Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ is quite convincingly supported, moreover, by the above-cited^d opinions of both John the Baptist and Paul.

      First Informal Exposition of Article III

      Some wars, then, are just for Christians. This conclusion is applicable even to some wars against Christians, that is to say, against persons who profess Christianity. For, by definition and in accordance with the very nature of opposites,^e war is just when waged against those who commit injustice; but some Christians commit evil and unjust deeds, a fact to which Christ bears witness;^f and therefore, it is lawful to proceed against such Christians with armed force.

      Second Informal Exposition of Article III

      Again, Christians are subject to punishment; for it is to them that Paul^a speaks, in the passage above quoted. Indeed, those persons whom reverence for the most sacred of names has been unable to restrain from injurious conduct, are perhaps deserving of punishment by no means less severe than that merited by others. But certain penalties cannot be exacted without warfare. Consequently, even as it is unquestionably true that just wars were waged among the Hebrews,^b despite the fact that they were bound to one another by ties not only of religion but also of government and blood relationship, so it cannot properly be doubted that similar conflicts may arise among Christians.

      At the same time, one must admit that persons who furnish grounds for war by their injurious acts, are certainly not complying with the duties imposed upon Christians, since the followers of Christ are subject to a special and solemn obligation of love and concord, surpassing the common bond that unites all mankind. On the other hand, the [18] arguments above set forth are in no sense incompatible with the prohibition laid down by Christ Himself and also by the philosophers (particularly the Platonists), against τὸ ἀνταδικει̑ν, “the requital of injury.” For, in the light of the fairly extensive consideration we have already given^c to the subject of punishments, we are able to perceive just what it is that these authorities condemn.

      In the first place, it is quite obvious that the precepts in question were addressed to private individuals, or to servants of the Church whom Christ chose to regard in this connexion as private individuals; and it is equally obvious that those acts [of individual vengeance] are rightly prohibited, which would disturb the whole order of the state, shattering the public peace, if they were permitted. This point has been brought out in our discussion of the Ninth Law. Thus a rule of ancient law^d declares that action which may be taken publicly through a magistrate is prohibited for private persons, lest occasion be given for graver disturbances. In another context, we shall see how far the application of this rule should be extended. Meanwhile, suffice it to say that the precepts which we are discussing, clearly do not refer to the public use of arms. If we took the contrary view, we should be subscribing to the accusation brought by Celsus and Julian, enemies of our faith, who falsely declared that the Christians, in abolishing revenge, were abolishing all laws, together with magistracies and the punishment of malefactors. This is so far from being the truth that, on the contrary, our theologians^a place Punishment in the category of the virtues, regarding her as the handmaiden of Justice. A second fault susceptible of condemnation in connexion with vengeance, stands out so plainly that it could be left unmentioned. This is the fault involved when the cause of the avenger is unjust. A third fault consists in exceeding the limits of vengeance appropriate to the transgression. Seneca^b has said that the second fault is incompatible with justice, and the third, with clemency. A fourth fault arises when vengeance is inflicted in a spirit of injustice, or in other words, when neither the good of the person punished nor the common good is kept in view. The two faults last named are mentioned by that same Seneca^c in a single passage, [the description of an occasion on which Plato refrained from inflicting punishment and explained his self-restraint in these words: “I am angry;] I should be apt to do more than I ought, and with too much pleasure.”

      For punishment, according to our preceding analysis of terms, consists properly in the repayment of that which is owed by the part to the whole as a result of wrongdoing; and therefore, it ought to be directed to the public interest. Together with this observation, one should take into account the fact (already brought out in the aforesaid analysis) that it is frequently better for the sinner himself, that wickedness should not be allowed to go unpunished. Herein lies the purport of Augustine’s^a declaration that nothing is more infelicitous than the felicity of sinners.

      Surely, then, if it is not always our duty to remit punishments, far less can it be our duty to remit that which is owed us on the basis of reciprocal justice. For even the precepts that apparently favour remission do [18′] not command us to renounce indiscriminately and to fling away,^b as it were, that which belongs to us. In fact, men of saintly character have never scrupled to obtain what was their due, either through judicial procedure or, when other means were lacking, through the just application of force. What those precepts do command, is that we should yield in preference to involving ourselves in sin or becoming an impediment to the public welfare. In many cases, however, it is advantageous not only for our own sake but also because of the example set before the public, that we should possess that which is rightfully ours.

      Informal Exposition of Article IV

      Therefore, according to the opinions which we have cited, divine law is not opposed to all wars. Furthermore, since law as a whole is rightly [19] divided into the divine branch and the human branch, and since we have already shown that some wars have a basis in divine law, it follows from the doctrine^c which denies the validity of human law whenever the latter branch comes into conflict with the divine, that those same wars are just from the standpoint of all law.

      So far our citations have been drawn from divine testimony.^d From this same source many additional arguments could be derived, if [19′] we combined that testimony with the logical considerations expounded in preceding passages and based upon nature itself.

      We turn next to that human authority which is of course more open to question, but which nevertheless carries considerable weight. Now, such authority is divided into two kinds: that derived from facts, and that derived from words.

      Informal proofs relative to whole question, based on examples

      For, assuming that the actions of just men are properly regarded as just—in other words, assuming that example is of paramount importance in the decision of all questions—I shall cite the following sources: the age when men lived under the guidance of nature,^a which supplies the example of the warring Abraham; the [Old] Law itself,^b which gives us Moses and David as examples; New Testament history,^c including more than one reference to centurions as well as the request made by Paul himself for a military guard against the snares of his enemies; and the centuries following thereafter,^d with their record of numerous exceedingly pious emperors and most Christian kings who waged wars even against men bearing the name of Christians. And what of the written accounts which relate that wars were carried on by those illustrious ancients, Gideon, Barak, Samson, Jephthah, Samuel, and various prophets who were quickened by the same true faith in Christ that quickens us?^e From these examples, it follows that some wars are just for the faithful.

      Informal proofs relative to whole question, based on recorded opinion

      Again, since it is rightly maintained that those things are just and pious which have been so adjudged by just and pious men (not to mention the entire number of the philosophers, or the jurisconsults, none of whom has expressed any doubt on this point), I shall quote a very few of the opinions formulated by persons highly esteemed for their piety and erudition. The following assertion was made by Augustine:^f “The functions of vengeance may be discharged by virtuous men acting with virtuous intent, just as they may be discharged by a judge, or by the law.” The same author wrote:^g “Not for nothing have these institu-tions been established: kingly power, and the lawful СКАЧАТЬ