Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ of such conflicts is the same as that of private wars. To take one example, certain laws^a grant the power of direct self-defence and vengeance⁶ to private individuals, precisely on the ground that it is not easy to resist soldiers and collectors of public revenue through the medium of the courts; and these particular precepts accordingly represent what we retain of natural law—the vestiges of that law, so to speak—in regard to punishments.

      One point, however, still remains to be clarified. If the state is not involved, what just end can be sought by the private avenger? The answer to this question is readily found in the teachings of Seneca,^b the philosopher who maintains that there are two kinds of commonwealth, the world state and the municipal state. In other words, the private avenger has in view the good of the whole human race, just as he has when he slays a serpent; and this goal corresponds exactly to that common good toward which, as we have said, all punishments are directed in nature’s plan. The same point is expounded by Plutarch^c in this admirable statement: τῳ̑ δὲ (θεῳ̑) ἕπεται δίκη τω̑ν ἀπολειπομἑνων του̑ θείου νόμου τιμωρός. ᾑ̑ χρώμεθα πάντες ἄνθρωποι φύσει πρὸς πάντας ἀνθρώπους ὥσπερ πολίτας. “Justice walks with God, bringing vengeance upon those who trespass against the divine law; and in the natural order, all of us, as human beings, avail ourselves of that justice, as against all men in their civic character.” The explanation offered by Plutarch does not differ greatly from the contention of the Scholastics,^d that we ought to seek vengeance even for our own injuries if they are of such a nature as to redound to the detriment of the Church, that is to say, to the detriment of all good men.

      It would seem, indeed, that this care for the common good is in equal degree the proper function of every person, whether the injury in question has been inflicted upon that person himself or upon another, save for one difference, namely, that it may be more hazardous to execute vengeance for one’s own injuries, because the observance of a just moderation and a just purpose is difficult in such a case. For as a general [41′] rule that person does not move toward a goal but is driven (to borrow the phrase of Seneca),^a who, instead of entrusting his revenge toanother, rages alike in thought and in deed while exacting vengeance personally. It is for this reason that princes—the only persons under the established judicial system who cannot be avenged otherwise than by their personal intervention—are wont to be admonished that they should weigh out vengeance not with a view to inflicting pain but for the purpose of setting an example.^b

      Natural reason persuades us, however, that the faculty now vested in princes in consequence of the fact that civil power must have lapsed in some other possessor, formerly resided in private individuals. Moreover, whatever existed before the establishment of courts, will also exist when the courts have been set aside under any circumstances whatsoever, whether of place or of time. In my opinion, this very argument has served as the basis for the belief that it is right for private persons to slay a tyrant, or in other words, a destroyer of law and the courts. The opinion of the Stoics may be interpreted thus when they maintain that the wise man is never [merely] a private citizen, an assertion supported by Cicero,^c who points to Scipio as an example. Horace,^d in the lines, “And not consul of a single year,” &c. (from the Ode to Lollius), has the same principle in mind. Even Plutarch,^e despite the fact that he represents a different school of thought, does not disagree on this point. On the contrary, he declares that it is nature herself who designs the statesman (in a permanent sense, moreover) to serve as a magistrate; and he adds that the law always confers princely power upon the person who does what is just and knows what is advantageous, although that person will use the power so conferred only when the perfidy or negligence of the men elected to public office has brought matters to a perilous pass. When Caesar^a (he who afterwards became Dictator) was still a private citizen, he pursued with a hastily raised fleet the pirates by whom he had been captured on an earlier occasion. Some of their boats he put to flight, some he sank; and when the Proconsul neglected to punish the guilty captives, Caesar himself put out to sea again and crucified the culprits, influenced undoubtedly by the knowledge that the judge to whom he had appealed was not fulfilling the functions of the judicial office, as well as by the consideration that it was apparently possible to take such action guiltlessly upon the seas, where one is governed not by written precepts but by the law of nations.

      Reflection along the lines just indicated, gave rise to the view that circumstances could exist (though rarely, perhaps, owing to the weaknesses of human nature) in which it would be possible under the natural law for a private person to inflict punishment upon another person without sinning, and likewise possible for one private individual to serve in a sense as magistrate over another, but always on condition that the former should observe the scrupulousness of a judge even in the act [42] of chastisement. I see that Castrensis^b lends support to this theory with a wealth of arguments. For the laws, [according to Castrensis,] were devised to promote man’s welfare, not to injure him; and ordinary remedies do not serve in an extraordinary situation, nor is it forbidden that a person in peril shall take heed for himself and for others, just as one might when abandoned by the sailors in a shipwreck or by the physicians in illness. In cases of necessity and for the purpose of preventing the loss of our rights, many things are permitted which otherwise would not be permitted; and when one recourse fails, we turn to another. Such would seem to have been the opinion of the most learned men of all lands: for example, Connan, Vázquez, and Peter Faber. In the same list, one might include the name of Ayala, who cites Socinus Nepos^a in this connexion. [44]⁷

      Conclusion VII, Article I

      Accordingly, we conclude that a private war is undertaken justly in so far as judicial recourse is lacking.

      Public wars, on the other hand, arise sometimes from a defect of judicial recourse, and sometimes out of a judicial process.^b

      They originate in a defect of judicial recourse in the same way that private wars spring from that origin. Now, as Cicero^c explains, this [justification for extra-legal warfare] exists whenever he who chooses to wait [for legal authorization] will be obliged to pay an unjust penalty before he can exact a just penalty; and, in a general sense, it exists whenever matters do not admit of delay. Thus it is obvious that a just war can be waged in return, without recourse to judicial procedure,^d against an opponent who has begun an unjust war; nor will any declaration of that just war be required, a contention confirmed by the decision of the Roman college of fetials in regard to the Aetolians,^e [who had already committed warlike acts against the Roman people]. For—as Aelian^f says, citing Plato as his authority—any war undertaken for the necessary repulsion of injury, is proclaimed not by a crier nor by a herald but by the voice of Nature herself. The same view may be adopted with respect to cases in which the sanctity of ambassadors is violated or any other act disruptive to international intercourse is committed. For judicial procedure cannot be expected of those peoples who grant no one safe passage to and from their respective countries.

      We must bear in mind, however, a certain point already mentioned, namely the obligation to return to observance of the laws as soon as the peril subsides. For example, if any citizen of a foreign state manages to seize someone’s property, it will be permissible not only to recover that property but also to seize other goods by way of security before a judicial decision is rendered, subject to the condition that the goods are to be returned when the judgement has been executed.^a Nevertheless, whenever considerations of time so permit, all persons whatsoever who undertake to wage war, and all those against whom war is waged, ought to submit to a judicial settlement. [44′]

      Thus civil wars are justly undertaken in conformity with the Fifth or Seventh Rule and the Ninth Law; foreign wars, in conformity with the Twelfth Law and the Ninth Rule.^b Accordingly, in cases of civil warfare, a magisterial or state pronouncement against one citizen and in favour of another citizen or in defence of the state, СКАЧАТЬ