Commentary on the Law of Prize and Booty. Hugo Grotius
Чтение книги онлайн.
Читать онлайн книгу Commentary on the Law of Prize and Booty - Hugo Grotius страница 20
![Commentary on the Law of Prize and Booty - Hugo Grotius Commentary on the Law of Prize and Booty - Hugo Grotius Natural Law and Enlightenment Classics](/cover_pre945507.jpg)
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
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?
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 matter, and as we [jurists] find it to be in the case of all things that have not yet come into anyone’s possession, a situation which we call ἀδεσποτεία, “absence of ownership.” Thus we say, “Nature has granted freedom even to dumb animals,” meaning by this assertion that such animals, as long as they have not been captured, are not subject to anyone’s ownership.a Again, deprivation may be specific, as the naturalists describe it in connexion with secondary matter, and as we use the term when ownership has been taken away in actual fact.
The latter process assumes various guises, but the simplest is that in which loss of ownership follows upon loss of possession, precisely as acquisition of ownership follows upon acquisition of possession.b For this is a natural train of events, and one which would always find [21] acceptance if the Fourth Law did not stand in the way. Under the said law, disregard of [existing] possession gives rise to legal claims;c that is to say, seizures made contrary to law are held to be invalid.
But the Fourth Law cannot operate in defiance of the laws of the first order [Laws I and II];d and since the latter allow us to commit