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L

GENERAL PREFACE

THE

LIBRARY

OF

UNIVERSAL

CLASSICS

AND

RARE

MANUSCRIPTS,

twenty volumes are

devoted to the various branches of Govern-

ment, Philosophy, Law, Ethics, English and

French Belles Lettres, Hebraic, Ottoman,

and Arabian Literature, and one to

a

col-

lection of

150

reproductions, bound in Eng-

lish vellum, of the autographs, papers and

letters

of

Rulers, Statesmen, Poets, Artists

and Celebrities ranging through three cen-

turies, crowned by an illuminated facsimile

of that historic Document, the Magna Carta.

The series in itself

is

an epitome of the

best in History, Philosophy and Literature.

The great writers of past ages are accessi-

ble to readers in general solely through

translations.

It

was, therefore, necessary that

translations

of

such rare Classics as are em-

bodied in this series should be of the best,

and should possess exactitude in text and

supreme faithfulness in rendering the au-

thor’s thought. Under the vigilant scholar-

s)ip

of

the Editoral Council this has been

accomplished with unvarying excellence.

The classification, selection

and

editing of

the various volumes have been the sub-

(i)

ii

THE

UNIVERSAL CLASSICS

ject of much earnest thought and consultation on the

part of more than twenty of the best known scholars of

the day,

The Universities

of

Yale, Washington, Cornell, Chi-

cago, Pennsylvania, Columbia, London, Toronto and

Edinburgh are all represented among the contributors,

the writers of special introductions, or upon the consult-

ing staff, the latter including the Presidents of five of

the Universities mentioned. Among others who contrib-

ute special essays upon given subjects may be mentioned

the late Librarian of the British Museum,

Dr.

Richard

Garnett, who furnishes the essay introducing ((Evelyn’s

Diary.” From the Librarian of the National Libraiy

of

France, L6on VallBe, comes the fascinating introduction

to the celebrated

‘(

Memoirs of the Duc de Saint-Simon.”

The scholarly minister to Switzerland (late First Assist-

ant Secretary

of

State), Dr. David

J.

Hill, lent his wide

reading to the brilliant and luminous essay that pre-

cedes the

“

Rights of War and Peace.” The resources

of

the Congressional Library at Washington, as well as of

foreign libraries, have all been drawn upon in the gigan-

tic task of compressing into the somewhat narrow limits

of

twenty volumes all that was highest, best, most en-

during and useful

in

the various ramifications

of

litera-

ture at large.

The first section of the Library is devoted entirely to

the manuscript reproductions of the autographs

of

cele-

brated men in all ranks and phases

of

life, covering a

period

of

three centuries. They are, in fact, the Ameri-

can edition

of

the reproduction of rare and celebrated

autographs drawn from the British Museum that was

issued in England under the editorship

of

the Assistant

Keeper of the Manuscripts. They afford an opportunity

to the inquiring reader to study the characters

of

Rulers,

Statesmen, Writers, and Artists through the medium of

their chirography.

It

has

long been recognized that character is trace-

able through handwriting.

So

it

is

interesting

to

discern

GENERAL

PREFACE

iii

in

the characters traced by Henry VI11 the hardened, sen-

sual and selfish character of that autocrat and polygamist;

in the writing of Thomas Wolsey, those crafty traits com-

bined with perseverance and mock humility which

raised him wellnigh to supremacy in the realm and led

him finally to a downfall more complete than any we

read of in English history; and in that of Charles V,

of

Spain, the hard-headed continence of character and su-

perb common sense which enabled him at the height of

glory to retire to

a

monastery while yet there was “day-

light in life,” as he expressed it,

“

for the making of his

soul.” Apart from the historical interest of these Docu-

ments, this study of character as revealed in them will

prove fascinating to thinking minds.

The Magna Carta, greatest of all historical char-

ters wrung from the various kings of England from

Henry

I

downward, was granted

by

King John at the

pressing instance of the Barons and Commons of England

toward the end of his ill-judged and unfortunate reign.

Of this Document, celebrated and historic as it is, but

little is known at large. Although Blackstone and other

prominent lawyers have written upon it, information

about it

is

hard to obtain.

No

reproduction of the orig-

inal Document has ever been offered to American col-

lectors. This facsimile is illuminated in colors with the

shields of many

of

the Peers who compelled King John

to

accede to their demands for civil and religious liberty.

The original charter was signed at

a

place called Runny.

mede (the Council Meadow)

a

spot between Windsor and

Staines, on the 15th of June,

1215,

about a year before

the death of John. It practically guaranteed to the Com-

mons of England all the civil and religious rights they

enjoy to-day. It dealt with testamentary law as well, se-

curing to widows all the legal rights which they to-day

possess. It dealt with the rights of accused persons; with

military service; with feudal tenure; with taxation, and

it

limited the heretofore autocratic power of the King to

an

extent unknown before in the history of the world.

iv

THE

UNIVERSAL

CLASSICS

If

we except the Declaration of Independence, it

is

the

most interesting historical record of all time.

The Second Section of the Library (ten volumes) is

devoted to the presentation of Government, Philosophy,

Law and Ethics. This section embraces such names as

Grotius, Plato,

Sir

George Cornewall Lewis, Adam Smith,

Hamilton, Madison, Jay, Walter Bagehot, Spinoea, Schop-

enhauer, Machiavelli, as well as those builders of Ideal

Governments, More, Bacon, Campanella and Rousseau.

Of all benefactors in Literature of the human race,

Grotius may perhaps rank as first among his equals.

Centuries have borne witness to the justness of his pre-

mises and the wisdom of his conclusions. The princi-

ples of national law laid down by him are to-day accepted

as the axioms of the Science. Among the nations, perhaps

the United States

is

most deeply interested in the right

administration of the principles affirmed by Grotius in

his gigantic work on the

‘(

Rights of War and Peace,”

and it was therefore most fitting, when the recent peace

conference at The Hague completed the great structure of

international comity, the foundations of which were laid by

Grotius in

1625,

that a silver wreath was laid by the

representative of the United States upon the grave of

the man to whom the Conference owed its initial impulse,

although at a distance in time of nearly three centuries.

When the Publisher determined, under the advice

of

his

Editorial Council, to publish Grotius, he found that only

two volumes

of

the first edition were available in the

Library of Congress. At much expense and trouble, he

instituted a search in Europe and finally obtained the

missing volume, which he presented to the Congressional

Library, where

it

now

is.

Sir George Cornewall Lewis’s “Government of Depend-

encies”

is

characterized by the accuracy of its information

It is a reliable text book for the guidance of any nation

in

the treatment of its dependencies and colonies. It

is

a

Classic that will survive as long as colonization re-

mains to be done, and it

is

remarkable that although it

GENERAL PREFACE

V

was published for the first time sixty years ago, the illus-

trations afforded by the last two generations support the

justice

of

its principles and the exactness

of

its deduc-

tions.

Adam Smith’s

i‘

Essay on Colonies

”

presents an intro-

ductory view

of

the principles governing colonial policy.

It is a fitting work to

go

hand in hand with the greater

one of Sir George Cornewall Lewis.

It

is of practical

use to American Statesmen, since the United States

seems at present to be entering upon a world-wide colo-

nial policy. Its practical wisdom, which has made it a

Classic for all times, finds a special applicability in the con-

ditions

of

today, for Adam Smith was a theorist in the

best sense

of

the word, that is to say, he was a man

whose breadth of view, instead

of

unfitting him for prac-

tical details, enabled him

to

deduce from the lessons of

history and experience the right solutions for the prob-

lems

of

Colonial policy.

Plato’s “Republic” and “Statesman” must be regarded

to-day not merely as historical records of a by-gone

philosophy, but as living, teaching dissertations upon

theories which cannot fail to awaken in studious minds

the highest ideals

of

life and government. Modern

problems stated in the light

of

Plato’s philosophy, as it

is

expressed in these books, will find readier solutions

when examined in the light

of

its principles.

No

student

of

sociology, of politics, national and municipal, or of

government in all its many-sided aspects, can afford

to

be without a knowledge of these immortal discourses,

Goldwin Smith has declared that

of

all expositions of

constitutional Government,

(‘

The Federalist

”

ranks the

highest. When Hamilton, Madison, and Jay first conceived

the idea of printing in the common tongue their ideas upon

the principles of free government, they unwittingly laid the

foundations

of

the best commentary on the principles

of

popular government ever written. Political science

owes to them the most important contribution to its lit-

erature made since its birth. The Essays are equally ad-

vi

THE

UNIVERSAL

CLASSICS

mirable for sagacity, simplicity, and patriotism, and while

The Federalist will never be read for pleasure, it con-

tains

a

mine

of

wisdom for the student and the constitu-

tional lawyer, and

as

a

text

book

of

political science

is

without a parallel.

When Bagehot issued his work on the English Con-

stitution,

it

was hailed by the critics as the most won-

derful and philosophical dissertation

on

the subject in

any language or from any pen. John Stuart Mill used

to say that of all great subjects much remained to be

written, and that especially was this true

of

the English

Constitution. Bagehot’s work, although affording the

conclusion that monarchy in England exists as

a

logical

necessity, is

so

unbiased in its premises,

so

logical and

clear in its deductions, that this manifest fairness,

al-

though leading one to conclusions distasteful to a repub-

lican mind, must endear him to his readers. Dealing

with a subject somewhat dry in its details, he invests

inanimate objects with

so

much light that they become

realities. In the highest sense he combines popularity

and scholarship.

Spinoza’s philosophy may be traced both to the in-

fluence of Bacon, his predecessor, and to Descartes, his

contemporary. Its combination of positivism with the

enthusiasm of piety characterizes his philosophy as unique

in itself, for while treating man from a purely mechan-

ical standpoint, it asserts that the mechanism itself

is

en-

tirely divine. Spinoza was a voluntary martyr in the

cause of Free Thought. He was at the same time both

Pantheist and Monist, yet sincere in his devotion to na-

ture and the God of nature. His religion naturally made

him a Monist, while his philosophy led him to express

the Pantheism that the lover

of

God in Nature cannot

avoid. While he renounced his Judaism and entered the

ranks of the Christian philosophers, he never received

baptism. He may be ranked among the greatest

of

the

German mystics, whose work had such profound influence

upon the dogmatic Christianity of

a

later day. The epi-

GENERAL

PREFACE

vii

thet conferred on him, namely,

(‘

God-intoxicated,’’

summarizes his whole attitude and the character of his

philosophy better than any lengthy dissertation.

When Schopenhauer began to write, he declared him-

self a true disciple of Kant, but he modifies and adapts

Kant’s “Critique of Pure Reason

”

to such an extent

that he reaches the attitude of opposition. This atti-

tude he manifests throughout all his writings. He

is

truly an Apostle of Protest, but

in

spite of his

positivist contradictio’ns and his materialistic pantheism,

he opens up a mine of suggestions to the literary and

philosophical student. In spite of the apparent tragedy

due to the conflict within him, we cannot help gather-

ing from Schopenhauer an immensity of what is true,

what is good and what is excellent. One thing espe-

cially noticeable about his writings is that while

German philosophers are often ponderous and in fact

nebulous, Schopenhauer is always clear, original, and

readable.

To

Machiavelli belongs by acclaim the honor of hav-

ing written the ideal biography of a State. His clear,

straightforward, concise statement

of

conditions and char-

acters as he saw then is a model for all writers of rec-

ord. He was the first great Italian historian, and no

man has ever been more ardent in his patriotism

or

a

more earnest supporter of government

for

and by the peo-

ple, The greatest tribute to his inflexible honesty of

character is the fact that while

no

man had greater op-

portunities to enrich himself at the cost of the State, he

died leaving his family in the greatest poverty. His

varied political experience, and his assiduous study of

classic writers, gave him the ability as well as the

desire

to

write the history of his native State. .Time has pro-

nounced this History to be a classic worthy of preserva-

tion, and the perspective of time has also enabled

us

to

form

a juster and greater estimate of its author.

The Ideal Republics and Emptres that have been

constructed

from

time to time

by

political dreamers have

viii

THE

UNIVERSAL CLASSICS

all

the attractiveness of works like Pilgrim’s Progress

or Gulliver’s Travels, combined with a philosophy and

political insight that give them a double claim to be

considered Classics. Modern progress may be more deeply

indebted than we can estimate to the fantasies and

airy castles

of

men like Rousseau, More, and Campanella.

The four Ideal Republics or Governments described in

this volume are perhaps the most famous of all, since

they rank not only as great creations

of

the imagination

but as literature

of

the highest class; and their writers

have a fnrther claim upon posterity from the fact that

they helped

to

make history.

The Third and concluding Section of the Library deals

with that tremendous range

of

world-wide literature

which we call, for want

of

a better name, Belles Lettres.

Goethe contributes his brilliant and sagacious observa-

tions on men and things as he communicated them to

Eckerman. Landor,

of

whom Swinburne has said that

Milton alone stands higher, both in prose and verse, fur-

nishes

us

with his Classical Conversations. Montesquieu

and Goldsmith are drawn on for their Persian and Chi-

nese Letters. Lord Chesterfield gives

us

the irony and

hard-headed criticism combined with worldly common

sense contained in the Letters to His Son, and the vari-

ous

names best known in French and English Belles

Lettres yield what is greatest in them. Ottoman Literature,

comprising Arabian, Persian, and Hebraic Poems, affords

the reader an insight into the romantic and dramatic

character of the Oriental. The Dabistan, possibly the

most extraordinary book ever written

in

the East, finds

itself at home in this section, while the Literature of the

Hebrews is ideally represented in that most wonderful

of

all monuments

of

human wisdom, and perhaps folly, the

“

Talmud,” together with the basis of modern metaphysics,

the

I‘

Kabbala.

”

The Sufistic Quatrains of Omar Khayyam are here

for

the first time presented complete in a collection

of

this order. The various editions

of

Fitzgerald are re-

GENERAL PREFACE

ix

printed, collated, and to them is added the valuable

Heron-Allen analysis of Fitzgerald's sources

of

inspira-

tion. The very rare Whinfield version is found here

complete; and for the first time in English appears

M.

Nicolas' French transcription of the Teheran Manuscript.

It

is

safe to say that any lover of Omar wishing to add

to his collection the versions here quoted would be com-

pelled

to

disburse more than one hundred times the

amount this book will cost him.

While the Library

of

Universal Classics does not claim

to

be the final condensation of the treasure houses

of

human philosophy and lore, whether practical or ideal,

it does most emphatically assert its right to

be

called

the most useful, most attractive, and most representative

selection, within the limits assigned to it, of those world-

masterpieces of literature which men, for lack

of

a more

luminous name, call Classics.

Corrnlc~r.

19G:,

8"

M.

WALTER

DUNNE,

PUBLIBHER

ILLUSTRATIONS

HUGO

GROTIUS

,

.

,

. .

,

.

,

.

,

Frontisjiece

From

an original painting.

WAR,

...............

.10g

From a panel painting

in

Library

of

Congress.

PEACE.

................

213

From a panel painting

in

Library

of

Congress.

WAR

AND

PEACE

.............

307

By

Gari Melchers,

By

Gari Melchers.

Frontispiece to a rare edition

of

Grotius.

(xi)

CONTENTS

BOOK

I.

CHAPTE~

PAW

Introduction

. . . .

,

. .

.

. . . .

.

I

I.

On

War and Right

.

. .

.

. . .

17

11.

Inquiry into the Lawfulness

of War

.

. .

.

31

Nature

of

Sovereign Power

.

,

.

. .

55

111.

The Division

of

War into Public and Private, and the

BOOK

II

I.

11.

111.

IV.

IX.

X.

XI.

XII.

XIII.

xv.

XVI.

XVII.

XVIII.

XIX.

xx.

XXI.

XXII.

XXIII.

XXIV.

Defense of Person and Property

,

.

. .

.

. .

.

73

The General Rights of Things

. .

,

.

. . .

,

85

On

the Original Acquisition

of

Things, and the Right

of

Property in Seas and Rivers

. .

103

Title to Desert Lands by Occupancy, Possession, and

Prescription

.

. .

.

. .

.

10g

In What Cases Jurisdiction and Property Cease

. . .

117

The Obligation Arising from Property

.

,

. .

123

On

Promises

. .

.

. .

.

. .

.

131

On

Contracts

.

. . .

.

I44

On

Oaths

. . . . .

.

. .

.

. .

.

160

On

Treaties and

on

Engagements Made by Delegates

Exceeding Their Powers

.

. . .

,

.

166

The Interpretation

of

Treaties

. .

I

.

,

.

x76

On

Damages Occasioned by Injury, and the Obligation

to Repair Them

.

. .

. . . .

.

I95

On

the Rights of Embassies

.

. . .

202

On

the Right

of

Burial

.

. . .

.

. .

.

213

On

Punishments

.

. .

.

. .

220

On

the Communication

of

Punishment

.

256

On

the Unjust Causes of War

. .

.

. .

267

On

Doubtful Causes

.

. .

,

.

,

274

Precautions against Rashly Engaging in War, Even

upon

Just Grounds

. .

.

280

BOOK

III.

1.

What

Is

Lawful in War

.

. .

.

zgo

11.

In What Manner the Law

of

Nations Renders the

Rop

erty

of

Subjects Answerable for the Debts

of

Sovereigns. The Nature of Reprisals

. . .

.

307

111.

On

Just

or Solemn War According

to

the

Law

of

Nations

on

Declarations of

War

,

.

,

314

(xiii)

xiv

THE

RIGHTS

OF

WAR

AND

PEACE

CEAPTBP

PAW

IV.

On

the Right

of

Killing an Enemy

in

Lawful

War

and

V.

On

the Right

to

Lay Waste an EneQy’s

Country

and

VI.

On

the Acquisition

of

Territory and Property

by

Right

Committing Other

Acts

of

Hostility

. .

.

3a3

Carry

Off His

Effects

.

,

.

. . . .

.

*

332

of

Conquest

.

. .

.

,

.

. .

.

334

VII.

On

the Right over Prisoners

of

War

. .

.

345

VIII.

On

Empire over the Conquered

,

.

,

.

,

.

348

IX.

Of

the Right

of

Postliminium

. .

,

. . .

,

.

351

XI, The Right

of

Killing Enemies,

in

Just War, to

be

Tempered with Moderation

and

Humanity

. .

359

XII.

On

Moderation

in

Despoiling an Enemy’s Country

, ,

365

XIII.

On

Moderation

in

Making Captures in War

.

,

.

369

XV.

On

Moderation in Acquiring Dominion

.

. . .

372

XVI.

On

Moderation with Respect to Things Excluded from

the Right of Postliminium by the

Law

of

Nations

.

375

XVII. Respecting Those Who Are Neutral in War

. . . .

377

XIX.

On

Good

Faith between Enemies

.

. .

.

379

XX.

On

the Public Faith by Which War

Is

Concluded;

Comprising Treaties of Peace, and the Nature

of

Arbitration, Surrender,

Hostages,

Pledges

.

385

XXI.

On

Faith During the Continuance

of

War,

on

Truces,

Safe-conducts, and the Redemption

of

Prisoners.

403

XXII.

On

the Faith

of

Those Invested with Subordinate Powers

XXIV.

On

Tacit Faith.

.

. . .

,

.

. .

415

in War

.

. . . .

.

. .

.411

XXV. Conclusion

.

,

.

, ,

.

. . . .

.

417

INDEX

. .

.

. .

.

. . .

.419

INTRODUCTION

THE

WORK

AND

INFLUENCE

OF

HUGO

GROTIUS.

T

HE

claims of the great work of Grotius,

“De

Jure

Belli

ac

Pacis,’)

to be included in a list of Universal

Classics,

do

not rest upon the felicity of style

usually expected in a classic composition. His work

is

marked by frequent rhetorical deformities, tedious and

involved forms of reasoning, and perplexing obscurities

of phraseology which prevent its acceptance as an exam-

ple

of elegant writing. Notwithstanding these external

defects,

it

is,

nevertheless, one of the few notable works

of genius which, among the labors of centuries, stand

forth as illustrations of human progress and constitute

the precious heritage

of

the human race.

If

it is not literature in the technical sense, the mas-

terpiece

of

Grotius is something higher and nobler,-a

triumph of intelligence over irrational impulses and bar-

barous propensities. Its publication marks an era in the

history of nations, for out of the chaos of lawless and

unreasoning strife it created a system of illuminating

principles

to

light the way of sovereigns and peoples in

the paths of peace and general concord.

I.

THE

REIGN

OF

WAR.

The idea of peaceful equity among nations, now ac-

cepted as a human ideal, though still far from realiza-

tion, was for ages a difficult,

if

not an impossible,

conception.

All

experience spoke against it, for war

was the most familiar phenomenon of history.

Among the Greek city-states, a few temporary leagues

and federations were attempted, but

so

feeble were the

bonds of peace,

so

explosive were the passions which led

to war, that even among the highly civilized Hellenic

peoples, community of race, language, and religion was

powerless to create a Greek nation.

It

was reserved for

7,

I

(1)

2

THE

RIGHTS

OF

WAR AND PEACE

the military genius of Alexander the Great, at last,

by

irresistible conquest, to bring the Greek Empire into

being, to be destroyed in turn by superior force.

The Roman Empire almost achieved the complete

political unity

of

Europe, and bound parts

of

three

continents under one rule, but the corruption

of

the

military power which held

it

together led to its inevita-

ble

dismemberment.

After the conflicts of the barbaric kingdoms which

followed the dissolution

of

the Western Empire were

ended by the predominance of the Frankish monarchy,

the world believed that the

Pax

Romana

was to be re-

stored in Europe by the hand of Charles the Great; but

the disruptive forces were destined to prevail once more,

and the Holy Roman Empire never succeeded in reviv-

ing the power

of

ancient Rome. And thus the dream

of a universal monarchy, of a central authority able to

preside over kings and princes, adjusting their difficul-

ties, and preserving the peace between them, was at

last proved futile.

In each

of

the great national monarchies that had al-

ready risen or were still rising on the ruins

of

imperial

dominion, particularly in France, England, Holland, and

the States of Germany, a continuous internal conflict

over questions of religion complicated the bitterness and

destructiveness of foreign wars until Europe was reor-

ganized by the Peace of Westphalia, in

1648.

It

was in the midst of these wars that Grotius was

born. He saw his own country rising from a baptism of

blood and all Europe rent and torn by the awful strug-

gle

of

the Thirty Years’ War, in the midst

of

which his

great work was written and to whose conclusion it served

as a guide and inspiration. The Empire, dismembered,

had been reduced to almost complete impotence, the

Church had been disrupted, and no international author-

ity was anywhere visible. Amid the general wreck of

institutions Grotius sought for light and guidance in great

principles. Looking about him at the general havoc which

war had made, the nations hostile, the faith of ages shat-

tered, the passions of men destroying the commonwealths

which nourished them, he saw that Europe possessed but

one common bond, one vestige

of

its former unity,-the

human

mind.

To

this he made appeal and upon its

deepest convictions he sought to plant the Law of

Nations,

INTRODUCTION

3

11.

THE PREDECESSORS

OF

GROTIUS.

It

is historically accurate to say, that, until formulated

by Grotius, Europe possessed no system of international

law. Others had preceded him in touching upon certain

.

aspects

of

the rights and duties of nations, but none had

produced a system comparable to his.

The earliest attempt to formulate recognized interna-

tional customs was the formation of the early maritime

codes, rendered necessary by the expansion

of

medizval

commerce from the end of the eleventh to the end of the

sixteenth century, such as the

‘(Jugemeras

d’oldron,))

adopted by the merchants

of

France, England, and Spain,

and reissued under other names for the merchants

of

The Netherlands and the Baltic.

((

The

Consolato

del

Mare,))

a more elaborate compilation, was made, appa-

rently at Barcelona, about the middle of the fourteenth

century, and accepted generally by the traders of the

chief maritime powers. It was in the cradle of com-

merce, therefore, that international law awoke to con-

sciousness.

As

the Church was often intrusted with the task

of

pacification, it is but natural to

look

among her repre-

sentatives for the earliest writers on the laws of inter-

national relations. It

is,

in fact, among the theological

moralists that we find the first students of this subject.

As early as

1564,

a Spanish theologian, Vasquez, con-

ceived

of

a group of free states with reciprocal rights

regulated by

~irs

naturaZe

et

gentizlm,

without regard to

a world-power, either imperial

or

ecclesiastical. In

1612,

Saurez pointedput that a kind

of

customary law had arisen

from the usages

of

nations, and distinctly described a

so-

ciety of interdependent states bound by fundamental

principles

of

justice.

At the close of the fifteenth and the beginning

of

the

sixteenth centuries, a series of circumstances arose ne-

cessitating the extension of jurisprudence beyond its an-

cient boundaries, and thus tending to produce

a

group

of international jurists. Among the juristic writers

of

this time are Balthaaar Ayala,

a

Spanish jurisconsult,

who died in

1584,

having written in a historico-judicial

spirit on the subject of war in his

((De

Jure

et

Oficiis

Belli));

Conrad Brunus,

a

German jurist, who wrote

of

the rights and duties of ambassadors in his

((De

Lega-

tionzbus,))

published in

1548;

and pre-eminent above

all,

4

THE

RIGHTS

OF

WAR

AND

PEACE

Albericus Gentilis, an Italian professor of jurisprudence

and lecturer at Oxford, a writer of force and originality,

who published his

“De Legationib’us

))

in

1583

and his

((De

Jure

BeZZi))

in

1589.

111.

THE

LIFE

AND

PERSONALITY

OF

GROTIUS.

HUGO GROTIUS, to use the Latin form

of

his name

by which he is best known, or Hugo de Groot as he is

called in Holland, descended from a race of scholars and

magistrates, was born at Delft,

on

April Ioth,

1583.

His

family history has been related with much detail by

De

Burigny. in his

((

Vir

de

Grotius,”

published

in

French

at

Amsterdam in

1754;

and by Vorsterman van Oyen, in his

“Hugo de Groot en

ZGn

GescZackt,))

a complete genealogy in

Dutch, published at Amsterdam in

1883,

which gives the

descendants of Grotius down to the present generation,

His origin

is

traced from a French gentleman, Jean Cor-

nets, who took up his residence in The Netherlands in

1402.

His descendant, Cornelius Cornets, married the daughter

of

a burgomaster

of

Delft on condition that the future

children

of

this marriage should bear the name of their

mother’s family, in order to perpetuate the distinction

which it had achieved. The maternal name imposed by

Cornelius Cornets’s Dutch father-in-law, Dirk van Kraay-

enburg de Groot, was de Groot, meaning the Great, and

is said to have been bestowed for signal services rendered

to his country by the first who had borne

it

four hundred

years before. From this marriage sprung a Hugo de

Groot, distinguished for his learning in Greek, Latin, and

Hebrew and five times burgomaster of his native city.

His eldest son, Cornelius, was a noted linguist and mathe-

matician who studied law in France and received high

office in his own country, afterward becoming a pro-

fessor of law and many times rector of the University of

Leyden. Another son, John de Groot, the father of

Hugo Grotius, studied there under the famous Lipsius,

who speaks of him with the highest commendation.

Four times burgomaster of Delft, John de Groot became

curator

of

the University of Leyden, a position which

he filled with great dignity and honor.

In

his earliest years the young Hugo gave evidence

o€

marked and varied ability. At eight he wrote Latin

verses which betrayed poetic talent; at twelve he entered

the University where he became a pupil

of

that prince

INTRODUCTION

5

of

scholars, Joseph Scaliger, who directed his studies;

and at fifteen he defended ((with the greatest applause

”

Latin theses in philosophy and jurisprudence. His fame

as

a

prodigy of diversified learning spread

far

and wide,

and great scholars declared they had never seen his equal.

Grotius had won celebrity even in foreign lands when,

in

1600,

at the age of seventeen, he was admitted to the

bar. The youthful prodigy had already accompanied the

Grand Pensionary, John of Oldenbarneveld

on

a

special

embassy to France, where he was presented to Henry

IV.,

who bestowed upon him his portrait together with

a

gold chain, and graciously called him ((The Miracle of

Holland.”

At

Orleans he was made a Doctor of Laws.

Married in

1609

to Marie van Reigersberg, whose

devotion was worthy of his deep affection, and loaded

with public honors, having been named the official his-

tcrian of the United Provinces and the advocate-general

of two provinces, Holland and Zeeland, Grotius set his

hand to a work entitled

((Mure

Librum,”

in which he

defended the freedom of the sea and the maritime rights

of his country against the arrogant pretensions of the

Portuguese in suppressing the commerce of other nations

in Eastern waters,-a treatise destined to become still

more celebrated in the history of international law

by

Selden’s reply,

“Mure

Cluusum,))

written in

1635.

Next,

turning his attention to the history of The Netherlands,

he devoted himself for a time to his “Annals

of

the War

of Independence.

))

In

1613,

Grotius added to his laurels

as

poet, jurist,

and historian by entering the field of politics, and he was

appointed Pensionary of Rotterdam upon the condition

that he should continue in office during his own pleasure,

It was during a visit to England upon

a

diplomatic mis-

sion in this same year that he met the great scholar

Isaac Casaubon, who said in a letter to Daniel Heinsius:

((

I

cannot say how happy

I

esteem myself in having seen

so

much of one

so

truly great as Grotius.

A

wonderful

man

!

This

I

knew him to be before

I

had seen him; but

the rare excellence of that divine genius

no

one can

sufficiently feel who does not see his face and hear him

speak. Probity

is

stamped

on

all his features.”

Closely related by personal friendship as well as by

his

official duties to the Grand Pensionary, John of Olden-

barneveld, Grotius was destined

to

share with that

unfortu-

nate patriot the proscription end punishment

which

6

THE

RIGHTS

OF

WAR

AND

PEACE

Maurice of Orange visited upon the two confederates in

the defense of religious tolerance. Risking all as the

apostles of peace, they were soon condemned to be its

martyrs. Oldenbarneveld, having incurred the bitter

hatred of the Stadtholder, was condemned to death by

decapitation on May

Izth,

1619.

Grotius, less offensive

to

Maurice on account of his youth and his gracious per-

sonality, was sentenced six days later to perpetual

imprisonment.

On

the 6th of June,

1619,

he was incar-

cerated in the fortress of Loevestein.

Rigorously treated at first, his docility and resignation

soon won the respect and affection of his keepers, Writ-

ing materials and books were in time accorded him, and

finally, on condition that she would continue to share his

captivity, he was granted the presence of his wife. The

studious prisoner and his devoted companion completely

disarmed all suspicion

of

an intention to escape, and the

ponderous chest in which books came and went con-

tinued to bring periodic consolation to the mind of the

busy scholar. A treatise on the truth

of

the Christian

religion, a catechism for the use

of

his children,

a

digest

of

Dutch law, and other compositions served to occupy

and alleviate the weary months of confinement, until one

day when the time seemed opportune Madame Grotius

secretly inclosed her husband in the great chest and

it

was borne away by two soldiers. Descending the stone

steps of the prison the bearers remarked that the trunk

was heavy enough to contain an Arminian, but Madame

Grotius’s jest on the heaviness of Arminian books smoothed

over the suspicion, if one was really entertained, and the

great jurist was sent in the chest safe to Gorcum,

attended by a faithful domestic, where in the house of a

friend the prisoner emerged without injury and in the

guise of

a

stone mason hastened

to

Antwerp. From

Antwerp he took refuge in France, where he arrived in

April,

1621,

and was joined by his faithful wife at Paris

in

the following October.

The bitterness of exile was now to be added to the

miseries of imprisonment, for Grotius was not only ex-

cluded from The Netherlands, but in extreme poverty.

His letters reveal his anguish of spirit at this period,

but a generous Frenchman, Henri de Mbme, placed his

country house at Balagni at his disposition, and there,

supported by a small pension, which Louis

XI11

had

graciously accorded him, though irregularly and tardily

INTRODUCTION

?

paid, Grotius commenced his great work,

((De

Jure

BeZZi

ac

Pacis,))

in the summer of

1623.

Much speculation has been indulged in regarding the

causes which led to the composition of this masterpiece,

but a recent discovery has rendered all this superfluous,

as well as the ascription of special merit to the Coun-

selor Peyresc for suggesting the idea of the work.

It

is, indeed, to the pacific genius

of

Grotius more than to

all other causes that the world owes the origin of his

great work; for it sprang from his dominant thought,

ever brooding on the horrors of war and the ways

of

peace, during more than twenty years, and never wholly

satisfied till its full expression was completed.

In the winter of

1604,

there had sprung out of his

legal practice the idea of a treatise entitled

((De

Jure

Praedae,’

fully written out, but never printed by

its

author. The manuscript remained unknown by all

his

biographers until it was brought to light and printed

under the auspices of Professor Fruin at The Hague in

1868.

Thls interesting document proves that not only

the general conception but the entire plan and even the

arrangement of the

“De

Jure

Belli

ac

Pacis

)’

were in the

mind of Grotius when he was only twenty-one years

of

age. The difference between the earlier work and the

later is chiefly one of detail and amplification, the differ-

ence which twenty years of reading, experience, medita-

tion and maturity of faculty would inevitably create.

The curious may find in his letters the almost daily

chronicle of his progress with his book to the time

of

its

publication after excessive labors lasting more than

a year. In March,

1625,

the printing of the first edi-

tion, which had occupied four months, was completed

and copies were sent

to

the fair at Frankfort. His

honorarium as author consisted of two hundred copies,

many of which he presented to his friends. From the

sale of the remainder at

a

crown each, he was not able

to reimburse his outlay. In the following August he

wrote to his father and brother that if he had their ap-

probation and that of a few friends, he would have

no

cause for complaint but would be satisfied. Louis XIII,

to whom the work was dedicated, accepted the homage

of

the author and a handsomely bound copy, but failed

to exercise the grace customary with monarchs by

ac-

cording a gratification. At Rome, the treatise was pro-

scribed in the index in

1627.

Almost

penniless

and

8

THE RIGHTS

OF

WAR

AND

PEACE

suffering from his protracted toil, Grotius seemed destined

to neglect and oblivion, yet from his exile he wrote to

his brother:

((

It

is not necessary to ask anything for

me.

If

my country can do without me,

I

can do with-

out her. The world is large enough.

. .

.))

Invited to enter the service of France by Richelieu,

Grotius would not accept the conditions which the Car-

dinal wished to impose,-such at least

is

the inevitable

inference from his letters. His pension was not paid

and his circumstances became

so

serious that one of his

children had but a single coat. At length, pushed to the

utmost extremity of want and instigated by his energetic

wife, Grotius resolved to return to Holland. Driven from

Rotterdam to Amsterdam, where he hoped

to

settle down

as a lawyer, the States General twice ordered his arrest

and named a price for his delivery to the authorities.

The new Stadtholder, Frederick Henry, who, before suc-

ceeding his brother Maurice, had written kindly to Grotius

after his escape from imprisonment, now approved his

proscription. Abandoned by his prince as well as by his

countrymen, Grotius once more turned his face toward

exile and set out for Hamburg.

IV.

THE

WORK

OF

GROTIUS

It

may be

of

interest at this point in the career

of

Grotius to describe briefly the character

of

the great work

which was

soon

to win for him a new celebrity, and ma-

terially change his prospects in life.

The inspiration

df

his

((De

Jure

BeZZi

ac

Pacis))

was the

love of peace, yet he was far from being one

of

those

visionaries who totally condemn the

use

of armed force

and proscribe all war as wrong and unnecessary. On the

contrary, he seeks to discover when, how, and by whom

war may be justly conducted.

His plan of treatment is as follows:

-

In the First Book, he considers whether any war

is

just, which leads to the distinction between public and

private war, and this in

turn

to

a

discussion

of

the nature

and embodiment of sovereignty.

In the Second Book, the causes from which wars arise,

the nature

of

property and personal rights which furnisb

their occasions, the obligations that pertain to ownership,

the rule

of

royal succession, the rights secured by com-

INTRODUCTION

9

pacts, the force and interpretation

of

treaties, and

kin-

dred subjects are examined.

In the Third

Book,

the question

is

asked, What

is

lawful war

?

))

which prepares for the consideration of

military conventions and the methods by which peace is

to be secured.

From the authority of the Empire and the Church,

no

longer effectual as an international agency, Grotius appeals

to Humanity as furnishing the true law

of

nations. Be-

ginning with the idea that there

is

a kinship among men

established by nature, he sees in this bond

a

community

of

rights. The society of nations, including

as

it

does

the whole human race, needs the recognition of rights

as much as mere local communities.

As

nations are but

larger aggregations of individuals, each with its own cor-

porate coherence, the accidents of geographic boundary

do not obliterate that human demand for justice which

springs from the nature

of

man as a moral being. There

is, therefore, as'

a

fundamental bond of human societies,

a Natural Law, which, when properly apprehended,

is

perceived to be the expression and dictate of right rea-

son.

It

is thus upon the nature of man as a rational

intelligence that Grotius founds his system

of

universal

law.

As

this law

of

human nature

is

universally binding

wherever men exist,

it

cannot be set aside by the mere

circumstances of time and place, whence it results that

there is a law

of

war as well as a law

of

peace.

As

this

law applies to the commencement of armed conflicts, war

is never to be undertaken except to assert rights, and

when undertaken is never to be carried

on

except within

the limits

of

rights.

It

is

true that in the conflict of

arms laws must be silent, but only

CIVIL

laws, which

govern in times

of

peace. Those laws which are

PERPET-

UAL,

which spring from the nature

of

man as man, and

not from his particular civil relations, continue even dur-

ing strife and constitute the laws of war. To deny these,

or to disobey them, implies a repudiation

of

human na-

ture itself and of the divine authority which has invested

it

with rights and obligations. To disavow the impera-

tive character

of

these perpetual lams,

is

to revert to

barbarism.

It

is

necessary, however to distinguish between Nat-

ural Law, that principle

of

justice which springs from

IO

THE

RIGHTS

OF

WAR

AND

PEACE

man's rational nature, and Conventional Law, which

results from his agreements and compacts. Natural Law

remains ever the same, but institutions change. While

the study of abstract justice, apart from all that has its

origin

in

the will or consent of men, would enable

us

to create

a

complete system of jurisprudence, there is

another source which must not be neglected, since men

have established the sanctity of certain rules

of

conduct

by solemn convention.

The Law of Nations does not consist, therefore,

of

a

mere body of deductions deiived from general principles

of justice, for there is also

a

body of doctrine based upon

CONSENT;

and it is this system of voluntarily recognized

obligations which distinguishes international jurisprudence

from mere ethical speculation or moral theory. There

are

cusTom

of

nations as well as a universally zccepted

law of nature, and it is in this growth of practically

recognized rules of procedure that we trace the evolu-

tion of law international

-jus

intM

gentes

-

as a

body

of

positive jurisprudence.

It is evident that the mind of Grotius

is

continually

struggling to establish a science upon this positive basis,

and it

is

this which gives a distinctive character to his

effort. The great writers of all ages are cited with

a

superfluous lavishness, not

so

much to support his claims

by an aggregation of individual opinions- still less to

display his erudition, as his critics have sometimes com-

plained-as to give a historic catholicity

to

his doc-

trine by showing that the laws he is endeavoring to

formulate have, in fact, been accepted in all times and

by

all

men.

For

this purpose also, he makes abun-

dant use of the great authorities on Roman Law,

whose doctrines and formulas were certain to carry con-

viction to the minds of those whom he desired to con-

vince.

It is needless, perhaps, to point out that the work of

Grotius is not and could not be a'

work

of permanent

authority as a digest of international law. His own wise

appreciation of the positive and historical element-the

authority derived from custom- should exempt him

from the pretense of absolute finality.

It

is the

Book

of

Genesis only that he has given

us,

but it

is

his

inde-

feasible distinction to have recorded the creation

of

order

out of chaos in the great sphere of international rela-

tionship,

justly

entitling him to the honor accorded

to

INTRODUCTION

I1

him by the spontaneous consent of future times as the

Father of International Jurisprudence.

It

is not difficult after more than three centuries

of

thought and experience to point out the defects in his

doctrine. If he justifies slavery, it

is

not without inge-

nuity; for, he argues, if a man

may

sell his labor, why

not his liberty

?

and

if

the conqueror may impose his

will upon the property

of

the vanquished, why not also

upon his person

?

If

he identifies sovereignty with

supreme power without any adequate conception of its

ethical basis, he is at least as advanced in his thinking

as the conceptions

of

his time, which had not yet grasped

the idea

of

the state as a moral organism. If he has

no

adequate notion

of

neutrality, believing it to be the duty

of

a nation to enlist its energies for what

it

deems the

right side, rather than to disavow all responsibility for

actions foreign to its own interests, he is at least sup-

ported in this by the opinion of the multitude even at

the present time; and even among jurists the modern

conception of neutrality is hardly a century old. If the

new schools

of

jurisprudence make light of Natural Law

as a foundation

of

public and private rights,

it

is

not

certain that Grotius may not yet be vindicated as repre-

senting a doctrine at least as clear as any other which

has been substituted for it. But, finally, to all these

criticisms it may be answered, that no great thinker can

be justly estimated except

in

relation to his predecessors

and contemporaries. Measured by these, Grotius stands

alone among the jurists of his century for originality

of

thought and power of exposition.

V.

THE

INFLUENCE

OF

GROTIUS’S

WORK.

It was during his

sojourn

in Hamburg in

1633:

eight

years after the publication of his

“De

Jure,”

and while he

was still suffering from painful pecuniary embarrassment,

that Europe suddenly awoke to a sense

of

his impor-

tance; and, almost at one time, Poland, Denmark, Spain,

England, and Sweden all extended friendly invitations

rlrging him to enter into their public service. His fame

as a jurist had become international and, rudely repelled

by his native Holland, he became the center of Euro-

pean interest. Gustavus Adolphus had placed the work

of

Grotius along side his Bible under his soldier’s pillow,

as he prosecuted his campaigns in the Thirty Years’ War,

The first edition of that work, written in Latin, the

12

THE

RIGHTS

OF

WM

AND

PEACE

cosmopolitan language of learned Europe, had

been

quickly exhausted and widely scattered. Another had

soon

been called for at Paris, but the death of Buon, the

publisher, created obstacles to its appearance.

A

second

edition had appeared at Frankfort in

1626,

another at

Amsterdam in 1631, and still another with notes by the

author in 1632. The book had aroused the thought of

kings as well as of scholars, and in the circles of high

influence everywhere in Europe the name of Grotius had

become well known. His book had excited the most

opposite sentiments and awakened the most contradictory

judgments, but among lawyers and statesmen its recep-

tion was from the first generally marked by admiration.

In spite

of

exile, poverty, and misfortune, Grotius had

become a European celebrity and was about to enter into

the reward of his labors. He had created a code for

war and a programme

of

peace, and henceforth no

statesman could afford to neglect him.

Gustavus Adolphus, the king of Sweden, before his

death on the battlefield of Liitzen, had commended Gro-

tius to his great Chancellor, Oxenstiern. By the death

of

Gustavus the Chancellor had, in 1633, recently come

into the regency of the kingdom at a critical moment

when a retreat from the bitter contest with the Empire

seemed to be foredoomed unless prevented by the sup-

port and friendship of France. Recalling the commen-

dation of the late king, Oxenstiern sought and found

in Grotius an ambassador

of

Sweden to negotiate

a

new

Franco-Swedish alliance. Accepting this appointment in

1634, Grotius arrived at Paris on his diplomatic mission

on March zd, 1635.

Richelieu, having failed to draw the great jurist into

the orbit of his influence as a satellite, resented his ap-

pearance in

a

character

so

influential and honorable as

that of ambassador of Sweden, and Grotius made little

progress in his negotiation. Preoccupied with literature,

he took more interest in the composition of a sacred

tragedy on

((

The Flight into Egypt

))

than in reminding

France of the existing treaty of Heilbronn or consolidat-

ing the new Franco-Swedish alliance. Where Grotius the

theorist failed, Oxenstiern, the practical statesman, by a

few dexterous strokes

of

diplomacy during

a

brief visit

to Paris, easily succeeded; and the ambassador’s mission

was simplified to the r61e of

a

mere observer and re-

porter of occurrences.

INTRODUCTION

13

By

taste, nature, and training, Grotius was a jurist and

not a diplomatist, and he soon realized that the two vo-

cations,

if

not diametrically opposed, are at least sepa-

rated from each other by a vast interval. His diplomatic

correspondence betrays the keen observer and the con-

scientious moralist rather than the accomplished negoti-

ator. Among the observations recorded in

his

dispatches,

one may be quoted as an example of his penetration

and his humor. Speaking of the Dauphin, the future

Louis

XIV,

he says:

((

His frightful and precocious avid-

ity is a bad omen for neighboring peoples; for he

is

at

present on his ninth nurse, whom he

is

rending and

murdering as he has the others!

))

It

is painful to behold the great father of international

jurisprudence descending in his dispatches to petty de-

tails of precedence and alienating from himself the sym-

pathies

of

his colleagues by ridiculous ceremonial

pretensions. He would no longer visit Mazarin, because

the Cardinal insisted on calling him

EMINENCE

instead of

EXCELLENCE; Grotius considering this distinction of terms

a slight upon his rank as ambassador.

So

persistent

was he in these follies and

so

rancorous were the feuds

that the apostle of peace elicited that, in December,

1636,

less than two years after his arrival at Paris, he advised

Sweden to send

to

France

a

simple ChargP

d’Afaires,

instead of an ambassador, in order to restore diplomatic

relations.

His quarrels concerning precedence, which rendered

him an object of ridicule at the French Court, were not

the only griefs of the ambassador of Sweden. In-

adequately recompensed, he was obliged to wait two

years for his salary and finally, being reduced to a

condition in which he could no longer maintain exist-

ence otherwise, he was compelled

to

demand of the royal

treasury of France a part of the subsidies promised to

the army

of

his adopted country. Weary of his impor-

tunities, the French government repeatedly requested his

recall. Disgusted with his mission, Grotius at last aban-

doned the duties

of

his office to the intriguing adven-

turer, Cerisante, who was sent to aid him, and buried him-

self in his books until his return to Sweden at his own

request in

1645.

Queen Christina of Sweden, a patroness

of

scholars,

desirous of aiding Grotius and of retaining him in the

service of her kingdom, made many offers and promises,

14

THE

RIGHTS

OF

WAR

AND

PEACE

but their execution being deferred, he became impatient

of

his lot, refused a position as counselor

of

state, and

resolved to leave the country. His plan to abandon

Stockholm secretly was prevented by

a

messenger of the

queen who followed him to the port where he intended

to embark and induced him to return for a farewell

audience. With a handsome present of money and silver

plate he took passage on a vessel placed at his disposition

to convey him to Liibeck.

Off

the coast near Dantzic a

violent tempest arose. On the 17th of August,

1645,

the

vessel was driven ashore and Grotius, overcome by his

trying experiences, was taken ill at Rostock, where a few

days later he passed away.

The later years of his life had been chiefly devoted to

plans for the establishment of peace in the religious

world, whose dissensions gave him great distress

of

mind.

The country of his birth, which had

so

long denied

him citizenship, received him at last to the silent hospi-

tality of the tomb. His body was taken to Delft, his

native town, where his name is now held in grateful

reverence.

At the time when Grotius left Stockholm, the last

of

the plenipotentiaries had arrived at Miinster and Osna-

briick to attend the great European congress convoked

to terminate the hostilities of the Thirty Years’ War. It

is a tradition, but incapable of satisfactory proof, that it

was with the purpose

of

being present at the councils of

this congress that the author

of

“De

Jure

Belli ac Pacis”

left Sweden for Germany. However this may be, it is

certain that the mediation of the king

of

Denmark at

Osnabriick and of the papal legate at Miinster, though

unsuccessful, was in accordance with the idea

of

Grotius

expressed in the words:

((

It would be useful, and indeed

it is almost necessary, that certain congresses of Christian

powers should be held, in which controversies that have

arisen among some of them may be decided by others

who are not interested.)’ The immediate establishment

of an international tribunal, evidently contemplated in

this suggestion, was not in harmony with the temper of

those times; but it cannot be doubted that the Peace

of

Westphalia, whose treaties were to form a code of public

law

for

Europe, was to a great degree an embodiment

of the principles which Grotius was the first to enun-

ciate.

INTRODUCTION

‘5

His

((De

]we

BeZZi

ac Pacis

))

had already become

a

classic even before the author’s death, and special

pro-

fessorships were soon founded in the universities to ex-

pound its principles.

It

would be tedious to name the

numerous editions, translations, and commentaries which

have given it an exceptional place in the literature of

Europe. This task has been in part performed, however,

by

Dr.

Rogge in his

((

BibZiotheca Grotiana,))

published at

The Hague in

1883,

and intended to be a full bibliography

of Grotius’s works. The whole number of titles included

is

462,

but they do not comprise the writings

of

the

generations of jurists who have been inspired by the

great master or of the critics and biographers who have

discussed his life and work.

Tardily, but with full contrition for the bitter wrong

done to one of her greatest and noblest sons, the memory

of

Grotius has received from his native land abundant

recognition and commemoration. The appropriate tomb

that marks his resting place in the Nieuwe Kerk at

Delft, symbolical of his learning, genius, and renown,

was erected in 1781. On the 17th of September,

1886,

a

noble statue of the great jurist was unveiled in the

public square

of

his native town in front

of

the church

which contains his tomb. Thus, more than a century

after his death, and again still another century later,

Holland has paid her tribute of respect to her illustrious

citizen.

The later years have also brought new honors to

Gro-

tius’s feet. At the recent Peace Conference at The

Hague was completed the great structure of international

comity whose corner stone was laid by him in

1625.

It

was most fitting that an international congress called in

the interest of peace should blend with the negotiation

of

conventions for the pacific settlement of disputes be-

tween nations by

a

permanent tribunal, and for the

amelioration of the laws of war, a celebration of the

distinguished writer whose

great

thought had at last

borne such precious fruits. In pursuance of instructions

received from the Secretary of State, the United States

Commission invited their colleagues in the congress, the

heads of the Dutch universities, and the high civic au-

thorities to join with them in observing the 4th of

July by celebrating the memory of the great jurist.

With appropriate exercises in the apse of the old

church,

near the monument of Grotius and mausoleum of William

16

THE RIGHTS

OF

WAR

AND

PEACE

the Silent, the representatives

of

twenty-six nations

gathered to

do

him honor.

A

beautiful commemorative

wreath

of

silver was laid

upon

Grotius’s tomb bearing

the inscription

:

TO

THE

MEMORY

OF

HUGO

GROTIUS

IN

REVERENCE

AND

GRATITUDE

FROM

THE

UNITED

STATES

OF

AMERICA

ON THE

OCCASION

OF

THE

INTERNATIONAL

PEACE

CONFERENCE

AT

THE

HAGUE

JULY

4TH,

1899.

An eloquent oration by the Honorable Andrew

D.

White, Ambassador

of

the United States to Germany,

and the head

of

the Commission, followed by other ap-

propriate addresses, recalled the debt of mankind to the

author of

“De

Jure

BeZZi

ac

Pacis”;

and thus the plenipo-

tentiaries

of

the nineteenth century did homage to the ex-

ile of the sixteenth who had taught the world that even in

the shock and storm of battle humanity cannot escape the

dominion

of

its

own essential laws, and that even inde-

pendent states are answerable before the bar of human

nature for obedience

to

principles imposed by a Power

higher than the prerogatives

of

princes or the will

of

nations.

THE RIGHTS

OF

WAR

AND

PEACE,

INCLUDING

THE

LAW

OF

NATURE AND

OF

NATIONS.

BOOK

I.

CHAPTER

I.

Of

War- Definition

of

War- Right,

of

Governors and

of

the gov-

erned, and

of

equals- Right

as

a

Quality divided into Faculty and

Fitness-Faculty denoting Power, Property, and Credit-Divided into

Private and Superior-Right as a Rule, natural and voluntary-Law

of

Nature divided

-

Proofs

of

the Law

of

Nature -Division

of

Rights

into human and divine

-

Human explained- Divine stated-Mosaic

Law not binding upon Christians.

I.

THE

disputes arising among those who are held together

by no common bond of civil laws to decide their dissen-

sions, like the ancient Patriarchs,

who

formed no national

community,

or

the numerous, unconnected communities,

whether under the direction of individuals,

or

kings,

or

persons invested with Sovereign power, as the leading

men in an aristocracy, and the body

of

the people in

a

republican government; the disputes, arising among any

of

these,

all

bear

a

relation to the circumstances of war

or

peace. But because war

is

undertaken for the sake

of

peace, and there

is

no dispute, which may not give rise

to war, it will be proper to treat all such quarrels, as

commonly happen, between nations, as an article

in

the

rights of war: and then war itself

will

lead

us

to peace,

as

to

its

proper end.

11.

In

treating of the rights

of

war, the

first

point,

that we have to consider,

is,

what

is

war,

which

is

the

2

@7)

18

HUGO

GROTIUS

subject

of

our inquiry, and what is the right, which we

seek to establish. Cicero styled war a contention by force.

But the practice has prevailed to indicate by that name,

not an immediate action, but a state of affairs;

SO

that

war is the state of contending parties, considered as such.

This definition, by its general extent, comprises those

wars of every description, that will form the subject of

the present treatise. Nor are single combats excluded

from this definition. For, as they are in reality more

ancient than public wars, and undoubtedly, of the same

nature, they may therefore properly be comprehended

under one and the same name. This agrees very well

with the true derivation of the word. For the Latin

word,

BeZZum,

WAR,

comes from the old word,

DueZZum,

a

DUEL,

as

Bonus

from

Duonus,

and

Bis

from

Duis.

Now

DueZZum

was derived from

Duo;

and thereby implied

a

difference between two persons, in the same sense as

we term peace, UNITY, from

Unitas,

for a contrary reason.

So

the Greek word,

xola,uos,

commonly used to signify war,

expresses in its original, an idea of multitude. The

ancient Greeks likewise called

it

luv,

which imports a

DIS-

UNION

of minds; just as by the term

607,

they meant the

DISSOLUTION

of the parts of the body. Nor does the use

of the word,

WAR,

contradict this larger acceptation of it.

For though some times it is only applied to the quarrels

of states, yet that is no objection, as it is evident that a

general name is often applied to some particular object,

entitled to peculiar distinction. Justice is not included

in the definition of war, because the very point to be

decided is, whether any war be just, and what war may

be

so

called. Therefore we must make a distinction be-

tween war itself, and the justice of it.

111.

As

the Rights of War is the title, by which this

treatise is distinguished, the first inquiry, as it has been

already observed, is, whether any war be just, and,

in

the next place, what constitutes the justice of that war,

For, in this place, right signifies nothing more than

what

is

just,

and that, more in

a

negative than a posi-

tive sense;

so

that

RIGHT

is that, which is not unjust.

Now any thing is unjust, which is repugnant to the

nature of society, established among rational creatures.

Thus for instance, to deprive another of what belongs to

him, merely for one’s own advantage, is repugnant to

the law of nature, as Cicero observes in the fifth Chapter

of

his third

book

of offices; and, by way of proof, he

THE RIGHTS

OF

WAR

AND

PEACE

19

says that, if the practice were general, all society and

intercourse among men must be overturned. Florentinus,

the Lawyer, maintains that is impious for one man to

form designs against another, as nature has established

a degree of kindred amongst

us.

On this subject, Seneca

remarks that,

as

all the members

of

the human body

agree among themselves, because the preservation of each

conduces to the welfare

of

the whole,

so

men should for-

bear from mutual injuries, as they were born for society,

which cannot subsist unless all the parts

of

it are de-

fended by mutual forbearance and good will. But as

there is one kind of social tie founded upon an equality,

for

instance, among brothers, citizens, friends, allies, and

another on pre-eminence, as Aristotle styles i.t, subsisting

between parents and children, masters and servants, sov-

ereigns and subjects, God and men.

So

justice takes

place either amongst equals,

or

between the governing

and the governed parties, notwithstanding their differ-

ence of rank. The former of these, if

I

am not mis-

taken, may be called the right of equality, and the latter

the right of superiority.

IV.

There is another signification of the word

RIGHT,

different from this, but yet arising from it, which relates

directly to the person. In which sense,

RIGHT

is a moral

quality annexed to the person, justly entitling him to

possess some particular privilege,

or

to perform some

particular act. This right is annexed to the person,

although it sometimes follows the things, as the services

of lands, which are called

REAL

RIGHTS,

in opposition

to those merely

PERSONAL.

Not because these rights are

not annexed to .persons, but the distinction is made,

because they belong to the persons only who possess

some particular things. This moral quality, when per-

fect is called a

FACULTY;

when imperfect, an

APTITUDE.

The former answers to the

ACT,

and the latter to the

POWER,

when we speak

of

natural things.

V.

Civilians call a faculty that Right, which every man

has to his own

;

but we shall hereafter, taking it in its

strict and proper sense, call it a right. This right com-

prehends the power, that we have over ourselves, which

is called liberty, and the power, that we have over others,

as that of a father over his children, and of a master

over his slaves. It likewise comprehends property, which

is either complete

or

imperfect; of the latter kind is the

use

or

possession of any thing without the property, or

20

HUGO

GROTIUS

power

of

alienating it,

or

pledges detained by the creditors

till

payment be made. There is a third signification,

which implies the power of demanding what is due, to

which the obligation upon the party indebted, to discharge

what

is

owing, corresponds.

VI.

Right, strictly taken, is again twofold, the one,

PRIVATE,

established for the advantage

of

each individual,

the other,

SUPERIOR,

as involving the claims, which the

state has upon individuals, and their property, for the

public good. Thus the Regal authority is above that

of

a

father and a master, and the Sovereign has a greater

right over the property

of

his subjects, where the public

good is concerned, than the owners themselves have.

And when the exigencies

of

the state require a supply,

every man is more obliged to contribute towards

it,

than to satisfy his creditors.

VII.

Aristotle distinguishes aptitude

or

capacity, by the

name of worth

or

merit, and Michael

of

Ephesus, gives

the epithet

of

SUITABLE

or

BECOMING

to the equality estab-

lished by this rule of merit.

IX.*

There is also a third signification

of

the word

Right, which has the same meaning as Law, taken in its

most extensive sense, to denote a rule of moral action,

obliging us to do what is proper. We say

ORLIGING

us.

For

the best counsels

or

precepts, if they lay us under

no obligation to obey them, cannot come under the

denomination

of

law

or

right, Now

as

to permission,t

it

is

no act of the law, but only the silence

of

the law,

it however prohibits any one from impeding another in

doing what the law permits. But we have said, the law

obliges

us

to do what is proper, not simply what is just;

because, under this notion, right belongs to the substance

not only

of

justice, as we have explained

it,

but of all

other virtues. Yet from giving the name of a

RIGHT

to

*The eighth Section is omitted, the greater part

of

it consisting

of

verbal criticism

upon

Aristotle’s notions of geometrical and arith-

metical justice;

a

discussion

no

way conducive

to

that clearness and

simplicity,

so

necessary to every didactic treatise.-

TRANSLATOR.

t

The law, by its silence, permits those acts, which it does not

prohibit. Thus many acts, if they are not evil in themselves, are

no

offence, till the law has made them such.

Of

this kind are many

acts, such as exporting gold, or importing certain articles

of

trade;

doing certain actions, or following certain callings, without the requisite

qualifications, which are made punishable offences

by

the Statute-

Law. Those actions, before the prohibition was enjoined by the law,

came

under the class

of

what

Grotius

calls

pennissiorur

,

THE

RIGHTS

OF

WAR

AND PEACE

21

that, which

is

PROPER,

a more general acceptation

of

the

word

justice has been derived. The best division

of

right, in this general meaning,

is

to be found in Aristotle,

who, defining one kind to be natural, and the other

voluntary, calls

it

a

LAWFUL

RIGHT

in the strictest sense

of the word law; and some times an instituted right.

The same difference

is

found

among the Hebrews, who,

by way of distinction, in speaking, call that natural

right,

PRECEPTS,

and the voluntary right,

STATUTES:

the

former

of

which the Septuagint call

hadpara,

and

the

latter

Iuroldy.

X.

Natural right

is

the dictate of right reason, shew-

ing the moral turpitude,

or

moral necessity,* of any act

from

its

agreement or disagreement with a rational na-

ture, and consequently that such an act is either forbid-

den or commanded by

God,

the author of nature. The

actions, upon which such a dictate

is

given, are either

binding

or

unlawful in themselves, and therefore neces-

sarily understood to be commanded

or

forbidden by

God.

This mark distinguishes natural right, not only from

human law, but from the law, which God himself has

been pleased to reveal, called, -by some, the voluntary

divine right, which does not command

or

forbid things

in themselves either binding or unlawful, but makes them

unlawful by its prohibition, and binding by its command.

But, to understand natural right, we must observe that

some things are said to belong to that right, not prop-

erly, but, as the schoolmen say, by way of accommoda-

tion. These are not repugnant to natural right, as we

have already observed that those things are called

JUST,

in which there

is

no injustice. Some times also, by a

wrong use of the word, those things which reason shews

to be proper, or better than things of an opposite kind,

although not binding, are said to belong to natural right.

We must farther remark, that natural right relates not

only to those things that exist independent of the human

will,

but to many things, which necessarily follow the

exercise of that will. Thus property, as now in use, was

at first a creature

of

the human will. But, after

it

was

established, one man was prohibited by the law of nature

from seizing the property of another against his will.

Wherefore, Paulus the Lawyer said, that theft

is

ex-

pressly forbidden by the law

of

nature. Ulpian condemns

By moral necessity

is

meant

nothing

more than

that

the

Laws

of

Nahuo

must

always

bind

us.

22

HUGO

GROTIUS

it

as infamous in

its

own nature

;

to whose authority that

of Euripides may be added, as may be seen in the verses

of Helena:

((For

God himself hates violence, and will not have

US

to grow rich by rapine, but by lawful gains. That

abundance, which is the fruit of unrighteousness, is an

abomination, The air is common to men, the earth also,

where every man, in the ample enjoyment of his posses-

sion, must refrain from doing violence

or

injury to that

of another.

))

Now the Law of Nature is

so

unalterable, that it can-

not be changed even by God himself. For although the

power of God is infinite, yet there are some things, to

which it does not extend. Because the things

so

ex-

pressed would have no true meaning, but imply a con-

tradiction. Thus two and two must make four, nor is it

possible to be otherwise; nor, again, can what is really

evil not be evil. And this is Aristotle’s meaning, when

he says, that some things are no sooner named, than we

discover their evil nature.

For

as the substance of things

in their nature and existence depends upon nothing but

themselves;

so

there are qualities inseparably connected

with their being and essence. Of this kind is the evil

of certain actions, compared with the nature of a reason-

able being. Therefore God himself suffers his actions to

be judged by this rule, as may be seen in the xviiith

chap. of Gen.

25.

Isa. v.

3.

Ezek. xviii.

25.

Jer. ii.

9.

Mich.

vi.

2.

Rom. ii.

6.,

iii.

6.

Yet it sometimes hap-

pens that, in those cases, which are decided by the law

of nature, the undiscerning are imposed upon by an

appearance of change. Whereas in reality there is no

change in the unalterable law of nature, but only in the

things appointed by it, and which are liable to variation.

For example, if a creditor forgive me the debt, which

I

owe him,

I

am no longer bound to pay it, not because

the law of nature has ceased to command the payment

of a just debt, but because my debt, by a release, has

ceased to be a debt. On this topic, Arrian in Epictetus

argues rightly, that the borrowing of money is not the

only requisite to make a debt, but there must be the

additional circumstance of the loan remaining undis-

charged. Thus

if

God should command the life, or

property of any one to be taken away, the act would not

authorise murder or robbery, words which always include

a crime. But that cannot be murder

or

robbery, which

THE RIGHTS

OF

WAR

AND

PEACE

23

is

done by the express command of Him, who

is

the

sovereign Lord of

our

lives and of all things. There

are also some things allowed by the law of nature, not

absolutely, but according to

a

certain state of affairs.

Thus, by the law of nature, before property was intro-

duced, every one had a right to the use of whatever he

found unoccupied; and, before laws were enacted, to

avenge his personal injuries by force.

XI.

The distinction found in the books of the Roman

Law, assigning one unchangeable right to brutes in com-

mon with man, which in a more limited sense they call

the law of nature, and appropriating another to men,

which they frequently call the Law

of

Nations,

is

scarcely

of any real use. For no beings, except those that can

form general maxims, are capable of possessing a right,

which Hesiod has placed in a clear point of view,

ob-

serving ((that the supreme Being has appointed laws for

men; but permitted wild beasts, fishes, and birds to

devour each other for food.))

For

they have nothing like

justice, the best gift, bestowed upon men.

Cicero, in his

first

book of offices, says, we do not talk

of the justice of horses

or

lions. In conformity to which,

Plutarch, in the life of Cat0 the elder, observes, that we

are formed by nature to use law and justice towards men

only. In addition to the above, Lactantius may be cited,

who, in his fifth book, says that in all animals devoid of

reason we see a natural bias of self-love. For they hurt

others to benefit themselves; because they do not know

the evil

of

doing wilful hurt. But

it

is not

so

with man,

who, possessing the knowledge

of

good and evil, refrains,

even with inconvenience

to

himself, from doing hurt.

Polybius, relating the manner in which men first entered

into society, concludes, that the injuries done to parents

or benefactors inevitably provoke the indignation of man-

kind, giving an additional reason, that as understanding

and reflection form the great difference between men and

other animals, it

is

evident they cannot transgress the

bounds of that difference like other animals, without ex-

citing universal abhorrence of their conduct. But

if

ever

justice

is

attributed to brutes,

it

is

done improperly, from

some shadow and trace of reason they may possess. But

it

is not material to the nature of right, whether the

actions appointed by the law of nature, such as the care

of

our

offspring, are common to

us

with other animals

or

not,

or,

like. the worship of God, are peculiar to man.

24

HUGO

GROTIUS

XII.

The existence of the Law

of

Nature

is

proved

by

two kinds of argument,

a

priori,

and

a

posteriori,

the

former a more abstruse, and the latter

a

more popular

method of proof. We are said to reason

a

priori,

when

we show the agreement

or

disagreement of any thing

with a reasonable and social nature

;

but

a

posteriori,

when without absolute proof, but only upon probability,

any thing is inferred to accord with the law of nature, be-

cause it is received as such among all,

or

at least the

more civilized nations.

For

a generai .effect can only

arise from a general cause. Now scarce any other cause

can be assigned for

so

general an opinion, but the com-

mon sense, as

it

is called, of mankind. There

is

a

sen-

tence of Hesiod that has been much praised, that

opinions which have prevailed amongst many nations, must

have some foundation. Heraclitus, establishing common

reason as the best criterion

of

truth, says, those things

are certain which generally appear

so.

Among other

authorities, we may quote Aristotle, who says it

is

a

strong proof in our favour, when all appear to agree

with what we say, and Cicero maintains that the con-

sent of all nations in any case is to be admitted

for

the

law of nature. Seneca is

of

the same opinion, any thing,

says he, appearing the same to all men

is

a proof of its

truth. Quintilian says, we hold those things to be true,

in which all men agree. We have called them the more

civilized nations, and not without reason.

For,

as Por-

phyry well observes, some nations are

so

strange that

no fair judgment of human nature can be formed from

them, for

it

would be erroneous, Andronicus, the Rho-

dian says, that with men of a right and sound under-

standing, natural justice is unchangeable. Nor does it

alter the case, though men of disordered and perverted

minds think otherwise.

For

he who should deny that

honey is sweet, because it appears not

so

to men of

a

''

distempered taste, would be wrong. Plutarch too agrees

entirely with what has been said, as appears from a

passage in his life of Pompey, affirming that man neither

was, nor

is,

by nature, a wild unsociable creature. But

it

is the corruption

of

his nature which makes him

SO:

yet by acquiring new habits, by changing his place, and

way

of

living, he may be reclaimed to his original gen-

tleness. Aristotle, taking a description of man from his

peculiar qualities, makes him an animal of

a

gentle

nature, and in another part

of

his

works,

he observes,

THE RIGHTS

OF

WAR AND PEACE

25

that in considering the nature

of

man,

we are to take

our

likeness from nature

in

its

pure, and not

in

its

corrupt state.

XIII.

It

has been already remarked, that there

is

another kind of right, which

is

the voluntary right,

deriving its origin from the will, and is either human

or

divine.

XIV. We will begin with the human as more gener-

ally known. Now this is either a civil right,

or

a right

more

or

less' extensive than the civil right. The civil

right is that which is derived from the civil power. The

civil power is the sovereign power of the state. A state

is a perfect body of free men, united together

in

order

to enjoy common rights and advantages. The less ex-

tensive right, and not derived from the civil power

itself, although subject to it, is various, comprehending

the authority of parents over children, masters over serv-

ants, and the like. But the law

of

nations is a more

extensive right, deriving its authority from the consent

of all,

or

at least of many nations.

It

was proper to add

MANY,

because scarce any right

can be found common to all nations, except the law of

nature, which itself too is generally called the law

of

nations. Nay, frequently in one part of the world, that

is

held for the law of nations, which

is

not

so

in another,

Now this law of nations is proved in the same man-

ner as the unwritten civil law, and that

is

by the

continual experience and testimony of the Sages

of

the

Law.

For

this law, as Dio Chrysostom well observes,

is the discoveries made by experience and time. And in

this we derive great advantage from the writings of emi-

nent historians.

XV.

The very meaning of the words divine voluntary

Ilght, shows that it springs from the divine will, by

7-hich it is distinguished from natural law, which, it has

&:ready been observed, is called divine also. This law

admits of what Anaxarchus said, as Plutarch relates in

the life of Alexander, though without sufficient accuracy,

that God does not will a thing, because

it

is

just, but

that it is

just,

or

binding, because God wills

it.

Now

this law was given either to mankind

in

general,

or

to

one particular people. We find three periods, at which

it was given by God to the human race, the first

of

which was immediately after the creation of man, the

second upon the restoration of mankind after the

flood,

26

HUGO

GROTIUS

and the third upon that more glorious restoration through

Jesus Christ. These three laws undoubtedly bind all

men, as

soon

as they come to

a

sufficient knowledge of

them.

XVI.

Of

all nations there

is

but one, to which God

particularly vouchsafed to give laws, and that was the

people of Israel, whom

Moses

thus addresses

in

the

fourth Chap. of Deuteronomy, ver.

7.

“What nation

is

there

so

great who hath God

so

nigh unto them, as the

Lord our God

is

in all things that we call upon him

for

?

And what nation is there

so

great, who have statutes and

judgments

so

righteous, as all this law, which

I

set before

you this day!)) And the Psalmist in the cxlvii. Psalm,

((

God shewed his word unto Jacob, his statutes and ordi-

nances unto Israel. He hath not dealt

so

with any nation,

and as for his judgments they have not known them.)’

Nor can we doubt but that those Jews, with whom we

may class Tryphon in his dispute with Justin, are mis-

taken, who suppose that even strangers,

if

they wish to

be saved, must submit to the yoke of the Mosaic Law.

For a law does not bind those, to whom it has not been

given. But it speaks personally to those, who are imme-

diately under

it.

Hear

0

Israel, and we read everywhere

of the covenant made with them, by which they became

the peculiar people of God. Maimonides acknowledges

and proves the truth of this from the xxxiii. Chapter and

fourth verse

of

Deuteronomy.

But among the Hebrews themselves there were always

living some strangers, persons devout and fearing God,

such was the Syrophoenician woman, mentioned in the

Gospel of St. Matthew, xv.

22.

Cornelius the Centurion.

Acts.

x.

the devout Greeks, Acts xviii.

6.

Sojourners, or

strangers, also are mentioned. Levit. xxv.

47.

These,

as the Hebrew Rabbis themselves inform

us,

were obliged

to observe the laws given to Adam and Noah, to abstain

from

idols and blood, and other things, that were pro-

hibited; but not in the same manner to observe the laws

peculiar to the people of Israel. Therefore though the

Israelites were not allowed to eat the flesh of a beast,

that had died a natural death

;

yet the strangers living

among them were permitted. Deut. xiv.

21.

Except in

some particular laws, where

it

was expressly said, that

strangers no less than the native inhabitants were obliged

to observe them. Strangers also,

who

came

from other

countries,

and

were not subject to the Jewish laws, might

THE

RIGHTS

OF

WAR

AND

PEACE

27

worship

God

in the temple

of

Jerusalem, but standing in

a place separate and distinct from the Israelites.

I.

Kings

viii.

41.

2

Mac. iii.

35.

John xii

20.

Acts viii.

27.

Nor

did Elisha ever signify to Naaman the Syrian, nor Jonas

to the Ninevites, nor Daniel to Nebuchadnezzar, nor the

other Prophets to the Tyrians, the Moabites, the

Egyp-

tians, to whom they wrote, that

it

was necessary for them

to adopt the Mosaic Law.

What has been said

of

the whole law of Moses applies

to circumcision, which was a kind

of

introduction to the

law. Yet with this difference that the Israelites alone

were bound

by

the Mosaic Law, but the whole posterity

of

Abraham by the law

of

circumcision. From hence

we are informed by Jewish and Greek Historians, that

the Idumaeans,

or

Edomites were compelled by the Jews

to be circumcised. Wherefore there

is

reason to believe

that the numerous nations, who, besides the Israelites,

practised circumcision, and who are mentioned by Herodo-

tus, Strabo, Philo, Justin, Origen, Clemens, Alexandrinus,

Epiphanius, and Jerom, were descended from Ishmael,

Esau,

or

the posterity of Keturah. But what St. Paul

says,

Rom.

ii.

14.

holds good of all other nations; that

the Gentiles, not having the law, yet doing by nature

the things contained in the law, become a law

to

them-

selves. Here the word nature may be taken for the

primitive source of moral obligation; or, referring it to

the preceding parts of the Epistle, it may signify the

knowledge, which the Gentiles acquired

of

themselves

without instruction, in opposition to the knowledge de-

rived to the Jews from the law, which was instilled

into them from their cradle, and almost from their birth.

((So

the Gentiles show the work,

or

the moral precepts

of the law, written in their hearts, their consciences also

bearing witness, and their thoughts the mean while

accusing

or

else excusing one another.’) And again in

the 26th ver.

;

((If

the uncircumcision keep the righteous-

ness of the law, shall not his uncircumcision be counted

for

circumcision

I

))

Therefore Ananias, the Jew, as

we find in the history of Josephus, very properly

taught Tzates, or

as

Tacitus calls him, Ezates, the

Adiabenian, that even without circumcision, God might

be rightly worshipped

.

and rendered propitious.

For

though many strangers were circumcised, among the

Jews, and by circumcision bound themselves to observe

the law, as St. Paul explains

it

in Gal. v.

3.

;

they did

28

HUGO

GROTIUS

it partly to obtain the freedom

of

the country; for pros-

elytes called by the Hebrews, proselytes of righteous-

ness, enjoyed equal privileges with the Israelites. Num.

xv.

:

and partly to obtain a share in those promises, which

were not common to mankind, but peculiar to the Jewish

people, although it cannot be denied, that in later ages

an erroneous opinion prevailed, that there was

no

sal-

vation out of the Jewish pale. Hence we may infer,

that we are bound by

no

part

of

the Levitical law,

strictly and properly

so

called; because any obligation,

beyond that arising from the law of nature, must pro-

ceed from the express will

of

the law-giver. Now it

cannot be discovered by any proof, that God intended

any other people, but the Israelites to be bound by that

law. Therefore with respect to ourselves, we have

no

occasion to prove

an

abrogation

of

that law; for it could

never be abrogated with respect

to

those, whom it never

bound.

But the Israelites were released from the cere-

monial part, as soon as the law of the Gospel was pro-

claimed; a clear revelation of which was made to one of

the Apostles, Acts x.

