Commentary on the Law of Prize and Booty

Chapter XIII

391 u c h a p t e r x i i i u [128] Wherein It Is Shown That the War Is Just, and That the Prize in Question Was Justly Acquired by the Company, in the Public Cause of the Fatherland Part I. This Assertion Is True with Respect to the GovernmentalAssemblies1 [of Holland and of the United Provinces], in Their Character as Voluntary Agents. Part II. It Is True with Respect to the East India Company, in Its Character as a Subject of the Said Assemblies. Part III. [TheWarand theAfore-mentionedAcquisitionAre]Also[Just] on the Basis of the Public Cause of Our Allies. In this same chapter the following theses are presented: [128a] 1. Apoliticallyorganizedcommunity,oritsvariousinternalstates,evenwhen they are ruled by a prince, nevertheless possess authority to enter publicly into a war. 2. A just ground for war against a prince is the defence of long-established hereditary laws by which the principate is bound. 3. War against the prince does not require a declaration of war. 4. It is the part of a good citizen to obey the magistrates currently in office. 5. A citizen fights in good faith against the prince, when fighting in defence of the state and the laws. 1. Ordinum. See note 3, p. 245, supra. 392 chapter xiii 6. The war of a state against a prince who was formerly its own ruler is a foreign war. 7. It is sometimes right for Christians to enter into an alliance of war with infidels who are fighting against Christians. [128] Although, in the sense already indicated, this conflict could have been waged as aprivatewar, and a justone,too,itisneverthelessmoreaccurate to say that in actual fact it is a public war and that the prize in question was acquired in accordance with public law, the author of the conflict being, in reality, the States Assembly of Holland, now allied with the other Provinces of the Low Countries. We have declared that the primary and supreme power to make war resides within the state, and that any perfect community is (so to speak) a true state. Thus (as Victoriaa observes) the Kingdom of Aragon forms a state that is distinct from the Kingdom of Castile, notwithstanding the fact that both kingdoms are subject to one and the same prince. So, too, the domain of Holland in itself constitutesa wholestate.Moreover, just as he who speaks of troops and cohorts is speaking of an army, so he who refers to the internal states [that make up a given political community ] wishes to be understood as referring to nothing more nor less than the said community, since all the parts of an entity, when taken together, are exactly equivalent in point of fact to the whole. [128′] It is a familiar observation in the learned discussionsof thephilosophers, that a thing which constitutes in itself the cause of a certain quality in some other thing, likewise possesses that samequality, andinafargreater degree, provided only that it is essentially capable of possessing such an attribute at all. Now, both by natural and by divine law (according to the thoroughly sound conclusion which we borrow from the aforementioned Victoria),b all civil power resides in the state, which is by its very nature competent to govern itself, administer its own affairs and a. De Jure Belli, 7. b. De Potestate Civili, 7; also discussed by Covarr., Practicae Quaestiones, i, concl. 1; see in discussion of Law X, Chap. ii, supra, p. 44. Part I of Chapter XIII Ded. from Article II, Conclusion V Thesis I justness of the case if the war were public 393 order all its faculties for the common good. Princes, on the other hand, are invested with no just power that has not been derived fromthepower of the state through election either of individual rulers or of dynasties,a so that the right to undertake a war pertains to the prince only in the sense that he is acting for the state and has received a mandate from it.b Therefore, the greater and prior power to declare war lies withinthestate itself,c which is regarded as having set up the prince as its substitute for those purposes which the state could not conveniently realize by its own direct action. Thus the power of the state remains intact even after the establishment of a principate:d so truly intact, indeed, that the Spanish theologiane...