Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter II: In What Manner the Law of Nations Renders the Property of Subjects Answerable for the Debts of Sovereigns. The Nature of Reprisals
No one but an heir bound by the act of anotherProperty of subjects answerable for the debts of sovereigns, according to the law of NationsCapture of persons and property after satisfaction refused by the aggressorReprisalsPersonal safety of subjectsDistinction made by the law of Nations in this respect.
I. THE RIGHTS accruing from the law of Nations are the points next to be considered, which may be referred either to wars in GENERAL, or to those of a PARTICULAR description.
By the LITERAL law of nature, no one is bound by the actions of another, except the person, who succeeds to his property. For the introduction and establishment of property introduced and established also the power of transferring it with all its incumbrances. The Emperor Zeno however pronounces it repugnant to natural justice for one man to be molested for the debts of another. A principle, which gave rise to the distinctions in the Roman law, that the wife could not be sued for her husband, nor the husband for his wife, nor a son for his father, nor a father or mother for their son. Nor, as Ulpian clearly states it, could individuals be answerable for the debts of the community, and more especially if that community be possessed of property. Indeed if that were not the case individuals could only be obliged to contribute their due proportion, as members of that community.
Seneca says, if any one lends money to my country, I am not to be considered as his debtor, nor to take the debt upon myself, though I am bound to pay my due proportion of it. There was a special provision made in the Roman law, that one peasant should not be bound for the debts of another, and it is laid down as a rule, that the goods of one person shall not be distrained for the debts of another, even if they be public debts; and in Justinians Novels, pledges for others are forbidden, and the cause assigned for it is, because it is unreasonable that one person should incur the debt, and another be bound to the payment of it, an exaction to which the name of ODIOUS is given. King Theodoric Cassiodor, calls it a shocking licence for one man to be detained as a pledge for another.
II. Although in the preceding observations there may be a great deal of truth, yet it is possible, and indeed appears actually to be the case, that the voluntary law of nations introduced the practice of rendering all the corporeal, and incorporeal property, belonging to the subjects of any state or sovereign, liable to the debts, which that state or sovereign may have incurred, either personally, or by refusing to make such reparation, as may be due for the injuries and aggressions, which they have committed.
Yet this is a practice, which nothing but necessity could justify; for, on any other ground, it would be opening a door to innumerable acts of wanton aggression and injustice against individuals. As the property of states and sovereigns cannot often so easily fall into an enemys hand, as that belonging to individuals, who are more numerous, and whose property is consequently more exposed. So that rights of this kind are to be reckoned among those, which Justinian says, are the offspring of stern necessity, the calamities of men driving them to the use of such means.
But though a practice like this owes its introduction to NECESSITY, it is not so far at variance with the law of nature, as to exclude CUSTOM and TACIT agreement from having some share in its establishment. For we find that sureties are bound by no other tie, but that alone of having given their consent. Besides, it might easily be supposed, that it was the best method of redress against the subjects of another state, where the aggrieved persons could not so easily prosecute their rights, or obtain indemnities, the claims or injuries of strangers being but little understood, and perhaps still less regarded in a foreign land.
Subjects, being thus liable to the loss of their property, by the conduct of their fellow subjects, or by that of the state, might sometimes feel it a hardship, while on other occasions, it would prove their greatest security against aggressions from the subjects of another power.
That this was a received custom appears not only from the regular wars, carried on by one state against another, the rules observed in which are often named in the manifestoes issued on such occasions: the form of which may be seen in the first book of Livy, where it is said, I declare war against the ancient nations of the Latins, and likewise against the respective individuals; and the same writer, in his thirty first book, informs us, that, upon the question being put to the people, they were asked, whether it was their pleasure that war should be declared against Philip, and against the Macedonians, his subjects.But the same custom also prevailed, even before the commencement of actual and open hostilities between two states, when mutual acts of aggression by the subjects of each power could be regarded as nothing but the eve, and prelude to a declaration of war. The words used by Agesilaus to Pharnabazus will serve to elucidate this point: he said; While we were friends to the king of Persia, we treated him and his subjects in a friendly manner: now we are enemies, you can expect nothing from us but hostilities. Therefore, Pharnabazus, while you chuse to continue a vassal to the King, we wound him through your sides.
