[403] C. 20.
121. This is the longest chapter in the work of Grotius. Several of his positions, as the reader may probably have observed, would not bear a close scrutiny; the rights of individuals in a state of nature, of magistrates in civil society, and of independent communities, are not kept sufficiently distinct; the equivocal meaning of right, as it exists correlatively between two parties, and as it comprehends the general obligations of moral law, is not always guarded against. It is, notwithstanding these defects, a valuable commentary, regard being had to the time when it appeared, on the principles both of penal jurisprudence, and of the rights of war.
Their responsibility. 122. It has been a great problem, whether the liability to punishment can be transmitted from one person to another. This may be asked as to those who have been concerned in the crime, and those who have not. In the first case, they are liable as for their own offence, in having commanded, connived at, permitted, assisted, the actors in the crime before or after its perpetration. States are answerable for the delinquencies of their subjects when unpunished. They are also bound either to punish, or to deliver up, those who take refuge within their dominions from the justice of their own country. He seems, however, to admit afterwards, that they need only command such persons to quit the country. But they have a right to inquire into and inform themselves of the guilt alledged, the ancient privileges of suppliants being established for the sake of those who have been unjustly persecuted at home. The practice of modern Europe, he owns, has limited this right of demanding the delivery or punishment of refugees within narrow bounds. As to the punishment of those who have been wholly innocent of the offence, Grotius holds it universally unjust, but distinguishes it from indirect evil, which may often fall on the innocent. Thus, when the estate of a father is confiscated, his children suffer, but are not punished; since their succession was only a right contingent on his possession at his death.[404] It is a consequence from this principle, that a people, so far subject to its sovereign as to have had no control upon his actions, cannot justly incur punishment on account of them.
[404] C. 21. § 10. Hence it would follow, by the principle of Grotius, that our law of forfeiture in high treason is just, being part of the direct punishment of the guilty; but that of attainder, or corruption of blood, is unjust, being an infliction on the innocent alone. I incline to concur in this distinction, and think it at least plausible, though it was seldom or never taken in the discussions concerning those two laws. Confiscation is no more unjust towards the posterity of an offender than fine, from which of course it only differs in degree: and, on the other hand, the law has as much right to exclude that posterity from enjoying property at all, as from enjoying that which descends from a third party through the blood, as we call it, of a criminal ancestor.
Insufficient causes of war. 123. After distinguishing the causes of war into pretexts and motives, and setting aside wars without any assignable justification as mere robberies, he mentions several pretexts which he deems insufficient, such as the aggrandisement of a neighbour; his construction of fortresses; the right of discovery, where there is already a possessor, however barbarous; the necessity of occupying more land. And here he denies, both to single men and to a people, the right of taking up arms in order to recover their liberty. He laughs at the pretended right of the emperor or of the pope to govern the world; and concludes with a singular warning against wars undertaken upon any pretended explanation of scriptural prophecies.[405] |Duty of avoiding it.| It will be anticipated from the scrupulousness of Grotius in all his casuistry, that he enjoins sovereigns to abstain from war in a doubtful cause, and to use all convenient methods of avoiding it by conference, arbitration, or even by lot. Single combat itself, as a mode of lot, he does not wholly reject. In answer to a question often put, Whether a war can be just on both sides? he replies that, in relation to the cause or subject, it cannot be so, since there cannot be two opposite rights; but since men may easily be deceived as to the real right, a war may be just on both sides with respect to the agents.[406] In another part of his work, he observes that resistance, even where the cause is not originally just, may become such by the excess of the other party.
[405] C. 22.
[406] C. 23.
And expediency. 124. The duty of avoiding war, even in a just cause, as long as possible, is rather part of moral virtue in a large sense, than of mere justice. But, besides the obligations imposed on us by humanity and by Christian love, it is often expedient for our own interests to avoid war. Of this, however, he says little, it being plainly a matter of civil prudence with which he has no concern.[407] Dismissing, therefore, the subject of this chapter, he comes to the justice of wars undertaken for the sake of others. |War for the sake of other subjects.| Sovereigns, he conceives, are not bound to take up arms in defence of any one of their subjects, who may be unjustly treated. Hence, a state may abandon those whom it cannot protect without great loss to the rest; but whether an innocent subject may be delivered up to an enemy is a more debated question. Soto and Vasquez, casuists of great name, had denied this; Grotius however determines it affirmatively. This seems a remarkable exception from the general inflexibility of his adherence to the rule of right. For on what principle of strict justice can a people, any more than private persons, sacrifice, or put in jeopardy, the life of an innocent man? Grotius is influenced by the supposition that the subject ought voluntarily to surrender himself into the hands of the enemy for the public good: but no man forfeits his natural rights by refusing to perform an action not of strict social obligation.[408]
[407] C. 24.
[408] C. 25.