Commentary on the Law of Prize and Booty. Hugo Grotius
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those persons against whom we publicly decree war, but also those who publicly decree war against us. Therefore, no warning notification is necessary for war against persons who are already conducting themselves as enemies of our state. This principle is commonly accepted by the doctors of law,b who maintain that those persons who are openly harmful and troublesome to us are ipso iure proclaimed liable to confiscation of goods on the ground of bad faith;14 for, according to the said doctors, such a proclamation is equivalent to a formal declaration of war. A notable example is found in the history of the Israelites,c who had been commanded by God to refrain from making an armed attack against any people without first inviting that people, by formal notification, to establish peaceful relations; for the Israelites thought that this prohibition was inapplicable to many of the Canaanite tribes, inasmuch as they themselves had previously been attacked in war by the Canaanites. Hence we arrive at the following deduction: once the formality of rerum repetitio has been observed and a decree on the case in question has been issued, no further proclamation or sentence is required for the establishment of that right which arises in the actual process of execution. For, in such circumstances, one is not undertaking a new war but merely carrying forward a war already undertaken. Thus the fact that justice has once been demanded and not obtained, suffices to justify a return to natural law, that is to say, a return to the precept which permits us to obtain by force that which is properly ours. Nevertheless, even when formal notification is unnecessary, it is not inappropriate to issue a general statement, for example, a statement relative to the collection of debts, and particularly punitive debts, so that enemy property may be seized as if by judicial authorization.
For the rest, when formal notification has been given by the principal author of a war, there is no need for such notification on the part of his ally, who is merely assisting in the attainment of another’s right without presenting any separate demand for himself. Similarly, when a war has been begun with the proper formalities against a given state or magistrate, no formal declaration of that war need be issued to the allies and subjects of the said state or magistrate. Our commentatorsa word this conclusion in their own fashion, as follows: When a prince has been challenged to combat,15 all of his subjects, confederates and assistants have been challenged.15 Moreover, this very conclusion formed one of the basic points for Gnaeus Manlius’ defence of his own conduct, when he was reproached by his legates because of the Galatian war.
Conclusion VII, Article II
But, to return to the statement quoted above from Isidore, we find that its meaning is clearly the same as if one should say: A public war is undertaken justly in so far as judicial recourse is lacking, or if the formality of rerum repetitio has been observed, and a decree has been passed by the state undertaking the war. [46′]
We come now to another question, namely: What qualifications should be sought in voluntary agents who are participating in a war, and what is permissible for them? This question is of course extremely broad, but we shall discuss it summarily under several main heads.
Just form, as we have already observed,a consists in conformity with the laws. Now, even as the laws relative to judicial procedure appeared to be incompatible with the act of undertaking a war (though we have demonstrated that these laws are partially invalidated by others of a superior order, while we have been able in part to reconcile the seemingly incompatible factors), just so the Third and Fourth Laws apparently conflict with the act of carrying on a war. For if the words of Virgilb are not deceptive,—
When that time comes, [the lawful time for strife,]
It shall be licit to contend in hate,
And play the plunderer’s part. . . .
—if, I say, slaughter and plunder are the concomitants of war, how shall we deal with those laws which forbid us to injure another, or to lay hands upon another’s property? In many cases, too, the Third Rule would seem to constitute an obstacle, since any interchange based on human law is apparently swept away, so to speak, once a war has begun.
Who, of a foe, would ask: “Is this deceit
Or valor?” . . .c
For we seek to do harm to our foes,
ἢ δόλῳ ἠὲ βίῃ, ἢ ἀμφαδὸν ἠὲ κρυφηδόν;d
Whether by fraud or unmasked violence, By stealth or openly. . . .
First, however, let us consider the problem presented by the laws of the second order, that is to say, the Third and Fourth Laws. These are invalidated (as we have pointed out elsewhere) by the force of the Thirteenth Law, not only when they come into conflict with the First or Second Law, but even when there is occasion to apply the Fifth or Sixth, inasmuch as the Fifth and Sixth inherently embrace the First and Second, as well as the Third and Fourth Laws themselves. But, by the same token, if any act is committed in excess of what is commanded by the laws of the first and third orders [Laws I, II, V, and VI], or against any person at whom the said laws are not aimed, that act will exceed the limits defining a just mode of warfare.
Enemies attack us, and are attacked in turn, in a twofold manner: corporeally, and by attack upon property. Consequently, four [47] συζυγίαι, or “reciprocal combinations,” are to be considered.a That is to say, either we attack in our turn the body of him who has attacked our bodies; or we despoil the despoiler; or we inflict damage upon the property of the person who imperils our lives, or we unsheathe our swords in defence of our own property. It has been shown above that none of these procedures is essentially unjust. Now let us see to what extent they are permissible.
Granting, then, that we are permitted to wound or even to despoil another in defence of our lives or property (I put the assumption in these terms so that it may refer to the First and Second Laws, and not to the commission of a crime), nevertheless, we ought to desist from violent action against him as soon as the danger is past: for example, when victory has been achieved. If we are laying claim to property of our own or to something which is owed us, it will not be permissible, after we obtain the thing thus claimed, to arrogate to ourselves any additional object. If we seek vengeance for a wrong inflicted, that vengeance, too, should be tempered to accord with the measure of the wrong, in observance of
The rule whereby the punishment befits
The crime. . . .a
The question at present under discussion differs, of course, from that treated in the preceding chapter; for we were concerned there with the necessity for an underlying cause, whereas in the present chapter we are adding to the causal considerations the requisite of moderation. Senecab holds that those persons are properly called cruel, who have cause to inflict punishment but observe no moderation in so doing.
New explanation
In this connexion it must be noted, moreover, lest one person should suffer in another’s stead from the ills of war, that an obligation is sometimes incurred in consequence of one’s own act or an act committed in common with others, whereas sometimes it is incurred in consequence of another’s conduct but through one’s own previous or subsequent act. In regard to the laws of the first order, this distinction has no force; for those laws are concerned only with the act itself and take no account of intent. It frequently happens, however, that the distinction does have a bearing upon cases involving contract, as may also occur in the case of a delict, in so far as the punishment for the delict is pecuniary or pertains to property.c The institution of bail rests upon this principle. But the laws refuse to recognize the vicarious acceptance of corporal punishment,d for the reason that no one can place under liability that which he does not own.e God has given us ownership over things; ownership over ourselves, He has retained for Himself. Therefore, we may transfer our goods when it pleases us to do so, but we may not lay down our lives;f just as private property, but not power over himself, is given to a slave. 47 a]
Accordingly, in the first place, the obligation incurred by one ally in consequence of an act committed by another ally, arises from an act of the former, that is to say, from an actual deed and not merely as a result of the contract