15.

And

the other paLtb

0;

<ne

Mosaic law lost their peculiar distinction, when the Jews

ceased to be a people by the desolation and destruction

of their city without any hopes of restoration. Indeed

it was not a release from the law of Moses that we, who

were strangers to the Commonwealth of Israel, obtained

by

the coming

of

Christ. But as before that time,

our

hopes in the goodness of

God

were obscure and uncertain,

we gained the assurance

of

an express covenant, that

we should be united in one Church with the seed

of

Israel, the children of the patriarchs, their law, that

was the wall of separation between

us,

being broken

down. Eph. ii.

14.

XVII.

Since then the law given by Moses imposes

no

direct obligation upon

us,

as

it

has been already shown,

let

us

consider whether it has any other use both in this

inquiry into the rights of war,

and

in other questions of

the same kind.

In

the first place, the Mosaic law shows

that what it enjoins is not contrary to the law of nature.

For since the law of nature is perpetual and unchange-

able, nothing contradictory to

it

could be commanded by

God,

who

is

never unjust. Besides the law of Moses

is

called

in

the xix. Psalm an undefiled and right law, and

St. Paul, Rom. vii.

12,

describes it to be holy, just, and

good.

Its

precepts are here spoken of,

for

its permis-

THE

RIGHTS

OF

WAR

AND

PEACE

19

sions

require

a

more distinct discussion. For the

bare

permission, signifying the removal of an impediment, or

prohibition, has

no

relation to the present subject.

A

positive, legal permission

is

either full, granting

US

power

to

do

some particular act without the least restriction, or

less

full,

only allowing men impunity for certain actions,

and

a

right to

do

them without molestation from others.

From the permission of the former kind

no

less

than

from a positive precept,

it

follows that what the law

allows,

is

not contrary to the law of nature.* But with

regard to the latter kind of permission, allowing impunity

for certain acts, but not expressly authorizing them, we

cannot

so

readily conclude those acts to be conformable

to the law

of

nature.+ Because where the words

of

per-

mission are ambiguous in their meaning, it is better for

us

to interpret according to the established law

of

nature,

what kind of permission

it

is,

than from our conception

of

its expediency to conclude it conformable to the laws

of nature. Connected with this first observation there

is

another, expressive of the power that obtains among

Christian Princes to enact laws of the same import with

those given by Moses, except such as related entirely to

the time of the expected Messiah, and the Gospel then

unrevealed, or where Christ himself has in

a

general or

particular manner established any thing to the contrary.

For except in these three cases, no reason can be devised,

why any thing established by the law of Moses should be

now

unlawful.

In

the third place it may be observed,

that whatever the law

of

Moses enjoined relating to those

virtues, which Christ required

of

his disciples, should be

*To

explain the meaning of Grotius in this place, recourse must

be

had to first principles. Thus the law of nature authorizing

self-

defence

in

its fullest extent, the

laws

of nations, which authorize

was

for the Same purpose, cannot

be

repugnant to it.

t

The

Lav

of

England

on

homicide excusable by selfdefence,

will

throw light

on

the sentiments

of

Grotius in this place. “The law

requires,

that

the person who kills another

in

his

own

defence, should

have retreated

as

far

as

he conveniently or safely

can,

to

avoid the

violence

of

the assault, before he

turns

upon

his assailant; and

that,

not fictitiously, or in order to watch his opportunity, but from

a

real

tenderness of shedding his brother’s blood. And though it may

be

cowardice,

in

time of war. between two independent nations, to

flee

from our enemy; yet between two fellow subjects the law

counte-

nances

no

such point of honour; because the king and his courts are

the

vindicrs

Ijtju~zu~#m,

and will give to the

party

wronged all the

Satisfaction he deserves. And this is the doctrine of universal justice,

Well

as

of

the

municipal

law.”-Blackstone’s

Corn.

voL

4,

chap.

1.6

30

HUGO

GROTIUS

fulfilled

by

Christians now, in a greater degree, from their

superior knowledge, and higher motives. Thus the vir-

tues of humility, patience, and charity are required of

Christians in a more perfect manner than of the Jews

under the Mosaic dispensation, because the promises

of

heaven are more clearly laid before us in the Gospel.

Hence the

old

law, when compared with the Gospel, is

said to have been neither perfect nor faultless, and

Christ is said to be the end of the law, and the law our

schoolmaster to bring

us

to Christ. Thus the old law

respecting the Sabbath, and the law respecting tithes,

show

that Christians are bound to devote not less than

a

seventh portion

of

their time to divine worship, nor less

than a tenth of their fruits to maintain those who are

employed

in

holy things,

or

to

other

pious

uses.

CHAPTER

11.

INQUIRY

INTO

THE

LAWFULNESS

OF

WAR.

Reasons

proving the lawfulness of War

-

Proofs from History

-

Proofs

from general consent- The Law of Nature proved

not

repugnant

to War

-

War

not condemned by the voluntary Divine Law preced-

ing

the

Gospel

-

Objections answered

-

Review

of

the question

whether War be contrary to the Law

of

the Gospel-Arguments from

Scripture for the negative Opinions-Answer to the Arguments

taken

from Scripture for the affirmative-The opinions of the

primi-

tive

Christians

on

the subject examined.

I.

AFTER

examining the sources of right, the first and

most general question that occurs, is whether any

war

is just,

or

if it is ever lawful to make war. But this

question like many others that follow, must in the

first

place be compared with the rights of nature. Cicero in

the third book

of

his Bounds of Good and Evil, and in

other parts of his works, proves with great erudition from

the writings of the Stoics, that there are certain first

principles of nature, called by the Greeks the first natural im-

pressions, which are succeeded by other principles of obliga-

tion superior even to the first impressions themselves.

He calls the care, which every animal, from the moment

of its birth, feels for itself and the preservation of its

condition, its abhorrence of destruction, and

of

every

thing that threatens death, a principle

of

nature. Hence,

he says, it happens, that if left to his own choice, every

man would prefer a sound and perfect to a mutilated

and deformed body.

So

that preserving ourselves in a

natural state, and holding to every thing conformable,

and averting every thing repugnant to nature

is

the first

duty.

But from the knowledge

of

these principles, a notion

arises of their being agreeable to reason, that part

of

a

man, which

is

superior to the body. Now that agree-

ment with reason, which is the basis

of

propriety, should

have more weight than the impulse

of

appetite; because

the principles

of

nature recommend right reason

as

a rule

that ought to be of higher value than bare instinct.

As

the truth of this is easily assented to by all men

of

sound judgment without any other demonstration,

it

(31)

32

HUGO

GROTIUS

fo~~ows that in inquiring into the laws of nature the

first

object of consideration is, what

is

agreeable to those Prin-

ciples

of

nature, and then we come to the which,

though arising only out of the former, are of higher

dignity, and not only to be embraced, when offered, but

pursued by all the means in our power.

This last principle, which is called propriety, from

its

fitness, according to the various things on which

it

turns,

sometimes is limited to a very narrow point, the least

departure from which is a deviation into vice; sometimes

it

allows a wider scope,

so

that some actions, even lauda-

ble in themselves, may be omitted or varied without

crime.

In

this case there

is

not an immediate distinc-

tion between right and wrong; the shades are gradual,

and their termination unperceived; not like a direct con-

trast, where the opposition

is

immediately seen, and the

first step

is

a transgression of the fixed bounds.

The general object of divine and human laws

is

to give

the authority of obligation to what was only laudable in

itself. It has been said above that an investigation of

the laws of nature implies an inquiry, whether any par-

ticular action may be done without injustice: now by an

act of injustice

is

understood that, which necessarily has

in it any thing repugnant to the nature of a reasonable

and social being.

So

far from any thing in the princi-

ples of nature being repugnant to war, every part

of

them indeed rather favours it. For the preservation of

our lives and persons, which is the end of war, and the

possession or acquirement

of

things necessary and useful

to life

is

most suitable to those principles of nature, and

to use force, if necessary, for those occasions, is no way

dissonant to the principles of nature, since all animals are

endowed with natural strength, sufficient to assist and

defend themselves.

Xenophon says, that every animal knows

a

certain

method of fighting without any other instructor than

nature.

In

a fragment of Ovid’s, called the Art of

Fishery,

it

is

remarked, that all animals know their

en-

emy and his means

of

defence, and the strength and

measure of their own weapons. Horace has said, “the

wolf attacks with its teeth, the bull with its horns, and

whence

is

this knowledge derived but from instinct

?”

On

this subject Lucretius enlarges, observing that

a

every

creature knows its

own

powers. The calf butts with

its

forehead, before

its

horns appear, and strikes

with

a11

THE RIGHTS

OF

WAR

AND PEACE

33

imaginable fury.)) On which Galen expresses himself in

the following manner,

a

every animal appears to defend

itself with that part of its body, in which

it

excels others.

The calf butts with its head before its horns have grown,

and the colt strikes with its heel before its hoofs are

hard, as the young dog attempts to bite before his teeth

are strong.

))

The same writer in describing the use of

different parts of the body, says, “that man is a crea-

ture formed for peace and war. His armour forms not an

immediate part of his body; but he has hands fit for pre-

.

paring and handling arms, and we see infants using them

spontaneously, without being taught to

do

so.))

Aristotle

in the 4th book, and tenth chapter of the history of

animals, says, “that the hand serves man for a spear, a

sword, or any arms whatever, because

it

can hold and

wield them.)’ Now right reason and the nature of soci-

ety which claims the second, and indeed more important

place in this inquiry, prohibit not all force, but only that

which

is

repugnant to society, by depriving another of

his right. For the end of society

is

to form a common

and united aid to preserve to every one his own. Which

may easily be understood to have obtained, before what

is now called property was introduced. For the free use

of

life and limbs was

so

much the right of every one,

that

it

could not be infringed or attacked without injus-

tice.

So

the use of the common productions of nature

was the right of the first occupier, and for any one to

rob him of that was manifest injustice. This may be

more easily understood, since law and custom have es-

tablished property under its present form. Tully has

expressed this in the third book of his Offices in the fol-

lowing words, “if every member could have separate

feeling, and imagine

it

could

derive vigour from eng-ross-

ing the strength

of

a neighboring part of the body, the

whole frame would languish and perish.

In

the same

manner

if

every one of

us,

for his own advantage, might

rob another of what he pleased, there would be a total

overthrow of human society and intercourse. For though

it

is allowed by nature for every one to give the prefer-

ence to himself before another in the enjoyment of life

and necessaries, yet she does not permit us to increase

our means and riches by the spoils of others.” It is

not

therefore contrary to the nature of society to provide and

consult for ourselves, if another’s right is not injured;

the force therefore, which inviolably abstains from touch-

3

34

HUGO

GROTIUS

ing

the rights of others, is not unjust.

For

as the Same

Cicero observes Some where in his Epistles, that

as

there

are two modes of contending, the one by argument, and

the other by force, and as the former

is

peculiar to man,

and the latter common to him with the brute creation,

we must have recourse to the latter, when it

is

impossi-

ble to use the former. And again, what can be opposed

to force, but force

?

Ulpian observes that Cassius says,

it

is

lawful to repel force by force, and

it

is

a

right

apparently provided by nature to repel arms with arms,

with whom Ovid agrees, observing that the laws permit

us

to take up arms against those that bear them.

11.

The observation that all war

is

not repugnant to

the law of nature, may be more amply proved from

sacred history.

For

when Abraham with his servants

and confederates had gained a victory, by force

of

arms,

over the four Kings, who had plundered Sodom,

God

approved of his act by the mouth

of

his priest Melchise-

dech, who’said to him, “Blessed be the most high God,

who hath delivered thine enemies into thine hand.

))

Gen. xiv.

20.

Now

Abraham had taken up arms, as ap-

pears from the history, without any special command

from

God.

But this man, no less eminent for sanctity

than wisdom, felt himself authorized by the law of nature,

as it is admitted by the evidence of Berosus, and Orpheus,

who were strangers.

There

is

no occasion to appeal to the history

of

the

seven nations, whom

God

delivered up into the hands

of the Israelites to be destroyed.

For

there was a

special command to execute the judgment of God

upon nations guilty of the greatest crimes. From whence

these wars are literally styled in scripture, Battles of the

Lord,

as undertaken, not by human will, but by divine

appointment. The xvii. chapter of Exodus supplies a

passage more to the purpose, relating the overthrow

which the Israelites, conducted by Moses and Joshua,

made of the Amalekites. In this act, there was no ex-

press commission from

God,

but only an approval after

it

was done. But in the xix. chap. of Deut. ver.

IO,

15.

God

has prescribed general and standing laws to his

people on the manner of making war, by this circum-

stance shewing that a war may be just without any

express commandment from him. Because in the same

passage, a plain distinction

is

made between the case of

the seven nations and that of others. And as there is

THE

RIGHTS

OF

WAR AND

PEACE

35

no

special edict prescribing the just causes for which war

may be undertaken, the determination of them is left to

the discovery of natural reason. Of this kind is the war

of

Jephthah against the Ammonites, in defence of their

borders. Jud. xi. and the war of David against the same

people for having violated the rights of his Ambassadors.

2

Sam. x.

To

the preceding observations may be added,

what the inspired writer of the Epistle to the Hebrews

says of Gideon, Barack, Sampson, Jephthah, David, Samuel,

and others, who by faith made war upon kingdoms, pre-

vailed in war and put whole armies

of

their enemies to

flight. Heb. xi.

33,

34.

The whole tenor of this passage

shews, that the word faith implies a persuasion, that what

they did was believed to be agreeable to the will of God.

In the same manner, David is said, by

a

woman distin-

guished for her wisdom,

I

Sam. xxv.

28.

to fight the

battles of the

Lord,

that is to make lawful and just wars.

111.

Proofs of what has been advanced, may be drawn

also from the consent of all, especially, of the wisest

nations. There is a celebrated passage in Cicero’s speech

for Milo, in which, justifying recourse to force in defence

of

life, he bears ample testimony to the feelings of nature,

who has given

us

this law, which is not written, but in-

nate, which we have not received by instruction, hearing

or reading, but the elements

of

it have been engraven in

our

hearts and minds with her own hand: a law which is

not the effect of habit and acquirement, but forms a part

in the original complexion of our frame:

so

that if our

lives are threatened with assassination

or

open violence

from the hands of robbers

or

enemies,

ANY

means of

defence would be allowed and laudable. He proceeds,

reason has taught this to the learned, necessity to the

barbarians, custom to nations, and nature herself to wild

beasts, to use every possible means of repelling force

offered to their bodies, their limbs and their lives. Caius

and Lawyer says, natural reason permits

us

to defend

ourselves against dangers. And Florentinus, another legal

authority, maintains, that whatever any one does in de-

fence of his person ought to be esteemed right. Josephus

observes, that the love of life is a law of nature strongly

implanted in all creatures, and therefore we look

upon

those as enemies, who would openly deprive

us

of

it.

This principle is founded

on

reasons

of

equity,

SO

evi-

dent, that even in the brute creation, who have no idea of

right, we make a distinction between attack and defence.

36

HUGO

GROTIUS

For

when ulpian had said, thht an animal without knowl-

edge, that

is

without the use of reason, could not possibly

do

wrong, he immediately adds, that when two animals

fight,

if

one kills the other, the distinction of Quintius

Mutius must be admitted, that

if

the aggressor were killed

no

damages could be recovered; but

if

the other, which

was attacked, an action might be maintained. There is

a pasage in Pliny, which will serve for an explanation

of

this, he says that the fiercest lions do not fight with each

other, nor do serpents bite serpents. But

if

any violence

is done to the tamest of them, they are roused, and upon

receiving any hurt, will defend themselves with the great-

est alacrity and vigour.

IV. From the law of nature then which may also be

called the law

of

nations,

it

is

evident that all kinds of

war are not to be condemned. In the same manner, all

history and the laws of manners of every people

suffi-

ciently inform

us,

that war

is

not condemned by the

voluntary law of nations. Indeed Hermogenianus has

said, that wars were introduced by the law of nations, a

passage which ought to be explained somewhat differ-

ently from the general interpretation given to it, The

meaning of

it

is, that certain formalities, attending war,

were introduced by the law of nations, which formalities

were necessary

to

secure the peculiar privileges arising

out of the law. From hence a distinction, which there

will be occasion to use hereafter, between

a

war with

the usual formalities of the law of nations, which is

called just or perfect, and an informal war, which does

not for that reason cease to be just, or agreeable to

right.

For

some wars, when made upon just grounds,

though not exactly conformable, yet are not repugnant

to the law, as will be explained more fully hereafter.

By the law

of

the nations, says Livy, provision is made

to repel force by arms

;

and Florentinus declares, that the

the law of nations allows

us

to repel violence and injury,

in order to protect our persons.

V.

A

greater difficulty occurs respecting the divine

voluntary law. Nor is there any force in the objection

that as the law of nature

is

unchangeable, nothing can

be appointed even by God himself contrary to

it.

For

this

is

true only in those things, which the law of nature

positively forbids or commands; not in those which are

tacitly permitted by the same law. For acts of that

kind, not falling strictly within the general rule, but

THE RIGHTS

OF

WAR

AND

PEACE

37

being exceptions to the. law of nature, may be either for-

bidden or commanded. The

first

objection usually made

against the lawfulness of war is taken from the law

given

to

Noah and his posterity, Gen. ix.

5,

6,

where

God thus speaks, ((Surely the blood

of

your lives will

I

require; at the hand of every beast will

I

require it, and

at the hand of every man

;

at the hand of every man’s

brother will

I

require the life of man. Whoever sheds

man’s blood, by man shall his blood be shed; for in the

image of God made he man.” Here some take the phrase

of requiring blood, in the most general sense, and the

other part, that blood shall be shed in its turn, they con-

sider as a bare threat, and not an approbation; neither

of

which acceptations can be admitted. For the prohi-

bition of shedding blood extends not beyond the law

itself, which declares,

THOU

SHALT

NOT

KILL;

but passes

no condemnation upon capital punishments or wars un-

dertaken by public authority.

Neither the law

of

Moses, nor that given to .Noah

established any thing new, they were only a declaratory

repetition of the law of nature, that had been obliterated

by depraved custom.

So

that the shedding of blood in

a criminal and wanton manner

is

the only act prohibited

by those commandments. ‘Thus every act of homocide

does not amount to murder, but only that, which is com-

mitted with a wilful and malicious intention to destroy

the life of an innocent person.

As

to what

follows

about

blood being shed in return for blood, it seems to imply

not a mere act of personal revenge, but the deliberate

exercise

of

a perfect right, which may be thus explained;

it

is not unjust, according

to

the principles of nature

that any one should suffer in proportion to the evil he

has done, conformably to the judicial maxim

of

Rhada-

manthus, that

if

any one himself suffers what he has

done,

it

is

but just and right. The same opinion is thus

expressed by Seneca the father;

((it

is but a just retalia-

tion for any one to suffer in his own person the evil

which he intended to inflict upon another.” From

a

sense

of

this natural justice, Cain knowing himself guilty

of

his brother’s blood said, ((whosoever finds me shall

kill me.)’

But as in those early times, when men were few, and

aggressions rare, there was less occasion for examples,

God restrained by an express commandment the impulse

of nature which appeared lawful, he forbad any one

to

38

HUGO

GROTIUS

kill the murderer, at the same time prohibiting all inter-

course with him, even

so

far as not to touch him.*

Plat0 has established this in his laws, and the Same

rule prevailed in Greece, as appears from the following

passage in Euripides,

((our

fathers of old did well in

banishing from their intercourse and sight any one that

had shed another’s blood

;

imposing banishment by way

of atonement, rather than inflicting death.” We find

Thucydides of the same opinion,

((

that anciently lighter

punishments were inflicted

for

the greatest crimes; but

in process of time, as those penalties came to be despised,

legislators were obliged to have recourse to death in cer-

tain cases.)) We may add to the above instances the re-

mark of Lactantius, that as yet

it

appeared

a

sin

to

punish even the most wicked men with death.

The conjecture of the divine will taken from the re-

markable instance of Cain, whom no one was permitted

to kill passed into a law,

so

that Lanech, having per-

petrated a similar deed, promised himself impunity from

this example.-Gen iv.

24.

But as before the deluge, in the time of the Giants, the

practice of frequent and wanton murders had prevailed;

upon the renewal

of

the human race, after the deluge,

that the same evil custom might not be established,

God

thought proper to restrain it by severer means. The

lenity

of

former ages was laid aside, and the divine

authority gave a sanction to the precepts of natural

justice, that whoever killed

a

murderer should be inno-

cent. After tribunals were erected, the power

over

life

was,

for

the very best reasons, conferred upon the judges

alone. Still some traces of ancient manners remained in

the right which was granted, after the introduction

of

the Mosaic Law,

to

the nearest in blood

to

the person

killed.

This interpretation

is

justified by the authority

of

Abraham, who, with a perfect knowledge of the law given

to

Noah, took arms against the four Kings, fully per-

suaded that he was doing nothing in violation of that

law. In the same manner Moses ordered the people to

fight against Amalekites, who attacked them; following

in this case the dictates of nature, for he appears to have

had no special communication with God. Exod. xvii.

9.

*

The author here

alludes

to the defilement

or

uncleanness which

the ancients thought was contracted

by

touching a man,

who

had

killed another, even innocently and lawfully.- Barbepc

THE

RIGHTS

OF

WAR

AND PEACE

39

Besides, we find that capital punishments were inflicted

upon other criminals, as well as murderers, not only

among the Gentiles, but among those who had been im-

pressed with the most pious rules and opinions, even the

Patriarchs themselves. Gen. xxxviii.

24.

Indeed upon comparing the divine will with the light

of

nature,

it

was concluded, that

it

seemed conformable

to justice, that other crimes of great enormity should be

subject to the same punishment as that of murder. For

there are some rights, such as those of reputation,

chastity, conjugal fidelity, submission

of

subjects to their

princes, all of which are esteemed of equal value with

life itself, because on the preservation of these the peace

and comfort of life depend. The violation of any of

those rights is little less than murder itself.

Here may be applied the old tradition found among the

Jews, that there were many laws, which were not

ALL

mentioned by Moses, given by God to the sons of Noah;

as

it was sufficient for his purpose, that they should

afterwards be comprehended in the peculiar laws of the

Hebrews. Thus it appears from xviii. chap.

of

Leviticus,

that there was an ancient law against incestuous mar-

riages, though not mentioned by Moses in its proper

place. Now among the commandments given by God to

the children

of

Noah, it is said, that death was expressly

declared to be the punishment not only for murder, but

for adultery, incest, and robbery, which is confirmed by

the words

of

Job xxxi.

11.

The law

of

Moses too, for

the sanction

of

capital punishments, gives reasons which

operate no less with other nations, than with the Jewish

people. Levit. xviii.

25-30.

Psa. ci.

5.

Prov. xx.

8.

And

particularly respe.cting murder it is said, the land cannot

be cleansed unless the blood of the murderer be shed.

Numb. xxv.

31-33.

Besides, it were absurd to suppose

that the Jewish people were indulged with the privilege

of maintaining the public safety, and that of individuals

by capital punishments, and asserting their rights by war,

and that other kings and nations were not allowed the

same powers. Nor do we find that those kings or nations

were forewarned by the Prophets, that the use of capital

punishments, and that all wars, were condemned by God

in

the same manner as they were admonished of all other sins.

On the other hand, can any one doubt, as the law

of

Moses bore such an express image

of

the divine will re-

specting criminal justice, whether other nations

would

40

HUGO

GROTIUS

not have acted wisely in adopting it for their example?

It

is

certain that the Greeks, and the Athenians in par-

ticular did

s~.

From hence came the close resemblance

which the Jewish bore to the

old

Athenian law, and to

that of the twelve tables of Rome. Enough has been

said, to shew that the law given to Noah cannot bear the

interpretation of those, who derive from

it

their argu-

ments against the lawfulness of all war.

VI.

The arguments against the lawfulness

of

war,

drawn from the Gospel, are more specious. In examining

which it will not be necessary to assume,

as

many

do,

that the Gospel contains nothing more than the law of

nature, except the rules of faith and the Sacraments: an

assumption, which in its general acceptation

is

by no

means true.

It

may readily be admitted, that nothing

inconsistent with natural justice

is

enjoined in the gospel,

yet it can never be allowed, that the laws of Christ

do

not impose duties upon

us,

above those required by the

law of nature. And those, who think otherwise, strain

their arguments to prove that many practices forbidden

by the gospel, as concubinage, divorce, polygamy, were

made offences by the law of nature. The light of nature

might point out the

HONOUR

of abstaining from such

practices, but the

SINFULNESS

of them could not have been

discovered without a revelation of the will of God. Who

for instance would say, that the Christian precept

of

laying down

our

lives for others was an obligation of the

law of nature

?

I

John

iii.

16.

It

is said by Justin the

Martyr, that to live according to the bare law of nature

is not the character of

a

true believer. Neither can we

follow those, who, adopting another meaning

of

no incon-

siderable import, construe the precept delivered by Christ

in his sermon on the mount, into nothing more than an

interpretation of the Mosaic Law.

For

the words, “you

have heard

it

was said to them of old, but

I

say to

YOU,”

which are

so

often repeated, imply something else. Those

of

old

were no other than contemporaries of Moses: for

what

is

there repeated as said to those of

OLD

are not the

words of the teachers of the law, but of Moses, either

LITERALLY,

or

in

THEIR

meaning. They are cited by

our

Saviour as his express words, not as interpretations of

them:

(‘

Thou shalt not kill,)) Exod.

xx.

whoever killeth

shall be

in

danger of Judgment, Levit. xxi.

21.

Numb.

xxxv.

16,

17,

30.

“Thou shalt not commit adultery,”

hod. xx. ((whosoever shall put away his wife, let him

THE

RIGHTS

OF

WAR

AND

PEACE

41

give her a writing

of

divorcement.” Deut. xxiv,

I.

((Thou shalt not forswear thyself, but shalt perform unto

the Lord thine oaths.” Exod. xx.

7.

Numb. xxx

2.

a

An

eye for an eye, and a tooth for a tooth,” may be demanded

in justice.” Levit. xxxiv.

10.

Deut. xix.

11.

((

Thou

shalt love thy neighbour,)) that is, an Israelite. Levit. xix.

18.

((and thou shalt hate thine enemy,)) that is, any

one

of the seven nations to whom friendship or compassion

was forbidden

to

be shewn. Exod. xxxiv.

11.

Deut.

vii.

I.

To these may be added the Amalekites, with

whom the Israelites were commanded to maintain irre-

concileable war. Exod. xxvii.

19.

Deut. xxv.

19.

But to understand the words

of

our Saviour,

we

must

observe that the law of Moses is taken in a double sense,

either as containing some principles in common with hu-

man laws, such as imposing restraint upon human crimes

by the dread of exemplary punishments. Heb. ii.

2.

And

in this manner maintaining civil society among the Jew-

ish people: for which reason it is called, Heb. vii.

16,

the law

of

a carnal commandment, and Rom. iii.

17.

the

law of works:

or

it may be taken in another sense, com-

prehending the peculiar sanctions of a divine law, re-

quiring purity of mind, and certain actions, which might

be omitted without temporal punishments. In this sense

it is called a spiritual law, giving life to the

soul.

The

teachers of the law, and the Pharisees considering the

first part as sufficient, neglected to instruct the people

in the second and more important branch, deeming it

superfluous. The truth

of

this may be proved, not only

from our own writings, but from Josephus also, and the

Jewish Rabbies. Respecting this second part we may

observe, that the virtues which are required

of

Chris-

tians, are either recommended or enjoined to the He-

brews, but not enjoined in the same degree and extent

as to Christians. Now in both these senses Christ

op-

poses his own precepts

to

the old law. From whence it

is clear, that his words contain more than a bare inter-

pretation of the Mosaic law. These observations apply

not only to the question immediately in hand, but to

many others; that we may not rest upon the authority

of

the Mosaic law farther than is right.

VII.

Omitting therefore the less satisfactory proofs, as

a leading point of evidence to shew that the right

of

war is not taken away by the law

of

the gospel, that

passage in St. Paul’s Epistle to Timothy may be referred

42

HUGO

GROTIUS

to,

where the Apostle says,

“I

exhort therefore that,

first

of all, supplications, prayers, intercessions, and

giv-

ing

of thanks be made for all men

;

for Kings, and for

all that are in authority, that we may lead a quiet and

peaceable life, in all godliness and honesty; for this

is

good and acceptable in the sight of God our Saviour, who

would have all men to be saved, and to come to the

knowledge of the truth.))

I

Eph. ii.

I,

2,

3.

From this

passage, the following conclusions may be drawn; in the

first place, that Christian piety in kings is acceptable to

God, that their profession of Christianity does not

abridge their rights of sovereignty. Justin the Martyr

has said, ((that in our prayers for Kings, we should beg

that they may unite a spirit of wisdom with their royal

power,” and in the book called the Constitutions of

Clement, the Church prays

for

Christian rulers, and that

Christian Princes may perform an acceptable service to

God, by securing to other Christians the enjoyment of

quiet lives. The manner in which the Sovereign secures

this important end, is explained in another passage from

the same Apostle. Rom. xiii.

4.

((

He is the minister of

God to thee for good. But

if

thou do evil,

fear,

for he

beareth not the sword in vain; for he

is

the minister of

God, an avenger to execute wrath upon them, that do

evil.)’ By the right of the sword is understood the exer-

cise of every kind

of

restraint, in the sense adopted by

the Lawyers, not only over offenders amongst his own

people, but against neighboring nations, who violate his

own and his people’s rights.

To

clear up this point, we

may refer to the second Psalm, which although

it

ap-

plies literally to David, yet in its more full and perfect

sense relates to Christ, which may be seen by consulting

other parts of scripture. For instance, Acts iv.

25.

xiii.

33.

For that Psalm exhorts all kings to worship the son

of God, shewing themselves, as kings, to be his minis-

ters, which may be explained by the words of St.

Au-

gustine, who says, “In this, kings, in their royal capacity,

serve God according to the divine commandment,

if

they

promote what is good, and prohibit what is evil in their

kingdoms, not only relating to human society, but also

respecting religion.

))

And in another place the same

writer says, ((How can kings serve the Lord in fear,

unless they can prohibit and punish with due severity

offences against the lqw of

God

?

For the capacities in

which

they serve God, as individuals, and

as

kings,

are

THE

RIGHTS

OF

WAR

AND

PEACE

43

very different. In this respect they serve the Lord, as

kings, when they promote his service

by

means which

they could not use without regal power.

The same part of the Apostle's writings supplies

us

with a second argument, where the higher powers, mean-

ing kings, are said to 'be from God, and are called the

ordinance

of

God; from whence

it

is plainly inferred that

we are to honour and obey the king, from motives of

conscience, and that every one who resists him, is resist-

ing God.

If

the word ordinance meant nothing more

'

than a bare permission, that obedience which the Apostle

so

strenuously enjoins would only have the force of an

imperfect obligation. But as the word ordinance, in the

original, implies an express commandment and appoint-

ment, and as all parts

of

the revealed will of God

are

consistent with each other,

it

follows that the obedience

of

subjects to sovereigns is a duty of supreme obligation.

Nor

is

the argument at all weakened by

its

being said,

that the Sovereigns at the time when St. Paul wrote,

were not Christians.

For

it is not universally true, as

Sergius Paulus, the deputy governor of Cyprus, had long

before professed the Christian religion. Acts xiii.

12.

There is no occasion to mention the tradition respecting

Abgarus the King

of

Edessa's Epistle to

our

Saviour; a

tradition mingled with falsehood, though, in some meas-

ure founded upon truth.

For

the question did not turn

upon the characters of the Princes, whether they were

godly or not, but whether

THEIR

holding the kingly office

was repugnant to the law of God. This St. Paul denies,

maintaining that the kingly ofice, even under all cir-

cumstances, was appointed by God, therefore it ought to

be honoured from motives of conscience, which, properly

speaking, are under the controul of God alone.

So

that

Nero, and King Agrippa whom Paul

so

earnestly entreats

to become a Christian, might have embraced Christian-

ity, and still retained, the one his regal, and the other

his imperial authority, which could not be exercised

without the power of the sword. As the legal sacrifices

might formerly be performed by wicked Priests; in the

same manner regal power would retain its indelible

sanctity, though in the hands of an ungodly man.

A

third argument

is

derived from the words of John

the Baptist, who, at a time when many thousands

of

the

Jews served in the Roman armies, as appears from the

testimony

of

Josephus and others, being seriously asked

44

HUGO

GROTIUS

by the soldiers, what they should do to avoid the wrath

of

God,

did not command them to renounce their mili-

tary calling, which he ought to have done, had

it

been

inconsistent with the law and will of God, but to abstain

from

violence, extortion, and false accusation, and to be

content with their wages. In reply to these words of

the Baptist,

SO

plainly giving authority

to

the military

profession, many observed that the injunction of the Bap-

tist

is

SO

widely different from the precepts of Christ,

that HE seemed to preach one doctrine and

our

LORD

another. Which is by no means admissible, for the fol-

lowing reasons. Both our Saviour and the Baptist made

repentance the substance of their doctrine

;

for the king-

dom of heaven was at hand. By the Kingdom of Heaven

is meant a new law, as the Hebrews used to give the name

of Kingdom to their law, Christ himself says the King-

dom of Heaven began to suffer violence from the days

of John the Baptist. Matt. xi.

12.

John is said to have

preached the baptism of repentance for the remission of

sins. Mark

i.

4.

The Apostles are said to have done the

same in the name of Christ. Acts xi.

38.

John requires

fruits worthy of repentance, and threatens destruction to

those, who

do

not produce them. Matt.

iii.

8,

IO.

He

also requires works of charity above the law. Luke

iii.

2.

The law is said to have kontinued till John, that

is,

a

more perfect law

is

said to have commenced from his

instruction. He was called greater than the prophets,

and declared to be one sent to give the knowledge of

salvation to the people by announcing the gospel. He

makes no distinction between himself and Jesus on the

score

of

doctrine, only ascribing pre-eminence to Christ

as the promised Messiah, the Lord of the Kingdom of

Heaven, who would give the power of the holy spirit to

those, who believed in him. In short, the dawning rudi-

ments of knomledqe. which proceeded from the forerun-

ner, were more distinctly unfolded and cleared up, by

Christ himself, the light of the world.

There

is

a fourth argument, which seems to have no

little weight, proceeding upon the supposition, that

if

the

*

right

of

inflicting capital punishments were abolished, an2

princes were deprived of the power of the sword to pro-

tect their subjects against the violence of murderers and

robbers, wickedness would triumphantly prevail, and the

world would be deluged with crimes, which, even under

the best established governments, are with

so

much diffi-

THE

RIGHTS OF WAR AND

PEACE

45

culty prevented or restrained. If then

it

had been the

intention of Christ to introduce such an order of things

as

had never been heard of, he would undoubtedly

by

the most express and particular words, have condemned

all capital punishments, and all wars, which we never

read that he did. For the arguments, brought in favor

of

such an opinion, are for the most part very indefinite

and obscure. Now both justice and common sense require

such general expressions to be taken in

a

limited accepta-

tion, and allow

us,

in explaining ambiguous words, to

depart from their literal meaning, where our strictly

adhering to it would lead to manifest inconvenience and

detriment.

There is a fifth argument, maintaining that no proof

can be adduced that the judicial part of the Mosaic Law,

inflicting sentence of death, ever ceased to be in force,

till

the city of Jerusalem, and the civil polity of the Jews

were utterly destroyed, without hopes

of

restoration. For

in the Mosaic dispensation no assignable term is named

for

the duration of the law; nor

do

Christ and his

Apostles ever speak of its abolition, except in allusion

to the overthrow of the Jewish state. ‘Indeed on the

contrary, St. Paul says, that the High Priest was ap-

pointed to judge according to the law of Moses. Acts

xxiv.

3.

And Christ himself, in the introduction to his

precepts, declares that he came not to destroy the law,

but to fulfil

it.

Matt. v.

17.

The application of his

meaning to the ritual law

is

very plain, for it was only

the outline and shadow of that perfect body, of which

the Gospel formed the substance. But how

is

it

possible

that the judicial laws should stand,

if

Christ, according

to

the opinion of some, abolished them by his coming?

Now if the law remained in force as long as the Jewish

state continued,

it

follows that the Jewish converts to

Christianity if called to the magisterial office, could not

refuse

it

on the score of declining to pass sentence of

death, and that they could not decide otherwise than the

law of Moses had prescribed.

Upon weighing the whole matter, the slightest ground

cannot be discovered for supposing that any pious man,

who had heard those words from our Saviour himself,

would have understood them in a sense different from that

which has been here given.

It

must however be admitted

that, before the Gospel dispensation permission or impunity

was granted to certain acts and dispositions, which

it

46

HUGO

GROTIUS

would neither be necessary

nor

proper to examine at

present, upon which Christ did not allow his followers to

act. Of this kind was the permission to put away

a

wife

for every offence, and to seek redress by law for every

injury. Now between the positive precepts of Christ and

those permissions there is a difference, but not a contra-

diction.

For

he that retains his wife, and he that forgoes

his right of redress, does nothing

CONTRARY

to the law,

but rather acts agreeably to the

SPIRIT

of it.

It

is very

different with a judge, who is not merely permitted, but

commanded by the law to punish a murderer with death,

incurring guilt in the sight of God,

if

he should act other-

wise.

If

Christ had forbidden him to put a murderer to

death, his prohibition would have amounted to a contra-

diction, and

it

would have abolished the law.

The example of Cornelius the Centurion supplies a sixth

argument in favor of this opinion. In receiving the holy

spirit from Christ, he received an indubitable proof of his

justification

;

he was baptized into the name of Christ by

Peter, yet we do not find that he either had resigned

or

was advised by the Apostle to resign his military com-

mission. In reply to which some maintain, that when

instructed by Peter in the nature of the Christian religion,

he must have been instructed to form the resolution

of quitting his military calling. There would be some

weight in their answer, if it could be shown that an

absolute prohibition of war is to be found among the pre-

cepts

of

Christ. And

as

it can be found nowhere else,

it would have been inserted in its proper place among the

precepts of Christ, that after ages might not have been

ignorant of the rules of duty.

Nor

as may be seen in the

xix. chap. of the Acts of the Apostles and the 19th ver.

is it usual with St. Luke, in cases where the personal

character and situation

of

converts required an ex-

traordinary change of life and disposition, to pass over

such a circumstance without notice.

The seventh argument is like the preceding, and is

taken from the example of Sergius Paulus, which has

been already mentioned.

In

the history of his conversion

there is not the least intimation of his abdicating the

magistracy,

or

being required to do

so.

Therefore silence

respecting a circumstance, which would naturally and

necessarily have been mentioned, may be fairly taken as

a proof that it never existed. The conduct of

St.

Paul

supplies

us

with

an

eighth argument

on

this subject.

THE

RIGHTS

OF

WAR

AND PEACE

47

When he understood that the Jews lay in wait for

an

op-

portunity to seize and kill him, he immediately gave infor-

mation of their design to the commander of the Roman

garrison, and when the commander gave him

a

guard of

soldiers to protect him on his journey, he made no remon-

strance, nor ever hinted either to the commander or the

soldiers that it was displeasing to God to repel force by

force. Yet this is the same Apostle who, as appears from

all his writings,

z

Tim. iv.

2.

neither himself neglected nor

allowed others to neglect any opportunity of reminding

men of their duty In. addition to all that has been said,

it may be observed, that the peculiar end of what

is

law-

ful and binding, must itself be lawful and binding also.

It is lawful to pay tribute, and according to St. Paul’s ex-

planation, it is an act binding upon the conscience, Rom.

xiii.

3,

4,

6.

For

the end of tribute is to supply the state

with the means of protecting the good, and restraining the

wicked. There is a passage in Tacitus very applicable to

the present question. It is in the fourth book

of

his

his-

tory, in the speech of Petilius Cerealis, who says, “the

peace of nations cannot be preserved without armies,

nor

can armies be maintained without pay, nor pay supplied

without taxation.)) There

is

a sentiment similar to this

of the historian, in St. Augustin, he says, “for this pur-

pose we pay tribute, that the soldier may be provided

with the necessaries of life.))

The tenth argument

is

taken from that part

of

the

xxv. chap. of the Acts

of

the Apostles, where Paul says,

((If

I

have wronged any man, or done any thing worthy

of death,

I

refuse not to die.)) From whence the opin-

ion

of

St. Paul may be gathered, that, even after the

publication of the gospel, there were certain crimes which

justice not only allowed but required to be punished with

death; which opinion St. Peter also maintains. ‘But if it

had been the will of God that capital punishments should

be abolished, Paul might have cleared himself, but he

ought not to have left an impression on the minds of

men, that it was at that time equally lawful as before

to punish the guilty with death. Now as it has been

proved, that the coming

of

Christ did not take away the

right of inflicting capital punishments, it has at the same

time been proved, that war may be made upon a rnulti-

tude

of

armed offenders, who can only be brought to

justice by defeat in bhttle. The numbers, the strength

and boldness of the aggressors, though they may have

48

HUGO

GROTIUS

their weight in restraining our deliberations, cannot

in

the least diminish our right.

The substance of the eleventh argument rests not

only

upon our Saviour’s having abolished those parts of the

Mosaic law, which formed a wall of separation between

the Jews and other nations, but upon his allowing the

moral parts to remain, as standing rules, approved by the

law of nature, and the consent of every civilized people,

and

containing whatever

is

good and virtuous.

Now

the punishing of crimes, and the taking up arms

to avenge or ward off injuries are among those actions,

which by the law of nature rank as laudable,

and

are

referred to the virtues of justice and beneficence. And

here is the proper place to animadvert slightly upon the

mistake of those, who derive the rights of war, possessed

by the Israelites, solely from the circumstance

of

God

having given them the land of Canaan and commissioned

them to drive out the inhabitants. This may be oce just

reason, but it is not the sole reason.

For, prior to those times, holy men guided by the

light

of

nature undertook wars, which the Israelites them-

selves afterwards did for various reasons, and David in

particular, to avenge the violated rights

of

ambassadors.

But the rights, which any one derives from the law

of

nature, are no less his own than

if

God

had given

them: nor are those rights abolished by the law

of

the

Gospel.

VIII.

Let

us

now consider the arguments, by which

the contrary opinion

is

supported, that the pious reader

may judge more easily, to which side the scale inclines.

In

the first place, the prophecy of Isaiah is generally

alleged, who says the time shall come, ((when nations

shall beat their swords into plow-shares, and turn their

spears into pruning hooks. Nation shall not lift up

sword against nation, neither shall they learn war any

more.))

ii.

4.

But this prophecy, like many others, is to

be taken conditionally, alluding to the state

of

the world

that would take place,

if

all nations would submit to the

law

of

Christ, and make

it

the rule

of

life, to which

purpose

God

would suffer nothing to be wanting

on

his

part.

For

it

is

certain, that

if

all people were Christians,

and lived like Christians, there would be no wars, which

Arnobius expresses thus,

((If

all men, knowing that it

is

not their corporeal

form

alone which makes them men,

but

the

powers

of

the understanding,

would

lend

a

patient

THE RIGHTS

OF

WAR

AND

PEACE

49

ear to his salutary and pacific instructions, if they would

trust to his admonitions rather than to the swelling pride

and turbulence of their senses, iron would be employed

for instruments of more harmless and useful operations,

the world enjoy the softest repose and be united in the

bands of inviolable treaties.))

On

this subject Lactantius,

reproaching the Pagans with the deification of their con-

querors, says,

((

what would be the consequence,

if

all men

would unite in concord

I

Which might certainly be

brought to pass,

if,

abandoning ruinous and impious rage,

they would live in justice and innocence.)’ Or this pas-

sage of the prophecy must be understood literally, and,

if

taken in that sense,

it

shews that it is not yet ful-

filled, but its accomplishment must be looked for in the

general conversion of the Jewish people. But, which

ever way

you

take

it,

no conclusion can be drawn from

it

against the justice of war, as long as violent men

exist to disturb the quiet of the lovers of peace.*

IX. In examining the meaning of written evidence,

general custom, and the opinions of men celebrated for

their wisdom have usually great weight; a practice which

it is right to observe in the interpretation of holy scrip-

ture. For it

is

not likely that the churches, which had

been founded by the Apostles, would either suddenly or

universally have swerved from those opinions, which the

Apostles had briefly expressed, in writing, and afterwards

more fully and clearly explained to them with their own

lips, and reduced

to

practice. Now certain expressions of

the primitive Christians are usually alleged by those who

are adverse to all wars, whose opinions may be considered

and refuted in three points of view.

In the first place, from these expressions nothing more

can be gathered than the private opinions of certain

individuals, but no public opinion

of

the Churches. Besides

these expressions for the most part are to be found only

in the writings

of

Origen, Tertullian and some few others,

who wished to distinguish themselves by the brilliancy

of their thoughts, without regarding consistency in their

opinions. For this same Origen says, that Bees were

given by God as a pattern for men to follow in conduct-

ing

just,

regular, and necessary wars; and likewise Ter-

tulian, who in some parts seems

to

disapprove of capital

*The remainder

of

this section

is

omitted, Grotius himself Stating

it

to be

only

a repetition and enlargement

of

his

arguments immediately

preceding it. (Translator.

)

4

50

HUGO

GROTIUS

punishments, has said,

((

No

one can deny that

it

is good

the guilty should be punished.” He expresses his doubts

respecting the military profession, for in his book

upon

idolatry, he says, it

is

a

fit

matter of inquiry, whether

believers can take

up

arms, or whether any of the mili-

tary profession can be admitted as members of the Chris-

tian Church. But in his Book entitled, the

SOLDIER’S

CROWN, after some objections against the profession of

arms, he makes a distinction between those who are en-

gaged in the army before baptism, and those who entered

after they had made the baptismal vow.

ff

It

evidently,

says

he

alters the case with those who were soldiers before

their conversion to Christianity; John admitted them to

baptism, in one instance Christ approved, and in another

Peter instructed a faithful Centurion: yet with this stipu-

lation, that they must either like many others, relinquish

their calling, or be careful to do nothing displeasing to

God.” He was sensible then that they continued in the

military profession after baptism, which they would by

no

means have done,

if

they had understood that

all

war was forbidden by Christ. They would have followed

the example

of

the Soothsayers, the Magi, and other pro-

fessors of forbidden arts, who ceased to practice them,

when they became Christians. In the book quoted above,

commending a soldier, who was at the same time

a

Christian, he says,

((

0

Soldier glorious in God.))

The second observation applies to the case

of

those,

who declined

or

even refused bearing arms,

on

account

of the circumstances

of

the times, which would have re-

quired them to do many acts inconsistent with their

Christian calling. In Dolabella’s letter

to

the Ephesians,

which

is

to be found in Josephus, we see that the Jews

requested an exemption from military expeditions, be-

cause, in mingling with strangers, they could not con-

veniently have observed the rites of their

own

laws and

would have been obliged to bear arms, and to make long

marches on the Sabbaths. And we are informed by

Josephus that,

for

the same reasons, the Jews obtained

their discharge of

L.

Lentulus. In another part, he re-

lates that when the Jews had been ordered to leave the

city

of

Rome, some

of

them inlisted in the army, and

that others, who out of respect to the laws of their coun-

try, for the reasons before mentioned, refused to bear

arms, were punished.

In

addition to these

a

third rea-

son

may be given, which was that they

would

have

to

.

THE

RIGHTS

OF

WAR

AND

PEACE

51

fight against their own people, against whom

it

was un-

lawful to bear aps, especially when they incurred dan-

ger and enmity for adhering to the Mosaic law. But

the Jews, whenever they could do it, without these in-

conveniences, served under foreign princes, previously

stipulating, as we are informed by Josephus, for liberty

to

live according to the laws and rules of their own

country. Tertullian objects to the military service

of

his

own times on account

of

dangers, and inconveniences very

similar to those, which deterred the Jews. In his book on

Idolatry, he says, “it is impossible to reconcile the oath

of

fidelity to serve under the banners of Christ, with that

to serve under the banners of the Devil.)) Because the

soldiers were ordered to swear by Jupiter, Mars, and the

other Heathen Gods. And in his bdok on the Soldier’s

Crown, he asks,

“if

the soldier be to keep watch before

the temples, which he has renounced, to sup where he

is

forbidden by the Apostle, and to guard in the night the

Gods, whom he has abjured in the day

?

))

And he pro-

ceeds with asking,

((

if

there be not many other military

duties, which ought to be regarded in the light of sins

1

The third point of view, in which the subject is to be

considered, relates to the conduct of those primitive

Christians, who, in the ardour of zeal, aimed at the

most brilliant attainments, taking the divine counsels for

precepts of obligation. The Christians, says Athenagoras,

never go to law with those, who rob them.

Salvian says,

it

was commanded by Christ that we

should relinquish the object of dispute, rather than en-

gage in law suits. But this, taken in

so

general an ac-

ceptation,

is

rather by the way

of

counsel, in order to

attain to

a

sublimer mode of life, than intended as a

positive precept. Thus many

of

the primitive Fathers

condemned all oaths without exception, yet

St.

Paul, in

matters of great importance, made use of these solemn

appeals to God.

A

Christian in Tatian said,

((I

refuse

the office of Praetor,” and in the words

of

Tertullian,

“a

Christian

is

not ambitious of the Aedile’s office.’)

In

the

Same manner Lactantius maintains that a just man,

such

he wishes a Christian to be, ought not to engage in

war, nor,

as

all his wants can be supplied at home, even

to

go

to

sea. How many of the primitive fathers dis-

suade Christians from second marriages

?

All

these

counsels are good, recommending excellent attainments,

highly acceptable to

God,

yet they are not required

of

52

HUGO

GROTITTS

us,

by any absolute law. The observations already made

are sufficient to answer the objections derived frcm the

primitive times of Christianity.

Now

in order to confirm our opinions, we may observe

that they have the support

of

writers, even of greater

antiquity, who think that capital punishments may be

inflicted, and that wars, which rest upon the same author-

ity, may be lawfully engaged in by Christians. Clem-

ens

Alexandrinus says, that

((

a Christian,

if,

like Moses,

he be called to the exercise of sovereign power, will be

a living law to his subjects, rewarding the good, and pun-

ishing the wicked.” And, in another place, describing

the habit of

a

Christian, he says,

((it

would become him

to go barefoot, unless he were a soldier.’) In the work

usually entitled the CONSTITUTIONS

OF

CLEMENS

ROMANUS,

we find that

((it

is not all killing which

is

considered

unlawful, but only that of the innocent; yet the admin-

istration

of

judicial punishments must be reserved to the

supreme power alone.” But without resting upon indi-

vidual authorities, we can appeal to the public authority

of

the church which ought

to

have the greatest weight.

From hence

it

is

evident that none were ever refused

baptism,

or

excommunicated by the church, merely for

bearing arms, which they ought to have been, had the

military profession been repugnant to the terms of the

new covenant.

In

the

CONSTITUTIONS

just quoted,

the writer speaking

of

those who, in the primitive times,

were admitted to baptism, or refused that ordinance,

says, ((let a soldier who desires to be admitted be taught

to forbear from violence, and false accusations, and

to

be

content with his regular pay.

If

he promises obedience

let him be admitted.” Tertullian in his

Apology,

speak-

ing in the character of Christians, says,

((We

sail along

with you, and we engage in the same wars,)) having a

little before observed, ((we are but strangers, yet we

have filled all your cities, your islands, your castles, your

municipal towns, your councils, and even your camps.”

He had related in the same book that rain had been ob-

tained for the Emperor Marcus Aurelius by the prayers

of

the Christian soldiers.* In his book of the crown, he

commends a soldier, who had thrown away his garland,

for

a courage superior to that of his brethren in arms,

*Grotius

does

not

vouch

for the truth

of

this assertion, but only

quotes the passage to shew there were

CHRISTIANS

in

the

army

of

Narcus Aurelius.

THE

RIGHTS

OF

WAR

AND PEACE

53

and informs

us

that he had many Christian fellow

sol-

diers.

To

these proofs may be added the honours of Martyr-

dom given by the Church to some soldiers, who had been

cruelly persecuted, and had even suffered death for the sake

of

Christ, among whom are recorded three of St. Paul’s

companions, Cerialis who suffered martyrdom under

Decius; Marinus under Valerian; fifty under Aurelian,

Victor, Maurus, and Valentinus,

a

lieutenant general

under Maximian. About the same time Marcellus the

Centurion, Severian under Licinius. Cyprian, in speaking

or Laurentinus, and Ignatius, both Africans, says, ((They

too served in the armies of earthly princes, yet they were

truly spiritual soldiers of

God,

defeating the wiles of the

Devil by

a

steady confession of the name of Christ, and

earning the palms and crowns

of

the Lord by their

sufferings.)) And from hence it is plain what was the

general opinion of the primitive Christians upon war,

even before the Emperors became Christians.

It need not be thought surprising,

if

the Christians

of

those times were unwilling to appear at trials for life,

since, for the most part, the persons to be tried were

Christians. In other respects too, besides being unwilling

to witness the unmerited sufferings of their persecuted

brethren, the Roman laws were more severe than Chris-

tian lenity could allow of, as may be seen from the single

instance of the Silanian decree of the Senate.* Indeed

capital punishments were not abolished even after Con-

stantine embraced and began to encourage the Christian

religion. Ile himself among other laws enacted one

similar to that of the ancient Romans, for punishing

parricides, by sewing them in

a

sack with certain animals,

and throwing them into the sea, or the nearest river.

This law

is

to be found in his code under the “title

of

the murders of parents or children.” Yet in other respects

he was

so

gentle

in

punishing criminals, that he is blamed

by many historians for his excessive lenity. Constantine,

we are informed by historians, had at that time many

’

*

By

the Silanian decree

of

the Senate, it was ordered that if

a

master

happened to be murdered in his

own

house, all the slaves under the

same

roof

should be

put

to

death: even though

no

proof appeared

of

their being concerned in the murder. We have an example

of

the case

in

Tacitus. Annal.

V.

xiv. ch. xlii. The

Emperor

Adrian softened the

rigour

of

that decree,

by

ordering that only they should

be

exposed to

the rack, who were

near

enough to have heard some

noise.

Spartian,

Life

of

Adrian,

ch. xviii.

54

HUGO GROTIUS

Christians in his army, and he used the name of Christ

as the motto upon his standards. From that time too

the military oath was changed to the form, which

is

found in Vegetius, and the soldier swore,

((

By God, and

Christ, and the holy spirit, and the majesty of the

Emperor, to whom as next to God, homage and rever-

ence are due from mankind.

))

Nor out of

so

many Bishops

at that time, many of whom suffered the most cruel

treatment for their religion, do we read of

a

single one,

who dissuaded Constantine, by the terrors

of

divine wrath

from inflicting capital punishments, or prosecuting wars,

or who deterred the Christians, for the same reasons,

from serving in the armies. Though most of those

Bishops were strict observers of discipline, who would by

no means dissemble in points relating to the duty

of

the

Emperors or of others. Among this class, in the time

of Theodosius, we may rank Ambrose, who in his seventh

discourse says,

((

there is nothing wrong in bearing arms;

but to bear arms from motives of rapine is a sin indeed,”

and in his

first

book of Offices, he maintains the same

opinion, that ((the courage which defends one’s country

against the incursions of barbarians, or protects one’s

family and home from the attacks of robbers,

is

complete

justice.” These arguments

so

decidedly shew the opinions

of

the primitive Christians in the support of just and

necessary war, that the subject requires no farther proof

or elucidation.

Nor

is

the argument invalidated by

a

fact pretty gen-

erally known, that Bishops and other Christians often

interceded in behalf of criminals, to mitigate the pun-

ishment of death, and that any, who had taken refuge

in churches, were not given

up,

but upon the promise

of

their lives being spared.

A

custom was introduced like-

wise of releasing all prisoners about the time of Easter.

Rut all these instances,

if

carefully examined, will be

found the voluntary acts of Christian kindness, embrac-

ing every opportunity to do good, and not a settled point

of public opinion condemning all capital punishments.

Therefore those favours were not universal; but limited

to times and places, and even the intercessions them-

selves were modified with certain exceptions.*

+As

Grotius has

so

fully established his argument,

it

is

unneces-

sary

to

review

his

answer

to further

ObjeCtiOnS.-((TRANSLATOR.)

CHAPTER

111.

THE

DIVISION

OF

WAR INTO PUBLIC

AND

PRIVATE

AND

THE

NATURE

OF

SOVEREIGN POWER.

The Division of War into public and private- Examples to prove

that all private War

is

not repugnant to the Law of Nature since

the erection of Courts of Justice-The Division of Public War into

formal, and informal- Whether the suppression of Tumults by

subordinate Magistrates be properly public War- Civil Power, in

what

it

consists- Sovereign Power further considered-The opinion

of those, who maintain that the Sovereign Power is always in the

people, refuted, and their arguments answered

-

Mutual subjection

refuted- Cautions requisite to understand the nature of Sovereign

Power-Distinction

of

the real differences that exist under similar

names -Distinction between the right to Sovereign Power, and the

mode of exercising it.

I.

THE

first and most necessary divisions of war are

into one kind called private, another public, and another

mixed. Now public war

is

carried on by the person

holding the sovereign power. Private war is that which

is carried

on

by private persons without authority from

the state.

A

mixed war is that which is carried on, on

one side by public authority, and on the other by private

persons. But private war, from its greater antiquity, is

the first subject for inquiry.

The proofs that have been already produced, to shew that

to repel violence is not repugnant to natural law, afford

a satisfactory reason to justify private war, as far as the

law of nature

is

concerned. But perhaps it may be

thought that since public tribunals have been erected,

private redress of wrongs is not allowable.

An

objection

which is very just. Yet although public trials and courts

of

justice are not institutions

of

nature, but erected by

the invention of men, yet as it

is

much more conducive

to the peace of society for a matter in dispute to be de-

cided by a disinterested person, than by the partiality

and prejudice

of

the party aggrieved, natural justice and

reason will dictate the necessity and advantage of every

One's submitting to the equitable decisions

of

public

judges. Paulus, the Lawyer, observes that

a

what can be

done

by

a magistrate with the authority

of

the state,

(55)

56

HUGO

GROTIUS

should never

be

intrusted to individuals; as private re-

dress would give rise to greater disturbance. And

a

the

reason,

says

King

Theodoric,

why laws were invented,

was to prevent any one from using personal violence,

for wherein would peace differ from all the confusion of

war,

if

private disputes were terminated by force?

))

And

the law calls it force for any man to seize what he thinks

his due, without seeking a legal remedy.

11.

It

is a matter beyond all doubt that the liberty of

private redress, which once existed, was greatly abridged

after courts of justice were established. Yet there may

be cases, in which private redress must be allowed, as

for instance,

if

the way to legal justice were not open.

For when the law prohibits any one from redressing his

own wrongs, it can only be understood to apply to cir-

cumstances where a legal remedy exists. Now the ob-

struction in the way to legal redress may be either

temporary or absolute. Temporary, where

it

is impossible

for the injured party to wait for a legal remedy, without

imminent danger and even destruction.

As

for instance,

if a man were attacked in the night, or in a secret place

where no assistance could be procured, Absolute, either

as the right, or the fact may require. Now there are

many situations, where the right must cease from the

impossibility of supporting it in a legal way, as in un-

occupied places, on the seas, in a wilderness, or desert

island, or any other place, where there is

no

civil gov-

ernment. All legal remedy too ceases by fact, when sub-

jects will not submit to the judge, or if he refuses

openly to take cognizance of matters in dispute. The

assertion that all private war is not made repugnant to

the law

of

nature by the erection of legal tribunals, may

be understood from the law given to the Jews, wherein

God

thus speaks by the mouth

of

Moses, Exod. xxii.

2.

((

If a thief be found breaking up, that is, by night, and

be smitten that he dies, there shall no blood be shed for

him, but if the sun be risen upon him, there shall be

blood shed for him

))

Now this law, making

so

accurate

a distinction in the merits of the case, seems not only to

imply impunity for killing any one, in self-defence, but

to explain a natural right, founded not on any special

divine command, but on the common principles

of

jus-

tice. From whence other nations have plainly followed

the same rule. The passage of the twelve tables is well

known, undoubtedly taken from the

old

Athenian Law,

THE RIGHTS

OF

WAR

AND

PEACE

57

“If

a

thief commit a robbery

in

the night, and

a

man

kill him, he is killed lawfully.

))

Thus

by the laws of all

known and civilized nations, the person is judged inno-

cent, who kills another, forcibly attempting or endanger-

ing his life

;

a conspiring and universal testimony, which

proves that in justifiable homicide, there is nothing re-

pugnant to the law of nature.

IV.*

Public war, according to the law

of

nations, is

either

SOLEMN,

that is

FORMAL,

or

LESS

SOLEMN,

that is

INFORMAL.

The name of lawful war is commonly given

to what is here called formal, in the same sense in which

a regular will is opposed to a codicil, or a lawful marriage

to the cohabitation

of

slaves. This opposition by no means

implies that it is not allowed to any man, if he pleases,

to make a codicil, or to slaves to cohabit in matrimony,

but only, that, by the civil law,

FORMAL

WILLS

and

SOLEMN

MARRIAGES,

were attended with peculiar privileges and

effects. These observations were the more necessary;

because many, from

a

misconception

of

the word just or

lawful, think that all wars, to which those epithets do not

apply, are condemned as unjust and unlawful. Now to

give

a

war the formality required by the law

of

nations,

two things are necessary. In the first place it must be

made on both sides, by the sovereign power of the state,

and in the next place

it

must be accompanied with cer-

tain formalities. Both of which are

so

essential that one

is insufficient without the other.

Now a public war,

LESS

SOLEMN,

may be made without

those formalities, even against private persons, and by any

magistrate whatever. And indeed, considering the thing

without respect to the civil law, every magistrate, in case

of

resistance, seems to have a right to take up arms, to

maintain his authority in the execution

of

his office; as well

as to defend the people committed to his protection. But

as a whole state is by war involved in danger, it is an

established law in almost all nations that no war can be

?made but by the authority

of

the sovereign in each state.

There is such a law as this in the last book of Plato

ON

LAWS. And ,by the Roman law, to make war,

or

levy

troops without a commission from the Prince was high

treason. According to the Cornelian law also, enacted by

Lucius Cornelius Sylla, to do

so

without authority from

+As

the topics

of

the third section have been

so

fully

stated

in

the

second chapter, that section has been omitted, and the translation

goes

on

from

the

second

of

the

original

to the

fourth.

(Translator.)

58

HUGO

GROTIUS

the people amounted to the same crime.

In

the code of

Justinian there is a constitution, made by Valentinian

and Valens, that

no

one should bear arms without their

knowledge and authority. Conformably to this rule,

St.

Augustin says, that as peace is most agreeable to the

natural state of man, it is proper that Princes should have

the sole authority to devise and execute the operations of

war. Yet this general rule, like all others, in its appli-

cation must always be limited by equity and discretion.

In certain cases this authority may be communicated to

others. For it is a point settled beyond’ all doubt that

subordinate magistrates may, by their officers, reduce a

few disobedient and tumultuous persons to subjection,

provided, that to

do

it, it requires not a force of such

enormous magnitude as might endanger the state. Again,

if

the danger be

so

imminent as to allow of no time for

an application to the sovereign executive power, here too

the necessity

is

admitted as an exception to the general

rule. Lucius Pinarius the Governor of Enna, a Sicilian

garrison, presuming upon this right, upon receiving cer-

tain information that the inhabitants had formed a con-

spiracy to revolt to the Carthaginians, put them all to

the sword, and by that means saved the place. Francis-

cus Victoria allows the inhabitants of a town to take up

arms, even without such a case

of

necessity, to redress

their own wrongs, which the Prince neglects to avenge,

but such an opinion is justly rejected by others.

V. Whether the circumstances, under which subordi-

nate magistrates are authorised to use military force, can

properly be called public war

or

not, is a matter of dis-

pute among legal writers, some affirming and others de-

nying

it.

If

indeed we call no other public war, but that

which

is

made by magisterial authority, there is

no

doubt

but that such suppressions

of

tumult are public wars,

and those who in such cases resist the magistrate in the

execution of his office, incur the guilt of rebellion against

superiors. But

if

public war is taken in the higher sense

of

FORMAL

war, as it undoubtedly often is; those are not

public wars; because to entitle them to the full rights of

such, the declaration of the sovereign power and other

requisites are wanting. Nor do the

loss of

property and

the military executions, to which the offenders are sub-

ject, at all affect the question.* For those casualties are

*In

case

of

rebellion,

the subjects taken

in

arms,

have

no

right

to

be

treated

as

prisoners

of

war,

but are liable to punishment as criminals.

THE

RIGHTS

OF

WAR

AND PEACE

59

not

SO

peculiarly attached to formal war, as to be ex.

cluded from all other kinds.

For

it may happen, as in

an

extensive empire for instance, that persons

in

subor-

dinate authority, may, when attacked,

or

threatened with

attack, have powers granted to commence military opera-

tions.

In

which case the war must be supposed to com-

mence by the authority of the sovereign power; as a

person is considered to be the author of

a

measure which

by virtue of his authority he empowers another to per-

.

form. The more doubtful point is, whether, where there

is

no

such commission, a conjecture of what

is

the will

of the sovereign power be sufficient. This seems not ad-

missible.

For

it

is

not sufficient to consider, what we

suppose would be the Sovereign’s pleasure,

if

he were

consulted; but what would be his actual will, in matters

admitting of time for deliberation, even though he were

not formally consulted; if a law was to be passed upon

those matters.

((

For though

UNDER

SGME

PARTICULAR

CIR-

CUMSTANCES,

it may be necessary to waive consulting the

will

of

the sovereign, yet this would by no means au-

thorise it as a

GENERAL

PRACTICE.

For the safety of the

state would be endangered, if subordinate powers should

usurp

the right

of

making war at their discretion.

It

was

not withogt reason, that Cneus Manlius was accused by

his Lieutenants of having made war upon the Galatians

without authority from the Roman people. For though

the Galatians had supplied Antiochus with troops, yet as

peace had been made with him, it rested with the Roman

people, and not with Manlius to determine in what man-

ner the Galatians should be punished

for

assisting an

enemy. Cat0 proposed that Julius Caesar should be de-

livered up to the Germans

for

having attacked them in

violation of his promise, a proposal proceeding rather

from the desire to be rid of a formidable rival, than

from any principle

of

justice.

The case was thus; the Germans had assisted the

Gauls, enemies of the Roman people, therefore they had

no reason to complain

of

the injury done to them, if

the war against the

Gauls,

in which they had made

themselves a party concerned, was just. But Caesar ought

to have contented himself with driving the Germans out

of Gaul, the province assigned him, without pursuing

them into their own country, especially as there was

no

farther danger to

be

apprehended from them; unless he

had first consulted the Roman people.

It

was plain, then,

60

HUGO

GROTIUS

the Germans had no right to demand the surrender

of

Caesar’s person, though the Romans had a right to pun-

ish

him

for having exceeded his commission. On a

similar occasion the Carthaginians answered the Romans;

((It

is not the subject of inquiry whether Hannibal has

besieged Saguntum, by his own private or by public author-

ity, but whether justly

or

unjustly.

For

with respect to

one of

our

own subjects

it

is

our

business to inquire by

what authority he has acted; but the matter of dis-

cussion with you is, whether he has broken any treaty.

))

Cicero defends the conduct of Octavius and Decimus

Brutus, who had taken up arms against Antony. But

though it was evident that Antony deserved to be treated

as an enemy, yet they ought to have waited

for

the

determination of the Senate and people of Rome, whether

it

were for the public interest not to take notice of his

conduct

or

to punish it, to agree to terms of peace

with him,

or

to have recourse to arms. This would have

been proper; for no one is obliged to exercise the right

of punishing an enemy,

if

it

is

attended with probable

danger.

But even

if

it

had been judged expedient to declare

Antony an enemy, the choice of the persons to conduct

the war should have been left to the Senate and people

of Rome. Thus when Cassius demanded assistance of

the Rhodians, according to treaty, they answered they

would send

it,

if

the senate thought proper. This refu-

tation of Cicero’s opionion will serve, along with many

other instances to be met with; as an admonition not to

be carried away by the opinions of the most celebrated

writers, particularly the most brilliant orators, who often

speak to suit the circumstances of the moment. But all

political investigation requires a cool and steady judg-

ment, not to be biased by examples, which may rather

be excused than vindicated.

Since then it has already been established that

no

war

can lawfully be made but by the sovereign power of

each state, in respect to all the questions connected with

war,

it

will be necessary to examine what that sovereign

power

is,

and who are the persons that hold it.

VI. The moral power then of governing a state, which

is

called by Thucydides the civil power,

is

described as

consisting of three parts which form the necessary

sub-

stance of every state; and those are the right

of

making

its

own

laws, executing them in its own manner, and

THE

RIGHTS

OF

WAR

AND

PEACE 6r

\appointing

its

own magistrates. Aristotle, in the fourth

book of his Politics, comprises the sovereignty

of

a state

in the exercise of the deliberative, executive, and judicial

powers. To the deliberative branch he assigns the right,

r’

of

deciding upon peace or war, making or annulling

treaties, and framing and passing new laws.

To

these

he adds the power of inflicting death, banishment, and

forfeiture, and

of

punishing also for public peculation.

In the exercise of judicial power, he includes not only

the punishment of crimes and misdemeanors, but the

redress of civil injuries.* Dionysius of Halicarnassus,

points out three distinguishing marks of sovereign power;

and those are, the right of appointing magistrates, the

right of enacting and repealing laws, and the right of

making war and peace.

To

which, in another part, he

adds the administration of justice, the supreme authority

in matters of religion, and the right of calling general

councils.

A true definition comprehends every possible branch

of authority that can grow out

of

the possession and

exercise of sovereign power.

For

the ruler of every state

must exercise his authority either in person,

or

through

the medium of others. His own personal acts must be

either general or special. He may be said to do

GENERAL

acts in passing or repealing laws, respecting either tem-

poral matters, or spiritual concerns, as far as the latter

relate to the welfare

of

the state. The knowledge of

these principles is called by Aristotle the masterpiece in

the science of government.

The particular acts of the Sovereign are either di-

rectly

of

a

public nature, or a private, but even the lat-

ter bear reference to his public capacity. NOW the acts

of the sovereign executive power of a directly public kind

are the making

of

peace and war and treaties, and the im-

position of taxes, and other similar exercises of authority

Over the persons and property of its subjects, which con-

stitute the sovereignty

of

the state. Aristotle calls the

knowledge of this practice political and deliberative

science.

*((Wrongs are divisible into two Sorts Or Species,

PRIVATE

WRONGS,

and

PUBLIC WRONGS.

The former are an infringement or privation

06

the

private or civil rights belonging to individuals, considered as individuals,

and are therefore frequently termed civil injuries: the latter are

a

breach

and violation of public rights and duties which affect the whole

com-

munity considered as

a

community,

and

are distinguished by

the

harsher

appellation

of

crimes and misdemeanors.))- Blackst.

Corn.

b.

iii.

C.

i

62

HUGO

GROTIUS

The private acts of the sovereign are those, in which

by

his authority, disputes between individuals are decided,

as

it

is conducive to the peace of society that these should

be

settled. This

is

called by Aristotle the judicial power.

Thus the acts of the sovereign are done in his name by

his magistrates or other officers, among whom ambassa

dors are reckoned. And in the exercise of all those rights

sovereign power consists.

VII.

That power is called sovereign, whose actions are

not subject to the controul of any other power,

so

as to be

annulled at the pleasure of any other human will. The

term

ANY

OTHER

HUMAN

WILL

exempts the sovereign him.

self from this restriction, who may annul his own acts,

as

may also his successor, who enjoys the same right, hav-

ing the same power and no other. We are to consider

then what is the subject in which this sovereign power

exists. Now the subject

is

in one respect common, and in

another proper, as the body

is

the common subject of

sight, the eye the proper,

so

the common subject of

sovereign power is the state, which has already been said

to

be a perfect society

of

men.

Now those nations, who are in a state of subjugation

to

another power, as the Roman provinces were, are ex.

cluded from this definition. For those nations are not

sovereign states of themselves, in the present acceptation

of the word; but are subordinate members of a great

state, as slaves are members of a household. Again

it

happens that many states, forming each an independent

body, may have one head,

For

political are not like

natural bodies, to only one of which the same head can

belong. Whereas in the former, one person can exercise

the function of the head to many distinct bodies. As a

certain proof of which, when the reigning house has be-

come extinct, the sovereign power returns to the hands

of the nation.

So

it may happen, that many states may

be connected together by the closest federal union, which

Strabo, in more places than one calls a system, and yet

each retain the condition of a perfect, individual state,

which has been observed by Aristotle and others in dif-

ferent parts of their writings. Therefore the common

subject of sovereign power

is

the state, taken in the

sense already explained. The proper subject

is

one

or

more persons according to the laws and customs of each

nation. This is called by Galen in the sixth book

DE

PLACITIS

HIPPOCRAT

ET

PLATONIS,

the first

power

of

the

state.

THE

RIGHTS

OF

WAR

AND

PEACE

63

VIII.

And here is the proper place for refuting the

opinion of those, who maintain that, every where and

without exception, the sovereign power is vested in the

people,

SO

that they have a right to restrain and punish

kings for an abuse of their power. However there is no

man of sober wisdom, who does not see the incalculable

mischiefs, which such opinions have occasioned, and may

stin occasion; and upon the following grounds they may

be refuted.

From the Jewish, as well as the Roman Law, it appears

that any one might engage himself in private servitude

to whom he pleased. Now if an individual may do

so,

why may not a whole people, for the benefit of better

government and more certain protection, completely trans-

fer their sovereign rights to one

or

more persons, with-

out reserving any portion to themselves

?

Neither can it

be alledged that such a thing is not to be presumed, for

the question is not, what is to be presumed in a doubtful

case, but what may lawfully be done.

Nor

is it any more

to the purpose to object to the inconveniences, which

may, and actually

do

arise from a people’s thus surrender-

ing their rights.

For

it is not in the power of man to

devise any form of government free from imperfections

and dangers.

As

a dramatic writer says, ((you must either

take these advantages with those imperfections,

or

resign

your

pretensions to both.

)’

Now as there are different ways of living, some

of

a

worse, and some

of

a better kind, left to the choice

of

every individual

;

so

a nation, ((under certain circum-

stances,

WHEN

for instance, the succession to the throne

is extinct,

or

the throne has by any other means become

vacant,)’ may chuse what form

of

government she pleases.

Nor is this right to be measured by the excellence of this

or that form of government, on which there may be varie-

ties of opinion, but by the will of the people.

There may be many reasons indeed why a people may

entirely relinquish their rights, and surrender them to

another: for instance, they may ‘have no other means

of

securing themselves from the danger of immediate de-

struction,

or

under the pressure of famine it may be the

only way, through which they can procure support. For

if the Campanians, formerly, when reduced by necessity

surrendered themselves to the Roman people in the

fd-

lowing terms:

-<‘

Senators of Rome, we consign to your

dominion the people of Campania, and the city of Capua,

64

HUGO

GROTIUS

our

lands,

our

temples, and all things both divine and

human,)) and

if

another people as Appian relates, offered

to submit to the Romans, and were refused, what

is

there

to prevent any nation from submitting in the same man-

ner to one powerful sovereign

?

It

may also happen that

a master of a family, having large possessions, will suffer

no

One to reside upon them

on

any other terms,

or

an

owner, having many slaves, may give them their liberty

upon condition of their doing certain services, and paying

certain rents; of which examples may be produced.

Thus

Tacitus, speaking

of

the German slaves, says, ((Each has

his own separate habitation, and his own household to

govern. The master considers him as a tenant, bound to

pay a certain rent in corn, cattle, and wearing apparel.

