Commentary on the Law of Prize and Booty. Hugo Grotius

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      Solely because of one man’s frenzied guilt,

       The guilt of Ajax, son of Oileus,^e

      that is to say, because the Greek nation had not shown indignation at the shameful deeds of Ajax. Herein the institution of expiations has its source. For that matter, we find in Holy Writ^a outstanding proofs of the fact that expiation by whole nations for unpunished sins committed by individuals is a practice pleasing to God. Agapetus,^b in his Paraeneticus addressed to Justinian, explains this point as follows: ἴσον τῳ̑ πλημμελει̑ν τὸ μὴ κωλύειν τοὺς πλημμελου̑ντας λογίζου. κἂν γὰρ τις πολιτεύηται μἑν ἐνθἑσμως, ἀνἑχεται δὲ βιούντων ἀθἑσμως, σύνεργος τω̑ν κακω̑ν παρὰ θεῳ̑ κρίνεται. “Consider the failure to restrain transgressors as equivalent to the transgression. For a person who administers the state justly in other respects but shows tolerance toward those whose lives are unjust, is in God’s judgement an abettor of the wicked.”

      On the other hand, individual citizens are also bound by the act of the state. Indeed, it is in keeping with natural equity, since we derive advantages from civil society, that we should likewise suffer its disadvantages.^c The interpreters of the civil law^d have expressed varying opinions in regard to this point, but always on the basis of that law; for even though people grouped as a whole and people as private individuals do not differ in the natural order, a distinction has arisen from a man-made fiction and from the consent of citizens.^e The law of nations, however, does not recognize such distinctions; it places public bodies and private companies in the same category. Now, it is generally agreed that private societies are subject to the rule that whatever is owed by the companies themselves may be exacted from their individual partners. Furthermore, it is obvious that the state is constituted by individuals^f just as truly as the magistrate is constituted by the state,^g and that therefore the said individuals are liable in the same fashion as the state in so far as concerns reparation for losses, even when the claim in question is founded on wrongdoing. Far be it from us to say, however, that the lives of innocent citizens are ἀντίψυχα, forfeited, or liable to punishment,^a for offences committed by the state; especially since the state itself can be punished as such. For the life of a state can be weakened (as in cases where the state becomes a tributary, a practice sanctioned by divine law)^b and, in a sense, annihilated. πόλεως γὰρ ἐστι θάνατος ἀνάστατον γενἑσθαι;^c “A city dies when it is completely laid waste.” Such was the fate of Carthage and of other cities which were razed by the enemy’s plough^d and which suffered dissolution of the body politic. But it is evident that pecuniary penalties owed by the state may be exacted from the [48′] subject, since there would be no state if there were no subjects. St. Thomas^{e 16} declares that those persons who are essentially possessions and parts, so to speak, of another entity—a description which ought to cover subjects no less than children and slaves—may be penalized in the place of that other entity for losses suffered. Yet subjects are frequently free from guilt, as we have already observed. This is indeed true; but the very Scholastics^f above cited [St. Thomas and Sylvester] teach us that punishment, while it is never imposed unless guilt exists, often is imposed where there is no guilt on the part of the person punished, though never without cause. In the case under discussion the cause is obvious. Here we have the sole argument supporting that custom of reprisals, practised not only in the modern world but also by nations of ancient times, known as pigneratio [seizure of pledges], or as ἀνδροληψιω̑ν [seizure of hostages for vicarious punishment]. For what is owed to me by the citizen of a state is owed by the state, too, when the latter does not enforce the claims of justice; and what is owed by a state, is owed by its individual citizens. This is a point which has not escaped the observation of Bartolus.^a An additional consideration is that of convenience, since it is not easy for creditors to obtain their rights in any other manner, whereas it is less difficult for citizens themselves to resort to suits at law against one another, exacting reparation for their respective losses from the individual at fault.^b

      Conclusion VII, Article III, Part I

      In short, we may summarize the restrictions of form in this matter by saying that, A war is justly waged by voluntary agents in so far as it remains within the sphere of the right contested and is waged among the persons obligated with respect to that right.

      New explanation

      The discussion of certain special cases will enable us to clarify this conclusion, particularly in regard to the subjects of public enemies, who constitute, as a rule, the chief cause for dispute among writers^c on the law of war. Accordingly, we should ascertain the extent to which this famous passage from Euripides^d is true:

      καθαρὸς ἅπας τοι πολεμίους ὃς ἂν κτάνῃ.

      That man is undefiled and dutiful Who slays a public enemy. . . .

      We must decide, too, whether or not Tacitus^e was right when he wrote: “In time of peace, causes and merits are taken into consideration; when war breaks out, the innocent and the guilty fall side by side.” For if we apply this generalization specifically to the subject of the laws of prize and booty, the said laws will become more readily understandable.

      In so far as bodily attack is concerned, it is permissible—in accordance with the laws of the first order [Laws I and II], which do not take into account the intent of one’s adversary—to make an attack upon all enemy subjects who resist, whether knowingly or in ignorance, the execution of our rights.^a For such subjects, without exception, are “bringing about” an injury, even though that injury may not be “voluntary.”¹⁷ This assertion is expressly confirmed by divine law,^b which decrees the slaughter of the whole adult population of certain cities taken by storm, although many of the adults in question must be innocent. Conversely, the same rule will be applicable in justifying the defence of a city. Thus Augustine^c has said: “Nor does that man incur guilt for another’s death, who has surrounded his property with walls which have been utilized in causing someone to be wounded and to perish.”

      Nevertheless, if there are some individuals who can be separated from the whole body of the enemy and who do not impede the execution of our rights,^d such individuals should of course be spared altogether from attack upon their persons. Cicero^e offers the following admonition: “Furthermore, we ought to accord a favourable reception to those who, having laid down their arms, take refuge in the good faith of our generals, even though the battering-ram has struck through their walls.” Moreover, scholarly authorities have expressed the opinion that this is precisely the interpretation which must be given to the pronouncement of Celsus,^f namely, that by the law of war we “receive”¹⁸ deserters, that is to say, those persons who have abandoned the enemy ranks. Yet again, [49] just as the precepts of equity and those of divine law,^a that infallible guide of equity, direct us to spare all persons in a surrendered city, so also they direct that in the case of a city taken by assault, all those whose lives do not impede the execution of our rights shall be spared in so far as is possible. Thus Seneca, in his tragedy Octavia,^b suggests that the title “foe” cannot be applied to a woman. Similarly, Camillus^c asserts that he bears no weapons against persons of that tender age which is spared even when cities are captured. Alexander,^d too, declares: “I am not wont to wage war against captives and women; he whom I hate must bear arms.” The inclusion of a reference to “captives” is commendable; for that other [war-like ruler, Pyrrhus,] speaks falsely and in the excessively ferocious fashion СКАЧАТЬ