Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ a process of interrogation to an admission of the fact that, despite the latter’s classification of despoliation under the head of injustice, nevertheless this very act of despoiling is consonant with justice, when committed against an enemy. Plato,^g too, makes the following statement: πάντα τω̑ν νικωμἑνων ἀγαθὰ τω̑ν νικώντων γίγνεσθαι; “all those goods which were the property of the vanquished, become the property of the victor.”

      Thus we clearly perceive the absurdity of the belief^a that seizure of spoils should be excluded from wars among Christians; unless, perchance, all such wars are held to be unjust. But other authorities^b have laid bare the ignorance underlying this contention on the part of men who are otherwise learned. We ourselves, on the basis of the [23′] principles already expounded, believe the matter to be so clear that it requires no more protracted discussion; and we furthermore consider it permissible to observe that the proponents of a different opinion have lacked even an adequate understanding of what constitutes prize and booty.

      As for the argument derived by our opponents from civil war, it is doubly absurd. For, in the first place, who will acquiesce in their assumption that the wars of Christians are civil wars, as if to say, forsooth, that the whole of Christendom constitutes a single state?^c Again, they are mistaken even in their contention that seizure of spoils has no proper place in civil warfare. For, aside from the testimony of history, which teaches us that the very abundance of spoils taken in civil wars is such that men have on numerous occasions been impelled to revolution by their greed for plunder,^d what logical argument can be advanced to show that a magistrate ought not to collect by armed force^e the debt that is owed to the state, even when that debt consists solely in the penalty for rebellion, if he cannot collect it by any other means? Plato,^f in fact, even while maintaining that in cases of civil dissension war should be conducted as temperately as possible, nevertheless concedes that, τὸν ἐπἑτειον καρπὸν ἀφαιρει̑σθαι [. . .] τοι̑ς κρατου̑σι τω̑ν κρατουμἑνων, “the annual harvest may be taken from the vanquished by the victors.” Besides, what could be more inconsistent than prohibiting the seizure of prize or booty in a situation where slaughter is permitted?^a

      Formal Exposition of Article IV

      Surely, since the despoliation of enemies is accepted under the law of nations, it must necessarily be sanctioned by civil law, too. This inference is clearly confirmed by the laws and customs of individual nations relative to the distribution of spoils; and in every part of the world, such laws and customs abound. Again, the Roman Corpus Iuris^b repeatedly states that things captured in war become the property of the captors; and the same rule is approved by canon law.^c The facts just stated, considered as a whole, make it impossible for us to doubt that seizure of enemy spoils is permitted by every branch of law.

      First Informal Exposition of Article I

      The same view is explicitly supported in Holy Writ. Is anything more truly one’s will, than that which one commands through an express legal precept? Yet we find among the precepts of military law, this divine pronouncement^d concerning captured cities: “[. . .] all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee.” Accordingly, just as victory flows from God, so also do the institutions of prize and booty. It is recorded, moreover, that a part of the spoils was consecrated to God and claimed [24] by Him.^e Not even the profane nations of the Gentiles were altogetherunacquainted with this practice;^f for they offered sacrifices taken from the goods captured in war, to Jove the Plunderer and Minerva the Dispenser of Spoils, and also, indeed, to Mars or Hercules or Vulcan. The sanctity of trophies was derived from this same origin. To take another instance, among the precepts laid down for Joshua^g when he set out against Ai, we find the following injunction: “[. . .] the spoil thereof, and the cattle thereof, shall ye take for a prey unto yourselves [. . .].”⁴ And who can deny that the following command, though it was pronounced by that same Joshua,^a was θεόπνευστον [divinely inspired], and dictated by the Will of God? “Return with much riches unto your tents, and with very much cattle, with silver, and with gold, and with brass, and with iron, and with very much raiment: divide the spoil of your enemies with your brethren.” Or we may quote the words of David:^b “Behold a present for you of the spoil of the enemies of the Lord.” Sufficient proof was afforded, however, in the sole fact that it was God’s Will that the Israelites, a nation formed by God Himself, should defend their rights in this fashion;^c or again, in the fact that He prescribed limits for the seizure of spoil,^d and indicated the manner in which it should be divided.

      Second Informal Exposition of Article I Cf. 1st Inf. Exp. of Art. I, Concl. I, together with Gen. Exp. at beg. of this chap.

      Nor is it inappropriate to cite in this connexion the authoritative passages which demonstrate that war is just, either in an absolute sense or on the basis of [a just] origin, since the very passages that show the permissibility of war for Christians and against Christians, are likewise pertinent to the question of booty. For certainly that which was by its nature immutable could not have suffered change, nor was any innovation introduced into matters of moral conduct by the doctrines laid down in the Gospels.

      Third Informal Exposition of Article I Cf. 2d Inf. Exp. of Art. I, Concl. I, together with Gen. Exp. in this chap.

      First, Second, and Third Informal Expositions of Article II; First and Second of Article III Cf. 1st, 2d & 3d Inf. Exps. ὀψωνίοις of Art. II, Concl. [I], & also 1st & 2d Exps. of Art. III, same Concl., together with Gen. Exp. in this chap.; or Inf. Exp. of Art. I of Qu. II, together with 1st & 2d Form. Exps. of Arts. II & III, Concl. I.

      Neither is it possible to believe that the precept formulated by John the Baptist,^a [“Do violence to no man, neither accuse any falsely; and be content with your wages,”] was in conflict with the unequivocal oracles of God. In regard to this point, we should note that John was being consulted, not by soldiers girded for battle and prepared to march against the enemy, but by those stationed in the garrisons of Judea. Now, the writers of that time bear witness to the many injuries inflicted by Roman soldiers upon the unfortunate provincials, and to the extensive desolation wrought in the vicinity of the Romans’ winter quarters. Thus John prohibited such vexatious conduct—which he described as “violence” (concussiones), the word that is used even to-day—as well as all false accusations, and told the soldiers to be content with their wages (for that is the usual meaning of the term employed [in the Gospels]).⁵ Nor does his admonition require forbearance in regard to any person other than the peasants and the hosts of the soldiers, against whom the latter too frequently commit offences. This is the universally recognized interpretation^b of the passage in question. For it is an act of the gravest injustice to despoil innocent rustics who are bearing, for their own [24′] protection and for the maintenance of the soldiers, burdens that have been imposed in the name of the state. In no sense, however, does the said passage refer to enemy property; nor does its purport differ from that of the dictum laid down already by John in reply to the publicans, namely, that they should exact no more than that which was stipulated for them by law. Therefore, if those in command have so decreed, spoil will justly be transferred from the enemy to the soldiers; and it will even be considered a part of the soldier’s pay, that is to say, a part of the profits of war rightfully awarded to them according to the testimony of Paul.^a Thus the rule formulated by John for the soldiers serving in Judea, was in effect the same as that decreed by Aurelian^b for his armies: “Let each man be content with his own ration; let him live by spoil taken from the enemy, not by the tears of the provincials.”

      Informal Exposition of Article IV

      Similarly, the authoritative statements already cited to prove that war СКАЧАТЬ