Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ property, we shall find that this whole question has become clear to any person not devoid of ordinary intelligence.

      Outline [of the case]

      The particular case underlying this discussion is summarized in the following paragraph.

      Ships dispatched by the merchants of Holland and Zeeland to the various islands of the Indian Ocean not subject to Portuguese rule had been sailing forth on commercial ventures from as far back as 1595, when our sailors at last prepared to seek vengeance for the slaughter of many of their comrades, as well as for the losses suffered both by themselves and by their allies either in consequence of Portuguese calumnies or at the hands of Portuguese emissaries, through the perfidy of the latter and finally through the open armed violence of that people and their allies. In the year 1602, after several manifestations of hostility on both sides, it so happened that Jacob Heemskerck (Commander of the Amsterdam fleet of eight ships lying in the Strait of Singapore, one of the two straits by which Sumatra⁴ is separated from the Malay Peninsula) forced a Portuguese vessel to surrender and, disbanding its crew, sailed it home. This vessel, the Catharine by name, a ship of the class known as “caracks,” was laden with merchandise. Quite similar acts had of course been committed by other persons prior to that time, and have also been committed since then; but inasmuch as this particular instance is for many reasons the most widely celebrated, we have chosen it for examination as the [4] episode representative of all such captures, so that on the basis of this investigation judgement may readily be passed in regard to the other cases.

      Divisions [of the discussion]

      Upon approaching the task indicated, however, I find myself involved in an extremely complex debate: not because our thesis is at all difficult in itself, but because of the differing views of the very persons who dispute it. Some of these critics, guided in a sense by punctilious motives, hesitate to approve of the prize, apparently regarding it as something wrongfully acquired and illegitimate. Others, though they entertain no doubt from the standpoint of legitimacy, seem fearful of bringing some stain upon their reputations by such an act of approval. Again, there may be individuals who have no misgivings regarding the justice of the cause in question and who do not believe that their good name can be impaired thereby, but who nevertheless imagine that this very proposition which at the moment appears to be beneficial and profitable, may eventually result in some still latent loss and harm.

      Thus our undertaking requires a combination of all the various forms of discourse customarily employed by orators.^a It calls not only for debate as to whether the aforesaid act was right or wrong, to be conducted as if the point were being argued in court, but also for the assumption of the censor’s functions of praise and blame; and furthermore, since the circumstances that gave rise to the act remain unchanged, advice must be given as to whether or not the course of action already adopted is expedient for the future.

      First of all, then, we must examine the matter from the standpoint of law, thus establishing a basis, so to speak, for the treatment of the other questions to be considered.

      Method

      The ordered plan of nature to which I referred above has a very important bearing upon this phase of the discussion. For, in my opinion, it would be a waste of effort to pass judgement regarding acts whose scope is international rather than domestic—acts committed, moreover, under conditions not of peace but of war—solely on the basis of written laws. That Dio^a who is called “the golden-tongued” by [4′] virtue of his eloquence, puts the point very neatly, when he says: τω̑ν μὲν ἐγγράφων οὐδὲν ἐν τοι̑ς πολεμίοις ἰσχύει· τά τε ἔθη φυλάττεται παρὰ πα̑σι, κἂν εἰς ἐσχάτην ἔχθραν προἑλθωσι. “To be sure, nothing written is valid between enemies; but customs are observed by all, even when the extreme of hatred has been reached.” In the passage just quoted, the term “customs” is equivalent to Cicero’s^b concept in the phrase, “not written law, but the law sprung from Nature,” and to that expressed in the words of Sophocles,^c ἄγραπτα κἀσφαλη̑ θεω̑ν νόμιμα, “not those written laws, indeed, but the immutable laws of Heaven.” Yet again, Lactantius^d goes so far as to censure the philosophers because in their discussion of military duties they take as their criterion, not true justice, but civic life and custom. If those persons [who base their judgement on written laws] do not read the works of the authors above cited, they ought at least to pay heed to their own Baldus,^e who has wisely ruled that in any controversy arising between claimants of sovereign power the sole judge is natural reason, the arbiter of good and evil. Other quite learned authorities^f uphold this same doctrine. Nor does it differ greatly from the popular maxim that he who seeks for a statutory law where natural reason suffices, is lacking in intelligence. Therefore, it is from some source other than the Corpus of Roman laws that one must seek to derive that pre-eminent science which is embodied, according to Cicero,^g in the treaties, pacts, and agreements of peoples, kings, and foreign tribes, or—to put it briefly—in every law of war and peace.

      Considerably better and more dependable is the method chosen by those who prefer to have such questions decided on the basis of Holy Writ, except that the persons employing this method frequently cite simple historical accounts or the civil law of the Hebrews in the place of divine law. For the materials collected indiscriminately from the annals of all nations, while they are extremely valuable in elucidating the question, have little or no value in providing a solution, since as a general rule the wrong course is the one more often followed [in the instances recorded in those annals] [5].

      The true way, then, has been prepared for us by those jurists^a of antiquity whose names we revere, and who repeatedly refer the art of civil government back to the very fount of nature. This is the course indicated also in the works of Cicero.^b For he declares that the science of law must be derived, not from the Praetor’s edict (the method adopted by the majority in Cicero’s day), nor yet from the Twelve Tables (the method of his predecessors), but from the inmost heart of philosophy.

      Accordingly, we must concern ourselves primarily with the establishment of this natural derivation. Nevertheless, it will be of no slight value as a confirmation of our belief, if the conviction already formed by us on the basis of natural reason is sanctioned by divine authority, or if we find that this same conviction was approved in earlier times by men of wisdom and by nations of the highest repute.

      Order

      For the rest, it is expedient for our purposes to order the discussion as follows: first, let us see what is true universally and as a general proposition; then, let us gradually narrow this generalization, adapting it to the special nature of the case under consideration. Just as the mathematicians customarily prefix to any concrete demonstration a preliminary statement of certain broad axioms on which all persons are easily agreed, in order that there may be some fixed point from which to trace the proof of what follows, so shall we point out certain rules and laws of the most general nature, presenting them as preliminary assumptions which need to be recalled rather than learned for the first time, with the purpose of laying a foundation upon which our other conclusions may safely rest.

      In this connexion I must crave indulgence for the novelty and also, perhaps, for the prolixity of my work. Accordingly, I ask the reader to be patient and to accept on faith for the moment my assurance as to what the event will later confirm, namely: that the accuracy of the arguments to be derived from our premisses will compensate for any tedium caused by this preliminary matter, which will be regarded by many critics as already sufficiently familiar and by everyone as too repetitious in its presentation. Moreover, I can quite truthfully assert that certain problems bound up with the law of war and hitherto exceedingly confused, are susceptible of explanation and solution (even though they will not all be expressly mentioned in this treatise) on the basis of the said СКАЧАТЬ