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 another--Property of subjects
answerable for the debts of sovereigns, according to the law
of Nations--Capture of persons and property after satisfaction
refused by the aggressor--Reprisals--Personal safety of
subjects--Distinction 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.
Wars in GENERAL are those, which properly first come under notice.
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 Justinian's 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 enemy's 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 ἀνδροληψια {androlêpsia}, a seizure of men's 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 subject 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 one's 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."
It is upon the same principle that any power may detain the subjects of
another state, in order to procure the release of any subjects of her
own, unjustly seized, and imprisoned by that state.
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 treatise,
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.
VII. But on this, as well as other points, we must take care not to
confound the natural and fundamental law of nations, with the civil and
conventional law of particular states.
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.