And

this is the utmost extent

of

his servitude.))

Aristotle, in describing the requisites, which

fit

men

for servitude, says, that “those men, whose powers are

chiefly confined to the body, and whose principal excel-

lence consists in affording bodily service, are naturally

slaves, because

it

is their interest to be

so.”

In

the same

manner some nations are

of

such

a

disposition that they

are more calculated to obey than to govern, which seems

to have been the opinion which the Cappadocians held of

themselves, who when the Romans offered them a popu-

lar government, refused to accept it, because the nation

they said could not exist in safety without a king. Thus

Philostratus in the life of Apollonius, says, that it was

foolish to offer liberty to the Thracians, the Mysians, and

the Getae, which they were not capable

of

enjoying. The

example of nations, who have for many ages lived happily

under a kingly government, has induced many to give

the preference to that

form.

Livy says, that the cities

under Eumenes would not have changed their condition

for that

of

any free state whatsoever. And sometimes a

state

is

so

situated, that

it

seems impossible

it

can pre-

serve its peace and existence, without submitting to the

absolute government of a single person, which many wise

men thought to be the case with the Roman Republic in

the time of Augustus Csesar. From these, and causes

like these it not only may, but generally does happen,

that men, as Cicero observes in the second book of his

offices, willingly submit to the supreme authority of

another.

Now

as property may be acquired by what has been

already

styled just war, by the same means the rights

of

THE

RIGHTS

OF

WAR

AND

PEACE

65

sovereignty may be acquired.

Nor

is

the term sovereignty

here meant to be applied to monarchy alone, but to gov-

ernment by nobles, from any share in which the people

are excluded. For there never was any government

so

purely popular, as not to require the exclusion

of

the

poor, of strangers, women, and minors from the public

councils. Some states have other nations under them, no

less dependent upon their will, than subjects upon that

of

their sovereign princes. From whence arose that ques-

tion, Are the Collatine people in their own power? And

the Campanians, when they submitted to the Romans, are

said to have passed under a foreign dominion. In the

same manner Acarnania and Amphilochia are said to have

been under the dominion

of

the Aetolians; Peraea and

Caunus under that of the Rhodians; and Pydna was ceded

by Philip to the Olynthians. And those towns, that had

been under the Spartans, when they were delivered from

their dominion, received the name of the free Laconians.

The city of Cotyora

is

said by Xenophon

to

have belonged

to the people

of

Sinope. Nice in Italy, according to

Strabo, was adjudged

to

the people of Marseilles; and the

island of Pithecusa to the Neapolitans. We find in Fron-

tinus, that the towns of Calati and Caudium with their

territories were adjudged, the one to the colony of Capua,

and the other to that of Beneventum. Otho, as Tacitus

relates, gave the cities of the Moors

to

the Province

of

Baetia. None of these instances, any more than the

cessions

of

other conquered countries could be admitted,

if it were a received rule that the rights

of

sovereigns

are under the controul and direction of subjects.

Now it is plain both from sacred and profane history,

that there are kings, who are not subject to the controul

of the people in their collective body; God addressing

the people of Israel, says,

if

thou shalt say,

((1

will

place a king over me

)’

;

and to Samuel

((

Shew them the

manner of the king, who shall reign over them.)) Hence

the King is said to be anointed over the people, over

the inheritance of the Lord, over Israel. Solomon

is

styled King over all Israel. Thus David gives thanks to

God, for subduing the people under him. And Christ

says, ((the Kings of the nations bear rule over them.”

There

is

a well known passage in Horace, ((Powerful

sovereigns reign over their own subjects, and the supreme

being over sovereigns themselves.)) Seneca thus describes

the three

forms

of government,

((

Sometimes the supreme

5

66

HUGO

GROTIUS

power

is

lodged in the people, sometimes in a senate

composed of the leading men of the state, sometimes

this power of the people, and dominion over the people

themselves

is

vested in a single person.

’)

Of the last

description are those, who, as Plutarch says, exercise

authority not according to the laws, but over the laws.

And in Herodutus, Otanes describes a monarch as one

whose acts are not subject to controul. Dion Prusaeensis

also and Pausanias define a monarchy in the same

terms.

Aristotle says there are some kings, who have the

same right, which the nation elsewhere possesses over

persons and property. Thus when the Roman Princes

began to exercise regal power, the people

it

was said

had transferred all their own personal sovereignty to

them, which gave rise to the saying

of

Marcus Antoninus

the Philosopher, that no one but

God

alone can be judge

of t,he Prince. Dion.

L.

liii. speaking of such a prince,

says, ((he is perfectly master of his own actions, to

do

whatever he pleases, and cannot be obliged to do any

thing against his will.” Such anciently was the power

of the Inachidae established at Argos in Greece. For in

the Greek Tragedy

of

the Suppliants, Aeschylus has

introduced the people thus addressing the King:

((

You

are the state, you the people

;

you the court from

which there is no appeal, you preside over the altars,

and regulate all affairs by your supreme will.)) King

Theseus himself in Euripides speaks in very different

terms of the Athenian Republic

;

((

The city is not gov-

erned by one man, but in a popular form, by an annual

succession of magistrates.

))

For

according to Plutarch’s

explanation, Theseus was the general in war, and the

guardian

of

the laws; but in other respects nothing more

than a citizen.

So

that they who are limited by popular

controul are improperly called kings. Thus after the

time of Lycurgus, and more particularly after the insti-

tution of the Ephori, the Kings

of

the Lacedaemonians

are said by Polybius, Plutarch, and Cornelius Nepos, to

have been Kings more in name than in reality. An ex-

ample which was followed

by

the rest of Greece. Thus

Pausanias says of the Argives to the Corinthians, ((The

Argives from their love of equality have reduced their

kingly power very low;

so

that they have left the pos-

terity of Cisus nothing more than the shadow of Kings.’)

Aristotle denies such to be proper forms of government,

THE

RIGHTS

OF

WAR

AND

PEACE

67

because they constitute only

a

part of an Aristocracy or

Democracy,

Examples also may be found of nations, who have not

been under a perpetual regal form, but only for a time

under

a

government exempt from popular controul. Such

was the Power

of

the Amimonians among the Cnidians,

and of the Dictators in the early periods of the Roman

history, when there was no appeal to the people, from

whence Livy says, the will of the Dictator was observed

as a law. Indeed they found this submission the only

remedy against imminent danger, and in the words of

Cicero, the Dictatorship possessed all the strength of royal

power.

It

will not be difficult to refute the arguments brought

in favour

of

the contrary opinion. For in the first place

the assertion that the constituent always retains a con-

trod over the sovereign power, which he has contributed

to establish,

is

only true in those cases where the con-

tinuance and existence

of

that power depends upon the

will and pleasure

of

the constituent: but not in cases

where the power, though

it

might derive its origin from

that constituent, becomes a necessary and fundamental

part of the established law. Of this nature

is

that author-

ity to which a woman submits when she gives herself to

a

husband. Valentinian the Emperor, when the soldiers

who had raised him to the throne, made a demand

of

which he did not approve, replied; ((Soldiers, your elec-

tion of me for your emperor was your own voluntary

choice; but since you have elected me,

it

depends upon

my pleasure to grant your request.

It

becomes you to

obey as subjects, and me to consider what is proper to

be done.”

Nor

is

the assumption true, that

all

kings are made by

the people, as may be plainly seen from the instances

adduced above, of an owner admitting strangers to re-

side upon his demesnes on condition of their obedience,

and of nations submitting by right of conquest.

An-

other argument

is

derived from a saying of the Philoso-

phers, that all power is conferred for the benefit of the

governed and not

of

the governing party. Hence from

the nobleness of the end, it

is

supposed to follow, that

sabJects have a superiority over the sovereign. But

it

is

not universally true, that all power

is

conferred for the

benefit of the party governed. For some powers are

ppfepd

foy

the sage

Of

the governor, as the right

of

a

68

HUGO

GROTIUS

master over a slave, in which the advantage of the latter

is

only a contingent and adventitious circumstance. In

the same manner the gain of a Physician is to reward

him for his labour; and not merely to promote the good

of his art. There are other kinds of authority estab-

lished for the benefit of both parties,

as

for instance, the

authority of a husband over his wife. Certain govern-

ments also, as those which are gained by right of conquest,

may be established for the benefit of the sovereign; and

yet convey no idea of tyranny, a word which in its origi-

nal signification, implied nothing of arbitrary power or

injustice, but only the government or authority

of

a

Prince. Again, some governments may be formed for

the advantage both of subjects and sovereign, as when a

people, unable to defend themselves, put themselves un-

der the protection and dominion

of

any powerful king.

Yet

it

is

not to be denied, but that in most governments

the good of the subject

is

the chief object which is re-

garded: and that what Cicero has said after Herodotus,

and Herodotus after Hesiod, is true, that Kings were

appointed in order that men might enjoy complete justice.

Now this admission by no means goes to establish the

inference that kings are amenable to the people.

For

though guardianships were invented for the benefit

of

wards, yet the guardian has a right to authority over the

ward. Nor, though a guardian may for mismanagement

be removed from his trust, does it follow that a king may

for the same reason be deposed. The cases are quite

different, the guardian has a superior to judge him; but

in governments, as there must be some dernier resort, it

must be vested either in an individual, or in some public

body, whose misconduct, as there is no superior tribunal

before which they can be called,

God

declares that he

himself will judge. He either punishes their offences,.

should he deem

it

necessary; or permits them for the

chastisement of his people,

This

is

well expressed by Tacitus: he says,

“you

should

Sear with the rapacity

or

luxury of rulers, as you would

bear with drought, or excessive rains, or any other calam-

ities

of

nature. For as long as men exist there will be

faults and imperfections; but these are not of uninter-

rupted continuance, and they are often repaired by the

succession of better times. And Marcus Aurelius speak-

Sag

of

subordinate magistrates, said, that they were under

the controul of the sovereign; but that the sovereign was

THE RIGHTS

OF

WAR

AND

PEACE

69

amenable to God. There

is

a

remarkable passage in

Gregory of Tours, where that Bishop thus addresses the

King of France,

((

If

any of

us,

Sir,

should transgress the

bounds of justice, he may be punished by you. But

if

you exceed them, who can call you to account

?

For when

we address

you,

you may hear

us

if

you please; but

if

YOU

will not, who can judge you, except him, who has

declared himself to be righteousness

))

Among the max-

ims of the Essenes, Porphyry cites a passage, that ((no

one can reign without the special appointment of divine

providence.

))

Irenaeus has expressed this well,

((

Kings are

appointed by him at whose command men are created;

and their appointment is suited to the condition of those,

whom they are called to govern.)) There

is

the same

thought in the Constitutions of Clement,

((You

shall fear

the King, for he is

of

the Lord’s appointment.))

Nor

is

it an objection to what has been said, that some

netions have been punished for the offences of their

kings; for this does not happen, because they forbear to

restrain their kings, but because they seem to give, at

least

a

tacit consent to their vices, or perhaps, without

respect to this, God may use that sovereign power which

he has over the life and death of every man to inflict

a

punishment upon the king by depriving him of his

subjects.

IX. There are some who frame an imaginary kind of

mutual subjection, by which the people are bound to

obey the king, as long as he governs well; but his

government is subject to their inspection and controul.

If

they were to say that his duty to the sovereign does

not oblige any one to do an act manifestly unjust and

repugnant to the law of God; they would say nothing

but what

is

true and universally admitted, but this by

no means includes a right to any controul over the

Prince’s conduct in his lawful government. But

if

any

peop1.e had the opportunity of dividing ‘the sovereign

power with the king, the privileges of the one, and the

prerogatives of the other ought to be defined by certain

bounds, which might easily be known, according to !:he

difference of places, persons, or circumstances.

Now the supposed good or evil of any act, especially

in political matters which admit of great variety of

opinions and much discussion,

is

not

a

sufficient mark

to ascertain these bounds. From whence the greatest

confusion must follow,

if

under pretence of promoting

,

70

HUGO

GROTIUS

good

or

averting evil measures, the people might

struggle for the Prince’s jurisdiction: a turbulent state

of

affairs, which

no

sober minded people ever wished to

experience.

X.

After refuting false opinions,

it

remains to apply

Some cautions, which may point out the way to ascertain

correctly the person to whom sovereign power, in every

state, of right belongs. The first caution necessary is to

avoid being deceived by ambiguous terms,

or

appear-

ances foreign to the real subject. For instance, among

the Latins, although the terms

PRINCIPALITY

and

KINGDOM

are generally opposed to each other, when Caesar says,

that the father of Vercingetorix held the principality

of

Gaul, and was put to death for qiming at sovereign power;

and when Piso, in Tacitus calls Germanicus the son of a

Roman Prince, not of a Parthian King; and when Sue-

tonius says, that Caligula was on the point of converting

the power of a prince into that of a king; and Velleius

asserts that Maroboduus not contented with the authority

of

a prince over voluntary adherents and dependents,

was grasping in his mind at regal power; yet we find

these terms though in reality very distinct were often

confounded. For the Lacedaemonian chiefs, the descend-

ants of Hercules, though subject to the controul of the

Ephori, were nevertheless called kings: and Tacitus says,

that among the ancient Germans there were kings, who

governed more by the influence of persuasion than by the

authority of power. Livy too, speaking of king Evander,

describes him as reigning more by personal authority

than by his regal power; and Aristotle, Polybius, and

Diodorus give the names of Kings to the Suffetes or

Judges

of

the Carthaginians. In the same manner Solinus

also calls Hanno King of the Carthaginians. Strabo

speaks of Scepsis in Troas, that having incorporated the

Mllesians into the state,

it

formed itself into a Democracy,

leaving the descendants of the ancient kings the title, and

something of the dignity of kings.

On the other hand, the Roman emperors, after they

had exercised openly, and without any disguise, a most

absolute monarchical power, were notwithstanding called

Princes. And in some popular states the chief magis-

trates are graced with ensigns of royalty.

Again the states general, that

is

the convention of

those who represent the people, divided into classes ac-

cording to Gunther, consist of three orders, which are

THE

RIGHTS

OF

WAR

AND

PEACE

the Prelates, the Nobles, and Deputies of large towns.

In Some Places, they serve

as

a greater council to the

king, to communicate to him the complaints of his people,

which might otherwise be kept from his ears; leaving

him at the same time full liberty to exercise his own

discretion upon the matters

so

communicated. But in

other places they form a body with power to inquire

into the prince’s measures, and to make laws.

Many think that in order to know whether

a

prince be

sovereign or not, it is proper to inquire whether his title

to the crown is by election or inheritance. For they

maintain that hereditary monarchies alone are sovereign.

But this cannot be received as a general criterion. For

sovereignty consists not merely in the

TITLE

to the

throne, which only implies that the successor has a right

to all the privileges and prerogatives that his ancestors

enjoyed, but

it

by no means affects the nature or extent

of

his powers. For right of election conveys all the

powers, which the first election or appointment conferred.

Among the Lacedaemonians the crown was hereditary

even after the institution of the Ephori. And Aristotle

describing the chief power of such a state, says,

((Of

these kingdoms, some are hereditary, and others elective.”

In the heroic times most of the kingdoms in Greece were

of this description,

as

we are informed by Thucydides.

The Roman empire, on the contrary, even after the power

of the Senate and people was abolished, was given or

confirmed by election.

XI. Another caution

is

necessary. For to inquire into

the matter of a right is not the same thing as to examine

the nature of its tenure. A distinction which takes place

not only in corporeal but in incorporeal possessions. For

a right of passage or carriage through a ground is no less

a right than that which entitles a man to the pOSSeSSiOn

of the land itself.

Now

some hold these privileges by

a

full

right of property, some by an USUfmCtuarY, and

others by a temporary right. Thus the Roman Dictator

had sovereign power by a temporary right.

In

the Same

manner kings, both those who are the first of their line

elected to the throne, and those who succeed them in the

lawful order, enjoy an usufructuary right, or inalienable

right. But Some sovereigns hold their power by

a

plenary right of property; when for instance

it

comes

into their possession by the right of lawful Conquest,

Or

when a people, to avoid greater evils, make an unquali-

72

HUGO

GROTIUS

fied surrender of themselves and their rights into their

hands.

The

opinion of those can never be assented

to,

who say

that the power of the Dictator was not sovereign, because

it

was not permanent. For in the moral world the nature

of

things is known from their operations. The powers

attended with equal effects are entitled to equal names.

Now

the Dictator for the time being performed all acts

with the same authority as the most absolute sovereign;

nor could any other power annul his acts. The perma-

nence therefore of uncertainty alters not the nature

of

a

right, although it would undoubtedly abridge its dignity,

and diminish its splendour.*

*The translation proceeds from hence to the second book

of

the

original, which seems

to

follow

this part without any material break

in the chain

of

argument: the intermediate sections relating to

in-

stances in the Roman Republic, which do not directly apply

to

the

practice

of

modern governments.-TIuNsL.moR,

BOOK

11.

CHAPTER

I.

DEFENCE

OF

PERSON

AND

PROPERTY.

Causes of War-Defence of person and property-What are called justis.

able causes of war-Justifiable causes

of

War are Defence, recovery

Of one’s property or debt, or the punishment of offences committed-

War for defence

Of

life, justifiable, and Iawful-This kind of war

law-

ful against an aggressor only-The danger must

be

present

and

rea],

not

an imaginary danger-Lawful to kill any one attempting to maim

One’s person, or violate one’s chastity-Occasions where this right

may be lawfully waved-This right to be waved particularly with

respect to the person of the Sovereign, which is sacred and

inviola.

ble-Homicide in defence of

one’s

property allowed by the law of

nature-How far homicide is permitted by the law

of

MosesSelf-

defence in public war-Not lawful to attack any power solely

on

account of its increasing greatness-The hostile measures of an ag-

gressor, not to be justified

on

the plea of self-defence.

I.

THE

causes of war by which are meant the justifiable

causes, are now to be considered. For in some cases

motives of interest operate distinctly from motives

of

jus-

tice, Polybius accurately distinguishes these motives from

each other, and from the beginning

of

the war, or that

which gave occasion

to

the first acts of hostility; as was

the case when Ascanius wounded the stag, which gave

rise to the war between Turnus and Aeneas. But though

there

is

an actual distinction between the justifiable causes,

the pretexts, and the beginning

of

war; yet the terms

used to express them are often confounded. For what

we call justifiable causes, Livy, in the speech which

he

has put into the mouth of the Rhodians, calls beginnings.

The Rhodian deputies said,

((

You

Romans profess to be-

lieve that your wars are successful, because they are just:

nor do

you

boast

SO

much

of

their victorious issue, as of

the just principles, upon which

YOU

make them.” In

which sense Aelian styles them

dpxasxohwv

and Didorus

Siculus, in speaking of the war

of

the Lacedaemonians

against the Eleans gives them the name

of

~poOa@~fr

and

dppr.

(73)

74

HUGO

GROTIUS

The principal drift

of

our argument rests

upon

these

justifiable causes, to which the sentiment of Coriolanus

in Dionysius of Halicarnassus, particularly applies, he

says, ((in the first place,

I

beseech

YOU

to consider how

YOU

may find

pious

and just pretexts for the war.)) And

Demosthenes in his second Olynthiac, makes a similar

observation,

((

I

think,

says

he,

that as in a ship, or house,

or any other fabric, the lowest parts ought to be the

strongest;

so

in all political measures the motives and

pretexts ought to be

laid

deeply

in

the principles of truth

and justice.

))

The following language of Dion Cassius

is

no less applicable to the question. ((Justice must be

made the principal ground of our actions.

For

with such

support there is the best hope

of

success to our arms,

But without that, any point which may be gained for the

moment has

no

firm ground to rest upon.”

To

which

may be added, the words of Cicero, who maintains those

wars to be unjust, which are made without sufficient

cause. And

in

another place, he reproves Crassus

for

having intended to pass the Euphrates, when there was

no cause of war. Which

is

no less true

of

public than

of private wars. Hence come the complaints

of

Seneca,

((Why do we restrain homicide, and the murder

of

in-

dividuals, but glory in the crime of slaughter, which

destroys whole nations

?

Avarice and cruelty know not

any bounds.

By

decrees of the Senate, and

of

the people

cruel acts are authorized, and measures, which are pur-

sued by order of the state, are forbidden to individuals.))

Wars indeed undertaken by public authority are attended

with certain effects of right, and have the sanction of

opinion in their favour. But they are not the less

criminal, when made without just cause. For which rea-

son Alexander was not improperly styled a robber by the

Scythian ambassadors, as may be seen in Quintus Curtius.

Seneca and Lucan give him the same appellation; the

Indian sages call him a madman; and a pirate once pre-

sumed to rank him with his

own

class. Justin speaks

of

Philip in the same terms, who,

says

he,

in deciding a

dispute between two rival kings, stripped both

of

their

dominions with all the treachery and violence of a rob-

ber. Augustin has a pertinent remark on this subject.

He says, what are unjustly acquired dominions, but the

spoils of robbery

?

In the same strain, Lactantius says,

“Men, captivated with the appearances of vain glory, give

the names

of

virtues to their crimes.” Injury, or the

THE

RIGHTS

OF

WAR

AND

PEACE

75

prevention of injury forms the only justifiable cause

of

war. ((And,

in

the

Zanguage

of

the

same

Augustin,

all

the evil consequences of war are to be laid at the door

of

the aggressor.)’ Thus the Roman Herald in a decla-

ration

of

war makes a solemn appeal against the aggressor,

as having violated the laws of nations, and refused proper

satisfaction.

11.

The grounds of war are

as

numerous as those of

ju-

dicial actions. For where the power of law ceases, there

war begins. Now there are methods in law to prevent

intended injuries, as well as actions for those actually

committed. For

CIVIL

INJURIES

various methods

of

re-

dress,

or

prevention are appointed by the law; and

by

the same power securities are provided to prevent the

commission

of

crimes and misdemeanors. In civil cases,

the party aggrieved may recover damages for the injuries

sustained; and in crimes, which are offences against the

public, the aggressor must submit to actual punishment.

Plato, in his ninth book on laws, very properly makes

the same distinction, as Homer had done before him.

Now reparation

or

indemnity relates to what either

does or did belong to

us;

which gives rise to real and

personal actions, These ascertain our right to the dam-

ages, which are our due, either from an agreement, or

from an injury received.

A

right which is termed in

law a right by contract,

or

injury. Crimes, which are

offences against society, are prosecuted by indictment,

that

is

by an accusation

in

the name

of

the sovereign.

The justifiable causes generally assigned for war are

three, defence, indemnity, and punishment, all which are

comprised in the declaration

of

Camillus against the

Gauls, enumerating all things, which it is right to defend,

to recover, and the encroachment on which

it

is right to

punish.

There

is

an omission in this enumeration, Unless the

word recover be taken in its most extensive sense. For

recovering by war what we have lost, includes indemnity

for the past, as well as the prosecution of Our claim to

a

debt. Plat0 has not omitted to notice this distinction,

for

he has said, ((that wars are made to punish not only Op-

pression or robbery, but also fraud and deception.)’ With

whom Seneca agrees; for to command payment of what

you

owe, he calls, ((an equitable sentence, stamped with

the authority of the law

of

nations.)’ Indeed the form

which was prescribed for the Roman heralds to use

in

76

HUGO

GROTIUS

,

declarations of war, bears exactly the same import.

For

therein the aggressor is charged with having neither

given, paid, nor done what was due. Sallust in one of

his fragments, has made a Tribune, in- his harangue to

the people, say, ((As a final settlement of all discussions,

I

demand restitution according to the law

of

nations.

))

St.

Augustin, in defining those to be just wars, which

are made to avenge injuries has taken the word avenge

in

a general sense of removing and preventing, as well

as

punishing aggressions. This appears to be his mean-

ing from the following sentence of the passage, in which

he does not enumerate the particular acts, which amount

to injury, but adds, by way

of

illustration, that ((the state

or nation, which has neglected to punish the aggressions

of

its own subjects, or to make reparation for the losses

occasioned by those aggressions, is a proper object of

hostility and attack.)) Prompted by this natural knowledge

of right and wrong, the Indian King, as we are informed

by

Diodorus, accused Semiramis of having commenced

war against him without having received any injury.

Thus the Romans expostulated with the the Senones,

that they ought not to attack a people who had given

them

no

provocation. Aristotle in the second book and

second chapter

of

his Analytics, says, war generally is

made upon those who have first done an injury. Quintus

Curtius describes the Abian Scythians, as the best ac-

quainted with the principles of justice of any of the

Barbarians. For they declined having recourse to

arms,

unless provoked by aggression. A just cause then of war

is

an injury, which though not actually committed,

threatens

our

persons or property with danger.

111.

It has already been proved that when our lives

are threatened with immediate danger, it is lawful to kill

the aggressor, if the danger cannot otherwise be avoided:

an instance, as it has been shewn, on which the justice of

private war rests. We must observe that this kind of

defence derives its origin from the principle

of

self-

preservation, which nature has given to every living

creature, and not from the injustice or misconduct of the

aggressor. Wherefore though he may be clear of guilt,

as for instance a soldier in actual service, mistaking my

person for that of another,

or

a madman in his frenzy,

or a man walking in his sleep, none of these cases de-

prive me of the right

of

self-defence against those per-

sons.

For

I

am not bound to submit to the danger or

THE

RIGHTS

OF WAR AND PEACE

77

mischief intended, any more than to expose myself to

the attacks of a wild beast.

Iv.

It

admits

of

some doubt, whether those, who

un-

intentionally obstruct our defence, or escape, which are

necessary to Our preservation, may be lawfully maimed

or killed. There are some, even Theologians, who think

they may. And, certainly

if

we look to the law of na-

ture alone, according to its principles,

our

own preserva-

tion should have much more weight with

us,

than the

welfare of society. But the law of charity, especially

the evangelical law, which has put

our

neighbow upon

a level with ourselves, does not permit it.

Thomas Aquinas, if taken in a right sense, has justly

observed, that in actual self-defence no man can be said

to be purposely killed. Indeed, it may some times hap-

pen that there is no other way €or a person to save him-

self, than by designedly doing an act, by which the

death

of

an aggressor must inevitably ensue. Yet here

the death of any one was not the primary object in-

tended, but employed as the only means of security,

which the moment supplied,

Still

it

is

better for the

party assaulted, if he can safely

do

it, to repel

or

disable

the aggressor than to shed his blood.

V. The danger must be immediate, which is one nec-

essary point. Though

it

must be confessed, that when

an assailant seizes any weapon with an apparent intention

to kill me

I

have a right to anticipate and prevent the

danger.

For

in the moral as well as the natural system

of things, there

is

no point without some breadth. But

they are themselves much mistaken, and mislead others,

who maintain that any degree

of

fear ought to be a

ground for killing another, to prevent his

SUPPOSED

in-

tention.

It

is

a very just observation made by Cicero

in his

first

book of Offices, that many wrongs proceed

from fear; as when the person, who intends to hurt an-

other, apprehends some danger to himself unless he took

that method. Clearchus, in Xenophon, says,

I

have kmwn

Some men, who partly through misrepresentation, and

partly through suspicion, dreading one another, in order

to prevent the supposed intentions of their adversaries,

have committed the most enormous cruelties against those

who neither designed, nor wished them any harm.

Cat0

in

his

speech for the Rhodians, says, ‘Are we to

prevent them by doing first, what we say they intended

to

do

to

US

))

On this subject there

is

a

remarkable

78

HUGO

GROTIUS

passage

in

Aulus

Gellius, ((When a Gladiator prepares to

enter the

lists

for combat, such

is

his lot that he must

either kill his adversary,

or

be killed himself. But the

life of man is not circumscribed by the hard terms

of

such an over-ruling necessity, as to oblige him to do an

injury to prevent him from receiving one.)’ Quintilian

has quoted a passage from Cicero, wherein the orator

asks, “Whoever made such a decision, or to whom could

such a point be yielded without the most imminent

danger, that you have a right to kill the person,

by

whom you say, you fear that you shall afterwards be

killed yourself

1

))

To

which this passage

of

Euripides,

may be applied, ((If your husband, as you say, intended

to have killed you, you ought to have waited, till he

actually did make the attempt.)) Conformably to which

Thucydides, in the first book of his history, has expressed

himself

in

the following terms, ((The issue of war is un-

certain, nor ought we to be

so

far transported by

our

fears,

as

to engage in immediate and open hostilities.)’

The same writer

too

in

his luminous description of the

dangerous factions, that had arisen in the Grecian states,

condemns the approbation bestowed on the person, that

injured

or

destroyed another from whom he himself ap-

prehended injury or destruction.))

Livy says, ((Men, to guard against their alarms, make

themselves objects of terror; averting the danger from

their own heads, by imposing upon others the necessity

of

either doing or suffering the evil which they them-

selves fear.)) Vibius asked a person, that appeared

armed in the forum, ((Who gave you permission to shew

your fear in this manner

?

))

A

question not inapplicable

to the present subject, and much commended by Quin-

tilian. Livia also in Dion says, that great infamy re-

dounds to those, who by anticipation perpetrate the

criminal act, which they fear.

Now

if

any one intend no immediate violence, but is

found

to

have formed a conspiracy to destroy me by

assassination,

or

poison,

or

by false accusation, perjury,

or

suborned witnesses,

I

have no right to kill him.

For

my knowledge of the danger may prevent

it.

Or

even

if

it were evident that

I

could not avoid the danger

without killing him

;

this would not establish my right

to

do

so.

For

there

is

every presumption that my know.

ing

it

will lead

me

to

apply

for

the legal remedies of

prevestion,

THE RIGHTS

OF

WAR

AND

PEACE

79

VI. and VII. The next thing to be considered

is,

what

must be said upon the mutilation of a limb. Now, as

the loss of a limb, especially that of a principal limb in

the body,

is

a

grievous detriment, and nearly equal to the

loss

of life, to which may be added the probability of

death ensuing from such a calamity; the lawfulness of

killing any one, who makes such an attempt,

if

the dan-

ger cannot otherwise be avoided, scarce admits of

a

doubt. Neither

is

there any more difficulty in allowing

the same right for the personal defence of chastity, the

'preservation of which, both in the common estimatmn of

men, and by the divine law, is deemed of equal value

with life itself. We have an example of this in Cicero,

Quintilian, and Plutarch, in the person

of

one

of

Marius's

tribunes, who was killed by a soldier. Among the actions

of women, who have defended themselves. Heliodorus

records that of Heraclea, which he calls a just defence of

her injured honour.

VIII. Though some, as it has been already said, admit

the lawfulness of killing the person, who attempts with

open violence to destroy one's life, yet they deem

it

more commendable to spare the life of another, even at

the hazard of one's own. Yet to persons, in whose pres-

ervation the public interest is involved, they will grant

an exemption from this rule of forbearance. Indeed it

seems unsafe to impose upon

ANY,

whose lives are of

importance to others, a rule of forebearance

so

contrary

to

all the principles of all law. This exemption therefore

must be allowed to all vested with any public office,

which makes them responsible for the safety of others;

as the generals who conduct armies, or the rulers of the

state, and many others in similar situations

;

to

whom

may be applied the lines

oE

Lucan--" When the lives and

safety

of

so

many nations depend upon

YOU~S,

and

so

great a portion of the world has chosen You for

its head;

it

is

cruelty to expose yourself wilfully to

death.))

IX. On the other hand it may happen, that the aggres-

sor may be one whose person is rendered sacred and in-

violable by all divine, human, and natural laws; which

is

the case with respect to the person of the SovereiP.

For the law of nature regards not only the Principles of

STRICT

JUSTICE,

but comprises other virtues also, as tern-

perance, fortitude, and discretion, making the obs~~ance

of

them in certain cases, binding as well

as

honourable.

80

HUGO

GROTIUS

To

observe these we are bound also by the law

of

charity.

Nor

is

the truth of this argument at all weakened by

what Vsquez has advanced, who maintains that the Sov-

ereign who attempts the life of an individual loses, in

reality, the character of Soeereign: a doctrine fraught

with equal absurdity and danger. For sovereignty can-

not any more than property be forfeited by any particular

act of delinquency; unless it has been previously and ex-

pressly

SO

enacted by the fundamental laws of the state.

For such a rule of forfeiture, which would be productive

of universal anarchy and confusion, never has been, nor

ever will be established among any civilized people, For

the maxim, that all government is framed for the bene-

fit

of the subject and not of the Sovereign,” which

Vasquez and many other writers lay down as a funda-

mental law, though it may be generally true in theory, is

by no means applicable to the question. For a thing

loses not its existence, by losing some part of

its

utility.

Nor

is there sufficient consistency in his observation, that

every individual desires the safety

of

the commonwealth

on

his own account, and therefore every one ought to pre-

fer his own safety to that of the whole state. For we wish

for the public welfare not on our own account alone, but

also for the sake of others.

The opinion of those who think that friendship arises

from necessity alone, is rejected, as false, by the more

sound Philosophers; as we feel a spontaneous and natural

inclination towards friendly intercourse. Charity indeed

often persuades, and in some instances commands

us

to

prefer the good of many to our own single advantage.

TO

which the following passage from Seneca

is

very ap-

plicable.

“It

is not surprising that princes, and kings,

or whatever name the guardians of the public welfare

may bear, should be loved with a veneration and affection,

far beyond those of private friendship. For all men of

sober judgment, and enlarged information deem the

public interest of higher moment than their own. Their

attachment therefore must be warmest to the person on

whom the well being and prosperity of the state depends.”

And to the same effect,

St.

Ambrose in his third book

of Offices, says, “every man feels a greater delight in avert-

ing

public than private danger.

))

Seneca, the writer

already quoted, produces two instances, the one of Callis-

tratus at Athens, and the other of Rutilius at Rome,

THE

RIGHTS

OF

WAR AND

PEACE

81

who refused to be restored from banishment thinking it

better for two individuals to suffer hardship, than for

the public to be plunged into calamities.

XI.

*

The next object to be considered, relates to

injuries affecting our property. In strict justice,

it

can-

not be denied that we have a right to kill a robber,

if

such a step

is

inevitably necessary to the preservation of

our property. For the difference between the value of

life and property

is

overbalanced by the horror which a

robber excites, and by the favourable inclination felt

by

all men towards the injured and innocent. From whence

it follows, that regarding that right alone, a robber may

be wounded or killed in his flight with the property,

if

it

cannot otherwise be recovered. Demosthenes in his

speech against Aristocrates, exclaims, ((By all that

is

sacred,

is

it

not a dreadful and open violation of law,

not only of written law, but of that law which is the un-

written rule of all men, to be debarred from the right of

using force against the rsbber as well as against the

enemy; who is plundering your property

1))

Nor is it

forbidden by the precepts of charity, apart

from

all con-

sideration

of

divine and human law, unless where the

property

is

of little value, and beneath notice

;

an excep-

tion, which some writers have very properly added.

XII. The sense of the Jewish law on this point is now

to be considered. The old law of Solon, to which

Demosthenes, in his speech against Timocrates, appeals,

agrees with

it.

From hence the substance of the TWELVE

TABLES,

and Plato’s maxim in his ninth book of laws

were taken.

For

they all agree in making a distinction

between a thief who steals by day, and the robber, who

commits the act by night; though they differ about the

REASON

of this distinction. Some think this distinction

arises from the difficulty of discerning by night,

whether an aggressor comes with an intent to murder

or

steal, and therefore he ought to be treated as an

assassin. Others think the distinction is made, because

as it

is

difficult to know the person of the thief, there

is less probability of recovering the goods. In neither

case do the framers of laws seem to have considered

the question in its proper light. Their evident intention

is

to prohibit the killing of any

0%

merely on account

The tenth section is omitted in the tranSlatiOn;

89

the subject

Christian forbearance

of

which it treats, has already been

discussed

in

the preceding

bmk.”TRANSLATOR*

6

82

HUGO

GROTIUS

of our property; which would happen, for instance, by

killing

a

thief in his flight in order to recover the goods

he had stolen. But

if

our own lives are endangered,

then we are allowed to avert the danger, even at the

hazard of another's life,

Nor

is our having run into the

danger any objection

;

provided

it

was done to preserve

or

to recover

our

goods,

or

to take the thief. For no

imputation of guilt can attach to

us

in any of these

cases, while we are employed in doing a lawful act,

nor

can

it

be said that we are doing wrong to another by

exercising our own right.

The difference therefore made between a thief in the

night and a thief in the day, arises from the difficulty

of procuring sufficient evidence of the fact.

So

that

if

a thief is found killed, the person who says, that he was

found by him with a destructive weapon, and killed by

him in his own defence, will easily gain belief. For the

Jewish law supposes this, when

it

treats of a thief in

the act

of

piercing, or, as some translate

it,

with

a

stabbing instrument. This interpretation accords with

the law of the twelve tables, which forbids any one to

kill

a

thief in the day time, except he defend himself

with a weapon. The presumption therefore against

a

thief in the night is that he defended himself in such a

manner. Now the term weapon comprehends not only

an instrument of iron, but as Caius interprets this law,

a club, or a stone. Ulpian on the other hand, speaking

of a thief taken in the night, says that the person who

kills him will incur no guilt, provided that in saving

his property he could not spare his life, without en-

dangering his own. There

is

a presumption,

as

it

has

been already observed, in favour of the person who has

killed

a

thief taken in the night. But

if

there be evi-

dence to prove, that the life of the person who killed

the thief was in no danger; then the presumption

in

his

favour fails, and the act amounts to murder.

The law of the twelve tables indeed required, that the

person who took a thief either in the day time,

or

in the

night, should make a noise that,

if

possible, the magis-

trates or neighbours might assemble to assist him and

give evidence. But as such a concourse could more easily

be assembled in the day time than in the night, as Ulpian

observes upon the passage before quoted from Demos-

thenes, the affirmation of a person declaring the danger

he was in during the night

is

more readily believed.

To

THE RIGHTS

OF

WAR

AND

PEACE

which an additional observation may be made, that, even

under equal circumstances, the danger which happens by

night can be less examined, and ascertained, and there-

fore

is

the more terrible. The Jewish law therefore,

no

less than the Roman, acting upon the same principle of

tederness forbids

US

to

kill any one, who has taken our

goods, unless for the preservation of our own lives.

XVI.*

What has been already said of the right of de-

fending

our

persons and property, though regarding

chiefly private war, may nevertheless be applied to public

hostilities, allowing for the difference of circumstances.

For private war may be considered as an instantaneous

exercise of natural right, which ceases the moment that

legal redress can be obtained. Now as public war can

never take place, but where judicial remedies cease to

exist,

it

is

often protracted, and the spirit of hostility

inflamed by the continued accession of losses and injuries.

Besides, private war extends only to self-defence, whereas

sovereign powers have a right not only to avert, but to

punish wrongs. From whence they are authorised to

prevent

a

remote

as

well as an immediate aggression.

Though the suspicion of hostile intentions, on the part

of

another power, may not justify the commencement of

actual war, yet

it

calls for measures of armed prevention,

and will authorise indirect hostility. Points, which will

be discussed in another place.

XVII.

Some writers have advanced a doctrine which

can never be admitted, maintaining that the law of nations

authorises one power to commence hostilities against

another, whose increasing greatness awakens her alarms.

As

a

matter of expediency such a measure may be adopted,

but the principles of justice can never be advanced in its

favour. The causes which entitle a war to the denom-

ination of just are somewhat different from those of expe-

diency alone. But to maintain that the bare probability

of

some remote, or future annoyance from a neighbour-

ing state affords a just ground of hostile aggression, is

a

doctrine repugnant to every principle of equity. Such

however

is

the condition

of

human life, that no full

security can be enjoyed. The only protection against

uncertain fears must be sought, not from violence, but

from the divine providence, and defensive precaution.

XVIII.

There

is

another opinion, not more admissible,

*Sections

xrIr.

XIV.

and

XV.

of

the

original

are

Omitted

the

translation.

-TRANSLATOR.

.

84

HUGO

GROTIUS

maintaining that the hostile acts

of

an aggressor, may

be considered in the light of defensive measures, because,

say the advocates of this opinion, few people are con-

tent to proportion their revenge to the injuries they

have received; bounds which in all probability the party

aggrieved has exceeded, and therefore in return becomes

himself the aggressor. Now the excess of retaliation

cannot, any more than the fear of uncertain danger, give

a colour

of

right to the

first

aggression, which may be

illustrated by the case of a malefactor, who can have

no

right to wound or kill the officers of justice in their

attempts to take him, urging as a plea that he feared

the punishment would exceed the offense.

The first step, which an aggressor ought to take, should

be an offer of indemnity to the injured party, by the

arbitration

of

some independent and disinterested state.

And

if

this mediation be rejected, then his war assumes

the character

of

a just war. Thus Hezekiah when he

had not stood to the engagements made by his ancestors,

being threatened with an attack from the King

of

Assyria

on that account, acknowledged his fault, and left it to the

King to assign what penalty he should pay for the offence.

After he had done

so,

finding himself again attacked,

relying on the justice of his cause, he opposed the enemy,

and succeeded by the favour of God. Pontius the Sam-

nite, after restoration

of

the prizes had been made to

the Romans, and the promoter

of

the war delivered up

into their hands, said, “We have now averted the wrath

of

heaven, which our violation of treaties had provoked.

But the supreme being who was pleased to reduce

US

to

the necessity

of

restoration, was not equally pleased with

the pride of the Romans, who rejected our offer. What

farther satisfaction do we owe to the Romans, or to

Heaven, the arbiter

of

treaties

?

We do not shrink from

submitting the measure

of

YOUR

resentment, or of

OUR

punishment to the judgment of any people, or any indi-

vidual.

))

In the same manner, when the Thebans had

offered the most equitable terms to the Lacedaemonians,

who still rose higher in their demands, Aristides says,

that the justice of the cause changed sides and passed

from the Lacedaemonians to the Thebans.

CHAPTER

11.

THE

GENERAL

RIGHTS

OF

THINGS.

The general rights of things

-

Division of what is our

om-

The origin

and progress

Of

property

-

Some things impossible to be made the

subject of property-The Sea of this nature, in its

full

extent, or in

its principal parts

-

Unoccupied lands may become the property

of

individuals, unless they have been previously occupied. by the people

at

hrge

-

Wild beasts, fishes, birds, may become the propert). of

him who seizes them-In cases

of

necessity men have

a

right of

using that which has already become the property

of

others--

TO

sanction this indulgefice, the necessity must be such that it cannot

otherwise be avoided- This indulgence not allowed where the posses.

sor

is

in an equal degree

of

necessity

-

The party thus supplying his

wants from another’s property, bound to make restitution whenever

it is possible. The application

of

this principle

to

the

practice of war

-The right to

use

the property

of

another, provided that use

be

no

way prejudicial to the owner

-

Hence the right to the use

of

running

water-The right

of

passing through countries, and by rivers

ex-

plained-

An

inquiry into the right

of

imposing duties

on

merchan-

dise-The right

of

residing for

a

time in a foreign state -The right

of

exiles to reside in the dominions of a foreign state, provided they

submit to its laws

-

In

what manner the right

of

occupying waste

places

is

to be understood-The right tocertain articles necessary to

the support

of

human society, and life

-

The general right

of

purchas-

ing those articles at a reasonable price- The right to sell, not

of

equal force and extent

-

The right to those privileges which are pro-

miscuously granted t? foreigners-Inquiry whether it be

lawful

to

contract with any people for the purchase of their productions

on

condition of their not selling the same to others.

1.

AMONG

the causes assigned to justify war, we may

reckon the commission

of

injury, particularly such as

affects any thing which belongs to

US.

Now

we establish

this claim to any thing as our own either by a right

COMMON

to

US

as

men, or acquired by us in our

INDIVIDUAL

capacity. But to begin with that which

is

the common

fight

of

all mankind; we may observe that

it

comprises

what

is

called by legal authorities, Corporeal and Incor-

poreal rights.

*

*~~t~s

aliguos,

which literally signifies certain acts, may

be

ren-

dered by the term incorporeal rights, which imply the right of Ways,

dignities, franchises, and many other personal privileges arising Out

Of

certain corporeal

kinds

of

property.

(85)

86

-

HUGO

GROTIUS

Things corporeal are either unappropriated,

or

made

the subjects of private property. Now the things unap-

propriated, are such that

it

may be either possible

or

im-

possible for them to be reduced

to

a state

of

private

property.* In order therefore to understand this more

clearly,

it

will be necessary to take a survey of the

origin

of property.

11.

God

gave to mankind in general, dominion over all

the creatures of the earth, from the first creation of the

world; a grant which was renewed upon the restoration

of the world after the deluge.

All

things, as Justin says,

fonned

a

common stock

for

all mankind, as the inheritors

of one general patrimony.

From

hence

it

happened, that

every man seized to his own use

or

consumption what-

ever he met with; a general exercise

of

a right, which

supplied the place of private property.

So

that to de-

prive any one of what he had thus seized, became an

act of injustice. Which Cicero has explained in his third

book, on the bounds of good and evil, by comparing the

world to a Theatre, in which the

seats

are common prop-

erty, yet every spectator claims that which he occupies,

for the time being, as his own.

A

state

of

affairs, which

could not subsist but in the greatest simplicity

of

man-

ners, and under the mutual forbearance and good-will of

mankind. An example

of

a community of goods, arising

from extreme simplicity of manners, may be seen in some

nations of America, who for many ages have subsisted

in this manner without inconvenience. The Essenes of

old, furnished an example of men actuated by mutual

affection and holding all things in common, a practice

adopted by the primitive Christians at Jerusalem, and

*The words

of

Judge Blackstone

will

elucidate the meaning of

Grotius in this place. The learned Commentator says, ((There are some

fewthings, which, notwithstanding the general introduction and continu.

BnCe

of

property, must

still

unavoidably remain

in

common

;

being such

wherein nothing but an usufructuary property

is

capable of being had:

and therefore they still belong to the

first

occupant, during the time he

holds possession

Of

them, and

no

longer. Such (among others) are the

elements of light. air, and water; which

a

man may occupy by means

of

his windows, his gardens, his mills, and other conveniences: such also

are

the generality

of

those animals which are said

to

be

ferae natvrae,

or

of

a

wild

and

untameable disposition: which any

man

may seise

upon

and keep

for

his

own

use

or

pleasure.

AI1

these things,

so

long

as

they

remain in psession, every man has

a

right to enjoy without disturb-

ance;

but

if

once they escape from his custody, or he voluntarily

abandons

the

use

of

them, they return to the common

stock,

and any

man

else has

a

right

to

seise and enjoy them afterwards.

THE

RIGHTS

OF

WAR

AND

PEACE

87

still

prevailing among some of the religious orders. Man

at his first origin, requiring no clothing, afforded a proof

of the simplicity of manners in which he had been formed.

Yet perhaps, as Justin says of the Scythians, he might

be considered as ignorant of vice rather than acquainted

with virtue; Tacitus says, that in the early ages of the

world, men lived free from the influence of evil passions,

without reproach, and wickedness; and consequently

without the restraints of punishment.

In

primitive times

there appeared among mankind, according to Macrobius,

a simplicity, ignorant of evil, and inexperienced in craft:

a simplicity which in the book of Wisdom seems to be

called integrity, and by the Apostle

Paul

simplicity in

opposition to subtilty. Their sole employment was the

worship of God, of which the tree

of

life was the sym-

bol, as it is explained by the ancient Hebrews, whose

opinion is confirmed by the Book of Revelation.

Men at that period subsisted upon the spontaneous

productions of the ground: a state of simplicity to which

they did not long adhere, but applied themselves to the

invention of various arts, indicated by the tree of knowl-

edge of good and evil, that is the knowledge of those

things which may be either used properly, or abused;

which Philo calls a middle kind of wisdom. In this view,

Solomon says, God hath created men upright, that is, in

simplicity, but they have sought out many inventions,

or,

in the language of Philo, they have inclined

to

subtilty.

In the sixth oration of Dion Prusaeensis it is said, “the

descendants have degenerated from the innocence of

primitive times, contriving many subtile inventions no

way conducive to the good of life; and using their strength

not to promote justice, but to gratify their appetites.))

Agriculture and pasturage seem to have been the most an-

cient pursuits, which characterized the first brothers. Some

distribution of things would necessarily follow these differ-

ent states

;

and we are informed by holy writ, that the rivalry

thus created ended in murder. At length men increas-

ing in wickedness by their evil communications with

each other, the race

of

Giants, that is of strong and vio-

lent men appeared, whom the Greeks denominate by

a

title, signifying those who make their own hands and

strength the measure of justice.

The world in progress

of

time being cleared of this

race by the deluge, the savage was succeeded by a softer

and more sensual way

of

life, to which the use of wine

88

HUGO

GROTIUS

proved subservient, being followed by all the evil con-

sequences of intoxication. But the greatest breach in the

harmony of men was made by ambition, which

is

con-

sidered in some measure, as the offspring of

a

noble

mind. Its first and most eminent effects appeared in the

attempt to raise the tower of Babel; the failure

of

which

caused the dispersion of mankind, who took possession of

different parts of the earth.

Still after this a community of lands for pasture,

though not of flocks, prevailed among men. For the

great extent

of

land was sufficient for the

use

of all

occupants, as yet but few in number, without their in-

commoding each other. In the words of the Poet,

it

was

deemed unlawful to

fix

a

land mark on the plain, or to

apportion

it

out in stated limits. But as men increased

in numbers and their flocks in the same proportion, they

could

no

longer with convenience enjoy the use of lands

in common, and

it

became necessary to divide them into

allotments for each family. Now in the hot countries of

the East, wells would be objects of great importance, for

the refreshment

of

their herds and flocks;

so

that in

order to avoid strife and inconvenience, all would be

anxious to have them as possessions of their own. These

accounts we derive from sacred history, and they are

found to agree with the opinions maintained upon this

subject by Philosophers and Poets, who have described

the community

of

goods,

that prevailed in the early state

of the world, and the distribution of property which

afterwards took place. Hence a notion may be formed of

the reason why men departed from the primaeval state

of holding all things in common, attaching the ideas

of

property, first to moveable and next to immoveable

things.

When the inhabitants of the earth began to acquire

a

taste for more delicate fare than the spontaneous pro-

ductions of the ground, and to look for more commodious

habitations than caves, or the hollow of trees, and to

long for more elegant cloathing than the skins of wild

beasts, industry became necessary to supply those wants,

and each individual began to apply his attention to some

particular art. The distance of the places too, into which

men were dispersed, prevented them from carrying the

fruits

of

the earth to a common stock, and in the next

place, the

WANT

of just principle and equitable kindness

would destroy that equality which ought to subsist both

THE RIGHTS

OF

WAR

AND

PEACE

89

in the labour of producing and consuming the necessaries

of life.

At the same time, we learn how things passed from

being held in common to a state of property. It was

not by the act of the mind alone that this change took

place. For men in that case could never know, what

others intended to appropriate to their own use,

so

as to

exclude the claim of every other pretender to the same;

and many too might desire to possess the same thing.

Property therefore must have been established either by

express agreement, as by division,

or

by tacit consent, as

by occupancy. For as soon as

it

was found inconvenient

to hold things in common, before any division of lands

had been established,

it

is natural to suppose

it

must

have been generally agreed, that whatever any one had

occupied should be accounted his own. Cicero, in the

third book of his Offices says, it

is

admitted as an uni-

versal maxim, not repugnant to the principles of natural

law, that every one should rather wish himself

to

enjoy

the necessaries of life, than leave them for the acqui-

sition of another. Which is supported by Quintilian, who

says,

if

the condition of life be such, that whatever has

fallen to the private use of any individual, becomes the

property of such holder,

it is

evidently unjust to take

away any thing which is possessed by such a right. And

the ancients in styling Ceres

a

law-giver, and giving the

name of Thesmophoria to her sacred rights, meant by

this to signify that the division of lands had given birth

to a new kind of right.

111.

Notwithstanding the statements above made, it

must be admitted that some things are impossible to be

reduced to a state of property, of which the Sea affords

us an instance both in its general extent, and in its

principal branches.

But

as some are willing to make

this concession with regard to individuals, but not with

regard to nations, the position advanced in the beginning

of this section may be proved from the following moral

argument, that as in this case the reason

no

longer sub-

sists why men should hold

all

things in common, the

practice ceases also. For the magnitude of the sea

is

such, as to be sufficient for the use

of

all nations, to

allow them without inconvenience and prejudice to each

other the right of fishing, sailing, or any other advantage

which that element affords. The same may be said of

air as common property, except that

no

one can use

or

90

HUGO

GROTIUS

enjoy

it, without at the same time using the ground over

which

it

passes

or

rests.

So

that the amusement of fowl-

ing cannot be followed, except by permission, without

trespassing upon the lands of some owner, over which

the birds fly.

The Same appellation of

COMMON

may be given to the

sand of the shore, which being incapable of cultiva-

tion, is left free to yield its inexhaustable supplies for the

use of all.

There is a natural reason also, which renders the sea,

considered in the view already taken, incapable of being

made property: because occupancy can never subsist, but

in things that can be confined to certain permanent

bounds. From whence Thucydides gives the name of in-

finite space to unoccupied lands, and Isocrates speaking

of that occupied by the Athenians calls it that which has

been measured by

us

into alloted parts. But fluids, which

cannot be limited or restrained, except they be contained

within some other substance, cannot be occupied. Thus

ponds, and lakes and rivers likewise, can only be made

property as far as they are confined within certain banks.

But the ocean as it is equal to, or larger than the earth,

cannot be confined within the land:

so

that the ancients

said the earth was bounded in by the sea like a girdle

surrounding it. Nor can any imaginable division of it

have been originally framed.

For

as the greatest part of

it was unknown, it was impossible that nations far re-

moved from each other could agree upon the bounds to

be assigned to different parts.

Whatever therefore was the common property

of

all,

and after a general division of all other things, retained

its original state,

could

not be appropriated by division,

but by occupancy. And the marks of distinction and

separation by which its different parts were known, fol-

lowed such appropriation.

IV.

The next matters to be noticed are those things,

which though not yet made property, may be reduced to

that condition. Under this description come waste lands,

desert islands, wild beasts, fishes, and birds. Now in

these cases there are two things to be pointed

out,

which are a double kind

of

occupancy that may take

place; the

one

in the name of the Sovereign,

or

of

a

whole

people, the other by individuals, converting into private

estates the lands which they have

so

occupied. The

latter kind of individual property proceeds rather from

THE

RIGHTS

OF

WAR AND

PEACE

91

assignment than from free occupancy. Yet any places

that have been taken possession of in the name

of

a sov-

ereign, or

of

a whole people, though not portioned out

amongst individuals, are not to be considered

as

waste

lands, but as the property of the first occupier, whether

it

be the King, or a whole people. Of this description are

rivers, lakes, forests, and wild mountains.

V.

As to wild beasts, fishes, and birds, it

is

to be

ob-

served that the sovereign of the respective lands, or

waters where they are found, has a legal right to pro-

hibit any one from taking them, and thereby acquiring

a property in them.

A

prohibition extending to foreign-

ers, as well as subjects. To foreigners; because by all

the rules of moral law they owe obedience to the sover-

eign, for the time during which they reside in his terri-

tories. Nor is there any validity in the objection founded

on the Roman Law, the Law of nature, or the Law

of

nations, which, it is said, declare such animals to be

beasts of chace free

to

every one's hunting. For this

is

only true, where there is no civil law to interpose its

prohibition; as the Roman law left many things in their

primitive state, which by other nations were placed upon

a very different footing. The deviations therefore from

the state

of

nature, which have been established by the

civil law, are ordained by every principle

of

natural just-

ice to be obeyed by mankind. For although the civil

law can enjoin nothing which the law of nature prohib-

its, nor prohibit'any thing which it enjoins, yet it may

circumscribe natural liberty, restraining what was before

allowed; although the restraint should extend to the very

acquisition of property, to which every man

AT

FIRST

had

a right by the law of nature.

VI.

The next thing to be considered is the right, which

men have to the common use of things, already appro-

priated; terms, in which at the first sight there appears

ti

be Some inconsistency, as it appears that the estab-

lishment of property has absorbed every right that sprung

from a state of things held in common. But this is by

no means the case. For the intention

of

those, who first

introduce private property, must be taken into the ac-

count. And it was but reasonable to suppose, that in

making this introduction of property, they would depart

as little as possible from the original principles of natu-

ral equity. For if written laws are to

be

construed

in

a

sense, approaching as nearly as possible to the laws

of

92

HUGO

GROTIUS

nature, much more

so

are those customs which are

not

fettered with the literal restrictions of written maxims.

From hence

it

follows that in cases of extreme necessity,

the original right of using things, as

if

they had remained

in

Common, must be revived; because in all human laws,

and consequently in the laws relating

to

property, the

cse of extreme necessity seems to form an exception.

Upon this principle is built the maxim that

if

in a

voyage provisions begin to fail, the stock of every indi-

vidual ought to be produced

for

common consumption

;

for the same reason a neighbouring house may be pulled

down to stop the progress of

a

fire:

or

the cables

or

nets,

in which a ship is entangled, may be cut,

if

it cannot

otherwise be disengaged. Maxims, none of which were

introduced by the civil law, but only explained by it

according to the rules of natural equity.

Now among Theologians also it is a received opinion,

that if in urgent distress, any one shall take from another

what is absolutely necessary for the preservation

of

his

own life, the act shall not be deemed a theft.

A

rule

not founded, as some allege, solely upon the law of

charity, which obliges every possessor to apply some part

of his wealth to relieve the needy; but upon the original

division of lands among private owners, which was made

with a reservation in favour of the primitive rights

of

nature. For

if

those

who

at first made the division had

been asked their opinion upon this point, they would

have given the same reason that has just been advanced.

Necessity, says Seneca, the great protectress of human

infirmity breaks through all human laws, and

all

those

made in the spirit

of

human regulations. Cicero in his

eleventh Philippic,

says,

that Cassius went into Syria,

which might be considered as another’s province,

if

men

adhered to written laws, but

if

these were abolished, it

would be considered as his own by the law of nature.

In the sixth book and fourth chapter

of

Quintus Curtius,

we find an observation, that in a common calamity every

man looks to himself.

VII. NOW this indulgence must be granted with pre-

cautions and restrictions, to prevent it from degener-

ating into licentiousness. And of these precautions, the

first

requires the distressed party to try every mode of

obtaining relief, by an appeal to a magistrate,

or

by try-

ing the effect of entreaty to prevail upon the owner to

grant what

is

necessary for his pressing occasions

THE

RIGHTS

OF

WAR

AND

PEACE

93

Plato allows any one to seek water from his neighbour’s

well, after having

dug

to a certain depth in his own

without effect. Solon limits the depth to forty cubits;

upon which Plutarch remarks, that he intended by this

to relieve necessity and difficulty, but not to encourage

sloth. Xenophon in his answer to the Sinopians, in the

fifth book of the expedition of Cyrus, says, “wherever

we come, whether into a barbarous country or into any

part of Greece, and find the people unwilling to afford

us

supplies, we take them, not through motives of wan-

tonness, but from the compulsion of necessity.’

VIII. In the next place this plea of necessity cannot

be admitted, where the possessor is in an equal state of

necessity himself. For under equal circumstances the

owner has a better right to the use of his possessions.

Though Lactantius maintains that

it

is no mark

of

folly to

forbear thrusting another from the same plank in a ship-

wreck in order to save yourself. Because you have thereby

avoided hurting another: a sin which is certainly a proof

of wisdom to abstain from. Cicero, in the third book of

his offices, asks this question, if a wise man, in danger

of perishing with hunger, has not a right to take the

provisions of another, who is good for nothing?

To

which he replies

;

By

no

means. For no one’s life can

be of such importance as to authorize the violation of

that general rule of forbearance, by which the peace and

safety of every individual are secured.

IX. In the

I

third place, the party thus supplying his

wants from the property of another,

is

bound to make

restitution,

or

give an equivalent to the owner, whenever

that is possible. There are some indeed, who deny this,

upon the ground that no one is bound to give an indemnity

for having exercised his own right. But strictly speak-

ing, it was not a full and perfect right, which he exer-

cised; but a kind of permission, arising out of a case of

necessity, and existing no longer than while the necessity

continued. For such a permissive right

is

only granted

in order to preserve natural equity in opposition to the

strict and churlish rigour of exclusive ownership.

X.

Hence

it

may be inferred, that,

in

the prosecution

of

a just war, any power has a right to take possession

of

a neutral soil; if there be real grounds, and not

imaginary fears for supposing the enemy intends to make

himself master

of

the same, especially

if

the enemy’s

occupying

it

would

be

attended with imminent and

irrepar-

94

HUGO GROTIUS

able mischief to that same power. But in this case the

restriction is applied that nothing be taken but what is

actually necessary to such precaution and security. Barely

occupying the place is all that can be justified: leaving

to the real owner the

full

enjoyment of all his rights,

immunities, and jurisdiction, and all the productions of

his soil. And this must be done too with the full inten-

tion of restoring the place to its lawful Sovereign, when-

ever the necessity, for which it was occupied, may cease.

The retaining of Enna, Livy says, was either an act of

violence, or a necessary measure

;

by violence meaning

the least departure from necessity. The Greeks, who

were with Xenophon being in great want of ships, by

Xenophon’s own advice, seized upon those that were

passing, still preserving the property untouched for the

owners, supplying the sailors with provisions, and paying

them wages. The principal right therefore, founded upon

the original community

of

goods, remaining since the

introduction

of

property, is that of necessity, which has

just been discussed.

XI. There is another right, which is that of making

use of the property of another, where such use is attended

with no prejudice to the owner.

For

why, says Cicero,

should not any one; when he can do it without injury to

himself, allow another to. share with him those advan-

tages, which are useful to the receiver, and

no

way

detrimental to the giver

?

Seneca therefore observes,

that

it

is no favour to allow another to light his fire from

your flame. And in the 7th book of Plutarch’s Symposiacs,

we find an observation, that when we have provisions

more than sufficient for our own consumption it is wicked

to destroy the remainder; or after supplying our own

wants, to obstruct

or

destroy the springs of water;

or

after having finished our voyage, not to leave for other

passengers the sea-marks, that have enabled

US

to steer

our course.

XII. Upon the principles already established, a river,

as such,

is

the property of that people,

or

of the sovereign

of that people, through whose territories

it

flows. He

may form quays, and buttresses upon that river, and to

him all the produce of it belongs. But the same river,

as a running water, still remains common to all to draw

or

drink it. Ovid introduces Latona thus addressing the

Lydians, Why do you refuse water, the use of which

is

common

1”

where he calls

water

9

public

Gift

that

is

THE RIGHTS

OF

WAR AND PEACE

95

common to men, taking the word public in a more gen-

eral sense than as applied to any

PEOPLE,

a meaning in

which some things are said to be public by the law of

nations. And in the same sense Virgil has asserted water

to be free and open to all men.

XIII. It is upon the same foundation of common

right, that a free passage through countries, rivers,

or

over any part

of

the sea, which belongs to some particular

people, ought to be allowed to those, who require it

for

the necessary occasions of life; whether those occasions

be in quest

of

settlements, after being driven from their

own country,

or

to trade with a remote nation, or to

recover by just war their lost possessions. The same

reason prevails here as in the cases above named. Because

property was originally introduced with a reservation

of

that use, which might be of general benefit, and not

prejudical to the interest of the owner: an intention evi-

dently entertained by those, who first devised the separation

of the bounteous gifts of the creator into private posses-

sions. There is a remarkable instance

of

this in the

Mosaic history, when the leader of the children

of

Israel

required a free passage for that people, promising to the

King of Edom, and to the King of the Amorites, that he

would go by the highway, without setting a foot upon

the soil of private possessions, and that the people should

pay the price of everything, which they might have

occasion to use. Upon these equitable terms being re-

jected, Moses was justified in making war upon the

Amorites. Because, says Augustin, an inoffensive passage,

a right interwoven with the very frame

of

human society,

was refused. The Greeks under the command of

Clearchus, said, ((we are upon the way to

our

home, if no

one interrupt

us;

but every attempt to molest

us,

we are,

with the assistance of heaven, determined to avenge.))

Not unlike this answer

of

the soldiers under Clearchus

is the question put to the different nations of Thrace by

Agesilaus, who desired to know whether they wished him

to pass through their country as a friend,

or

as an en-

emy. When the Boeotians hesitated upon some proposi-

tions made to them by Lysander, he asked them whether

they intended that he should pass with erected

or

inclined

spears, meaning by the expression in a hostile

or

a quiet

manner. We are informed by Tacitus, that the Batavians,

as soon as they came near the camp at Bonn, sent a

message to Herennius Gallus, importing that ((they had

96

HUGO

GROTIUS

no

hostile design

;

that

if

not obstructed, they would

march in a peaceable manner; but

if

they met with op-

position they would cut their way sword in hand.

))

When

Cimon

in

carrying supplies to the Lacedaemonians, had

marched with his troops through some part of the Cor-

inthian district, the Corinthians expostulated upon his

conduct as a violation of their territory, because he had

done it without asking their leave, at the same time ob-

serving, that

no

one knocks at another man’s door,

or

presumes to enter the house without obtaining the mas-

ter’s leave. To whom he replied,

you

never knocked at

the gates of Cleone and Megara, but broke them down,

believing,

I

suppose, that

no

right ought to withstand

the force of the mighty.

Now between these two extremes there is a middle

course, requiring a free passage to be first asked; the

refusal of which will justify the application

of

force.

Thus Agesilaus in his return from Asia when he had

asked

a

passage

of

the King

of

the Macedonians, who

answered that he would consider of it, said,

you

may

consider,

if

you please, but we shall pass in the mean time.

The fears, which any power entertains from a multi-

tude in arms passing through its territories,

do

not form

such an exception as can

do

away the rule already laid

down.

For

it is not proper

or

reasonable that the fears

of one party should destroy the rights of another.

Es-

pecially, as necessary precautions and securities may be

used, such as those, for instance, of requiring that the

troops shall pass without arms,

or

in small bodies

;

a

promise which the Agrippinians made to the Germans.

And, as we are informed by Strabo, the practice still

prevails in the country of the Eleans. Another security

may be found in providing garrisons at the expense of

the party, to whom the passage is granted;

or

in giving

hostages; the condition, which Seleucus demanded of

Demetrius, for permitting him to remain within his ter-

ritories. Nor is the fear of offending that power, which

is the object of attack, a sufficient pretext for refusing

the passage of the troops to the state that is engaged in

a just war. Nor is it a proper reason to assign for

a

refusal, to say that another passage may be found;

as

every other power might allege the same, and by. this

means the right of passage would be entirely defeated.

The request of a passage therefore,

by

the nearest and

most commodious way, without doing

injury

and mio-

THE

RIGHTS

OF

WAR

AND

PEACE

97

chief,

is

a sufficient ground upon which it should

be

granted.

It

alters the case entirely,

if

the party making

the request is engaged in unjust war, and is marching

with the troops of a power hostile to the sovereign of

that territory; for in this instance, a passage may be

refused. For the sovereign has a right

to

attack that

power in his own territory, and to oppose its march.

Now

a free passage ought to be allowed

not

only to

persons, but to merchandise. For no power has a right

to prevent one nation from trading with another at a

remote distance; a permission which for the interest

of

society should be maintained. Nor can it be said that

any one

is

injured by it. For though he may be thereby

deprived

of

an exclusive gain, yet the

loss

of what

is

not

his due, as a

MATTER

OF

RIGHT,

can never be considered

as a damage or the violation of a claim.

XIV.

But it will form a subject of inquiry, whether

the sovereign of the country has a right to impose duties

on goods carried by land, or upon a river or upon any

part

of

the sea, which may form an accession to his

dominions.

It

would undoubtedly be unjust for any

burdens foreign

to

the nature of trade to be imposed

upon such goods. Thus strangers merely passing through

a country would have no right to pay a poll-tax, imposed

to support the exigencies of the state. But

if

the sover-

eign incurs expence by providing security and protection

to trade, he has a right to reimburse himself by the

imposition of moderate and reasonable duties. It is the

REASONABLENESS

of them, which constitutes the justice

of customs and taxes. Thus Solomon received tolls for

horses and linen that passed over the Isthmus

of

Syria.

Pliny, speaking of frankincense, observes that as

it

could

not be transported but by the Gebanites, a duty upon

it

was paid to their king. In the same manner, as Strabo

informs us in his fourth book, the people of Marseilles

derived great wealth from the canal which Marius had

made from the Rhone to the sea, by exacting tribute

of

all that sailed upon it to and fro with vessels. In the

eighth book of the same writer, we are told that the

Corinthians imposed a duty upon all goods, which, to

avoid the dangerous passage of Cape Malea, were trans-

ported by land from sea to sa. The Romans too made

the passage of the Rhine a source of tribute, and Seneca

relates that a toll was paid for going over bridges.

7

98

HUGO

GROTIUS

The works

of

legal writers abound in instances of this

kind. But

it

frequently happens that extortion is prac-

tised

in

these matters, which Strabo forms into a subject

of complaint against chiefs of the Arabian tribes, con-

cluding that

it

would be unlikely for men of that lawless

kind to impose upon the goods of merchants any duties

that were not oppressive.

XV.

Those going with merchandise or only passing

through a country, ought to be allowed to reside there

for a time, if the recovery of health, or any other just

cause should render such residence necessary. For these

may be reckoned among the innocent uses

of

our

right.

Thus Ilioneus in Virgil calls heaven to witness the in-

justice of the Africans in driving him and his ship-

wrecked companions from the hospitable use of the

shore, and we are informed by Plutarch in his life of

Pericles that all the Grecians approved of the complaint,

which the Megarensians made against the Athenians,

who had prohibited them from setting foot upon the

soil of their territories, or carrying a vessel into their

harbours.

So

the Lacedaemonians regarded this as the

most sufficient grounds to justify the war.

From hence results the right

of

erecting a temporary

hut, upon the shore, although, for instance, the same

shore is allowed to be the property

of

the people of that

place.

For

what Pomponius says

of

its

being necessary

to obtain the Praetor's leave, before a building can be

raised upon the public shore, relates to structures

of

a

permanent kind, when the massy piles of stone,

as

the

Poet says, encroach upon the sea, and the affrighted fish

feel their waves contracted.

XVI.

Nor ought a permanent residence to be refused

to foreigners, who, driven from their own country, seek

a place

01

refuge. But then it is only upon condition

that they submit to che established laws of the place, and

avoid every occasion

of

exciting tumult and sedition. A

reasonable rule, which the divine poet has observed, when

he introduces Aeneas making an offer that Latinus, who

had become his father-in-law, should retain all military

and civil power. And in Dionysius of Halicarnassus,

Latinus admits the proposal of Aeneas to be just; as he

came through necessity

in

quest of

a

settlement. To

drive away refugees, says Strabo, from Eratosthenes, is

acting

like

barbarians; and a conduct like this

in

the

THE

RIGHTS

OF

WAR

AND

PEACE

99

Spartans was also condemned.

St.

Ambrose passes the

same sentence

of

condemnation upon those powers, who

refuse all admission to strangers, Yet settlers of this

description have no right to demand

a

share in the gov-

ernment.

A

proposal of this kind made by the Minyae

to

the Lacedaemonians, who had received them, is very

properly considered by Herodotus as insolent, and

un-

reasonable.

XVII.

It

is

indeed but an act of common humanity in

a

sovereign to allow strangers, at their request, liberty

to

fix their residence upon any waste or barren lands

within his dominions, still reserving to himself all the

rights

of

sovereignty. Seven hundred acres of barren

and uncultivated land, as Servius observes, were given

by the native Latins to the Trojans. Dion Prusaeensis,

in his seventh oration, says, that they commit no crime

of tresspass, who take upon them to cultivate waste

lands. The refusal of this privilege made the Ansibarians

exclaim, the firmament over our heads is the mansion

of

the deity: the earth was given to man; and what

remains unoccupied, lies in common to all.” Yet that

complaint did not apply exactly to their case. For those

lands could not be called unoccupied, as they served to

supply the Roman army with forage for their cattle,

which certainly furnished the Romans with a just pretext

for refusing to grant their request. And with

no

less

propriety the Romans asked the Galli Senones

if

it were

right to demand lands already possessed, and to threaten

to take them by force.

XVIII.

Since the

COMMON

RIGHT

TO

THINGS

has been es-

tablished, the

COMMON

RIGHT

TO

ACTIONS

follows next in

order, and this right

is

either absolute, or established by

the supposition

of

a general agreement amongst mankind.

Now

all men have absolutely a right to do such or such

acts

as

are necessary to provide whatever

is

essential to

the existence or convenience of life.

CONVENIENCE

is

included in this right; for there is no occasion here to

imagine an existence of the same necessity as was requi-

site to authorize the seizing of another’s property. Be-

cause the point of discussion here

is

not whether

any act

is

done

AGAINST

THE

WILL

of an owner,

but

whether we acquire what is necessary for our wants

ACCORDING

TO

THE

TERMS

to which the owner has agreed.*

*The

meaning

of

Grotius

in

this

Section

will

be

more

clearly

under-

Io0

HUGO

GROTIUS

Supposing there is nothing illegal in the contract, nor

any wilful intention on his part to make it null and void.

For any impediment created by the owner in such trans-

actions, is repugnant to the very principles of natural

justice, which suppose an equality of upright dealing to

subsist in both the parties concerned. St. Ambrose calls

a fraudulent conduct of that kind, an attempt to deprive

men of their share in the goods of a common parent, to

withhold the productions of nature which are the birth-

right of all, and to destroy that commerce which is the

very support of life. For we are not treating of super-

fluities and luxuries, but

of

those things, which are essen-

tial to life, as physic, food and cloathing.

XIX.

From what has already been proved, it follows

that all men have a right to purchase the necessaries of

life at a reasonable price, except the owners want them

for their own use. Thus in a great scarcity of corn,

there wquld be no injustice in their refusing to sell.

And

yet in such a time of necessity foreigners, who have

been once admitted, cannot be driven away; but as St.

Ambrose shews in the passage already quoted, a common

evil must be borne by all alike.

XX.

Now

owners have not the same right in the sale

of their goods:

for

others are at full liberty to determine

whether they will purchase certain articles

or

not. The

ancient Belgians, for instance, allowed not wines and

other foreign merchandise to be imported among them.

The same rule, we are informed by Strabo, was practised

by the Nabathaean Arabians.

XXI.

It is supposed to be generally agreed among man-

kind, that the privileges, which any nation grants pro-

miscuously to the subjects of foreign powers or countries,

stood by a brief explanation of the nature

of

Contracts.

“Now

contracts

are of two kinds, either express

or

implied. Express contracts are openly

uttered and avowed at the time

of

making,

as

to deliver an ox, or ten load

of

timber, or

to

pay a stated price for certain

goods.

Implied are such as

reason and justice dictate, and which therefore the law presumes, that

every man undertakes

to

perform.

As,

if

I

employ a person to do any bus-

iness

for

me,

or

perform any work; the law implies that

I

undertook, or

contracted, to pay him as much as his

labor

deserves.

If

I

take up wares

from

a

tradesman, without any agreement

of

price, the law concludes,

that

I

contracted to pay their real value. And there

is

aIso one species

of

implied contracts, which

runs

through and is annexed to all other con-

tracts, conditions, and covenants,

vir.

that

if

I

fail in my part

of

the

agreement,

I

shall pay the other

party

such damages as he has sustained

by

such my

neglect

or

refusal. Blackst. Com.

b.

ii. c.

30.

p.

442.

THE

RIGHTS

OF

WAR AND

PEACE

IO!

are

the common right of all.* Consequently the exclu-

sion

of any one people from these rights would be

considered as an injury to that people. Thus, wherever

foreigners in general are allowed to hunt,

to

fish, to

shoot, to gather pearls, to succeed to property by testa-

ment, to sell commodities,

or

to form intermarriages, the

same privileges cannot be refused to any particular peo-

ple, unless they have by misconduct forfeited their right.

