[311] CHAPTER II.

How far by the Law of Nations the goods of Subjects are liable for the debt of the Rulers; and herein, of Reprisals.

I. 1 LET us come to the results which in war flow from the Law of Nations. These belong partly to any war, partly, to certain kinds of war. We begin with the general case.

By the mere Law of Nature, no one is bound by the act of another, except he who is the successor to his property: for the rule that property passes with its burthens, was introduced when property was introduced. The emperor Zeno says that it is contrary to natural equity that one person should be molested for the debts of another. Hence the Roman Law provides that the wife is not responsible for the husband, the husband for the wife, the son for the father, the father or mother for the son.

2 Nor do individuals owe what the general body owes, as Ulpian plainly says: that is, if the general body have property; for otherwise, they are bound, not as individuals, but as parts of the general body. Seneca says, If any one lends money to my country, the debt is not mine: but I will give my share towards the payment. He had before said, Individuals will owe, not as a part of their own debt, but a part of the public. Hence it was specially provided by the Roman Law that the members of a village should not be responsible for the debts of others of the same village; and elsewhere, no possession can be made responsible for other persons’ debts, not oven public debts. And in a law of Justinian, securities for others are forbidden; it being stated as the reason, that the debtor is one person, and the person distrained, another, which is stated to be unreasonable and odious. And so king Theodoric calls this liberty of suretyship disgraceful.

II. 1 But though this is so, a rule may be introduced by the instituted Law of Nations, and it appears, has been introduced, that for a debt due from any civil society or its head, either on his own account or as bound for another, all the goods, corporeal and incorporeal, of the members of the society, are bound and liable. And this rule has been established by a certain necessity, in that otherwise 312there would be great licence for the commission of injury, since the goods of the rulers often cannot so easily be got at, as those of private persons, who are more numerous. And therefore this is one of the rights which, Justinian says, were instituted by nations on the exigency of usage and to meet human necessities.

2 And this is not in any way so repugnant to nature that it may not be introduced by usage and tacit consent, since sureties become bound for debts without any cause, by consent alone. And it was to be hoped that the members of the same society would be able to exact rights from one another, and to consult their own indemnity, more easily than strangers, who in many cases are little attended to: and moreover there was, by such an obligation, an advantage to be gained by all peoples, so that they upon whom in one case it presses heavily, in another would find their relief in it.

3 That this usage is received, appears not only from the wars on a large scale which one people carries on against another: for in these the rule that is followed appears in the formulæ by which war is declared; as in Livy, I declare war against the people of the Latins and against the Latian men: and in the proposal, Whether they wished that war should be declared against Philip of Macedon and those who are under his rule: and in the decree itself, The Roman people order that war should be with the Hermundulan people, and with the Hermundulan men; in Cincius on military affairs, and elsewhere, Let him be an enemy and those who are under his protection: but also, when war on this full scale has not yet taken place, but where some violent exaction of rights, that is, an imperfect war, has been found necessary, we see the same usage prevail. Agesilaus said to Pharnabazus, When we were friends to the king we behaved in a friendly manner to his people: and now that we are enemies, we shall behave hostilely to the same: and therefore as you choose to belong to the king, we shall attack him through you.

III. 1 A kind of the exaction of rights of which we speak was what the Athenians called androlepsy, or man-taking; and the Attic law was, that if any one was violently killed, his neighbours and relative, had the right of taking men till either the murderer was punished, or the murderers given up; but three men only may be taken, and not more. Here we see that for a debt of the city which is under an obligation to punish those of its subjects who have injured others, a certain incorporeal right of the subjects is held bound, namely, their personal liberty; so that they are enslaved till the city punishes the guilty. The Egyptians, as we learn from Diodorus, held that a man’s body or liberty were not to be bound for a debt: but yet there is nothing in such a usage repugnant to nature: and the contrary practice has prevailed not only among the Greeks, but also other nations.

2 Aristocrates, a contemporary of Demosthenes, had proposed a decree that if any one slew Charidemus, he might be taken wherever he was, and if any one resisted he should be held as an enemy. In this, Demosthenes finds much to reprehend; first, that Aristocrates had 313not distinguished between killing justly and unjustly, though it might happen that he was killed justly: and next, that he does not require that first a trial should be demanded: and thirdly, that he requires those to be bound who have received the homicide, and not those among whom the act was committed. And he then refers to the androlepsy just mentioned, saying that The law made them responsible among whom the homicide took place; but that Andronicus left these untouched, and punished those who received the homicide; though the usage of all nations was to protect refugees. The fourth objection is, that Aristocrates makes the matter forthwith a case of public war, the law being content with the man-taking.

