Commentary on the Law of Prize and Booty. Hugo Grotius

the theologians and jurists^c agree, however, in accepting this principle: In so far as subjects are concerned, a war can be just for both parties: always provided, of course, that the war be preceded by a command against which reason does not rebel after the probabilities have been weighed. [36′]

CHAPTER VIII

       Concerning the Forms to Be Followed in Undertaking and Waging War

       Question VII

       Article I. What constitutes just form in undertaking a private war?

       Article II. What constitutes just form in undertaking a public war?

       Article III. What constitutes just form in waging a war, in so far as voluntary agents are concerned?

       Article IV. What constitutes just form in waging a war, in so far as subjects are concerned?

       Corollary I. To what extent is aggressive action permissible against enemy subjects?

       Corollary II. Can seizure of prize or booty be just for both parties, in so far as subjects are concerned; and if so, to what extent is this possible?

       Corollary III. Can [ permanent] acquisition of prize or booty be just for both parties; and if so, to what extent is this possible?

      The forms and modes of warfare, too, must be considered in one light with reference to voluntary agents, and in a different light with reference to subjects. Furthermore, just as in most matters there is one form for an inchoate stage, and another form for a permanent condition, even so there is one mode of voluntarily undertaking a war while there is another mode of carrying it on voluntarily.

      Now, form (according to the ancient philosophers)^a consists in what may be described as a certain orderly arrangement; and therefore, a just form is an orderly arrangement concordant with law, or in other words, a kind of internal harmony among the various laws. This harmonious blend (so to speak) is governed by the Thirteenth Law, [which requires the observance of the different laws in the order of their importance]. As we have already stated, however, war is a process of execution, and only the Ninth and Twelfth Laws, [relative to respect for judicial procedure in the private and public execution of rights,] are pertinent to the proper initiation of this process.

      First of all, let us consider those wars which are undertaken by private individuals. Here we are at once confronted with a rather grave difficulty. For a private war cannot possibly be preceded by a judicial process, since the power of judgement resides in the state and the war would cease to be private as soon as the state interposed its authority.^b How, then, can a private war be just in its external form, when the Ninth and Twelfth Laws call for judicial procedure as a preliminary requisite?

      Even with respect to private individuals, this requirement is confirmed by the authority of sages and of civil law. For no one is [37] given power to set armed forces in motion when the ruler has not been consulted.^c Such conduct, indeed, would constitute not a just war but private robbery.^d Consequently, he who wages war or holds a levy or makes ready an army independently of any command to that effect from the people or the prince, is punishable under the Julian law of high treason.^e Moreover, why are guards stationed in public places, why have prohibitions and warnings against offensive action been incorporated in the laws, if not with the purpose of precluding any excuse for private defence?^f In so far as [unauthorized] defence of one’s own property is concerned, we know that a precept has been established to the following effect: if the owner of a piece of property shall have forcibly seized possession thereof prior to the rendering of a judicial decision, possession shall be restored [to the party from whom the property was seized] and the [original] title to ownership shall be lost.^a Similarly, with reference to debts, violence is said to be employed whenever any person reclaims otherwise than through a judge that which he believes to be his due; and it is also maintained that the legal right of the creditor is lost when the latter has declared the law for himself.^b In the case of crimes, the matter is even clearer: μὴ ἑαυτοὺς ἐκδικου̑ντες, “avenge not yourselves,” says the Apostle Paul.^c And Seneca^d observes: “‘Vengeance’ is an inhuman word, yet it is accepted as having a just connotation; nor does it differ greatly from ‘violence,’¹ save in degree. He who returns an injury merely sins more pardonably.” This same point is borne out in the other pronouncements against violence, made by the philosophers^e and by Christian writers.^f Thus Quintilian^g says: “Requital of injury is inimical not only to law but also to peace. For laws, courts, judges, are all available, save perchance for those who are ashamed to vindicate themselves by legal means.” Quintilian’s assertion is clearly equivalent to these words from the decree of the Roman Emperor [Theodosius]:^h “even if one of them [the Jews] be implicated in crime, the authority of judgements and the protective force of public law have been established in our midst for this very purpose, namely, to preclude the possibility that any individual should be in a position to indulge in direct personal vengeance.” Theodoricⁱ supports the same view when he tells us that, “Pious reverence for the laws is found to have its origin in this very principle: that nothing shall be done by violence, nothing on individual impulse.”

      Force

      New explanation

      On the other hand, we have shown in a preceding passage^a that just wars which are nevertheless private, do spring from the four causes already mentioned; whence it follows that the Ninth and Twelfth Laws must sometimes become invalid, or rather, dormant. Now, they become dormant in obedience to the principle laid down in the Thirteenth [37′] Law, that is to say, as a result of necessity based upon the superior laws; and it is understood that this necessity arises when judicial means for the attainment of our rights are defective. For in so far as such a defect exists, to that extent recourse to force—or, in other words, private execution in accordance with the natural order—is just.^b But as soon as judicial means can be employed, then, as we stated in our discussion of the thirteen laws, all of the said laws must be observed simultaneously. It should be noted, moreover, that the defect in judicial recourse is sometimes of brief duration, sometimes of a more or less continuous nature.^c

      The defect is of brief duration whenever our rights have not yet been violated but the matter does not permit of the delay necessary for judicial procedure.^d In the first place, then, as Baldus^e has said, whatever is expedient for self-defence in such cases, is likewise permissible; for a crisis that threatens our lives permits of no delay. The jurists,^f indeed, approve of everything done to ward off danger, or through fear of death, or for the protection of our persons, or in order to repel violence, in so far as it is impossible for us to defend ourselves becomingly or effectively in any other way. This contention is equivalent to that rule of blameless self-defence which is so frequently reiterated.^g Similarly, it is permissible for us to defend or recover our own property,