On

which account the tribe of Benjamin was debarred

from intermarrying with other tribes.

XXII. It has sometimes been a subject of inquiry

whether one nation may lawfully agree with another to ex-

clude all nations but herself from purchasing certain pro-

ductions, which are the peculiar growth of her soil.

An

agreement which,

it

is evident, may be lawfully made;

if

the purchaser intends to supply other nations with

those articles at a reasonable price. For it is a matter

of indifference to other nations

OF

WHOM

they purchase,

provided they can have a reasonable supply for their

wants. Nor is there any thing unlawful in allowing one

people an advantage over another in this respect, particu-

larly for a nation who has taken another under her pro-

tection and incurred expence

on

that account.

Now

such a monopoly, under the circumstances already men-

tioned, is no way repugnant to the law of nature,t

*

There are cases in which monopolies, and the exclusive privileges

of

trading companies are not only allowable but absolutely necessary.

“For there are,

says

VutfeZ,

commercial enterprizes that cannot be car-

ried

on

without an energy that requires considerable funds, which

sur-

pass

the ability

of

individuals. There are others that would

soon

become ruinous, were they not conducted with great prudence, with

one

regular spirit, and according to well supported maxims and rules.

These branches

of

trade cannot be indiscriminately carried

on

by indi-

viduals: companies are therefore formed, under the authority

of

the

government; and these companies cannot subsist without an exclusive

privelege. It is therefore advantageous to the nation to grant them:

hence have arisen in different countries, those powerful companies that

carry

on

commerce with the East.))-Law

of

Nat. b. i. c. viii. sect.

97.

t

Adam Smith in his Wealth of Nations, speaking of treaties

of

com-

merce, observes, that ((when

a

nation binds itself by treaty, either

to

permit the entry of certain goods from

one

foreign country which it pro-

hibits from

all

others, or to exempt the goods of one country from duties

to which

it

subjects those

of

all others, the country,

or

at least the

mer-

chants and manufacturers

of

the country, whose commerce is

SO

fa-

voured, must necessarily derive great advantages

from

the treaty.

Those merchants and manufacturers enjoy

a

sort

of

monopoly

in

the

E’*

42.

I02

HUGO

GROTIUS

though

it

may be sometimes for the interest

of

the

community to prohibit it by express

laws.

country, which is

so

indulgent to them. That country becomes

a

market

both

more extensive and more advantageous €or

their

goods:

more extensive, because the

goods

of other nations

being

either ex-

cluded or subjected

to

heavier duties,

it

takes

off

a

great

quantity

of

theirs: more advantageous, because the merchantsof the favoured coun-

try, enjoying

a

sort

of monopoly there, will often sell their

gods

for

a

better price, than if exposed

to

the freecompetition of

all

other nations."

-VoL

2.

b.

iv. ch.

vi

CHAPTER

111.

ON

THE

ORIGINAL

ACQUISITION

OF

THINGS,

AND

THE

RIGHT

OF

PROPERTY

IN

SEAS

AND

RIVERS.

Specification

of

moveable property

-

The difference between sover-

eignty and property

-

The right to moveables by occupancy

may

be

superseded by law

-

Rivers may

be

occupied

-

Right to seas

-On

the treaties binding a people not

to

navigate the

seas

beyond cer-

tain

bounds-Inquiry into the nature

of

the

change which

a

river,

changing its course, makes in the adjoining territories

-

What de-

termination is to be made, where the river

has

entirely changed its

channel

-

Sometimes

a

whole river may accrue to a territory-

Things deserted belong to the first occupier.

I.

AMONG

the means of acquiring property, Paulus the

Lawyer reckons one, which seems most natural, and that

is,

if

by the ingenuity of art,

or

the exertions of labour

we have given to any production its existence among

the works of man. Now as nothing can naturally be

produced, except from some materials before in exist-

ence, it follows that,

if

those materials were

our

own,

the possession of them under any new shape,

or

com-

modity is only a

CONTINUATION

of

our

former property;

if

they belonged to no one,

our

possession comes under

the class of title by occupancy: but

if

they were another’s,

no

improvement of

ours

can by the law of nature give

us

a right of property therein.

11.

Among those things, which belong to

no

one, there

are two that may become the subjects of occupancy; and

those are jurisdiction,

or

sovereignty and property. For

jurisdiction and property are distinct from each other in

their effects. The objects over which sovereignty may

be exercised are

of

a twofold

I

description, embracing both

persons and things. But this

is

not the case with prop-

erty, the right of which can extend only to the irrational

and inanimate part

of

the creation. Though

it

might

originally, for the most part, be the same act by which

sovereignty and property were acquired, yet they are in

their nature distinct.

SOVEREIGNTY,

says Seneca, belongs

to

PRINCES

and

PROPERTY

to

INDIVIDUALS.

The sover-

eignty therefore, not only over subjects at home, but

(103)

I

04

HUGO

GROTIUS

Over

those in the prince's foreign dominions passes with

the hereditary descent of the crown.

111.

In places, where sovereignty is already established,

the right to moveables by occupancy, and indeed every

original right must give way to the superior sanction of

law. And what any man before held by any such right,

he would afterwards be considered as holding by the

laws

of

the country. For those original rights were

PER-

MISSIONS

of the law of nature, and not commands that

were to be

PERPETUALLY

enforced. For the continued

establishment of such a right as that by prior occupancy,

so

far from promoting the welfare, would operate to the

very destruction of human society. Although it may be

said by way

of

objection, that the law

of

nations seems

to admit

of

such a eght, yet we may answer that

if

such

a rule either is or has been commonly received in any

part of the world, it has not the force of a general com-

pact binding upon different independent nations

;

but may

be

considered as one branch of the civil law of many

nations, which any state has a right

to

continue, or re-

peal according to its own pleasure or discretion. There

are many other things indeed which legal writers, in

treating of the division and acquisition of property, con-

sider

as

forming a part

of

the law

of

nations.

IV. Rivers may be occupied by a country, not includ-

ing the stream above, nor that below its own territories.

But the waters which wash its lands form an inseparable

part of the current, making its way to the main sea.

For to constitute the right to a property in its channel, it

is sufficient that its sides, inclosed by the banks of

that territory form its greatest part, and that the river

itself compared with the land, makes but a small por-

tion.

V.

In the same manner, the sea appears capable of

being made

a

property by the power possessed of the

shore on both sides of it; although beyond those limits

it

may spread to a wide extent, which is the case

with

a bay, and with

a

straight beyond each of its outlets

into the main sea or ocean. But this right of property

can never take place where the sea

is

of

such

a

magni-

tude, as to surpass all comparison with that portion of

the land which it washes.

And

the right, which one

people or prince possesses, may also be shared by a great

number

of

states, among whose respective territories the

sea

flows.

Thus

rivers separating two powers may

be

THE RIGHTS

OF

WAR AND PEACE

105

occupied- by both, to each of whom their use and advan.

tages may be equal.

VI. Instances may be found of treaties by which one

nation binds itself to another, not to navigate particular

seas beyond certain bounds. Thus between the Egyp-

tians and the Princes inhabiting the borders of the Red

Sea, it was agreed, in ancient times, that the former

should not enter that sea with any ship of war, nor with

more than one merchant ship. In the Same manner, in

the time of Cimon, the Persians were bound by a treaty,

made with the Athenians, not to sail with any ship of

war between the Cyanean rocks and the Chelidonian

islands; a prohibition, which, after the battle of Salamis,

restricted any Persian armed vessel from sailing between

Phaselis and the above named rocks. In the one year's

truce of the Peloponnesian war, the Lacedaemonians

were prohibited from sailing with any ships of war what-

ever, or indeed with any other ships of more than twenty

tons burden. And

in

the first treaty, which the Romans,

immediately after the expulsion of their kings, made

with the Carthaginians, it was stipulated that neither the

Romans, nor their allies should sail beyond the pro-

montory of Pulchrum, except they were driven thither

by stress of weather, or to avoid being captured by an

enemy. But in either case they were to take nothing

more than necessaries, and to depart before the expira-

tion

of

five days. And in the second treaty, the Romans

were prohibited from committing any acts of piracy, or

even from trading beyond the promontory of Pulchrum,

Massia and Tarseius.

In a treaty

of

peace between the Illyrians and Romans,

the latter required that they shoul6 not pass beyond the

Lissus with more than two frigates, and those unarmed.

In the peace with Antiochus, he was bound not

to

sail

within the capes of Calycadnius and Sarpedon, except

with ships carrying tribute, ambassadors, or hostages.

Now the instances alluded to do not prove the actual oc-

cupancy of the sea,

or

the right of navigation. For

it

may happen that both individuals and nations may grant

as a matter of favour or compact, not only what they

have a competent right to dispose of, but that which is

the common fight of all men as well as of themselves.

When this happens, we may say as Ulpian did on a like

occasion, where an estate had been sold with a reserva-

tion, that the purchaser

should

not

fish

for Tunny to the

x06

HUGO

GROTIUS

predjudice

of

the seller. He observed that the sea could

not

be

rendered subject to a service, but

still

the

purchaser and those who succeeded to his possession,

were bound in honour to observe that part of the con-

tract.

VII. Whenever a river has changed its course, dis-

putes have arisen between neighboring states to decide

whether such an alteration creates any change in the

adjoining territories, and to whom any addition of land

occasioned by that change accrues. Disputes which must

be settled according to the nature and manner of such

acquisition. Writers, who have treated

of

the division

of land, have described

it

as of a threefold nature: one

kind they name

DIVIDED

and

ASSIGNED

land, which Fron-

tinus the Lawyer calls

LIMITED,

because

it

is marked out

by artificial boundaries. By land

ASSIGNED,

is

meant that

which has been appropriated to a whole community, com-

prehending a certain number of families; a hundred for

instance: from whence

it

has derived that name. And

those portions are called hundreds. There is another di-

vision called

ARCIFINIUM,

which is applied when the land

is

defended against an enemy by the natural boundaries

of

rivers

or

mountains. These lands Aggenus Urbicus

calls

OCCUPATORY,

being such as have been occupied

either by reason

of

their being vacant,

or

by the power

of conquest. In the two first kinds of lands, because

their extent and bounds are fixed and determined, though

a

river should change its course, it occasions no change

of territory, and what is added by alluvion will belong

to the former occupant.

In arcifinious lands, where the bounds are formed by

nature, any gradual change in the course

of

the river

makes

a

change also in the boundaries of territory, and

whatever accession is given by the river to one side,

it

will belong to the possessor

of

the land on that side.

Because the respective nations are supposed originally to

have taken possession

of

those lands, with an intention

of

making the

MIDDLE

of

that river, as a natural boun-

dary, the line

of

separation between them. Thus Taci-

tus in speaking of the Usipians and Tencterians, who

border on the Cattians, says, ((their territory lies on the

banks of the Rhine, where that river, still flowing

in

one

regular channel, forms a sufficient boundary.”

VIII.

Decisions like those above can only take place in

instances, where the river has not altered its channel.

THE

RIGHTS OF WAR

AND

PEACE

'

107

For

a

river, dividing territories,

is

not to be considered

barely as

SO

much water, but as water flowing in a

PAR-

TICULAR

CHANNEL,

and inclosed

WITHIN

CERTAIN

BANKS.

For

which reason an addition, a decrease,

or

such a

change of small portions, as leaves the ancient appear-

ance, upon the whole, nearly the same, allows

us

to consider the river as still the same. But

if

the

whole face of the river

is

changed, the case will be

entirely altered.

For

as a river may be entirely destroyed

by the erection of dams upon the higher parts of its

stream,

or

by digging canals, which carry off its waters

in another direction:

so

by the desertion of its old chan-

nel, and breaking out for itself another course, it will not

continue to be same river

it

was before, but will be com-

pletely a new one. In the same manner if a river has

been dried up, the middle of its channel will remain

as

the boundary between neighbouring states, who in taking

possession of the neighbouring territory originally in-

tended the middle of such a river to be the line of sep-

aration, and under all changes to preserve the same as a

permanent limit. But in doubtful cases, the territo-

ries bordering upon a river ought to be considered

as

arcifinious, because nothing can be a more apt mark

of

distinction than those impassable bounds assigned by na-

ture. It very seldom indeed happens, that the artificial

or

civil admeasurements of territory can be regulated by

such natural bounds, as they are, in general, the effect

of original acquisition, or have been ceded by treaty.

IX.

Although in doubtful cases, it has been said that

the territories on each side of a river are determined by

the middle of the channel; yet

it

may happen, and has

happened, that the sole right to a river may belong to

the territories on one side of it. Because that on the

opposite side was of later occupancy, and subsequent to

the possession of that river by the other power:

or

be-

cause this sole right may have been

so

settled by treaty.

x.

It

is

not unworthy of observation that things which

have had an owner, but have ceased to have one, become

subject to the right by original aquisition. They are sup-

posed to have been abandoned from the want of an'

owner, and therefore have returned

to

the original state

of common stock. But at the same time

it

is

proper to

observe, that some times the original acquisition may have

been made by a people

or

their sovereign, in such

a

manner

as

to give them

or

him not only those pre-emi-

Io8

HUGO

GROTIUS

nent rights which constitute prerogative, but also the

full

title

of

property.

And this property again may be divided into smaller

grants, and those again subdivided into other portions,

to be held as dependent upon the original grantor, the

Sovereign, or the Lord. Though the land may not be

held by base service,

or

vassalage, yet

it

is possessed by

some conditional tenure. For things are occupied by

many kinds

of

right; among which may be reckoned the

right of a person who expects property to be left to him

under the condition of a trust. Seneca says, that an

owner's being debarred from selling his lands, committing

waste upon them,

or

even making improvements, is not

to be taken as a proof that the property

is

not his. For

that is a man's own, which he holds under any certain

conditions. Since then property distributed in the manner

above named

is

held

of

the sovereign, or of some inter-

mediate Lord, who himself

is

tenant of the sovereign, it

follows that any thing which wants an owner does not

become the property

of

him, who can first seize it, but

reverts

to

the state or to the sovereign,

CHAPTER

IV.

TITLE

TO

DESERT

LANDS

BY OCCUPANCY,

POSSESSION,

AND

PRESCRIPTION.

Why

Usucaption or Prescription cannot subsist between independent

States, and Sovereigns- hng possession alledged as

a

ground

of

right- Inquiry into the intentions

of

men, which arc not to

be

judged

of

by words alone- Intention to be judged

of

by

acts-

Intentions also

to

be judged

of

by

omissions-How far

length

of

time, silence, and non-possession, may confirm the conjecture

of

an abandoned right

-

Time immemorial generally thought

to

bar

any claim-What constitutes time immemorial-Objections to

a

presumed desertion

of

property, considered without any conjecture,

time immemorial appeirs to transfer and constitute

a

property-

Inquiry

whether persons yet unborn may

thus

be

deprived

of

their

right

-

Rules

of

civil law respecting Usucaption and Prescription

as

applied to the case

of

Sovereign Princes, explained.

I.

A

GREAT

difficulty arises here respecting the right

to property by uninterrupted possession for any certain

time. For though time is the great agent, by whose

motion all legal concerns and rights may be measured

and determined, yet

it

has no effectual power of itself

to create an express title to any property. Now those

rights were introduced by the civil law; and it is not

their long continuance, but the express provisions of the

municipal law, which gives them their validity. They

are of no force therefore, in the opinion

of

Vasquez,

between two independent nations or sovereigns, or be-

tween a free nation and a sovereign: between a sovereign

and an individual who is not his subject, or between

two subjects belonging to different kings or nations.

Which indeed seems true; and

is

actually the case; for

such points relating to persons and things, are not left

to the law of nature, but are settled

by

the respective

laws of each country.

As

the unqualified admission of

this principle would lead to great inconvenience, and

prevent the disputes of kings and nations respecting the

bounds of territory from ever being adjusted; in order

to eradicate the seeds of perpetual warfare and confusion,

so

repugnant to the interests and feelings of every people;

the settlement

of

such boundaries

is

not left

to

the claims

-

.

(10s)

I10

HUGO

GROTIUS

of prescriptive right; but the territories of each contend-

ing party are, in general, expressly defined by certain

treaties.

11.

To

disturb any one in the actual and long pos-

session of territory, has in all ages been considered

as

repupant to the general interests and feelings of man-

kind. For we find in holy writ, that when the King of

the Ammonites demanded the lands situated between the

fivers Amon and Jabok, and those extending from the

deserts of Arabia to the Jordan, Jepthah opposed

his

pretentions by proving his own possession of the same

for three hundred years, and asked why he and his an-

cestors had for

so

long a period neglected to make their

claim. And the Lacedaemonians, we are informed by

Isocrates, laid

it

down for

a

certain rule admitted among

all nations, that the right to public territory

as

well as

to private property was

so

firmly established by length

of time, that it could not be disturbed

;

and upon this

ground they rejected the claim of those who demanded

the restoration of Messena.

Resting upon a right like this, Philip the Second was

induced to declare to Titus Quintius, ((that he would re-

store the dominions which he had subdued himself, but

would upon

no

consideration give up the possessions

which he had derived. from his ancestors by

a

just and

hereditary title. Sulpitius, speaking against Antiochus,

proved how unjust

it

was in him to pretend, that be-

cause the Greek Nations in Asia had once been under

the subjection of his forefathers, he had a right

to

revive

those claims, and to reduce them again to a state of serv-

itude. And upon this subject two historians, Tacitus and

Diodorus may be referred to; the former of whom calls

such obsolete pretentions, empty talking, and the latter

I

treats them

as

idle tales and fables. With these opinions

Cicero, in his 2nd book

of

Offices, agrees, asking ((what,

justice there can be in depriving an owner of the land,

which he has for many ages quietly possessed

?

)’

111.

Can

it

be said, in order to justify the disturbance

of long enjoyed possessions, that the rightful owner

INTENDED

to

assert his claim, when he never manifested

such intention by any outward visible act? The effect

of right which depends upon

a

man’s intentions can never

follow from

a

bare conjecture

of

his will, unless he has

declared and proved

it

by some express and visible act.

For

actions being

the

only

evidence

of

intentions,

THE

RIGHTS

OF

WAR

AND PEACE

1x1

intentions can never

of

themselves alone without such acts

be the object

of

human laws.

No

conjectures indeed

respecting the acts of the mind can be reduced to mathe-

matical certainty, but only to the evidence of probabil-

ity at the utmost. For men by their words may

express intentions different from their real ones, and by

their acts counterfeit intentions which they have not.

The nature of human society, however, requires that all

acts of the mind, when sufficiently indicated, should be

followed by their due effects, Therefore the intention,

which has been sufficiently indicated,

is

taken for

granted against him who gave such indication.

IV. But to proceed to proofs derived from actions.

A

thing

is

understood to be abandoned, when it is cast away;

except

it

be under particular circumstances, as throwing

goods overboard in a storm to lighten a ship, where the

owner is not supposed

to

have abandoned all intention of

recovery, should it ever be in his power. Again, by giv-

ing up or cancelling a promissory note, a debt is deemed

to be discharged. Paulus the Lawyer, says, a right to

property may be renounced not only by words, but also by

actions, or any other indication of the will. Thus, if an

owner knowingly make a contract with any one who is in

possession, treating him as

if

he were the rightful pro.

prietor, he is naturally supposed to have relinquished his

own pretensions. Nor is there any reason, why the same

rule may not take place between sovereign princes, and

independent states, as between individuals. In the same

manner, a Lord by granting certain privileges to his

Vassal, which he could not legally enjoy without a release

from his former obligations, was supposed by such act to

have given him his freedom.

A

power derived not from

the civil law only, but from the law of nature, which

allows every man to relinquish what

is

his own, and from

a

natural presumption that a person designed to do the

act which he has given manifest proofs of his intention

to do. In this sense, Ulpian may be rightly understood,

where he says, that

ACCEPTILATION

or

the verbal discharge

of a debt is founded upon the law of nations.

V. Even omissions, taking all proper circumstances into

consideration, come under the cognizance of the law.

Thus the person, who knowing of an act, and being pres-

ent at the commission of it, passes

it

over in silence,

seems to give his consent to it: this was admitted by the

Mosaic Law. Unless indeed it can be shewn 'that the

112

HUGO

GROTIUS

same person was hindered from speaking either by fear

or some other pressing circumstance. Thus a thing is

accounted as lost when all hope of recovering

it

is

given

up;

as

for instance, if a tame animal, which was in our

possession, be seized and carried

off

by a wild beast.

Goods

too lost by shipwreck, Ulpian says, cease to be

con-

sidered as our own, not immediately, but when they are

lost beyond all possibility of being reclaimed, and when

no

proofs of the owner’s intention to reclaim them can

be discovered.

Now the case is altered, if persons were sent to inquire

after the lost goods, or property, and a reward was

promised to the finder. But if a person knows his prop-

erty to be in the possession of another, and allows it to

remain

so

for a length of time, without asserting his

claim, unless there appear sufficient reasons for his silence,

he is construed to have entirely abandoned all pretentions

to the same. And

to

the same purpose he has said else-

where, that a house is looked upon to be abandoned on

account of the long silence of the proprietor.

The Emperor Antoninus Pius, in one of his rescripts,

said there was but little justice in claiming interest upon

money after a long period; for the length

of

time elapsed

was an indication that the debtor had been excused from

payment, from some motive of kindness.

There appears something similar to this in the nature of

custom. For apart from the authority of civil laws, which

regulate the time and manner

of

custom, and its intro-

duction,

it

may arise from the indulgence of a sovereign

to a conquered people. But the length of time from

which custom derives the force of right, is not defined,

but left to the arbitrary decision of what is sufficient to

indicate general consent. But for silence to be taken as

a valid presumption that property is deserted, two things

are requisite: it must be a silence with a knowledge of

the fact, and with a perfect freedom of will in the person

concerned. For a silence founded in ignorance can have

no

weight; and where any other reason appears, the pre-

sumption of free consent must fail.

VI.

Although the two requisites already named may be

produced, yet other reasons have their weight; among

which length of time is not the least important. For in

the first place, it can scarcely happen, that for a great

length

of time a thing belonging to any one should not

some way or other come to his knowledge,

as

time might

THE RIGHTS

OF

WAR

AND

PEACE

1x3

supply many opportunities. Even if the civil law did not

interpose to bar remote pretensions, the very nature of

things would shew the reasonableness of a shorter period

of limitation being allowed to present than

to

absent

claimants. If impressions of fear were pleaded by any

one in excuse, yet their influence would not be of per-

petual duration, and length of time would unfold various

means of security against such fears, either from resources

within himself,

or

from the assistance of others. Escaping

beyond the reach of him he dreaded, he might protest

against his oppression, by appealing to proper judges and

arbitrators.

VII. Now as time immemorial, considered in a moral

light, seems to have no bounds, silence for such a length

of time appears sufficient to establish the presumption

that all claim to a thing is abandoned, unless the strongest

proofs to the contrary can be produced. The most able

Lawyers have properly observed, that time according to

the memory of man is not an hundred years, though

probably it may not fall far short of that space.

For

a

hundred years are the term beyond which human exist-

ence seldom reaches

;

a space, which in general com-

pletes three ages

or

generations of men. The Romans

made this objection to Antiochus, that he claimed cities,

which neither he himself, his father, nor his grandfather

had ever possessed.

VIII. From the natural affection which all men have

for themselves, and their property, an objection may be

taken against the presumption of any one’s abandoning

a thing which belongs to him, and consequently negative

acts, even though confirmed by a long period of time,

are not sufficient to establish the above named conjec-

ture.

Now considering the great importance deservedly

attached to the settlement of CROWNS, all conjectures

favourable to the possessors ought to be allowed.

For

if

Aratus of Sicyon thought it a hard case, that

PRIVATE

possessions of fifty years’ standing should be disturbed,

how much weightier is thkt maxim of Augustus, that it

is the character

of

a good man and a good subject to

wish for

no

change in the present government, and,

IN

THE

WORDS,

WHICH

THUCYDIDES

HAS

ASSIGNED

TO

AL-

CIBIADES,

to support the constitution, under which he has

been born

?

But

if

no

such rules in favour of possession

could

be adduced, yet a more weighty objection might

8

114

HUGO

GROTIUS

be found against the presumption, drawn from the

in-

clination of every one to preserve his own right, which

is

the improbability of one man’s allowing another to

usurp

his property for any length of time, without de-

claring and asserting his own. right.

IX.

Perhaps it may reasonably be said, that this mat-

ter does not rest upon presumption only, but that

it

is a

rule, introduced by the voluntary law of Nations, that

uninterrupted possession, against which no claim has

been asserted, will entirely transfer such property to the

actual possessor. For it is most likely that all nations

by consent gave their sanction to such a practice, as

conducive to their common peace. The term uninter-

rupted possession therefore has been very properly used

to signify, as Sulpitius says in Livy, ((that which has

been held by one uniform tenour of right, without inter-

mission.” Or as the same author, in another place, calls

it,

((perpetual possession, that has never been called in

question.)’ For a transitory possession creates no title.

And

it

was this exception which the Numidians urged

against the Carthaginians, alleging that as opportunity

offered, sometimes the Kings of the Numidians had ap-

propriated to themselves the disputed possessions, which

had always remained in the hands of the stronger

party.

X.

But here another question, and that of considerable

difficulty, arises, which is, to decide, whether, by this

desertion, persons yet unborn may be deprived of their

rights.

If

we maintain that they

MAY

NOT,

the rule al-

ready established would be

of

no avail towards settling

the tranquillity of kingdoms, and security

of

property.

For in most things some thing is due to the interests of

posterity. But if we affirm that they

MAY,

it then seems

wonderful that silence should prejudice the rights of

those, who were unable to speak, before they had any

existence, and that the act

of

OTHERS

should operate to

their injury.

To

clear up this point, we must observe

that no rights can belong to a person before he has any

existence, as, in the language

of

the schools, there can

be no accident without a substance. Wherefore if a

Prince, from urgent motives of policy, and for the ad-

vantage of his own native dominions, and subjects, should

decline to accept an additional sovereignty,

or

for the

same reasons, should relinquish that, which he had

al-

ready accepted, he would not be charged with injuring

THE

RIGHTS

OF

WAR

AND

PEACE

*

‘5

his heirs and successors, then unborn, who could have

no

rights before they had a natural existence.

Now

as a sovereign may

EXPRESSLY

declare

a

change

of

his will respecting such dominions,

so

that change

may, in certain cases, be implied without such declara-

tion.

In consequence

of

such

a

change either expressed or

implied, before the rights of heirs and successors can be

supposed to have any existence, the possession may be

considered as entirely abandoned. The case here has

been considered according to the

LAW

OF

NATURE:

for the

civil law, among other fictions, introduced that of the

law’s personating those, who are not yet in being, and

so

preventing any occupancy from taking place to their

prejudice; a regulation of the law established upon no

slight grounds in order to preserve estates in families,

although every means of

PERPETUATING

property

to

indi-

viduals, which prevents its transfer from hand to hand,

may in some measure be detrimental to the public in-

terest. From whence it is a received opinion, that length

of time will give

a

property in those fees, which were

originally conveyed, not by right of succession, but by

virtue of primitive investiture. Covarruvias, a lawyer of

great judgment, supports this opinion with the strongest

arguments in favour of primogeniture, and applies

it

to

estates left in trust.

For

nothing can prevent the civil

law from instituting a right, which, though it cannot be

lawfully alienated by the act of one party without con-

sent of the other, yet, to avoid uncertainty in the tenure

of present proprietors, may be lost by neglect of claim

for a length of time. Still the parties thus deprived may

maintain a personal action against those, or their heirs,

through whose neglect their right has been forfeited.

XI.

It

is

an

inquiry

of

importance whether the law of

usucaption and prescription,

if

it

prevail in a prince’s

dominions, can be applied to the tenure of the crown,

and all its prerogatives. Many legal writers, who have

treated of the nature of sovereign power according to the

principles of the Roman civil law, seem to affirm that

it

may be

SO

applied. But this is an opinion to which we

cannot accede in its full extent. For to make a law

binding upon any one, it is requisite that the legislator

should possess both power and will. A legislator

is

not

bound by his law, as by the irrevocable and unchange-

able controul

of

a superior. But occasions may arise that

I

16

HUGO GROTIUS

will

demand

an

alteration or even

a

repeal of the

law

which he has made. Yet a legislator may be bound by

his own law, not directly as a legislator, but as an indi-

vidual forming part of the community: and that too

according to natural equity, which requires that all the

component parts should bear a reference to the whole.

We find in holy writ, this rule observed by Saul in the

beginning of his reign.

Now that rule does not take place here.

For

we are

considering the lawgiver, not as

a

part but

as

the

REP-

RESENTATIVE

and

SOVEREIGN

of the whole community. Nor

indeed can any such intention in the lawgiver be pre-

sumed to have existed.

For

legislators are not supposed

to comprehend themselves within the rule

of

the law,

except where the nature and subject

of

it are general.

But sovereignty is not to be compared with other things;

it

so

far surpasses them in the nobleness of its end, and

the dignity

of

its nature.

Nor

is any civil law to be

found which either does,

or

designs to comprehend sov-

ereign power within the rules of prescription.

CHAPTER

IX.*

IN

WHAT

CASES

JURISDICTION

AND

PROPERTY

CEASE.

Jurisdiction and property cease, when the family of the owner

has

become extinct-

In

what manner the rights of

a

people may

be-

come extinct

-

A people becomes extinct when its essential

parts

are destroyed-A people does not become extinct by emigration-

The existence of separate states

not

destroyed by

a

federal

union.

I.

and

11.

AFTER

the preceding inquiries into the man-

ner in which private property as well as sovereign power

may be acquired and transferred, the manner,

in

which

they cease, naturally comes next under consideration.

It

has been shewn before that the right to property may

be''

lost by neglect; for property can continue no longer than

while the will of ownership continues. There

is

also an-

other manner in which property may cease to exist, with-

out any express or implied alienation: and that

is

where

the family either

of

a sovereign, or an owner, becomes

extinct, a contingency for which provision must be made

somewhat similar to a succession to the property

of

one

who dies intestate. Wherefore

if

any one die, with-

out any declaration of his will, and have

no

relations

by

blood, all the right, which he had, becomes extinct, and

reverts,

if

a sovereign, to the hands

of

the nation, except

where express provisions

of

law have been made to the

contrary.

I

111.

The same mode

of

reasoning applies to

a

nation.

Isocrates, and after him the Emperor Julian, has said that

states are immortal, or may be

so.

For a people

is

one

of

that kind

of

bodies which are formed

of

distinct

parts, following each other in regular succession, and

supplying the place

of

the deceased. This body goes

under one name, forming, as Plutarch says, one constita-

*The translation proceeds from the fourth to the ninth Chapter

of

the Second

book

of the

original.

The intermediate chapters, being

chiefly

a

repetition of the author's former arguments, respecting the

rights

of

seas

and rivers, and other kinds

of

dominions; and

that

relating

to

the

rights of

persons,

being

so

fully treated

in

the

first

volume

of

Judge Blackstone's Commentaries, it seemed unnecessary

to give them in the present work."TRANsLATOR,

(117)

I

18

HUGO

GROTIUS

tion

;

or,

in the language of Paulus the Lawyer, one

spirit. Now the spirit

or

constitution in a people is the

full and perfect harmony of civil life, from which ema-

nates the sovereign power, the very

soul

of all govern-

ment, and, as Seneca says, the vital breath which

so

many

thousands draw.

These artificial bodies bear a close resemblance to the

natural body, which, notwithstanding the alteration of its

component particles, loses not its identity,

so

long as the

general form remains. And therefore in the passage of

Seneca, where he says, that no one is the same in his

old age that he was in his youth, he means only as to

natural substance.

In

the same manner Heraclitus, as

cited by Plato in Cratylus, and Seneca in the place

already quoted, has said, that we cannot descend

TWICE

into the same river. But Seneca afterwards corrects

himself, adding, that the river retains its name, though

the watery particles of which

it

is composed are perpet-

ually changing.

So

Aristotle, too, in comparing nations

to

rivers,

has said that the rivers are always called by

the same name, though their several parts are fluctuat-

ing every moment. Nor is it the name alone which con-

tinues, but that principle also which Conon calls the

constitutional system of the body, and Philo the spirit,

that holds it together.

So

that a people, as Alphenus

and Plutarch, in speaking of the late, but unerring ap-

proach of divine vengeance, maintain, though not one

of

its members of a former period be now living, is the

same at present that it was a hundred years ago, as long

as the spirit, which first framed and afterwards kept the

body together, preserves its identity.

Hence has originated the custom, in addressing a peo-

ple, of ascribing to them, who are now living, what hap-

pened to the same people many ages before; as may be

seen both in profane historians, and in the books of holy

writ.

So

in Tacitus, Antony the First serving under

Vespasian, reminds the soldiers of the third legion

of

,what they had done in former times, how under Mark

Antony they had beaten the Parthians, and under

Cor-

bulo the Armenians. There was more of prejudice, there-

fore, than truth in the reproach, which Piso cast upon

the Athenians of his own time, refusing to consider them

as Athenians since they had become extinct by

so

many

disasters, and were nothing more than a base mixture

of

all nations

of

the earth. We say there was more

of

THE RIGHTS

OF

WAR

AND PEACE

119

prejudice than truth in this reproach. For though such

a mixture might diminish the dignity,

it

could not de-

stroy the existence of a people. Nor was he himself

ignorant of this. For he reproaches the Athenians

of

his own day with their feeble efforts

in

former times

against Philip of Macedon, and their ingratitude to their

best friends, Now as a change of its component parts

cannot destroy the identity of a people, not even for a

thousand years or more;

so

neither can it be denied that

a people may lose its existence in two ways; either

by

the extinction of all its members,

or

by the extinction

of its form and spirit.

IV.

A

body is said to die, when its essential parts,

and necessary form

of

subsistence are destroyed. To the

former case may be referred the instance of nations

swallowed up by the sea, as Plato relates, and others

whom Tertullian mentions: or

if

a people should be de-

stroyed by an earthquake, of which there are many

instances in history, or should destroy themselves, as the

Sidonians and Saguntines did. We are informed by Pliny,

that in ancient Latium, fifty-three nations were destroyed

without a single trace of them remaining.

But what, it may be said will be the case,

if

out of

such a nation

so

few remain that they cannot form a

people

?

They will then retain that property, which they

had before as private persons, but not in a public ca-

pacity. The same is the case with every community.

V.

A people loses its form, by losing all or some of

those rights, which

it

had in common; and this happens,

either when every individual is reduced to slavery, as the

Mycenaeans, who were sold by the Argives; the Olyn-,

thians by Philip, the Thebans by Alexander, and the

Brutians, made public slaves by the Romans: Or when,

though they retain their personal liberty, they are de-

prived

of

the rights of sovereignty. Thus Livy informs

us

respecting Capua, that the Romans determined, though

it might be inhabited as

a

city, that there should be no

municipal body, no senate, no public council, no magis-

trates, but that deprived of political deliberation, and

sovereign authority, the inhabitants should be considered

as

a

multitude; subject to the jurisdiction of a Praefect

sent from Rome. Therefore Cicero, in his first speech

against Rullus, says that there was no image of a repub-

lic left at Capua. The same may be said of nations

re-

duced to the form of Provinces, and of those subjugated

I20

HUGO

GROTIUS

by

another power; as Byzantium was to Perinthus,

by

the Emperor Severus, and Antioch to Laodicea, by

Theodosius.

VI.

But

if

a nation should emigrate, either spontane-

ous1y,

on

account of scarcity or any other calamity, or if

by compulsion, which was the case with the people

of

Carthage in the third Punic war, while she retains her

form,

she does not cease to be a people

;

and still less

so,

if only the walls of her cities be destroyed, and there-

fore when the Lacedaemonians refused to admit the Mes-

senians to swear to the peace of Greece, because the

walls of their city were destroyed,

it

was carried against

them in the General Assembly of the Allies.

Nor does it make any difference in the argument,

whatever the form of government may be, whether regal,

aristocratical, or democratical. The Roman people for

instance was the same, whether under kings, consuls, or

emperors. Even indeed under the most absolute form,

the people is the same that it was

in

its independent

state, while the king governs it as head of that people,

and not of any other. For the sovereignty which resides

in the king as the head, resides in the people likewise

as the body

of

which he is the head; and therefore in an

elective government, if the king or the royal family

should become extinct, the rights of sovereignty, as it

has been already shewn, would revert to the people.

Nor is this argument overthrown by the objection

drawn from Aristotle, who says that, if the form of

government

is

changed, the state no longer continues

to

be the same, as the harmony

of

a piece of music is en-

tirely changed by

a

transition from the Doric to the

Phrygian measure.

Now it is to be observed, that an artificial system may

possess many different forms, as in an

army

under one

supreme commander there are many subordinate parts,

and inferior powers, while in the operations of the field

it appears but as one body. In the same manner, the

union

of the legislative and executive powers in

a

state

gives it the appearance of one

form,

while the distinc-

tion between subject and sovereign, and their still mutual

relation give it another. The executive power

is

the

politician’s ooncern; the judicial, the lawyer’s. Nor did

this escape the notice of Aristotle. For he says

it

belongs to a science different from that of politics to

determine whether, under a change

in

the form of

gov-

THE

RIGHTS

OF

WAR

AND

PEACE

I21

\

ernment, the debts contracted under the old system

ought to be discharged by the members

of

the new.

He does this, to avoid the fault which he blames in

many other writers, of making digressions from

one

subject to another.

It

is evident that a state, which from a commonwealth

has become a regal government,

is

answerable for the

debts incurred before that change. For

it

is the same

people, possessing all the same rights, and powers, which

are now exercised in a different manner, being

no

longer

vested in the body, but in the head. This furnishes a

ready answer to a question some times asked, which

is,

what place in general assemblies of different states, ought

to be assigned to a sovereign, to whom the people of

a

commonwealth have transferred all their power

7

Un-

doubtedly the same place which that people or their

representatives had occupied before in such councils.

Thus in the Amphictyonic council, Philip

of

Macedon

succeeded to the place of the Phocensians.

So,

on the

other hand, the people of a commonwealth occupy the

place assigned to sovereigns.

VIII.* Whenever two nations become united, their

rights, as distinct states, will not be lost, but will be

communicated to each other. Thus the rights of the

Albans in the first place, and afterwards those of the

Sabines, as we are informed by Livy, were transferred

to the Romans, and they became one government. The

same reasoning holds good respecting states, which are

joined, not by a federal

UNION,

but by having one

sov-

ereign for their head.

IX.

On the other hand,

it

may happen that a nation,

originally forming but one state, may be divided, either

by mutual consent, or by the fate of war; as the body

of the Persian Empire was divided among the successors

of Alexander. When this is the case, many sovereign

powers arise in the place of one, each enjoying its inde-

pendent rights, whatever belonged to the original state,

in common, must either continue to be governed as a

common concern, or be divided in equitable proportions.

To

this head may be referred the voluntary separation,

which takes place when a nation sends out colonies.

For

*Section

VI1

of

the

original

is

omitted

in

the transl&tion.-Tiu~s-

LATOR

x32

HUGO

GROTIUS

thus a new people as it were is

formed,

enjoying their

own

rights; and as Thucydides says, sent out not upon

terms

of

slavery, but equality, yet still owing respect

and obedience

to

their mother-country. The same writer,

speaking

of

the second colony sent by the Corinthians

to

Epidamnus, says, “they gave public notice that such as

were willing

to

go should enjoy equal privileges with

those that staid at home.”

CHAPTER

X.

THE

OBLIGATION

ARISING

FROM

PROPERTY;

Origin and nature of the obligation to restore what belongs to an-

other

-

Obligation to restore to the rightful owner the profits that

have accrued from the unjust possession of his personal or real

property-A bona-fide possessor not bound to restitution

if

the

thing has perished

-

Such bona-fide possessor bound to the restitu-

tion of the profits remaining in his hands

-

Bound to make repra-

tion for the consumption occasioned by his possession

-

A possessor

not

bound to make a recompence for

a

gift, with an exception-

The sale of any thing that has been bought, obliges the seller

to

make restitution, with a certain exception

-

In

what cases

a

bo=-

fide purchaser

of

what belongs to another may retain the price, or

a

part

of

it -He who

has

purchased

a

thing

of

one who is

not

the real owner, cannot return it to that seller -The possessor

of

a

thing whose real owner

is

unknown, not bound

to

give

it

up to any one- A person not bound to restore money received

upon

a

dishonest account, or for service done-Opinion that

the property of things valued by weight, number and measure,

may be transferred without consent of the owner, refuted.

I.

HAVING

explained in the preceding part the nature

and rights

of

property,

it

remains for

us

to consider the

obligation which we incur from thence.

Now

this obligation proceeds from things either in

existence, or not in existence, comprehending, under the

name of things, the right also over persons, as far as is

beneficial

to

us.

The obligation, arising from things in

existence, binds the person, who has our property in his

power, to do all he can to put

us

again into possession

of

it. We have said to do all he can: for no one is bound

to an impossibility, nor to procure the restoration

of

a

thing at his

own

expence. But he

is

obliged

to

make

every discovery which may enable another to recover his

own property.

For

as in a community of things, it was

necessary that a certain equality should be preserved, to

prevent one man from having an undue share

of

the

common stock;

so

upon the introduction

of

property,

it

became, as

it

were, a kind

of

established rule of society

among the owners, that the person, who had in his

POS-

session anything belonging to another should restore

it

to the

lawful

proprietor. For

if

the right of

property

(123)

124

HUGO GROTIUS

extended no farther than barely to enable the owner to

make a demand of restitution without

ENFORCING

it

by

LEGAL

PROCESS,

it would rest upon a very weak foun-

dation, and scarce be worth the holding. Nor does it

make any difference, whether a person has fairly

or

fraud-

ulently obtained possession of a thing not belonging to

him. For he is equally bound to restore it, both

by

the

positive obligations of law, and by the .principles of

natural justice. The Lacedaemonians had nominally

cleared themselves of the crime, by condemning Phaebidas,

who, in violation of their treaty with the Thebans, had

siezed upon the citadel of Cadmea, but in reality they

were guilty of injustice, by retaining the possession.

And

Xenophon has remarked that, such a singular act

of

injustice was punished by the signal providen’ce of

God,

For the same reason Marcus Crassus, and Quintus Hor-

tensius, are blamed for having retained part of an

inheritance left them by a will, the making

of

which had

been procured upon false pretences, but in the management

of

which they had no share. Cicero blames them, because

it is understood to be settled by general agreement, that all

men are to restore what they are possessed of! if another is

proved to be the rightful owner.

A

principle by which prop-

erty is firmly secured, and upon which all special contracts

are founded, and any exceptions to this rule, contained

in them, must be expressly named as such. This throws

light upon the passage of Tryphoninus. ((If a robber,

says

lie,

has spoiled me of

my

goods, which he has de-

posited with Seius, who knows nothing of the fact; the

question is, whether he ought to restore them to the

robber or to me. If we consider him as giving and

and receiving on his own account,

GOOD

FAITH

requires

that the deposit should be restored to him who gave it.

If

we consider the equity

of

the whole case, including all

the persons concerned in the transaction, the goods should

be restored to me, as the person unjustly deprived of

them.

))

And he properly adds,

((

I prove i! to be strict

justice to assign to every one his due, without infringing

on the more just claims of another.” Now it has been

shewn that the justest title on which any one can claim,

is that which is coaeval with the property itself. From

whence the principle laid down by Tryphoninus, that if

any one unknowingly received goods as a deposit, and

afterwards discovers them to be his own, he is not bound

to

restore them. And the question, which the same

THE

RIGHTS

OF

WAR

AND

PEACE

125

author puts a little before respecting goods deposited by

one, whose property had been confiscated,

is

better settled

by this principle, than by what he says elsewhere

on

the

utility of punishment.

For

as to the nature of property,

it

makes

no

difference, whether

it

acses from the law

of

nations, or from the civil law; as

it

always carries

with it peculiar qualities, among which may be reckoned

the obligation, under which every possessor lies to restore

a thing to its rightful owner. And hence

it

is said by

Martian, that according to the law of nations, restitution

may be demanded, of those, who have

no.

legal title to

the possession. From the same origin springs the maxim

of Ulpian, that whoever has found a thing belonging to

another,

is

bound to restore it, even without claiming or

receiving

a

reward for finding it. The profits also are

to be restored, with

a

deduction only

of

reasonable

charges.

11.

Respecting things, non-existent, or whose identity

cannot be ascertained,

is

a principle generally received

among mankind, that the person, who has become richer

by that property, of which the rightful owner has been

dispossessed, is bound to make him reparation in propor-

tion to the benefit, which he has derived from his prop-

erty. For the true proprietor may be justly said to have

lost, what

HE

has gained. Now the very introduction

of

property was intended to preserve that equality, which

assigns to every one his own.

Cicero has said, that it

is

contrary

to

natural justice,

for one man to improve his own advantage at the expence

of another, and in another place, that nature does not

allow

us

to increase our resources, riches, and power,

from the spoils of others. There is

so

much of equity

in this saying, that many legal writers have made it the

basis

of

their definitions,

to

supply the deficiency

of

the

strict letter of the law, always appealing to equity as

the most sure and clear rule of action.

If

any one employ

a

slave, as his factor,

to

trade for

him, he is bound by the acts

of

that factor, unless he

has previously given notice that he

is

not to be trusted.

But even if such notice has been given, where the factor

has

a

property in the concern, or the master

a

profit,

the notice shall be deemed a fraud. For, says Proculus,

whoever makes an advantage from the

loss

of

another

is

guilty

of

a fraud; a term implying every thing repugnant

to

natural justice and equity, He, who, at the

instance

I

26

HUGO

GROTIUS

of a mother, has put in bail for her son's advocate, has

no action on the case against the advocate for what

is

called an assumpsit or undertaking. For

it

was not

strictly

his

business, which the advocate managed; the

bail was put in at the

INSTANCE

of the

MOTHER.

Yet

according to the opinion of Papinian, an action on the

case for the assumpsit, or undertaking will lie against

the advocate, because

it

is

with the bailor's money that

he is discharged from the risque of the costs.

So

a wife who has given to her husband money, which

she may by law demand again, has a personal action

of

recovery against him, or an indirect action upon any

thing purchased with the money. Because, as Ulpian

says, it cannot be denied, that the husband has been

made richer by it, and the question is, whether what he

possesses belongs to his wife

?

If

I

have been robbed by my slave, and any one has

spent the money under the supposition that

it

was the

slave's own property, an action may be maintained against

that person, as being unjustly in possession of my prop-

erty. According to the Roman laws, minors are not

answerable for money borrowed. Yet

if

a minor has

become richer by the loan, an indirect action will lie

against him, or,

if

anything, belonging

to

another, has

been pawned and sold by

a

creditor, the debtor should

be released from the debt in proportion to what the

creditor has received. Because, says Tryphoninus, what-

ever the obligation may be, since the money raised

accrued from the debt, it is more reasonable that

it

should redound to the benefit of the debtor than the

creditor. But the debtor is bound to indemnify the pur-

chaser, for it would not be reasonable that he should

derive gain from another's loss. Now

if

a creditor, hold-

ing an estate in pledge for his money, has received from

it rents and profits amounting to more than his real

debt; all above that shall be considered as a discharge

of

so

much of the principal.

But to proceed with other cases. If you have treated

with my debtor, not supposing him to be indebted to

me, but to another person, and have borrowed my money

of him, yog are obliged to pay me; not because

I

have

lent

you

money; for that could only be done by mutual

consent; but because

it

is

reasonable and just, that my

money, which has come into your possession,

should

be

testored to me.

THE RIGHTS

OF

WAR

AND

PEACE

127

The later writers on the law have adduced this kind

of

reasoning in support of similar cases. Thus, for instance,

if

the goods of any one, who has been cast through de-

fault, have been sold,

if

he can make any good exception

to the decision, he shall be entitled to the money arising

from such sale. Again, when any one has lent money

to a father for the maintenance of his son;

if

the

father should become insolvent, he may

bring

an action

against the son, provided the son

is

possessed

of

any

thing through his mother.

These two rules being perfectly understood, there will

be no difficulty in answering the questions ofter proposed

by Lawyers and Theologians on such subjects.

111.

In the first place

it

appears, that a person who

has obtained possession of goods by fair means,

is

not

bound to restitution,

if

those goods have perished, be-

cause they are no longer in his possession, nor has

he

derived any advantage from them. The case of unlawful

possession which

is

left to the punishment of the law

is

entirely out of the question.

IV. In the next place a bona-fide possessor of

a

thing

is bound to a restitution of the fruits

or

profits thereof

remaining in his hand. The

FRUITS

or

PRODUCE

of the

THING

ITSELF

are here meant. For the benefit derived

from a thing owing to the industry bestowed upon it by

the occupier thereof, cannot belong to the thing itself,

though originally proceeding from it. The reason of this

obligation arises from the institution of property. For

the true proprietor

of

a possession is naturally proprietor

of the fruits or produce of the same.

V.

Such possessor

in

the third place is bound

to

make

restitution

of

the thing, or reparation for the consump-

tion of it occasioned by his possession. For he is con-

ceived to have been made the richer thereby.

Thus

Caligula is praised for having, in the beginning

of

his

reign, restored to different Princes along with their

crowns, the intermediate revenues of their kingdoms.

VI. In the fourth place, an occupier of lands, for in-

stance, is not bound to make a compensation for the

produce thereof which he has not reaped. For

if

dis-

possessed, he has neither the thing itself, nor any thing

in the place of it.

VII. In the fifth place, a possessor

who

has

granted

to a third person a thing of which

a

gift

had been made

to himself, is not bound to make a recompence

to

the

x

28

HUGO

GROTIUS

original giver, unless he received

it

under stipulation,

that

if

he granted

it

to a third person, and thereby spared

his own property, he should make

a

return proportionable

to

such gain.

VIII.

Sixthly,

if

any one has sold a thing which he

has bought, he is not bound to restitution

of

more than

the surplus arising from the sale. But

if

he had received

it

under stipulation to sell, he

is

bound to make restitu-

tion of the whole price, unless, in transacting the sale

he has incurred an expence, amounting to the whole

price, which he would not otherwise have done.*

IX.

Seventhly, a bona-fide purchaser of what belongs

to another

is

obliged to make restitution to the real

owner, nor can the price he paid be recovered.

To

this

however there seems to be one exception, which

is,

where

the owner could not have recovered possession without

some expence

;

so

for instance,

if

his property were in

the hands of pirates. For then a deduction may be made

of

as much as the owner would willingly have spent in

the recovery. Because the actual possession, especially

of

a

thing difficult to be recovered, may be ascertained,

and the owner deemed

so

much the richer by such re-

covery.

And

therefore, though in the ordinary course of

law, the purchase of what belongs to one’s self can never

constitute a bargain, yet Paulus the Lawyer says, that

it

may

do

so,

if

it

has been originally agreed that we are

to

pay for the re-possession of what another has belong

ing to

us

in his hands.

Nor is

it

in the least material, whether

a

thing has

been bought with an intention of restoring it to the

owner; in which case, some say, that an action for costs

may be maintained, whilst others deny it. For an action

on

the case, to recover a compensation for business done

arises from the artificial rules of

CIVIL

LAW,

and not solely

*

The following extracts from Blackstone’s Com.

b.

ii.

ch.

xxx.

will

elucidate the meaning

of

our author in this place. ((Sale or

EXCHANGE

is

a

transmutation

of

property from one man to another, in consideration

of

some price

or

recompense

;

for there is

no

sale without

a

recornpence.))

P.

446.

ff

Where the vendor

HATH

in

himself the property

of

the goods sold, he

hath the liberty

of

disposing

of

them to whom ever he pleases,

at

any

time, and in any manner.)) Ibid.

446.

((And

notwithstanding any number of intervening sales,

if

the

origi.

nal

vendor,

who sold without having the property, comes again into

possession

of

the goods, the original owner may

take

them, when

found

in

his hands who was guilty

of

the

first

breach

of

justice? Ibid.

p.

450.

THE

RIGHTS

OF

WAR

AND

PEACE

129

from the simple dictates of natural justice; which are

here the principal subject of inquiry.

Not unlike to this

is

what Ulpian has written

on

funeral

expences, in which he says, that a compassionate judge

will not rigidly regard the bare labour that has been

given, but allowing some relaxation in favour

of

equity,

will shew indulgence to the feelings of human na-

ture.

The same writer, in another place has said, that

if

any

one has transacted my business, not out of regard to me,

but for his own interest, and has incurred expence

on

my account, he may bring an action

on

the case, not for

what he has given, but for what

I

have gained by his

labour and expence.

In

the same manner, owners, by throwing whose goods

overboard a ship has been lightened, may recover a com-

pensation from others whose goods were by that means

saved. Because those persons are considered

so

much

the richer by the preservation of what

would

otherwise

have been lost.

X.

Eighthly, the person tha; has bought a thing of one,

who is not the owner, cannot return it to that seller;

because from the time that the thing came into his pos-

session, he incurred an obligation to restore it to the

lawful owner.

XI. Again,

if

any one is in possession of a thing,

whose real owner is unknown, he

is

not naturally, and

necessarily bound to give it to the poor; although this

may be considered as an act of piety, a custom very

properly established in some places. The reason of which

is founded on the introduction of property. For, in con-

sequence of that, no one except the real owner, can claim

a right to any thing.

To

the person therefore, who can-

not discover such an owner,

it

is

the same as

if

there

really were none.

XII. Lastly, a person

is

not obliged by the law

of

nature to restore money, which has been received upon

a dishonest account,

or

for the performance of a legal

act, to which that person was

of

himself bound. How-

ever it

is

not without reason that some laws have required

restitution in such cases, The reason of this

is,

because

no one

is

bound to part with any thing unless it belongs

to another. But here the property is voluntarily trans-

ferred by the first owner.

The case will be altered,

if

there be any thing iniquitous

9

I

30

HUGO

GROTIUS

in

the manner of acquiring the thing; as

if,

for instance,

it

be

gained by extortion. This gives rise to the obliga-

tion of submitting to penalties, which

is

not immediately

to the present purpose.

XIII.

The present subject may be concluded with a

refutation of Medina’s false opinion, that a property in

things, belonging to another, may be transferred without

consent

*of

the owner; provided the things are such as

are usually valued by weight, number and measure. Be-

cause things

of

that nature can be repaid in kind,

or

by

an equivalent. But this is only, where such a mode

of

repayment has been previously agreed upon

;

or where

it

is

understood to be established by law or custom

;

or

where the thing itself has been consumed, and cannot be

identically restored. But without such consent, either

expressed or implied, or excepting the impossibility just

mentioned, the things themselves must be restored.

CHAPTER

XI.

ON

PROMISES.

Opinion, that the obligation to

fulfil

promises is not enacted

by

the

law of nature, refuted-A bare assertion not binding- A promiser

bound to fulfil his engagements, though

no

right

to

exact the per-

formance

of

them, is thereby conveyed to another-What kind of

promise gives such right-The promiser should possess the right

use of reason-Difference between natural and civil law with respect

to

minors-Promises made under an error, or extorted by fear,

how far binding

-

Promises valid, if

in

the power

of

the promiser

to

perform them-Promise made

upon

unlawful

considerations,

whether binding-Manner of confirming the promises made by

others, and the conduct of Ambassadors who exceed their instruc-

tions, considered

-

Owners of ships, how far bound by the acts

of

the

masters

of

such vessels, and merchants by the acts of their

factors

-

Acceptance requisite to give validity to

a

promise- Prom-

ises sometimes revokable-The power of revoking

a

promise,

explained by distinctions- Burdensome conditions annexed to a

promise "Means of confirming invalid promises- Natural obliga-

tion arising from engagements made for others.

I.

THE

course

of

the subject next leads to an inquiry

into the obligation of promises.* Where the first object,

that presents itself, is the opinion

of

Franciscus Connanus,

a man of no ordinary learning. He maintains an opinion

that the law of nature and of nations does not enforce

the fulfilment of those agreements, which

do

not include

an express contract,+ Yet the fulfilment of them

is

right,

in cases, where, even without

a

promise, the performance

would be consonant to virtue and equity.

In

support

of

his opinion, he brings not only the sayings

of

Lawyers,

but likewise the following reasons. He says, that the

person, who makes, and he who believes, a rash promise,

*

((A promise is in the nature of

a

verbal covenant, and wants noth-

ing but the solemnity of writing and sealing to make it absolutely the

same.

If

therefore it

be

to do any explicit act, it is

an

express

con-

tract

as

much

as

any covenant: and the breach

of

it

is an equal

injury.))

"lackst. Com. b. iii. ch. ix. sect

3.

t

All the reasonings of Grotius,

on

this. and

on

every other point,

are intended to apply not only

to

the transactions

of

individuals, but

pothe

conduct

and affairs of nations.

031)

132

HUGO

GROTIUS

are equally to blame.

For

the fortunes of

all

men

would

be in imminent danger, if they were bound by such

promises, which often proceed from motives of vanity

rather than from a settled deliberation, and are the result

of

a

light and inconsiderate mind. Lastly, the perform-

ance of whatever is any way just in itself, ought to be

left to the free will

of

every one, and not exacted accord-

ing to the rigid rules of necessity. He says that it is

shameful not to fulfil promises; not because

it

is

unjust,

but because it argues a levity in making them.

In support

of

his opinion, he appeals also to the testi-

mony of Tully, who has said, that those promises are not

to be kept, which are prejudicial to the person to whom

they are made, nor,

if

they are more detrimental to the

giver than beneficial to the receiver. But if the perform-

ance of an engagement is begun upon the strength of a

promise, but not finished, he does not require a complete

fulfilment of the promise, but only some compensation to

the party for the disappointment. Agreements, he contin-

ues, have no intrinsic force of obligation, but only what

they derive from the express contracts, in which they

are included, or to which they are annexed, or from the

delivery of the thing promised. From whence arise

actions, on the one side, and exceptions on the other, and

bars to all claims of recovery.

But it is through favour of the laws alone, which give

the efficacay of obligation to what is only fair and equit-

able in itself, that obligatory agreements, such as express

covenants and other things of that kind, derive their force.

Now there is no consistency in this opinion, taken in

the general sense intended by its author. For in the

first place it immediately follows from thence, that there

is no force in treaties between kings and different nations,

till some part of them be carried into execution, espe-

cially in those places, where no certain form

of

treaties

or compacts has been established. But no just reason

can be found, why laws, which are a kind

of

general

agreement among a people, and indeed are called

so

by

Aristotle, and Demosthenes, should be able to give the

force of obligation to compacts, and why the will of an indi-

vidual, doing every thing to bind himself, should not have

the same power; especially where the civil law creates

no

impediment to it, Besides, as

it

has been already said

that the property of a thing may be transferred, where a

sufficient indication of the

will

is

given.

Why

may

we

THE

RIGHTS

OF

WAR

AND

PEACE

I33

not then convey to another the right to claim a transfer

of

our

property to him, or the fulfilment of our engage-

ments, as we have the same power over

our

actions,

as

over our property?

This

is

an opinion confirmed by the wisdom of all ages.

For

as it

is

said by legal authorities, that since nothing

is

so

consonant to natural justice, as for the will of an owner,

freely transferring his property to another, to be confirmed,

so

nothing is more conducive to good faith among men,

than a strict adherence to the engagements they have made

with each other, Thus a legal decision for the payment

of money, where no debt has been incurred, except by

the verbal consent of the party promising,

is

thought con-

formable to natural justice. Paulus the Lawyer also says,

that the law

of

nature and the law

of

nations agree in

compelling a person, who has received credit, to payment.

In this place the word;

COMPELLING,

signifies a moral obli-

gation.

Nor

can what Connanus says be admitted, which

is, that we are supposed to have credit for a full per-

formance of a promise, where the engagement has been

in part fulfilled. For Paulus in this place

is

treating of

an action where nothing is due

;

which action is entirely

void,

if

money has been paid, in any way, whether accord-

ing to the manner expressly stipulated, or any other. For

the civil law, in order to discourage frequent causes of

litigation, does not interfere with those agreements which

are enforced by the law of nature and

of

nations.

Tully, in the

first

book of his Offices, assigns such

force to the obligation of promises, that he calls fidelity

the foundation of justice, which Horace also styles the

sister

of

justice, and the Platonists often call justice,

TRUTH,

which Apuleius has translated

FIDELITY,

and

Simonides has defined justice to be not' only returning

what one has received, but also speaking the truth.

But

to understand the matter fully, we must carefully

observe that there are three different ways of speaking,

respecting things which

ARE,

or

which, it

is

supposed,

WILL

be in our power.

11.

The

first

of these ways

is,

where an assurance

is

given of future intentions, and

if

the assurance be

SINCERE

at the time it is given, though

it

should not be

carried into effect,

no

blame is incurred, as

it

might

afterwards not be found expedient.

For

the human

mind has not onIy a natural power, but a right to change

its purpose., Wherefore

if

any blame attaches to a change

I34

HUGO

GROTIUS

of opinion,

or

purpose, it is not to be imputed

to

the

which

it

happens, especially when the former resolution

was the best.

111.

The second way

is,

when future intentions

are

expressed by outward acts and signs sufficient to 'indicate

a resolution of abiding by present assurances. And these

kind of promises may be called imperfect obligations,

but conveying to the person to whom they are given no

RIGHT

to exact them. For

it

happens in many cases that

we may be under an obligation of duty, to the perform-

ance of which another has no right to compel

us.

For

in this respect the duty of fidelity to promises,

is

like

the duties of compassion and gratitude. In such kinds

of promises therefore the person to whom they are made,

has no right, by the law of nature to possess himself of

the effects

of

the promiser, as his

own,

nor

to

COMPEL

him to the performance of his promise.

IV. The third way is, where such a determination

is

confirmed by evident signs of an intention to convey

a

peculiar right to another, which constitutes the perfect

obligation of a promise, and is attended with consequences

similar to an alienation of property.

There may be two kinds of alienation, the one of

our

property, the other

of

a certain portion of our liberty.

Under those of the former kind we may class the prom-

ises of gifts, and under the latter the promises of doing

certain actions. On this subject we are supplied with

noble arguments from the divine oracles, which inform

us,

that God himself, who can be limited by no estab-

lished rules of law, would act contrary to his own nature,

if

he did not perform his promises. From whence it

follows that the obligations to perform promises spring

from the nature of that unchangeable justice, which

is

an attribute of God, and common to all who bear his

image, in the use of reason.

To

the proofs of scripture

here referred to, we may add the judgment of Solomon,

My son

if

thou hast been surety for thy friend, thou

hast tied up thy hands to a stranger; thou art ensnared

by the words of thy mouth, then art thou taken by the

words of thine

own

mouth.)) Hence a promise

is

called by

the Hebrews a bond

or

chain, and i4 compared to a

vow.

Eustathius in his notes on the second book of the Iliad,

assigns a similar origin to the word

S~OU~SEW

or

engage-

ment.

For

he who has received the promise,

in

some

3ARE

ACT

OF

CHANGING,

but to the

CIRCUMSTANCES,

under

'

THE RIGHTS

OF

WAR

AND

PEACE

I35

measure takes and holds the person, that has made

the

engagement.

A

meaning not ill expressed by Ovid in

the second book of his Metamorphoses, where the prom-

iser says to him, to whom he had promised, My word

has become yours.”

After knowing this, there remains

no

difficulty in

re-

plying to the arguments of Connanus. For the expres-

sions of the lawyers, respecting

BARE

PROMISES,

refer only

to what was introduced by the Roman laws, which have

made a

FORMAL

STIPULATION

the undoubted sign of a

deliberate mind.

Nor can

it

be denied that there were similar laws

among other nations. For Seneca, speaking

of

human

,

laws, and promises made without proper solemnities, says,

((What law,

of

any

country,

we

may

add,

obliges

us

to

the performance of bare promises

I

))

But there may

naturally be other signs of a deliberate mind, besides a

formal stipulation, or any other similar act which the

civil law requires, to afford grounds for a legal remedy.

But what is not done with a deliberate mind, we are

inclined to believe does not come under the class of per-

fect obligations; as Theophrastus has observed in his

book on laws. Nay, even what is done with a deliberate

mind, but not with an intention of conceding our own

right to another; though it cannot give any one a

natural right of exacting its fulfilment, yet it creates an

obligation not only in point of duty, but in point

of

moral necessity. The next matter to be considered is,

what are the requisites to constitute a perfect promise.

V.

The use of reason is the first requisite to constitute

the obligation of a promise, which ideots, madmen, and

infants are consequently incapable of making. The case

of minors is somewhat different. For although they may

not have a sound judgment, yet it is not a permanent

defect, nor sufficient of itself to invalidate all their acts.

It cannot be certainly defined at what period of life

reason commences.

But

it

must be judged of from daily

actions, or from the particular customs of each country.

Amongst the Hebrews a promise made by a male at the

age of thirteen, and by a female at the age of twelve,

Was valid. In other nations, the civil laws, acting upon

just motives, declare certain promises made by wards

and minors to be void, not only among the Romans, but

among the Greeks also, as it has been observed by Dion

Chrysostom in his twenty-fifth oration.

To

do

away the

136

HUGO

GROTIUS

effect of improvident promises, some laws introduce

actions

of

recovery, or restitution. But such regulations

are peculiar to the civil law, and have no immediate con-

nection with the law of nature and of nations, any farther

than that wherever they are established,

it

is consonant

to natural justice that they should be observed. Where-

fore if a foreigner enter into an agreement with a citizen

or subject

of

any other country; he will be bound by

the laws of that country, to which, during his residence

therein, he owes a temporary obedience. But the case is

different, where an agreement is made upon the open

sea, or in a desert island, or by letters

of

correspondence.

For such contracts are regulated by the law

of

nature

alone, in the same manner as compacts made by sover-

eigns in their public capacity.

VI.

The consideration of promises, made under an er.

ror,

is

a

subject of some intricacy. For it, in general,

makes a difference, whether the promiser knew the full

extent

of

his promise, and the value

of

the thing prom-

ised, or not, or whether the contract, which was made,

originated in fraudulent intention, or not, or whether one

of

the parties was privy to the fraud; and whether the

fulfilment of

it

was an act

of

strict justice, or only

of

good faith. For according to the variety of these cir-

cumstances, writers pronounce some acts void and oth-

ers valid, leaving the injured party a discretionary power

to rescind or amend them.

Most

of

these distinctions originate in the ancient civil,

and praetorian Roman law. Though some of them are

not strictly founded

in

reason and truth. But the most

obvious and natural way of discovering the truth is by

referring

to

laws, which derive their force and efficacy

from the general consent

of

mankind;

so

that

if

a law

rests upon the presumption

of

any fact, which. in reality

has no existence, such a law is

not

binding. For when

no

evidence of the fact can be produced, the entire founda-

tion, on which that law rests must fail. But we must

have recourse to the subject, to the words and circum-

stances of a law, to determine when

it

is

founded

on

such

a presumption.*

*a

The most universal and effectual way

of

discovering the true mean-

ing

of

a law, when the words are dubious, is by considering the

REA-

SON

and

SPIRIT

of

it, or the cause which

moved

the

legislator

to

enact it.

For

when the reason ceases, the law itself

ought

likewise

to

cease

with

itm-Blackst.

Introd.

Com.

ch.

2.

p.

I&

THE

RIGHTS

OF

WAR

AND

PEACE

I37

The same rule applies to the interpretation

of

prom-

ises. For where they are made upon the supposition of

a fact, which in the end proves not to be true, they lose

the force of obligations. Because the promiser made

them upon certain conditions only, the fulfilment of which

becomes impossible. Cicero, in his first book

on

the tal-

ents and character of an orator, puts the case of a father,

who, under the supposition or intelligence that his son

was dead, promised to devise his property to his nephew.

But the supposition proving erroneous, and the intelli-

gence false, the father was released from the obligation

of the promise made to his relative. But

if

the promiser

has neglected to examine the matter, or has been care-

less in expressing his meaning, he will be bound to re-

pair the damage which another has sustained on that

account. This obligation is not built on the strength of

the promise, but on the injury, which it has occasioned.

An erroneous promise will be binding,

if

the error was

not the

OCCASION

of the promise.

For

here there

is

no want of consent in the party, who made it.

But

if

the promise was obtained by fraud, the person

so

obtain-

ing

it

shall indemnify the promiser for the injury

sus-

tained, if there has been any partial error in the promise,

yet in other respects it shall be deemed valid,

VII.

Promises extorted by fear are a subject of

no

less

intricate decision. For here too a distinction is usually

made between

a

well founded and a chimerical fear,

between a just fear and a bare suspicion, and between

the persons who occasion it, whether it

be

the person to

whom the promise is given, or some other.

A

distinction

is

also made between acts purely gratuitous, and those

in which both parties have an interest. For according to

all this variety of circumstances some engagements are

considered as void, others as revocable at the pleasure

or discretion of the maker, and others as warranting

a

claim to indemnity for the inconvenience occasioned.

But

on

each of these points there

is

great diversity

of

opinion.

There

is

some shew

of

reason

in

the opinion

of

those

who, without taking into consideration the power

of

the

civil law to annul or diminish an obligation, maintain

that a person is bound to fulfil a promise which he has

given under impressions of fear. For even in this case

there was

CONSENT,

though it was extorted; neither

was

it

conditional, as

in

erroneous promises, but absolute.

138

HUGO

GROTIUS

It

is called

CONSENT.

For

as Aristotle has observed,

those who consent to throw their goods overboard in

a

storm, would have saved them, had it not been for the

fear of shipwreck. But they freely part with them con-

sidering all the circumstances of time and place.

VIII.

To

render a promise valid,

it

must be such

as

it is in the power of the promiser to perform.

For

which

reason no promises to do illegal acts are valid: because

no

one either has,

or

ever can have a right to do them.

But a promise, as was said before, derives all its force

from the right of the promiser to make it,

nor

can

it

extend beyond that.

If a thing is not

now

in the power of the promiser,

but may be

so

at some future time; the obligation will

remain in suspense.

For

the promise was only made

under the expectation of some future ability to fulfil

it.

But if a person has a controul over the condition upon

which the promise is made, to realise it

or

not, he lies

under a moral obligation to use every endeavour to fulfil

it. But in obligations of this kind also, the civil law,

from obvious motives of general utility, occasionally in-

terposes its authority to make them void: obligations,

which the law of nature would have confirmed.

IX. The next general inquiry, for the most part,

re-

fers to the validity

of

promises made upon any immoral

or

unlawful consideration; as

if,

for instance, any thing is

promised to another on condition of his committing

a

murder. Here the very promise itself is wicked and

unlawful, because it encourages the commission of a

crime. But it does not follow that every

FOOLISH

or

IM-

PROVIDENT

promise loses the force of an obligation, as in

the confirmation of imprudent

or

prodigal grants, for no

further evil can result from a confirmation of what has

been already given: and the invalidity

of

promises would

be a greater evil than any that could result from a con-

firmation of the most improvident. But in promises made

upon

IMMORAL

and

UNLAWFUL

considerations, there is

al-

ways a criminality remaining, even while they continue

unfulfilled.

For

during the whole of that time, the ex-

pectation

of

fulfilment carries with it the indelible mark

of

encouragement to the commission of

a

crime.

