Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ the quarrel was not with an enemy of the [Roman] state, such as Hannibal, but with a fellow citizen. Seneca^e subtly indicated the existence of the same distinction, when he spoke of “wars declared upon neighbouring nations, or wars carried on with fellow citizens.” For it is not customary, nor is it necessary, to declare a civil war; and this statement is also applicable to warfare against tyrants, robbers, pirates, and all persons who do not form part of a foreign state. In so far as foreign wars are concerned,^f the Twelfth Law and the Ninth Rule above mentioned do provide for that declaration of hostilities which plays such an outstanding part in the law of war, and with respect to which the ancients held varying opinions.

      As for our own opinions, this whole problem will be resolved on the basis of the preliminary material which we have already presented.

      Quite properly did the soldier Thraso keep matters under his own management, [instead of allowing his companions to employ force,] in the episode described by that ἠθικώτατον [highly moral] author, Terence,^a whose work teems, so to speak, with pithy sayings. I refer to Thraso’s admonition:

      The wise man first tries every verbal⁸ means, Before he takes up arms. How do you know She will not yield without the use of force?

      Euripides,^b too, had already written:

      λόγοισι πείθων, εἰ δὲ μή βίᾳ δορός.

      I shall achieve my aim through words; or else, Should words fail, force will serve my ends. . . .

      Cicero^c expressed the same thought in fuller form when he said: “Since there are two ways of settling a contested question—first, by discussion, and secondly, by violence—[and since the former method is characteristic of human beings, the latter characteristic of brutes,]⁹ we should resort to violence [only] if we are not permitted to avail ourselves of discussion.” The following statement from the works of Thucydides^dmay also be cited: ἐπὶ τὸν δίκας δίδοντα οὐ νόμιμον ὡς ἐπ’ ἀδικου̑ντα ἰἑναι; “It is not lawful to proceed against him who is prepared to accede to a judicial settlement, as one would proceed against an unjust person.” The words of Theodoric^a have a similar import: “The time for taking up arms arrives when justice cannot find admittance on the opposing side.” This principle constitutes in part the basis of the above-mentioned doctrine of the Scholastics,^b namely, that he who is unwilling to give satisfaction is justly attacked in war. We see that this was the order of events accepted by the Israelites,^c who desired that the tribe of Benjamin should inflict punishment upon the men of Gibeah, and declared war upon that tribe only when their request was not granted.¹⁰ In like manner, Diodorus^d described the war of Minos against the Athenians as “just,” because the request of Minos for justice against the slayers of his son had not been granted.

      New explanation

      Certainly resort to arbitration is an honourable procedure, but arbitration is a voluntary, not a necessary measure; for it is common agreement that gives the arbiter his authority, and no one is compelled to entrust his rights to this or that person. We are dealing, however, with necessary measures. It is clear, then, on the basis of the Ninth Rule, that a twofold obligation must necessarily be met by him who is about to undertake a war.

       Clarigatio or Rerum repetitio

      For, in the first place, an opportunity to apply judicial procedure must be offered to that state which is the defendant, or whose citizen is the defendant, in a given case; and furthermore, if the said state fails to discharge this duty, the state which has itself been injured, or whose citizen has been injured, must pass judgement. Formerly, in the fetial law of the Romans (a people who certainly have never been surpassed in scrupulous attention to that phase of law), this preliminary procedure was called clarigatio [a demand for redress and, at the same time, a declaration of war to be waged if redress was not received within thirty-three days], or rerum repetitio [reclamation of goods or rights].^a This latter expression (as Servius^b well says) covers every possible case of injury, inasmuch as both res [things, goods] and repetitio [reclamation] are general terms. Now, that which is claimed is threefold: restitution, satisfaction, surrender; and the third item is not of an unmixed character, since it may consist in simple surrender, or it may involve punishment. In other words, these three claims are founded respectively upon the Second Law as opposed to the Fourth, upon the Sixth Law and upon the Fifth. As for cases in which the First Law conflicts with the Third, we have already observed that in such circumstances there is no necessity for [45] judicial measures.

      The second necessary step is the order for war, or decree condemning the opposing side, issued by the state which has been injured or whose citizen has been injured, or by a magistrate of that state.^c From this practice certain formulas arose. The first ran as follows: “I bear witness that the said nation is unjust and does not make just reparation.” Another formula was couched in the following terms:^d “‘[What is your opinion¹¹] regarding the things, the suits, the causes, concerning which formal claims have been presented by the pater patratus¹² of the Roman People of the Quirites to the pater patratus of the Nation of the Ancient Latins and to the men of the Ancient Latins, which things the latter nation has not paid, delivered nor acted upon, and which should have been delivered, acted upon and paid?’ ‘I hold that these things should be sought in a blameless and righteous war, and to that course I lend my vote and approval.’” A third formula was worded thus: “Because the tribes of the Ancient Latins have committed acts and offences adverse to the Roman People of the Quirites, and because the Roman People of the Quirites has commanded that war be made on the Ancient Latins and furthermore the Roman Senate of the Quirites has voted, agreed upon, and decreed the waging of war against the Ancient Latins, I, therefore, together with the Roman People, declare and make war upon the Nation of the Ancient Latins.”

      To be sure, these two steps (rerum repetitio and the declaration of war) may be taken either separately or as a combined action: separately, if (in the manner above indicated) they are executed singly and with an interval of time between; as a combined action, if the injured state, on the occasion when it offers the other party an opportunity to employ judicial measures, appends a declaration of the judgement to be pronounced by the injured party itself in the event that the other does not judge justly. In the latter case, the formula used runs more or less as follows:^a “That they themselves will repel the injury with might and main, unless the said injury is wiped out by its own authors.” Or it may take this form:^b “Unless they forestall him by inflicting the death penalty upon the wrongdoers, he will resort to indiscriminate slaughter.” Theseus, too (according to Euripides),^c followed just such a procedure when he instructed the herald to transmit these demands to Creon:

      Θησεύς σ’ ἀπαιτει̑ πρὸς χάριν θάψαι νεκρούς,

       συγγείτον’ οἰκω̑ν γαι̑αν, ἀξιω̑ν τυχει̑ν,

       φίλον τε θἑσθαι πάντ’ Ἐρεχθειδω̑ν λεών.

       κἂν μὲν θἑλωσιν αἰνἑσαι, παλίσσυτος στει̑χ’. ἢν δ’ ἀπιστω̑σ’, οἵδε δεύτεροι λόγοι. κω̑μον δἑχεσθαι τὸν ἐμὸν ἀσπιδηφόρον.

      Theseus, ruler of a neighbouring land, Asks for the dead that he may bury them. To win Athenian friendship, grant this plea. If it be granted, herald, turn thou back; If disobeyed, СКАЧАТЬ