Commentary on the Law of Prize and Booty. Hugo Grotius

precedence shall be given to the state which is the defendant, or whose citizen is the defendant; but if the said state proves remiss in the discharge of its judicial duty, then that state shall be the judge, which is itself the plaintiff, or whose citizen is the plaintiff. As a matter of fact, such disputes could not have been settled in any other way. For two parties—the plaintiff and the defendant—are involved in every lawsuit, and in the situation which we are discussing it was absolutely necessary that the state representing one of the parties should be given the role of judge; so that the most suitable procedure consisted in bringing the case first of all before the state which could most easily execute the judgement, in other words, the state said to be in possession of the surplus whose seizure would result in an equitable distribution of the whole. Treaties between friendly nations, too, are usually drawn up in accordance with this principle. For example, in the treaty between the Gauls and Hannibal, it was provided that, if the Gauls accused a Carthaginian, the case should be tried by the Carthaginians; whereas, if [13′] the latter accused a Gaul, then Gallic women^b (for in Gaul the female sex enjoyed great authority, even in public affairs) should adjudicate the dispute. Reasoning in the same manner, Demophoon replied to Eurystheus, King Tatius to the Laurentines, the Athenian people to Alexander, and others on a great many occasions to yet other parties, when they were ordered to hand over certain fellow countrymen for punishment, that they themselves would administer the punishment in accordance with justice and the laws, if anyone should bring forward an accusation.

      On the other hand, if a state stubbornly defends an injury inflicted by its citizens or (as more frequently happens) by itself,^a and if it neither confesses that the injury has been committed nor makes amends therefor, then, to be sure, the conduct of the trial passes by the aforesaid natural law to the other party, namely, the state that has complained of injury suffered either by itself or by one of its citizens. Accordingly, in cases of this kind, the mere passing of judgement in any form whatsoever will not suffice, as it does when a judge lays down the law within a single state. For it is not as the result of a compact that one state has power over another, but rather by the force of nature, which allows every individual to seek his own right. Therefore, the existence of such a right is a preliminary requisite. This is the significance of the universally accepted doctrine^b that one state is made subject to another by transgressing. For whosoever wages war justly must become to that extent the judge of his adversary, or (as Plato^c has said), σωφρονιστής, “censor and chastiser” of the latter, turning back of necessity to the system in force under the law of nature, which permitted each individual to be the judge of his own cause.

      Up to this point, we have been discussing laws that accord with established usage.

      Law XIII

      All of these precepts are of a general and necessary character, save that they are naturally and implicitly subject to one exception:^d that is to say, whenever a case arises in which the laws appear to conflict with one another—a situation described by the rhetoricians as τὴν κατὰ περίστασιν μάχην, “a conflict produced by circumstances”—the principle embodied in the superior law is upheld, and the inferior law is set aside. Accordingly, the law of all laws, so to speak, may be stated as follows: In cases where [the laws] can be observed simultaneously, let them [all] be observed; when this is impossible, the law of superior rank shall prevail.^a

      Now, this very point as to which law is of superior rank, may be determined on the dual basis of the origin and the purpose of the precepts involved. For, from the standpoint of origin, the divine law is superior to human law, and the latter to civil law.^b From the standpoint of purpose, that which concerns one’s own good is preferred to that which concerns another’s good; the greater good, to the lesser, and the removal of a major evil, to the promotion of a minor good. If, for example, your life is imperilled in the wilderness as the result of an attack from some individual, under circumstances of time and place that do not permit of recourse to a judge, you will rightly defend yourself, disregarding the Ninth Law, relative to judicial procedure.^c For that matter, not even the Third Law, which forbids you to injure another, will be an obstacle to such righteous self-defence; for otherwise you would not be able to exercise your right under the First Law, which commends your own [14] life to your care.^d Similarly, if any person holds property of mine in his possession without reimbursing me for it, and if that person is preparing for flight so that there is no hope of recalling him for trial, then I must have recourse to the Sixth Law, which requires that good be done to the doers of good, or in other words, that the loss [suffered by the benefactor] be compensated by gain,^e since the above-mentioned precept regarding judicial procedure ceases to apply. Nor will the Fourth Law, forbidding the seizure of another’s property, serve as an obstacle to my recovery of compensation contributory to my livelihood in accordance with the Second Law. For no one should be compelled to throw away his own property. But as soon as that imminent peril of death or loss shall cease, it will be obligatory to observe the different laws, no longer in mutual conflict, at one and the same time.

      We have seen what constitutes a “right” (ius); and from this concept we derive also the definition of a “wrong” or “injury” (iniuria), guided by the basic belief that this term refers to whatever is done in opposition to right.^a Accordingly, that action is just whereby a right is awarded to the party to whom it is conceded by the various rules and laws, whereas actions of a contrary nature are unjust.

      War

      Just war

      Unjust war

      Public war

      Civil war

      Foreign war

      Private war

      Seizure of prize or booty

      Now, even as actions have their inception in our minds, so do they culminate in our bodies, a process which may be called “execution.” But man has been given a body that is weak and infirm, wherefore extracorporeal instruments have also been provided for its service. We call these instruments “arms.” They are used by the just man for defence and [lawful] acquisition, by the unjust man, for attack and seizure. Armed execution against an armed adversary is designated by the term “war.” A war is said to be “just” if it consists in the execution of a right, and “unjust” if it consists in the execution of an injury. It is called “public” when waged by the will of the state, and in this latter concept the will of magistrates (e.g. princes) is included. Moreover, public war may be either “civil” (when waged against a part of the same state) or “foreign” (when waged against other states). What is known as a “war of allies” is a form of foreign war. Those which are waged otherwise [than by the public will], are “private” wars, although some authorities^b have preferred to describe such conflicts as “quarrels” rather than as “wars.” These conflicts, too, may be either civil or foreign. In the present work, the terms “seizure of prize,” “seizure of booty,”¹¹ are used to refer to the acquisition of enemy property through war.

CHAPTER III

       Question I

       Article I. Is any war just?

       Article II. Is any war just for Christians?

       Article III. Is any war just for Christians, against Christians?