XII.*

We are obliged to confirm the engagements made

by others, acting in

our

name,

if

it

is evident that they

*Sections

X,

and

XI.

of

the

original

are

omitted

in

the

transla-

~~~~.-T~NSLATO&

THE

RIGHTS

OF WAR AND PEACE

I39

had special, or general instructions from

us

to do

so.

And

in granting a commission with full powers to any

one, it may

so

happen that we are bound by the con-

duct

of

that agent, even

if

he exceed the secret instruc-

tions which he has received. For he acts upon that

ostensible authority, by which we are bound to ratify

whatever he does, although we may have bound him to

do nothing but according to his private instructions.

This rule, we must observe, applies to the promises

made by ambassadors in the name

of

their sovereigns,

when, by virtue

of

their public credentials, they have

XIII.

From the preceding arguments,

it

is easy to un-

derstand how far owners

of

ships are answerable for the

acts of the masters employed by them in those vessels,

or merchants for the conduct of their factors. For nat-

ural equity will qualify the actions brought against

them, according to the instructions and powers which

they give.

So

that we may justly condemn the rigour

of

the Roman law, in making the owners of ships ab-

solutely bound by all the acts

of

the masters em-

ployed. For this

is

neither consonant to natural equity,

which holds

it

sufficient for each party to be answerable

in proportion to his share, nor is it conducive to the

public

good.

For men would be deterred from employ-

ing ships, if they lay under the perpetual fear

of

being

answerable for the acts

of

their masters to an unlimited

extent. And therefore in Holland, a country where trade

has flourished with the greatest vigour, the Roman law

has never been observed either now or at any former

period. On the contrary, it is an established rule that

no

action can be maintained against the owner for any

greater sum than the value of the ship and cargo.

For a promise to convey a right, acceptance is no less

necessary than in a transfer of property. And in this

case there is supposed to have been a precedent request,

which is the same as acceptance. Nor is this contra-

dicted by the promises which the civil law implies every

one to have made to the state,

WITHOUT

ANY

REQUEST

OR

XIV.

A reason which has induced some to believe that

the sole act

of

a promiser, by the law of nature, is

suffi-

cient. Our first position

is

not contradicted by the

Roman law. For it

no

where says, that a promise has

its

full

effect before acceptance, but only forbids the

’

exceeded their private orders.

FORMAL ACCEPTANCE.

HUGO

GROTIUS

revocation

of

it

which might prevent acceptance:

and

this effect results, not from

NATURAL

but from purely

LEGAL

rules.

XV.

Another question is, whether the acceptance alone

of

a promise

is

sufficient,

or

whether

it

ought to be

communicated to the promiser before

it

can be made

binding.

It

is

certain that a promise may be made two ways,

either upon condition of its being fulfilled,

if

accepted,

or upon condition of its being ratified,

if

the promiser

is

apprised of its being accepted. And in cases of mutual

obligation,

it

is presumed to be taken in the latter sense;

but it is better to take promises that are purely gratui-

tous in the former sense, unless there be evidence to the

contrary.

XVI.

From hence

it

follows, that a promise may be

revoked, without the imputation of injustice or levity,

BEFORE ACCEPTANCE,

as no right has yet been conveyed;

especially

if

ACCEPTANCE

were made the condition of its

being fulfilled. It may be revoked too

if

the party to

whom it was made, should die before acceptance. Be-

cause

it

is

evident that the power to accept

it

or not,

was conferred upon

HIM,

and not upon his

HEIRS.

For to

give a man a right, which may

POSSIBLY

descend to his

heirs, is one thing, and to express an intention

of

giving

it to his heirs is another. For it makes an essential

difference upon what person the favour

is

conferred, This

is

understood in the answer made by Neratius, who said,

that he did not believe the prince

would

have granted to

one who was dead, what he granted, supposing him still

alive.

XVII.

A promise may be revoked, by the death of the

person appointed to communicate to a third the inten-

tion of the promiser. Because the obligation to the third

person rested upon such communication. The case

is

different, where a public messenger is employed, who is

not himself the obligatory instrument, but only the

means through which

it

is conveyed. Therefore letters

indicating a promise,

or

consent may be conveyed by any

one. Yet there is a distinction to be made between a

minister appointed to communicate a promise, and one

appointed to make the promise in his own name.

For

in the former case, a revocation will be valid, even

though

it

has not been made known

to

the minister em-

ployed; but in the latter case,

it

will be entirely void,

THE RIGHTS

OF

WAR

AND

PEACE

14:

because the right

of

promising was committed to the

%

minister, and fully depended

upon

his will

;

therefore the

obligation of the promise was complete, as he knew of

no

intended revocation.

So

also in the former case,

where a second person is commissioned to communi-

cate the intentions of a donor to a third; even

if

the

donor should die, the acceptance of the

gift

will be

deemed valid, all that was requisite being performed on

one part; though till that period the intention was revo-

cable, as is evident

in

the case of bequests. But in the

other case, where a person has received a full commission

to execute a promise during the

LIFE

of

the donor, should

the donor die before the execution of it, and the person

employed be apprised of his death

;

the commission, the

promise, and the acceptance

of

it will then, at once, be-

come void.

In doubtful cases, it is reasonable to suppose that

it

was the intention of the promiser, that the commission

which he gave should be executed, unless some great

change, as for instance, his own death should occur.

Yet reasons in favour of a contrary opinion may easily be

found and admitted, especially with respect to pious

do-

nations, which, at all events, ought to stand good. And

in the same manner may be decided the long disputed

question, whether an action on account of such a bequest

could be brought against the heir. Upon which the

author of the second book to Herennius says, that Mar-

cus

Drusus

the praetor decided one way, and Sextus

Julius another.

XVIII. The acceptance of a promise for a third per-

son is a matter subject to discussion, in which there is

a distinction to be observed between a promise made to

a person of a thing, which is to be given to another,

and a promise made directly to the person himself,

on

whom the former is to be conferred.

If

a promise is made

to any one, where his own personal interest

is

not con-

cerned, a consideration introduced by the Roman law,

by acceptance he seems naturally to acquire a right

which may be transferred to another for

HIS

acceptance,

and this right will pass

so

fully, that in the mean time

the promise cannot be revoked by the person who gave,

though it may be released by him who received .it.

For

that

is

a meaning by no means repugnant to the law of

nature, and

it

is entirely conformable to the words of such

a promise

;

nor

can

it

be

a

matter of indifference

to

142

HUGO

GROTIUS

the person, through whom another

is

to receive a bene-

fit.

But

if

a promise is made directly to one, on whom a

thing is to be conferred, a distinction must be made,

whether the person receiving such a promise has

SPECIAL

commission

for

acceptance, or one

so

GENERAL

as to in-

clude acceptance,

or

has

it

not. When a commission has

been previously given, no farther distinction is necessary,

whether the person be free

or

not, a condition which

the Roman laws require. But

it

is

plain that from such

an acceptance, let the condition of the person be what

it

will, the promise is complete: because consent may be

given and signified through the medium of another. For

a person

is

supposed to have fully intended, what he

has put into the power of another to accept or refuse.

Where there is no such commission,

if

another,

to

whom the promise was not directly made, accepts it with

the consent of the promiser, the promise will be

so

far

binding, that the promiser will not be at liberty to

revoke

it,

before the person, in whose favour

it

was

made has ratified, and afterwards chosen to release the

engagement. Yet, in the mean time, the accepter can-

not release

it,

as having derived no peculiar right from

it

himself, but only been used as an instrument in pro-

moting the kind intentions and good faith

of

the promiser.

The promiser therefore himself, by revoking

it,

is not

doing violence to the perfect right of another, but only

acting in contradiction to his own good faith.

XIX. From what has been said before, it is easy to

conceive what opinion ought to be entertained of a bur-

densome condition annexed to a promise. For it may

be annexed at any time, till a promise has been com-

pleted by acceptance, or an irrevocable pledge to fulfil

it has been given. But the condition of a burden annexed

to a favour intended to be conferred upon a third per-

son, through the medium

of

any one, may be revoked

before the person has confirmed

it

by his acceptance.

On this point there

is

great difference of opinion. But

upon impartial consideration the natural equity of any

case may be easily seen without any great length of

arguments.

XX. XXI. XXII. Another point of discussion relates to

the validity of an erroneous promise, when the person,

who made it, upon being apprised

of

his error is willing

to

adhere to his engagement. And the same inquiry

THE RIGHTS

OF

WAR AND PEACE

I43

applies to promises, which ,arising out of fear or any other

such motive, are prohibited by the civil law. What,

it

may be asked, will become of these promises,

if

that fear,

or that motive has been removed

?

To confirm such obligations, some think. an internal

consent of the mind alone in conjunction with 'some pre-

vious external act

is

sufficient. Others disapprove of this

opinion, because they do not admit that an external act

is a real sign

of

a

subsequent intention. Therefore they

require an express repetition

of

the promise and accept-

ance. Between these two opinions, the truth

is

most

likely to be found. There may be an external act ex-

pressive of a promise, though unaccompanied with words;

where one party's accepting and retaining a gift, and the

other's relinquishing his right in it are sufficient to con-

stitute a full consent.

To

prevent civil laws from being confounded with nab.

ural justice, we must not omit noticing, in this place,

that promises though founded in no

EXPRESS

motive, are

not, any more than gifts, void by the law of nature.

Nor is a person who has engaged

for

another's per-

forming any thing, bound to pay damages and interest

for neglect, provided he has done every 'thing that was

necessary on his part towards obtaining its accomplish-

ment. Unless the express terms of the agreement, or the

nature

of

the business require a stricter obligation, posi-

tively declaring that, under all circumstances whatever,

the thing shall be performed.

CHAPTER XII.

ON

CONTRACTS.

Human actions divided into simple or mixed-Gratuitous, or accom-

panied with mutual obligation- Acts by way

of

exchange, adjust-

ment

of

what is

to

be given

or

done-Partnership-Contracts-

Previous equality-As

to

knowledge of all circumstances-As to

freedom

of

consent, requisite in contracts

of

exchange, of sale,

of

commission and loan

-

Price of things in what manner to

be

rated

-Transfer

of

property by sale

-

What kind contrary to the law

of

nature- Money

-

Its

use

as the standard value

of

all things

-

No

abatement

in

the rent or hire

of

a thing

on

account

of

ordinary acci-

dents-Increase

or

diminution

of

just salaries-

Usury,

by what

law forbidden -Interest not coming under the name

of

usury

-1n-

surance

-

Partnerships

of

Trade, Naval Associations -Inequality

in

the

terms of

a

contract

no

way repugnant to the law

of

nations.

I.

and

11.

OF

ALL

human actions, wherein the interest

of others is concerned, some are simple, and some are

mixed. In those of the former description all service

is purely gratuitous, but in the latter it

is

a

traffic of

exchange. In the one case the service is granted with-

out a requital, but in the other it is accompanied with

an obligation on both sides. Gratuitous services are either

immediate in their effect, or to take place at some future

time.

A

beneficial service may be said to be immedi-

ately performed, when it confers an advantage, to which

the person

so

benefitted has no direct or absolute right.

As

a gift transfers property, where there

is

no previous

right.

A

subject, which has been already discussed. And

promises may be said to relate to some future gift, or

action, of which a full and sufficient explanation has be-

fore been given.

Services accompanied with mutual obligation are those

where the use of a thing is allowed to any one without

a complete alienation, or where labour is given in

ex-

pectation of some valuable consideration. Under the

first of these heads we may reckon the loan and use of

all consumable or inconsumable property: and under the

latter we may place all commissions to transact business,

or all trusts to preserve the property of another, Simi-

lar to which are all promises of something to be done,

except that they regard a future time. And

in

this view

(144)

THE

RIGHTS

OF

WAR

AND PEACE

145

we may consider all the actions, which are now to be

explained.

111.

In all acts of exchange, there

is

either an adjust-

ment of shares, or the profits are regarded as a common

stock. And such adjustments are made by the Roman

Lawyers in the following terms,

“I

give this to receive

that in return,

I

do this in order for

you

to do that, or

I

do this for you to give me that.

’)

*

But the Romans

exclude from that adjustment certain kinds of contracts,

which they call

EXPRESS

ENGAGEMENTS,

Not because they

are entitled to any such peculiar name more than the

simple acts of exchange already mentioned: but because

from frequent use they have naturally derived

a

char-

acter similar to that of the original contract, from which

they are named, though they are not attended exactly

with the same circumstances, nor expressed directly in

the same terms. Whereas in other contracts less fre-

quently in use, the form was confined

to

an exact state-

ment of all the circumstances of the case. An action

upon which was therefore called by the Roman law an

For the same reason, if those contracts, which are in

general use, be accompanied with any of the requisite

formalities, as in a bargain or sale,

if

the price had been

agreed upon, though no part of the agreement had been

performed by either of the parties, the civil law en-

forced an obligation to fulfil them. But as it considers

those contracts which are seldom used, more in the light

of voluntary engagements, depending upon the good faith

of the respective parties, than upon legal obligation, it

leaves both sides at liberty to relinquish them at any

time prior to their being naturally performed.

Distinctions of this kind are unknown to the law

of

nature, which gives

SIMPLE

AGREEMENTS

equal authority

with those, that are included by civilians in the class of

EXPRESS

CONTRACTS.

And on the score of antiquity their

pretensions are far superior.

It

is

therefore perfectly

conformable to the principles of nature to reduce the

adjustment of all agreements, without any regard to the

distinction between

SIMPLE

and

EXPRESS

CONTRACTS,

to

the three species already named.

Thus,

for instance,

+From

this simple origin

of

barter, and exchange

of

things have

arisen all the various transactions

of

commerce. And what was

at

first

an act

of

necessity between individuals,

has

proved an inexhausti-

ble source

of

wealth pnd prosperity to nations.

ACTION

IN

PRESCRIBED

WORDS.

10

146

HUGO

GROTIUS

one thing

is

given for another, which constitutes barter,

the most ancient kind of traffic; the next step in the

progress of commercial intercourse is where one kind of

money is given for another, a transaction which by mer-

chants

is

called exchange; and a third species

of

contract

is

where money

is

given for any thing,

as

in the acts of

selling and buying. Or the

USE

of one thing may be given

for that

of

another; money also may be given for the

USE

of a thing, which last method constitutes the acts of

letting and hiring.

The term use is to be understood here as applied not

only to the bare unproductive use of a thing, but to that

which is attended with profit, whether

it

be temporary,

personal, hereditary

or

circumscribed, as was the case

among the Hebrews with regard to transfers, which could

be made for no longer a time than till the year

of

Jubi-

lee, The very essence

of

a loan consists in

a

return of

the same kind of thing after a stated period.

A

return

which can take place only in things regulated by weight,

number,

or

measure, whether

it

be in commodities or

money. But the exchange of labour branches out into

various kinds

of

recompence or return.

As,

for

instance,

a person gives his labour for money, which in the daily

transactions of life is called hire or wages: where one

undertakes to indemnify another for accidental losses or

damages, it is called insurance: a species of contract

scarce known to the ancients, but now forming a very

im-

portant branch in all mercantile and maritime concerns.

IV.

Acts of communication are those, where each con-

tributes a share to the joint stock, Perhaps

01

one side,

money, and on the other, skill and labour may be given.

But in whatever way these concerns are regulated, they

come under the denomination of partnerships. With this

class we may rank the alliances of different states in war.

And of the same description are those naval associations

of individuals,

so

frequently formed in Holland for pro-

tection against pirates or other invaders, which is gener-

ally called an

ADMIRALTY,

and to which the Greeks gave

the name of

a

joint fleet,

V.

and

VI.

Now

mixed actions are either such in them-

selves, or made

so

by some adventitious circumstance.

Thus

if

I

knowingly give one person a greater price for

a

thing than

I

can purchase

it

for of another, the excess

of

price may be considered partly as a gift, and partly as

a

purchase. Or

if

I

engage a goldsmith to make me any

THE

RIGHTS

OF

WAR

AND

PEACE

'47

article with his own materials, the price which

I

give will

be partly a purchase, and partly wages. The feudal

sys-

tem too might be considered as a train of mixed contracts.

Where the grant of the fee might be considered as a bene-

ficial act; but the military service required by the Lord,

in return for his protection, gave the fee the nature of a

contract, where a person did one thing expecting for

it

the performance of another. But if any payment is at-

tached to it by way of acknowledgement, it partakes

of

the nature of a quit rent.

So

money sent to sea by way

of venture is something compounded

of

a contract,

of

a

loan, and of an insurance.

VII.

All acts beneficial to others, except those that

are purely gratuitous, come under the denomination

of

contracts.

VIII.

In all contracts, natural justice requires that

there should be an equality of terms: insomuch that the

aggrieved party has an action against the other for over-

reaching him. This equality consists partly in the per-

formance, and partly in the profits of the contract,

applying to all the previous arrangements, and to the

essential consequences of the agreement.

IX.

As to an equality of terms previous to the contract,

it

is evident that a seller is bound to discover to

a

purchaser any defects, which are known to him, in a

thing offered for sale

;

a rule not only established by

civil laws, but strictly conformable to natural justice.

For the words

of

agreement between contracting parties

are even stronger than those, on which society

is

founded.

And in this manner may be explained the observation

of Diogenes the Babylonian, who in discussing this topic

said,

it

is

not every degree of silence, which amounts to

concealment; nor

is

one person bound to disclose every

thing, which may be of service

to

another. Thus

for

instance, a man

of

science is not strictly bound to com-

municate to another that knowledge, which might redound

to his advantage. For contracts, which were invented

to promote a beneficial intercourse among mankind, re-

quire Some closer and more intimate connection than

bare good-will to enforce their obligation. Upon whieh

Ambrose has justly remarked, "that, in contracts, the

faults of things exposed to sale ought to be made known,

of which unless the seller has given intimation, though

he may have transferred the right

of

property by sale,

yet he

is

liable to an action of fraud.

')

".

148

HUGO

GROTIUS

But the same cannot be said of things not coming

under the nature of contracts. Thus

if

any one should

sell his corn at a high price, when he knows that many

ships laden with grain are bound for that place, though

it would be an act of kindness in him to communicate

such intelligence to the purchasers, and though

no

ad-

vantage could be derived to him, from withholding the

communication, but at the expence of charity, yet there

is

nothing unjust in it, or contrary to the general rules

of

dealing. The practice is vindicated by Diogenes in

the passage of Cicero alluded to, he says,

((I

carried my

commodities and offered them to sale, in selling them

I

demanded no greater price than others did;

if

the supply

had been greater

I

would have sold them for less, and

where is the wrong done to any one

?

))

The maxim of

Cicero therefore cannot generally be admitted, that,

knowing a thing yourself, to wish another, whose inter-

est it

is

to know

it

also, to remain ignorant of

it,

merely

for the sake

of

your own advantage, amounts to a fraud-

ulent concealment. By no means; for that only

is

a

fraudulent concealment which immediately affects the

nature

of

the contract: as for instance, in selling a house,

to conceal the circumstance of its being infected with

the plague, or having been ordered by public authority

to be pulled down. But

it

is unnecessary to mention,

that the person, with whom a seller treats, ought to be

apprised

of

every circumstance attending the thing

offered for sale;

if

it

be lands, whether the tenure be

subject to a rent-charge, or service of any kind, or be

entirely free.

X.

and

XI.

Nor is the equality that has been explained

confined solely to the communication of all the circum-

stances of the case to the contracting parties, but

it

in-

cludes also an entire freedom of consent in both.

In

the principal act itself, the proper equality requires

that no more should be demanded by either party than

what

is

just.

Which can scarce have

a

place in gratui-

tous acts. To stipulate for a recompence in return for a

loan, or for the service of labour or commission

is

doing

no

wrong, but constitutes a kind of mixed contract, par-

taking of the nature of a gratuitous act, and an act of ex-

change. And in all acts of exchange, this equality

is

to

be punctually observed. Nor can it be said that

if

one

party promises more,

it

is

to be looked upon as a

gift.

For men never enter into contracts with such intentions,

THE RIGHTS

OF

WAR AND PEACE

I49

nor ought the existence of such intentions ever be pre-

sumed, unless they evidently appear. For all promises

or gifts, in these cases, are made with an expectation of

receiving an equivalent

in

return.

((

When,

in

the

Words

of

Chrysostom,

in all bargains and contracts, we are anx-

ious to receive

MORE

and give

LESS

than

is

due, what is

this but

a

species of fraud or robbery

?

))

The writer of

the life of Isidorus in Photius, relates of Hermias, that

when any thing, which he wished to purchase was valued

at too

low

a rate, he made up the deficiency of the price,

thinking that to act otherwise was a species of injustice,

though

it

might escape the observation of others. And

in this sense, may be interpreted the law of the He-

brews.

XII. There remains another degree

of

equality to be

considered, arising out of the following case.

It

may

happen in contracts that although nothing is concealed,

which ought to be made known, nor more exacted or

taken by one party than is due, yet there may be some

inequality without any fault in either of the parties.

Perhaps, for instance there might be some unknown de-

fect in the thing, or there might be some mistake in the

price. Yet, in such cases, to preserve that equality,

which is an essential requisite in all contracts, the party

suffering by such defect or mistake, ought to be indem-

nified by the other.

For

in all engagements it either is,

or ought to be a standing rule, that both parties should

have equal and just advantages.

It

was not in every kind of equality that the Roman

law established this rule, passing over slight occasions, in

order to discourage frequent and frivolous litigation. It

only interposed its judicial authority in weighty matters,

where the price exceeded the just value by one half.

Laws indeed, as Cicero has said, have power to compel, or

restrain men, whereas philosophers can only appeal to

their reason or understanding. Yet those, who are not

subject to the power of civil laws ought to comply with

whatever reason points out to them to be just:

So

too

ought they, who are subject to the power of human

laws, to perform whatever natural and divine justice re-

quires, even in cases, where the laws neither give nor

take away the right, but only forbear to enforce

it

for

particular reasons.

XIII. There is a certain degree

of

equality, too,

in

beneficial or gratuitous acts, not indeed like that prevail-

150

HUGO

GROTIUS

ing in contracts of exchange, but proceeding upon a

sup-

position of the hardship, that any one should receive

detriment from voluntary services, which he bestows.

For

which reason a voluntary agent ought to be indem-

nified for the expence or inconvenience, which he incurs,

by undertaking the business of another. A borrower too

is

bound to repair a thing that has been damaged

or

destroyed. Because he

is

bound to the owner not only

for the thing itself, by virtue of the property which he

retains in it, but he owes a debt of gratitude also for

the favour

of

the loan; unless

it

appears that the thing

so

lent would have perished, had it even remained in

possession of the owner himself. In this case, the owner

loses nothing by the loan. On the other hand, the de-

positary has received nothing but a trust.

If

the thing

therefore is destroyed, he cannot be bound to restore

what is no longer in existence, nor can he be required

to make a recompence, where he has derived no advan-

tage

;

for in taking the trust he did not receive a favour,

but conferred one. In a pawn, the same as in a thing

let out for hire, a middle way of deciding the obligation

may be pursued,

so

that the person taking

it

is not

answerable, like a borrower, for every accident, and yet

he

is

obliged to use greater care, than a bare depositary,

in keeping it safe. For though taking a pledge is a

gratuitous acceptance,

it

is followed by some of the con-

ditions of a contract.

All

these cases are conformable to

the Roman law, though not originally derived

from

thence, but from natural equity. Rules, all

of

which

may be found among other nations. And, among other

works, we may refer to the third

book

and forty-second

chapter of the GUIDE

FOR

DOUBTFUL

CASES,

written by

Moses Maimonides, a Jewish writer.

Upon the same principles the nature of all other con.

tracts may be explained; but the leading features in those

of certain descriptions seemed sufficient for a treatise

like the present.

XIV.

The general demand for any thing, as Aristotle

has clearly proved, constitutes the true measure

of

its

value, which may be seen particularly from the practice

prevailing among barbarous nations of exchanging one

thing for another. But this is not the only standard:

for

the humours and caprice of mankind, which dictate

and controul all regulations, give a nominal value to many

superfluities.

It

was

luxury,

says Pliny, that

first

dis-

THE RIGHTS

OF

WAR

AND

PEACE

151

covered the value of pearls, and Cicero has somewhere

observed, that the worth of such things can only be

estimated by the desires of men.

But on the other hand,

it

happens that the plentiful

supply of necessaries lowers their price. This Seneca, in

the 15th chapter of his sixth book on benefits, proves by

many instances, which he concludes with the following

observation, ((the price of every thing must be regulated

by the market, and notwithstanding all your praises, it

is worth nothing more than it can be sold for.))

To

which we may add the authority of Paulus the Lawyer,

who says, the prices of things do not depend upon the

humours and interest of individuals, but upon common

estimation, that is, as he explains himself elsewhere,

according to the worth which they are of to all.

Hence

it

is

that things are valued in proportion to

what

is

usually offered

or

given for them, a rule ad-

mitting

of

great variation and latitude, except in certain

cases, where the law has fixed

a

standard price. In the

common price of articles, the labour and expence

of

the

merchant in procuring them is taken into the account,

and the sudden changes

so

frequent in all markets depend

upon the number of buyers, whether

it

be great or

small, and upon the money and marketable commodities,

whether they be plentiful or scarce.

There may indeed be casualties, owing to which a

thing may be lawfully bought or sold above

or

below

the market price. Thus for instance, a thing by being

damaged may have lost its original or common value,

or

that, which otherwise would not have been disposed of,

may be bought or sold from some particular liking or

aversion.

All

these circumstances ought to be made

known to the contracting parties. Regard too should be

had to the

loss

or

gain arising from delay or prompt-

ness of payment.

XV.

In buying and selling we must observe, that the

bargain

is

completed from the very moment of the con-

tract, even without delivery, and that

is

the most simple

way of dealing. Thus Seneca says, that a sale

is

a

trans-

fer of one’s right and property in a thing to another,

which

is

done in all exchanges. But

if

it

be settled that

the property shall not be transferred immediately,

still

the seller will be bound to convey

it

at the stated

period, taking in the mean time all the profits and

losses.

*

52

HUGO GROTIUS

Whereas the completion of bargain and sale, by giving

the purchaser a right

of

possession and ejectment, and

conveying to him the hazard with all the profits

of

the

property, even before

it

is

transferred, are regulations of

the civil law not universally observed. Indeed some

legislators have made the seller answerable for all acci-

dents and damages, till the actual delivery of possession

is

made, as Theophrastus has observed in a passage in

Stobaeus, under the title of laws, where the reader will

find many customs, relating to the formalities of sale, to

earnest, to repentance of a bargain, very different from

the

rules

of the Roman law.

And

among the Rhodians,

Dion Prusaeensis informs

us

that all sales and contracts

were confirmed by being entered

in

a public register.

We must observe too that,

if

a thing has been twice

sold, of the two sales the one

is

valid, where an imme-

diate transfer

of

the property $as been made, either by

delivery of possession, or in any other mode. For by this

means the seller gives up an absolute right, which could

not pass by a promise alone.

XVI.

It

is

not every kind

of

monopoly that amounts

to a direct violation of the laws of nature. The Sover-

eign power may have very just reasons for granting

monopolies, and that too at a settled price: a noble in-

stance of which we find in the history

of

Joseph, who

governed Egypt under the auspices of Pharaoh.*

So

also

under the Roman government the people of Alexandria,

as we are informed by Strabo, enjoyed the monopoly

of

all

Indian and Ethiopian goods.

A

monopoly also may, in some cases, be established

by individuals, provided they sell at a reasonable rate.

But all combinations to raise the necessary articles

of

life to an exorbitant rate, or all violent and fraudulent

attempts to prevent the market from being supplied, or

to

buy

up certain commodities, in order to enhance the

price, are public injuries and punishable as such.t Or in-

*For the necessity

of

Monopolies in certain cases, see the note

on

the xxi. sect. of the 2nd. chapter of this book.

{The Dutch in order

to

secure to themselves the monopoly

of

the

spice-trade have frequently destroyed all the productions

of

the spice

islands beyond what was necessary for their own supply, By the

just

policy

of

the laws

of

England, <(combinations among victuallers or

artificers, to raise the price

of

provisions, or any commodities, or the

rate

of

labour, are in

many

cases severely punished by particular

statutes; and,

in

general,

by

statute

z

and

3

Edwd.

VI.

c.

15,

with

the

forfeiture

of

IO

L,

or twenty days imprisonment with

an

allowance

THE

RIGHTS OF

WAR

AND

PEACE

'53

deed

ANY

WAY

of

preventing the importation of goods,

or

buying them up in order to sell them at

a

greater rate

than usual, though the price,

UNDER

SOME

PARTICULAR

CIR-

CUMSTANCES,

may not seem unreasonable, is fully shewn by

Ambrose in his third book of Offices to be a breach

of

charity; though it come not directly under the prohibi-

tion

of

laws.

XVII.

As

to money, it may be observed that

its

uses

do not result from any value intrinsically belonging to

the precious metals, or to the specific denomination and

shape of coin, but from the general application which

can be made

of

it, as a standard

of

payment fbr all

commodities. For whatever is taken as a common meas-

ure of all other things, ought to be liable, in itself, to

but little variation.

Now

the precious metals are of this

description, possessing nearly the same intrinsic value at

all times and in all places. Though the nominal value

of

the same quantity of gold and silver, whether paid by

weight or coin will be greater or less, in proportion to

the abundance or scarcity

of

the things for which there

is a general demand,

XVIII.

Letting

and hiring,

as

Caius has justly said,

come nearest to selling and buying, and are regulated by

the same principles. For the price corresponds to the

rent or hire, and the property

of

a thing to the liberty

of

using it. Wherefore as an owner must bear the loss

of

a thing that perishes,

so

a

person hiring a thing or

renting a farm must bear the loss

of

all ordinary acci-

dents, as for instance, those of barrenness or any other

cause, which may diminish his profits.* Nor will the

of only bread and water, for the first offence;

20

1.

or

the pillory for

the second; and

40

1. for the third, or else the pillory,

loss

of

one

ear,

and perpetual infamy. In the same manner, by a constitution of the

Emperor &no, all monopolies and combinations to keep up the price

of

merchandise, provisions, or workmanship, were prohibited, upon

pain of forfeiture of goods and perpetual banishment.))-Blackst.

Corn.

b.

iv.

C.

12.

p. 159.-AkO the

39

Geo.

111.

c.

81,

enacted, that every

person combining with others to advance their wages, or decrease the

quantity of work, or any way to affect

or

controul those who carried

on

any manufacture

or

trade in the conduct and management thereof,

might

be

convicted before

one

justice of the peace, and might

be

committed to the common gaol

for

any time not exceeding three

-1-

endar

months,

or

be kept to hard labour in the house of Correction

for

two

months,- Christian's notes to Blackstone

on

the %me place.

a

It

is possible that an estate

or

a

house may, during the term

of

a

lease, be

SO

increased or diminished in its value, as to become

epo*

much more,

or

much less,

than

the

rent agreed to

be

paid for

54

HUGO

GROTIUS

owner,

on

that account, be the less entitled to the stipu-

lated price or rent, because he gave the other the right

of enjoyment, which at that time was worth

so

much,

unless it was then agreed that the value should depend

upon such contingencies.

If an owner, when the first tenant has been prevented

from using a thing, shall have let it to another, all the

profits accruing from it are due to the first tenant, for it

would not be equitable that the owner should be made

richer by what belonged to another.

XIX.

The next topic, that comes under consideration,

is

the lawfulness of taking interest for the use of a con-

sumable thing; the arguments brought against which

appear by no means such as to command our assent.

For as to what is said of the loan of consumable prop-

erty being a gratuitous act, and entitled to

no

return,

the same reasoning may apply to the letting of incon-

sumable property for hire, requiring a recompence for

the

use

of which is never deemed unlawful, though it

gives the contract itself a different denomination.

Nor is there any more weight in the objection to tak-

ing interest for the use of money, which in its own na-

ture is barren and unproductive. For the same may be

said of houses and other things, which are unproductive

and unprofitable without the industry of man.*

There is something more specious in the argument,

which maintains, that, as one thing is here given in re-

turn for another, and the use and profits of a thing can-

it.

In

some

of

which cases it may be doubted, to whom,

of

natural

right, the advantage

or

disadvantage belongs. The rule

of

justice

seems to be this:

If

the alteration might be

EXPECTED

by the parties,

the hirer must take the consequence; if it could

not,

the owner.

An

orchard,

or

a

vineyard,

or

a

mine, or

a

fishery,

or

a

decoy, may this

year yield nothing

or

next to nothing, yet the tenant shall pay his

rent; and if they next year produce tenfold the usual profit,

no

more shall be demanded; because the produce is in its nature pre-

carious, and this variation might be expected.))-Paley’s, Mor. Phil.

vol.

1.

p.

155,

156.

*The following passage from Judge Blackstone will

both

elucidate

the meaning and support the reasoning

of

our

author. ((Though

money

was

originally used only

for

the purposes

of

exchange, yet the

laws of any state may be well justified in permitting it to be turned

to the pusposes of profit,

if

the convenience of society (the

great

end

for which money was invented) shall require it. And

that

the allow-

ance

of

moderate interest tends greatly to the benefit of the public,

especially in

a

trading country, will appear from that generally ac-

knowledged principle, that commerce cannot subsist without mutual

THE

RIGHTS

OF

WAR

AND PEACE

'55

not be distinguished from the thing itself, when the very

use of

it

depends upon its consumption, nothing more

ought to be required in return for the use, than what is

barely equivalent to the thing itself,

But

it

is necessary to remark, that when

it

is said the

enjoyment of the profits of consumable things, whose

property

is

transferred, in the use, to the borrower or

trustee, was introduced by an act of the senate, this does

not properly come under the notion of Usufruct, which

certainly in its original signification answers to

no

such

right. Yet it does not follow that such a right is of no

value, but on the contrary money may be required for

surrendering it to the proprietor. Thus also the right of

not paying money or wine borrowed till after a certain

time is

a

thing whose value may be ascertained, the delay

being considered as some advantage. Therefore in

a

mortgage the profits of the land answer the use of money.

But what Cato, Cicero. Plutarch and others allege against

usury,

applies not

so

much to the nature

of

the thing,

as

to the accidental circumstances and consequences with

which

it

is commonly attended.*

XX.

There are some kinds

of

interest, which are

thought to wear the appearance of usury, and generally

come under that denomination, but which in reality are

contracts of a different nature. The five shillings com-

mission which a banker, for instance, charges upon every

hundred pounds, is not

so

much an interest in addition

to

five per cent, as

a

compensation for his trouble, and

and extensive credit. Unless money therefore can be borrowed,

trade cannot be carried

on:

and

if

no

premium were allowed for

the hire of money, few persons would care to lend it;

or

at

least

the ease of borrowing

at

short warning (which

is

the life of com-

merce) would be entirely at an end.))-

B.

ii. ch.

30.

p.

454,

455.

*((The Mosaic law indeed prohibited the lending of money

upon

usury.

But this was

a

political and not

a

moral precept.

It

only

prohibited the Jews from taking

usury

of

their brethren the

Jews,

but in express words permitted them to take it of

a

stranger: which

proves that the taking of moderate usury, or a reward

for

the use,

is

not an evil

in

itself, since it was allowed where any but an Israelite

was concerned.))-Blackst. Com. b.

ii.

ch.

30.

p.

454.

The objec-

tions made to it by Cicero and others,

our

author observes, are

founded

more

upon

the consequences of

usury

than

upon

usury

itself. Because it deters men from borrowing.

But,

on

the other

hand,

if

there were

no

advantage attached to the lending

of

money, none would be found willing to lend; consequently the

benefits arising from

'a

facility

of

borrowing money

to

carry

on

trade would be defeated.

156

HUGO

GROTIUS

for the

risk

and inconvenience he incurs, by the loan

of

his money, which he might have employed in some other

lucrative way. In the same manner a person who lends

money to many individuals, and, for that purpose, keeps

certain Sums of cash in his hands, ought to have some

indemnity for the continual loss of interest upon those

sums, which may be considered as

so

much dead stock.

Nor can any recompence

of

this kind be branded with

the name of usury. Demosthenes, in his speech against

Pantaenetus, condemns it as an odious act of injustice, to

charge with usury a man, who in order to keep his prin-

cipal undiminished, or to assist another with money,

lends out the savings

of

his industry and frugal habits,

upon a moderate interest.

XXI. Those human laws, which allow a compensation

to be made for the use

of

money

or

any other thing, are

neither repugnant

to

natural nor revealed law. Thus in

Holland, where the rate

of

interest upon common loans

was eight per cent, there was no injustice in requiring

twelve per cent

of

merchants; because the hazard was

greater. The justice and reasonableness indeed of all

these regulations must be measured by the hazard

or

inconvenience of lending. For where the recompence ex-

ceeds this,

it

becomes an act of extortion

or

oppression.

XXII. Contracts for guarding against danger, which

are called insurances, will be deemed fraudulent and void,

if

the insurer knows beforehand that the thing insured

is already safe, or has reached its place of destination,

and the other party that it is already destroyed or lost.

And that not

so

much on account

of

the equality natu-

rally requisite in all contracts

of

exchange, as because

the danger and uncertainty is the very essence

of

such con-

tract. Now the premium upon all insurances must be reg-

ulated by common estimation.

*

((Insurances being contracts, the very essence

of

which consists in

observing the purest good faith and integrity, they are vacated by any

the least shadow of fraud

or

undue concealment; and,

on

the other hand,

being much for

the

benefit and extension

of

trade, by distributing the

loss

or

gain among

a

number

of

adventurers, they are greatly encour-

aged and protected both by common law and acts

of

parliament.))-

Blackst. Com. b. ii. ch.

30.

p.

460.

“The contract

of

insurance is founded upon the purest principles

of

morality and abstract justice. Hence

it

is necessary that the contract-

ing parties should have perfectly equal knowledge or ignorance of every

material circumstance respecting the thing insured.

If

on

either side

there

is

any

misrepresentation or

atlegat&

falsi,

or

concealment,

or

THE

RIGHTS

OF

WAR

AND

PEACE

157

XXIII. In trading partnerships, where money

is

con-

tributed by both parties; if the proportions be equal, the

profits and the losses ought to be equal also. But if they

be unequal, the profits and the losses must bear the same

proportion, as Aristotle has shewn at the conclusion of

the eighth book of his Ethics. And the same rule will

hold good where equal

or

unequal proportions of labor

are contributed. Labor may be given as a balance against

money, or both labor and money may be given, accord-

ing to the general maxim that one man's labour

is

an

equivalent for another man's money.

But there are various ways of forming these agree-

ments. If a man borrows money to employ his skill

upon in trading for himself, whether he gains or loses

the whole, he is answerable to the owner for the princi-

pal. But where a man unites his labor to the capital

of

another in partnership, there he becomes a partner in the

principal, to a share of which he is entitled.

In

the

first of these cases the principal is not compared

as

a

balance against the labor, but it is lent upon terms pro-

portioned to the risk of losing it,

or

the probable gains

to be derived from it. In the other case, the price

of

labour is weighed, as it were, against the money, and the

party who bestows it, is entitled to an equivalent share

in the capital.

What has been said of labour may be applied to voyages,

and all other hazardous undertakings.

For

it is contrary

to the very nature of partnerships for any one to share

in the gain, and to be exempt from the losses. Yet it

may be

so

settled without any degree of injustice. For

there may be

a

mixed contract arising out of a contract

of insurance in which

due

equality may be preserved,

by allowing the person, who has taken upon himself the

losses, to receive a greater share of the gain than he

would otherwise have done. But it is a thing quite in-

admissible that any one should be responsible for the

losses without partaking of the gains

;

for a COmmUnion

of interests is

so

natural to society that it cannot subsist

without it.

What has been said by writers

on

the Civil law, that

the shares are understood to be equal where they are

not expressly named, is true where equal quotas have

sg$$rcssjo

veri,

which would

in

any degree affect the premium,

of'

the

terms of the engagement, the contract

is

fraudulent and

absolutQ

void.)LCprjstj&s

note

on

the

same

passage.

158

HUGO

GROTIUS

been contributed. But in a

GENERAL

partnership the

shares

are not to be measured by what may arise from

this or that article, but from the probable profits

of

the

whole.

XXIV.

In naval associations the common motive of

utility

is

self-defence against pirates: though they may

sometimes be formed from less worthy motives. In

computing the losses to be sustained by each,

it

is

usual

to estimate the number of men, the number

of

ships,

and the quantity of merchandise protected. And what

has hitherto been said will be found conformable to nat-

ural justice.

XXV.

Nor does the voluntary* law

of

nations appear

to make any alteration here. However, there

is

one

exception, which is, that where equal terms have been

agreed upon, if

no

fraud has been used, nor any necessary

information withheld, they shall be considered as equal

in an external

t

point of view.

So

that no action can be

maintained in a court

for

such inequality. Which was the

case

in

the civil law before Dioclesian’s constitution.

So

among those, who are bound by the law of nations alone,

there can be no redress or constraint on such account.$

*There is

a

distinction to be observed between the

NECESSARY,

and

the

VOLUNTARY

lawof nations. Vattel defines the

NECESSARY

law to

be

((

that which is always obligatory

on

the conscience, and of which a nation

ought never to lose sight in the line of conduct she

is

to pursue in order

to fulfil her duty, but when there is

a

question of examining what she

may demand of other states, she must consult the VOLUNTARY law, whose

maxims are devoted to the safety and advantage of the universal society

of mankind.))-Prelim. sect

28.

t.

The writer quoted

in

the preceding note defines that obligation

a

to be INTERNAL, which binds the conscience, and is deduced from the

rules

of duty; and

that

to

be

EXTERNAL,

which is considered relatively to

other men, and produces some right between them.))-Ibid. sect,

17.

$

A

treaty may

be

more advantageous to one of the contracting parties

than to the other, and yet contain nothing unjust.

((

Frequently

a

great

monarch, wishing to engage

a

weaker state in his interest, offers her

advantageous conditions, promises her gratuitous succours.

or

greater

than he stipulates for himself; but at the same time he claims a supe-

riority

of

dignity, and requires respect from his ally. It is this last

par-

ticular which renders

THE

ALLIANCE

UNEQUAL:

and to this circumstance

we must attentively advert; for with alliances

of

this nature we are not

to confound those in which the parties treat

on

a

footing of equality,

though the more powerful of the allies, for particular reasons, gives

more than he receives, promises his assistance

gratis,

without requir-

ing gratuitous assistance in his turn, or promises more considerable

sUccouts

or

even the assistance

of

all

his forces: here the alliance

is

equal,

but the treaty is unequal,

unless

indeed

we

may beallowed

to

say,

that,

as

the party who makes the greater concessions

has

a

THE

RIGHTS

OF

WAR AND PEACE

159

And this

is

the meaning

of

what Pomponius says, that

in a bargain and sale, one man may

NATURALLY

over-

reach another: an allowance which

is

not to be construed,

as

a

right, but

is

only

so

far a permission, that

no

legal

remedy can be used against the person, who

is

deter-

mined to insist upon the agreement.

In this place, as in many others, the word natural sig-

nifies nothing more than what

is

received by general

custom. In this sense the Apostle Paul has said, that it

is

naturally disgraceful for

a

man to wear long hair; a

thing, in which there

is

nothing repugnant to nature,

but which is the general practice among some nations.

Indeed many writers, both sacred and profane, give the

name

of

NATURAL

to what is only

CUSTOMARY

and

HA-

BITUAL.

greater interest in concluding the treaty, this consideration restores the

equality, Thus,

at

a time when France found herself embarrassed in

a

momentous war with the house

of

Austria, and the cardinal de Richelieu

wished to humble that formidable power, he, like an able minister, con-

cluded

a

treaty with

Gustams

Adolphus, in which all the advantage

appeared

to

be

on

the side

of

Sweden. From a bare consideration

of

the stipulations

of

that treaty, it would have been pronounced an unequal

one

;

but the advantages which France derived from it, amply Cornpen-

sated

for that inequality.”-Vattel, b. ii. ch.

12.

sect.

175.

p.

200,

201.

CHAPTER

XIII.

ON

OATHS.

Efficacy

of

oaths among Pagans- Deliberation requisite

in

oaths-

The sense,

in

which oaths are understood to be taken,

to

be adhered

to-To

be

taken according

to

the usual meaning

of

the words-

The subject

of

them to

be

lawful

-Not

to counteract moral obliga-

tions

-In

what sense oaths are an appeal

to

God

-

The purport

of

oaths-To

be

faithfully observed

in

all cases-The controul of

sovereigns over the oaths

of

subjects- Observations

on

our

Saviour’s

prohibition

of

oaths

-

Forms

substituted for oaths.

I.

THE

sanctity

of

an oath with regard to promises,

agreements, and contracts, has always been held in the

greatest esteem, in every age and among every people.

For as Sophocles has said in his Hippodamia,

((

The

soul

is

bound to greater caution by the addition of an oath.

For it guards

us

against two things, most to be avoided,

the reproach of friends, and the wrath

of

heaven.)) In

addition to which the authority of Cicero may be quoted,

who says, our forefathers intended that an oath should

be the best security for sincerity of affirmation, and the

observance of good faith. ((For,

as

he

observes

in

another

place,

there can be no stronger tie, to the fulfilment of

our word and promise, than

an

oath, which is a solemn

appeal to the testimony

of

God.))

11.

The next point, to be considered, is the original

force and extent of oaths.

And in the first place the arguments, that have been

used respecting promises and contracts, apply to oaths

also, which ought never to be taken but with the most

deliberate reflection and judgment. Nor can any one

lawfully take an oath, with a secret intention of not being

bound

by

it.

For the obligation

is

an inseparable and

necessary consequence of an oath, and every act accom-

panied with an obligation is supposed to proceed from a

deliberate purpose of mind. Every one is bound like-

wise

to

adhere to an oath in that sense, in which

it

is

usually understood to be taken. For an oath being an

appeal to God, should declare the full truth in the sense

in which

it

is

understood. ,And this is the sense

upon

which Cicero insists that all oaths should be performed

(160)

THE

RIGHTS

OF

WAR AND PEACE

161

and adhered to in that sense, in which the party impos-

ing them intended they should be taken. For although

in other kinds of promises a condition may easily be im-

plied, to release the promiser; yet that

is

a latitude by

no

means admissible in an oath. And

on

this point an

appeal may be made to that passage, where the admirable

writer

of

the Epistle to the Hebrews has said, GOD

WILL-

ING

more abundantly to shew unto the heirs

of

the

promise the immutability of his counsel confirmed

it

by

an oath: that by two immutable things, in which

it

was

impossible for

God

to deceive, we might have

a

strong

consolation. In order to understand these words, we

must observe that the sacred writers, in speaking of God,

often attribute to him human passions, rather in con-

formity to

our

finite capacities, than to his infinite nature,

For God does not actually change his decrees, though he

may be said to do

so,

and to repent, whenever he acts

otherwise than the words seemed to indicate, the occa-

sion, on which they were delivered, having ceased. Now

this may easily be applied in the case

of

threats,

as

con-

ferring no right; sometimes too in promises, where a

condition is implied. The Apostle therefore names two

things denoting immutability, a promise which confers a

right, and an oath, which admits of no mental reserva-

tions.

From the above arguments it

is

easy to comprehend

what

is

to be thought of an oath fraudulently obtained.

For

if

it is certain that a person took the oath upon a

supposition, which afterwards was proved to have

no

foundation, and but

for

the belief of which he would

never have taken it, he will not be bound by

it.

But

if

it appears that he would have taken it without that

sup-

position; he must abide by his oath, because oaths allow

of no evasion.

111.

The meaning of an oath should not be stretched

beyond the usual acceptation

of

words. Therefore there

was no breach of their oath in those, who, hzving sworn

that they would not give their daughters in marriage

to

the Benjamites, permitted those that had been carried

off

to live with them.

For

there

is

a difference between

giving a thing, and not recovering that which

is

lost.

Iv.

To give validity to an oath, the obligation, which

it

imposes ought to be lawful. Therefore

a

sworn

promise, to commit an illegal act, to do any thing

in

violation of natural

or

revealed law, will

be

of

no

effect,

XI

162

HUGO

GROTIUS

V.

Indeed

if

a thing promised upon oath be

not

actually illegal, but only an obstruction to some greater

moral duty, in that case also the oath will not be valid.

Because it is a duty which we owe to God not to de-

prive ourselves of the freedom of doing all the good in

our power.

VI. Oaths may differ in form, and yet agree in sub-

stance. For they all ought to include an appeal to God,

calling upon him to witness the truth, or to punish the

falsehood of their assertions, both of which amount to the

same thing. For an appeal to the testimony of

a

superior,

who has a right to punish, is the same as requiring him

to avenge an act of perfidy. Now the omniscience of

God

gives him power to punish, as well as to witness

every degree of falsehood.

VII. It was a custom with the ancients to swear by

persons or beings expressly distinct from the supreme

creator, either imprecating the wrath of those by whom

they swore, whether it were the sun, the heavens, or the

earth; or swearing by their own heads, by their children,

their country or their prince, and calling for destruction

upon

THEM,

if there were any falsehood in their oaths.

Nor was this practice confined to Heathen nations

only, but, as we are informed by Philo, it prevailed

among the Jews. For he says that we ought not, in

taking an oath upon every occasion, to have recourse to

the maker and father of the universe, but to swear by

our parents, by the heavens, the earth, the universe.

Thus Joseph is said to have sworn by the life of Pharaoh,

according to the received custom of the Egyptians. Nor

does our Saviour, in the fifth chapter of

St.

Matthew’s

Gospel, intend, as it

is

supposed by some, to consider

these oaths to be less binding than those taken expressly

by the name of

God.

But as the Jews were too much

inclined to make use of, and yet disregard them, he

shews them that they are real oaths. For, as Ulpian

has well observed, he who swears by his own life, seems

to swear by God, bearing a respect and reference to his

divine power. In the same manner Christ shews that

he, who swears by the temple, swears by God who pre-

sides in the temple, and that he who swears by Heaven,

swears by God, who sits upon the Heavens. But the

Jewish teachers of that day thought that men were

not

bound

by oaths made in the name of created beings,

unless some penalty were annexed, as

if

the thing,

by

THE

RIGHTS

OF

WAR AND

PEACE

163

which they swore, were consecrated to God.

For

this

is

the kind

of

oath implied in the word

KO~~ZY,

as

BY

A

GIFT.

And

it

is

this error of theirs, which Christ

refutes.

VIII.

The principal effect of oaths

is

to cut short

disputes. ((An oath for confirmation,

as

the inspired

writer

of

the EpistZe

to

the Hebrews

has

said,

is

the end of

all strife.”

so

too we find in Diodorus Siculus, that an

oath was regarded among the Egyptians as the surest

pledge of sincerity that men could give.

So

that every

one, in taking an oath, should express the real purpose

of his mind, and render his actions conformable to those

expressions. There is a beautiful passage

on

this subject,

in Dionysius of Halicarnassus, who says, ((the last pledge

among men, whether Greeks or Barbarians, and it

is

a

pledge, which no time can blot out, is that which takes

the Gods, as witnesses to oaths and covenants.))

IX.

The substance of an oath too should be such, and

conceived in such words, as to include not only the divine,

but the human obligations, which it implies. For it should

convey to the person, who receives it, the same security

for his right, as he would derive from an express prom-

ise or a contract. But

if

either the words bear no refer-

ence to

a

person

so

as to confer upon him a right, or

if

they do refer to him but in such a manner that some

opposition may be made to his claim, the force of the

oath will, in that case, be such as to give that person no

right from it; yet he who has taken it must still submit

to the divine obligation, which the oath imposes. An

example of which we have in a person, from whom a

sworn promise has been extorted by fear. For here the

oath conveys no right, but what the receiver ought to

relinquish, for it has been obtained

to

the prejudice of

the giver. Thus we find the Hebrew Kings were re-

proved by the prophets, and punished by God for not

observing the oaths, which they had taken to the kings

of Babylon.

X.

The same rule applies not only to transactions

between public enemies, but to those between any indi-

viduals whatsoever. For he, to whom the oath is taken,

is

not the only person to be considered; but a solemn

regard must be paid to God, in whose name the oath

is

taken, and who possesses authority

to

enforce the obliga-

tion. For which reason

it

is

impossible

to

admit the

position

of

Cicero, that

it

is

no

breach

of

an

oath

to

164

HUGO GROTIUS

refuse paying to robbers the sum stipulated for having

spared one’s life

;

because such men are not to be ranked

in the number of lawful enemies, but treated as the

common enemies of

all

mankind,

so

that towards them

no faith ought to be kept, nor even the sanctity

of

an

oath observed.

XI. The power of superiors over inferiors, that is of

sovereigns over subjects, with respect to oaths, is the

next topic that comes under consideration. Now the act

of a superior cannot annul the perfect obligation

of

an

oath, whlch rests upon natural and revealed law. But as

we are not, in a state

of

civil society, entirely masters

of our own actions, which in some measure depend upon

the direction of the sovereign power, which has a two-

fold influence with respect to oaths, in the one case ap-

plying to the person who takes, and in the other, to the

person who receives them. This authority may be exer-

cised over the person taking the oath, either by declaring,

before it

is

taken, that it shall be made void, or by pro-

hibiting its fulfilment, when taken. For the inferior or

subject, considered as such, could not bind himself to

engagements, beyond those allowed by the sovereign leg-

islature. In the same manner, by the Hebrew Law, hus-

bands might annul the oaths

of

wives, and fathers those

of children, who were still dependent.

XII. In this place we may cursorily observe. that what

is

said in the precepts of Christ, and by St. James, against

swearing at all, applies not to an oath

of

affirmation,

many instances of which are to be found in the writings

of St. Paul, but to promissory oaths respecting uncertain

and future events. This is plain from the opposition in

the words of Christ.

((You

have heard it hath been said

by them

of

old time, thou shalt not forswear thyself,

but shalt perform unto the Lord thine oath. But

I

say

to you, swear not at all.

))

And the reason given for

it

by St. James, is that ((you fall not into hypocrisy,)) or

be found deceivers; for

so

the word

HYPOCRISY

signifies

in the Greek.

Again it is said by St. Paul, that all the promises of

God in Christ are

YEA

and AMEN, that is are certain

and undoubted. Hence came the Hebrew phrase, that a

just man’s

YEA

is

YEA,

and his

NO

is

NO.

On the

other hand, persons, whose actions differ from their

affir-

mations, are said to speak

YEA

and

NO,

that

is

their

affirmation

is

a denial, and their denial an affirmation.

THE

RIGHTS

OF

WAR

AND

PEACE

'65

In this manner

St.

Paul vindicates himself

from

the charge

of lightness

of

speech, adding that his conversation

had

not been

YEA,

and

'NO.

XIII.

Affirmations are not the only modes of obliga-

tion. For in many places signs have been used as pledges

of

faith; thus among the Persians giving the right hand

was considered the firmest tie.

So

that where any form

is

substituted

for

an oath, the violation

of

it will be an

act

of

perjury. It has been said of Kings and Princes

in particular, that their faith is the same as an oath. On

which account Cicero, in his speech for Dejotarus, com-

mends Caesar

no

less for the vigour

of

his arm in battle,

than

for

the sure fulfilment of the pledge and promise

of

his right hand.

CHAPTER

XV.*

ON

TREATIES

AND

ON

ENGAGEMENTS

MADE

BY

DELEGATES,

EXCEEDING

THEIR

POWER.

Public Conventions -Divided into treaties, engagements, and other

compacts- Difference between treaties and the engagements made

by delegates exceeding their powers

-

Treaties founded

on

the law

of

nature-Their origin -Treaties founded

on

still more extensive

principles-Treaties with those, who are strangers to the true reli-

gion,

prohibited neither by the Jewish nor Christian law

-

Cautions

re-

specting such treaties- Christians bound

to

unite against the enemies

of the Christian religion

-

Among

a

number

of

Allies in war, which

of

them have the first pretensions to assistance -Tacit renewal of

treaties-The effect

of

perfidy in one

of

the contracting parties con-

sidered

-

How far the unauthorized engagements of delegates are

binding, when the sovereigns refuse to ratify them -The Caudian

Convention considered

-

Whether the knowledge and silence of the

Sovereign makes those unauthorized conventions binding- The Con-

vention of Luctatius considered.

I.

ULPIAN

has divided conventions into two kinds, pub-

lic and private, and he has not explained a public con-

vention upon the usual principles, but has confined it to

a treaty of peace, which he alleges as his first example,

and he has made use of the engagements entered into

by the generals

of

two contending powers, as an instance

of private conventions. By public conventions therefore

he means those, which cannot be made but by the

authority and in the name of the sovereign power, thus

distinguishing them not only from the private contracts

of

individuals, but

ALSO

from the

PERSONAL

contracts of

sovereigns themselves.

And

indeed private injuries and

contracts,

no

less than public treaties frequently prove

the origin

of

wars. And as private contracts have been

already

so

amply discussed, the higher order

of

contracts,

which come under the denomination of treaties, will nec-

essarily form the leading part in our farther inquiries.

*The nature

of

oaths, contracts and promises having been

so

fully

discussed in the preceding chapters, the translation proceeds from the

thirteenth to

the

fifteenth chapter

of

the original, the fourteenth being

in

a

great

measure only

a

repetition

of

our

author’s former arguments

upon

the

SUbjeCt.-TRANSLATOR.

(1%)

THE

RIGHTS

OF

WAR

AND

PEACE

167

11.

and

111.

Now public conventions may be divided into

treaties, engagements, and other compacts.

The ninth book of Livy may be consulted on the dis-

tinction between treaties and engagements, where the

historian informs

us,

that treaties are those contracts,

which are made by the express authority of the sovereign

power, and in which the people invoke the divine venge-

ance on their heads,

if

they violate their engagements,

Among the Romans the persons employed

in

declaring

war and making peace, were in the conclusion of these

solemn treaties, always accompanied by the principal

herald, who took the oath in the name of the whole people.

A

sponsio,

or

ENGAGEMENT,

is what was made by persons,

who had no express commission for that purpose from the

sovereign power, and whose acts consequently required

a

further ratification from the sovereign himself.*

The Senate of Rome, we are informed by Sallust,

judged very properly in passing a decree, that no treaty

could be made without their consent and that of the peo-

ple. Livy relates that Hieronymus, king

of

Syracuse,

having entered into a convention with Hannibal, sent

afterwards to Carthage to have

it

converted by the state

into a league.

For

which reason Seneca the elder has

said, applying the expression to persons invested with a

special commission for that purpose, that a treaty, nego-

tiated by the general, binds the whole of the Roman

people, who are supposed to have made

it.

On

this subject the opinions of our author, and those

of

Vattel

will

reflect light

upon

each other. From the latter

of

whom, the following

extracts will place the matter in a clear point of view.

((

If

a

public per-

son,

an ambassador,

or

a

general

of

an army, exceeding the bounds

of

his commission, concludes

a

treaty or

a

convention without orders from

fie sovereign, or without being authorised

to

do it by virtue of his office,

the

treaty

is null,

as

being made without sufficient powers

:

it cannot

become valid without the express or tacit ratification of the sovereign.

The express ratification is

a

written deed by which the sovereign ap-

proves the treaty, and engages

to

observe it. The tacit ratification is

implied by certain steps which the sovereign is justly presumed to take

only in pursuance

o€

the treaty, and which he could not be Supposed to

take without considering

it

as concluded and agreed

upon.

Thus,

on

a

treatyof peace being signed by public ministers who have even exceeded

the orders

of

their sovereigns, if one of the sovereigns causes

troops

to

pass

on

the footing

of

friends through the territories of his reconciled

enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory

clause

of

the treaty, the ratification

of

the sovereign be required-as

such reservation

is

usnally understood to imply an express rstifcatios

it

is

absolutely requisite that the treaty

be

thus expressly ratified before

it

can

acquire

its

full

force.

By

the Latin term

sponsw,

we express

an

I

68

HUGO GROTIUS

But

in

monarchies, the power

of

making treaties be-

longs to the king alone, a maxim which the language

of

poetry,

no

less than the records of history, shews to have

been held in all ages. Euripides, whose sentiments are

always conformable to nature, and popular opinion, in

his Tragedy of the Suppliants, says,

((

It rests with Adras-

tus to take the oath, to whom, as sovereign, the sole

right

of

binding the country by, treaties belongs.

))

No

subordinate magistrates have such a power of bind-

ing the people

;

nor will the acts of a smaller portion

bind the greater, an argument used in favour of the

Romans against the Gauls.

For

there was a majority of

the people with Camillus, the dictator.

But it remains to be considered how far the acts

of

those, who have engaged for the people, without any

public authority, are binding. Perhaps it may be said

that the contracting parties have discharged their responsi-

bility when they have done all in their power towards

the fulfilment

of

their obligation. That might be the

case in promises, but the obligation in public contracts

is of a stricter kind. For the party contracting requires

something in return for the engagements he makes.

Hence the civil law, which rejects all promises made by

one person for the performance of some act by another,

renders him who engages for the ratification of a thing

liable to pay damages and interest.

IV.

The most accurate distinction in treaties, is that

which makes the foundation

of

some rest purely upon the

law

of

nature, and others upon the obligations, which

men have either derived from the law of nature, or

added to it. Treaties of the former kind are, in general,

agreement relating to affairs of state, made by a public person, who ex-

ceeds the bounds

of

his commission, and acts without the orders or com-

mand of the sovereign. The person who treats for the state in this

manner without being commissioned for the purpose, promises of course

to use his endeavours for prevailing

on

the state or sovereign

to

ratify

the articles he has agreed to

:

otherwise his engagements would be

nugatory and illusive. The foundation of this agreement can

be

no

other,

on

either side, than the

hope

of such ratification.))-Vattel, b. ii.

ch. xiv.

sect.

208,

209,

p.

219.

((The general of an army,

he

proceeds,

has

indeed by virtue of his commission,

a

power to enter, as circum-

stances may require, into

a

private convention,-a compact relative

to himself, to his troops,

or

to the Occurrences of war

:

but he

has

no

power to conclude a treaty

of

peace. He may bind himself, and the

troops under his command,

on

all occasions where his functions require

that he should have the power of treating; but he cannot bind the state

beyond the extent

of

his commission.))-Ibid. sect.

210.

p.

220.

THE

RIGHTS

OF

WAR

AND PEACE

169

made, not only between enemies, as a termination

of

war; but in ancient times were frequently made, and,

in

some degree, thought necessary among men in the for-

mation of every contract. This arose from that princi-

ple

in

the law of nature, which established a degree

of

kindred among mankind. Therefore

it

was unlawful for

one man to be injured by another. And this natural

justice universally prevailed before the deluge. But after

that event, in process

of

time, as evil dispositions and

habits gained ground, it was by degrees obliterated.

So

that one people’s robbing and plundering another, even

when no war had been commenced

or

declared, was

deemed lawful. Epiphanius calls this the Scythian fash-

ion. Nothing is more frequent in the writings of Homer

than for men to be asked, if they are robbers

1

A ques-

tion,

as Thucydides informs

us,

by

no

means intending

to

convey reproach, but purely for information. In an

ancient law of Solon’s mention is made of companies

formed

for

robbery: and, we

find

from Justin, that,

till

the times

of

Tarquin, piracy was attended with a degree

In the law of the Romans

it

was a maxim, that nations,

which had not entered into terms

of

amity,

or

into

treaties with them were not to be considered as enemies.

But

if

any thing belonging to the Romans fell into their

hands, it became theirs; or any citizen of Rome, taken

by them, became a slave; and the Romans would treat

any person belonging to that nation, in the same manner.

In this Case the right

of

postliminium* is observed.

So

at a remote period, before the times

of

the Peloponne-

sian war, the Corcyraeans were not considered as enemies

by the Athenians, though there was no treaty of peace

subsisting between them, as appears from the speech of

the Corinthians given by Thucydides. Aristotle com-

mends the practice of plundering barbarians, and in

ancient Latium an enemy signified nothing but a

foreigner.

In the class of treaties referred to in this section may

be ranked those made between different States

for

the

mutual preservation of the rights of hospitality and

commerce, as far as they come under the law

of

nature.

*

((The

right

of

postliminium is

that,

in

virtue

of

which,

persons and

things

taken by the enemy are restored to their fotmer State,

On

coming

again

into

the power

of

the nation

to

which they belonged.”

Vattel,

b.

iii.

ch.

xiv.

sect

204.

of

glory.

170

HUGO GROTIUS

Arco makes use of this distinction, in his speech to the

Achaeans, as reported by Livy, where he says he does

not require

an

offensive and defensive alliance, but only

such a treaty as may secure their rights from infringe-

ment by each other,

or

prevent them from harbouring

the fugitive slaves

of

the Macedonians. Conventions

of

this kind were called by the Greeks, strictly speaking,

PEACE

in opposition to

TREATIES.

V.

Treaties founded upon obligations added

io

those

of

the law of nature are jeither equal,

or

unequal.

Equal treaties are those, by which equal advantages are

secured

on

both sides. The Greeks call them

ALLIANCES,

and sometimes alliances upon an equal scale. But

treaties of the latter kind are more properly leagues

than treaties, and where one of the parties

is

inferior in

dignity, they are called

INJUNCTIONS,

or

INJUNCTIONS

ANNEXED

TO

COVENANTS.

Demosthenes in his speech

on

the liberty of the Rhodians says, all nations ought to

guard against forming such leagues, as approaching too

near

to

servitude.

Treaties of both kinds, whether of peace

or

alliance

are made from motives of some advantage to the parties.

By

equal treaties of peace, the restoration

of

prisoners,

the restoration

or

cession of conquered places, and other

matters providing

for

its due maintenance, are settled,

a

subject that will be more fully treated of liereafter, in

stating the effects and consequences of war. Treaties of

alliance upon equal conditions relate either to commerce,

or

to contributions

for

the joint prosecution of a war,

or

to other objects of equal importance. Equal treaties of

commerce may vary in their terms. For-instance it may

be settled that

no

duties shall be imposed upon the goods

of the subjects, belonging to each of the contracting

powers:

or

that the duties upon their respective com-

modities shall be lower than the duties upon those of any

other nation. The first of these examples may be found

in

an

ancient treaty between the Romans and Carthag-in-

ians,

in

which there is a clause, making an exception of

what

is

given to the notary and public crier. Or it may

be

settled that

no

higher duties than those existing at

the time the treaty is made shall be imposed,

or

that

they shall not be augmented beyond a certain rate.

So

in

alliances of war the contracting parties are re-

quired to furnish equal numbers of troops

or

ships, a kind

of alliance which,

as

Thucydides explains it, calls upon

THE

RIGHTS

OF

WAR

AND

PEACE

171

the united powers to hold the same states for common

enemies

or

friends: we find, in many parts

of

Livy,

alliances

of

this description among states,

for

the mutual

defence

of

their territories

or

for the prosecution

of

some

particular war,

or

against some particular enemy,

or

against all states excepting their respective allies.

Po-

lybius has given a treaty

of

this kind, made between the

Carthaginians and Macedonians. In the same manner

the Rhodians bound themselves by treaty to assist Atigo-

nus Demetrius against all enemies except Ptolemy.

There are other objects too for which equal treaties are

made. Thus one power may bind another to build no

forts in their neighbourhood which might prove an annoy-

ance, to give no encouragement to rebellious subjects, to

allow the troops

of

an enemy no passage through their

country.

VI.

From equal treaties, the nature of unequal treaties

may easily

be

understood. And where two powers contract,

this inequality may be on the side either

of

the superior,

or

of

the inferior power.

A

superior power may be said to

make an unequal treaty, when

it

promises assistance without

stipulating for any return,

or

gives greater advantages

than it engages to receive, And on the part

of

the in-

ferior power this inequality subsists when, as Isocrates

says in hi,s

PANEGYRIC,

her privileges are unduly de-

pressed;

so

that engagements of this kind may be called

injunctions

or

commands rather than treaties. And these

may,

or

may not, be attended with a diminution

of

their

sovereign power.

Such a diminution of sovereign power followed the

second treaty between the Carthaginians and Romans,

by which the former were bound to make no war but

with the consent

of

the Roman people;

so

that from

that time, Appian says, the Carthaginians were com-

pelled by treaty to comply with the humour

of

the Ro-

mans. To this kind may be added a conditional surrender,

except that

it

leads not to a

DIMINUTION,

but to an

ENTIRE TRANSFER

of

the sovereign dignity and power.

VII.

The burdens attached to unequal treaties, where

no

diminution of sovereignty takes place, may be either

transitory

or

permanent.

TRANSITORY

burdens are those, by which the payment

of

certain Sums of money

is

imposed, the demolition

of

certain works and fortifications, the cession

of

certain

countries and the delivery of ships

or

hostages are

172

HUGO

GROTIUS

required. But

PERMANENT

conditions are those, which re-

quire the tribute of homage and submission from one

power to another.

Nearly approaching to such treaties are those, by

which one power is debarred from having any friends

or enemies, but at the pleasure of another, or from al-

lowing a passage and supplies to the troops of any state,

with whom that power may be at war. Besides these

there may be conditioas of an inferior and less important

kind; such as those, which prohibit the building of forts

in certain places; maintaining armies, or having ships

beyond a certain number; navigating certain seas, or

raising troops in certain countries; attacking allies or

supplying enemies. Some conditions indeed go

so

far

as

to

prohibit a state from admitting refugees, and to

demand annulling all former engagements with every

other power. Numerous examples of such treaties are to

be found in historians both ancient and modern.

Unequal treaties may be made not only between the

conquerors and the conquered but also between mighty

and impotent states, between whom no hostilities have

ever existed.

VIII.

In considering treaties, it is frequently asked,

whether it be lawful to make them with nations, who are

strangers to the Christian religion; a question, which,

according to the law of nature, admits not of a doubt.

For the rights, which it establishes, are common to all

men without distinction

of

religion.

The gospel has made no change in this respect, but

rather favours treaties, by which assistance in a just

cause may be afforded even to those, who are strangers

to religion. For to embrace opportunities of doing good

to all men is not only permitted as laudable, but enjoined

as

a precept. For in imitation

of

God,

who makes his sun

to rise upon the righteous and the wicked, and refreshes

them both with his gracious rain, we are commanded to

exclude

no

race of men from their due share of our serv-

ices. Yet, in equal cases, it admits of no doubt, that

those within the pale

of

our own religious communion

have a preferable claim to our support.

IX.

In

addition to the foregoing arguments we may

observe that as all Christians are considered as members

of

one body, which are required to feel for the pains and

sufferings of each other, this precept applies not only to

individuals, but to nations and kings in their public

THE RIGHTS OF WAR

AND

PEACE

I73

capacity. For the rule of duty

is

not to be measured by

the inclination of individuals; but by the injunctions of

Christ. And in some cases the ravages of an impious

enemy can only be opposed by a

firm

alliance among

Christian kings, and governments. And

it

is

a

duty

from which nothing, but inevitable necessity,

and

their

immediate attention being engrossed

by

the prosecution

of other wars, can excuse them.

X.

Another question frequently arises, which

is,

when

two states are engaged in war with each other, to which

of them a power, equally allied to both, ought in prefer-

ence to give assistance. Here too we must observe there

can be no obligation to support unjust wars. On which

account that confederate power, which has justice on its

side, will have a claim to preference,

if

engaged in war

with another not comprehended in the number of con-

federates, or even

if

engaged with one of the confeder-

ates themselves.

But

if

two powers engage in a war, equally unjust

on

both sides, a third power, united

in

confederacy with

both, will prudently abstain from interference. Again,

if

two powers allied to us are engaged in a just war

against others, with whom we have no connection; in the

supplies

of

men or money that we furnish to either we

ought to follow the rule, observed in the case of per-

sonal creditors.

*

But if personal assistance, which cannot be divided, is

required of the contracting party, in that case the pref-

erence must be given to the engagements of the longest

standing. However the case of a subsequent treaty,

which makes the engagements of a more binding

and extensive nature, will form an exception to this

rule.

XI.

The tacit renewal of a treaty ought not to be pre-

sumed upon at the expiration of the period, limited for

its continuance, unless certain acts be performed, which

can expressly be construed as a renewal of

it,

and can

be taken in no other sense.

*((Personal creditors are in the Roman law called 'Chirographarii,

because they commonly have some bond

or

note

of

hand

for

the debt.

And where there are several such creditors, if the debtor's estate is

not sufficient to satisfy them all, each

has

his share assigned in

pro-

portion to the largeness

of

the debt, without any regard

to

the

time,

when it was contracted.

But

in mortgages it was different, the debt

of

longest standing was

to

be

first

satisfied.

D-

Barbeyrac.

I74

\

HUGO

GROTIUS

XII.

If

one of the parties violates a treaty, such a vio-

lation releases the other from its engagements. For every

clause has the binding force of a condition. And as an

example of this, a passage from Thucydides may

be

quoted, where that historian says that ((for one power to

accede

to

a new confederacy, and to desert an ally who

has neglected to fulfil his engagements, is no breach of

a treaty; but not to assist another power in conformity

to sworn engagements amounts to a violation thereof.”

And this is generally true, except where it has been

agreed to the contrary, that a treaty shall not be null

and relinquished for trifling disgusts and miscarriages.

XIII. Conventions are as various and numerous as trea-

ties, and the distinction made between them is owing

more to the difference of power in those by whom they

are made, than to any real difference in their own nat-

ure. But there are two particular points of inquiry ma-

terially connected with all conventions, ‘the first of which

relates to the extent of the negotiator’s obligation, when

the sovereign or the state refuses to ratify a convention,

whether he is bound to make an indemnity to the other

party for the disappointment, to restore things to the

situation they were in before he treated, or to deliver

up his own person. The first opinion seems conformable

to the Roman civil law, the second to equity as it was

urged by the tribunes of the people,

L.

Livius, and

J.

Melius, in the dispute about the peace

of

Caudium

;

*

but

the third is that most generally adopted, as was done

respecting the two famous conventions of Caudium and

Numantia. But there

is

one caution particularly to be

observed, and that is, that the sovereign is no way

bound by such unauthorised conventions, until he has

ratified them. In the convention alluded to, if the Sam-

nites had intended to bind the Roman people, they

should have retained the army at Caudium, and sent

ambassadors to the senate and people at Rome, to discuss

the treaty, and learn upon what terms they chose to

redeem their army.

*When the Roman army had passed under the yoke at Caudium,

upon

their return, when the matter was referred to the senate, it

was

said that as the convention

was

made without the consent

of

the

senate or people, the Roman people were not bound

by

it,

and a pro-

posal was made that

those

who had signed the treaty should again

be

given up to theenerny,

thus

the people would

be

released

from

the

engagement. This proposal

was

agreed

to,

and a decree

to

that purpose

passed.

THE

RIGHTS

OF

WAR

AND

PEACE

175

XIV.

Another question is, whether the knowledge and

silence of the sovereign bind him to the observance of

a

convention. But here

it

is necessary to make a distinc-

tion between an absolute convention, and one made upon

condition of its being ratified by the sovereign. For as

all conditions ought to be literally fulfilled, such a con-

dition, on failure of fulfilment, becomes void.

This principle was very properly observed in the con-

vention made between Luctatius and the Carthaginians; to

which the people refused to accede, as it had been made

without their consent.*

A

new treaty therefore was made

by public authority.

The next thing to be considered is, whether there may

not be some act of consent besides silence. For without

some visible act, silence is not of itself sufficient to war-

rant a probable conjecture of intention. But if certain

acts are done which can be accounted for upon no other

grounds than those of consent, they are supposed to

ratify a treaty. Thus

if

the convention of Luctatius had

contained many clauses, some of them relinquishing cer-

tain rights, and those clauses had been always duly ob-

served by the Romans, such observance would be justly

taken for a ratification of the treaty.

*Luctatius had inserted this clause that the agreement should be

good

and valid,

only

in case it was approved by the Roman

people.-

Liv. lib, xxi. c. xix. See

likewise

Polybius, lib. iii

c.

xxi

CHAPTER

XVI.

THE INTERPRETATION

OF

TREATIES.

The external obligation

of

promises-Words where other conjectures

are wanting

to

be taken in their popular meaning

-

Terms of art

to

be interpreted according

to

the acceptation of the learned in each

art, trade, and science -Conjectures requisite to explain ambiguous

or seemingly contradictory terms- Interpretation of treaties from

the subject-matter

-

From consequences, from circumstances and

connection-Conjectures taken from motives-The more strict

or

more extensive interpretation

-

Treaties favourable, odious, mixed

or indfferent-The good faith of kings and

nations

in treaties

of

equal validity with law-Rules of interpretation formed from the

above named distinctions-Whether the word allies, in

a

treaty,

is

limited to those, who were such

at

the time of making it,

or

applies

to all who are, or hereafter may become such-Interpretation of

the prohibition

of

one party’s making war without the consent

or

injunction

of

the other- Of the freedom granted to Carthage-Dis-

tinction between personal and real treaties

-

A

