Commentary on the Law of Prize and Booty. Hugo Grotius
Читать онлайн книгу.
should no longer be used. In regard to the collection of debts, it is my belief that no concession has been made other than that relative to the seizure of pledges, or “the laying on of hands” (as the legal phrase goes), in cases where we are in danger of forfeiting our rights because the debtor has fled;a so that, as soon as the matter can be laid before a judge, the latter, rather than the creditor acting for himself, will award the debtor’s possession to the creditor in payment of the debt. Thus we find that among the Athenians, ἀνδρο ληψίας,b that is to say, seizure of human beings as pledges, was permitted to private individuals; but the question of whether the pledges had been rightfully or wrongfully given was a matter for public judgement. A similar concession is made in the case of crimes, when it seems that the transgressor is on the verge of escaping punishment; for by commonly accepted lawc (special laws being at times more indulgent) it is permissible to seize and detain the guilty person, though only on condition that he be handed over at once to a judge, since the laws forbid the maintenance of private prisons.d [38]
As regards continuous lack of means for judicial settlement, the authoritiese maintain that there are two ways in which such a defect may occur: it may be either a defect in law or a defect in fact. It is a defect in law when in a given place there is no one possessing jurisdiction, a state of affairs which may exist in desert lands, on islands, on the ocean or in any region where the people have no government. The defect is one of fact whenever the person to whom jurisdiction properly pertains, is disregarded by those subject to him, or when he is not at leisure to conduct a judicial inquiry.a In such cases, as Castrensisb rightly observes, the situation becomes very much what it was before states and courts of justice were established.c But in those days human beings were governed in their mutual relations solely by the six laws which we laid down first of all. Those six precepts were the source of all law, and also of the principle that each individual was the executor of his own right, a principle consonant with the natural order, as we have already remarked, and as is indicated by the conduct of other living creatures.d Accordingly, from this point of view, it will be permissible not only to defend oneself and one’s own possessions, but also to recover such possessions after any interval, howsoever long, and to pay oneself from the property of debtors. [39]2
A paradoxical contention
Thus I find that there is universal agreement as to the fact that just private wars may arise from three of the four causes enumerated above.3
There remains for consideration the fourth cause, wrongdoing; and, unless I am mistaken, no one will doubt that this cause, too, in so far as it leads only to the exaction of restitution for the injured party, can justly give rise to private wars. For it is no less truly my right to exact whatever amount is involved because of injury inflicted, than it is to seek possession either of my own property or of property due me on some other basis.
It is not so easy to decide the question of whether or not a private individual may under any circumstances seek to impose punishment for a crime. Indeed, since a great many persons maintain that the power to punish has been granted to the state alone (wherefore judgements, too, are [habitually] termed “public”), it might seem that private application of force is ruled out entirely. The best method we can adopt for the discussion of this point will be found, however, in the consideration of what was permissible for individuals prior to the establishment of states.
When the Emperor Theodosius asserts (in the decree quoted in part just above)a that the judicial system was established precisely for the purpose of preventing any individual from indulging in private vengeance, he certainly implies that in his opinion vengeance was permissible for private individuals before the said system was adopted. But a change was introduced in regard to that privilege, owing to the fact that the bounds of moderation were easily overstepped either through love of self or through hatred of another. Nor is there any great difference between this development in the matter of vengeance and the developments relative to defence of property and collection of debts; for, although each individual formerly conducted these latter transactions personally, the establishment of courts of justice was undertaken in order to avert the perils arising from this earlier practice. Lucretiusb expresses the same idea very clearly indeed, in the following lines:
Since each man, moved by wrath, was wont to plan
Vengeance more harsh than just laws now allow,
Men wearied of a life of violence. . . .
Ciceroa himself, after observing that the law of nature is the principle implanted in us not by opinion but by innate force, places vengeance, which he describes as the opposite of gratitude, among the manifestations of the natural law; and I note that the most eminent theologiansb do not condemn him on this score. Moreover, in order that there [39′] may be no doubt as to the exact scope of the concept included under the term “vengeance,” Cicero defines it as “that act by which, defensively or punitively, we repel violence and abuse from ourselves and from those close to us whom we should hold dear,” and also as “that act whereby we inflict punishment for wrongdoing.” Civilis is quoted by Tacitusc as saying: “In accordance with the law of nations, I demand the infliction of punishment.” In Scriptural history,d too, Samson declares that he has incurred no guilt by inflicting injury in his turn upon the Philistines who injured him when they carried off his wife; and afterwards, when he has completed the act of vengeance, he once more excuses that act on the same grounds, asserting that he has done unto them as they themselves first did unto him. To be sure, the fact that Samson was moved by the Spirit of God [to seek an occasion for conflict with the Philistines]4 exonerates him, in that he had no need of public authorization; but in any case, his conduct in defending himself against the nations of the Gentiles was righteous by the law of nations. Accordingly, that precept of law which demands the punishment of evildoers is older than civil society and civil law, since it is derived from the law of nature, or law of nations. This assertion would seem to be supported by the Sacred Scriptures. For I find in them no reference to the existence of any civil state in the period following the Flood, during which the survivors of the human race were included in a single household, yet I do find reference to a law of that period which commands that evil deeds be punished: “Whoso sheddeth man’s blood, by man shall his blood be shed.”a
Perhaps mention should also be made of the fact that this law is subordinate to another, [laid down on the same occasion],5 which delivers the beasts into man’s service. For when the theologiansb inquire into the origin of punishments, they avail themselves of an argument based upon comparison, as follows: all less worthy creatures are destined for the use of the more worthy; thus, despite the fact that the beasts were indeed created by God, it is nevertheless right that man should slay them, either in order to convert them to use as his own property, or in order to destroy them as harmful, both of these purposes being mentioned in the Scriptural passage to which I have referred; similarly, so the theologians contend, men of deplorable wickedness, for the very reason that they are of such a character—stripped, as it were, of all likeness to God or humanity—are thrust down into a lower order and assigned to the service of the virtuous, changing in a sense from persons into things, a process which constitutes the origin of slavery in the natural order, too; and therefore, it is permissible to destroy such men, either in order that they may be prevented from doing harm or in order that they may be useful as examples. Senecac made this very point, when he wrote: “so that they shall serve as a warning to all, and so that the state may at least derive profit from the death of those who were unwilling to be of use when alive.” For we shall presently show that Seneca’s remark concerning the state is applicable to the whole body of mankind. Democritus, too, in his discussion of natural law, draws an example from the beasts to justify the punishment of the guilty. Thus hed says: κατὰ δὲ ζῴων φόνου [40] καὶ μὴ φόνου ὥδε ἔχει. τὰ ἀδικἑοντα καὶ θἑλοντα ἀδικει̑ν, ἀθω̑ος ὁ κτείνων. καὶ πρὸς εὐ̑ ἐς οὐ̑ν του̑τo ἔρδειν μα̑λλον ἢ μή. “As to the question of whether or not animals should be slain, the matter stands as follows: whosoever