3 Of these, the first, second, and fourth arguments are not without weight. But as to the third, except it be restricted to the case of slaying by accident or in self-defense, is said rather oratorically than according to truth and justice: for the law of nations that suppliants are to be received and defended, applies to those, as we have said, who have been unfortunate, not criminal.

4 Moreover the case is the same as to those among whom the crime was committed, and those who refuse to punish or to give up the guilty person. And therefore the law which Demosthenes quotes either receives from usage that interpretation which I have given, or was afterwards expressly made valid against such evasions. That one of these two was the case will not be denied by any one who attends to what is said by Julius Pollux of this androlepsy, referring it to those who receive the homicide. So Harpocration on androlepsy.

5 A like practice it is, when, to recover a citizen made captive by manifest wrong, citizens of the state by which this has been done are detained. Thus at Carthage some interfered to prevent Aristo of Tyre being taken, saying that if this was done, the same would be done to Carthaginians at Tyre, and in other mercantile cities whither they went in numbers.

IV. Another kind of the violent exaction of rights is taking security of the people of the offender; which the more recent jurists call the Right of Reprisals; the Saxons and Angles, Withernamium; and the French, among whom it is granted by the king, Letters of Marque. And this has place, as the jurists say, when Rights are denied.

V. I This is understood to be permitted by custom, not only if judgment against a criminal or a debtor cannot be obtained within a reasonable time; but also in a very clear case, (for in a doubtful case the presumption is for the established judges,) if judgment be given plainly against right. Even among subjects, a wrong sentence does not abolish a true debt. A true debtor though absolved remains a debtor, says Paulus. And when by the wrong doing of the judge the creditor takes a thing which was not the property of the debtor, as being liable; and when it was inquired if when the debt was paid this ought to be restored to the debtor, Scævola decided that it was. There is this difference [between a question among subjects of the same state 314and a question with foreigners], that the subjects of the same state cannot lawfully impede by force the execution even of an unjust sentence, on account of the authority of the law over them; but foreigners have the right of compelling: a right however which they may not lawfully use, so long as they can obtain by judgment what is their own.

2 The rule then that, for such a cause, either the bodies or the moveables of the subjects of him who does not grant me justice, may be taken by me, is not indeed introduced by nature, but is everywhere received as usage. The oldest example is in Homer, where Nestor says that he took the flocks and herds of the Elidians as reprisals for his father’s horses. He goes on to say that he summoned all those to help him who had any debts owing from the Elidians. There is another example in the Roman history, where Aristodemus, the heir of the Tarquins, detained the Roman ships at Cumæ, as security for the goods of the Tarquins. And Aristotle, in his Œconomics, mentions the decree of the Carthaginians for taking the ships of strangers if any one has a claim.

VI. That the life of innocent subjects should be held bound for such cause, was perhaps believed among ancient peoples; and on this ground, that they conceived that every man had a plenary right over his own life, and that this might be transferred to the state; but that this is not good doctrine, nor agreeable to sound theology, we have elsewhere said. It may however take place, not intentionally, but by accident; as if they are killed who attempt to impede the exaction of rights. But if such a result be foreseen, by the law of charity the promotion of right is rather to be omitted, as we have elsewhere shewn; since by that law, the life of a man ought to be of more value to us, especially being Christians, than our goods.

VII. 1 In this matter, no less than in others, we are to distinguish what things are properly juris gentium, parts of the Law of Nations, and what is constituted by Civil Law or by Compact.

2 By the Law of Nations, all the subjects of him who does an injury are liable to be security for satisfaction, being subjects from a permanent cause, whether indigenous or immigrants; but not they who are there in passing, or making a short stay. For such liability is introduced according to the example of the burthens which are laid on subjects for paying public debts: to which those are not liable who are subject to the laws of the place only for a time. From the subjects, are excepted, by the Law of Nations, ambassadors not sent to our enemies, and their property.

3 But by the civil or instituted Law of Nations, there are often excepted from this liability the persons of women and children; and the properly of literary classes, and of merchants. By the Law of Nations any one may take surety for satisfaction, as in the androlepsy of the Athenians. By the instituted law of many places, such satisfaction is to be sought from the supreme authority; and in other 315places, from the judges. By the Law of Nations, the ownership of things taken is ipso facto acquired to the extent of the debt and expenses, the residue being to be returned. By instituted Law, they are to be cited who are concerned, and then their property sold or seized by public authority for the benefit of those who have a claim. Such and other rules are to be sought in those who treat of the Civil Law, and especially, in this matter, from Bartolus, who has written on Reprisals.

4 I will add, because it is a point which tends to the softening of the right of which we are speaking, which of itself is sufficiently harsh, that they who, by not paying what they owed, or by withholding any right, have given occasion for this seizure of securities, are, by Natural and Divine Law, bound to make good the loss to those who have thereby suffered.