treaty made

with

a

king continues even during his expulsion by

an

usurper,

such

a

treaty extends

not

to

an invader-What kind

of

promises ought to

have the pre€erence- The extent of obvious conjectures -The per-

formance of

a

commission by doing something equivalent

-

Inter-

pretation restricted more closely than the bare signification of the

words implies

-

From an original defect

of

intention

-

From failure

of

the sole motive

-

From a defect in the subject

-

Observations

on

the last named conjectures

-

Emergencies repugnant

to

the original

intention, by rendering it unlawful

or

burdensome- Conjectures

taken from

a

comparison of one

part

of the writings with another-

Rules

to

be

observed-

In

dubious cases, writings not absolutely

requisite to the validity of

a

contract-Contracts of Sovereigns

not to

be

interpreted by the Roman law -Whether the words of the

person accepting

or

offering the engagement ought

to

be

most

regarded

-

This explained by

a

distinction.

I.

IF

WE

consider the promiser alone, he is naturally

bound to fulfil his engagements.

Good

faith, observes

Cicero, requires that a man

should

consider as well what

he intends, as what he says. But as acts of the mind

are not, of themselves visible,

it

is

necessary to

fix

upon

some determinate mark,

to

prevent men from breaking

their engagements, by allowing them

to

affix their own

interpretation to their words.

It

is

a right, which natural

reason dictates, that every one who receives a prom-

ise, should have power to compel the promiser to do

what a fair interpretation of his words suggests.

For

(

176)

THE

RIGHTS

OF

WAR

AND

PEACE

177

otherwise it

would

be impossible for moral obligations

to

be brought to any certain conclusion. Perhaps

it

was

in

this sense that Isocrates, treating of agreements, in

his prescription against Callimachus, maintains that the

laws enacted

on

this subject are the common laws of all

mankind, not only Greeks, but barbarians also.

It

is

for this very reason, that specific

forms

have been assigned

for treaties, which are to be drawn

up

in terms

of

un-

equivocal and certain meaning. The proper rule of

interpretation is to gather the intention

of

the parties

pledged, from the most probable signs. And these are

of

two kinds, namely, words and conjectures, which may

be considered either separately, or together.

11.

Where we have

no

other conjecture to guide

us,

words are not to

be

strictly taken in their original or

grammatical sense, but in their common acceptation, for

it

is

the arbitrary will

of

custom, which directs the laws

and rules of speech.*

It

was a foolish act of per-

fidy therefore in the Locrians, when they promised they

would adhere to their engagements

as

long as they stood

upon that soil, and bore those heads upon their shoul-

ders, in order to evade their promise to cast away the

mould, which they had previously put within their shoes,

and the heads of garlick, which they had laid upon their

shoulders. Acts of treachery like these, Cicero, in the

third book of his Offices, has properly observed, instead

of

mitigating, tend to aggravate the guilt of perjury.

111.

In terms of art which are above the comprehen-

sion

of the general bulk of mankind, recourse, for expla-

nation, must be had to those, who are most experienced

in that art; thus from consulting legal writers, we may

conceive the nature of particular crimes, or from the

pages

of

the same authors, derive

our

notions

of

sover-

eign power.

*((In

all human affairs, where absolute certainty

is

not

at

hand

to

point out the way,

we

must

take

probability

for

our guide.

In

most

cases

it

is

extremely probable that the parties have expressed them-

selves

conformably

to

the established

usage:

and such probability ever

aEords

a

strong presumption, which cannot be overruled but

by

a

still

stronger presumption

to

the contrary. Camden,

in

his history

of

Queen

Elizabeth, gives

us

a

treaty, in which it is expressly said that

the

treaty

shall

be

precisely understood according

to

the

force

and

ep-

propriate signification

of

the terms.))- Vattel,

b.

ii.

ch.

xvii.

sect.

271.

On

the

same subject, Judge Blackstone says, that ((words are generally to

be

understood

in

their usual and most

known

signification

;

not

so

much

regarding the propriety

of

grammar,

as

their general

and

popular

we.#-

Introduct. to

Corn.

ch,

ii.

p.

59

xa

178

HUGO

GROTIUS

It

is a just remark of Cicero's, that the language

of

logic is not that of daily and familiar intercourse: the

writers

of

that class have phrases peculiar to themselves:

which indeed is the case with arts

of

every description,

So

in treaties, where military arrangements occur, an

army is defined to be a number of soldiers capable of

OPENLY

invading a foreign, or an enemy's country. For

historians everywhere make

a

distinction between the

private incursions of robbers, and what is done by

a

law-

ful and regular army. What constitutes an army must

be therefore judged of by the enemy's force, Cicero

defines an army to consist of six legions and auxiliaries.

Polybius

says,

that a Roman army in general amounted

to sixteen thousand Romans, and twenty thousand aux-

iliaries. But a military force might be composed of a less

number of troops than this. In the same manner the

number

of

ships sufficient

for

any purpose will amount

to a fleet, and a place able to hold out against an enemy

may be called a fort.

IV.

It

is necessary to make use of conjecture, where

words or sentences admit

of

many meanings:

A

mode of

expression when included in one word, is called by

Logicians,

a

synonymous term, and, when extending to

two or more words, a doubtful phrase. In the same

manner

it

is

necessary to have recourse to conjecture

whenever

a

seeming contradiction occurs in the expres-

sions

of

a treaty. For in that case we must try to

discover such conjectures, as will reconcile, if possible,

one part with another. For if there be an evident con-

tradiction, the contracting parties by their latter deter-

minations, must have intended to abrogate their former;

as no one can design to make contradictory resolutions

at the same time. Indeed all acts depending upon the

human

will,

as in the case of laws and testaments, which

depend upon the will

of

one party, and in contracts and

treaties, which depend upon that of two or more, all

these acts are liable to changes, with a subsequent change

of

will

in

the parties concerned. In all such cases any

obscurity

in

the language obliges

us

to

have recourse to

conjectures, which are sometimes

so

obvious, as to point

out a meaning directly contrary to that of the words in

their usual acceptation. Now the principal sources of

conjecture are to be found in the subject-matter,

the consequences, and the circumstances and connec.

tion.

THE RIGHTS

OF

WAR AND PEACE

I79

V. From the subject or matter, as for instance, in the

.

word day. Thus if a truce be made for thirty days, here

civil and not natural days are meant.*

So

the word donation is sometimes used to signify

a

transfer, according to the nature of the business.

In

the

same manner too the word arms, which in general sig-

nifies military instruments, is sometimes applied to troops,

and may be taken in either sense, according to the par-

ticular occasion. Every interpretation must be given

according to the intention understood. Thus the promise

of a free passage given upon the evacuation of

a

town,

implies also that the troops shall pass without molesta-

tion.

If

a number of ships are to be given up, perfect

and not mutilated ships are meant, And in all similar

cases a similar judgment must be formed according to

the natural tenor

of

the words.

VI. Another source of interpretation is derived from

the consequences, especially where

a

clause taken

in

its

literal meaning would lead to consequences foreign or

even repugnant to the intention of a treaty. For in

an ambiguous meaning such an acceptation must be taken

as will avoid leading to an absurdity or contradiction.

The cavil of Brasidas therefore is highly abominable,

who, promising that he would evacuate the Boeotian

territory, said he did not consider that as Boeotian terri-

tory, which he occupied with his army; as if the ancient

bounds were not intended, but only what remained un-

conquered, an evasion, which entirely annulled the treaty.

VII. From the circumstances or context another source

of interpretation is derived.

No

inconsiderable light may

be thrown upon the meaning of an expression from the

circumstance

of

its being used by the same person to

express the same intentions

on

other similar occasions,

and from its relation to what goes before, and what

follows the place, where it stands. For in all doubtful

cases, we have reason to suppose that the contracting

parties mean to be consistent with their former opinions

and intentions.

Thus

in Homer, in the agreement be-

tween Paris and Menelaus, that Helen should be given

*The word

DAY

is

understood

of

the

NATURAL

DAY,

or

of the time

during which the

sun

affords

us

his light, and

of

the

CIVIL

DAY,

or

the space

of

twenty-four hours. When

it

is

used

in

a

convention to

point

out

a

space

of

time, the subject itself manifestly shews that the

parties mean the civil day,

or

the term of twenty-four

hours.)>-Vattel,

b.

ii.

ch. xvii sect.

280.

I80

HUGO

GROTIUS

up

to the conqueror, when compared with what follows,

it

is

evident that by the conqueror is meant the combat-

ant, who killed the other. This rule of interpretation,

Plutarch illustrates by the conduct of judges,

((

who pass-

ing

by what is obscure rest their decisions upon clear

and

unambiguous points.”

VIII.

As

to the motives, which are sometimes taken

for a rule of interpretation, there may be other sub-

stantial ones, besides those immediately expressed, for

the passing of a law or the making

of

a treaty. Yet the

strongest conjecture is that which arises from certain

proof that the will was actuated by some reason, operat-

ing as

a

sole and sufficient motive. For there are

frequently

MANY

motives, and sometimes the will is

influenced by its own choice independent of any other

reason. In the same manner a grant made, in contemp-

lation of a marriage, will be void, if the marriage never

takes place.

IX.

It

is further to be observed that many words have

a

variety of acceptations, some more limited and others

more extensive; which may

be

owing either to the appli-

cation of a general name to a particular class of things,

as

in

the words kindred and adoption; or to the use of

masculines to express animals both

of

the male and female

kind, where

nouns

of

a common gender are wanting. In

terms

of

art too, words are often taken in a metaphorical

or extended sense: thus

in

the civil law death signifies

banishment; but in its popular acceptation a dissolution

of the parts of the natural body.

X.

In

promises likewise, some things are

of

a favour-

able, some an odious, and others of a mixed or indifferent

description, Favourable promises are those which contain

an equality of terms, or which bear some relation to the

common

good,

the magnitude and extent of which increases

the

favour of the promise:

so

that all engagements more

conducive to peace than to war are to be considered as

those of a favourable complexion, and alliances for mutual

defence are always regarded as a more laudable object

than those for offensive war.

Treaties of an odious kind are those which lay greater

burdens

on

one party than

on

the other, which contain

penalties for non-performance, or which lead to an abro-

gation or infraction

of

former treaties. Whereas, though

engagements of a mixed nature may create a deviation

from

former treaties, they may

be

taken either

in

a

THE

RIGHTS

OF

WAR

AND

PEACE

I81

favourable or odious light, according to the magnitude,

or

object of the change produced.

If

it

be for the sake

of

peace, it is better, taking all circumstances into consid-

eration, to rank them with those of

a

favourable kind.

XI.

The distinction made by the Roman law between

acts of equity and those of strict justice, cannot

GENERALLY

be applied to the law of nations, though it may

in

some

cases be adopted. Thus in any transaction between the

subjects of two countries, in each of which the same

form

of

legal proceeding

is

observed, the parties are

supposed to treat without any intention of deviating from

the common rule and form, unless they have expressly

determined to the contrary. But in acts

for

which

no

common rule is prescribed, as in donations and free

promises, there the parties are supposed to treat accord-

ing to the strict letter

of

the agreement.

XII.

After the establishment

of

the former positions,

the subject naturally proceeds to the rules themselves,

which are to be observed in the interpretation

of

treaties.

And in the first place we may remark, that in things,

which are not of an odious nature, words are to

be

taken

strictly in their popular meaning, and where they admit

of exceptions,

or

have more significations than one, it is

lawful to use that which is most extensive.

As

it has

been already observed, that both Logicians and Gram-

marians frequently use particular terms in a general

sense. Thus Cicero in pleading for Caecina, justly main-

tains that the interlocutory decree, ordering

THAT

THE

STATED

IN

THE

POSSESSION,

implies not only an ejectment,

but

extends to any forcible prevention of the owner’s

taking possession.

In

things of a favourable nature, if the parties engaged

are acquainted with the legal principles, upon which they

proceed,

or

rest

upon

the judgment

of

those who are

so,

the words used may be taken in their most extensive

signification, including even terms of art and of law.*

f(

It is a fundamental rule of construction, that penal statutes

shall

be

construed strictly, and remedial statutes shall

be

construed liber-

ally. It was one of the

laws

of

the twelve tables of Rome, that

whenever there was a question between liberty and slavery, the pre-

sumption should

be

on

the side of liberty. This excellent principle

our

law

has

adopted

in

the construction of penal statutes: for when-

ever any ambiguity arises

in

a statute introducing a new penalty or

punishment, the decision shall be

on

the side

of

lenity

and

mercy;

or

in

favour of natural right and liberty: or, in other words, the decision

PERSON EJECTED FROM HIS INHERITANCE SHOULD

BE

REIN-

182

HUGO

GROTIUS

Again, We must never have recourse to a metaphorical

interpretation, except where the literal meaning would

lead to a direct absurdity,

or

would defeat the intention

of

a treaty.

On the other hand a passage may be interpreted in

a

more limited signification, than the words themselves

bear,

if

such interpretation be necessary, to avoid injus-

tice or absurdity.

If

no such necessity exist, but equity

4

or utility manifestly require a restriction to the literal

meaning, it must be most rigidly adhered

to,

except

where circumstances compel

us

to do otherwise. But in

things

of

an odious nature a figurative expression may

be allowed in order to avoid inconvenience or injustice.

Therefore, when any one makes a grant, or relinquishes

his right, though he express himself in the

MOST

GEN-

ERAL

terms, his words are usually

RESTRICTED

to that

meaning, which

it

is probable he intended. And in cases

of this kind, the hope of retaining a thing is sometimes

taken for the act

of

possession. In the same manner

it

is

understood that subsidies

of

men, promised by one

party only, are to be maintained at the expence

of

the

power, who requires them.

XIII.

It

is

a famous question whether the word

ALLIES

includes only those who were such at the time of mak-

ing the treaty, or those who might afterwards become

so:

as was the case in the treaty made between the Roman

people and the Carthaginians at the conclusion of the

war that had originated in a dispute about Sicily, by

which treaty it was stipulated that both powers should

forbear attacking the allies

of

each other. Hence the

Romans inferred that although the convention made with

Asdrubal, by which he was prohibited from passing the

Iberus, had been of no service to them, as

it

had not

been ratified by the Carthaginians, yet

if

the Cartha-

shall be according to the strict letter in favour

of

the subject.

And

though the judges in such Cases may frequently raise and solve diffi-

culties contrary to the intention of the legislature, yet

no

further

inconvenience

can

result, than that the

law

remains as it was

before the statute, and it

is

more consonant to principles of liberty,

that the judge should acquit whom the legislator intended to punish,

than that he should punish whom the legislator intended to discharge

with

impunity.

But remedial statutes must

be

construed according

to

the spirit: for in giving relief against fraud,

or

in the furtherance

and extension of natural right and justice, the judge may safely go

even beyond that which existed in the minds of those who

framed

the

law.)”-Christian’s Notes

on

Blackst. Comm. Introd. p.

87.

THE

RIGHTS

OF

WAR

AND

PEACE

183

ginians sanctioned the‘conduct of Hannibal in his attack

upon the people of Saguntum with whom the Romans,

after the making of that convention, had entered into an

alliance, they should consider themselves as authorised

to declare war against the Carthaginians for having vio-

lated a solemn treaty. Upon which Livy reasons in the

following manner, ((By the clause

in

favour

of

allies

on

both sides, there was sufficient security

for

the Sagun-

tines,

For

there was no limitation of the words to those,

who were allies at that time, nor were they such as to

exclude either power from making new alliances. But

if

both sides were at liberty to make new alliances, who

could think it

just

to depriv? the new allies of that pro-

tection to which they would be entitled from treaties of

amity

?

The exclusion could reasonably go

no

further

than to declare that the allies

of

the Carthaginians should

not be seduced to renounce their engagements, nor

if

they did

so,

be admitted into alliance with the Ro-

mans.”

,

The last passage is taken, almost word for word, from

the third book

of

Polybius. On which we may observe

that the word

ALLIES

may strictly mean those, who were

so

at the time, when the treaty was made, and, without

any forced interpretation, may also be extended to em-

brace those, who afterwards became such. To which of

these interpretations the preference

is

to be given may

be seen from the rules above given: and according to

those rules,

it

will be found, that alliances formed after

the making

of

the treaty will not be comprehended in it,

because it relates to the breach of a treaty, the violation

of which

is

an odious act, and tends to deprive the

Carthaginians of the liberty

of

redressing themselves by

force against those who were supposed to have injured

them

;

a liberty sanctioned by the law of nature, and not

to be abandoned on any slight occasion. Were the

Romans debarred then by this rule from making

any

treaty with the Saguntines, and defending them after

they became allies?

No!

they had a right to defend

them, not by virtue of any treaty, but upon principles

of natural justice, which

no

treaty can annul. The

Saguntines therefore with respect to both powers were

in the same situation, as

if

no

engagement had been

made in favour of allies. In this case,

it

was

no

breach

of

treaty for the Carthaginians, upon just grounds, to

commence hostilities against the Saguntines.

nor

for

the

184

HUGO

GROTIUS

Romans to defend them. Upon the same principle,

in

the

time of Pyrrhus, it had been stipulated, by treaty, be-

tween the Carthaginians and Romans, that

if

either

of

them afterwards entered into any engagement with

Pyrrhus, the party

so

contracting should reserve to itself

the right of sending succours to the other,

if

attacked

by that king. Though in that case the war

ON

BOTH

SIDES

could not be just, yet it would involve

no

infrac-

tion of any treaty. This is an example of a case in

equal treaties.

XIV. The case of an unequal treaty may be put,

where it

is

agreed that one of the confederate parties

shall not make war, without the consent, or by the

injunction of the other, which was stipulated in the

treaty between the Romans and Carthaginians, after

the conclusion of the second Punic war. When the term

WAR

is applied to war of every description, particularly

to offensive rather than defensive war; in a dubious

case,

it

must be limited to its proper signification, lest

the treaty should operate as too great a restraint

\pori

the liberty of that power, which has engaged in the

unequal treaty.

XV. Of the same kind is the promise given by the

Romans, that Carthage should be free, which could never

mean the enjoyment of complete independence,

by

a

people, who had long before lost the right of making

war, and many of their other privileges. Yet it left

them some degree of liberty,

so

much at least, that they

should not be obliged to remove the seat of their govern-

ment at the command of any foreign power, and gave them

a

pledge that their city should not be disturbed.

It

was

in vain then for the Romans to urge that

it

was anly

the city which was intended. Whereas those acquainted

with the use of metaphorical language know that by. the

city is frequently meant the inhabitants, and govern-

ment with its privileges, and not the mere walls and

houses. For the term,

BEING LEFT

FREE,

implies that

the people should enjoy their own laws.

XVI. The nature of persona1 and real treaties is a fre-

quent subject of inquiry, which may properly be examined

in this place. Indeed in all transactions with a free

people, the engagements entered into with them are of a

real nature; because the subject of them is a permanent

thing.

So

permanent, that, although a republican be

changed into a regal government, a treaty will remain

in

THE RIGHTS

OF

WAR

AND

PEACE

185

force: for the political body continues the same, although

the head be changed, and the sovereign power, which

before was diffused among many members,

is

now cen-

tered in one. Yet this rule will admit

of

an exception,

where

it

is evident that the specific form of government

made an essential part of the treaty, as when two states

make a federal union for the mutual preservation of their

political systems. But

if

a treaty be made with

a

KING

OR

SOVEREIGN

PRINCE,

it does not consequently follow that

it is to be considered only as a

PERSONAL

and not

a

REAL

treaty. For the name of

a

person may be inserted

in

a treaty, not merely to give

it

the character

of

a personal

treaty, but to point out the contracting parties. And this

will be still more evident,

if,

as is usual in most treaties,

a clause is annexed declaring it to be perpetual, or made

for the good

of

the kingdom, or with the king himself, and

his successors, and

it

will also be considered as a real

treaty, even if it is stated to be passed for a definite time.

The treaty between the Romans and Philip, King of the

Macedonians, seems to have been of this description,

which, upon the refusal of his

son

to continue it, gave

rise to

a

war.

Other

forms

too besides those already named, and the

subject itself, will frequently supply

no

improbable

grounds of conjecture. But

if

the conjectures are equal

on

both sides, it will remain that favourable treaties are sup-

posed to be real or permanent, and odious ones only per-

sonal. All treaties of peace or commerce are favourable.

Yet all treaties of war are not odious, especially those

of the defensive kind, such a character belonging only to

offensive wars, from the Fontemplation of the calamities

which they inflict. It is presumed too, that in the forma-

tion of treaties, the character of each party is taken into

the account, and that both are persuaded that neither of

them will commence hostilities, but from just and impor-

tant causes.

What is usually said of societies terminating with the

death of the parties, has

no

connection with this subject,

but relates to private societies, the cognizance of which

belongs to the civil law. Whether it was right

or

wrong

therefore in the people of Fidenae, the Latins, Tuscans

and &bines, upon the death of Romulus, Tullus, Ancus,

Priscus, Servius, to abandon the respective treaties made

with those kings, it is impossible

for

us

now to decide,

those

treaties being

no

longer extant.

On

the same point,

I

86

HUGO

GROTIUS

Justin maintains a discussion, whether those states, which

had been tributary to the Medes, were upon a change of

government, released from their obligations. For the

thing to be considered is, whether the convention with

the Medes had been a voluntary act

of

their own. Indeed

the argument

of

Bodinus can by no means be admitted,

which is, that treaties made with kings extend not to

their successors;

For

the obligation of an oath

is

limited

to

the person

of

him, who takes it. It is true that the

oath itself can bind only the person who takes

it;

yet

the engagements, which it confirms, will be binding upon

his heirs. Nor is it to be taken for an established maxim,

that oaths are the only foundation, on which treaties

rest. The engagement itself

is

sufficiently binding, the

oaths being only added to give it the greater sanctity.

In the Consulship

of

Publius Valerius, the Roman people

had taken an oath to muster at the command of the

Consul. Upon his death, he was succeeded by Lucius

Quintius Cincinnatus. Some of the tribunes began to

quibble, pretending that the people were released from

their obligation. Upon which Livy, in his third book,

remarks, that ((at that time they had not degenerated

into the disregard of religious obligations, which marked

his age: nor did every one allow himself a latitude in ex-

plaining oaths, and laws, but thought that he was bound

to conform to their literal meaning.”

XVII. A treaty made with

a

king continues in force,

even though the same king

or

his successor should be

banished from the kingdom by rebellious subjects. For

the rights of a king, among which his alliances may be

reckoned, remain unimpaired, during the temporary loss

of his throne.

A

case to which the expression of Lucan

may be applied, that ((order never loses its rights under

any change of circumstances.))

XVIII. On the other hand, any war,

if

it be with the

consent of the lawful sovereign, made upon the invader

of

his kingdom, or upon the usurper

of

a free people’s

rights before his usurpation has received public sanction,

will be deemed no infraction of any former treaty with

the established authorities of that kingdom or country.

For acts of usurpation convey not immediately any right

beyond that

of

bare possession. And this is what was

said by Titus Quintius to Nabis, ((We made no treaty of

alliance and amity with you, but with the just and law-

ful king

of

the Lacedaemonians.

))

For in treaties the

THE

RIGHTS

OF WAR AND PEACE

I

87

characters of

KING,

SUCCESSOR,

and the

LIKE,

carry with

them an idea of

a

peculiar and lawful right, which must

always render the cause of

USURPERS

odious.

XIX.

It

was a question formerly discussed

by

Chrysip-

pus, whether a prize promised to him, who

firs:

reached

the goal, could be given to two, who reached

it

at the

same time, or to neither. But as rewards of merit are

things of a favourable nature,

it

is

the juster opinion that

they should divide the prize. Although Scipio, Caesar

and Julian acted more liberally, in giving the entire

prizes to each

of

those who had ascended the walls to-

gether.

What has been already said upon the literal or

figur-

ative application of the words. in interpreting treaties,

will be sufficient.

XX.

There is also another kind of interpretation, arising

from conjectures, which apply exactly to the signifi-

cation

of

the words containing

a

promise

or

engage-

ment; and that is of a twofold description, either

extending or limiting the meaning. But

it

is more diffi-

cult to extend than to limit the acceptation

of

expressions.

For as in all matters the want

of

one essential requisite

is

sufficient to defeat their effect;

so

in engagements,

those conjectures, which extend the obligation are not

readily to be admitted. And it

is

much more difficult

here than in the case above mentioned; where words

allow a more extensive but less familiar acceptation,

For here

it

is seeking a conjecture to extend the words

of a promise: the conjecture therefore, which is to create

an obligation, ought to be very certain. Nor

is

it

suffi-

cient that there is some resemblance in the motives;

for the motive produced to confirm an obligation must

be exactly the same as that of the case under consider-

ation. Neither

is

it always proper to allege a motive for

extending an obligation

;

because, as

it

has been already

said, motives, in actuating

us

to form engagements, may

sometimes be swayed by the will which often acts inde-

pendently

of

any just motive.

To

authorise therefore

such an extension, it must be evident that the motive,

produced as an example and authority, was the sole and

effectual cause, which influenced the promiser, and that

he considered

it

in the same extensive view; for other-

wise

it

would have been unjust and prejudicial. The

ancients in their treatises on rhetoric follow the same

rule, when, in speaking

of

the

LETTER

and

DESIGN,

they

188

HUGO

GROTIUS

give

as

one invariable form of expressing the same senti-

ment, but in their syllogisms or arts of reasoning they

point out a way of interpreting what

is

not written, by

what

is

written. In the same manner too legal writers

lay

down rules for avoiding frauds. NOW

if

at a time,

when there was no other mode of fortifying towns, than

by surrounding them with walls, it were stipulated that

a certain place should not be

SO

surrounded, it is evident

that

to

employ any other means of fortification would be

a

breach

of

that treaty.

As

in the above case the interpretation must be ex-

tended to guard against every possible evasion,

so

in the

following example, the prohibition to assemble an armed

force to assail us includes all kinds

of

violence and force,

by

which our lives and security may be endangered.*

XXI. Hence may be solved the question to be found

in Gellius, respecting a commission, whether

it

can be

fulfilled by doing, not the immediate act required, but

some thing equivalent to

it,

or in a manner more bene-

ficial than in the

form

prescribed. For this deviation

from the written rule may be proper and lawful, where

the prescribed form is not essential towards attaining the

object, or where, by departing from

it,

that object can

be better accomplished, according to the answer given

by Scaevola, that the person required to be bail and se-

curity for another, may give an order to a third person

to pay that money to the creditor. But where such

a

latitude

of

interpretation is not evidently admissible, we

must adhere to what Gellius has said in the same place,

that it would be a dissolution of all trusts, if the party

acting in commission were, in

all

cases, left to his

own

discretion, rather than bound by his written instructions.

XXII. An interpretation, restricted more closely than

the literal signification

of

the words containing a promise

absolutely requires, may arise either from Some original

defect in the intention of the promiser, or from some

sub-

sequent emergency repugnant to such intention. Thus

if

it were evident that an absurdity would follow the ful-

filment of

a

promise, this would be sufficient to prove an

*The

case

of

a promise made

on

the supposition

of

a posthumous

child’s dying, instanced by our author in

this

place, bears

so

near a re-

semblance

to

that

of

a father’s bequeathing

his

property to another,

believing his

son

to

be

dead, that it is omitted in this chapter having

been

already given under the head

of

erroneous promises

in

the

xi.

chapter and

6th

section

of

this

book.-(

Translator.)

THE RIGHTS

OF

WAR

AND

PEACE

189

original defect in the intention, because

no

man can be

supposed to have deliberately intended doing

an

absurd

act. Or

if

the sole and effectual reason, by which the

promise was influenced, should have ceased, the obliga-

tion also would be void, the

sole

ground

on

which it

rested being

no

longer in existence.

XXIII. In the next place, where any sufficient reason

can evidently be assigned for a promise

or

engagement,

it is not the substance of the promise itself, which is to

be

considered,

so

much as the reason for which that prom-

ise

was given.

XXIV. Thirdly, the contending parties must always be

supposed to have in contemplation the subject, and

nothing but the subject, however extensive a significa-

tion the words may seem to bear. This method of in-

terpretation also is handled by the ancient rhetorical

writers, in speaking of expression and design, and they

place

it

under the head

of

VARIATIONS

IN

OPINION.

XXV. In speaking of motives and reasons,

it

is proper

to observe, that they some times comprehend things,

considered not according to their actual existence, but

according to their moral consequences: in which case

it

is by no means right to limit the words of a treaty to

their literal meaning, but the utmost extent of interpreta-

tion is allowable, in order to maintain the spirit as well

as the letter of such treaties. Thus

if

it

be stipulated

that no troops or ships shall be brought to a certain

place, or within a certain distance, the prohibition ex-

cludes

ALL

ships

or

troops from being brought thither,

even under the fairest and most harmless pretences. For

the purport of the treaty is to guard not only against

actual mischief but even against remote danger.

It

is a point often disputed, whether the continuance

of things in their present state is a tacit condition,

on

which the fulfilment of all promises is founded.

A

posi-

tion that can by no means be maintained, unless

it

ap-

pears that such continuance was the sole motive upon

which the treaties were made.

As

in many parts of

history, we read of ambassadors having relinquished

their missions, and returned home, upon finding the state

of things

so

changed that the object of their embassies

was at an end.

XXVI. When an emergency arises repugnant to the

general intention of an act, it is explained by the ancient

masters of rhetoric under the head

of

expression

and

rgo

HUGO

GROTIUS

design.

Now

this variation between the emergency

and

the intention

is

of a twofold nature. For the will and

its

intention are to be collected either from natural rea-

son

or from some outward sign. In judging of the will

by

natural reason, Aristotle, who has treated the subject

with great accuracy, makes the

MIND

the

SEAT

OF

JUDG-

MENT,

and the

WILL

the

SEAT

OF

EQUITY,

which he nobly

defines to be the correction of that, wherein the law, by

reason of its universal nature

is

defective.*

And upon this principle all wills and treaties ought to

be interpreted.

For

as all cases could neither be fore-

seen nor expressed by the lawgiver,

it

is necessary to

leave a power

of

excepting the cases, which he himself

would have excepted

if

he were present. Yet this is not

to be done upon light grounds; for that would be exer-

cising a controul over the acts of another; but

is

only

to be established upon the clearest evidence and strong-

est

proofs.

The clearest proof we can have of a want of

equity,

is

where following the literal meaning of the

words would be unlawful, that is, repugnant to natural

3r

divine precepts. For such things, as are incapable

of

obligation, are necessarily to be excepted. Quintilian

the elder, says, ((some things although comprehended

within the meaning of no law form a natural exception.))

Thus any one, who has promised to return a sword, that

has been given up to him, ought not to return it into

the hands

of

a madman, as danger might result from it

to himself

or

to other innocent persons. Likewise a thing,

which has been deposited with any one, ought not to be

returned to the hands

of

the person, who gave the pledge,

if

the real owner demands it.

I

prove this says Tripho-

nius to be justice, which assigns to every one his own

without disturbing the still juster claims of another. For

the reason, it has been already observed, is founded on

*((The variety

of

human transactions cannot be comprised within

general rules. Occasional decrees therefore become requisite

;

which

vary with each variation of circumstances, for the measure

of

what is

indefinite must

be

indefinite itself, like the leaden ruler in the Lesbian

architecture, which changes

its

own shape according to that of the

stones

to

which

it

is applied. It is manifest, therefore, that equity

is

a species

of justice, and contrasted with another species

to

which it is preferable.

A

man

of

equity is he who deliberately and habitually exercises this

virtue; who prefers

it

in all his dealings to the rigour of justice; and

who, even when the law

is

on

his

side, will

not

avail himself

of

this

advantage to treat others injuriously

or

unhandsome1y.))-Aristot.

Eth.

b.

v.

ch.

x.

THE

RIGHTS

OF

WAR

AND

PEACE

191

the institution of property, which makes

it

unjust not to

return a thing when the real owner is known.

XXVII. The need of equity too will appear in cases,

where following the literal meaning of the words will

not be absolutely unlawful, yet, upon a fair estimation,

will be found too hard and intolerable.

It

might impose

a hardship inconsistent with the general condition of

human nature, or, upon comparing the person and mat-

ter under consideration with each other, it might be

found at variance with the general intent of all law,

which is to prevent evil and to redress injury. Thus,

if

a

person has lent a sum of money, or any other thing, for

a

CERTAIN

time, he may justly require the repayment

or

restoration of it

WITHIN

that time, if he has great need

of it himself: for acts of kindness are of such a nature,

that no one can be supposed intentionally to bind himself

thereby to manifest inconvenience or prejudice.

In

the

same manner a sovereign, who has promised assistance

to an ally, will,

IN

EQUITY,

be excused from fulfilling his

engagement, if he wants all his strength at home to ward

off

danger or hostilities. The grant also of immunities or

privileges in

ORDINARY

cases, cannot be pleaded as an

exemption or exception from the services, which the state

in

PARTICULAR

emergencies requires.

From the above instances it appears that Cicero has

too loosely worded his proposition, ((that such promises,

as are prejudicial to the person, to whom they are given,

are not to be kept, nor, if they are more prejudicial to

the party giving, than beneficial to the person receiving

them.)) For it should not be left to the promiser to

judge, whether the fulfilment of his engagement will be

serviceable to the party receiving it, except in the case

of the madman cited above: nor is any

TRIVIAL

or

IM-

AGINARY

prejudice that might result from it, sufficient to

release the obligation. But it ought to be such, as, ac-

cording to the nature

of

the act, would necessarily be

supposed to form an exception. Thus any one, having

promised his assistance to a neighbour at a certain period,

would not be bound to his engagement, if he were de-

tained at home by the sickness of a father or

a

child.

A

case, which Cicero, in his first book of offices, has put

in

the following terms,

((

If any one has undertaken to man-

age a cause, and, in the mean time, his son is taken ill,

it

will be no breach of duty in him not to perform what

he has promised.)) There is a passage in the

fourth

book

192

HUGO

GROTIUS

of Seneca,

ON

BENEFITS,

to the same effect.

((I

am lia-

ble,

says

he,

to be charged with levity, and a breach

of

faith,

if,

things continuing

as

they were, when

I

made a

promise,

I

do not perform my engagement. But

if

any

change has taken place, it leaves me at liberty to recon-

sider the matter, and releases the obligation.

I

promised

my support in court, and it afterwards appeared that the

cause would be prejudicial to my own father.

I

prom-

ised to take a journey, but afterwards heard that the road

was infested with robbers.

I

promised my presence

on

some particular occasion, but was prevented from attend-

ing by the sickness of a

son.

In all these cases, to bind

me to my engagement, the circumstances ought to re-

main exactly the same

as

they were when

I

made the

promise.

))

XXVIII.

It

has been said that there are other indica-

tions of intention, which require an equitable exception

in favour of the present case. And among such proofs

there can be nothing stronger than the same words used

in another place, not where they directly oppose the

present meaning,

for

that would amount to a contradic-

tion, but where they clash with it, owing to some unex-

pected emergency, which the Greek Rhetoricians call

a

circumstantial disagreement.*

XXIX. When there is any accidental collision between

one part of a written document and another, Cicero, in

the second book

of

his treatise

ON

INVENTION,

has given

rules for deciding which of them ought to have the pref-

erence. Though his arrangement is not very accurate,

yet it is

by

no means to be neglected.

To

supply there-

fore this defect of accuracy, the rules may be digested

in the following order.

In the first place, a

PERMISSION

ought to give way

to

a

COMMAND:

because

a

permission appears to be granted

only

in

case there

is

no

weightier objection than its being

*

Owing

to

circumstances there may

be

a variation in the conduct,

and yet

no

change in the principles of a

state.

This must frequently

happen

in

the commercial regulations between dBerent

countries,

who

are obliged to vary their means to secure

the

unity of their end. Or

if

in a

treaty

between two nations, it is declared there shall

be

PER-

PETUAL amity, and

a

subsequent declaration

of

war by

one

of

the

parties

pronounces

such

amicable relations to

be

at

an

end. here there

is

no

variation in

PRINCIPLE

but

in

CIRCUMSTANCES,

which render such

a

dissolution

of

the amity,

that

was originally intended to

be

perpetual,

necessary

to

the

welfare

and

preservation

of

that power, the

sole

objectof

ail

tresties.

THE

RIGHTS

OF

WAk

AND

PEACE

193

an

exception to a positive precept, nor any preponder-

ance in favour

of

an opposite determination. Conse-

quently, as the writer to Herennius says, what

is

positively prescribed is more powerful than a bare per-

mission.

In the next place what is required to be

one

at

a

FIXED

time should have the preference to what

may

be

done at

ANY

time. From whence it follows that the

PROHIBITIONS

of a treaty are generally of more weight

than its INJUNCTIONS: because the prohibitory power

op-

erates at

ALL

times. But it is not

so

with injunctions,

unless an express time for their fulfilment is named, or

they contain a tacit prohibition.

Among those treaties, which, in the above named re-

spects, are equal, the preference is given to such as are

more particular, and approach nearer to the point

in

question. For where particulars are stated, the case is

clearer, and requires fewer exceptions than general

rules do.*

Those prohibitions which have a penalty annexed to

them, are of greater weight than those, which have not;

and those with a greater penalty are enforced in prefer-

ence to those that have a less. Those engagements also

which are founded upon causes of less magnitude and

importance ought to give way to those which have more

laudable and useful objects in view.

Lastly it is to be observed that a subsequent law or

treaty always repeals a former.

From what has been said an inference may be drawn

in favour of sworn treaties or agreements that they

ought to be taken in the most usual acception of the

words, rejecting all implied limitations and exceptions,

and such as are not immediately necessary to the subject.

Consequently in a case, where a sworn treaty

or

engage-

ment may happen to clash with another not enforced by

the obligation of an oath, the preference ought to be

given to the former.

XXX.

It is often asked whether in doubtful points, a

contract should be deemed perfect, before the writings

*To

illustrate +&e nature

of

GENERAL

AND

PARTICULAR

cases, the

following

example is taken from the PuEendorf:

-a

One law forbids

us

to

appear in public with arms

on

holidays: another law commands

us

to

turn out under arms and repair to

our

posts,

as

soon

as we hear

the

sound

of

the alarm bell. The alarm

is

rung

on

a

holiday.

In

such case we must obey the latter

of

the two laws, which creates

an

exception to the former.))-

Jur.

Gent, lib.

v.

c. xii.

sect.

23.

'3

I94

HUGO

GROTIUS

are made and delivered. We find in Appian’s history

of

the Mithridatic war, that

it

was upon this very

ground

Murena objected to the convention between Sylla and

Mithridates. However it appears plain, unless

it

has

been settled to the contrary, that writing ought to be

considered admissible as evidence of

a

contract, though

not as part of the substance, otherwise

it

is usually ex-

pressed, as in the truce with Nabis, which was to be

ratified from the day the terms were

WRITTEN

and

DE-

LIVERED

to him.

XXXI. We can by

no

means admit the rule laid down

by some writers, who maintain, that all engagements of

,

kings, and states, ought to be explained, as far as it is

possible, upon the principles of the Roman law: unless

indeed it can be made to appear that among some states,

in their intercourse with each other, the

CIVIL

LAW

is

received as the

LAW

OF

NATIONS;

a presumption which

ought not to be hastily granted.

XXXII.

As

to the doubt, which Plutarch advances in

his Symposiacs, whether the words of the party offering,

or those

of

the one accepting a condition ought to be

most attended to, it appears that where the party accept-

ing the terms is the promiser, the nature and substance

of the transaction will depend upon his words, if they

are absolute and unqualified. For if the offer is regard-

ed as a positive engagement

to

do certain acts, then the

full extent of it will be seen by the necessary repetition

of the same words in the promise. But before a con-

dition is accepted, it is evident, as was seen in the chap-

ter on promises, that the promiser is not bound to its

fulfilment; for

no

right has been conferred by the one

party, or acquired by the other. Therefore the offer of

a condition of this kind does not amount to a perfect

promise.

CHAPTER

XVII.

ON

DAMAGES OCCASIONED

BY

INJURY

AND

THE

OBLIGATION

TO

REPAIR

THEM.

On

Damages occasioned by injury, and the obligation

to

repair them

-Every misdemeanor obliges the aggressor

to

repair the

loss

-

By

loss

is meant any thing repugnant

to

right strictly

so

called-Dis-

tinction between fitness and strict right

-

Loss

or diminution

of

pos-

session includes every injury done to the produce as well as the

property itself-

Loss

estimated from the time that gain ceases-

Injuries done by principals-

By

accessories

-

Injuries done

by

the

neglect

of

principal or

of

secondary agents

-

What persons are im-

plicated in those charges, and in what degrees-The parties en-

gaged answerable for all consequences-The case where homicide

or any other act of violence ensues-Case of robbery-Or theft

-

Promises obtained through fraud or unjust fear-In what cases the

consequences are imputable to the suffering party-How far the

law

of

nations authorises states to take advantage of an enemy’s

fear-How far sovereigns are answerable for any acts

of

violence

committed by their subjects -The case where subjects in violation

of

their sovereign’s permission and orders commit acts

of

piracy

upon

allied or neutral states-No one answerable by the law

of

nature for the mischief done by his cattle, his slaves, or his ship

-Damages allowed for injuries done to reputation or honour-

What kind

of

reparation allowed.

I.

IT

HAS

been said above that the rights due to

us

arise from three sources, which are contract, injury and

law.

It

is unnecessary here to dwell upon the nature

of

contracts which has been already

so

fully discussed. The

next point therefore to which we proceed is an inquiry

into the rights resulting to

us

from injuries received.

Here the name of crime or misdemeanor is applied to

every act of commission or neglect repugnant to the du-

ties required of all men, either from their common nature

or particular calling. For such offences naturally create

an obligation to repair the

loss

or injury that has been

sustained.

11.

By

loss

is meant a diminution of what any one

possesses, whether it be

a

right derived to him purely

from the law of nature, or from the addition of

human

authority, that

is

from the law of property, contract, or

civil

law,

God

has

given life to man, not to destroy,

(195)

196

HUGO GROTIUS

but to preserve it; assigning to him for this purpose a

right to the free enjoyment of personal liberty, reputa-

tion, and the controul over his own actions. The man-

ner, in which property and contracts convey to any one

a

right to things, as well as to the service

of

another,

has been shewn in the preceding part of this treatise.

In

the same manner from the law every man derives

his peculiar right; because the law has the same,

if

not

greater power over persons and things than individuals

themselves have. Thus by the appointment of law, a

ward has a right to demand the strictest diligence of a

guardian, the state of a magistrate, and not only the

state, but every subject has a right to require it; where

the law expressly declares or evidently implies that

certain acts shall be performed. But the bare circum-

stance of an action being

fit

or proper gives not the

right of

POLITICAL

justice to demand its performance,

nor does the neglect of it entitle the party suffering to

any legal redress. Because it does not follow that a

thing must belong to a person because it is

fit

or bene-

ficial for him. Thus, as Aristotle says, there is no actual

injustice, though it may be illiberal to refuse assisting

another with money.

To

the same purpose Cicero, in his

speech for Cneius Plancus, says, that giving their votes

to whom they please, or withholding them if they think

proper, is the true characteristic of a free people. He after-

wards, indeed, corrects his assertion by adding, that they

may happen to do what they like, rather than what they

ought to do, taking the word

OUGHT

to signify propriety.

111.

A precaution is necessary here, in order to avoid

confounding things

of

a different kind.

Now those who are entrusted with the power of ap-

pointing magistrates, are bound, from motives of public

good, to chuse the properest persons, and this is what

the state has a

RIGHT

to require of them. They are

,

bound therefore to repair any

loss

which the state may

sustain by the choice

of

improper persons.

SO

any sub-

ject who is not disqualified, though he has no peculiar

right to an office, has an equal right with others

to

en-

deavour to obtain it. In the exercise

of

which right, if,

he

is

obstructed 'by violence or fraud, he may recover

damages, not to the full value of the office which he

sought, but according to the probable

loss

which he may

reasonably be supposed to have suffered. Similar

to

which is the right of a legatee, when a testatw bas

been

THE

RIGHTS

OF

WAR

AND PEACE

I97

prevented by fraud or violence from making a bequest.

For the capability of receiving a legacy is a kind of

right, which to obstruct a testator from conferring,

is

undoubtedly an injury.

IV.

The

loss

or diminution of any one’s possessions is

not confined

to

injuries done to the

SUBSTANCE

alone of

the property, but includes every thing affecting the pro-

duce of it, whether it has been gathered

or

not.

If

the

owner himself had reaped it, the necessary expence of

reaping, or of improving the property to raise

a

produce,

must also be taken into the account

of

his loss, and

form

part of the damages. For it is an established maxim that

no one ought to derive benefit from the

loss

of another.

V. Damages are to be computed too, not according to

any

ACTUAL

gain, but according to the

REASONABLE

expec-

tation of

it.

Which in the case

of

a growing crop may

be judged of by the general abundance or scarcity

of

that

particular season.

VI. But besides the person immediately doing an

injury, others may be bound also to repair the losses of

the suffering party. For as a person may be guilty of

offences by negligence as well as by the commission.

of certain acts,

so

they may be done also by accessories,

as well as principals.

Now

a principal in any crime or

offence is one, that urges

to

the commission

of

it, that

gives all possible consent, that aids, abets,

or

in any

shape is a partner in the perpetration

of

it.

VII. An accessory

is

one who gives his counsel, appro-

bation, and assent. For where is the difference, says

Cicero, in his second Philippic, between advising an act,

and approving of it

?

VIII. and IX. The obligation to repair the losses suffered

by negligence may be considered in a two-fold light.

Firstly, when any person, whose peculiar office

it

is,

neglects either to forbid the commission of an injury, or

to assist the injured party. And secondly, when the

person, who ought to

do

it, either does not dissuade from

the commission of an offence, or passes over in silence,

what he is bound to make known. In these cases, when

it is said that a person

OUGHT

to do, or to forbear doing

certain actions,

it

is meant that he is bound by that

right, which strict justice requires, whether that duty

arises from law, or from the capacity, which the person

bears. For though it may be wrong to omit any duty

enjoined by the law of charity, there can be no redress

198

HUGO GROTIUS

for such omission, but every

LEGAL

REMEDY

must be

founded on some

PECULIAR RIGHT.

X.

It

is to be observed also that all the parties above-

mentioned, if they have been the real occasion of loss to

any one, or have abetted the person doing him the injury,

L

are

so

far implicated in the guilt, as to be liable to full

damages, or, at least, proportionably to the part they have

taken. For it may and often does happen that a crime

would have been committed by an offender, even with-

out the aid of other principals or accessories. In which

case he alone is answerable. Yet neither principals nor

accessories will be allowed to plead as an excuse, that if

they had not aided or abetted, others would have been

found to assist and encourage the perpetrator in the com-

mission of the act. Especially,

if

it

appears that without

such assistance from them the crime would never have

been committed. For those other imaginary abettors would

themselves have been answerable,

if

they had given their

advice or aid.

XI. In the scale of implication the first degree applies

to those, who by their authority, or other means have

compelled or urged any one to the commission of an

offence. On failure of these the perpetrator himself has

the greatest share of guilt, and next to him, others who

have been concerned. In short, all individuals, whose

hands have been engaged in the perpetration, are guilty,

though they have not been the sole authors of the act.

XII. Now he who is answerable for an act, is answer-

able for all the injurious consequences attending it. Sen-

eca in one of his controversies, treating upon this point,

puts the case of a plane-tree set on fire, by which

a

house

was burnt, and he subjoins the following remark, “al-

though the mischief went further than was intended, yet

the person doing it was answerable for the

WHOLE,

as

much, as if he had done it by design. For any one that

puts his defence upon the plea of

UNINTENTIONAL

INJURY,

ought to have abstained from all mischief whatsoever.”

When Ariarathes, king of Cappadocia had wantonly ob-

structed the channel

of

the river Melas, which discharges

itself into the Euphrates, the swell of waters bursting the

mounds, the Euphrates rose to such a height, as to occa-

sion excessive damage to the Cappadocians, the Galatians,

and the Phrygians. Upon which the decision

of

the mat-

ter being left to the Romans, they imposed upon him

a

fine of three hundred talents.

THE

RIGHTS

OF

WAR

AND

PEACE

199

XIII. XIV.

XV.

and XVI. But to proceed with other

instances of injury, which render the parties committing

them liable to repair the losses occasioned thereby. The

case of excusable homicide may be alleged as one, wherein

the person, who has committed

it,

is bound

to

make

every reasonable compensation to the family, dependents,

and connections of the deceased party, in proportion to

the

loss,

which they have sustained from his death. As

Michael the Ephesian in the fifth book of Aristotle’s

Ethics has observed, that the compensation made

to

the

parents, the wife or children of the deceased is nearly

the same

as

if

it could be made to himself. The writer

is here speaking of excusable homicide, that is, when

the person by whom it is committed, does

it

not in the

immediate discharge of some legal duty. Wherefore if

any one, in defending himself, has killed another from

whom he might have escaped, though he may have

violated the law of charity, yet he has not incurred the

penalty of a capital offence.

Upon the same principle the person, who has maimed

or mutilated another, will be bound to make him a com-

pensation, proportionably to the means of subsistence

which he is deprived of by such a calamity.

A thief or a robber is bound to restore what has been

taken, and to return it with all the improvements it may

have acquired,

or

to make reparation to the owner, in

proportion to the gain, which the privation has prevented

him from making, or to the actual value of the thing

itself. If the thing has been irretrievably consumed, the

estimation of damages must be made, according to a

medium between the highest and the lowest value.

To this class of offences and due reparation may be

referred all frauds upon the public revenue, all unjust

decisions, or all false evidence, by which states

or

indi-

viduals are injured.

XVII. Contracts, or promises obtained by fraud, vio-

lence or undue fear entitle the injured party to full resti-

tution. For perfect freedom from fraud or compulsion,

in all our dealings,

is

a

RIGHT

which we derive from

natural law and liberty.

With ;he same class of offenders we may rank all men

in office,

who

are unwilling to discharge their duty with-

out a bribe.

XVIII. When a person has

HIMSELF

been the occasion

of

the fraud or violence, the consequences are imputable to

260

HUGO

GROTIUS

his

om

conduct. For where a voluntary act gives rise

to

INVOLUNTARY

consequences, those consequences, con-

sidered in a moral light, are to be deemed the fruits

growing out

of

the exercise of a free will.

XIX.

But to connect the preceding cases and arguments

with public and national concerns, it is necessary to ob-

serve, that it is a maxim introduced and established by

the consent of all nations that the wars which are declared

and conducted by the authority of the sovereign power

on

both sides are alone entitled to the denomination

of

just wars: And the enemy has no right to demand res-

titution for what the prosecution of such wars has reduced

him to abandon through fear.

It

is upon this principle

we admit the distinction which Cicero has made between

an enemy, towards whom the consent and law of nations

oblige

us

to observe many common rights,

and

between

robbers and pirates. For any thing given up to pirates or

robbers, through fear, is no lawful prize: but it may be

recovered, unless a solemn oath

of

renunciation

has

been

taken. This is not the case with the captures made in

just war.

The justification which Polybius makes for the Cartha-

ginians, in the second Punic war, carries with it an

appearance of equity, though

it

is not a question imme-

diately founded upon the law of nations. They alleged

as a reason for their making that war, that, when they

were engaged in quelling a mutiny of their own merce-

naries, the Romans had declared war, seized upon Sar-

dinia, and levied contributions of money.

XX.

Sovereign Princes and States are answerable for

their neglect, if they use not all the proper means within

their power for suppressing piracy and robbery. And on

this account the Scyrians were formerly contlemned by

the Amphictyonic council.

When some of the states of the united Provinces had,

on

a particular occasion, granted commissions to many

privateers, and those adventurers plundered friends and

enemies alike, and became general pirates, it was a

subject

of

great discussion, whether those states were

justified in having made use of the services of desperate

and abandoned men, without exacting sufficient security

for

their good conduct. At that time, it was maintained

,that they were bound to nothing more, than to punish

or

deliver up the offenders,

if

they could be found, and

to see justice done

by

a forfeiture of their property.

THE

RIGHTS

OF

WAR

AND

PEACE

201

For they themselves had neither authorised those

UNJUST

acts of plunder, nor shared in the fruits of them. They

had even strictly prohibited the privateers from molest-

ing the subjects of friendly powers.

As

to their taking

securities, there was no obligation to do that: for they

had

a

right to grant

a

GENERAL

commission to all their

subjects to seize upon the enemy’s property:

a

thing,

which had frequently been done. Nor could that par-

ticular commission be considered as an act of injustice

against either allies

or

neutrals; since even without such

permission individuals might have fitted and sent out

armed vessels. The states could not foresee, nor conse-

quently provide against the misconduct of those adven-

turers, who had exceeded their commission; and if nations

were to decline using the assistance of wicked men, no

army could ever be collected. And

it

has been confirmed

by the authority both of France and England, that

a

sovereign cannot answer for every injury done to the

subjects of a friendly power by his naval

or

military

forces

;

especially

if

it

is

plain that they acted in violation

of

his

orders.

But in what cases any one

is

released from being answer-

able for what

is

done by his subordinate agents,

is

a point

not

so

much for the law of nations, as for the municipal

law, and particularly the maritime code of each country

to decide. In a case similar to that alluded to, a decision

of the supreme court of judicature was made against the

Pomeranians two centuries at least before.

XXI. It is the

CIVIL

law too, which makes an owner

answerable for the mischief

or

damage done by his slave,

or by his cattle. For in the eye of natural justice he is

not

to

blame.

So

neither is the person, whose ship, by

running foul of another, has damaged

it,

though by the

laws of many nations, and of

ours

among the rest, the

damages are usually divided between both parties, owing

to the difficulty of deciding, who was in fault.

XXII. Damages are allowed too for any injury done to

our

honour or reputation, by assault, slander,

or

various

other ways. In which, as well as in theft and other crimes

the nature of the offence

is

to be ,estimated by its conse-

quence?. For the reparation in such cases answers to the

penalty imposed for crimes. And that reparation is made

some times by acknowledging the injured party’s inno-

cence; and some times by a compensation in money, which

is

a

standard value of all things.

\

CHAPTER

XVIII.

ON

THE

RIGHT

OF

EMBASSIES.

Right of Embassies, an obligation arising out of the law of nations-

Where it obtains

-

Whether Embassies are always to be admitted

-

Dismissal or punishment

of

ambassadors engaging in plots not to

be

considered

as

a harsh measure, but an act of self-defence-A power

to whom

no

ambassador has been sent, not bound to respect the

rights of embassy-

An

enemy to whom an ambassador

is

sent

bound to respect his rights-The law

of

retaliation

no

plea for ill

treatment of an ambassador

-

This right of protection extends to

an ambassador’s suite, if he thinks proper to claim it-To his

moveable property -Examples

of

obligation without the right of

compulsion -Importance

of

the sacred character of ambassadors.

I.

HITHERTO the pursuit of our inquiries has led

us

to

examine those rights to which we are entitled by the

law of nature, occasionally touching upon thase points

where its authority is farther confirmed by the voluntary

law of nations. And that voluntary law as it is called,

,

gives rise to certain obligations, which now remain for

our

discussion,

and

in which the rights of embassa-

dors form a leading feature. Almost every page of his-

tory offers some remark on the inviolable rights of

ambassadors, and the security of their persons, a security

sanctioned by every clause and precept of human and

revealed law. Nor is it surprising that the persons

of

those should be deemed inviolable, who form the princi-

pal link in that chain, by which sovereigns and inde-

pendent states maintain their intercourse with each other.

To

offer violence to them is not only an act of

INJUSTICE,

but, as Philip in his letter to the Athenians says, is

acknowledged by all to be an act of

IMPIETY.

11.

But whatever rights the law of nations may confer

upon ambassadors, it is necessary

in

the first place to

observe, that none are entitled to them, but those, who

are sent by the sovereigns of independent countries to

each other. For the privileges

of

provincial, or municipal

deputies sent to the states general of any country are

regulated by the particular laws of that country and not

by

the law

of

nations.*

*

((The deputies ‘sent to the assembly of the states

of

a kingdom,

or

a commonwealth are not public ministers like ambassadors, as they are

(202)

THE

RIGHTS

OF

WAR

AND

PEACE

203

Thus we find, in the first book of Livy, an ambassador

styling himself a public messenger of the Roman People;

and, in the sixth book of the same historian, we have a

declaration

of

the senate, confining the rights

of

embassies

to the intercourse between foreign powers, and excluding

citizens from the same privileges in their transactions

with each other. Upon this topic, the authority

of

Cicero

may

be

cited, who, in order to shew the impropriety

of

sending ambassadors to Antony, observes, that they are

not dealing with a Hannibal or a foreign enemy, but with

one of their own citizens.

Now Virgil has

so

clearly explained

WHO

are to be

reckoned

FOREIGNERS,

that we need not have recourse to

lawyers, to understand what is

so

well expressed by the

poet, who says,

((1

look

upon every country as foreign,

which owns not the sway of our sceptre.)) Aen. vii.

369.

A

state therefore connected with another though by an

unequal treaty, if

it

retain its independence, will have a

right of sending embassies. The Princes of Germany,

who were in some respects subject to the Emperor, as

their head, being Sovereign Princes possessed the right

of sending ambassadors to foreign states. But Kings who

have been entirely subdued in just war, and stripped of

their dominions, have, with all their other sovereign

rights, lost that of sending ambassadors. It was for this

reason, that Paulus Aemilius made prisoners of the mes-

sengers sent to him by Perseus, whom he had con-

quered.

In civil wars necessity sometimes gives birth to new

rights in violation of former rules. When for instance,

a

kingdom

is

so

equally divided between two parties,

that it is a matter of doubt which of them constitutes

.

the nation, or in a disputed succession between two

claimants of the crown; the kingdom may be considered

as forming two nations at the same time. Tacitus, con-

sidering each party in such cases, as entitled to the

rights of the law of nations, condemns the Flavians

for having, in the rage of civil dissensions, violated, in

the persons of the Vitellian ambassadors, those privi-

leges, which are respected even among

FOREIGN

nations.

not

sent

to foreign powers;

but

they are public persons, and,

in

that

Rspect, are possessed

of

every exemption and immunity, that are neces-

~ary

to

the

discharge

of

their functions.))-Vatt.

b.

iv. ch. vii.

sect.

I~x).

Of

this

nature are the privileges enjoyed

by

the representatives

of

the

British

people,

and

denominated the

PRIVILEGES

OF

PARLIAMENT.

204

HUGO

GROTIUS

Pirates and robbers, as they form

no

civil community,

cannot rest any claim to protection and support upon

the law of nations. Tiberius, as we are informed by

Tacitus, when Tacfarinas sent ambassadors to him,

spurned at the idea of treating with a robber, as with a

lawful enemy. Yet sometimes a pledge of public faith,

and the rights of embassy are allowed to men of that

description, which was done by Pompey to the fugitives

from the Pyrenean forest.

111.

There are two points upon which the privileges

granted by the law of nations to ambassadors turn. In

the first place, they have a right to be admitted into

any country, and secondly to be protected from all per-

sonal violence. Respecting the former of these points,

there is a passage in the eleventh book of Livy, where

Hanno, a Carthaginian senator inveighs against Hanni-

bal for not having admitted into his camp ambassadors,

who came from the allies, and on their behalf; as he had

thereby overturned the law of nations.

But this rule by

no

means compels nations to give an

UNQUALIFIED

admission to all ambassadors.

For

that

is what the law of nations can never intend:

it

only

prohibits the refusal of admission without sufficient

grounds.

There are various motives which may afford a

suffi-

cient plea for such refusal. There may be an objection

to the power who offers to treat, to the person sent upon

the embassy,

or

perhaps to the object of his mission.

Thus at the suggestion of Pericles, Melesippus, the

La-

cedaemonian ambassador, was sent out of the territories

of Athens; because he came from an enemy, who had

no

pacific intentions. The senate

of

Rome said, that

they could receive no embassy from Carthage, as long

as the Carthaginian army remained in Italy. The

Achaeans refused to admit the ambassadors of Perseus,

who were secretly

MEDITATING

war against the Romans.

Upon the same grounds Justinian rejected an embassy

from Totilas, and the same was done by the Goths at

Urbino to messengers from Belisarius. Polybius relates

in the third book of his history, that every power drove

away the ambassadors of the Cynethensians, as they

were

so

infamous

a

people.

We have an instance

of

the second kind, where the

objection is made to the

PERSON

sent on an embassy, in

the case of Theodore, who was called the atheist, and

,

THE RIGHTS

OF

WAR

AND

PEACE

205

whom Lysimachus refused to receive in the character of

an ambassador sent from Ptolemy, and the same thing

has frequently happened to others, against whom peculiar

motives of aversion have existed;

In the third place, there may be sufficient grounds for

refusing to admit an ambassador,

if

the object of his

mission be of a suspicious kind, as was the case with

that of Rhabshakeh the Assyrian, whom Hezekiah had

reason to suspect of coming with a design to excite his

people to rebellion. Or the refusal may be justified,

where it is not consistent with the dignity or circum-

stances

of

one power to enter into any treaty,

or

inter-

course with another. For this reason the Romans sent a

declaration to the Aetolians, that they should send no

embassy, but with the permission

of

their general, and

Perseus was not allowed

to

send one to Rome, but to

Licinius. Jugurtha’s ambassadors too, as Sallust informs

us,

were ordered to leave Italy within the space of ten

days, unless they came with

offers

from that prince to

surrender himself, and his kingdom.

There may often be the best reasons for a sovereign’s

refusing

to

allow

of

a

RESIDENT

minister

at

his court;

a

practice,

so

general in the present day, but totally

un-

known to the ages of antiquity.

IV. As to the personal exemption

of

ambassadors from

arrest, constraint, or violence

of

any kind,

it

is a subject

of some difficulty to determine, owing to the varieties of

opinion entertained by the most celebrated writers on the

question. In the consideration of this matter, our atten-

tion is directed in the first place to the personal priv-

ileges and exemptions

of

ambassadors themselves, and

next to those of their attendants, and their goods. With

respect to their persons, some writers are of opinion,

that

it

is

ONLY

from

UNJUST VIOLENCE,

and

ILLEGAL

CON-

STRAINT,

that the law

of

nations protects ambassadors.

For they imagine that their privileges are to be explained

according to the common principles of the law of nature.

Others again suppose that ambassadors are not amenable

to punishment

for

ALL

offences, but only for such as

amount to a transgression

of

the law of

NATIONS,

the

principles of which are of such general extent,

as

to in-

clude the law of nature: consequently there can be no

offences for which an ambassador

is

not punishable, except

for those actions that are made such

by

the positive rules

of

MUNICIPAL

or

CIVIL

LAW.

+

206

HUGO

GROTIUS

Others

again

consider these public representatives

of

states and crowned heads, as only liable to punishment

for offences affecting the dignity or governments of the

sovereigns to whom they are sent. While,

on

the other

hand, there are some writers who maintain that for any

state to punish an ambassador for

ANY

CRIME

WHATEVER

is highly dangerous to the independence of foreign pow-

ers; but that all offenders of that description ought to be

left to the laws

of

their respective countries, to be pun-

ished or not. according to their deserts, upon due com-

plaint being made to the sovereigns by whom they were

sent

Some few writers, indeed,

in

laying down the rule to

be observed in such cases, have decided that an appeal

should be made to other independent and disinterested

powers, which may be considered rather as a matter of

DISCRETION,

than of

ABSOLUTE

RIGHT.

But the advocates

of all these various systems have come to

no

definite

con-

clusion in support of their favourite opinions. For this

is a right which cannot, like the law of nature, be estab-

lished

upon

unchangeable rules, but derives all its effi-

cacy from the will of nations. Nations

if

they had

thought proper, certainly might have laid down

ABSOLUTE

rules of security for ambassadors, or coupled them with

certain exceptions. The argument is supported

on

one

side by the urgent necessity of heinous crimes being pun-

ished, and

on

the other, the utmost latitude of exemption

is

favoured on account of the utility of embassies, the

facility of sending which ought to be encouraged by every

possible privilege, and security.

To

settle the point there-

fore, we must consider how far nations have agreed

among themselves upon these principles

;

the proofs of

which can only be found in the evidence of history.

Many instances may be produced in favour of both

opinions. And in cases like this, the opinions of those

celebrated for their judgment and knowledge will be of

no

small weight, but in some cases we must rest upon con-

jectures-

On

this subject the two eminent historians, Livy

and Sallust, may be quoted as authorities, the former of

Wfrom,

in

mentioning the ambassadors of Tarquin, who

had been guilty of fomenting treasonable conspiracies at

Rome, says, ((that although they deserved to be treated

as

enemies tor their guilty conduct, yet the privilege,

which they derived from the law of nations, prevailed

over

every other consideration.)) Here we see that the

THE RIGHTS

OF

WAR

AND

PEACE

207

rights of ambassadors could not

be

annulled even

by

the

most criminal acts of hostility. But the observation made

by Sallust, relates rather to those who come in the train

of an embassy than to ambassadors themselves. The law

of nations surely then will not deny the same privilege

to a principal, which

it

evidently allows to those who

form

but a subordinate part in the public mission. The

historian says, that

((

Bomilcar was arraigned and tried

rather upon principles of equity and natural justice, than

in conformity to the law of nations, as he belonged to the

train of Jugurtha; who had come to Rome under the

pledge of public faith.”

Equity and natural justice require punishment to

be

inflicted on

ALL

offenders, whereas the law of nations

makes an exception in favour of ambassadors, and those

who have the public faith for their protection. Where-

fore to try or punish ambassadors, is contrary to the law

of nations, which prohibits many things, that

are

per-

mitted

by

the law of nature.

The law of nations, thus deviating from the law

of

na-

ture, gives rise to those interpretations and conjectures,

which reconcile with the principles of justice a greater

extension of privileges than the law of nature strictly

allows.

For

if ambassadors were protected against noth-

ing

more than violence and illegal constraint, their privi-

leges would confer no extraordinary advantage. Besides,

the security of ambassadors is a matter of much greater

moment to the public welfare than the punishment of

offences. Because reparation for the misconduct of an

ambassador may be looked for from the sovereign, by

whom he is sent, unless that sovereign chuses to expose

himself to hostilities by approving of his crimes, An

ob-

jection to such privileges is made by some, who assert,

that it is better for one person to be punished than for

whole nations to be involved in war. But if a sovereign

has

SECRETLY

given his sanction to the misconduct of his

ambassador, his

APPARENT

intentions to punish that am-

bassador will not deprive the injured power of the right

to seek redress by commencing hostilities.

On the other hand, the right of ambassadors would

rest upon a very slippery foundation if they were ac-

countable, for their actions, to any one but their

own

sovereigns. For as the interests of powers sending, and

of those receiving ambassadors, are in general different,

and

some times even opposite,

if

a public minister were

208

HUGO

GROTIUS

obliged to consult the inclinations

of

both, there would

be no part

of

his conduct, to which they might not im-

pute some degree of blame. Besides although some points

are

so

clear, as to admit

of

no doubt, yet universal dan-

ger

is

sufficient to establish the equity and utility of a

general law.

For

this reason

it

is

natural to suppose,

that nations have agreed, in the case

of

ambassadors, to

dispense with that obedience, which every one, by gen-

eral custom, owes to the laws of that foreign country, in

which, at any time, he resides. The character, which

they sustain,

is

not that of ordinary individuals, but they

represent the Majesty

of

the Sovereigns, by whom they

are sent, whose power

is

limited to no local jurisdiction.

As

Cicero, in his eighth Philippic, speaking of a certain

ambassador, says, ((he carried with him the Majesty

of

the Senate, and the authority of the State.” From hence

it is concluded, that an ambassador is not bound by the

laws of the country, where he resides.

If

he commit an

offence

of

a trivial nature,

it

may either be suffered to

pass unnoticed,

or

he may be ordered to leave the coun-

try.

Polybius relates an instance of an ambassador, who was

ordered to leave Rome, for having assisted some hostages

in making their escape. Hence

it

is obvious why the

Romans inflicted corporeal punishment upon an ambassa-

dor of Tarentum, because the Tarentines were at that

time their own subjects, by right of conquest.

If

a crime

is

of a notorious nature, affecting the gov-

ernment, an ambassador may be sent home, and his sov-

ereign required to punish,

or

deliver him up, as we read

of the Gauls having done to the Fabians. But, as we

have before occasionally observed, all human laws are

framed upon such principles, as, in cases of extreme

necessity, to admit of equitable relaxations, among which

the privileges of ambassadors may be reckoned. But

these extreme cases

of

necessity may, according to the law

of nations, as will be seen hereafter, in discussing the

effects of just and solemn war, prevent punishment in

CERTAIN

cases, though not in

ALL.

For

it

is

not the act

of

punishment itself, which is objected to, either in re-

spect to time, or manner, but the exemption

is

created to

prevent the greater public evil, which might arise from

the punishment of the offender.

To

obvlate therefore

any imminent danger,

if

no other proper method can be

devised. ambassadors may be detained and interrogated.

THE

RIGHTS

OF

WAR

AND

PEACE

**

Thus the Roman Consuls seized the ambassadors of Tar-

quin, previously taking care to secure their papers, to

prevent the evidence, which they might afford, from being

destroyed. But

if

an ambassador excites and heads any

violent insurrection, he may be killed, not by way

of

pun-

ishment, but upon the natural principle of self-defence.

The Gauls therefore might have put to death the Fabii,

whom Livy calls violators of the law of nature.

V.

Mention has before been frequently made of the

exemptions, by which ambassadors are protected from all

personal constraint and violence, and

it

is

understood that

all powers are bound by a tacit agreement, as

it

were,

from the time

of

admitting an ambassador, to respect

these exemptions.

It

MAY

and indeed sometimes

DOES

happen, that one power gives notice to another that no

ambassador will be received, and

if

one

is

sent, that he

will be treated as an enemy. A declaration to this effect

was made by the Romans to the Aetolians, and, on an-

other occasion, the Vejentian ambassadors were ordered

to leave Rome, with a menace,

if

they refused to comply,

of being treated

in

the same manner

as

the Roman am-

bassadors had been treated by their king Tolumnius, who

had put them to death. The Samnites too forbade the

Romans to go to any council in Samnium, under pain

of

forfeiting their lives,

or,

at least, their personal safety.

The above law

does

not bind a power, through whose

territories aabassadors pass without leave. For, if they

are going to an enemy of that power, or returning from

him,

or

are engaged in any hostile design, they may law.

fully be treated as enemies; which was done by the Athe-

nians in the case of the messengers passing between the

Persians and Spartans, and by the Illyrians in that

of

those, who carried on the intercourse between the

Essians and Romans. Xenophon maintains that in

certain cases they may be made prisoners, as Alexander

made those, who were sent from Thebes and Lace&-

mon to Darius, and the Romans those, whom Philip sent

to

Hannibal, and Latius those of the Volscians. For to

treat ambassadors with any degree of rigour,

EXCEPT

only

a

breach

of

the law of nations, but a personal

offence against the sovereigns, to whom they are going,

or

by

whom they are sent. Justin informs

us,

that Philip

11.

king of Macedon, sent an ambassador to Hannibal

with credentials, empowering him to make an alliance,

UPON

THOSE

SUSFICIENT

GROUNDS,

would be deemed not

14

-

210

HUGO

GROTIUS

and that, when this ambassador was seized and carried

before the Senate of Rome, they dismissed him without

farther molestation, not out of respect to the king, but

to prevent a doubtful enemy

from

becoming a decided

one.

VI.

But

if

an embassy, admitted by an

ENEMY

is en-

titled to all the privileges of the law of nations, much

more

so

is one, admitted by a power

UNFRIENDLY,

but not

engaged in

ACTUAL

HOSTILITIES.

Diodorus Siculus says,

that a messenger with a flag

of

truce claims all the secur-

ity of peace, even in the midst

of

war. The Lacedae-

monians, who had murdered the heralds of the Persians,

were said by that act to have confounded every distinc-

tion between right and wrong, as it is acknowledged by

all nations. For legal writers lay it down as a rule, that

to offer personal violence to ambassadors, whose characters

are deemed sacred, is a defiance of the law of nations,

and Tacitus calls the privileges we are now discussing,

the rights of embassy, sanctified by the law

of

nations.

Cicero, in his

first

speech against Verres, asks,

if

am-

bassadors ought not to be safe in the midst of an

enemy's country,

or

even in his camp? Innumerable

other instances of this kind might be produced from the

highest authorities both ancient and modern. And it is

with reason that such privileges are revered, for in the

midst of war many circumstances arise, which cannot be

decided but through ambassadors, and

it

is the only

channel through which proposals of peace can be made,

and confirmed.

VII.

It is frequently made a subject of inquiry, whether

the ambassador

of

a sovereign, who has exercised any

act of cruelty or rigour, will be subject to the law of

retaliation. History furnishes many instances, in which

punishment has been inflicted in such a manner. But

history

is

sometimes nothing more than a catalogue of

actions marked with injustice, and ungovernable fury.

Whereas the law of nations, by its privileges, designs to

secure the dignity not only of sovereigns themselves, but

also that of the ambassadors whom they employ. Conse-

quently there

is

a tacit agreement understood to be made

with the latter, that

HE

shall be exempt, not only from

any ill treatment, that may affect the principal, but from

such likewise, as may affect himself.

So

that

it

was a

magnanimous answer, conformable to the law

of

nations,

which Scipio made, when the Roman ambassadors had been

THE

RIGHTS

OF

WAR AND PEACE

211

ifl-treated by the Carthaginians, and the Carthaginian

ambassadors were brought before him, upon his being

asked, in what manner they should be treated, he replied,

not as the Roman ambassadors had been by the Cartha-

ginians. Livy adds, that he said, he would

do

nothing

unbecoming the character and laws

of

the Roman people.

Valerius Maximus assigns the same language to the Con-

suls,

on an occasion similar, but prior to this. In ad-

dressing Hanno, they said, “the pledge of faith, which

our state has given, releases

you

from any such fear.))

For even at that time, Cornelius Asina, in violation

of

his public character, had been arrested and thrown into

prison by the Carthaginians.

VIII.

The train too of an ambassador, and all the plate

belonging to him are entitled to

a

peculiar kind

of

pro-

tection. Which gave rise to the passage in the ancient

song of the Heralds,

((

0

Sovereign, do you make me a

royal messenger from the Roman citizens

1

and

do

you

confer the same privileges on my train and every thing,

which belongs to me?

))

And

by

the Julian law, an injury

affecting not only ambassadors, but even their attend-

ants, is pronounced to be a violation of public right.

But

these privileges

of

attendants are only granted

so

far as an ambassador himself may think proper:

so

that

if

any of them has committed an offence, he must be

required to deliver up the offender to punishment. He

must be

REQUIRED

to

give him up. Because no violence,

in taking an offender of that description must be used.

When the Achaeans had arrested some Lacedaemonians>

who were along with the Roman ambassadors, the Romans

raised a great outcry against th? act, as a violation of

the law

of

nations. Sallust’s opinion in the case

of

Bomilcar has already been referred to.

But should the ambassador refuse to give up such

offender, redress must be sought in the same manner, as

would be done with respect to the ambassador himself.

As to his authority over his household, and the asylum,

which he may afford in his house to fugitives, these de-

pend upon the agreement made

with

the power, to whom

he is sent, and

do

not come within the decision

of

the

law of aations.

IX.

Neither can the moveable property

of

an ambassa-

dor, nor any thing, which is reckoned a personal ap-

pendage, be

’

seized for the discharge of

a

debt, either

by

process

of

law,

or

even

by

royal authority. For,

to

2x2

HUGO

GROTIUS

give him

full

security, not only his person but every

thing belonging to him must be protected from all com-

pulsion.

If

an ambassador then has contracted

a

debt,

and, as

is

usual, has no possession

in

the country, where

he resides: first of all, courteous application must be

made to himself, and,

in

case of his refusal, to his sov-

ereign. But

if

both these methods of redress fail, re-

course must be had to those means of recovery, which

are used against debtors residing out of the jurisdiction

of the country.

X.

Nor

is

there, as some think, any reason to fear,

that

if

such extensive privileges were established, no

one

would be found willing to enter into any contract with

an ambassador,

or

to furnish him with necessary articles.

For the same

rule

will hold good in the case of ambas-

sadors, as in that of Kings.

As

sovereigns, who for

the best

of

reasons, are placed above the reach of legal

compulsion, find

no

difficulty in obtaining credit.

XI.

The importance of such exemptions may be

easily

inferred from the innumerable instances, in which both

sacred and profane history abound, of wars undertaken

on

account of the ill-treatment of ambassadors. The war

which David made against the Ammonites, on that ac-

count, affords

us

a memorable instance from holy writ;

and as a profane writer, Cicero may be cited, who

deemed

it

the most justifiable ground

of

the Mithridatic

war.

CHAPTER

XIX.

ON

THE

RIGHT

OF

BURIAL.

Right

of

burying the dead founded

on

the law

of

nations

-

Origin

of

this right-Due to enemies-Whether due to those guilty

