Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ situation has arisen that is truly novel, and scarcely credible to foreign observers, namely: that those men who have been so long at war with the Spaniards and who have furthermore suffered the most grievous personal injuries, are debating as to whether or not, in a just war and with public authorization, they can rightfully despoil an exceedingly cruel enemy who has already violated the rules of international commerce. Thus we find that a considerable number of Hollanders (a people surpassed by none in their eagerness for honourable gain) are apparently ashamed to lay claim to the spoils of war, being moved forsooth, by compassion for those who in their own relations with the Dutch have failed to observe even the legal rights of enemies!

      Since this state of affairs is due partly to the malicious falsehoods of certain persons insufficiently devoted to the commonwealth, partly to the scruples and somewhat superstitious self-restraint of other individuals, it has seemed expedient that we should undertake to enlighten the artless innocence of the latter while combating the malice of the former. For no discerning person can be unaware of the consequences toward which these debates are tending, nor of the hostile wiles intermingled with them. That is to say, if the Dutch cease to harass the Spanish [and Portuguese]¹ blockaders of the sea (which will certainly be the outcome if their efforts result only in profitless peril), the savage insolence of the Iberian peoples will swell to immeasurable proportions, the shores of the whole world will soon be blocked off, and all commerce with Asia will collapse—that commerce by which (as the Dutch know, nor is the enemy ignorant of the fact) the wealth of our state is chiefly if not entirely sustained. On the other hand, if the Dutch choose to avail themselves of their good fortune, God has provided a weapon against the inmost heart of the enemy’s power, nor is there any weapon that offers a surer hope of liberty.

      Yet there is some reason to congratulate the fatherland on these erroneous scruples, since it is a rather strong indication of Dutch innocence that Hollanders should hesitate even before committing acts sanctioned by the moral law of nations and by the precepts of public law. Justice can never be found wanting, nor can there be a lack of good faith, in those who proceed so carefully and with hesitant tread (so to speak) in exercising this right which is most certainly possessed by all peoples and which would seem questionable to no one save the Dutch themselves.

      It is, however, indubitably true that virtue, at both extremes, [2′] borders upon vice.^a While this fact is fairly obvious in some cases, in others it more easily escapes notice, owing to the magnitude of the evil opposed to the particular virtue involved. For example, because of our aversion to a wrathful disposition, we so disregard the stolidity which constitutes the opposite extreme of vice, and which the Greeks^a called ἀοργησίαν [lack of rancour], that this quality has not even found a Latin name. Assuredly, too, the consuming greed for gain denoted by the Greek term αἰσχροκερδεία [sordid covetousness], is a vile disease of the spirit, characterized by complete disrespect for law and morality; yet it is possible to sin in contrary fashion, neglecting opportunities to promote one’s own interests, through an anxious and overnice avoidance of things not essentially dishonourable. For the Socratists show that the wise and good man is φῐλοκερδής, that is to say, by no means disregardful of his own advantage. The philosophers likewise deny that justice is οἰκοφθόρον and πτωχοποιόν, “a destroyer of domestic property” and “the author of indigence.”^b As Lucilius^c has correctly observed, it is indeed

      A virtue to be mindful of restraints

      And moderation, in the search for gain,

      but it is also

      A virtue to be able with one’s wealth

       To pay one’s debt in full. . . .

      Even in this [abstention from greed], we should guard against excess. In other words, let us not imagine that to be vicious which is devoid of vice; and let us not be unjust to ourselves while shunning injustice toward others. The weapon that flies far past the target, misses the mark no less than the weapon that falls short of its aim. Both extremes are blameworthy; both are tainted by error. The fault of those persons whose hearts have grown hardened to every evil deed is perhaps the more shocking and execrable (though one can also conceive of a disposition to [3] take offence at entirely inoffensive things, which may be described as excessively delicate and scrupulous); but impious irreverence for justice and equity is sufficiently revealed through its own infamy because it is repugnant to human nature, whereas there is more need to guard against that other form of vice, the form rooted in a sense of superiority, for the reason that it bears no distinctive mark and therefore easily assumes the aspect of virtue, under which guise it creeps into our hearts. Such is the vice epitomized in the old saying as “hunting for knots in a bulrush” [i.e. seeking for trouble where it does not exist].

      Justice consists in taking a middle course.^a It is wrong to inflict injury, but it is also wrong to endure injury. The former is, of course, the graver misdeed, but the latter is also to be avoided.

      Owing, however, to the fact that we are more frequently impelled toward the first extreme, the precept of regard for others is usually held up to us with excessive zeal, the implication being that we are by nature sufficiently inclined to care for ourselves. Nevertheless, the wise man does not belittle himself, nor does he neglect to avail himself of his own advantages, since no other person will use them more properly.^b By the same token, he will repel every injury to himself in so far as law and justice permit him to do so.^c Thus the truly good man will be free from μειονεξία, that is to say, from the disposition to accord himself less than his due.

      To be sure, such a disposition, as long as the loss resulting from it affects no one save the individual in error, customarily excites more ridicule than reproach and is called folly rather than injustice. But if at any time private loss brings common peril in its train, then indeed, we must combat it with all our force, lest the public welfare be harmfully affected by the mistaken convictions of individual citizens. Under this head should be placed the weakness of those persons who betrayed their own possessions to the enemy because some conscientious scruple prevented them from fighting. We know about the Jewish Sabbaths^d and the Greek Moons.^{e, 2} If there be other men who have not borne sufficiently in mind the famous epic passage, let them remember that:

      Εἱ̑ς οἰωνὸς ἄριστος, ἀμύνεσθαι περὶ πάτρης.

      There is no act more noble than defence Of one’s own land upon the battlefield.^a

      I could cite numerous examples of persons who have sinned in this way, but what need is there of such citations? For who doubts but that the Hebrews thought themselves pious and humane because they did not savagely massacre the Midianites and Canaanites?^b Who does not know of Saul’s mistaken pity for the conquered king?^c Yet on this very score both Saul and the Hebrews were severely rebuked and punished. Moreover, the case with which we are dealing does not even involve this question of slaughter, but turns merely upon the issue of not leaving in the enemy’s possession resources which may be used to destroy the innocent.

      Saint Augustine,^d that supreme authority on piety and morals, [3′] spoke truly indeed when he declared that it was characteristic of timid men,³ not of the pious, to condemn war because of the ills—such as slaughter and plunder—which follow in its train.

      Thus it is needful that these clouds of fear Be vanquished, not by any solar shaft Nor by the day’s bright spear, but by the mien And ordered plan of nature.. . .^e

      For unless I am mistaken, we may appropriately borrow here the words of the poet Lucretius, since it is solely from that very “mien of nature” and from no other source that one should seek to ascertain СКАЧАТЬ