Commentary on the Law of Prize and Booty. Hugo Grotius
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also by those other individuals who furnish the command, advice, consent, or labour for the act of deprivation, or who subsequently obstruct the making of restitution. But all allies do one or the other of these two things; and therefore, it is necessary to regard the joint obligation thus created,b as binding upon every person by whose aid the unjust party is rendered bolder or the opposing party, more fearful. This is an unchanging principle applicable to all warfare. With respect to punishments,c on the other hand, it is likewise unquestionably true that those individuals who fail to give material aid but who nevertheless lend encouragement by their advice, are liable to punishment, also, and even to the very same punishment as that incurred by the principal actors in the case; for such individuals are themselves offenders. [47]
As for the state, it is bound by the act of its magistrated as if by the force of a contract, just as he who has set up a director or agent in [47′] some matter is bound;e and at times this binding obligation embraces even liability to punishment. For those persons are liable, who have transferred authority over themselves to such representatives as might prove to be the source of injury to others, since he who has put his trust in an unworthy individual would seem to be involved,a so to speak, in the fraudulence [of the latter]. Thus it is by no means undeservedly that,
For every folly of their kings, the Greeks
Pay penalties. . . .b
Nor was that situation unreasonable which caused Hesiodc to lament as follows:
ὄφῤ ἀποτίσῃ
δη̑μος ἀτασθαλίας βασιλἑων,
So that the impious sins which stem from kings, The people expiate. . . .
This same principle is put into practice by God Himself, who not infrequently has punished the people for the sins of princes, a point that could be illustrated with many notable examples.d In the words of the blessed Justin:e πικροτάτη τιμωρία τω̑ν ἔμαρτηκότων βασιλἑων τιμωρία του̑ λαου̑; “The most bitter punishment imposed on erring princes, is the punishment exacted of the people.” Ambrose,f too, has said: “The delinquency of kings results in the punishment of peoples; for, just as we are protected by the virtue of kings, so also are we endangered by their transgressions.”
Furthermore, a state is bound by the act of its citizen:g not in an absolute sense, of course, but in cases where the state itself fails to render justice, thereby making the cause of the offender its own. For liability is incurred by the act of approval no less than by the act of command.a It was on this very ground (so we read) that the Amphictyons in ancient times condemned the Scyrians,b some of whom had practised piracy with impunity. In this sense, the state is not bound entirely by another’s act; for its own action is also involved, not only because the state [by failing to render justice] impedes another in the attainment of his right, but also because it sins in contravention of its duty under the Ninth Rule, which indicates that just judicial recourse should be provided for foreigners as well as for citizens. Moreover, it cannot be doubted that he who fails to prohibit that which he can and should prohibit, is liable for the consequences of the act in question, a principle applicable to debts involving punishment as well as to other debts. Hesiodc has this fact in mind when he says: [48]
πολλάκι καὶ ξύμπασα πόλις κακου̑ ἀνδρὸς ἐπαυρει̑.
Often a nation pays the penalty For one man’s wickedness. . . .
To Hesiod’s observation, Proclusd appends the following admirable explanatory comment: ὡς ἐξὸν κωλύειν μὴ κωλύουσα τὴν του̑ ἑνὸς πονηρίαν; “because the state does not prohibit that wickedness, although it is able to do so.” Proclus also adds two examples: one (which Horace likewise notes) is taken from the opening passage of the Iliad and concerns Agamemnon; the other has to do with the Greek fleet that was burned,
Solely because of one man’s frenzied guilt,
The guilt of Ajax, son of Oileus,e
that is to say, because the Greek nation had not shown indignation at the shameful deeds of Ajax. Herein the institution of expiations has its source. For that matter, we find in Holy Writa outstanding proofs of the fact that expiation by whole nations for unpunished sins committed by individuals is a practice pleasing to God. Agapetus,b in his Paraeneticus addressed to Justinian, explains this point as follows: ἴσον τῳ̑ πλημμελει̑ν τὸ μὴ κωλύειν τοὺς πλημμελου̑ντας λογίζου. κἂν γὰρ τις πολιτεύηται μἑν ἐνθἑσμως, ἀνἑχεται δὲ βιούντων ἀθἑσμως, σύνεργος τω̑ν κακω̑ν παρὰ θεῳ̑ κρίνεται. “Consider the failure to restrain transgressors as equivalent to the transgression. For a person who administers the state justly in other respects but shows tolerance toward those whose lives are unjust, is in God’s judgement an abettor of the wicked.”
On the other hand, individual citizens are also bound by the act of the state. Indeed, it is in keeping with natural equity, since we derive advantages from civil society, that we should likewise suffer its disadvantages.c The interpreters of the civil lawd have expressed varying opinions in regard to this point, but always on the basis of that law; for even though people grouped as a whole and people as private individuals do not differ in the natural order, a distinction has arisen from a man-made fiction and from the consent of citizens.e The law of nations, however, does not recognize such distinctions; it places public bodies and private companies in the same category. Now, it is generally agreed that private societies are subject to the rule that whatever is owed by the companies themselves may be exacted from their individual partners. Furthermore, it is obvious that the state is constituted by individualsf just as truly as the magistrate is constituted by the state,g and that therefore the said individuals are liable in the same fashion as the state in so far as concerns reparation for losses, even when the claim in question is founded on wrongdoing. Far be it from us to say, however, that the lives of innocent citizens are ἀντίψυχα, forfeited, or liable to punishment,a for offences committed by the state; especially since the state itself can be punished as such. For the life of a state can be weakened (as in cases where the state becomes a tributary, a practice sanctioned by divine law)b and, in a sense, annihilated. πόλεως γὰρ ἐστι θάνατος ἀνάστατον γενἑσθαι;c “A city dies when it is completely laid waste.” Such was the fate of Carthage and of other cities which were razed by the enemy’s ploughd and which suffered dissolution of the body politic. But it is evident that pecuniary penalties owed by the state may be exacted from the [48′] subject, since there would be no state if there were no subjects. St. Thomase 16 declares that those persons who are essentially possessions and parts, so to speak, of another entity—a description which ought to cover subjects no less than children and slaves—may be penalized in the place of that other entity for losses suffered. Yet subjects are frequently free from guilt, as we have already observed. This is indeed true; but the very Scholasticsf above cited [St. Thomas and Sylvester] teach us that punishment, while it is never imposed unless guilt exists, often is imposed where there is no guilt on the part of the person punished, though never without cause. In the case under discussion the cause is obvious. Here we have the sole argument supporting that custom of reprisals, practised not only in the modern world but also by nations of ancient times, known as pigneratio [seizure of pledges], or as ἀνδροληψιω̑ν [seizure of hostages for vicarious punishment]. For what is owed to me by the citizen of a state is owed by the state, too, when the latter does not enforce the claims of justice; and what is owed by a state, is owed by its individual citizens. This is a point which has not escaped the observation of Bartolus.a