of

atro-

cious crimes-Whether

to

those, who have committed suicide-

Other rights also authorised

by

the

law

of

nations.

I.

THE

right of burying the dead is one of those

originating in the voluntary law of nations. Next to

the right

of

ambassadors Dion Chrysostom places that of

burying the dead, and calls it a moral act, sanctioned

by

the unwritten law of nature: And Seneca, the elder,

ranks the law, which commands

us

to commit the bodies

of the dead to their parent earth, among the

UNWRITTEN

precepts, but says, they have a stronger sanction than

the

RECORDED

laws

of

all ages can give. For, in the

language of the Jewish writers, Philo and Josephus, they

are marked with the seal of nature, and under the name

of

nature, we comprehend the customs, that are common

to all mankind, and agreeable to natural reason.

We find

it

some where said by Aelian, that our com-

mon nature calls upon us to cover the dead, and some

writer, in another place, observes that all men are

reduced to an equality by returning to the common dust

of the earth. Tacitus informs

us,

in

b.

vi. of his Annals,

that, when Tiberius made a general massacre of all, who

had been connected with Sejanus, and that he forbad

them the rites of burial, every one was struck with horror

to see the last offices of humanity refused; offices, which

Lysias the orator calls the common hopes of our nature.

As

the ancients measured the moral character of every

people by their observance or neglect of these rights, in

order to give them a greater appearance of sanctity, they

ascribed their origin to the authority and institutions

of

their Gods;

so

that in every part of their writings we

meet with frequent mention of the rights of ambassadors,

and the rights of burial, as founded upon divine appoint-

ment.

In the Tragedy of the Suppliants, Euripides calls

it

the

law

of

the Gods, and in the Antigone

of

Sophocles, the

heroine makes the following reply to Creon,

who

had for-

(213)

214

HUGO

GROTIUS

bidden any one under pain of death,’ to give the rites

of

burial to Polynices,

((A

prohibition, like this, was not

revealed by the supreme will, nor by that heaven-born

justice, which has established those laws of respect for the

dead: nor did

I

think that

YOU

could command mortals

to transgress the unwritten and inviolable laws of God.

They were not established to-day, nor yesterday, but from

all eternity and will for ever be in force. Their Sources

are unknown. Am

I

through fear of a mortal, and by

obeying his unjust commands, to incur the wrath of

Heaven

?

))

The authority of Isocrates, and

of

Herodotus, and that

of

Xenophon, in the sixth book of his Grecian History,

may be appealed to in support of the honours, that have

at all times been paid to the dead. In short, these offices

of

humanity are recommended by the conspiring testi-

mony

of

the orators, historians, poets, philosophers and

divines of all ages, who have dignified them with the

names of the most splendid virtues.

11.

There seems to be no general agreement of opinion

upon the origin of funeral rites, and the variety of ways,

in which they were performed. The Egyptians

EMBALMED,

and most of the Greeks

BURNED

the bodies of the dead

before they committed them to the grave. Cicero, in the

zzd chapter of his second Book on Laws, speaks of the

interment alone, which

is

,now in use, as the most ancient

method, and that, which is most congenial to nature, and

in this he

is

followed by Pliny.

Some think that men paid

it

as a

VOLUNTARY

debt

of

nature, which they knew that,

AT

ANY

RATE,

they would

be obliged to discharge. For the divine sentence, that

the body should return to the dust, from which

it

was

taken, was not passed upon Adam only, but, as we find

it acknowledged

by

the writings

of

Greece and Rome,

extended to the whole human race, Cicero, from the

Hypsipyle of Euripides, says, ((Earth must be returned

to earth,)) and in the twelfth chapter of Solomon’s Eccle-

siastes, there

is

a passage to the same purport, that ((the

dust shall return to the earth

as

it

was, but the spirit to

God,

who gave

it.”

Euripides has enlarged on this sub-

ject in the character of Theseus in his Suppliants,

((

Suf-

fer the dead to be laid in the lap of the earth; for every

thing returns to its original state, the spirit to heaven,

and the body to the earth: Neither of them

is

given in

plenary possession, but only for a short use: The earth

THE

RIGHTS OF

WAR

AND

PEACE

215

soon

demands back the bodies, to which she had given

birth and nourishment.))

In

the same manner Lucretius

calls the earth ((a prolific parent and

a

common grave.

)’

Pliny also describes the earth, as receiving

us

at our birth,

cherishing

our

growth, supporting

us

to the very last, and,

when all the other parts of nature have forsaken

us,

taking

us

to her maternal bosom, and covering

us

with

a

mantle.

There are some, who think that the custom of burial

was bequeathed to us by our first parents as a testament-

ary hope of a resurrection.

For

we are instructed by

Democritus to believe, that our bodies are preserved

in

the earth under the promise of a restoration to life.

And Christians in particular have frequently ascribed the

custom of decent burial to the same hope. Prudentius a

Christian poet says, ((What can be the meaning of hal-

lowed rocks, or splendid monuments, except that they

are the depositories of bodies, consigned not to death,

but to a temporary sleep

?

)’

But the most obvious explanation is to be found in the

dignity of man, who surpassing other creatures, it would

be a shame, if his body were left to be devoured by

beasts of prey.

It

is an act of compassion then, said

Quintilian, to preserve the bodies of men from ravages

of

birds and beasts. For to be tore by wild beasts, as

Cicero observes in his first book ON

INVENTION,

is

to be

robbed of those honours, in death, which are due to our

common nature. And the Roman Poet, makes a lament-

ation over one of his heroes, that he had no pious mother

to lay his body in the grave, but he would be left

a

prey to

birds,

or

thrown into the river as food for fishes. Aen.

But to speak from still higher authority,

God,

by the

mouth

of

his prophets, threatens the wicked that they

shall have burial like that of the brutes, and that the

dogs shall lick their blood. Such a menace denounced

against the wicked,

as

a punishment, shews that it is an

indignity done to

our

nature, when, in the words of

tactantius, the image of

God

is

cast out, to the insults

of

beasts of prey. But in such indignity if there was

even nothing repugnant to the feelings of men, still the

nakedness and infirmities of our perishable nature should

not be exposed to the eye of day.

Consequently the rights of burial, the discharge

of

which forms one of the offices of humanity, cannot be

X.

557-560.

f

216

HUGO GROTIUS

denied even to enemies, whom a state of warfare has

not deprived of the rights and nature

of

men. For, as

Virgil observes, all animosity against the vanquished

and the dead must cease. Aen. xi.

104.

Because they

have suffered the last

of

evils that can be inflicted.

((

We

have been at war,

I

grant,

says

Statim,

but

our

hatred

has fallen, and all our enmity is buried in the grave.))

And Optatus Milevitanus assigns the same reason for

reconciliation.

((

If

there have been struggles among the

living,

your

hatred surely must be satisfied with the death

of an adversary.

For

the tongue of strife is now

silenced.

))

111.

Upon the principles advanced above, it

is

agreed

by all that public enemies are entitled to burial. Ap-

pian calls it the common right of war, with which, Taci-

tus says, no enemy will refuse to comply. And the

rules, respecting this, are, according to Dio Chrysostom,

observed, even while the utmost rage of war still con-

tinues.

((

For

the hand of death,

as

the

writer just

quoted

observes,

has destroyed all enmity towards the fal-

len, and protected their bodies from all insult.)) Exam-

ples to this purpose may be found in various parts of

history. Alexander ordered those of the enemy, that were

killed at the battle

of

Issus

to be honoured with the rites

of

burial, and Hannibal did the same to Caius Flaminius,

Publius Aemilius, Tiberius Gracchus, and Marcellus, the

Roman Generals.

So

that you would suppose, says Sil-

ius Italicus, he had been paying these honours

to

a Car-

thaginian General. The Romans treated Hanno, and

Pompey Mithridates in the same manner.

If

it were

necessary to quote more instances, the conduct of De-

metrius on many occasions, and that of Antony to king

Archelaus might be named.

When the Greeks were at war with the Persians, in

one part of their military oath they swore to bury all the

dead belonging to the

ALLIES,

and when they were victori-

ous,

to bury even the

BARBARIANS.

After a battle,

it

was

usual for both sides to obtain leave to

bury

the dead.

Pausanias, in his account

of

the Athenian affairs, men-

tions the practice of the Athenians who buried the

Medes, regarding

it

as an act of piety due to all men.

We find from the Jewish writers, that for the same rea-

son,

their high priests, who were forbidden to come near

a dead body,

if

they found one, were obliged to bury

it.

But Christians deemed

BURIAL

an

act of such importance;

THE

RIGHTS

OF

WAR

AND

,PEACE

217

that they would allow their church-plate to be melted

down, and sold to defray the expences as they would have

done to maintain the poor, or to redeem captives.

There are some few instances to the contrary, but

they are reprobated by the universal feelings of man-

kind, and such cruelty deprecated in the most solemn

terms. Claudian calls it a bloody deed to plunder the

dead, and still more

so

to refuse them the covering of a

little sand.

IV. Respecting those, who have been guilty of atro-

cious crimes, there is reason to entertain some doubt,

whether the right of burial is due to them.

The divine law indeed, that was given to the Hebrews,

and which is fraught with every precept of virtue and

humanity, ordered those, who were crucified, which was

the most ignominious kind of punishment that could be

inflicted, to be buried on the same day. Owing to this

law, as Josephus observes, the Jews paid such regard to

burial, that the bodies of those, who were executed pub-

licly as criminals, were taken away before sun-set, and

committed to the ground. And other Jewish writers are

of opinion that this was intended as a degree of rever-

ence to the divine image, after which man was formed.

To allow burial to criminals must have been the prac-

tice in the time of Homer: for we are told, in the third

book of the Odyssey, that Bgisthus, who had added the

crime of murder to that of adultery, was honoured with

funeral ceremonies by Orestes, the

son

of the murdered

king.

It

was the custom with the Romans, as may be

seen from Ulpian, never to. refuse

giving

the bodies of

criminals to their relatives, to bury. The Emperors,

Diocletian, and Maximian, in a rescript, declared, that

they did not refuse to deliver up, for burial, those, who

had deservedly been put to death for their crimes.

In reading the history of civil wars; we find more fre-

quent instances of indignities offered to the dead, than

in the accounts of any foreign wars.

In

some cases, the

bodies of executed criminals are exposed to public view,

and hung

in

chains, a custom the propriety of which

is

very much doubted both by Theological and Political

writers.

SO

far from approving of the practice, we

find

such writers bestowing praises upon many, who had

ordered funeral honours to be

paid

to those, who would

not themselves have allowed the same to others.

An

action of this kind was done by Pausanias the Lacedae-

218

HUGO

GROTIUS

monian, who, being urged by the people of Aegina to

retaliate upon the Persians for their treatment of Leon-

id-, rejected the advice, as unbecoming his own char-

acter and the Grecian name. The Pharisees allowed

burial even to King Jannaeus Alexander, who had treated

the dead bodies of their countrymen with every kind of

insult. Though indeed on certain occasions, God 'may

have punished some offenders with the loss of such a

right, he did

so

by virtue of his

0.m

prerogative, which

places him above the restrictions of all law. And when

David exposed the head of Goliah,

it

was done to one,

who was an alien, and a despiser of God, and might be

justified by that law, which confined the name and priv-

ileges of neighbour to the Hebrews.

V.

There is one thing not improper to

be

observed,

that the rule prevailing among the Hebrews with respect

to burying the dead, contained an exception, as we are

informed by Josephus, excluding those, who had com-

mitted suicide. Nor is

it

surprising that a mark

of

ignominy should be affixed to those, on whom death itself

cannot be inflicted as a punishment. Aristotle in the

fifth book of his Ethics, speaks of the infamy universally

attached to suicide. Nor is the observation at all weakened

by the opinions of some of the Grecian poets, that as the

dead are void of all perception, they cannot be affected

either

by

loss or shame. For it

is

a sufficient reason

to justify the practice,

if

the living can be deterred from

committing actions, for which they see a mark of infamy

set upon the dead.

In opposition to the Stoics, and others, who admitted

the dread of servitude, sickness, or any other calamity,

or even the ambitious love of glory to be a just cause

of voluntary death, in opposition to them, the Platonists

justly maintain, that the soul must

be

retained in the

custody of the body, from which it cannot be released,

but at the command of him, who gave

It.

On

this sub-

ject there are many fine thoughts in Plotinus, Olympio-

dorus,

and Macrobius on the dream of Scipio.

Brutus, following the opinions of the Platonists, had

formerly condemned the death of Cato, whom he him-

self afterwards imitated. He considered it as an act of

impiety for any one to withdraw himself from his alle-

giance to the supreme being, and to shrink from evils,

which he ought to bear with fortitude. And Megasthenes,

as may

be

seen, in Strabo book

xv.

remarked the disap-

THE

RIGHTS

OF

WAR

AND

PEACE

219

probation, which the Indian sages expressed of the con-

duct of Calanus: for

it

was by no means agreeable to

their tenets, that any one, through impatience, should

quit his post in life. In the fifth book of Quintus Cur-

tius, there

is

an expression of King Darius to this effect,

that he had rather die by another's guilty hand than by

his own. In the same manner the Hebrews call death

a

release,

or

dismission, as may be seen not only in the

Gospel of St. Luke, ch.

ii.

v.

19,

but in the Greek ver-

sion of the Old Testament, Gen.

xv.

2,

and Numb. xx,

towards the conclusion: and the same way

of

speaking

was used by the Greeks. Plutarch, in speaking of con-

solation, calls death the time, when God shall relieve

us

from our post.

VI.

There are certain other rights too, which owe their

origin to the voluntary law of nations, such as the right

of

possession from length

of

time, the right of succession

to any one who dies intestate, and the right resulting

from contracts, though

of

an unequal kind.

For

though

all these rights, in some measure, spring from the law of

nature, yet they derive their confirmation from human

law, whether

it

be in opposition to the uncertainty

of

conjecture,

or

to certain other exceptions, suggested by

natural reason: points, all

of

which have been slightly

touched upon in

our

discussions on the law

of

nature.

CHAPTER

XX.

ON

PUNISHMENTS.

Definition and

origin

of

punishment

-In

what manner punishment

relates to strict justice-The right of punishing allowed by the

law of nature, to none, except to those, who are innocent of the

crimes and misdemeanours to

be

punished -Difference of motive

between human and divine punishment

-

In what sense revenge

is

naturally

unlawful

-

The advantages

of

punishment, threefold

-

The law of nature allows any one to inflict punishment

upon

an

offender, yet

with

a

distinction-The regard which the law of

nations pays to the benefit

of

the injured party, in the infliction of

punishment

-

General utility of punishments

-

What is determined

by the law of the Gospel, in this respect-Answer to the objections

founded upon the mercy of God,

as

displayed in the Gospel-Cap-

ita1 punishments objected

to

as

cutting off all possibility

of

repent-

ance-Not safe for private Christians

to

inflict punishments, even

when allowed to do

so,

by the law of nations-Prosecutions, for

certain offences, to be carried

on

in the name of the public and

not of individuals-Internal acts not bunishable by man- Open

acts, when inevitable through human infirmity not punishable-

Actions, neither directly nor indirectly injurious to society, not

punishable by human laws

-

The reasons of that exemption

-

The

opinion,

that

pardon

can

never be granted, refuted

-

Pardon shewn

to

be

allowable before the establishment of penal law-But not in

all cases-Allowable also subsequently to the establishment of

penalties- Internal and external reasons

-

Opinion, that there can

be

no

just reason for dispensing with

laws,

except where such

dispensation

can

be implied as authorised by the law, examined

and refuted-Punishment estimated by the desert of the offender

-

Different motives compared

-

Motiwes which ought

to

restrain

men from sin-Scale of offences according to the precepts of the

Decalogue-Capacity of the offender

-

Punishment mitigated from

motives of charity, except where there are stronger motives of an

opposite kind

-

Facility

or

familiarity of crimes aggravates their

nature-Clemency, proper exercise of -Views of the Jews and

Romans

in

inflicting punishment

-

War considered as a punishment

-Whether hostilities can justly

be

commenced for intended aggres-

sions- Whether

Kings

and Nations are justified in making war to

punish offences against the law of nature, not immediately affect-

ing themselves

or

their subjects-The opinion, that jurisdiction is

naturally necessary

to

authorise punishment, refuted- Distinction

between the law of nature, and civil customs, and the divine volun-

tary law- The question, whether war can

be

undertaken

to

punish

acts

of impiety-considered

-

The being of

God,

whence known-

Refusal

to

embrace the Christian religion not

a

sufficient cause

of

war -Cruel treatment of Christians, justifiable cause of war-

Open

defiance

of

religion punishable.

(220)

THE

RIGHTS

OF

WAR

AND

PEACE

221

I.

IN

THE

preceding part of this treatise, where the

causes, for which war may be undertaken, were explained,

it was considered in a two-fold light, either as a repara-

tion for injuries, or

as

a punishment. The first of these

points having been already cleared up, the latter, which

relates to punishments, remains to be discussed, and it

will require a more ample investigation

;

for the

origin

and nature of punishment, not being perfectly under-

stood, has given rise to many errors.

Punishment taken in its most general meaning signifies

the pain of suffering, which is inflicted for evil actions.

For although labour may some times be imposed instead

of punishment; still it is considered in that case, as a

hardship and a grievous burden, and may therefore prop-

erly be classed with sufferings. But the inconveniences,

which men are some times exposed to, by being excluded

from the intercourse of society and the offices of

life,

owing to infectious disorders, or other similar causes,

which was the case with the Jews

on

account

of

many

legal impurities, these temporary privations are not

to

be

strictly taken for punishments: though from their resem-

blance to each other, they are often, by an abuse of

terms, confounded.

But among the dictates laid down by nature, as lawful

and just, and which the ancient Philosophers call the law

of Rhadamanthus, the following maxim may be placed,

THAT IT IS RIGHT FOR EVERY

ONE

TO SUFFER EVIL PROPOR-

TIONED TO THAT WHICH HE HAS DONE.

Which gave occasion to Plutarch,

in

his book

on

exile,

to

say that ((justice is an attribute of God, avenging all

transgressions

of

the divine law; and we apply

it

as the

rule and measure of our dealings with each other. For

though separated by the arbitrary or geographical bounds

of territory, the eye of nature looks upon

all,

as fellow

subjects of one great empire.)) Hierocles gives a fine

character

of

justice, calling

it

the healing remedy of all

mischief. Lactantius in speaking of the divine wrath

calls

it

<(no inconsiderable mistake in those, who degrade

human or divine punishment with the name of cruelty

or rigour, imagining that some degree

of

blame must

always attach to the punishment

of

the guilty.” What

has been said of the inseparable connection of a penalty

with every offense is similar to the remark of Augustin,

((that

to

make a punishment

JUST,

it must be inflicted

for

some

cepe.” He applies the expression to explain

.

aaa

HUGO

GROTIUS

the divine justice, where through human ignorance, the

offence

is

often undiscoverable though the judgment may

be seen.

11.

There are diversities

of

opinion whether punish-

ment comes under the rank of

ATTRIBUTIVE

or that of

STRICT

justice. Some refer

it

to justice

of

the attributive

kind, because offences are punished more or less, in pro-

portion to their consequences, and because the punish-

ment is inflicted by the whole community,

as

it

were,

upon an individual.

It is undoubtedly one of the first principles of justice

to establish an equality between the penalty and the of-

fence. For

it

is

the business of reason, says Horace, in

one of his Satires, to apply a rule and measure, by which

the penalty may be framed upon a scale with the of-

fence, and in another place, he observes, that

it

would

be contrary to all reason to punish with the rack a slave,

who deserved nothing more than the whip.

I.

Sat. iii.

v.

77,

and

119.

The divine law, as may be seen from the

xxv. Chapter of Deuteronomy, rests upon the same’principle.

There is one sense, in which all punishment may be

said to be a matter of strict justice. Thus, when we say

that punishment

is

due to any one, we mean nothing

more than that

it

is right he should be punished,

Nor can any one inflict this punishment, but the person,

who has a right to do

so.

Now in the eye of the law,

every penalty

is

considered, as a debt arising out of

a crime, and which the offender is bound to pay to the

aggrieved party. And

in

this there

is

something ap-

proaching to the nature of contracts. For as a seller,

though

no

EXPRESS

stipulation be made,

is

understood to

have bound himself by all the

USUAL,

and

NECESSARY

conditions of

a

sale,

so,

punishment being a natural con-

sequence of crime, every heinous offender appears to have

VOLUNTARILY

incurred the penalties

of

law. In this

sense some

of

the Emperors pronounced sentence upon

malefactors in the following manner, ((you have brought

this punishment upon Yourselves.’’ Indeed every wicked

action done by design was considered

as

a voluntary con-

tract to submit to punishment.

For,

as

Michael the

Ephesian observes on the fifth book of Aristotle’s Nico-

machean Ethics, the ancients gave the name

of

contract,

not

only

to the voluntary agreements which men made

with each other, but to the obligations arising

from

the

sentence

of

the law.

THE RIGHTS OF WAR AND PEACE

223

111.

But to whom the right of punishing properly be-

longs, is a matter not determined by the law

of

NATURE.

For though reason may point out the necessity of pun-

ishing the guilty,

it

does not specify the

PERSON,

to

whom the execution

of

it

is

to be committed.

Natural reason indeed does

so

far point out the person,

that

it

is deemed most

SUITABLE

for a

SUPERIOR

ONLY

to

be invested with the power of inflicting punishment. Yet

this demonstration does not amount to an

ABSOLUTE

NECES-

SITY,

unless the word superior be taken in a Sense imply-

ing, that the commission of a crime makes the offender

inferior to every one

of

his own species, by his having

degraded himself from the rank of men to that of the

brutes, which are in subjection to man; a doctrine, which

some Theologists have maintained. Philosophers too

agreed in this. For Democritus supposed that power

naturally belonged to superior merit, and Aristotle was

of opinion that both in the productions of nature and

art the inferior were provided for the use of the superior

parts.

From this opinion there arises a necessary conse-

quence, that in a case where there are equal degrees

of

guilt in two parties, the right of punishment belongs to

neither.

In conformity to which, our Saviour, in the case

of

the

woman taken in adultery, pronounced that whoever

of

the accusers was without sin, meaning sins of equal

enormity, should cast the first stone. John viii.

7.

He

said

so

for

this reason, because in that age the manners

of the Jews were

so

corrupt, that, under a great parade

of sanctity, the most enormous vices, and the most wicked

dispositions were concealed. A character

of

the times

which the Apostle has painted in the most glowing

colours, and which he closes with a reproof similar to

what his divine master had given, ((therefore thou art

inexcusable,

0

man, whosoever thou art that judgest: for

wherein thou judgest another thou condemnest thyself;

for thou that judgest doest the same things.” Rom. ii.

I.

Applicable to which there is a remark of Seneca’s, that

((no sentence, which is passed by a guilty person can

have any weight.” And in another place, the same

writer observes, that ((if we look into ourselves and con-

sider whether we have been guilty of the offences we

are going to condemn, we shall be more moderate

in

our

judgments.

”

. .

.

..

.

224

HUGO

GROTIUS

IV.

Another part of our inquiry respects the end pro-

posed by punishment.

For

by what has hitherto been

said,

it

was only meant to shew that in punishing the

guilty

no

injury

is

done to them. Still the absolute

necessity of punishment does not follow from thence.

For the pardon of the guilty

on

many occasions has

been considered as the most beauteous feature in the

divine and human character. Plato is celebrated for his

saying that ((justice does not inflict punishment for the

evils that are done and cannot be retrieved; but to pre-

vent the same

from

being done for the time to come."

From Thucydides we find that Diodorus in addressing the

Athenians

on

the conduct of the Mitylenaeans, advises

them ((to forbear punishing their avowed injustice,

un-

less

it

was probable that the punishment would be

attended with some good effect.))

These maxims may be true with regard to human

punishments:

for

one man being

so

nearly allied to

another by blood,

no

degree of suffering should be

inflicted, but for some consequent good. But the case

is

different with respect to God, to whom Plato injudi-

ciously applies the above sentiments. For though the

divine counsels

will

undoubtedly have the good

of

men

m

view, as the end of all punishment, yet the bare re-

formation

of

the offender cannot be the sole object.

Since the divine justice, though tempered with mercy

must adhere to the truth of the revealed word, which

threatens the wicked with punishment or destruction.

The honour therefore of God, as well as the example

held up to men, will be a consequence resulting from

his punishment of the wicked.

V.

A dramatic writer has said that ((the pain

of

an

enemy is a healing remedy to a wounded spirit,)) in

I

which he agrees with Cicero and Plutarch: in the opinion

of the former ((pain is mitigated by the punishment of

an adversary," and in that of the latter

((

satisfaction

is

a sweet medicine to a troubled mind.

))

But a disposition like this, when stripped of all disguise

and false colouring, will be found by

no

means suitable

to the reasonable

soul

of man, whose office

it

is

to

regulate and controul the affections.

Nor

will

that dis-

position receive any sanction from the law of nature,

who

in

all

her dictates, inclines to unite men in society

by

good

will,

rather than to separate them by cherish-

ing

animosity. For

it

is

laid down

by

reason,

as

a

THE

RIGHTS

OF

WAR

AND

PEACE

225

leading axiom in her code

of

laws, that

no

man shall

do

any thing which may hurt another, unless it be for the

purpose of some evident and essential good. But the

pain of an enemy considered solely of such,

is

no bene-

fit

to

US,

but a false and imaginary one, like that

derived from superfluous riches or things

of

the same

kind.

*

In this acceptation revenge

is

condemned both

by

Christian teachers and heathen philosophers. In this re-

spect, the language of Seneca approaches very near to

the perfection

of

Christian morals. He calls revenge, in

its

usual and proper acceptation, a term of inhumanity,

differing from injury only in degree.

For

retaliation of

pain can be considered as nothing better than excusable

sin. Juvenal, after describing the different tempers, over

which revenge exercises the most powerful dominion,

and shewing the amiable characters over which

it

has

no influence, concludes it to be the pleasure of a little

and infirm mind.

From the preceding arguments

it

is plain that punish-

ment cannot justly be inflicted from a spirit

of

revenge.

We proceed therefore to consider the advantages attend-

ing its just infliction.

VI. This seems the most proper place

for

reviewing

those distinctions in the motives

of

punishment, which

have been used by Plato in his Gorgias, and by Taurus

the philosopher in a passage quoted by Gellius in the

fourteenth chapter

of

his fifth

book.

These distinctions

seem to result naturally from the end

of

all punishment.

Plato indeed considers the amendment of the offender,

and the example given to others, as the two principal

motives: but Taurus has added a third, which he calls

satisfaction, and which is defined by Clemens Alexandri-

nus, to be repayment

of

evil, contributing to the benefit

"Nothing forms

a

more striking contrast between ancient

and

modern war, then the personal animosities, which seemed to operate

upon

the combatants in the former, and the public and national objects,

WITHOUT

ANY

PERSONAL

CONCERN,

upon which the latter are undertaken.

Peruse any ancient historian, or the battles in Homer and

Virgil,

WHICH

combatants engaged,

on

whom the laws

of

nature and

of

nations seem

to

THOUGH

FICTIONS,

DESCRIBE

THE

MANNERS

OF

THE

AGE,

and

you

see

have lost their force. Read the accounts

of

modern warfare and

you

find hostilities commenced, not from private animosity, but

from

some

great and national object, in the prosecution of which the feelings

of

the individuals appointed to conduct them are not the

only

springs

of

action.

I5

226

HUGO

GROTIDS

of

both the aggrieved and avenging party. Aristotle

passing over example as

a

motive, confines the object

of

punishment to the amendment or correction

of

the

of-

fender, But Plutarch has not made the same omission:

for

he has said, that ((where immediate punishment fol-

lows the execution of a heinous crime,

it

both operates to

deter others from committing the same crime, and ad-

ministers some degree of consolation to the injured and

suffering person.

))

And this

is

what Aristotle calls

commutative justice. But these matters require a more

minute inquiry. We may observe therefore that there

is

nothing contrary either to human

or

divine law, in pun-

ishments, which have the good

of

the offender,

or

that

of

the injured party,

or

of any persons whatsoever in

view.

The three proper ends are obtained by that kind of

punishment, which some philosophers have called correc-

tion, some chastisement, and others admonition. Paulus

the Lawyer, has given

it

the name

of

correction

;

Plato styles it a lesson

of

instruction, and Plutarch a

medicine of the

soul,

reforming and healing the suf-

ferer, while

it

operates as a gainful remedy.

For

as all

deliberate acts, by frequent repetition, produce a pro-

pensity, which ripens into habit, the best method of re-

forming vices in their earliest stage is to deprive them of

their sweet savour by an infusion

of

subsequent pain. It

is an opinion of the Platonists, repeated by Apuleius,

that ((impunity and the delay of reproof are more seveSe

and pernicious to an offender than any punishment what-

soever,)) and, in the words of Tacitus,

((

violent dis-

orders must be encountered with remedies proportionably

strong.

))

VII.

The power of inflicting the punishment, subserv-

ient to this end, is

allowed

by the law of nature to any

one of competent judgment, and not implicated in sim-

ilar

or

equal offences. This is evident as far as verbal

reproof goes, from the maxim of Plautus, that “to bestow

merited reproof upon a friend is useful, upon certain

occasions, though by no means a grateful office.)’ But in

all kinds

of

constraint and compulsion, the difference

made between the persons, who are allowed, and who are

not allowed to exercise

it

is no appointment of natural

law, but one of the positive institutions of the civil law.

For no such natural distinction could be made, any

farther than that reason would intrust parents with the

THE

RIGHTS

OF

WAR

AND PEACE

227

peculiar use of such an authority, in consideration

of

their

affection. But laws, in order to avoid animosities, have,

with respect to the authority of punishing, passed over

the common kindred subsisting among mankind, and con-

fined it to the nearest degrees of relation: as may be

seen in many records, and particularly in the code of

Justinian, under the title of the

POWER

OF

RELATIVES

TO

CORRECT

IN

ORDER

TO

REFORM

OFFENDERS,

And Cyrus, in

the v. book and viii. chapter of Xenophon’s history

of

the Expedition, addresses the soldiers to the following

purport,

((

If

I

punish any one for his good,

I

am willing

to submit to justice

;

but would it not be equally reason-

able that parents and masters should submit to justice,

for having corrected children, or the Surgeon be respon-

sible for having used the incision-knife, where the patient’s

case required it

?

))

But this kind of corrective punishment does not extend

to death, which cannot be considered, as a benefit in

itself, except

INDIRECTLY

and

BY

WAY

OF

REDUCTION,

as it

is called by Logicians, who, in order to confirm negatives,

reduce them to things of an opposite kind. Thus, in

Mark xiv.

21,

when our Saviour says, that it were better

for some, they had never been born,

so,

for incurable

dispositions, it is better, that is would be a less evil, to

die than to live; since it is certain that by living they

will grow worse. Plutarch calls such men a pest to

others, but the greatest pest to themselves. Galen says

that capital punishments are inflicted to prevent men

froF doing harm by a longer course of iniquity, and to

deter others by the fear of punishment, adding that it is

better men should die, when they have

souls

so

infected

with evil, as to be incurable.

There are some, who think that these are the persons

meant by the Apostle John, who describes them as sin-

ning a sin unto death. But as their arguments are not

satisfactory, charity requires that no one should be

deemed incorrigible, except upon the clearest grounds.

SO

that punishment with such an end in view can only

be inflicted for important causes.

VIII. The benefit accruing to an injured person from

the punishment of an offender consists in his being se-

cured in future against a recurrence of the same injury

from that offender,

or

from others. There are three

ways

of

preventing this reourrence-by removing the

Qffender

-

by depriving him

of

the power

of

doing harm,

228

HUGO GROTIUS

or

lastly by compelling him to better habits of thought

or action, which is the reformation produced by the pun-

ishment already spoken of.

It

is not every kind

of

punishment, which can produce such effects

;

it must be

open and conspicuous, to operate as an example, that

may deter others from the commission of the same

crimes.

A

vindictive punishment, inflicted by an injured

individual, or by any other person, when it is restrained

by bounds and limitations of this kind, has nothing un-

lawful in it considering the law of nature by itself,

apart from all human and divine institutions, and every

adventitious circumstance, that may create a deviation

from the primitive dictates of nature. We have said that

'it

may be inflicted by any other individual, as well as

by the injured person: for it is comformable to nature,

that one man should assist another. But as

our

judg-

ment is apt to be biassed by our affections, in cases,

where our interest is concerned; since the formation of

families into states, judges have been appointed, and in-

vested with the power of punishing the guilty, whereby

the natural liberty of personal redress, originally allowed

to individuals, was abolished, or at least abridged. And

it

is only in places, on the seas for instance, where no

judicial remedy can be obtained, that this natural liberty

continues in force. There is a circumstance related of

Julius Caesar, applicable to this subject. While he was

only in a private station, being taken prisoner by some

pirates, after he had redeemed himself

by

a

sum

of

money, he applied to the proconsul for redress. But his

application being neglected, he fitted out a certain num-

ber of ships, attacked and defeated the pirates, and

ordered them all to be crucified.

The practice of private individuals, exercising punish-

ment, was the

origin

of single combats,

so

familiar to

the Germans before the introduction of Christianity, and

not yet sufficiently laid aside. We are informed by

Velleius Paterculus, in his second book, that the Germans

were surprised to see the forms of Roman jurisprudence,

and those disputes, which they themselves decided by the

sword, settled by law. By the Jewish law, the nearest in

blood to the deceased were allowedto kill a murderer,if taken

beyond the places of refuge. And the Jewish interpreters

observe, that in

GENERAL

the infliction of punishment,

as

a retaliation for murder, it intrusted to

no

hand, but

that

of

the

judge:

as it is difficult for

an

individual

in

THE

RIGHTS

OF

WAR

AND

PEACE

2

29

his own case to moderate his resentment. The same

custom of allowing individuals to avenge their

own

wrongs

prevailed among the ancient Greeks, as we find

from

the

words of Theoclymenes, in Homer’s Odyssey. But it

prevailed most in countries, where public courts of justice

were not established. From hence

St.

Augustin defines

those wars to be just, which are intended

to

avenge

injuries. And Plato, in his twelfth book

ON

A

COMMON-

WEALTH,

justifies the prolongation of hostilities, till the

aggressor is reduced to submit to just, and equitable

terms.

IX.

GENERAL

utility which was considered

as

the third

end proposed by punishment, may be divided into the

same number of parts, as the benefit accruing from

thence to individuals. For these are the objects in view,

either to prevent the individual, who has injured one

person, from doing .injury to others: an object which can

be accomplished only by removing the offender, disarm-

ing him of the means of farther injury,

or

by reforming

him:

or

it

may be inflicted to deter others from being

allured, by an example of impunity, to commit acts

of

molestation

or

enmity. And the infliction of punishment,

for

such reasons, is a

RIGHT

granted by the law of nature

to every individual. Upon this principle, Plutarch ob-

serves in the life of Pelopidas, that good men are designed

by nature for the office of perpetual magistracy, and

superiority belongs to those, in whom the characters of

truth and justice unite.

But as it requires a painful degree of patience to

examine into facts, and no inconsiderable share of skill

and equity to affix the extent of punishments; in order to

prevent quarrels from arising through the presuming con-

ceit, which every man entertains of his own wisdom, and

to which others are averse to yield; in all well regulated

communities, it has been usual to select for the tribunals

of justice those, who were deemed worthy of such honour,

or likely to become

so,

from their integrity and wisdom.

Democritus has said, there would have been no occasion

for laws to prevent every man from living according to

his own humour, if one had not done injury to another.

For

envy was the origin of strife. But as we have just

observed, that it happens, in the case of revenge,

SO

in

this kind

of

punishment, inflicted for the sake

of

example,

there are traces and remains of ancient law, in those

places, and among those persons, that are subject to

no

230

HUGO

GROTIUS

CIVIL

jurisdiction

;

and in certain other cases besides.

Thus any Hebrew, according to the customs of that

people,

if

he should turn away from God, or from the

law of God, or should seduce others to false worship,

might immediately be put to death by any one whatso-

ever. The Hebrews call that an act of

ZEAL,

which was

first done by Phinehas, and which afterwards became a

custom. Thus Mattathias slew

a

Jew, who was polluting

himself with Grecian rites. In the same manner, in the

book commonly called the third book of Maccabees,

it

is

related that three hundred other Jews were put to death

by their own countrymen. Nor could any other pretext

be assigned for stoning Stephen, and conspiring against

Paul. Philo, and Josephus abound in instances of this

kind. There are many countries where we may trace

the remains of primitive law, in the plenary power al-

lowed to masters over their slaves, and to parents over

their children, extending even to inflict the punishment

of death.

So

the Ephori of Sparta might put a citizen

to death without the formality of trial. From what

has been said,

it

is easy to infer what punishment the law

of nature authorises, and how far

it

has remained in force.

X

We come now to consider whether the law of the

Gospel has confined that liberty within closer bounds.

It

has been observed in another part of this treatise,

that

it

is not surprising that some things, which are al-

lowed by natural and civil law, should be forbidden by

the divine law, owing to its great perfection, and the

superiority of its rewards, over any thing that human na-

ture can bestow. To the attainment of which it is not

unreasonable that virtues should be required, far exceed-

ing the simple precepts of nature. Those kinds of cor-

rection that leave neither any mark of infamy, nor any

permanent injury, but are suited to the age, or other

circumstances of the sufferer,

if

inflicted by those, who

derive such a permission from human laws, for instance

by parents, guardians, or masters, contain nothing re-

pugnant to the precepts

of

the Gospel, as may be clearly

understood from the nature of the thing itself. For

they are remedies to the mind no less harmless than

medicines ungrateful to the palate are to the body. But

as to revenge the case

is

different For the infliction

of

punishment, only to gratify resentment,

so

far from be-

ing conformable to the Gospel, has been shewn above

to

be repugnant even to the law of nature.

THE RIGHTS

OF

WAR

AND

PEACE

23

I

The Jewish law indeed not only forbids the cherishing

of hatred against a neighbour, that is, one of the same

,

country and people, but requires certain common acts of

kindness to be bestowed even upon enemies of that de-

scription. The Gospel therefore, comprehending all men

under the appellation of neighbour, not only forbids

us

to hurt our enemies, but commands

us

to do them good;

a commandment clearly stated in the Gospel

of

St.

Matthew. Yet the law permitted the Jews to seek re-

venge for injuries of a more grievous kind, not with

their own hands, but by appealing to the judge. But Christ

does not give

us

the same permission, as appears from

that opposition which he makes between the permissions

of former times, and those of his own law. ((You have

heard that

it

was said an eye for an eye

-

but

I

say

unto you, love your enemies, etc.

))

For

although what follows relates peculiarly to the re-

pelling of injury, and, in some measure, abridges this

permission, yet it passes a much greater censure upon

revenge, rejecting it as an indulgence suitable only to a

more imperfect, and carnal state.

To

inflict punishment by way

of

retaliation was disap-

proved of even by those of the Jews, who were dis-

tinguished for their worth and wisdom

;

because they

regarded not only the

LETTER,

but the

PURPOSE

and

SPIRIT

of the law. This appears from Philo, in whose writings

we find the Jews of Alexandria, upon the calamity of

Flaccus, their persecutor, addressing themselves to God in

the following language, “We do not rejoice,

0

Lord, in

the calamity or punishment of an enemy, being taught

by thy holy laws to feel for the miseries of men.” And

in this case we may apply that general command given by

Christ to forgive all who have offended or injured

us,

that

is, neither to do, nor to wish them evil, through resent-

ment of the evil they have done to

us.

But what can be

said

of

revenge, not as regarding the past, but as pro-

viding security for the future

?

Here too Christ requires

of his followers the same disposition to pardon injuries,

particularly,

if

the offender shews any probable signs of

repentance. Luke xvii.

3.

Eph. iv.

32.

Col.

iii.

13.

In

those passages a full remission is intended, such a remis-

sion as restores the offender to his former situation

of

friendship or confidence

:

and consequently nothing can

be

required of him under the name

of

punishment. Besides,

if

there were no such marks of repentance, the reparation

232

HUGO

GROTIUS

of

a

loss

is

not to be pursued with to much rigour; a

doctrine inferred from the precept

of

Christ enjoining

us

to give up the garment along with the cloak.

But

if

it

is

likely that connivance at an offence will be

attended with imminent inconvenience and even danger

to ourselves, we should be contented with such securities

as may be effectual, and at the same time operate with as

little prejudice as possible to the offender. For even

among the Jews, the law

of

retaliation was not in use, as

we are informed by Josephus, and other writers

of

that

nation. But in addition to the expence incurred, which

the law treats of as a separate point, the injured party

usually received a pecuniary fine instead

of

retaliation;

the repayment of expences being considered simply as a

restitution, and not a penalty.

It

remains now to consider punishment, as providing

for the

PUBLIC

and not

INDIVIDUAL

security, which is ac-

complished either

by

removing the guilty person out of

the way

or

by restraining him from doing farther mis-

chief, or

by

deterring others through the severity of

example, none

of

which means

it

has been clearly proved

were abolished by Christ; for in giving his precepts he

affirmed that he destroyed no part of the law. The law

of

MOSES

indeed, which in these respects was to remain

in force as long as the Jewish Polity existed, strictly en-

joined magistrates to punish murder and other similar

crimes. But

if

the precepts of Christ could exist in con-

junction with the law of Moses, as far as

it

imposed cap-

ital punishments, surely they may exist in conjunction

with human laws, which in this respect are but an imi-

tation of the divine laws.

XI.

Some, in support of an opposite opinion, allege the

supreme mercy of God, as

it

is

displayed in the new

covenant, and which

is

given

as

an example for men,

and

for

magistrates, in particular, to follow, who, in the

exercise

of

authority, execute the laws

of

the Deity.

This opinion may in some measure be true, but not to

that extent, which the authors of

it

intend. For the

great mercy of God displayed in the new covenant has

a

peculiar reference to offences against the primitive law,

or even against the law of Moses, before the time that

men had received a knowledge, of the Gospel. For of-

fences committed after the promulgation of the Gospel,

especially

if

they are accompanied with a hardened ob-

stinacy, are treated with much severer judgments than

\

THE

RIGHTS

OF

WAR

AND

PEACE

233

any that were declared by Moses. For God punishes

sins of that kind not only in a future state, but in the

present life. But for sins of that kind, to obtain the

act of mercy and indulgence, the offender must inflict

punishment upon himself, not in a slight

or

trivial man-

ner, but with

a

heartfelt sorrow, and resolution to sin

no more.

In the same manner

it

is

maintained that

if

men are

actuated by repentance, they are

ENTITLED

to impunity.

We do not say that men are never actuated by sincere

repentance; but it is not every kind of avowal or ac-

knowledgment, by which God is moved to remit the

WHOLE

of a punishment, as appears from the case of

David. As the supreme judge therefore might dispense

with the full penalty of the law, inflicting death, and yet

'

exercise no inconsiderable severity upon offenders,

so

now

he may dispense with the sentence

of

eternal death, at

the same time leaving the sinner to find an early grave

by the stroke of some calamity,

or

by the hand of human

justice.

XII. and XIII. Another objection made against capi-

tal punishments

is

that such a kind of sentence and

execution is cutting off a criminal from all possibility

of repentance.

But

those, who make the objection, must

know, that in cases of that kind, venerable and upright

judges use the greatest precautions, and suffer no one

to be hurried away to execution, without a reasonable

time allowed for reflection and deep abhorrence of his

crime: a repentance, which though prevented by the in-

terposing hand of death from producing the fruits of

righteousoess, we have reason to suppose, from the case

of the thief pardoned on the cross, may be accepted

with God.

But

if

on the other hand

it

be said that longer life

might have been of more avail to serious repentance, we

may observe that, in some cases, the reply of Seneca

may be made, that to men of that description death

is

often the greatest blessing which can be bestowed; for,

in the words of Eusebius, their career of wickedness

cannot otherwise be shortened,

or

reformed. These in

addition to the preceding arguments in the former part

of this treatise may be deemed a sufficient answer to

those, who assert that all capital punishments, and even

all punishments, without exception, are abolished by the

precepts of our Saviour. The Apostle, consigning to

234

HUGO GROTIUS

,

the office of kings the use

of

the sword, as an exercise

of his divine commission to avenge all wrongs, instructs

us

to pray for kings, that, as true Christians, in their

royal capacity, they may be a protection to the inno-

cent.

An

end, which even after the introduction of the

gospel, could not easily be obtained, owing to the de-

pravity of mankind, if the violence

of

some were not

restrained by the exemplary punishment of others. Such

authority is the more necessary, when even in the midst

of

so

many examples and punishments, the lives of the

innocent are scarcely secure. There have been indeed,

it cannot be denied, happy instances where the sentence

of death was changed for that of perpetual labour, a

practice, as we are informed by Diodorus, followed by

Sabacon, king of Egypt, a prince renowned for his

piety. Balsamon observes that the penal laws of Rome,

inflicting death, were most of them changed by the

Christian emperors of later times, and other kinds

of punishment were substituted, that the guilty

might receive deeper impressions

of

repentance, and

their punishment operate as a more durable exam-

ple.

XIV. From what has been said, it may be inferred,

how unsafe it is for a private Christian, whether from

motives of personal interest, or from those of the public

good, to take upon himself the punishment of an offender,

and particularly to inflict death. Although, as it has been

said before,

it

may,

IN

SOME

CASES,

be allowed by the law

of

nations.

A

permission, that has given rise to the

laudable practice, prevailing in some countries of furnish-

ing adventurers with public instructions and commissions

to chase and capture pirates, wherever they may be

found. But those adventurers may be considered as dis-

charging a public duty rather than as acting upon their

own authority.

XV.

A

custom not unlike to which prevails in many

places,

of

not allowing individuals to bring criminal

charges against others at their own pleasure: that office

belonging to persons invested with public authority to

undertake it.

So

that no one can contribute towards

shedding the blood of another, but

as

an act of necessary

duty. In reference to this custom, a canon

of

the council

of Eliberis excluded from the communion any believer

who had been instrumental in causing the proscription

or death

of

another.

THE

RIGHTS

OF

WAR

AND

PEACE

23

5

XVIII.*

It

is proper now to consider whether all wicked

acts are of that kind, which are punishable by human

laws. In reply to which we may answer that they cer-

tainly are not.-In the first place, mere acts of the mind,

or criminal intentions, though by subsequent confession,

or some other accident, they may come to the knowledge

of others, are nor punishable by human laws. Because,

as it was proved in a former part of this treatise, it is

not consonant to the law

of

nature, that

INTENTIONS

ONLY

should give rise to any right,

or

obligation amongst men.

And in this sense the maxim of the Roman law is to be

taken,

THAT

NO

ONE

DESERVES

PUNISHMENT

FOR

MERE

THOUGHTS.

Yet this does not prevent intentions, when

they have an influence upon the conduct, from being

considered as actual deeds, and equally deserving of

punishment.

XIX. In the second place, even outward acts, cannot

be punished by men where they arise through some in-

evitable infirmity of human nature. For although there

can be no sin, except where there is a freedom of will,

yet to be at all times free from all infirmity and sin, is

more than can be expected from the condition of man.

So

that Sopater, Hierocles and Seneca among the Philoso-

phers; Philo among the Jews; Thucydides among the

historians; and innumerable writers among Christians

have maintained that sin is interwoven with our very

nature. Nay indeed, a doubt may be entertained whether

such acts can rightly and properly be called sins. For

though seeming to be voluntary actions, they will be

found, when minutely considered, not to proceed from a

free and deliberate exercise of the will. ((Laws,

says

PZutarck

in

the

Z+e

of

SoZon,

should be framed to suit

possible cases, the legislator may obtain every beneficial

end by punishing

a

few offenders, where the indiscrim-

inate punishment of multitudes would be attended with

no good effect.)’

There are some actions, which though not imputable

to human nature itself, are inevitable consequences of

the influence of bodily habits on the mind. Actions like

these are punishable in human courts, owing to the crim-

inality of voluntary contracting, or of not sufficiently

guarding against, those habits.

*Sections

XVI

and XVII

of

the original, relating

only

to

the ref-

utation

of

certain abstruse opinions, are omitted in the translation,-

(

Translator.

)

236

HUGO

GROTIUS

XX.

In

the third place, human courts of justice cannot

take cognizance of those offences, which neither directly

nor indirectly, affect the public or individuals. For no

reason can be assigned, why such offences should not be

left to the judgments of God, whose all-seeing eye must

know them, whose equity will weigh them, and whose

power can punish them.

It

would be unnecessary there-

fore, and presumptuous in human tribunals to assume

such decisions. However we must except from this rule

those corrective kinds of punishment, designed for the

reformation of offenders, even where their conduct is no

way injurious to others.

Neither are those actions punishable, which are directly

opposite to the virtues

of

compassion, liberality, or grati-

tude, in the performance of which virtues natural justice

allows of no compulsion.

XXI. The point, necessarily to be considered next, is

the opinion, whether it is lawful some times to grant par-

don. For the Stoics maintain it not to be lawful, as may

be seen from a fragment in Stobaeus, under the title

of

MAGISTRACY,

from Cicero’s speech for Murena, and towards

the conclusion of Seneca’s books on Clemency; but their

arguments are fallacious, and unsubstantial. They say

“that pardon is the remission of a penalty, that

OUGHT

to

be paid; but a wise man does every thing, which he

OUGHT

to do.” Here the fallacy lies in the use of the

word ouGnT. For if

it

means that an offender owes a

penalty, that

is,

that he may be punished without injus-

tice, it will not necessarily follow that the person who

does not punish him, is doing what he ought not to

do.

But

if the word be taken to imply that

a

good man, or

a wise man, ought at all events, to exact the penalty, it

may be observed in reply that

THIS

does not always hap-

pen, and therefore, in this sense, the penalty

or

punish-

ment may be considered, not as a debt, but only a

permission. And this will hold good, both before and

after the establishment of penal laws.

XXII. Before the establishment of penal laws, punish-

ment, beyond all doubt, might be inflicted; because by

the law of nature, every offender made himself subject

to

punishment; but

it

is not a natural and inevitable con-

sequence of its being lawful, that

it

should be enforced.

For

this depends upon the connection between the ends,

for which punishments were established, and the punish-

ments themselves.

If

the ends proposed therefore are

THE

RIGHTS

OF

WAR AND PEACE

237

not immediately necessary, in

a

moral point

of

view, or

if other ends of a different kind, but not less wise and

salutary should be devised, or that the ends originally

designed may be obtained by some other means, in all

these cases, the right of punishment may be saved, there

being

no

immediate occasion to inflict it.

Thus

for in-

stance, where an offence is known to very few, there can

be no immediate occasion for

a

public punishment, by

way of exemplary exposure, which in some cases might

be even injurious to society rather than productive

of

advantage. Upon

makes

a

pertinent

ing, that “had he

which Cicero in a letter to his brother

remark, respecting one Zeuxis, observ-

once been brought into court, he could

not have been released, but there was no necessity that

a search should be made for him, in order to bring him

to trial.

))

-

In the next place the right and end of punish-

ment may be dispensed with, where a man’s own ser-

vices, or those of his family are sufficient to outweigh

the consideration

of

his offences. ((For,

in

the

words

OJ

Seneca,

an act of kindness eclipses the fault of an injury.”

-And in the last place, where reproof operates upon an

offender, as a means of correction and amendment,

or

where the injured party is satisfied with an acknowledg-

ment of the offence, the occasion for punishment is done

away.

It

was this motive to clemency, which the son

of David had in view, where he observes that it behoves

the righteous to be merciful. For as all punishment,

especially of the more severe cast, has in it some thing,

which tho’ not repugnant to justice, is at variance, at

least, with charity, reason easily suffers

us

to forbear in-

flicting it, unless that forbearance is opposed by some

weightier, juster, and more undeniable motive of

charity.

XXIII. Cases may occur where it

is

absolutely neces-

sary to inflict punishment, as upon notorious, and atro-

cious criminals, or where it is for the public good, to

dispense with that severity, or where the judicial authori-

ties may use their own discretion in mitigating or enforc-

ing the sentence

of

the law. Upon which Seneca pertinently

&marks, that the exercise of lenity should always be an

act of free deliberation.

AS

to the disputes of the Stoics

on

these points, they are, in the opinion

of

Cicero anti

others, debates upon words rather than things: conse-

quently they are less worthy of philosophical contem-

plation

238

HUGO

GROTIUS

XXIV. There seems to be a greater difficulty in decid-

ing what is to be done, subsequently to the establish-

ment of penal laws; because

a

legislator is bound, in

some measure, by his own laws. But this, as

it

was

proved in a former part of this treatise, is only true with

respect to the legislator, in his individual capacity,

as

a

private member of the state, but not in his public char-

acter, in which he represents the whole Majesty and

Authority of the state itself. As such, he can entirely

repeal the law: for it is the nature of all human laws, to

depend upon the will of the maker, not only for their

origin, but also for their duration. Yet a lawgiver ought

not, upon trivial grounds, to repeal a statute, for, in

so

doing he would be acting against the rules of sovereign

justice. But as the legislator has power to repeal the

whole of a law,

so

in the case of some particular person,

or individual action, he may relax its rigour, allowing it to

remain in other respects, as it stood before. As an exam-

ple of this, the actions

of

the Deity may be cited, who,

according to the testimony of Lactantius, in enacting his

laws, did not deprive himself of the exercise of his mercy,

to grant pardons. ((The Emperor,

says

Augustin,

may

recall his sentence, pardon and release a criminal

;

because,

as

he

further explains

it,

the person who has power to

make laws, is not

INVARIABLY

bound to observe them.

))

Yet this privilege of departing from the letter must never

be used but for the most important reasons,, Although

such reasons cannot be precisely defined, yet it is certain

that, since the establishment of civil law, more weighty

ones are required to authorise such pardons, than before

that period. Because punishments have derived an addi-

tional sanction from the authority of the law, which ought

to

be respected and observed.

XXV. The reasons for releasing any one from the pen-

alties of the law, are of two kinds, either internal or

external.

An internal reason, to justify a departure from the sen-

tence of the law, must be one, where the punishment is

severe when compared with the offence.

XXVI. An external reason is one arising from some

favourable circumstance in the character of the offender,

or some fair hopes that may be entertained

of

his future

conduct. And these reasons will have the most weight

in cases, where the particular motives for making the

jaw cease

to

operate, For although a general

reason,

THE

RIGHTS

OF

WAR AND PEACE

239

unopposed by any other of a weightier kind, may

suffi-

ciently authorise the enaction. of

a

law; yet where the

peculiar reason, for which that law was made, has ceased

to exist, the relaxation of it, or even a total dispensation

will be attended with less danger to the universal au-

thority of law in general.

Such

a

dispensation indeed is most allowable, where an

offence has been committed through ignorance, though

the party

so

committing

it

is

not entirely free from

blame, or through some invincible infirmity

of

mind, in

all which cases, a Christian ruler will have an eye to the

example

of

God, who, under the old covenant, appointed

many such offences to be atoned for by certain expiatory

offerings: Levit. iv. and v.

:

and, in the New Testament,

he has expressly declared his intention to pardon such

offences, upon due repentance. Luke xxiii.

34.

;

Heb. iv.

15.

and v.

2.

;

I

Tim.

I.

13.

And Chrysostom observes,

that Theodosius, impressed with those words of our Sav-

iour, ((Father, forgive them, for they know not what

they do,” was led to grant a pardon to the people of Antioch.

XXVII. And hence it is evident, how mistaken Ferdi-

nand Vasquez is in his judgment, when he maintains that

there can be no just reason for dispensing with a law,

that is, for releasing any one from its obligations, except

where the lawgiver, upon being consulted, expressly de-

clares that he never intended it should be observed to

its full extent. For he does not make the proper dis-

tinction between an equitable interpretation, and the en-

tire relaxation of a law. For which reason, in another

place, he reproves Thomas, and Sotus, because they say

that a law is binding although the particular reason of

its being made may have ceased, as if they supposed that

the mere letter of the law was the source of its obliga-

tion, an opinion which they never did entertain.

So

far

from every relaxation coming under the idea of equity,

properly

so

called; those relaxations may be freely granted

or refused, which could not be done in matters of equity,

to which even acts

of

charity or those of reasonable pol-

icy do not strictly belong. For there

is

a great difference

between the repeal

of

a law upon fair or urgent

grounds,

and a legislator’s declaring that at the time of passing the law

he had not the particular offence

or

case in contemplation.

Having thus far considered the nature of dispensations,

we proceed to a review of the merits

upon

which they

may be granted.

240

HUGO

GROTIUS

XXVIII. From what has been said above,

it

appears

that in punishments, two things are to be regarded, the

offence, and the object for which they are inflicted.

It

is

consonant to justice that no one should receive greater

punishment than he deserves; upon which Cicero, in one

of

his letters, observes, that, “the same moderation,

which

is

commended in

$1

other things, ought to be

observed in punishments.

)’

Papinian therefore calls

punishment an estimation of demerit; but this equality

established between crime and punishment, says Demos-

thenes in his Letter in behalf of the children of Lycurgus,

is not the only thing to be considered: the object and

intention also of the delinquent must be weighed and

taken into the account. But,

-if

care be taken to inflict

no more punishment than is due for an offence; it may

be greater or less, in proportion to the utility to be de-

rived from thence.

XXIX. In examining the different degrees

of

guilt,

we ought to take into the account the motives which im-

pelled the offender to commit the act

-

the motives, which

ought to have restrained him therefrom, and how far he

was capable of yielding to either. Scarce any one does

a wicked action without some motive, or

so

far strips

himself of the nature of man, as to delight in such acts

from pure malignity. Most men are led away by the

indulgence of their appetites, which engender sin. Under

the name of appetite also may be comprehended the

strong desire

of

avoiding evil, which

is

the most conso-

nant to nature, and therefore to be reckoned amongst the

most laudable

of

all desires.

So

that offences committed

for

the sake

of

avoiding death, imprisonment, pain, or

extreme want are generally deemed the most excusable.

Which gave occasion to Demosthenes to say, ((that we

are justly more exasperated against those, who, abound-

ing in riches, commit evil actions, than against those,

who are impelled by want to

do

the same. Humane

judges are always ready to make allowance

for

neces-

sity: but where wealth

is

united with injustice, no pre-

text can be pleaded in excuse.

))

On this score, Polybius

excuses the Acarnanians, for having neglected, when

threatened with impending danger themselves, to fulfil

the terms

of

a defensive treaty made with the Greeks

against the Aetolians.

Besides the desire

of

avoiding evil there ,are other de-

sires tending to some good, either real or imaginary,

THE

RIGHTS

OF

WAR

AND

PEACE

241

Real advantages, considered apart from virtues, and

those actions, which have a virtuous tendency,

are

either

such as give delight themselves, or, like abundance of

riches, can procure those things, which administer to

pleasure. Among advantages purely imaginary, we may

reckon that of desiring to excel others, from a spirit of

rivalry, rather than from any laudable intention, or the

power of gratifying resentments, which the farther they

deviate from natural justice the more shocking they are to

natural feeling. These appetites the Apostle has de-

scribed in terms of marked censure, calling them, the

((lust of the flesh, the lust of the eye, the pride of life.))

Here the first member of the sentence expresses the love

of pleasure, the second implies the insatiable love of

riches, and the third comprehends the pursuit of vain

glory, and the desire of revenge.

XXX.

The very injustice of all offences ought to be a

GENERAL

motive with men, to restrain them from the

commission of them. For at present we are not consid-

ering sins of any kind, but those, which extend their

consequences beyond the offender himself, and affect

others. And injustice is the more heinous and criminal

in proportion to the greatness of the injury, which it

inflicts.

In the highest rank of crimes and misdemeanours there-

fore, we may place those, which are carried into com-

plete execution: and lower in the scale we find those

criminal designs, which have proceeded some degrees,

but not to the last stage of completion. For the aggra-

vation of a criminal intent is measured by the length to

which it goes. In either class that kind of injustice is

most notorious, which tends to disturb the common

peace of society, and therefore is injurious to greater

numbers. Private wrongs follow in the next degree.

The greatest of which are those affecting life, and very

great, though somewhat inferior in the degrees of enor-

mity, are those, that disturb the peace of families, which

is founded on the marriage-contract. And the last de-

scription of wrongs are those affecting the property of

individuals, either by taking it with open violence,

01

obtaining or injuring it by fraudulent means.

Some are of opinion that a more accurate order

of

division might have been used; but that which is here

followed is the Same used

by

God himself in the delivery

of

his

commandments. For under the name of parents

16

242

HUGO

GROTIUS

are included not only those, who are naturally Such, but

sovereign princes, magistrates, and rulers of every de-

scription, whose authority is the key-stone of the fabric

of society. Next follows the prohibition of murder; the

prohibition of adultery, as a violation of the marriage

bond

;

the prohibition of theft, and false evidence: and

the catalogue of offences concludes with the prohibition

of criminal desires. Among the immediate causes to

restrain the commission of a crime, not only the cruelty

of the act itself, but all the remote and possible conse-

quences should be taken into the account. If a fire is

begun, or the barriers, that keep out the waves, are

broken down, the perpetrator brings upon his own head

the blood of thousands, and all the guilt of that ruin by

which they perish.

In addition to the general characters of injustice above

described, we may annex the crime of being undutiful

to parents, unkind to relatives, or ungrateful to bene-

factors, which are each of them a violation of natural,

and in some respects of civil law. The repetition of

these offences too aggravates their enormity: because

wicked habits are sometir-es worse than wicked actions.

Hence we may comprehend the natural justice of that

rule, which the Persians followed, comparing the past life

of an offender with his present transgression. And this

ought to have some weight in cases where a crime, does

not originate from habit, but from a momentary occa-‘ Jlon.

But not

so,

where a course of former rectitude has been

changed into an unvaried course of wickedness. For in

such cases, God himself has declared by the mouth of his

prophet Ezekiel, that he has no regard to the former life.

Even profane writers have the same clear views upon

the subject; for Thucydides observes, that degeneracy

from a righteous to a wicked course incurs double

pun-

ishment: for offences are least pardonable in those, who

know the difference between right and wrong. In this

respect all praise and admiration are due to the wisdom

of the primitive Christians, who, in estimating the mag-

nitude of offences, weighed the preceding and the subse-

quent conduct of a transgressor against the action, for

which he was to be punished, as may be seen from the

council of Ancyra, and other councils. It heightens the

enormity of an offence, where

it

is

committed in viola-

tion

of

an express prohibition of the law.

For,

in the

language of Tacitus, “the fear of prohibition may

some-

THE RIGHTS

OF

WAR AND PEACE

243

times operate as a restraint, but where men once act in

defiance of that, fear and shame have lost all their

force.

))

XXXI. The capacity of the person too, with respect to

judgment, disposition, age, education, and every other

circumstance must be taken into consideration, when we

look for resistance, or submission to the suggestions of

wicked inclinations. The thought of immediate danger

augments fear, and recent, unallayed pain inflames anger;

so

that in either case the calm dictates of reason cannot

be heard. Offences therefore springing from the influ-

ence of such impressions, are of a less odious complexion

than those arising from the love of pleasure,

or

the in-

dulgence

of

hatred. Because there is less excuse for actions

of the latter kind, the delay, or total forbearance of which

could

occasion no serious inconvenience. For

it

must

always be kept in mind, that where there are more power-

I

ful impediments to the exercise of judgment, and more

urgent persuasives to natural feeling, the criminality

of

an offence is proportionably softened. And these are the

rules for measuring the degrees

of

pardon or punishment.

XXXII. The Pythagoreans maintain that justice lies

in proportioning the punishment to the offence: a rule

which cannot be admitted to the full extent of requiring

an aggressor to suffer nothing more than a bare requital

of the injury he has occasioned. For this is at variance

with the most perfect laws, which in cases of theft some-

times require fourfold, and sometimes fivefold restitution

to be made. And the Athenian law, besides compelling

a thief to pay double the value of what he had taken

sentenced him to many days’ imprisonment. Among the

Indians, as we are informed by Strabo, the person, who

had maimed another, was condemned, in addition to the

penalty

of

retaliation, to lose his hand. Nor is it right,

as Philo, in explaining the punishment of murder, justly

observes, for the suffering of an innocent and guilty per-

son to be exactly the same. And hence it is easy to see

why certain crimes not carried into actual execution, and

therefore less injurious than those, which are

so,

are

punished only proportionably to the design.-In this man-

ner false witnesses were treated by the Jewish law; and

by the Roman law, those who walked ready armed to

commit murder. Consequently a greater degree of pun-

ishment is due, where the criminal intention is com-

pleted. But as death is the severest punishment that

244

HUGO

GROTIUS

can be inflicted, and one that can never be repeated; the

sentence of all human law rests there: though by the

custom of some countries death

is

accompanied with tor-

ture, in cases

of

extreme atrocity.

XXXIII. In many instances, the magnitude of a pun-

ishment can only be measured by the situation of the

person on whom it is to be inflicted. Thus a fine im-

posed upon the poor would be a heavy sentence, though

it would scarely affect the rich

;

and a man of high rank

would feel the weight of

a

disgrace, that would but

lightly touch an ignoble person. Such distinctions are fre-

quently used by the Roman law, often degenerating into

acts

of

partiality; a fault from which the law of Moses

is entirely free. And the above rules may be considered

as the scale for estimating the different degrees of pun-

ishment.

XXXIV. Though punishment does not exceed the

bounds of justice, yet in certain cases it may be miti-

gated in favour of a criminal, from motives

of

mercy,

except where such lenity to the guilty is deemed cruelty

to the innocent, whose safety is thereby endangered.

For the escape of a criminal is often an encouragement

to his own perseverance in iniquity, and to that of

others, who are encouraged by the example, Necessity

indeed requires the sharpest remedies for the suppres-

sion

of

crimes; especially, where the incentives of habit

and a facility to commit the,m prevail.

XXXV. The divine law gjven to the Hebrews punished

the stealing of cattle from a pasture with more severity than

breaking into

a

house, on account of the ease with which

the former

of

those crimes might be committed.

Exod.

xxii.

1-9.

Justin in speaking of the Scythians, describes

them as ((punishing theft with more severity than any

other crime; for as they have no covered habitations to

protect their flocks, and herds from depredations, what

could be safe,

if

thieving were allowed

?

))

Though the

FmILuRITY

of certain crimes may prevent

us

from being

surprised at their perpetration,

it

by no means diminishes

their atrocity, or demands a mitigation of punishment.

But,

as

Saturninus says, ((the giant-strides

of

crimes

must be impeded with the strongest bands.

)’

In

trials

for offences, clemency may be indulged, but in the pas-

sing of laws severity should be regarded:

For

the

GENERAL

nature of law requires that offences should be pursued

with rigour: but in trials,

in

which individuals are the

THE

RIGHTS

OF

WAR AND PEACE

245

objects concerned, there may be circumstances to aggra-

vate

or

diminish the offence: which leaves room for the

discretionary exercise of rigour or lenity.

XXXVI. and XXXVII. The inclination to mitigate

penalties, where the urgent motives to enforce them no

longer exist,

is

a point of compassion perfectly distinct

from the abolition of punishment altogether.

Nor has any thing been omitted, that might tend to

clear up this difficult and delicate question. But every

point, we trust, has been examined in its proper place,

either respecting the magnitude of crimes, as measured

by the injury done, the habitual commission of such

offences, or the influence of the motives, sulfiicient to en-

courage or restrain them. Indeed the character of the

DEender affords the most conclusive means for judging

of his capacity to commit the crime

;

and that of the

sufferer often contributes something towards enabling

us

to estimate the due proportion of the penalty. The cir-

cumstances of the time, when- the place, where-or

the facility, with which a crime

is

perpetrated, tend to

aggravate, or lessen its enormity. The length of time

intervening between a criminal design and its execution

gives us some opportunity to examine how far the per-

petrator was actuated by a malicious purpose. But the

true complexion

of

a crime is to be discovered, partly

from the nature of those appetites, to which

it

owes its

birth; and partly, on the other hand, from the nature of

the motives which ought to have restrained them. By

this class of appetites the magnitude of a crime may be

judged of; and the consequences are the motives which

should operate to restrain them.

XXXVIII. It has been shewn before, and it is a truth

founded upon historical fact, that wars are undertaken,

as acts of punishment, and this motive, added to that of

redress for injuries, is the source, from which the duties

of nations, relating to war, take their rise. But it is not

every injury, that can be construed into a just ground

of war. For laws, whose vengeance is meant to protect

the innocent, and to fall upon the guilty, do not regard

every case, as a sufficient warrant for their exertion.

So

that there is much truth in the opinion of Sopater,

who says that there are trivial and common offences,

which

it

is better to pass over unnoticed, than to punish.

XXXIX. The maxim laid down by Cato, in his speech

in

defence of the Rhodians, that

it

is

not

right any one

246

HUGO

GROTIUS

should be punished upon the bare suspicion of his hav-

ing intended to commit aggression or injury, was well

applied in that place; because no positive decree

of

the

people of Rhodes could be alleged against them, nor was

there any other proof beyond the

CONJECTURE

of their

wavering in their policy. But this maxim

is

not

uni-

versally true.

For where intention has proceeded to any outward and

visible signs of insatiable ambition and injustice, it is

deemed a proper object

of

jealousy, and even of punish-

ment. Upon this principle, the Romans, as may be seen

from Livy’s account in the xlii: book and xxx. chapter

of his history, thought themselves justified in declaring

war against Perseus, King of Macedon, unless he gave

satisfactory proof, that he had no hostile intentions

against them, in the naval and military armaments,

which he was preparing. And we are informed by the

same historians, that the Rhodians urged

it

as a rule

established by the laws and customs of all civilized

states

;

that if any one wished the destruction

of

an

enemy, he could not punish him with death, unless ha

had actually done something to deserve it.

But it is not every unjust design, though indicated by

some outward act, which can authorize and direct hos-

tilities. For if the actual commission

of

crimes and ag-

gressions is, in some cases, proper to be overlooked,

much more will it be a mark of deliberate caution to

use the same forbearance, where nothing further than

the pure design of aggression appears. A forbearance

which Cicero justifies upon the possibility that the enemy

may have repented

of

his design, before the execution

of it.

No

conclusive inference can be drawn from the

severity of Mosaic Law against all .intended acts of

impiety and murder.

For,

in comparing human laws

with the divine counsels, whose depths we cannot sound,

we are liable to run into error; and the impulse of anger,

where

it

is attended with no fatal consequence, is a

case in which the infirmity of human nature calls for

pardon. For altho’ the precepts

of

the decalogue are

designed to lay a restraint upon unlawful desires

as

well

as upon unlawful actions, yet in addition to the spiritual

sense, that which is called the carnal, or external com-

mandment applies to those dispositions that are mani-

fested by some open act. This interpretation may

be

deduced from a passage in the gospel of St. Mark, c.

x.

THE RIGHTS

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WAR AND.PEACE

247

19,

where the prohibition to defraud

is

immediately pre-

ceded by the injunction not to steal,

So

that intended

aggressions are not to be punished by force

of

arms,

except in cases of atrocity, where the very design

threatens consequences of the greatest danger. All

punishment therefore must have in view either security

against future aggressions, reparation for the injury done

to national or private honour, or

it

must be used as an

example of awful severity.

XL.

It

is

proper also to observe that kings and those

who are possessed of sovereign power have a right to exact

punishment not only for injuries affecting immediately

themselves or their own subjects, but for gross viola-

tions of the law of nature and of nations, done to other

states and subjects. For the liberty of inflicting punish-

ment for the peace and welfare

of

society, which belonged

to individuals in the early ages of the world, was con-

verted into the judicial authority

of

sovereign states and

princes

;

a right devolving upon them not only as rulers

of others, but as ,subject to the controul of no earthly

power. For that is a right, which can belong to no

subject. It

is

never safe to leave the entire assertion of

a man’s own rights, or the punishment of his wrongs,

to his own judgment; for he cannot be entirely disinter-

ested in his own cause. Partiality will make him fall

short of, or prejudice will make him exceed the bounds

of justice. It was the theme of praise bestowed upon the

heroes

of

antiquity, that in their most arduous undertak-

ings they avenged the wrongs of others rather than their

own. Upon this principle there can be no hesitation in

pronouncing all wars to be just, that are made upon

pirates, general robbers, and enemies of the human race.

SO

far this opinion agrees with that

of

Innocentius and

others,

who

maintain all war to be lawful against those

who have renounced the ties and law of nature. An

opinion directly the reverse is held by Victoria, Vasquez,

Azorius, Molina, and others, who deem an aggression

done to a prince, his government, or his subjects, or civil

jurisdiction over the aggressor, the only justifiable warrant

for inflicting punishment, particularly the punishment of

hostilities. For they suppose punishment to be an effect

purely arising from the authority

of

civil law, whereas,

according to the proofs established in the beginning of

this treatise,

it

was shewn to be a right resulting entirely

from the law of nature.

248

HUGO

GROTIUS

If

the opinion of those, from whom we differ, be

ad-

mitted,

no

enemy will have a right to punish another, by

the prosecution of a just war; a right, which notwith-

standing

is

allowed and confirmed by the practice of all

nations, not only after the defeat of an enemy, but dur-

ing the continuance of a war; and that too, not from any

civil jurisdiction, but from a natural right, which prevailed

long before the foundation of states, and which still

exists in all its force, in places, where the community

consists of families distinct, and united as the subjects

of one sovereign.

XLI., XLII., XLIII. But certain .precautions are neces-

sary

to

prevent

us

from being carried away by an opin-

ion that civil customs, though founded upon just reasons,

and received among many nations, are to be reckoned

as a part of the law of nature. And in the next place,

it is necessary to guard against enumerating as prohibi-

tions of natural law, tbings which are not proved

to

be

so,

as certain kinds of marriages the taking

of

interest

for the use of money, and other positive injunctions of

the divine, or Mosaic law. The third rule is, to make

an accurate distinction between general principles, such

as the duty of living according to the dictates

of

rea-

son, and those of a more particular though not less obvi-

ous

meaning; as the duty

of

forbearing to take what

belongs to another.

To

which many truths may be added

though not quite

so

easy of apprehension: among which

may be named the cruelty of that kind of punishment,

which consists in revenge, delighting in the pain of an-

other. This

is

a method of proof similar to that which

occurs in mathematics, the process of which rises from

self-evident truths to demonstrations, the latter of which,

though not intelligible to all alike, upon due examina-

tion obtain assent.

As then in matters of civil law, ignorance is deemed

an excuse,

so

with respect to the law of nature, wherever

infirmity of understanding forms an invincible obstruction

to the knowledge of

its

rules, such infirmity may be

alleged as a vindication. For as, in cases of unavoidable

ignorance a great degree of the guilt

of

sin is removed;

so

it

is

in some measure softened wherever this

igno-

rance subsists, though it may be owing to former negli-

gence. And for this reason, Aristotle compares barbarians,

in their rude, unformed state, to persons, whose appe-

tites are rendered sickly by disease, Plutarch also

THE

RIGHTS

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249

observes that there are certain infirmities and disorders,

which naturally infect the

soul.

Once for all, by way

of

conclusion we may add that wars undertaken to inflict

punishment may be suspected of injustice, except there

be manifest and enormous aggressions, with other con-

spiring causes, to vindicate nations for having recourse

to arms.

XLIV. The progress of the work has necessarily led to

the consideration

of

offences against God

;

the propriety

or impropriety of punishing which by force of arms is a

fit subject

of

inquiry.

Admitting the affirmative part of the question, we may

observe that as in ecclesiastical affairs Bishops are in-

trusted with a Catholic, or general power;

so

kings, besides

the care of their own immediate states and subjects, may

be regarded as protectors of the human race, The best

argument, on the negative side of the question, against

the justice of such wars, is the sufficiency of the divine

omnipotence to avenge its own wrongs. Yet the same

may be said

of

other offences. For the Deity possesses

sufficient power to punish them, although he leaves them

to the sentence

of

human tribunals. Some will urge and

maintain that other kinds

of

offences are punished only

in cases, where others are uninjured or endangered by the

commission of them. On the other hand, it may be said

that men punish not only offences, which directly hurt

others, but even those, which affect them indirectly, as

suicide and other similar crimes.

Although religion is a concern between the

soul

of

man

and his Maker alone, its influence on human morals is of

no inconsiderable importance.

So

that Plato &had reason

to call

it

the bulwark of authority and law, and the bond

of every thing venerable in social order and discipline.

Every false opinion in divine things, says Plutarch,

is

pernicious, betraying itself in the disorders of the imagi-

nation, wherever it takes root, and springs up into action.

So

that Aristotle reckons the care and support

of

religion

the first of public concerns. This is a truth applying not to

any particular state, but to all governments, and to human

society in every shape.

An

avowal which Xenophon makes

the characteristic

of

a great and wise prince, attributing

to cyms a declaration of his firm persuasion that the

more his subjects feared God, the more obedient he should

find them to his laws, and the more attached to his per-

son. But Once remove the motives

