Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ would seem to be supported by the Sacred Scriptures. For I find in them no reference to the existence of any civil state in the period following the Flood, during which the survivors of the human race were included in a single household, yet I do find reference to a law of that period which commands that evil deeds be punished: “Whoso sheddeth man’s blood, by man shall his blood be shed.”^a

      Perhaps mention should also be made of the fact that this law is subordinate to another, [laid down on the same occasion],⁵ which delivers the beasts into man’s service. For when the theologians^b inquire into the origin of punishments, they avail themselves of an argument based upon comparison, as follows: all less worthy creatures are destined for the use of the more worthy; thus, despite the fact that the beasts were indeed created by God, it is nevertheless right that man should slay them, either in order to convert them to use as his own property, or in order to destroy them as harmful, both of these purposes being mentioned in the Scriptural passage to which I have referred; similarly, so the theologians contend, men of deplorable wickedness, for the very reason that they are of such a character—stripped, as it were, of all likeness to God or humanity—are thrust down into a lower order and assigned to the service of the virtuous, changing in a sense from persons into things, a process which constitutes the origin of slavery in the natural order, too; and therefore, it is permissible to destroy such men, either in order that they may be prevented from doing harm or in order that they may be useful as examples. Seneca^c made this very point, when he wrote: “so that they shall serve as a warning to all, and so that the state may at least derive profit from the death of those who were unwilling to be of use when alive.” For we shall presently show that Seneca’s remark concerning the state is applicable to the whole body of mankind. Democritus, too, in his discussion of natural law, draws an example from the beasts to justify the punishment of the guilty. Thus he^d says: κατὰ δὲ ζῴων φόνου [40] καὶ μὴ φόνου ὥδε ἔχει. τὰ ἀδικἑοντα καὶ θἑλοντα ἀδικει̑ν, ἀθω̑ος ὁ κτείνων. καὶ πρὸς εὐ̑ ἐς οὐ̑ν του̑τo ἔρδειν μα̑λλον ἢ μή. “As to the question of whether or not animals should be slain, the matter stands as follows: whosoever shall slay animals that are doing harm or desiring to do harm, is free from guilt; indeed, it is even more righteous to have committed such an act of slaughter than to have abstained therefrom.” Farther on, the same writer^a declares: κτείνειν χρὴ τὰ πημαίνοντα παρὰ δίκην πάντα περὶ παντός; “It is proper in every way and for all persons, that those creatures whose harmfulness exceeds the bounds of law, should be slain.” Yet again, he makes the following observation:^b ὅκως περὶ κιναδἑων γε καὶ ἑρπετἑων γεγράφαται τω̑ν πολεμίων οὕτω καὶ κατὰ ἀνθρώπων δοκει̑ μοι χρεὼν εἰ̑ναι ποιει̑ν; “Furthermore, it would seem that the very acts which we have mentioned in connexion with foxes and harmful serpents are proper in connexion with human beings, also.” And to this he adds:^c κιξάλλην καὶ λῃστὴν πάντα κτείνων τις ἀθω̑ος ἂν εἴη καὶ αὐτοχειρίᾳ, καὶ κελεύων, καὶ ψήφῳ; “That person is innocent who slays a thief and robber in any manner whatsoever, whether by his own hand, by his command, or by his vote of condemnation.” One might suppose that the comments of Democritus were read by Seneca,^d who says: “when I give the order for a criminal to be beheaded [. . .], I shall look and feel exactly as I do when killing a snake or any poisonous creature.” In another passage, Seneca^e observes: “We would not destroy even vipers and water-snakes, or any creature that does harm by biting or stinging, if we were able (as we are in the case of other animals) to tame them, or to arrange that they should not be a source of danger to ourselves or to our fellow men; neither, then, will we inflict harm upon a human being because he has sinned, but rather in order to prevent him from sinning. . . .”

      In the light of the foregoing discussion, it is clear that the causes for the infliction of punishment are natural, and derived from that precept which we have called the First Law. Even so, is not the power to punish essentially a power that pertains to the state? Not at all! On the contrary, just as every right of the magistrate comes to him from the state, so has the same right come to the state from private individuals; and similarly, the power of the state is the result of collective agreement, as we demonstrated in our discussion of the Third Rule.^a Therefore, since no one is able to transfer a thing that he never possessed, it is evident that the right of chastisement was held by private persons before it was held [40′] by the state. The following argument, too, has great force in this connexion: the state inflicts punishment for wrongs against itself, not only upon its own subjects but also upon foreigners; yet it derives no power over the latter from civil law, which is binding upon citizens only because they have given their consent; and therefore, the law of nature, or law of nations, is the source from which the state receives the power in question.

      It will be argued, however, that punishments are ordained solely for the good of the state. But this assertion may be repudiated. For the cause of punishments is a natural cause, whereas the state is the result, not of natural disposition, but of an agreement. Human society does indeed have its origin in nature, but civil society as such is derived from deliberate design. Aristotle^b himself, the author chiefly relied upon by those who hold the contrary view, writes as follows: ἄνθρωπος γὰρ τῃ̑ φύσει συνδυαστικὸν μα̑λλον ἢ πολιτικόν. καὶ ὅσῳ πρότερον καὶ ἀναγκαιότερον οἰκία πόλεως, καὶ τεκνοποιία κοινότερον ζῴοις; “For man is by nature a conjugal creature to a greater extent than he is a political creature, in that the family is in truth an earlier and more necessary institution than the state, and the procreation of children a more general characteristic of the animal kingdom [than the gregarious instinct].” This conclusion is also borne out by sacred history. For God, who created all things in the image of His own perfection, created not a state but two human beings. Thus human society already existed at that time, but the state did not exist. Accordingly, as the numbers of mankind steadily increased, natural power was vested (so Homer^a tells us) in the heads of households.

      θεμιστεύει δὲ ἕκαστος

       παίδων ἠδ’ ἀλόχων.

       For wives and children, each man made the laws.

      Therefore, it is reasonable to assume that these household heads had external as well as internal jurisdiction for their own protection and that of their families; and Seneca,^b referring to this attribute, has called them “domestic magistrates.” Now, whatever there was of law at the world’s beginning, prior to the establishment of states, must necessarily have continued to exist afterwards among those human beings who did not set up courts for themselves, and for whom (in Seneca’s^c phrase) “might is the measure of right.” Quintilian^d also makes this very point. Similarly, Nicholas of Damascus^e informs us that among the Umbrians it was the custom for each individual to avenge himself by his own hand. Moreover, the same custom persists to a certain extent among the [41] Sarmatians of the present day. Indeed, we may regard those single combats to which recourse is had even now in many localities, as relics of the said custom and as exceptions (in a manner of speaking) to the Ninth Law. The ancient Romans, too, granted powers of life and death to masters, fathers, husbands, and blood relations.

      The power of execution conferred upon private individuals by a special law springs, of course, from a different cause. For the wars that result when arms are taken up in such circumstances, should perhaps be called public rather than private, since the state undertakes СКАЧАТЬ