Commentary on the Law of Prize and Booty. Hugo Grotius

Чтение книги онлайн.

СКАЧАТЬ supported by all of the theologians and experts in law.^a For they maintain that what is known as “prize,” or “booty,” becomes the property of him who seizes it in a just war, and that it should be understood that such prize or booty is taken not only from the goods of him who fights unjustly, but also from those of all his subjects (women and children not excepted) until complete satisfaction has been given to the just belligerent for that which is due him, whether because of an injury or offence inflicted, or because of a [50′] loss occasioned to him or his and the factors attendant upon that loss; or else until the enemy shall be prepared to give satisfaction, or shall make known his readiness to comply with the law. For the rest, Cajetan^b and (among the Spaniards) Covarruvias^c declare that the question of whether or not a given individual is innocent, is not taken into account in this connexion. Yet another Spaniard, Victoria,^d holds that if the enemy refuses to make restitution of the goods wrongfully taken away, and if the injured party cannot very well secure reparation from some other source, he may obtain satisfaction from any source whatsoever, whether from the guilty or from the innocent, so that neither merchants nor farmers are excepted. That is the view adopted by Victoria. As for the opinion of other authorities^e who hold that even in this matter forbearance should be shown to sailors and merchants, these very authorities explain that they are referring to sailors cast upon a foreign shore by the force of a tempest, and to foreign merchants only or those who are on their way to public fairs. Merchants who are subjects, however, are not spared even in the case of reprisals.

      Now, the views above set forth are valid, save in cases where security has been promised to certain individuals^a or classes of persons or localities, either through pacts or through a tacit usage prevailing on both sides: that is to say, on a basis of good faith, a matter with which we shall deal presently. Thus we read that the Indians spared the farming class. Again, the Lateran Council^b decreed that a suitable security should be enjoyed by priests, monks, converts, pilgrims, merchants, and rustics who were journeying to or fro or else engaged in agricultural labours, and that the same security should be extended to the animals used by rustics in ploughing or in transporting seed to the fields. With respect to this order, too, the proper interpretation of the term “merchants” includes foreigners only. Cajetan^c says: “I interpret the word ‘merchants’ as referring, not to traders who reside within the place in question, but to those who are guests or transients there. For it does not seem to me that resident merchants are in any better position than artisans.” As a matter of fact, the canonists^d deny the acceptance in present-day practice of the entire edict of pontifical law (known to them as the “Canonical Truce”) which we have just cited; and certainly that edict is not based upon a permanent cause. Nevertheless, it is obviously true that the property of others, when it does not belong to the foe (that is to say, property belonging neither to allies nor to subjects of the foe), even if it be located in enemy territory, may no more be acquired by those who seize it, than loaned or stolen property found among the goods of a debtor may be acquired by the creditor. [50′ a]

      New explanation

      At this point, we may consider in passing a question frequently raised and extensively discussed by other writers,^e namely: What conduct is permissible for an enemy in regard to foreigners found among that enemy’s adversaries, and in regard to those [foreigners] who are lending aid to the said adversaries in the form of commodities? In the first place, it is quite evident that the locality where a person happens to be found is a consideration of no weight in this connexion; for the factor of locality does not in itself constitute a source of liability, whereas those individuals whom it is permissible to despoil, must indeed be persons who are liable [to local obligations].^a Therefore, sojourners are proper objects of warfare only if they form a part of the opposing state in the same sense as other subjects. The term “part” should be interpreted, moreover, as referring (in so far as the present question is concerned) to individuals whose legal status is such that they can be compelled to defend the said state and to pay tribute to it. For, as Agathias^b rightly explains, a given person is to be regarded as an enemy, not because of fortuitous circumstances pertaining to his origin, but on the basis of his zeal and with reference to whether or not he does those things which are pleasing or helpful to the foe. As for the conveyors of commodities, it has been established by the theologians and jurists that no individual is responsible for damage following upon his acts, unless that individual is the one who caused the damage; and also that no one is responsible for damage preceding his acts, unless he himself served to impede restitution. Nor does it necessarily suffice that such a person shall have furnished cause in any way whatsoever; on the contrary, either evil intent or, at least, guilt must be involved. Thus he who has conveyed arms to the enemy, or any other article at all that is appropriate for use in warfare, is responsible to the party waging a just war,^c in so far as it is evident that the said conveyor furnished cause for the damage following his act, or that he hindered the process of reparation for damage previously done. For, inasmuch as his act is adapted to the purposes of war, he is not guiltless after aiding the unjust belligerent, however thoughtlessly he may have done so. In other words, his conduct is similar to that of a man who, moved by pity,^a has delivered a debtor from prison, or pointed out means of flight to a criminal, [or caused unjust losses to the side he opposes when acting as]²¹ advocate in a lawsuit;^b for, according [50′ a′] to the opinion invariably expressed by learned authorities, the perpetrator of any of these acts is in every case bound by an obligation to make reparation. This is the purport of the reply given by Amalasuntha to Justinian, to the effect that they who aid the enemy by supplying him with the necessities of war, are to be regarded as enemies.^{c 22} Again, if the commodities supplied should be of a nature not essentially directed to the purposes of war, but nevertheless such as to furnish the unjust party with a means of prolonging the conflict, then the same conclusion will hold true, always provided that the conveyor was in a position where he ought to have been aware of that fact. If he was not in such a position, he should not be held culpable unless the state waging a just war has formally notified him of this very circumstance, appending proof of the justice [of its cause].^d An outstanding argument in support of this distinction can be drawn from the words of Seneca,^e who holds that in the repayment of benefits received from a tyrant moderation should be observed, in accordance with the following rule: “If the benefit bestowed upon the tyrant by me [in return for benefits received], is likely neither to increase his power to do general harm, nor to strengthen the power already possessed by him; and if the benefit in question be one that enables me to repay him without causing public disaster, I shall render that payment.” A little further on, Seneca adds: “I shall not provide money which will serve him as wages to maintain a bodyguard.” And again: “I shall not furnish him with soldiers and arms.” The same author declares that he would send the tyrant pleasure-boats, but would refuse to send him triremes [i.e. warships]. In short, the greater the estimate of the loss, or of the impediment to the process of compelling the enemy to obey the law, that has resulted from such services, the further one may proceed in seizing spoils by way of reparation without resorting to additional judicial measures; for that very attempt to obtain reparations is in a sense one of the consequences of the war.

      Corollary I

      Returning from this digression to our discussion of just forms of warfare against subjects, we find that the observations already assembled on this point, constitute in their entirety an opinion which may be [50′] impressed upon our memory in the following terms: Bodily hurt is justly inflicted upon subjects in so far as they either deserve it because of wrongdoing,^a or impede (albeit in ignorance) the execution [of justice]; but prize or booty is justly taken from all subjects, at any time, up to the full amount of the debt owed. [51]

      Now that we have seen how the laws of the second order [Laws III and IV] may be reconciled with the waging of wars, let us turn our attention to the Third Rule.

      In accordance with this rule, it is our duty to fulfil, regardless of possible harmful consequences to ourselves, whatever promises we have made, in relation of course to matters under our control. This admonition is not СКАЧАТЬ