Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ ἢ ὑπὲρ συγγενω̑ν, ἢ ὑπὲρ εὐεργετω̑ν, ἢ συμμάχοις ἀδικουμἑνοις βοηθει̑ν. “If injury has been inflicted upon any person, it is fitting that we should take up arms, whether in self-defence or for the sake of kindred or benefactors; or again, if our allies have been wronged, it is fitting that we go to their aid.” For that matter, even if other bonds are lacking, the universal fellowship of mankind and the communion established by nature, will still cause us to be affected in our turn by ills inflicted upon others. For human beings should not hold themselves aloof from anything that is of human import. Indeed, this maxim holds good to such an extent that great nations, as well as theologians and jurists^g of no slight authority, in many cases regard as punishable the negligence of those who have allowed some person to be injured when they could have prevented such injury.

      The authors of a deed, however, and their allies, act of their own force (the former, to be sure, on their own behalf, and the latter on behalf of another); instruments, on the other hand, act by the force of him who wields them, not by their own force. For in a certain sense, instruments fall into the category of parts, and a part is naturally the servant of the whole.^a Thus the hand is, so to speak, ὄργανον ὀργάνων, “the instrument of all instruments”; and in this connexion the poet Lucretius^b observes:

      The weapons of old were hands, teeth, and nails.

      Subjects

      Conversely, weapons are the hands of the soldier. Nevertheless, when we speak of the instruments of war, we do not wish to be understood as referring to projectile engines, swords, and spears, since these things are scarcely pertinent to the question of justice; we refer rather to the men themselves whose deeds are performed subject to the commands of others. Take sons as an example:^c for a son is from the standpoint of nature a part of his father, inasmuch as the former has derived his very existence from the latter. The slave also provides us with an illustration,^d because he is in a sense, like any other possession, a part of his owner. For just as a given part does not merely pertain to its whole by virtue of the same relationship in which the latter is the whole corresponding to the said part, but furthermore depends upon that constituent whole for the very fact of existence, even so a possession is essentially a thing pertaining to the possessor himself. Democritus^a gives us this advice: οἰκἑτῃσιν ὡς μἑρεσι του̑ σκηνἑος χρω̑ ἄλλῳ πρὸς ἄλλο; “Use your servants as you use the parts of your body: different ones for different purposes.” Nor is Aristotle^b mistaken when he says that certain persons are by nature slaves, not because God did not create man as a free being, but because there are some individuals whose character is such that it is expedient for them to be governed by another’s sovereign will [27′] rather than by their own.^c Thus a household consists, as it were, in a multitude of bodies directed by one mind; and absolutely every person who serves another is an instrument, wherefore we refer to those whose labour we utilize, as our “hands.” Let us apply the designation “subjects,” then, to all such persons.

      Conclusion V, Article I

      Therefore, on the basis of the foregoing observations, we conclude that private wars (for these should be dealt with first) are justly waged by any person whatsoever, including cases in which they are waged in conjunction with allies or through the agency of subjects. In this connexion, one may quote the words of Baldus:^d “Some persons make war directly, and not through the agency of another; some make war directly in conjunction with another; some do so through another’s agency, without intervening directly, and some do so both directly and through another’s agency.” The three kinds of warfare in question, [warfare by direct personal intervention, with the aid of allies, and through the agency of subjects,] are all clearly exemplified in a single instance drawn from the story of Abraham,^e wherein war is waged not only by Abraham himself, but also by his allies (Aner, Eshcol, and Mamre) and, furthermore, by his household slaves, who are called in that story, “the young men.”

      Moreover, I except no one from the conclusion set forth in the preceding paragraph. For if a given individual is prohibited from waging war, that prohibition is based not upon a defect in personal qualifications but upon a procedural defect,^a or in other words, upon the Ninth Law, the force of which we shall have occasion to discuss elsewhere. It is in the light of this distinction that we should interpret the admonition of Augustine:^b “In such circumstances, the chief thought of the just man shall be for this consideration alone, namely: that the war be undertaken by one who may lawfully wage war. For not all persons may lawfully do so.”

      To be sure, in the majority of cases where writers employ the term “war,” they are referring not to private but to public war, which is more frequently the subject of discussion.^c Let us now turn our attention to this public aspect of war.

      The State

      Just as the power to wage war privately resides in the individual, so the power to wage war publicly resides primarily in the state,^d regardless of whether the subject-matter of the dispute was public from the beginning or whether it has been changed from a private into a public matter through a judicial process.^e Now, a state must be conceived of as something αὐταρκής, “self-sufficient,” which in itself constitutes a whole entity: something αὐτόνομος, αὐτόδικος, αὐτοτελής, as Thucydides would express it, that is to say, possessed of its own laws, courts, revenue, and magistrates; something endowed with its own council and its own authority, as is explained by Cajetan,^f and also by Victoria^g in the passage where the latter lays down the doctrine that there is nothing to prevent several sovereign and perfect states from being subject to one prince, or otherwise very closely bound together, by treaty.^h But if a given state lacked power to wage war, it would not be self-sufficient for purposes of defence.^a Consequently, it was permissible for the Roman people to decree war, as it was also for the Latins, the Etruscans, the Samnites, the Tarentines, and numerous other peoples of Italy who (so we are told) fought against the Romans;^b not to mention for the [28] moment the Carthaginians in Africa, the Spartans and Athenians in Greece, and many other nations. The same may be said of the ancient Hebrews, and of all the peoples who have lived sui iuris. Accordingly, Bartolus^c (following Cuneo) declares that war is just when waged between two free states, and that possessions captured in such a war become the property of the captors.

      The authority to undertake public wars also resides in magistrates.^d For when the state has once transferred its will into the keeping of the magisterial will, whatever is permissible for the state on its own behalf is likewise permissible for the magistrates on behalf of the state.^e The term “magistrate” should here be understood, of course, as referring to one who has been entrusted with a mandate for the waging of war. In a sense, however, all magistrates have been invested with this attribute, save in those cases that are specifically excepted, since the rendering of judgements and the defence of one’s jurisdiction, the issuance and the execution of decrees, pertain to one and the same office,^f and since such functions sometimes cannot be discharged without resort to war. Furthermore, punishment of domestic enemies and punishment of external enemies naturally pertain to one and the same power.^g Nevertheless, regard must be had for rank. Thus, in view of the fact that there is nothing which more gravely imperils the welfare of the state than war, there can be no doubt but that the state has willed that the power of making war shall be given into the hands of him in whom it has placed the greatest trust; and since the state has established various grades of magistracies, the clearest possible indication has been given of its will that, in a matter so grave, recourse shall first be had to the supreme magistrate, to the one second in rank if the supreme magistrate is not accessible or fails to discharge his functions, and so on, successively. For at all times the state desires both to be defended and СКАЧАТЬ