Commentary on the Law of Prize and Booty. Hugo Grotius

and David as examples; New Testament history,^c including more than one reference to centurions as well as the request made by Paul himself for a military guard against the snares of his enemies; and the centuries following thereafter,^d with their record of numerous exceedingly pious emperors and most Christian kings who waged wars even against men bearing the name of Christians. And what of the written accounts which relate that wars were carried on by those illustrious ancients, Gideon, Barak, Samson, Jephthah, Samuel, and various prophets who were quickened by the same true faith in Christ that quickens us?^e From these examples, it follows that some wars are just for the faithful.

      Informal proofs relative to whole question, based on recorded opinion

      Again, since it is rightly maintained that those things are just and pious which have been so adjudged by just and pious men (not to mention the entire number of the philosophers, or the jurisconsults, none of whom has expressed any doubt on this point), I shall quote a very few of the opinions formulated by persons highly esteemed for their piety and erudition. The following assertion was made by Augustine:^f “The functions of vengeance may be discharged by virtuous men acting with virtuous intent, just as they may be discharged by a judge, or by the law.” The same author wrote:^g “Not for nothing have these institu-tions been established: kingly power, and the lawful authority of judicial inquisitors; the clawlike instruments of the torturer; the arms of the soldier; the discipline of the absolute master, and even the severity of the good father. All of the things above mentioned have their methods, causes, reasons, uses. When they are feared, the wicked are held in check, and the good dwell in tranquillity among the wicked.” This passage, too, is taken from Augustine:^a “The greedy urge to inflict harm, [20] cruel vengefulness, an unappeased and unappeasable spirit, savage rebellion, lust for dominion and any similar trait that may appear—these are the things that law finds blameworthy in warfare. Frequently, in order that such things may also be punished in accordance with law, war itself—of the kind necessarily waged against the violence of opponents, whether by divine command or at the instance of some lawfully constituted sovereign power—is undertaken by good men, who find themselves involved in an order of human events that constrains them, as a matter of justice, either to issue or to obey commands to this effect. Wherefore, John does not instruct the soldiers to abandon their arms, and Christ directs that tribute be paid to Caesar; for, on account of wars, it is necessary that pay be provided for the soldiery.” Augustine^b also supplies us with this correct and extremely concise statement: “Among the true worshippers of God, even wars themselves have a pacific character, being waged not because of cupidity or cruelty, but because of an earnest desire for peace, with the purpose of restraining the wicked and giving support to the virtuous.” He^c takes into account not only divine law, but human law as well, saying: “When a soldier slays a man in obedience to the power under which that soldier has been legitimately enrolled, he is not charged with homicide by any law of his own state.” One among many observations made by Jerome^d runs as follows: “He who smites the wicked because of their wickedness, and holds the implements of destruction for the purpose of putting to death the vilest sinners, is a minister of God.” It was Jerome,^e too, who said: “He is not cruel, who slays the cruel.” The words of Ambrose^a may also be cited: “The courage which by warlike means protects the fatherland from alien enemies, or defends the weak at home, or guards one’s comrades against bandits, is just in the fullest sense of the term.”

      Conclusion I

      Accordingly, whether we obey the guidance of nature (which we must obey, even though it be unwillingly), whether we heed the teachings of Holy Writ (from which it is sinful to dissent), whether or not we are also influenced in some degree either by the example or by the pronouncements of famous men—in short, whatsoever line of reasoning, whatsoever authority, we embrace—we must conclude that: Some wars are just for Christians, against Christians, from the standpoint of all law.^b

CHAPTER IV

       Question II

      Article I. Is the seizure of prize or booty¹ ever just? [20′]

       Article II. Is it ever just for Christians?

       Article III. Is such seizure ever just for Christians, from Christians?

       Article IV. Is such seizure ever just for Christians, from Christians, and from the standpoint of all law?

      Having completed our discussion of the question [of justice] in relation to war, let us pass to another phase of the subject, [justice in relation to] the seizure of prize or booty. The problems arising under this second head are not unlike those previously included under the head of war, and may be dealt with on the basis of the arguments already set forth.

      General Exposition Based on Concl. I and preceding proofs. See also Chap. ix, infra, discussion of aims [of war].

      For, when a particular thing is just in so far as it tends toward the attainment of a given end, that end itself is just in a much higher degree. But war is just for the very reason that it tends toward the attainment of rights; and in seizing prize or booty, we are attaining through war that which is rightfully ours. Consequently, I believe those authorities to be entirely correct who hold that the essential characteristic of just wars consists above all in the fact that the things captured in such wars become the property of the captors:^a a conclusion borne out both by the German word for war,^b [krieg from Middle High German kriec (g), which means “exertion,” “endeavour to obtain something,”²] and by the Greek word for Mars, since Ἄρης, [“Ares,” i.e. “Mars,”] is apparently ἀπὸ του̑ αἴρειν, “derived from ἀείρειν,” [which means “to take away,” “to seize”]. Therefore, the seizure of spoils of war is necessarily just on some occasions;^a and furthermore, it must be just in regard to the same persons and by that same criterion of all law, embraced in our demonstration of the justice of war.

      However, since it is especially important that this part of our discussion should be understood, and since the matter has not been thoroughly dealt with by other writers on the law of war, it seems expedient to reexamine in this connexion the divisions of subject-matter already considered in answering the preceding question.

      Formal Exposition of Article I Cf. 1st Form. Exp. of Art. I, Concl. I

      Accordingly, in order to understand how seizure of spoils is agreeable to the Divine Will as revealed through laws, one must realize that such seizure is made up of two elements, namely, deprivation of previous possession, and acquisition of new ownership. For, just as it is impossible that a given thing should appear at one and the same time in two different forms, so there cannot exist simultaneously two full possessors, or owners, of one and the same thing;^b and therefore, just as removal of the old form must precede the introduction of any new form, so deprivation must precede the establishment of [new] possession and ownership.

      The concept of deprivation, too, has a dual character. It may be absolute, [i.e. a total negation of ownership,] as the naturalists hold that it is by natural disposition in the case of primal