Commentary on the Law of Prize and Booty. Hugo Grotius

Чтение книги онлайн.

СКАЧАТЬ means whatsoever. As Seneca^c says, “Necessity, the great defence of human weakness, breaks down every law.” Indeed, as we observed at the outset,^d necessity is the first law of nature. Similarly, a claim may be made upon property that is being held in good faith; that is to say, although the possessor is not voluntarily transgressing the Fourth Law, nevertheless the Second Law may properly be applied against him. Furthermore, it is possible that, owing to any one of several causes, the possessor of certain property may owe me a debt of which he himself is unaware. This situation may arise, for example, if he is an heir. In such circumstances, he is violating the Sixth Law by failing to pay the debt, and despite the fact that the violation is not voluntary, the benefit of that law should not be denied to me. For what could be more unjust than the loss of one person’s right because of another person’s error? Moreover, the foregoing observations are applicable in warfare just as they are in legal disputes. [32]

      Volition is taken into account only in connexion with the Fifth Law. Thus offences against this precept are not punished unless they were voluntarily committed. The reason for the exception lies in the fact that evil is repaid to the guilty person in proportion to the good seized by him in an unrighteous manner,^a that is to say, through another’s ill; but no person can be judged to have enriched himself by means of another’s loss unless he was voluntarily the author of that loss; and therefore, not every instance of ἄδικον [generic wrong], but only ἀδίκημα or ἀδικία [intentional or habitual wrongdoing], can appropriately be viewed in this light. Later on, we shall see how these different forms of injury give rise to different modes of execution.^b

      For the present, it is clear that those persons who bring about injury in any way whatsoever are liable to prosecution in war, if they are liable to legal prosecution. For the law, according to Demosthenes,^c is ἐπανόρθωμα τω̑ν ἑκουσίων καὶ ἀκουσίων ἁμαρτημάτων; that is to say, law corrects not only voluntary but also involuntary sins. Hence it follows that not merely persons who act with free-will, namely, principals and allies, but instruments, too, or in other words, subjects, are included under the head of “enemies.” For the subject, in the course of obeying commands, even if he does not “act with wrongful intent” (ἀδικει̑), at least “brings about a wrong” (ποιει̑ τὰ ἄδικα).^d It is to [enemy] subjects that the following ritualistic phrases of the Romans^a refer: (in the declaration of war) “I declare and make war upon the nations of the ancient Latins, and the men of the ancient Latins”; (in the inquiry^b addressed to the people) “Whether they wished and ordered that war be declared upon King Philip and upon the Macedonians under his rule”; (and in the actual decree^c mentioned by Cincius in his discussion of military affairs) “The Roman people have declared war against the Hermandulan nation and against the men of that nation.” Allies, too, are included in the formula,^d “Let the enemy be that one, and whatsoever persons are within his garrisons.”

      Another point that should be brought out, is this: the same principle that we laid down in connexion with rights holds good in regard to injuries, by a reverse process of reasoning; that is to say, a certain form of injury may be suffered during the very execution of a right. For he who resists a just execution, whether knowingly or ignorantly, causes an injury, since he either keeps back that which belongs to another or fails to do that which he is under an obligation to do, and since, moreover, he is also offending one whom he ought not to offend. Therefore, it is proper to proceed against a state in war, not only when that state itself commits the original injury, or when its magistrates do so on its behalf and by its authority^e (for we commit those acts, too, which we perform through another), but also when the said state protects citizens who have committed an injury; and it is proper to proceed in like manner against the citizens, in their turn, when they fight in defence of a state or magistrate that is the author of an injury.^f In other words, inferior laws such as the Seventh and Eleventh (being derived, as they are, from the Third and Fourth Rules), when preferred to any of the first six [32′] laws, which are precepts of nature and of the law of nations (precepts based, that is to say, on the First and Second Rules), result not in the execution of rights but rather in the perpetration of injuries.^a

      Conclusion VI, Article II

      In the light of the facts above established, war is just for those who wage it voluntarily against individuals, or against a state, by whom, or by which, or by whose magistrate, an injury has been brought about;^b and it is also just when waged against a state that protects a citizen who is the author of an injury, or against the allies and subjects, in their capacity as such, of any opponent who brings about an injury.

      Strictly speaking, as was noted above, the question of right does not arise where the actions of subjects are concerned; at least, it does not arise in so far as the source of these actions lies outside of the subjects themselves. For we have already intimated that the fundamental factor involved in this question is that of volition, which is directed by rational understanding, a point confirmed by the theologians; and instruments act in accordance with another’s volition. On the other hand, account must be taken of the fact that subjects, although they are instruments, are nevertheless human beings; but human beings—save of course for certain actions imposed by nature—do not act otherwise than of their own volition. How, then, shall we reconcile these statements?

      New explanation

      We may do so by arguing as follows: the will of subjects is ruled by the will of those who are in command, as is proper wherever instruments are concerned, but with the proviso that reason must not rebel, a proviso which in itself constitutes a phase of justice. Let us illustrate this argument by considering the character of slaves, a subject discussed at length by Aristotle.^c Although some persons maintain that the slave is completely devoid of any capacity for virtue or even for justice, while others concede to him the same capacity for virtue as that which resides in a free man, the above-mentioned philosopher draws an admirable distinction, explaining that the virtue desirable in a slave is not the perfect form required of one who commands but rather the form necessary for servile purposes, and that this virtue is, moreover, very limited in extent. Inasmuch as slaves partake of the rational faculty, they may not be deprived of all claim to virtue; yet they cannot be placed on a level with free men, since they do not possess τὸ βουλευτικόν, “the deliberative faculty.” Accordingly, the point I set out to make is this: the slave does exercise reason in a partial degree, and in part he does not. The [33] well-known verses of Homer^a are remarkably appropriate in this connexion:

      Ἥμισυ γὰρ τε νόου ἀπαμείρεται εὐρύοπα ζεὺς

       Ἀνδρω̑ν, οὓς ἂν δὴ κατὰ δούλιον ἠ̑μαρ ἕλῃσι.

      Jove from this class of men takes half the mind, Willing that they should lead the life of slaves.

      Similarly, the slave is in a partial sense capable of virtue, and partially incapable thereof.

      ἥμισυ τη̑ς ἀρετη̑ς ἀποαιρει̑ δούλιον ἠ̑μαρ

      Forced into bondage he doth lack the half Of virtue.. . .⁶

      Furthermore, this same principle that is applicable to slaves, may be applied to other subject persons. For, as the author first cited [Aristotle]^b asserts, the virtue of a child, οὐκ αὐτου̑ πρὸς αὐτόν ἐστιν, ἀλλὰ πρὸς τὸν τἑλειον καὶ ἔγούμενον; “is not personal and relative to the child himself, but relative rather to the individual who is set in authority over him as a more fully developed being.” The distinction in question also СКАЧАТЬ