Commentary on the Law of Prize and Booty. Hugo Grotius

γεγράφαται τω̑ν πολεμίων οὕτω καὶ κατὰ ἀνθρώπων δοκει̑ μοι χρεὼν εἰ̑ναι ποιει̑ν; “Furthermore, it would seem that the very acts which we have mentioned in connexion with foxes and harmful serpents are proper in connexion with human beings, also.” And to this he adds:^c κιξάλλην καὶ λῃστὴν πάντα κτείνων τις ἀθω̑ος ἂν εἴη καὶ αὐτοχειρίᾳ, καὶ κελεύων, καὶ ψήφῳ; “That person is innocent who slays a thief and robber in any manner whatsoever, whether by his own hand, by his command, or by his vote of condemnation.” One might suppose that the comments of Democritus were read by Seneca,^d who says: “when I give the order for a criminal to be beheaded [. . .], I shall look and feel exactly as I do when killing a snake or any poisonous creature.” In another passage, Seneca^e observes: “We would not destroy even vipers and water-snakes, or any creature that does harm by biting or stinging, if we were able (as we are in the case of other animals) to tame them, or to arrange that they should not be a source of danger to ourselves or to our fellow men; neither, then, will we inflict harm upon a human being because he has sinned, but rather in order to prevent him from sinning. . . .”

      In the light of the foregoing discussion, it is clear that the causes for the infliction of punishment are natural, and derived from that precept which we have called the First Law. Even so, is not the power to punish essentially a power that pertains to the state? Not at all! On the contrary, just as every right of the magistrate comes to him from the state, so has the same right come to the state from private individuals; and similarly, the power of the state is the result of collective agreement, as we demonstrated in our discussion of the Third Rule.^a Therefore, since no one is able to transfer a thing that he never possessed, it is evident that the right of chastisement was held by private persons before it was held [40′] by the state. The following argument, too, has great force in this connexion: the state inflicts punishment for wrongs against itself, not only upon its own subjects but also upon foreigners; yet it derives no power over the latter from civil law, which is binding upon citizens only because they have given their consent; and therefore, the law of nature, or law of nations, is the source from which the state receives the power in question.

      It will be argued, however, that punishments are ordained solely for the good of the state. But this assertion may be repudiated. For the cause of punishments is a natural cause, whereas the state is the result, not of natural disposition, but of an agreement. Human society does indeed have its origin in nature, but civil society as such is derived from deliberate design. Aristotle^b himself, the author chiefly relied upon by those who hold the contrary view, writes as follows: ἄνθρωπος γὰρ τῃ̑ φύσει συνδυαστικὸν μα̑λλον ἢ πολιτικόν. καὶ ὅσῳ πρότερον καὶ ἀναγκαιότερον οἰκία πόλεως, καὶ τεκνοποιία κοινότερον ζῴοις; “For man is by nature a conjugal creature to a greater extent than he is a political creature, in that the family is in truth an earlier and more necessary institution than the state, and the procreation of children a more general characteristic of the animal kingdom [than the gregarious instinct].” This conclusion is also borne out by sacred history. For God, who created all things in the image of His own perfection, created not a state but two human beings. Thus human society already existed at that time, but the state did not exist. Accordingly, as the numbers of mankind steadily increased, natural power was vested (so Homer^a tells us) in the heads of households.

      θεμιστεύει δὲ ἕκαστος

       παίδων ἠδ’ ἀλόχων.

       For wives and children, each man made the laws.

      Therefore, it is reasonable to assume that these household heads had external as well as internal jurisdiction for their own protection and that of their families; and Seneca,^b referring to this attribute, has called them “domestic magistrates.” Now, whatever there was of law at the world’s beginning, prior to the establishment of states, must necessarily have continued to exist afterwards among those human beings who did not set up courts for themselves, and for whom (in Seneca’s^c phrase) “might is the measure of right.” Quintilian^d also makes this very point. Similarly, Nicholas of Damascus^e informs us that among the Umbrians it was the custom for each individual to avenge himself by his own hand. Moreover, the same custom persists to a certain extent among the [41] Sarmatians of the present day. Indeed, we may regard those single combats to which recourse is had even now in many localities, as relics of the said custom and as exceptions (in a manner of speaking) to the Ninth Law. The ancient Romans, too, granted powers of life and death to masters, fathers, husbands, and blood relations.

      The power of execution conferred upon private individuals by a special law springs, of course, from a different cause. For the wars that result when arms are taken up in such circumstances, should perhaps be called public rather than private, since the state undertakes those wars, in a sense, and gives the command for them to be waged by the said individuals. Yet it is true that, in the majority of cases, the rational origin of such conflicts is the same as that of private wars. To take one example, certain laws^a grant the power of direct self-defence and vengeance⁶ to private individuals, precisely on the ground that it is not easy to resist soldiers and collectors of public revenue through the medium of the courts; and these particular precepts accordingly represent what we retain of natural law—the vestiges of that law, so to speak—in regard to punishments.

      One point, however, still remains to be clarified. If the state is not involved, what just end can be sought by the private avenger? The answer to this question is readily found in the teachings of Seneca,^b the philosopher who maintains that there are two kinds of commonwealth, the world state and the municipal state. In other words, the private avenger has in view the good of the whole human race, just as he has when he slays a serpent; and this goal corresponds exactly to that common good toward which, as we have said, all punishments are directed in nature’s plan. The same point is expounded by Plutarch^c in this admirable statement: τῳ̑ δὲ (θεῳ̑) ἕπεται δίκη τω̑ν ἀπολειπομἑνων του̑ θείου νόμου τιμωρός. ᾑ̑ χρώμεθα πάντες ἄνθρωποι φύσει πρὸς πάντας ἀνθρώπους ὥσπερ πολίτας. “Justice walks with God, bringing vengeance upon those who trespass against the divine law; and in the natural order, all of us, as human beings, avail ourselves of that justice, as against all men in their civic character.” The explanation offered by Plutarch does not differ greatly from the contention of the Scholastics,^d that we ought to seek vengeance even for our own injuries if they are of such a nature as to redound to the detriment of the Church, that is to say, to the detriment of all good men.

      It would seem, indeed, that this care for the common good is in equal degree the proper function of every person, whether the injury in question has been inflicted upon that person himself or upon another, save for one difference, namely, that it may be more hazardous to execute vengeance for one’s own injuries, because the observance of a just moderation and a just purpose is difficult in such a case. For as a general [41′] rule that person does not move toward a goal but is driven (to borrow the phrase of Seneca),^a who, instead of entrusting his revenge toanother, rages alike in thought and in deed while exacting vengeance personally. It is for this reason that princes—the only persons under the established judicial system who cannot be avenged otherwise than by their personal intervention—are wont to be admonished that they should weigh out vengeance not with a view to inflicting pain but for the purpose of setting an example.^b

      Natural reason persuades us, however, that the faculty now vested in princes in consequence of the fact that civil power must have lapsed in some other possessor, formerly resided