III. The Athenians had a method somewhat like this of seeking redress, which they called [Greek], a seizure of mens persons, which was laid down in the Attic law in the following terms, if any one has been murdered in a foreign country, the nearest relatives of the deceased are authorized to seize any three subjects of that country, but not more than three, till the perpetrators of the deed be punished, or at least delivered up to the hands of justice for that purpose.
In this case we find that the personal liberty of subjects, which may be considered as a kind of incorporeal right, including the right of residing where they please, or doing whatever they may think proper, is made answerable for the debt of the state, who is bound to punish the criminal acts of her subjects: so that the subjects suffers constraint, till the state has discharged the debt, which it is bound to pay; and by the payment of this debt is meant the punishment of the guilty. For although the Egyptians, as we learn from Diodorus Siculus, maintained that neither the person, nor liberty of any one ought to be bound or constrained for a debt, there is nothing in it repugnant to the law of nature, and by the practice not only of the Greeks, but of other nations, the opposite opinion seems to have been established.
Aristocrates, who was contemporary with Demosthenes had made a motion for a decree, that if any one killed Charidemus, it might be lawful to seize him, wherever he was to be found, and that any one, who attempted to rescue that person, should be deemed an enemy. Demosthenes finds fault with many parts of this decree. For in the first place, Aristocrates had omitted making a proper distinction between murder and a lawful putting to death, the latter of which is an act of justice in the next place, he has said nothing of bringing the person to a regular trial: besides, it was not the persons, among whom the murder had been committed, but those who afterwards received the murderer, that were to be declared enemies. Demosthenes says, that the regular law prescribes, that if the persons in whose district a murder has been committed, neither punish, nor deliver up the perpetrator of the crime, three of their people shall be liable to be seized. But this decree, allowing the persons in whose district it has been committed to escape with impunity, not even naming THEM, passes sentence upon those, who in conformity to the common laws of humanity have received the fugitive, if they do not deliver him up, which would be a breach of the protection due to a suppliant.
The fourth point, in which he blames Aristocrates, is for having carried matters to the extremities of open and actual war, in a case, where the law only authorized the seizure and detention of particular persons. Of these arguments, the first, the second, and the fourth, are by no means destitute of weight. But the third argument, unless it be confined entirely to the circumstance of accidental death, or that necessarily occasioned by defending ones self, may be regarded more as an oratorical flourish than a just and solid reason. For the law of nations extends the privileges, and character of suppliants to those only, who have left their country on account of misfortune, and not owing to crimes. Indeed if the law of nations made no such distinction, the persons, among whom a crime has been committed, and who may be suspected of having countenanced the deed, and those who barely refuse to punish or deliver up the guilty fugitive, would be upon an equal footing as to right. So that it was either USAGE, which GRADUALLY introduced the above interpretation of that law, to which Demosthenes appeals, or it was afterwards more EXPRESSLY ESTABLISHED, in order to avoid such cavils. For no one can deny the truth of one of these positions who has attended to the observation of Julius Pollux, that the seizure and detainder of persons can be enforced, whenever a power cannot obtain the surrender of fugitive murderers, which they demand. In this case the aggrieved power or individual may seize and detain any three of the people belonging to the state, which refuses to make that surrender.
IV. Another method of obtaining redress for any violation of persons, or property is by having recourse to what, in modern language, are called REPRISALS, which the Saxons and Angles denominated WITHERNAM, and to which the French gave the name of LETTERS OF MARQUE, and those were usually obtained from the crown.
