Commentary on the Law of Prize and Booty. Hugo Grotius
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of bodily attack.
Turning now to the matter of attack upon property, we shall have no difficulty in reaching the conclusion to be drawn in this connexion with respect to subjects. For we have explained elsewherea that property may be seized in order to ward off peril that menaces one’s own life or possessions, and that it may also be acquired on the ground of debt, the former right being derived from the laws of the first order [Laws I and II], and the latter from the laws of the third order [Laws V and VI]; but we have also statedb that subjects, even when innocent, are liable to attack in war in so far as they impede the attainment of our rights; now, all subjects, even those who do not themselves serve as soldiers,c impede our efforts by means of their resources, when they supply the revenue used in the procurement of those things which imperil our lives and which do not only hinder the recovery of our possessions but also compel us to submit to fresh losses;d and therefore, subjects must be deprived of such resources, unless it be considered just that we ourselves should pay the penalties attendant upon the pursuit of our rights. Nor is any distinction to be made here on the basis of varying circumstances among the different subjects, since the laws in question, as we have repeatedly pointed out, have regard not to the intent of one’s adversary but to his deed. [50]
Hence it is permissible to infer, not only that possessions maybe forcibly taken from the said subjects, but also that these possessions may be added to our own. For if, on the one hand, they were snatched away from us by these very subjects, whom we regard as personally under obligation to us because of their injurious conduct or for whatsoever reason, nothing could be more just than that we should take back by armed force that which could not be reclaimed in any different way; or if, on the other hand, it is a state that has wronged use or otherwise incurred a debt to us, there is even then nothing to prevent the seizure of the subjects’ goods in payment, since it has been demonstratedf above that such goods are liable to seizure for the debt of the state. This one restriction is imposed, however: that nothing shall be taken in excess of the debt due us, which is reckoned in such a way as to include reparation for both losses and costs. Moreover, the claim to reparations continues to operate as a cause even after victory has been achieveda and after the first-named cause, the need to ward off danger, has been dispelled. For our object in waging wars is nothing more nor less than attainment of our rights through victory. In the words of Livy,b “When all things have been surrendered to him who is the mightier in arms, it is the latter’s right and privilege to decide which of those things he shall choose to retain as victor,19 and exact from the conquered20 as a penalty.”
Therefore, we conclude that all subjects, at all times, are liable to despoliation, but not necessarily to forfeiture of their lives. For, as far as the question of our own peril is concerned, there are many persons who oppose us not at all by bodily violence, so that nothing is to be gained by inflicting violence of any kind upon their bodies; but there is no individual among the enemy who does not harm us with his possessions, even though he may be most unwilling to do so. Or, if we choose to view the question from the standpoint of the rights of creditors, we shall find that the goods of subjects, but not their persons, are liable to seizure for the debt of the state;c and consequently, in the case of reprisals, too, seizure of property is permitted but corporeal attack is prohibited.d Therefore, the argument relative to things is not valid when applied to persons. For he to whom something of lesser importance is permitted does not forthwith receive permission also for that which is of greater importance.
Moreover, although other writers have gone less thoroughly into the reasons underlying this opinion, it is supported by all of the theologians and experts in law.a For they maintain that what is known as “prize,” or “booty,” becomes the property of him who seizes it in a just war, and that it should be understood that such prize or booty is taken not only from the goods of him who fights unjustly, but also from those of all his subjects (women and children not excepted) until complete satisfaction has been given to the just belligerent for that which is due him, whether because of an injury or offence inflicted, or because of a [50′] loss occasioned to him or his and the factors attendant upon that loss; or else until the enemy shall be prepared to give satisfaction, or shall make known his readiness to comply with the law. For the rest, Cajetanb and (among the Spaniards) Covarruviasc declare that the question of whether or not a given individual is innocent, is not taken into account in this connexion. Yet another Spaniard, Victoria,d holds that if the enemy refuses to make restitution of the goods wrongfully taken away, and if the injured party cannot very well secure reparation from some other source, he may obtain satisfaction from any source whatsoever, whether from the guilty or from the innocent, so that neither merchants nor farmers are excepted. That is the view adopted by Victoria. As for the opinion of other authoritiese who hold that even in this matter forbearance should be shown to sailors and merchants, these very authorities explain that they are referring to sailors cast upon a foreign shore by the force of a tempest, and to foreign merchants only or those who are on their way to public fairs. Merchants who are subjects, however, are not spared even in the case of reprisals.
Now, the views above set forth are valid, save in cases where security has been promised to certain individualsa or classes of persons or localities, either through pacts or through a tacit usage prevailing on both sides: that is to say, on a basis of good faith, a matter with which we shall deal presently. Thus we read that the Indians spared the farming class. Again, the Lateran Councilb decreed that a suitable security should be enjoyed by priests, monks, converts, pilgrims, merchants, and rustics who were journeying to or fro or else engaged in agricultural labours, and that the same security should be extended to the animals used by rustics in ploughing or in transporting seed to the fields. With respect to this order, too, the proper interpretation of the term “merchants” includes foreigners only. Cajetanc says: “I interpret the word ‘merchants’ as referring, not to traders who reside within the place in question, but to those who are guests or transients there. For it does not seem to me that resident merchants are in any better position than artisans.” As a matter of fact, the canonistsd deny the acceptance in present-day practice of the entire edict of pontifical law (known to them as the “Canonical Truce”) which we have just cited; and certainly that edict is not based upon a permanent cause. Nevertheless, it is obviously true that the property of others, when it does not belong to the foe (that is to say, property belonging neither to allies nor to subjects of the foe), even if it be located in enemy territory, may no more be acquired by those who seize it, than loaned or stolen property found among the goods of a debtor may be acquired by the creditor. [50′ a]
New explanation
At this point, we may consider in passing a question frequently raised and extensively discussed by other writers,e namely: What conduct is permissible for an enemy in regard to foreigners found among that enemy’s adversaries, and in regard to those [foreigners] who are lending aid to the said adversaries in the form of commodities? In the first place, it is quite evident that the locality where a person happens to be found is a consideration of no weight in this connexion; for the factor of locality does not in itself constitute a source of liability, whereas those individuals whom it is permissible to despoil, must indeed be persons who are liable [to local obligations].a Therefore, sojourners are proper objects of warfare only if they form a part of the opposing state in the same sense as other subjects. The term “part” should be interpreted, moreover, as referring (in so far as the present question is concerned) to individuals whose legal status is such that they can be compelled to defend the said state and to pay tribute to it. For, as Agathiasb rightly explains, a given person is to be regarded as an enemy, not because of fortuitous circumstances pertaining to his origin, but on the basis of his zeal and with reference to whether or not he does those things which are pleasing or helpful to the foe. As for the conveyors of commodities, it has been established by the theologians and jurists that no individual is responsible for damage following upon his acts, unless that individual is the one who caused the damage; and also that no one is responsible for damage preceding his acts, unless he himself served to impede restitution. Nor does it necessarily suffice that such a person shall have furnished cause in any way whatsoever; on the contrary, either evil intent or, at least, guilt must be involved. Thus