (iniuria), guided by the basic belief that this term refers to whatever is done in opposition to right.^a Accordingly, that action is just whereby a right is awarded to the party to whom it is conceded by the various rules and laws, whereas actions of a contrary nature are unjust.

      War

      Just war

      Unjust war

      Public war

      Civil war

      Foreign war

      Private war

      Seizure of prize or booty

      Now, even as actions have their inception in our minds, so do they culminate in our bodies, a process which may be called “execution.” But man has been given a body that is weak and infirm, wherefore extracorporeal instruments have also been provided for its service. We call these instruments “arms.” They are used by the just man for defence and [lawful] acquisition, by the unjust man, for attack and seizure. Armed execution against an armed adversary is designated by the term “war.” A war is said to be “just” if it consists in the execution of a right, and “unjust” if it consists in the execution of an injury. It is called “public” when waged by the will of the state, and in this latter concept the will of magistrates (e.g. princes) is included. Moreover, public war may be either “civil” (when waged against a part of the same state) or “foreign” (when waged against other states). What is known as a “war of allies” is a form of foreign war. Those which are waged otherwise [than by the public will], are “private” wars, although some authorities^b have preferred to describe such conflicts as “quarrels” rather than as “wars.” These conflicts, too, may be either civil or foreign. In the present work, the terms “seizure of prize,” “seizure of booty,”¹¹ are used to refer to the acquisition of enemy property through war.

CHAPTER III

       Question I

       Article I. Is any war just?

       Article II. Is any war just for Christians?

       Article III. Is any war just for Christians, against Christians?

       Article IV. Is any war just for Christians, against Christians, from the standpoint of all law?

      Accordingly, before we enter into a discussion of prize and booty, we must dispose of a certain question regarding war, namely: Can any war be just? [14′]

      To be sure, no one has ever succeeded in representing this as a doubtful issue without also rejecting a large part of Holy Writ, together with the supreme benefactions conferred by the Divine and Eternal Spirit, that is to say, civil order and the lawful authority of magistrates. In earlier times the Manichees were included in this subversive group, and even now there are persons who revive many errors of the Manichees, under a new name. The ignorant teachings of the Manichaean sect, however, both in regard to the question propounded above and on other matters, were refuted long ago by Augustine;^a nor has our own age lacked authorities to beat back with unanswerable arguments the recrudescent tide of superstition released by fanatics.

      In our opinion there is less need to refute the doctrines of such fanatics than there is to strengthen the stand taken by other persons, who do not profess the said doctrines but who nevertheless lack an adequate under-standing of the reason for adopting a different belief. Therefore, we shall elucidate this point, as follows.

      Formal Exposition of Article I

      He who wills the attainment of a given end, wills also the things that are necessary to that end.^a God wills that we should protect ourselves, retain our hold on the necessities of life, obtain that which is our due, punish transgressors, and at the same time defend the state, executing its orders as well as the commands of its magistrates. All this is plainly revealed in the laws set forth in the preceding chapter.^b But these divine objectives sometimes constitute causes for undertaking and carrying on war. In fact, they are of such a nature that it is very often impossible for us to attain them without recourse to warfare, as is indicated in the definition of war already formulated.^c Just as a certain natural conflict is waged, so to speak, between dryness and moisture, or between heat and cold, so there is a similar conflict between justice and injustice. Indeed, factual evidence clearly shows that there are in existence many men of a bloodthirsty, rapacious, unjust, and nefarious disposition, traitors to their native lands and disparagers of СКАЧАТЬ