V. It is generally understood that recourse may be had to this method of redress not only against a foreign aggressor, but also against a debtor, if justice cannot be obtained in due time: but in NOTORIOUS cases, which admit of no doubt, this right may be enforced even beyond the strict letter of the law. For even in DOUBTFUL matters, the presumption will always be in favour of judges appointed by public authority. For it is unlikely that they should GREATLY, or WANTONLY exceed their power; especially when, if so inclined, they have not the same means of enforcing their decrees against foreigners, as against their fellow subjects. Indeed even in disputes between subjects of the same country, they cannot annul a just debt. Paulus, the Lawyer, says that a REAL DEBTOR, though discharged, owing to some informality or inability of the law to enforce payment, still remains a debtor according to the law of nature.
And when, in consequence of a judicial sentence, a creditor, under pretext of seizing his own property, had taken from a debtor something which did not belong to him though it was in his possession: upon the discharge of the debt, a doubt arising whether the thing should be restored to the debtor, Scaevola maintained that it certainly ought to be restored.
There is a difference between the two cases. For subjects, AS SUCH, cannot make any violent resistance to the execution of a sentence, which they may not deem satisfactory, nor can they prosecute any right in opposition to the law. FOREIGNERS may use violent means to enforce a right: tho they are not justified in using such means, while there is any possibility of obtaining redress in a legal, and peaceable manner.
It is on such grounds that reprisals are made upon the persons and property of the subjects, belonging to a power, who refuses to grant redress and reparation for injuries and aggressions. It is a practice not literally enacted by the law of nature, but generally received through custom. It is a practice too of the greatest antiquity: for in the eleventh book of the Iliad, we find Nestor giving an account of the reprisals, which he had made upon the Epeian nation, from whom he took a great number of cattle, as a satisfaction for a prize which his father Neleus had won at the Elian games; and for debts due to many private subjects of the Pylian kingdom. Out of this booty the king having selected his own due, equitably divided the rest among the other creditors.
VI. It has been a received opinion with many nations, that reprisals might be made even upon the LIVES of innocent subjects, owing to the right, which it was supposed that every one had over his own life, and which might be transferred from the individual to the state. A doctrine, which, as it was proved in the first book of this treaties, can never be reconciled either to sound religion or morality. Indeed a person may ACCIDENTALLY, though not INTENTIONALLY be killed by us in attempting to prevent him from violently obstructing us in the prosecution of a lawful right. Yet if such an accidental calamity could be foreseen, the law of charity, setting so pre-eminent a value upon the life of man, would in such a case prescribe the forbearance of our right.
By the law of nations all the permanent subjects, both natives and settlers, of an offending state or sovereign are liable to suffer reprisals: but the same rule does not bind those, who are passing through a country, or only residing in it for a time. For such reprisals are a kind of pledges, like public burdens, made answerable for the public debts, from which foreigners, being temporary residents, though owing obedience to the laws, are totally exempt.
In the same manner, Ambassadors, but not those sent from an enemy to our enemies, and their property, are exempt from such conditions by the law of nations. By the CIVIL LAW too of many countries an exception is made in favour of women and children, of men of letters, and those who are travelling for the purposes of trade. But by the law of NATIONS the goods of all are liable to reprisals, as was the case at Athens, respecting the seizure of persons. In many places, by the civil law, the right of making reprisals is obtained of the sovereign, and in others, of the judges.
By the law of nations the property of all captures is devoted to discharge the debt, and defray the expenses incurred, the remainder of which, after due satisfaction obtained, and peace concluded, should be restored. By the civil law the persons interested are summoned to appear, the property is sold by public authority, and the money, accruing from thence, divided among all who are entitled to a share of the same. But these and other points of the same kind are to be learned from civilians, who are conversant in such matters, and particularly from Bartolus, who has written upon reprisals. This subject may be closed with one observation, that will in some measure tend to soften the rigour of this stern, but necessary right, and that observation is, that such as by not discharging a debt, or granting redress, have occasioned reprisals to be made, are bound, in justice and honour, to make good the losses of those, who have thereby suffered.