Commentary on the Law of Prize and Booty. Hugo Grotius
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under any circumstances whatsoever, whether of place or of time. In my opinion, this very argument has served as the basis for the belief that it is right for private persons to slay a tyrant, or in other words, a destroyer of law and the courts. The opinion of the Stoics may be interpreted thus when they maintain that the wise man is never [merely] a private citizen, an assertion supported by Cicero,c who points to Scipio as an example. Horace,d in the lines, “And not consul of a single year,” &c. (from the Ode to Lollius), has the same principle in mind. Even Plutarch,e despite the fact that he represents a different school of thought, does not disagree on this point. On the contrary, he declares that it is nature herself who designs the statesman (in a permanent sense, moreover) to serve as a magistrate; and he adds that the law always confers princely power upon the person who does what is just and knows what is advantageous, although that person will use the power so conferred only when the perfidy or negligence of the men elected to public office has brought matters to a perilous pass. When Caesara (he who afterwards became Dictator) was still a private citizen, he pursued with a hastily raised fleet the pirates by whom he had been captured on an earlier occasion. Some of their boats he put to flight, some he sank; and when the Proconsul neglected to punish the guilty captives, Caesar himself put out to sea again and crucified the culprits, influenced undoubtedly by the knowledge that the judge to whom he had appealed was not fulfilling the functions of the judicial office, as well as by the consideration that it was apparently possible to take such action guiltlessly upon the seas, where one is governed not by written precepts but by the law of nations.
Reflection along the lines just indicated, gave rise to the view that circumstances could exist (though rarely, perhaps, owing to the weaknesses of human nature) in which it would be possible under the natural law for a private person to inflict punishment upon another person without sinning, and likewise possible for one private individual to serve in a sense as magistrate over another, but always on condition that the former should observe the scrupulousness of a judge even in the act [42] of chastisement. I see that Castrensisb lends support to this theory with a wealth of arguments. For the laws, [according to Castrensis,] were devised to promote man’s welfare, not to injure him; and ordinary remedies do not serve in an extraordinary situation, nor is it forbidden that a person in peril shall take heed for himself and for others, just as one might when abandoned by the sailors in a shipwreck or by the physicians in illness. In cases of necessity and for the purpose of preventing the loss of our rights, many things are permitted which otherwise would not be permitted; and when one recourse fails, we turn to another. Such would seem to have been the opinion of the most learned men of all lands: for example, Connan, Vázquez, and Peter Faber. In the same list, one might include the name of Ayala, who cites Socinus Neposa in this connexion. [44]7
Conclusion VII, Article I
Accordingly, we conclude that a private war is undertaken justly in so far as judicial recourse is lacking.
Public wars, on the other hand, arise sometimes from a defect of judicial recourse, and sometimes out of a judicial process.b
They originate in a defect of judicial recourse in the same way that private wars spring from that origin. Now, as Ciceroc explains, this [justification for extra-legal warfare] exists whenever he who chooses to wait [for legal authorization] will be obliged to pay an unjust penalty before he can exact a just penalty; and, in a general sense, it exists whenever matters do not admit of delay. Thus it is obvious that a just war can be waged in return, without recourse to judicial procedure,d against an opponent who has begun an unjust war; nor will any declaration of that just war be required, a contention confirmed by the decision of the Roman college of fetials in regard to the Aetolians,e [who had already committed warlike acts against the Roman people]. For—as Aelianf says, citing Plato as his authority—any war undertaken for the necessary repulsion of injury, is proclaimed not by a crier nor by a herald but by the voice of Nature herself. The same view may be adopted with respect to cases in which the sanctity of ambassadors is violated or any other act disruptive to international intercourse is committed. For judicial procedure cannot be expected of those peoples who grant no one safe passage to and from their respective countries.
We must bear in mind, however, a certain point already mentioned, namely the obligation to return to observance of the laws as soon as the peril subsides. For example, if any citizen of a foreign state manages to seize someone’s property, it will be permissible not only to recover that property but also to seize other goods by way of security before a judicial decision is rendered, subject to the condition that the goods are to be returned when the judgement has been executed.a Nevertheless, whenever considerations of time so permit, all persons whatsoever who undertake to wage war, and all those against whom war is waged, ought to submit to a judicial settlement. [44′]
Thus civil wars are justly undertaken in conformity with the Fifth or Seventh Rule and the Ninth Law; foreign wars, in conformity with the Twelfth Law and the Ninth Rule.b Accordingly, in cases of civil warfare, a magisterial or state pronouncement against one citizen and in favour of another citizen or in defence of the state, is a desideratum, nor is there any further requirement;c whereas, in the case of foreign wars, the situation is different. Cicerod rightly drew this distinction in connexion with his remark that envoys should not be sent to Antony, since the latter ought rather to be compelled to abandon the siege of Mutina, an assertion which Cicero defended on the ground that the quarrel was not with an enemy of the [Roman] state, such as Hannibal, but with a fellow citizen. Senecae subtly indicated the existence of the same distinction, when he spoke of “wars declared upon neighbouring nations, or wars carried on with fellow citizens.” For it is not customary, nor is it necessary, to declare a civil war; and this statement is also applicable to warfare against tyrants, robbers, pirates, and all persons who do not form part of a foreign state. In so far as foreign wars are concerned,f the Twelfth Law and the Ninth Rule above mentioned do provide for that declaration of hostilities which plays such an outstanding part in the law of war, and with respect to which the ancients held varying opinions.
As for our own opinions, this whole problem will be resolved on the basis of the preliminary material which we have already presented.
Quite properly did the soldier Thraso keep matters under his own management, [instead of allowing his companions to employ force,] in the episode described by that ἠθικώτατον [highly moral] author, Terence,a whose work teems, so to speak, with pithy sayings. I refer to Thraso’s admonition:
The wise man first tries every verbal8 means, Before he takes up arms. How do you know She will not yield without the use of force?
Euripides,b too, had already written:
λόγοισι πείθων, εἰ δὲ μή βίᾳ δορός.
I shall achieve my aim through words; or else, Should words fail, force will serve my ends. . . .
Ciceroc expressed the same thought in fuller form when he said: “Since there are two ways of settling a contested question—first, by discussion, and secondly, by violence—[and since the former method is characteristic of human beings, the latter characteristic of brutes,]9 we should resort to violence [only] if we are not permitted to avail ourselves of discussion.” The following statement from the works of Thucydidesdmay also be cited: ἐπὶ τὸν δίκας δίδοντα οὐ νόμιμον ὡς ἐπ’ ἀδικου̑ντα ἰἑναι; “It is not lawful to proceed against him who is prepared to accede to a judicial settlement, as one would proceed against an unjust person.” The words of Theodorica have a similar import: “The time for taking up arms arrives when justice cannot find admittance on the opposing side.” This principle constitutes in part the basis of the above-mentioned doctrine of the Scholastics,b namely, that he who is unwilling to give satisfaction is justly attacked in war. We see that this was the order of events accepted by the Israelites,c who desired that the tribe of Benjamin should inflict punishment upon the men of Gibeah, and declared war upon that tribe only when their request was not granted.10