of

religion, says

2

50

HUGO

GROTIUS

Tully,

and

you

destroy faith, the intercourse between man

and man, and justice the most excellent of all virtues.

The opinions of Epicurus afford a sufficient proof of

this: for in banishing the providence of God from his

system, he made justice nothing but an empty name,

springing from human conventions, founded on self-inter-

est, and restraining men from the commission of crimes

by no other principle but that of fear.

But there is a wider sphere, than the internal welfare

of

independent states, on which religion operates,

In

the separate society, which every kingdom, state,

or

country forms within itself,, the place of religion may

occasionally be supplied by the influence and execution

of municipal laws. But in all the transactions of the

great community at large, where civil laws are silent,

and tribunals give way to the decision of the sword, the

law of nature and of nations, founded upon the fear of

God, and obedience to his will,

is

the standard of right

to which Kings and Sovereign states appeal; a viola-

tion of which

is

regarded as a violation of the divine

law.

XLV.

But to take a closer view

of

the subject, we

must observe that true religion, which is the same at all

periods of time, rests upon four evident and universally

acknowledged truths. The first

of

which is the being

and unity of God,- the second, that God is not any of

the things, that can be seen, but of a nature too sublime

to be the object of human conception,

or

of

human sight,

-the third is, that with the eye of his providence he

regards the events

of

this world, and regulates them

with the most equitable and unerring judgments,-the

fourth is, that he

is

the creator of all things, except

himself. And these four truths are unfolded and laid

down in an equal number

of

commandments, the first of

which plainly declares the unity of God-the second

forbids any representation, by painting

or

image, to be

made of that being, who is invisible to mortal eye.

Tacitus bears testimony to the spiritual nature of the

Jewish religion: for he says, that ((the Jews have noth-

ing but

a

mental conception

of

one God, and they look

upon every attempt to represent him under the appear-

ance of human form, as a profanation of his heavenly

nature.”-From the third commandment we deduce his

knowledge ,of all human transactions, even of our very

thoughts; an omiscience upon which the obligation and

THE RIGHTS

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251

sanctity of oaths is founded. For God is a witness even

of the secret designs of the heart,

so

that every solemn

oath

is

an

appeal to his justice and his power,

for

the

vindication of truth, and the punishment

of

falsehood.-

The fourth commandment presents

us

with an account of

the creation of the world, to commemorate which God

appointed the sabbath, commanding it to be observed

with a degree of reverence above every other sacred

institution. For the violation of any other rites, such

as those respecting forbidden meats, was left to the dis-

cretionary punishment of the law: but offences against

the sabbath were capital; because, considering the nature

and design of its origin, such contempt implied

a

dis-

belief, that the world was created by God.

Now

the

creation of the world by God affords a tacit proof of his

goodness, wisdom, eternity and power: and the effect of

this contemplative knowledge is the offering of honour,

love, worship and obedience to God.

So

that Aristotle

says that the man, who denies that God ought to be

honoured, or parents loved, should be taught to renounce

his error, not by reasoning, but by punishment. And,

in another place, he observes that some actions

are proper on certain occasions, but reverence for

the majesty of God is requisite at all times, and in all

places.

The truth of those contemplative opinions may undoubt-

edly be proved from the nature of things; the clearest

of

which proofs

is

the evidence of sense, shewing the

existence of things, which naturally leads

us

to consider

the time, when they had no being.

But as all are not able to understand these arguments

and others of the same kind, it is sufficient to observe

that in all ages and all countries of the world, with very

few exceptions, these opinions have found a general

reception with those who were too plain in their deal-

ings, and ingenuous in their designs, to impose upon

others, and with many, who had too much sagacity to

be deceived themselves. But when amid such variety of

laws, customs, and opinions, there is

so

general an agree-

ment upon one point; that agreement may be adduced

as a proof, that such a belief owes its origin to the primi-

tive ages of the world, from whence it has been derived

to

us:

when we consider too that it has never been

clearly refuted, it is a sufficient reason to establish our

faith.

252

HUGO

GROTIUS

XLVI.

There

is

no excuse therefore for the rejection

of those opinions, even in cases, where there

is

no intui-

tive sagacity to discover new proofs,

or

to comprehend

old

ones: there are

so

many guides both in nature

and reason to lead men to the knowledge of those truths,

and as no solid arguments have ever been produced to

establish a contrary belief. But as human punishments

form the subject of

our

present inquiry,

it

is right to

make

a

distinction between opinions themselves, and the

manner of deviating from them. The belief in a supreme

being, and in the controul of his providence over human

affairs, is one of those universal tenets to be found in

all religions, whether true

or

false. And in reality to

deny the being

of

a God, and to deny the interposal

of

his providence in human affairs, amounts in its moral

consequences to the same thing. And it is for this reason

these two opinions have been inseparably united in all

ages, and among every civilized people. Consequently

we find, that in all well governed states, wholesome laws

have been enacted to restrain those, who disturb those

opinions, which have always been regarded as the chief

support

of

social order; and all contempt, shewn to those

opinions, has always been considered as contempt shewn

to society itself, and which

it

consequently has a right

to punish.

XLVII.

There are other truths not equally self-evi-

dent, such as these, that there are not more Gods than

one; that no visible thing, neither the world, nor the

heavens, nor the

sun,

nor the air

is

God; that the world,

and the matter of which it is formed, have not existed

from all eternity, but were made by

God.

So

that we

see the knowledge of these truths disfigured, and almost

entirely obliterated among many nations

by

the lapse of

time. And this might the more easily happen, as there

were no legal provisions made to preserve the purity

of

these truths, which were not considered

as

essential to

the very existence of all religion. The law indeed given

to that people, who were instructed in the clear knowl-

edge of these truths, by the mouths

of

the prophets, by

miracles seen with their own eyes, or brought to their

ears by the reports of the most undoubted testimony,

that law, though it expresses the greatest abhorrence of

the worship of false gods, does not inflict the punish-

ment

of

death upon all convicted of that crime, but only

in particular instances, where they have seduced others

THE RIGHTS

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253

into idolatry,-or where a state has introduced the wor-

ship of unknown Gods,-or where the true worship of

God, and obedience to his laws have been forsaken for

the worship

of

the stars, which St. Paul calls serving the

creature above the creator, an offence, which was, for

some time, punished among the descendants of Esau.

Those too who offered their children to Moloch, that is,

to Saturn, were punished with death. Yet the Canaan-

ites, and the neighbouring nations, who had long been

sunk into the most depraved superstitions, were not con-

signed by God to immediate punishment, but were left

to fill up the measure of their crimes. And there were

other nations, where, in the language of Scripture, God

winked at the times of this ignorance. Where men have

had no means of arriving at the knowledge of a true

God, as their superstitions and errors are excusable,

so

where, in despite of knowledge, they have deified Dae-

mons, and vices, which they knew to be such, their

superstitions are not to be called errors, but impieties.

And no less impious is the supposed homage, that is

paid to God with the blood of innocent human victims,

and Darius king of the Persians, and Gelo king of Syra-

cuse, are commended for abstaining from such practices.

Plutarch informs

us

of some barbarians, who would have

been punished by the Romans for offering human vic-

tims to the deity, had they not pleaded the antiquity

of

the custom, which was admitted as an excuse, though

they were strictly enjoined not to follow the same custom

in future.

XLVIII. From the kind of evidence on which Chris-

tianity rests, it is plain that no force should be used with

nations to promote its acceptance. It is not merely by

natural arguments it can gain assent; for it has made an

addition of many things to natural religion. Its evidence

rests upon the history of Christ’s resurrection, and upon

the miracles performed by himself and his Apostles.

SO

that it is a matter of fact proved by the most undeniable

evidence, and of great antiquity. Therefore a doctrine

of this kind cannot be thoroughly received upon the first

hearing of it, without the secret assistance of God: an

assistance not given as a reward for the merit

of

works;

so

that wherever it is withheld or less copiously bestowed;

it

is done for reasons, which though just, are generally

unknown to

us,

and therefore not punishable by human

judgments. For it is the custom in the sacred writings

254

HUGO

GROTIUS

to assign the divine pleasure as the cause of things un-

known to

us.

There is another reason

of

no less weight, which is that

Christ being the author

of

a new law, will have no one

brought to embrace

his

doctrine by the fear of human

punishments. Nor is the reason at all weakened by the

objection drawn from the parable of the marriage-supper,

where it is said the messengers are commanded to

compel the guests to come in. For the term,

COMPEL,

here signifies nothing more than an earnest entreaty, a

sense, in which it is used in other parts

of

the New

Testament, implying an earnest request made to any

one.

XLIX. But to obstruct the teachers

of

Christianity by

pains and penalties is undoubtedly contrary to natural

law and reason: for the doctrine of Christ, apart from all

the corruptions added by the inventions

of

men, contains

nothing hurtful, but every thing beneficial to society.

The thing speaks for itself, and even those who were

strangers to the doctrine itself were obliged to acknowl-

edge the truth of this. Pliny says that the Christians

bound themselves by an oath to commit neither theft,

nor robbery, nor to violate their word.

It

was

a

common

saying

((

Caius Seius is a good man, but he is a Chris-

tian.

))

Nor indeed can any danger be apprehended from the

spreading of doctrines, calculated to inspire greater sanc-

tity

of

manners, and the purest principles

of

obedience to

lawful sovereigns. Philo has recorded a beautiful saying

of Augustus, who observed that the assemblies

of

the Jews

were not Bacchanalian revels, or meetings to disturb the

public peace, but schools of virtue.

L. It seems unjust to persecute with punishments those

who receive the law of Christ as true, but entertain

doubts or errors on some external points, taking them

in an ambiguous meaning or different from the ancient

Christians in their explanation of them.

A

point which

is proved by what has been said above, and by the an-

cient example

of

the Jews. For, possessing a law, which

allowed them to inflict temporal punishments, they never

exercised that authority upon the Sadducees, who denied

the doctrine of a resurrection: a doctrine of the greatest

truth, though but faintly delivered in that law, and

under a typical application of words, and circum-

stances.

THE

RIGHTS

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255

But

if

there should be any weighty error, that dis-

cerning judges could easily refute by an appeal

to

sacred

authority, or to the opinions

of

antiquity; here too it

would

be necessary to make allowance

for

ingrafted

opinions, that have grown up to form an inseparable part

of the human mind, and for the zealous attachment

of

every one

to

his

own

tenets

;

an evil which Galen says

is more difficult to be eradicated than any constitutional

disease.

CHAPTER

XXI.

ON

THE

COMMUNICATION

OF

PUNISHMENT.

How accessories are liable to punishment

-

Sovereign Princes or States

answerable for the misconduct of their subjects, when they know it,

and do not endeavour

to

prevent it

-

Sovereigns bound not

to

protect

offending subjects, but to deliver them up or punish them-The

rights of suppliants belong to the unfortunate and not

to

the guilty-

Suppliants may be protected while the inquiry into their case

is still

pending-How

far

states are amenable

to

punishment-

All

the dif-

ferent exceptions stated-Children not answerable for the offences

of parents-The moral government

of

God

in

this respect con-

sidered-Individuals not answerable for offences,

to

which they have

not given consent

-

Heirs, how far answerable for the acts

of

their

ancestors.

I.

THE

next topic of inquiry relates to the communica-

tion of punishment, as inflicted upon accomplices, who, in

that capacity, cannot be said to be punished for the guilt

of

others, but for their own. And from what has been

said above upon the loss sustained from injury, it may be

understood who are the persons, that come under this

description. For the partnership in loss, and the partner-

ship in guilt are regulated by nearly the same principles.

Yet the obligation to repair a

loss

does not always imply

guilt, except where there has been any notorious malice,

in

which case every damage renders the party, who has

occasioned it, liable to make reparation.

So

that persons

ordering the commission of any wicked or hostile act,

giving the requisite consent to

it,

supplying the aggressor

with assistance, or protection, or, in any other shape, par-

taking of the crime, by giving counsel, commendation, or

assent to his act,

or

when they have power to forbid the

commission

of

such an act, by forbearing to exercise their

authority, or by refusing to afford the succour, which they

are bound by the law of nature, or by treaty to give to

the injured party, by not using with the offender that

power of dissuasion, which they have a right to

do,

or

lastly by concealing what they ought to make known,

in

(356)

THE RIGHTS

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257

all these cases, such persons are punishable as accom-

plices,

if

they are convicted of that degree

of

malice,

which constitutes a crime, and merits punishment: points

which have before been discussed.

11.

The case will be made clearer by examples.

A

civil community is no more bound than any other society

by an act of individual members, except that act be done

by

its

express consent and authority, or it has neglected

to disavow such a proceeding. Hence it is formally stip-

ulated in almost all treaties that no acts or aggressions

are to be ascribed to a state, except those, which are

done in the name of the sovereign, and by persons act-

ing expressly under the authority of his commission.

So

a father is not answerable for the misconduct of his

.children, a master for that of his servants, nor a ruler

for the acts of those under him, unless there appears in

any

of

these some connivance, or encouragement in pro-

moting that misconduct, or those acts.

In the case

of

a sovereign's responsibility for the acts

of his subjects, there are two things to be considered,

which require minute inquiry, and mature deliberation,

and those are the forbearance, and the encouragement

or protection, which he has shewn to their transgres-

sions.

As

to forbearance, it is an acknowledged point, that

when he knows of a delinquency, which he neither for-

bids nor punishes, when he is both able and bound to do

so,

he becomes an accessory to the guilt thereof. Cicero,

in his speech against Piso, says, ((it makes no great dif-

ference especially in a consul, whether he harasses the

government by moving ruinous laws, and making mis-

chievous speeches, or suffers others to do the same. If

a slave has committed a murder with the knowledge of

his master, the master becomes answerable for the entire

deed, as it was done with his concurrence.

)'

But, as we have said before, besides the knowledge of

a deed, to constitute a participation in the guilt, the

person

so

knowing it, must possess the power to prevent

it.

And this is what is meant by the legal phrase, that the

knowledge of a crime, when it is ordered to be punished,

is

taken in the sense of forbearance

or

connivance, and

it

is

supposed that the person, who ought to have pre-

vented

it,

did not do

so.

In this place knowledge implies

a concurrence of will, and connivance a concurrence of

design.

A

master therefore is not bound by the act

of

17

258

HUGO

GROTIUS

a slave, who has claimed his freedom, and done any thing

in despite of his master, because the knowledge of a

crime without ability to prevent it, by disclosure or some

other means, cannot be construed into an act

of

guilt.

so

parents are bound by the acts of children; but only in

cases where they have the children under their authority.

On the other hand, altho’ by having them in their

power, they might have prevented their misconduct,

they will not be answerable for

it,

unless they had a

knowledge of

it

also. For there ought to be a concur-

rence of knowledge, and forbearance or encouragement

to involve any one in the guilt of another’s actions

;

cir-

cumstances all of which by a parity of reasoning may be

applied to the connection between sovereigns and sub-

jects: a connection founded on principles both of natural

and civil law.

111.

The matter that necessarily comes next under con-

sideration is the case of those, who screen delinquents

from punishment.

It

was before observed that, accord-

ing to the law

of

nature,

no

one could inflict punishment,

but a person entirely free from the guilt of the crime

which he was going to punish. But since established

governments were formed,

it

has been

a

settled rule, to

leave the offences

of

individuals, which affect their

own community, to those states themselves, or to their

rulers, to punish or pardon them at their discretion. But

they have not the same plenary authority, or discretion,

respecting offences, which affect society at large, and

which other independent states or their rulers have a right

to punish, in the same manner, as in every country popular

actions are allowed for certain misdemeanors. Much less

is

any state at liberty to pass over in any

of

its subjects

crimes affecting other independent states or sovereigns.

On which account any sovereign state or prince has

a

right

to require another power to punish any of its subjects

offending in the above named respect: a right essential

to the dignity and security of all governments.

IV. But as

it

is

not usual for one state to allow the

armed force of another to enter her territories under the

pretext of inflicting punishment upon an offender,

it

is

necessary that the power, in whose kingdom an offender

resides, should upon the complaint of the aggrieved party,

either punish him itself,

or

deliver him up to the discretion

of

that party. Innumerable instances of such demands

to

deliver

up

offenders occur both in sacred and profane

THE

RIGHTS

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259

history. Thus the other Israelites required the Benjamites

to deliver up offenders, Jud. xx.-And the Philistines de-

manded

of

the Hebrews the surrender of Samson, as a

criminal, Jud. xv.-In the same manner the Gauls made

a demand that the Fabii should be surrendered for having

fought against them. Sylla too, as SaIlust informs

us,

urged Bocchus to deliver up Jugurtha, and by

so

doing to

relieve the Romans from the bitter necessity of implicat-

ing

HIM

for his erroneous conduct in the Same guilt with

that most desperate villain. Yet all these instances are

to be understood not as strictly binding a people or Sov-

ereign Prince to the actual surrender of offenders, but

allowing them the alternative of either punishing or de-

livering them up.

For

it

was upon this ground, as we are

informed, that the Eleans made war upon the Lacedae-

monians, because the latter neglected to punish their sub-

jects, who had committed aggressions upon that people

;

that

is,

they had neither punished nor delivered them up:

for the obligation may be taken either way, that being

left to the choice

of

the aggrieved person, or nation, in

order to make the satisfaction the more complete.

The surrender here meant is nothing more than deliv-

ering up a citizen or subject to the power of another

state to decide upon his punishment. But this permis-

sion neither gives nor takes away any right, it only re-

moves an impediment to the prosecution of a right.

Wherefore if that other people make no use of the per-

mitted right, the offender,

who

has been delivered

up,

is

in such a situation, that he either

MAY

or may

NOT

be

punished: either of which may happen in the case of

many offences. But the right of a state, as to the en-

joyment of

its

own laws, and many other advantages,

is

not lost by any particular act without a formal decree

and judgment, unless in any way

it

has been previously

enacted, that certain acts, or certain omissions, shall

amount to

a

forfeiture of some particular rights and

privileges. In the same manner, goods,

if

surrendered,

but not accepted, will remain the property of the former

owner. But

if

the surrender

of

a citizen has been ac-

cepted, and, by some accident, the person

so

surrendered

shall bfterwards return home, he will no longer be

a

citizen, except by some new act of grace. What has

been said of punishing or giving up aggressors, applies

not only to those, who always have been subjects of the

sgvereign,

in

whose dominions they are now found, but

260

HUGO

GROTlUS

to those also, who, after the commission

of

a crime, have

fled to some place for refuge.

V.

Nor do the

so

much talked of rights

of

suppliants,

and the inviolable nature of asylums at all weaken the

argument that has been advanced. For the advantages

of such protection are designed only for those, who are

the victims of unmerited persecution, not for those who

have committed crimes injurious to mankind, and de-

structive to society. Gylippus, the Lacedaemonian, as

may be seen in the xiii. book of Diodorus Siculus, speak-

ing of the rights of suppliants, says, that they were

originally introduced, as measures of compassion to the

unfortunate, and not a screen for malicious and wanton

offenders, who have nothing but punishment to expect.

And a little after he says, when such men, prompted by

malice, or rapacity have plunged into evils, they have

no right to talk of misfortune or

to

wear the name of

suppliants. For that is a privilege granted by the laws

of nature to the innocent, who are beaten down by the

hard and oppressive strokes of ill fortune. But the refuge

of compassion is withheld, where every line of a life has

been marked with cruelty and injustice. Thus according

to that law, which partakes of the wisdom

of

its divine

author, asylums were open to those who had killed any

one by a weapon escaping from their hand: slaves too

were allowed places

of

refuge, but deliberate murderers,

or those, who had disturbed the peaceful order of the

state, found no protection even from the altar of God.

Philo, in explaining this law says, that even the temple

affords no refuge to the impious,

The more ancient of the Greeks acted upon the same

principle. It

is

said that the Chalcidians refused to deliver

UP

Nauplius to the Grecians, and the reason alleged was

his having cleared himself of the charges made against

him. There was among the Athenians an altar dedicated

to Mercy;

it

is mentioned by Cicero, Pausanias, Servius,

and also

by

Theophilus, and it is described at full length

by

Statius in the xii. book of his Thebais. The poet ex-

plains to what description of men

it

afforded shelter:

it

was, he says, to those who were driven from their homes

by the calamity of war, or stripped of their kingdoms by

usurpers. Tacitus in the third book of his Annals, and

60th chapter, reprobates the custom, prevailing in his time

among the cities of Greece,

of

making it an act of religion

to protect offenders from the punishgent

due

to

their

THE

RIGHTS

OF

‘WAR

AND

PEACE

26

I

crimes. Such offenders therefore ought either to be pun-

ished, or delivered up, or, at least, ordered to withdraw.

Perseus the Macedonian king, clearing himself to Martius

from the charge of screening those, who had attempted

the life of Eumenes

;

said, ((as soon as

I

was apprised by

you of their being in Macedonia,

I

ordered immediate

search to be made for them, peremptorily commanding

their perpetual banishment from my kingdom.))

The right of demanding the surrender or punishment

of

criminals that have fled into other kingdoms, has, in

most parts of Europe, during the present, and the imme-

diately preceding centuries, been generally exercised in

cases, where the crimes were such as affected the safety

of the state,

or

were attended with notorious atroc-

ity.

It

has been usual to pass over, with mutual conniv-

ance, crimes of an inferior kind, except where it has been

agreed to the contrary by express treaty. Nor can

it

be

concealed that where robbers and pirates have gained a

truly formidable power,

it

has often been deemed an act

of humane policy both in Sovereign Princes, and States

to exercise forbearance towards them, rather than to drive

them to greater acts of desperation by treating them with

all the rigour, which they deserve.

VI.

If

the act, of which refugees and suppliants are

accused,

is

not prohibited by the law of nature or of

nations, the matter must be decided by the civil law of

the country, from which they come. This was

a

received

opinion in ancient times, as we find from the language

of Aeschylus, in whose Tragedy of the Suppliants, the

King of Argos, addressing a number

of

the daughters

of

Danaus,

on

their coming from Egypt, says,

(‘

If

the sons

of Egypt exercise controul over you, maintaining that

they are authorised to do

so

by the law of the state, as

being the nearest allied by blood, who can resist them?

It

is

for you to prove that, according to the laws of your

country, they have no authority over you.”

VI1 and VIII.

It

has often been a celebrated topic of

discussion, whether a whole community can be punished

for misconduct. And this is the proper place for that

inquiry,

It

was shewn in a former part of this treatise, that a

body politic though

it

may seem to vary by a succession

of new members, continues the same, as long as

it

re-

tains

its

form. In which case

it

seems liable to punish-

ment no less than individuals. On the other hand bodies

262

HUGO

GROTIUS

politic seem to possess many privileges peculiar to them-

selves, such as having

a

common treasury, a common

seal, laws, and other similar advantages. But there are

some distinctions, which they particularly derive from

the

INDIVIDUALS

of which they are composed. Thus we

say that Universities are learned, or Garrisons brave, ac.

cording to the number of learned or gallant men, which

they respectively contain. Merit is a distinction of this

kind, as being a

gift

of nature to individuals, or an in-

dividual acquirement, which no public body,

OF

ITSELF,

can

have.

So

that upon the death or departure

of

those meri-

torious individuals, the degree

of

merit, which any public

society derived from their presence, must become ex-

tinct. In the same manner, the debt of punishment

which is considered as arising from some act of demerit,

must cease with the debt

of

the individual delinquents.

Arrian is justly commended for censuring the vengeance

retorted upon the Persians by Alexander, at a time, when

those, who had committed the original aggressions on the

Greeks, had long been laid in their graves. He passes a

like sentence upon the burning of Persepolis, as a retaliation

for what the Persians had done at Athens. Such acts of

retaliation, after

a

lapse of years, have been vindicated by

some writers, as an imitation of the slow, but unerring

progress

of

divine justice. But we must remember that

the ways of God are not as our ways, nor is the exercise

of his justice to be measured by

our

counsels. For

if

descendents can claim no merit for the actions of their

FOREFATHERS,

neither is it right they should be punished

for

THEIR

transgressions. The consequences of merit

indeed may be transmitted without injury, and therefore

c

without injustice; but it is not

so

with punishments.

IX.

Having thus shewn that a communication of pun-

ishment is necessarily connected with

a

participation

in

guilt,

it

remains to consider whether punishment can be

extended to those, who are

no

way concerned in the

crime.

In

order to understand this clearly, and to pre-

vent the mistakes that may arise from a similarity of

expression, where there

is

no similarity of facts, it will

be necessary to make use

of

some precautions.

X.

In

the first place there is a difference between

a

loss

DIRECTLY

occasioned by any act, and one resulting

but

INDIRECTLY

from it. Now it may be called a direct

injury to deprive any one

of

what peculiarly belongs to

him

as

his right. An indirect injury is that which pre-

THE RIGHTS

OF

WAR AND

PEACE

263

vents any one from possessing what he otherwise would

have done, by destroying the condition

or

means, which

gave him such a right.

As

an example, Ulpian says,

((if

any one has opened a well in his own ground, by

which the subterraneous streams

of

water, that would

have passed to the lands

of

another, are cut off, here

no

fault is imputable to the person who has only exercised

his own right.” And in another place, he

says,

it

makes

a great difference, whether any one directly does an

injury,

or

is

only indirectly and unintentionally instru-

mental in preventing another from reaping advantages,

which he would otherwise have enjoyed. And

it

is

absurd, says Paulus, another legal authority, for men to

be called rich before they possess the means

of

being

so.

Thus when the property of parents is forfeited, it

is

felt as an inconvenience by their children

;

though

it

can not be considered as a direct punishment inflicted

upon them, because that property would never have

been theirs, unless the parents had retained it to their

last breath. On which Alphenus has made a just obser-

vation, in saying, that, by the punishment of the father,

children lose that which would have come to them from

him, but things, which they

do

not receive from him,

such as the

gifts

of nature, or those derived from any

other quarter, remain untouched. Cicero relates that in

this manner the children of Themistocles were reduced

to want, nor does he think it unjust that the children of

Lepidus should share the same fate. And he says that

it

is

an ancient custom, and the received usage of all

states, the hardship of which nevertheless was greatly

softened by the

laws

of Rome

at

a

later period. Thus

when a whole people is implicated in the misconduct of

the majority, which holds the representative character of

the state, and consequently loses its civil liberties, its

fortifications, and other privileges, the loss affects innocent

individuals, but only in those things, which they could

not have enjoyed, except

as

belonging to that com-

munity.

XI.

Besides, we must observe, that the offence

of

one

man may sometimes occasion inconvenience

or

loss to

another, and yet that offence may not be considered as

the immediate cause of the action, which .is grounded

on

the exercise of a right. This may be explained by an

example.

Thus

if

any one has engaged for another’s

debt, he brings himself into the dilemma named in the

264

HUGO

GROTIUS

ancient proverb, that being bound for any one is the

next stage to ruin; but it

is

a

MAN’S

OWN

PROMISE,

and

NOT

ANOTHER’S

HAVING

INCURRED

A

DEBT,

that

is

the real

cause of his obligation. For as a person, who has given

security for

a

purchaser,

is

not, properly speaking, bound

by the

PURCHASE,

but by his own

PROMISE:

so

if

any one

has engaged to be responsible for a delinquent,

it

is his

own

ENGAGEMENT,

and not the

ACT

OF

THAT

DELINQUENT,

which creates his obligation. And hence the incon-

venience of that kind which any one incurs, must be

measured not by the delinquency of another, but by his

own power to enter into any such voluntary engagement.

In consequence of which no one can give surety to suffer

death for another; because no one has such power over

his

OGT

life, as to take

it

away himself, or to be bound

to forfeit it for another. Though the ancient Greeks

and Romans thought otherwise, and therefore they

maintained that a surety might be put to death for any

one, as may be seen in the well known story of Damon

and Pythias, and hostages were frequently punished in

this manner.

What has been said of life may be applied to the

limbs also, which no man has a right to part with, ex-

cept for the preservation of the whole body. But if any

one has engaged to suffer banishment, to submit to a

pecuniary fine,

or

any other means of satisfying justice,

any thing he suffers on this account will not, strictly

speaking, be considered as a

PERSONAL

punishment, but

as the performance of an agreement.

Something like this occurs in the right, which any one

possesses dependent on another’s will, both with respect

to the right of individuals to private property, and to the

more extensive right to demesnes possessed by a state.

For

if

any one is deprived of such a thing owing to

another’s fault, here the executive power depriving that

person,

is

not inflicting a punishment on

HIM,

but only

exercising a prior right.

XII. and XIII. Having laid down these distinctions, we

may observe that

it

is

impossible that an innocent person

should suffer for another’s crime. This does not proceed

from the reasons given by Paulus, who maintains that

punishment is designed

for

the reformation of the offender.

For

it

seems possible that an example may be made, ex-

tending beyond the person of the criminal himself,

when

it

affects, in

its

consequences, those, who are nearly

THE

RIGHTS

OF

WAR

AND

PEACE

265

related to him.

So

that

it

is

not for the sake of example

only that punishment

is

inflicted, but because the obli-

gation thereto arises from the demerit of the offending

party. Now every demerit must be of a personal nature,

as it proceeds from a man’s own will, over which he is

supposed to exercise a perfect controul.

XIV.

In the law given to the Hebrews, God threatens

to avenge the impiety of fathers upon their children. But

he has sovereign dominion over our lives and substance,

as being his gift, which he may take away from any one,

whenever he pleases, without assigning his reasons.

Therefore

if

he thinks proper to take away by a premature

or violent death the children of Achan, Saul, Jeroboam

or Ahab, he

is

exercising over them the right of sover-

eignty, as well as that of punishment; imposing by that

awful example the more severe penalty upon the parents.

For

if

they survive their children, which was what the

divine law had most in view, and therefore did not extend

these threats beyond the time of great grand-children, a

period to which the age

of

man might reach, it

is

cer-

tain that parents would be severely punished by such a

sight, the most afflicting of any they could witness. Or

if

they should not survive such an event, to die under

such an apprehension would be a great calamity.

But it

is

proper to remark that examples like those are

never employed by God, except against crimes affecting

his divine Majesty, as false worship, perjury or sacrilege.

Indeed those threats of divine vengeance are not always

enforced; especially where any extraordinary virtue shines

in the characters and conduct of the children: as may be

seen in the xviii. chapter of the prophesy of Ezekiel.

Plutarch has discussed this topic with great eloquence in

his book on the remote vengeance of God.

As

the Gospel

so

clearly unfolds the future punishments

of the wicked, all the threats contained in that new

covenant terminate in the persons of the offenders them-

selves. But the ways of providence in these respects are

not the rule which men can follow. For God, even

without any reference to crime, is the sovereign lord and

disposer of human life,

a

commission which man

is

only

allowed to execute against the perpetrators of Certain

crimes. merefore as that same divine law forbids

parents to be put

to

death for the offences of children,

so

it

exempts children from the same punishment for the

actions of their fathers:

a

lenity which is greatly com-

266

HUGO

GROTIUS

mended by Josephus and Philo. The same commendation

is

bestowed by Isocrates upon the laws of Egypt; and

by Dionysius of Halicarnassus upon those

of

Rome.

xv.

But if it is unjust in human laws to punish the

misconduct of parents in the persons

of

their children,

how much more severe was the law of the Persians and

Macedonians extending ;he penalties for crimes against

the state to every branch of the offender’s relatives,

in

the most remote degree, a law surpassing all others in

rigour

7

XVI. XVII. and XVIII. What has been said respecting

the punishment of children for the offences of their

fathers or forefathers, may be applied to the relation

subsisting between sovereigns and subjects.

For

it

is a

relation springing from the contract of society, which

makes the sovereign the essential head, life and

soul

of

that body, in which his people form the members. As

the civil community therefore with its sovereign or head

forms but one body, there can be no separation of inter-

ests, but what affects one part must be prejudicial

or

serviceable to the whole.

XIX. Why should an heir, it has been sometimes asked,

be bound by other debts of his ancester, and not feel

the effects of his punishment for misconduct? to which

answer may be given, that the heir represents the person

of the deceased not in

his

merits

or

demerits, which are

purely personal, but in his property; an artificial mode

of preserving unbroken the chain of succession and

descent.

XX. And hence it follows, that if in addition to the

demerit of an offence, any new grounds of obligation

should arise connected with the punishment, they must

be discharged not properly as a punishment, but as a

debt, Thus the heir will be liable to pay the costs

awarded by

a

judgment after a contested suit,, which is

considered in the light of a contract.

CHAPTER XXII.

ON

THE

UNJUST

CAUSES

OF

WAR,

Differences between real and colourable motives- War atrocious

with-

out either

of

these motives-Wars

of

plunder, under the

most

plausible pretexts, not justifiable

-

Causes apparently, but

not

really

just-Unnecessary advantage

-

Desire

of

a

better soil -Discovery

of

things belonging to others-Incapacity

of

the

original

omers-

War

not

always justifiable under the pretext

of

asserting liberty-

Or

of

imposing

a

beneficial government upon

a

people against

their will- Emperor's pretensions to universal empire refuted

-

Pre-

tensions

of

the Church- Imperfect obligations -Difference between

wars originally unjust and those afterwards becoming

so.

I.

IN

a former part of this work, where the justice of

war was discussed, it was observed that some wars were

founded upon real motives and others only upon colour-

able pretexts. This distinction was first noticed by

Po-

lybius, who calls the pretexts,

xpo$aaw,

and the real

causes,

drrras.

Thus Alexander made war upon Darius,

under the pretence of avenging the former wrongs done

by the Persians to the Greeks. But the real motive

of

that bold and enterprising hero, was the easy acquisition

of

wealth and dominion, which the expeditions of Xeno-

phon and Agesilaus had opened to his view.

In the same manner, a dispute about Saguntum fur-

nished the Carthaginians with

COLOURABLE

MOTIVES

for

the second Punic war, but, in

REALITY,

they could not

brook the indignity

of

having consented to

a

treaty,

which the Romans had extorted from them at an unfa-

vourable moment; and more especially as their spirits

were revived by their recent successes in Spain. The

real causes assigned by Thucydides for the Peloponne-

sian war, were the jealousies entertained by the Lacedae-

monians

of

the then growing power

of

the Athenians,

though the quarrels of the Corcyreans, Potidaens, and

other secondary states were made the ostensible reasons.

11.

There are some who have neither ostensible rea-

sons, nor just causes to plead for their hostilities,

in

which,

as

Tacitus says, they engage from the pure love

of

en-

terprise and danger.

A

disposition to which Aristotle

(267)

268

HUGO

GROTIUS

gives the name of ferocity. And in the last book

of

his

Nicomachian Ethics, he calls it a bloody cruelty to con-

vert friends into enemies, whom you may slaughter.

111.

Though most powers, when engaging in war, are

desirous to colour over their real motives with justifiable

pretexts, yet some, totally disregarding such methods of

vindication, seem able to give no better reason for their

conduct, than what is told by the Roman Lawyers of a

robber, who being asked, what right he had to a thing,

which he had seized, replied,

it

was his own, because he

had taken it into his possession

?

Aristotle in the third

book of his Rhetoric, speaking of the promoters of war,

asks, if it is not unjust for a neighbouring people to be

enslaved, and if those promoters have no regard to the

rights

of

unoffending nations

?

Cicero, in the first book

of his Offices, speaks in the same strain, and calls ((the

courage, which is conspicuous in danger and enterprise,

if devoid of justice, absolutely undeserving of the name

of valour.

It

should rather be considered as a brutal

fierceness outraging every principle of humanity.

))

IV. Others make use of pretexts, which though plausi-

ble at first sight, will not bear the examination and test

of moral rectitude, and, when stripped of their disguise,

such pretexts will be found fraught with injustice. In

such hostilities, says Livy,

it

is not a trial of right, but

some object of secret and unruly ambition, which acts as

the chief spring. Most powers, it is said by Plutarch,

employ the relative situations of peace and war, as

a

current specie, for the purchase of whatever they deem

expedient.

By having before examined and established the prin-

ciples

of

just and necessary war, we may form a better

idea

of

what goes to constitute the injustice of the same.

As the nature of things is best seen by contrast, and we

judge of what

is

crooked by comparing it with what is

straight. But for the sake of perspicuity,

it

will be

necessary to treat upon the leading points.

It

was

shewn

above

that apprehensions from a neigh.

bouring power are not a sufficient ground for war. For

to

authorize hostilities as a defensive measure, they must

arise from the necessity, which just apprehensions create;

apprehensions not only of the power, but of the inten-

tions of a formidable state, and such apprehensions as

amount to a moral certainty. For which reason the opinion

of those is by no means to be approved of, who lay down as a

THE

RIGHTS

OF

WAR

AND

PEACE

269

just ground of war, the construction of fortifications in a

neighbouring country, with whom there

is

no

existing treaty

to prohibit such constructions, or the securing of a strong

hold, which may at some future period prove a means

of

annoyance. For as a guard against such apprehensions,

every power may construct, in its own territory, strong

works, and other lhilitary securities

of

the same kind,

without having recourse to actual war. One cannot

but admire the character, which Tacitus has drawn of

the Chauci, a noble and high-spirited people of Germany,

((who,

he

says,

were desirous of maintaining their great-

ness by justice, rather than by acts

of

ungovernable

rapacity and ambition

-

provoking no wars, invading

no

countries, spoiling

no

neighbours to aggrandize themselves,

"yet, when necessity prompted, able to raise men with

arms in their hands at a moment's warning-a great

population with a numerous breed of horses to form

a

well mounted cavalry -and, with all these advantages,

upholding their reputation in the midst of peace."

VI.* Nor can the advantage to be gained by a war be

ever pleaded as a motive of equal weight and justice

with necessity.

VII. and VIII. Neither can the desire of emigrating to a

more favourable soil

and

climate justify an attack upon a

neighbouring power. This, as we are informed by Tacitus,

was a frequent cause of war among the ancient Germans.

IX.

There is

no

less injustice in setting up claims,

ur?-

der the pretence

of

newly discovered titles, to what

belongs to another.

Neither can the wickedness, and impiety, nor any other

incapacity

of

the original owner justify such a claim. For

the title and right by discovery can apply only to countries

and places, that have

no

owner.

X.

Neither moral nor religious virtue, nor any intel-

lectual excellence is requisite

to

form

a

good

title

to

property, Only where a race of men is

so

destitute

of

reason as to be incapable of exercising any act of owner-

ship, they can hold no property, nor will the law

of

charity require that they should have more than the nec-

esssries of life. For the rules of the law of nations can

only

be applied to those, who are capable of political or

commercial intercourse

:

but not to a people entirely desti-

tute

of

reason, though it

is

a matter of just doubt, whether

any such

is

to be found.

*Section

V

of the

original

is

omitted

in

the

tran&tion."I!w!jLATo&

270

HUGO GROTIUS

It was an absurdity therefore in the Greeks to suppose,

that difference of manners,

or

inferiority of intellect made

those, whom they were pleased to call barbarians, their

natural enemies. But

as

to atrocious crimes striking at

the very root and existence of society, the forfeiture

of

property ensuing from thence is a question of a different

nature, belonging to punishments, under the head

of

which

it

was discussed.

XI.

But neither the independence of individuals, nor

that

of

states, is a motive that can at all times justify

recourse to arms, as

if

all persons

INDISCRIMINATELY

had

a natural right to do

SO.

For

where liberty is said to

be a natural right belonging to all men and states, by

that expression is understood a right of nature, anteced-

ent to every human obligation

or

contract. But in that

case, liberty is spoken

of

in a negative sense, and not

by way

of

contrast to independence, the meaning of

which is, that no one is by the law

of

nature doomed

to servitude, though he is not forbidden by that law to

enter into such a condition, For in this sense no one

can be called free, if nature leaves him not the privilege

of chusing his own condition: as Albutius pertinently

remarks, “the terms, freedom and servitude are not

founded in the principles of nature, but are names sub-

sequently applied to ‘men according to the dispositions of

fortune.’) And Aristotle defines the relations of master

and servant to be the result

of

political and

not

of

natural appointment. Whenever therefore the condition

of

servitude, either personal or political, subsists, from

lawful causes, men should be contented with that state,

according to the injunction of the Apostle, ((Art thou

called, being a servant, let not that be an anxious con-

cern

?

))

XII. And there

is

equal injustice in the desire of

re-

ducing, by force

of

arms, any people to

a

state of servi-

tude, under the pretext

of

its being the condition for

which they are best qualified by nature.

It

does not

follow that, because any one is fitted for

a

particular

condition, another has a right to impose it upon him,

For every reasonable creature ought to be left free in

the choice

of

what may be deemed useful

or

prejudicial

to him, provided another has no just right to a controul

over him.

The case of children has no connection with the ques-

tion, as they are necessarily under the discipline of others.

THE RIGHTS

OF

WAR

AND

PEACE

27

I

XIII.

It

would scarce have been necessary to refute the

foolish opinion of some, who have ascribed to the Roman

Emperors dominion over the most remote and

unknown

nations,

if

Bartolus, deemed a lawyer of the first emi-

nence, had not pronounced

it

heresy to deny those pre-

tensions. This opinion has been built upon the Roman

Emperor’s some times having styled himself Sovereign

of

the whole world; a term which it was not unusual for

many people to apply to their own country. Thus in the

scriptures we find Judea frequently called the whole in-

habited earth; therefore when the Jews, in their proverbial

expression, called Jerusalem the centre of the world,

nothing more is to be implied than that

it

was situated

in the middle of Judea.

As to the argument in favor

ef

universal dominion from

its being

so

beneficial to mankind,

it

may be observed

that all its advantages are counterbalanced by still greater

disadvantages. For as a ship may be built too large to

be conveniently managed,

so

an empire may be too ex-

tensive in population and territory to be directed and

governed by one head. But granting the expediency

of

universal empire, that expediency can not give such a

right, as can be acquired only by treaty or conquest.

There were many places formerly belonging to the Roman

Empire, over which the Emperor has at present no con-

troul. For war, treaty, or cession have made many

changes, by which the rights

of

territory have passed to

other states or sovereign princes, and the standards

of

different communities, whether kingdoms or common-

wealths, now wave in places, which the Roman Eagle

once overshadowed with his wings, These are losses and

changes, that have been experienced by other powers

no

less than that, which was once mistress of the world.

XIV.

But there have been some, who have asserted the

rights of the church over unknown parts of the world,

though the Apostle Paul himself has expressly said that

Christians were not

to

judge those who were without the

pale of their own community. And though the right

of

judging, which belonged to the Apostles, might in some

cases apply to worldly concerns, yet in its general nature

it

was of

a

celestial rather than an earthly kind- a

judgment not exercised by fire and sword, but by the

word

of

God, proposed to all men and adapted to their

peculiar circumstances- a judgment exercised by dis-

playing

or

withholding the seals

of

divine grace,

as

it

HUGO

GROTIUS

might be most expedient-lastly,

it

was a judgment ex-

ercised

in

supernatural punishments

;

in punishments

proceeding from God, like the punishments of Ananias,

Elymas, Hymenaeus, and others.

Christ himself, the spring, from whence all the power

of the church was derived, and whose life

is

the model

for the church to follow, said, his kingdom was not of

this world, that is, was not of the same nature, with

other kingdoms, otherwise, like the rest of sovereigns, he

would have maintained his authority by the power of the

sword. For

if

he had pleased to call up the aid of Legions;

he would have called up hosts of Angels and not of

men. And every exercise of his right was performed by

the influence of divine, and not of human power; even

when he drove the sellers out of the temple. For the

ROD

was the

EMBLEM

and not the

INSTRUMENT

of divine

wrath,

as

UNCTION

was once a

SIGN

of healing, and not

the

HEALING

POWER

ITSELF.

St.

Augustin on the xviii

Chapter of

St.

John, and

36

ver. invites Sovereign Princes

into this kingdom, in these terns,

((

Hear,

8

Jews, and

Gentiles, hear,

0

earthly Sovereigns,

I

will not obstruct

your authority, for my kingdom

is

not of this world.

Be not alarmed, like Herod, who trembled, when he

heard that Christ was born, and slew

so

many innocent

children, hoping to include the Saviour in that calamity.

His fear shewed itself in cruel wrath. But my kingdom,

says Christ,

is

not of this world, Therefore enter this

kingdom without fear. Come with faith, and provoke

not the king to anger by your delay.

))

XV.

There

is

a caution too necessary to be given,

against drawing

too

close a parallel between ancient and

modem times. For

it

is

but seldom that any one can

adduce a case exactly conformable

to

his own circum-

stances.

To

draw such pretexts from the interpretation

of prophecy

is

the highest presumption. For no prophecy

that

is

yet to be fulfilled can be unfolded without the

aid of

a

prophetic spirit. The times even of events, that

are certain, may escape

our

xiotice. Nor

is

it every pre-

diction, unless

it

.be accompanied with an express com-

mand from

God,

that can justify recourse to arms:

sometimes indeed

God

brings his predicted designs to

their issue by the means

of

wicked instruments.

XVI.

As the imperfect obligations of charity, and other

vjrtues of the same kind are not cognizable in a court of

justice,

so

neither can the performance of them be com-

THE

RIGHTS

OF

WAR

AND

PEACE

273

pelled by force of arms,

For

it

is

not the moral nature

of a duty that can enforce its fulfillment, but there must

be some legal right in one of the parties

to

exact the

obligation.

For

the moral obligation receives an addi-

tional weight from such a right. This obligation there-

fore must be united to the former to give a war the

character

of

a just war. Thus a person who has con-

ferred a favour, has not, strictly speaking, a

RIGHT

to

demand a return,

for

that would be converting an act of

kindness into a contract.

XVII.

It

is

necessary to observe that

a

war may be

just in its origin, and yet the intentions of its authors

may become unjust in the course

of

its prosecution.

For

some other motive, not unlawful

IN

ITSELF,

may actuate

them more powerfully than the original right, for the

attainment

of

which the war was begun.

It

is

laudable,

for

instance, to maintain national honour; it is laudable to

pursue a public

or

a private interest, and yet those ob-

jects may not form the justifiable grounds of the war in

question.

A

war may gradually change its nature and

its

object

from the prosecution of a right to the desire of second-

ing

or

supporting the aggrandizement of some other

power. But such motives, though blamable, when even

connected with a just war, do not render the war

ITSELF

unjust, nor invalidate its conquests.

I8

\

CHAPTER

XXIII.

ON

DOUBTFUL

CAUSES.

Origin

of moral doubts

-

The dictates

of

conscience, though erroneous,

not

to

be

violated- Opposite opinions supported by argument,

or

by

authority-In doubtful and important matters the safer side

of

the

question

to

be followed-In such cases it is right

to

abstain

from

war

-

Disputes settled

by

conference

or

arbitration

-

Christian

duties-Whether single combat is allowable in order to avoid war

-In

cases

of equal doubt the claims

of

the present possessor

to

be

preferred-Where neither party is in possession, claims

to

be

divided-Whether a war can be just

on

both sides, explained by

a distinction.

I.

THERE

is

much truth m Anstotle’s observation that

moral reasonings can never amount to the certainty of

mathematical demonstration. Because in mathematical

reasoning, all the figures are considered in the abstract,

purely by themselves, and without relation to the circum-

stances of time or place,

so

that there

is

nothing to warp

the judgment from the object immediately under con-

sideration. Besides the figures in general form a direct

contrast to each other. Thus, for instance, there

is

no

intermediate line between a straight line and a curve.

But

it

is not

so

in morals, where the least circumstances

vary the subject, and admit

a

latitude

of

interpretation,

settling the points of truth and justice between two

extremes.

So

that between what is right and what

is

unlawful there

is

a middle space, where

it

is easy to in-

cline to the one side, or to the other. This occasions an

ambiguity somewhat like the difficulty of deciding the

precise moment, where the twilight begins, and where

it

ends. From hence Aristotle concludes that

it

is some-

times difficult to determine, between two extremes, what

line of conduct ought to be chosen or rejected.

11.

But it must be laid down as a necessary principle, that

although an action may in reality be just, yet

if

the party

doing it, after weighing every circumstance, cannot recon-

cile the act to his conscience, he incurs some degree

of

guilt. <(For whatever is not of faith,

says

the

ApostZe,

is

sin; where, by the term faith he means a deliberate

judg-

ment

of

the mind. For God has given conscience a

(274)

THE RIGHTS

OF

WAR

AND

PEACE

27

5

judicial power to be the sovereign guide

of

human actions,

by despising whose admonitions the mind

is

stupified into

brutal hardness. For

it

often happens that judgment

can point out nothing certain, but hesitates; and when

such doubts and hesitations cannot satisfactorily be

cleared up, the rule of Cicero is a safe one to follow, who

says, that it

is

an excellent injunction, which forbids

us

to

do

a thing

of

the rectitude or impropriety

of

which we

entertain a doubt.

But this rule cannot be applied, where

of

two things,

in the choice of which there is equal doubt, the one must

be done, in which case that must be selected, which seems

to be the least unjust. For on all occasions, where a

choice cannot be avoided, the less of two evils assumes

the appearance of a virtue.

111.

But in doubtful cases, after examination, the mind

seldom remains neuter, but inclines to one side, or the

other, persuaded either by the merits of the case, or by

respect for the judgment of those, who have delivered an

opinion upon the question. Now the merits of the case

are derived either from the causes, the effects, or other

concomitant circumstances.

IV.

To apprehend such distinctions properly, practice

and penetration are necessary, and where men have not

in themselves a capacity for the active exercise of judg-

ment

it

behoves them to follow the maxims of others,

who are distinguished by their wisdom and experience.

For, in the opinion of Aristotle, those things are probably

just,

or true, which seem

so

to

all, or to the greater part

of men of worth. And this

is

the method of judging

pursued by Sovereign Princes, whose engagements in the

affairs of life allow them but little leisure for study and

deliberation Thus the ancient Romans never undertook

wars, till they had consulted the sacred college, established

for that purpose, and the Christian Emperors scarcely ever

did

so

without advising with the Bishops, i'n order

to

be

apprized of any thing therein that might affect religion.

V.

It

may happen in many disputed points, that the

intrinsic merits of the case, or the opinions of the learned,

are equal on both sides. When that happens,

if

the mat-

ters in discussion are of no great importance, there

is

nothing to blame in the person, that makes his choice

either way. But in matters of moment, where the lives

of

men are at stake, the decision should incline to the

safer side, according to the proverbial maxim, which pro-

276

HUGO

GROTIUS

nounces

it

better to acquit the guilty than to condemn

the innocent.

VI. War then being an object of such weighty magni-

tude, in which the innocent must often be involved in

the sufferings of the guilty, between wavering opinions

the balance should incline in favour of peace.

There are three methods, by which independent nations

may settle their disputed rights without coming to the

decision of the sword.

VII. The first method is that of conference. For, in

the words of Cicero, ((there being two methods of decid-

ing quarrels, the one by discussion and the other by

force, the former, a peculiar characteristic of man, and

the latter, of the brute creation: when the first of these

methods fails, men are obliged to have recourse to the

latter.” Mardonius, in the Polyhymnia

of

Herodotus,

blames the Grecians, who, being united in one language,

might settle their quarrels by messengers of peace, by

heralds, and negotiations, rather than by war.

VIII. The other method is that

of

compromise, which

takes place between those, who have no common judge.

Among innumerable instances of this kind in ancient his-

tory, we may select that given

by

Xenophon in his

account of Cyrus, where that prince takes the king of the

Indians for arbitrator between himself and the king of

Assyria. The Carthaginians in their disputes with Masi-

nissa prefer a settlement of this kind before a decision of

war. Livy too informs

us

that the Romans themselves,

in a dispute with the Samnites, made an appeal to the

common allies

of

both.

The office of deciding wars and putting an end to the

contentions of armies was assigned, according to Strabo,

to

the Druids of the Gauls, and upon the testimony of

the same writer, it formed a part of the priestly func-

tions among the Iberians.

Surely then’it is a mode of terminating their disputes,

balancing their powers, and settling their pretensions

worthy to be adopted by Christian Kings and States.

For

if,

in order to avoid trials before judges who were

strangers to the true religion, the Jews and Christians

appointed arbitrators

of

their

own,

and

it

was a practice

recommended and enjoined by St. Paul, how much more

ought such a practice to be recommended and enforced,

to gain the

still

nobler end of preventing the calamities

of war.

THE

RIGHTS

OF

WAR

AND

PEACE

277

These and many other reasons

of

no less importance

might be advanced for recommending to Christian powers

general congresses for the adjustment of their various in-

terests, and for compelling the refractory to submit to

equitable terms of peace.

IX.

A

third method of terminating disputes, without

hostilities, was by lot, a practice commended by Dion

Chrysostom in his speech on the interposition of fortune

in directing affairs, and

it

was commended long be-

fore him by Solomon in the xviii. chapter

of

his

Pro-

verbs.

X.

Nearly related to the last named method

is

that of

single combat, a practice recommended under the idea

that by the risque of two lives a quarrel might be de-

cided, which would otherwise have cost the blood

of

thousands. In Livy we find Metius addressing Tullus

in the following terms, ((let

us

try some method

of

de-

termining to whom the pre-eminence shall belong, with-

out wasting the blood

of

each people.)) Strabo says

it

was the practice of the ancient Greeks, and Aeneas pro-

posed

it

to

Turnus,

as the most equitable way of settling

their pretensions.

It

is described too as the custom

of

the ancient Franks.

XI, Although in doubtful cases, both sides are bound

to devise every means

of

avoiding hostilities, yet

it

is a

duty more incumbent upon the claimant than upon the

immediate possessor of whatever may be the subject of

dispute. For

it

is

a rule not only

of

civil, but of natural

law, that, where the pretensions are equal, those

of

the

possessor are to be preferred.

TO

the foregoing remarks an additional observation

may be made, that

if

any one, knowing his pretensions

to be just, cannot produce sufficient proofs to convict the

intruder of injustice, he cannot lawfully have recourse to

arms, because he has no

OSTENSIBLE

RIGHT,

by which he

can compel the intruder to relinquish the possession.

XII. But where the right

is

ambiguous, and neither

party has possession, the pretender, who refuses

to

di-

vide the claims, may reasonably be charged with injustice.

XIII. From what has been said it will not be difficult

to settle a much agitated question, whether, with respect

to those, who are the principal movers of a war, there

can be justice on both sides. For there are distinctions

proper to be made in the various acceptations

of

the

word

JUST.

278

HUGO

GROTIVS

A

thing is said to be just, either as to its causes,

Or

its effects. The causes too may be confined either to

justice in a

PARTICULAR

acceptation,

or

they may be ex-

tended

SO

as to include under that name every kind of

rectitude. Again, a particular acceptation may be divided

into two kinds, one relating to the

ACTION,

and the other

to the agent.* .An agent may be said to act justly, when,

in what he does, he commits no breach

Of

STRICT

LAW,

though his conduct may not be conformable to equity.

In a

PARTICULAR

acceptation of the word justice, with

regard to a matter in dispute, it cannot in war, any

more than in legal proceedings, apply to both sides.

For

there can be no moral principle, commanding

us,

under the same circumstances, both to

DO,

and to

AB-

STAIN

from a particular action.

It

may happen indeed

that neither of two belligerent powers may act unjustly.

For

no one can be charged with acting unjustly unless

he knows that he

is

doing

so

;

but there are many, who

are not aware of the nature, extent, and consequences

of their measures. Thus in a law-suit, both parties may

sincerely believe that they have justice on their side.

For

many things both in law and fact, which would es-

tablish a right, may escape the notice of men.

In a

GENERAL

acceptation, an action may be called

just, where the agent is free from every kind

of

blame.

Yet in many cases an agent may deviate from the strict

rules of legal justice, and be liable to no blame,

when that deviation is owing to unavoidable ignorance,

there having been neither time nor opportunity sufficient

for him to know the substance, or perhaps existence of

the law.

So

it may happen in law-suits, that both parties

are free not only from the imputation of injustice, but

from all blame, especially where either of them is liti-

gating a matter not on his own, but on another’s account;

as for instance where

a

guardian is acting for his ward,

he would not be authorized in abandoning even a doubted

right. Aristotle says that in matters of disputed right

neither side can be charged with injustice; conformably

to which opinion Quintilian observes that an upright

*Thus letters

of

marque and reprisal, by which individuals are en-

abled

to

redress their

own

wrongs,

must issue from the sovereign

power, otherwise the hostilities

of

such individuals would

be

unlaw-

ful.

So

that here the

ACTION

would be unlawful, that is

unjust,

an-

less

performed

by

an AGENT, who had

a

commission from public

authority.

THE RIGHTS

OF

WAR

AND

PEACE

279

pleader may be engaged on either side

of

the question.

Aristotle further observes that passing

a

just judgment

is an ambiguous term, signifying that a judge deter-

mines either according to the strict letter of the law,

or

according to the dictates of his own conscience. And,

in another place, he has said that giving a wrong judg-

ment through ignorance is no act of injustice.

But in matters of war and peace, where such weighty

and varied interests

on

all sides are concerned, it would

be dificult to obtain a judgment purely impartial, and

abstracted from all personal motives, unless there be the

most clear and undeniable evidence on the points in

question.

If

we denominate a thing to be just, from its effect

in conferring certain rights, in this sense it

is

plain that

in war there may be justice

on

both sides. In the same

manner, a sentence not strictly legal, or a possession

not perfectly just may nevertheless confer certain rights.

CHAPTER

XXIV.

PRECAUTIONS AGAINST

RASHLY

ENGAGING

IN

WAR,

EVEN

UPON

JUST

GROUNDS.

Relaxation

of

right in order to avoid war-particularly penalties

-

Self-preservation motive for forbearing hostilities

-

Prudential rules

in

the choice of advantages

-

Peace preferable to the extermination

of

hostile powers

-

Forbearance prudent in inferior powers

-

War

not

to

be undertaken, but from necessity.

I. Although it seems not to fall within the immediate

province of a treatise, entitled the

RIGHTS

OF

WAR,

to

enter into an investigation of other moral duties, which

the relations of war and peace prescribe, yet

it

may not

be improper slightly to touch upon certain errors, which

it

is necessary to obviate, in order to prevent any one

from supposing, that, after establishing the right of war,

he is authorized,

INSTANTLY

or

at

ALL

TIMES,

to

carry his

principles into action, and to reduce his theory to practice.

So

far from this, it frequently happens that it is an act

of greater piety and rectitude to yield a right than to

enforce it.

It

was before shewn, in its proper place how honour-

able

it

is to be regardless of

our

own lives, where we

can preserve the lives, and promote the lasting welfare

of others. A duty that should operate with greater force

upon Christians, who have before their eyes continually

the example

of

him, who died to save

us,

while we were

enemies and ungodly. An example which calls upon

us,

in the most affecting manner, not to insist upon the

rigorous prosecution of

our

justest rights, where it can-

not be done but by the calamities, which war occasions.

If

arguments and motives like these wanted authorities,

abundance of authorities might be adduced for their support.

11.

Many reasons might be brought to dissuade

us

from

urging the full infliction of a punishment. There is an

obvious instance

in

the conduct of fathers, who connive

at many faults in their children. But whoever, is author-

ized to punish another, assumes the character of a

sov-

ereign ruler, that

is,

of a father; in allusion to which

St. Augustin, addressing Count Marcellinus, says,

“0

Christian Judge, fulfil the office of a pious father.

))

(280)

THE RIGHTS

OF

WAR

AND

PEACE

281

Sometimes indeed men are

so

circumstanced, that to

relinquish

a

right becomes not only

a

laudable act, but

a

debt of respect to that law, which commands

us

to love

our

enemies: a law to be respected and obeyed

not

only

for its intrinsic value, but as being a precept of the gos-

pel. By the same law, and for the same reasons, we are

commanded to pray for and to promote the welfare and

safety of Christian Princes and Kings, because their wel-

fare and safety are

so

essential to the order,. peace, and

happiness of society.

111.

With,respect to the pardon of offences committed

against ourselves, little need be said, as

it

is known

to

be a leading clause in the code of a Christian’s duty, to

which he readily and freely submits, knowing that God

for Christ’s sake has forgiven him. Thus revealed law

adds

a

sanction to what was known by heathens to be an

amiable precept. Cicero has drawn a fine character of

Caesar, in which he commends the excellence of his mem-

ory

that could recollect every thing but injuries. We

find many noble examples of this excellent virtue in the

writings of Moses and in various other parts

of

scrip-

ture. These, and these motives

ALONE,

when they can

safely be complied with are sufficient to keep the sword

within its scabbard. For the debt of love and forbear-

ance to our enemies is an obligation, which it is honour-

able to discharge.

IV.

It

is often

a

duty, which we owe to our country

and ourselves, to forbear having recourse to arms. After

the college

of

heralds had pronounced a war to be just

we are informed by Plutarch in the life of Numa, that

the Senate further deliberated, whether it was expedient

to undertake it. According to our Saviour’s beautiful

and instructive parable, a king, when he is obliged to go

to war with another king, should first sit down, an ex-

pression implying an act of deliberation, and consider

within himself, whether, with ten thousand men he

is

able to encounter one who

is

coming against him with

twenty times that number: and if he finds himself

un-

equal to the contest, before the enemy has entered

his

territories he will send an embassy to him offering terms

of

peace.

V.

In all cases of deliberation, not only the ultimate

but the intermediate objects leading to the principal

ends are to be considered. The final object is always

some good, or at least the evasion of some evil, which

282

HUGO

GROTIUS

amounts to the same. The means are never to be con-

sidered by

THEMSELVES,

but only as they have a tendency

to the proposed end. Wherefore in all cases

of

deliber-

ation, the proportion, which the means and the end bear

to each other, is to be duly weighed, by comparing them

together: a mode of comparison, in which there are

three rules necessary to be observed.

The first thing, in a moral point of view, to be con-

sidered

is,

what tendency the desired object has to

produce good

or

evil

;

and,

if

the former has the prepon-

derancy, we are then at liberty to chuse it.-In the second

place,

if

it

appears difficult to decide, whether the good

or the evil predominates, we may chuse the object,

if,

in

the choice and use

of

our means, we can give a turn to

affairs, that may throw the preponderance into the scale

of advantage-or lastly

if

the good and the evil bear no

proportion

to

each other, nor the means,

AT

THE

FIRST

VIEW,

appear adequate to the end,

if,

in pursuing an

object, the tendency to good, compared with the tendency

to evil be greater than the evil itself when compared

with the good; or

if

the good, in comparison

of

the evil,

be greater than the tendency to evil, in comparison

of

the tendency to good,* we may decide in favour

of

it.

*The three rules above laid down by our author may be illustrated

by

the three following propsitions.-

In

the first place,

it

cannot be denied, that war, in the

ABSTRACT,

is

an evil, but then it is necessary

to

consider, whether it is not an evil

that must, in many cases, be submitted to in order to avoid still greater

calamities.

Secondly, in the prosecution

of

a war, where the advantages,

or

evils

are doubtful, it

is

necessary

to

endeavour after the attainment

of

new

confederacies

or

alliances, that may compensate for the losses sustained,

or may open out new channels

of

trade and commerce, which may

supply the place

of

those that have been closed by the immediate war.

King William, after the British

Cabinet that met at Tunbridge Wells,

As

an illustration of the third point, we may adduce the conduct

of

August

28, 1698,

represented to him how inadequate the spirit

of

the

nation was to enter into a new war, and to bear additional burdens,

concluding,

“this

is

the truth of the fact

upon

which your Majesty will

determine what resolution ought to be taken.))

His

Majesty did deter-

mine

upon

war,

as

the least

of

all the evils which faced his people, not-

withstanding the

APPARENT

inadequacy of his means. And ((in that

great

war,

says

MY.

Burke,

carried

on

against

Louis

the

XIV,

for

near

eighteen years, government spared

no

pains to satisfy the nation,

that

though they were to be animated by

a

desire

of

glory,

glory was not

their ultimate object: but that every thing dear to them, in religion, in

law,

in liberty, every thing, which

as

freemen,

as

Englishmen, and

as

citizens

of

the great commonwealth of Christendom, they had

at

heart,

ks

then

at

stake.”-Lett.

on

Regic Peace,

p.

go.

THE

RIGHTS OF

WAR

AND

PEACE

283

Cicero has treated these abstruse points in a more pop-

ular and pleasing manner than abstract reasoning would

allow. Applying all the beauties of eloquence to eluci-

date moral truth, he says,

((it

is the height of folly and

presumption

UNNECESSARILY

to expose ourselves to dan-

gers. In encountering calamities we must imitate the

conduct of physicians who use gentle remedies with weakly

constitutions. But in constitutions of a stronger cast, es-

pecially, in virulent disorders, they-must have recourse

to more powerful, though more dangerous expedients.

In the same manner, a skilful pilot would not attempt to

face the wind directly, but would tack about in order to

avoid its fury.”

VI. An example of evils, that ought by all possible

means to be avoided, is furnished by the consultations

among the states of Gaul, who, according to the account

of Tacitus, deliberated, whether they should make choice

of liberty or peace. By liberty is here meant civil liberty,

that is, the right of governing themselves, and remaining

independent states; and by peace is meant such a peace

as would prevent the whole people from being extermi-

nated, a calamity like that which befel the Jews, when

their city was besieged by Titus.

In such cases reason itself dictates the choice of peace,

as the only means of preserving life, which is the imme-

diate

gift

of God, and the foundation of every blessing.

SO

that the Almighty, as we read in his sacred volume,

deems it a kindness, when instead of destroying a peo-

ple, he permits them to be reduced to slavery. There-

fore he admonishes the Hebrews, by the mouth of his

prophet, to surrender to the Babylonians, rather than to

die by pestilence and famine.

What has been said of submitting to disadvantages,

and Some calamities for the preservation of life or lib-

erty, may be applied to every object of dear value. As

Aristides says, it is a moral duty in a storm, to save the

ship by casting overboard the

goods,

but not the crew.

VII. In exacting punishment it is necessary to use the

precaution of avoiding hostilities with a power of equal

strength. For to avenge a wrong,

Or

to

assert a right

by force of arms requires a superiority of strength.

SO

that not only prudence, but a regard for their subjects

will at all times deter rulers from involving their people

in the calamities

of

war. A principle of justice

too,

the

sole directress of human affairs, binding sovereigns and

s4

HUGO

GROTIUS

subjects to each other by their mutual interests, will

teach this lesson of precaution. For reparation must be

looked for at the hands of those, who bring

on

the

calamities of wanton and unnecessary war. Livy calls

that a just, which is a necessary war, and it is a pious

cause, when no hope is left, but in recourse to arms.

VIII.

It is but now and then a cause of such im-

perious necessity occurs, as to demand the decision

of

the sword, and that is, when, as

Florus

says, the de-

sertion of a right will be followed by calamities far more

cruel, than the fiercest wars. Seneca says, ((that

it

is

right to meet danger, when equal harm would result

from acquiescing in an injury,)) and in this, he is sup-

ported by Tacitus, who calls

((

war a happy exchange for

a miserable and insecure peace.)’ and the same animated

writer in another place observes, that ((an oppressed

people may recover their liberty by daring enterprize,

and, if defeated they cannot be reduced to greater sub-

jection than before;

))

a sentiment, with which Livy ac-

cords, in naming ((peace, when coupled with servitude,

a far more grievous calamity, than all the horrors of

war.” But

it

is not

so,

as Cicero says, where defeat will

be attended with proscription, and victory with bondage,

IX.

Another necessary precaution relates to the

TIME,

when

it

is proper to undertake a war, which depends

upon a due calculation, whether there are resources and

strength sufficient to support

our

just pretensions. This

is conformable to what was said by Augustus, that no

war should be undertaken, but where the hopes

of

ad-

vantage could be shewn to overbalance the apprehen-

sions of

ruin.

Scipio Africanus, and Lucius Aemilius

Paulus used to speak in terms not inapplicable to this

subject, for they said

((it

was never right to try the

event of battle, but under extreme necessity,

or

favour-

able circumstances.

))

The above precautions are of great use, where we hope

by the dread and fame of

our

preparations to accomplish

our object with little or

no

danger.

CHAPTER

XXV.

THE

CAUSES

OF

UNDERTAKING

WAR

FOR

OTHERS.

Sovereigns may engage

in

war to

support

the rights

of

their subjects-

Whether an innocent subject canbedelivered

up

toan enemy toavoid

danger-Wars justly undertaken

in

support

of confederates

upon

equal, or unequal terms- For friends

-

For any men

-

Omission

of

this duty not blamable, from motives

of

self-preservation--ether

war

may

be

justly undertaken in defence

of

another’s subjects,

w.

plained by distinctions.

I.

IN

SPEAKING

of belligerent powers,

it

was shewn that

the law of nature authorises the assertion not only of our

own rights, but of those also belonging to others. The

causes therefore, which justify the principals engaged in

war, will justify those also, who afford assistance to oth-.

ers. But whether any one presides over an household,

or

a state, the first and most necessary care

is

the

sup-

port of his dependents or subjects. For the household

forms but one body with the master, and the people with

the sovereign.

So

the people of Israel under the com-

mand of Joshua took up arms in support of the Gibeon-

ites, whom they had subdued.

Our

forefathers, said

Cicero to the Romans, often engaged in war to support

the rights of merchants, whose vessels had been plun-

dered. The same Romans who would refuse to take arms

for a people who were only allies, did not hesitate to

assert by force

of

arms the injured rights

of

the same,

when they became their subjects.

11.

Yet the cause of any subject, although

it

may be a

just cause, does not always bind sovereigns

or

rulers to

take arms: but only when

it

can be done without incon-

venience to all, or the greater part

of

their subjects.

For

the interests

o€

the whole community, rather than

those of particular parts, are the principal objects

of

a

sovereign’s care; and the greater any part

is,

the nearer

its claims and pretensions approximate to those of the

whole.

111.

Some have maintained the position, that

if

anenemy

requires the surrender of a citizen, however innocent,

the demand must unquestionably be complied with,

if

the

state

is

too feeble

to

resist

it. This opinion

is

strongly

(ass)

286

HUGO

GROTIUS

controverted by Vasquez, but if we attend to his mean-

ing more than his words, we shall find it to be the drift

of his argument, that such a citizen ought not to be

rashly abandoned, while there remains any possible hope

of protecting him. For as a case

in

point, he alleges the con-

duct of the Italian Infantry, who, upon receiving assurances

of protection from Caesar, deserted Pompey, even before

he was reduced to absolute despair: a conduct which he

deservedly reprobates in the strongest terms.

But whether an innocent citizen may be given up into

the hands of an enemy to avoid imminent destruction,

which would otherwise fall upon the state, is a point that

HAS

BEEN

formerly, and

IS

still disputed by the learned,

according to the beautiful fable, which Domosthenes told

of the wolves, who demanded of the sheep the surrender

of the dogs,

as

the only terms of peace. The lawfulness of

this is denied not only by Vasquez, but by one, whose

opinions that writer condemns, as bearing a near ap-

proach to perfidy. Sotus holds it

as

an established maxim,

that such a citizen is bound to deliver himself up: this

Vasquez denies, because the nature

of

civil society, which

every one has entered into for

his

own advantage, re-

quires no such thing,

No

conclusion can be drawn from hence, except that

a citizen is not bound to this by any

RIGHT

STRICTLY

so

CALLED,

while at the same time the law

of

charity will

not suffer him to act otherwise. For there are many

duties not properly included in the idea of strict justice.

These are regarded as acts of

good

will, the performance

of which

is

not only crowned with praise, but the omis-

sion of them cannot escape censure.

Such

is

the complexion of the following maxim, that

every one

should

prefer the lives of an innumerable and

innocent multitude to his own personal and private wel-

fare. Cicero, in defending Publius Sextius, says,

((If

I

were taking a voyage with my friends, and happening to

meet with a fleet

of

pirates, they threatened to sink our

little bark, unless the crew surrendered me as the victim

to appease their fury, I would sooner throw myself into

the deep, than suffer my companions out

of

their affec-

tion to me

to

encounter sure death, or even imminent

danger.

But after establishing this point, there remains a doubt,

whether any one can be

COMPELLED

to do what he is

BOUND

to do. Sotus denies this, and

in

support

of

his

THE

RIGHTS

OF

WAR

AND PEACE

287

argument quotes the case of a rich man, who, though

bound from motives of charity to supply the wants

of

the needy, cannot be compelled to do

so.

But the trans-

actions of equals with each other, must be regulated

*

upon principles very different from those that regulate

the mutual relations of sovereigns and subjects. For an

equal cannot compel an equal to the performance of any

thing, but what he is strictly bound by law to perform.

But

a

superior may compel an inferior to the performance

of

OTHER

duties besides those of

PERFECT

OBLIGATIONS;

for that is a right peculiarly and essentially belonging to

the nature of superiority. Therefore certain legislative

provisions may be made, enacting the performance of

such duties, as seem to partake of the nature of benevo-

lence. Phocion, as

it

is

mentioned in Plutarch’s lives,

said that the persons, whom Alexander demanded, had

reduced the commonwealth to such distress, that if he

demanded even his dearest friend Nicocles, he should

vote for delivering him up.

IV.

Next to subjects, and even upon an equal footing

with them, as to claims of protection, are allies, a name

including, in its consequences and effects, both those,

who have formed a subordinate connection with another

power, and those who have entered into engagements of

mutual assistance. Yet no such compacts can bind either

of the parties to the support or prosecution of unjust

wars. And this is the reason, why the Lacedaemonians,

before they went to war with the Athenians, left all their

allies at liberty to decide for themselves upon the justice

of the quarrel.

To

which an additional observation may

be made, that no ally is bound to assist in the prosecu-

tion of schemes, which afford no possible prospect of a

happy termination.

For

this would be defeating the very

end of alliances, which are contracted from motives

of

public advantage, and not for a participation in ruin.

But any power is obliged to defend an ally even against

those, with whom

it

is already connected by subsisting

treaties, provided those treaties contain no express con-

dition prohibiting such defence. Thus the Athenians

might have defended the Corcyraeans,

IN

A

JUST CAUSE,

even against the Corinthians, their more ancient allies.

V.

A third case is that, where assistance has not been

expressly promised to a friendly power, and yet is due

on

the score

of

friendship,

if

it can be given

without

inconvenience.

a88

HUGO

GROTIUS

Upon this principle Abraham took arms in defence

of

his kinsman Lot: and the Romans charged the Antiates

to commit

no

acts of piracy upon the Greeks,

as

being

a people

of

the same kindred with the Italians. It was

no unusual thing with the Romans to begin, or at least

to threaten to begin wars not only in support of allies,

to whom they were bound by treaty, but

in

support of

any friendly powers.

VI. The last and most extensive motive

is

the common

tie of one

COMMON

NATURE,

which alone is sufficient to

oblige men to assist each other.

VII.

It

is

a question, whether one man is bound

to

protect another, or one people another people from injury

and aggression. Plato thinks that the individual

or

state

not defending another from intended violence is deserv-

ing

of

punishment.

A

case for which provision was made

by the laws

of

the Egyptians.

But in the

first

place it is certain that

no

one is

bound

to

give assistance

or

protection, when it will be attended

with evident danger. For a man’s

own

life and property,

and a state’s own existence

and

preservation are either

to the individual, or the state, objects of greater value

and prior consideration than the welfare and security

of

other individuals

or

states.

Nor will states or individuals be

bound

to risk their

own

safety, even when the aggrieved or oppressed party

cannot be relieved but by the destruction

of

the invader

or oppressor.

For

under some circumstances it is impos-

sible successfully to oppose cruelty and oppression, the

punishment of which must be left to the eternal judge

of

mankind.

VIII.

Though it is a rule established by the laws of

nature and of social order, and a rule confirmed by all

the records of history, that every Sovereign is supreme

judge in his own kingdom and over his

own

subjects, in

whose disputes

no

foreign power can justly interfere.

Yet where a Busiris, a Phalaris or a Thracian Diomede

provoke their people to despair and resistance by unheard

of

cruelties, having themselves abandoned all the laws of

nature, they lose the rights of independent sovereigns,

and

can

no

longer claim the privilege of the law of

nations. Thus Constantine took up arms against

Max-

entius and Licinius, and other Roman emperors either

took, or threatened to take them against the Persians,

if

they

did

not desist from persecuting the Christians,

THE

RIGHTS

OF

WAR

AND

PEACE

289

Admitting that it would be fraught with the greatest

dangers

if

subjects were allowed to redress grievances

by force of arms,

it

does not necessarily follow that

other powers are prohibited from giving them assistance

when labouring under grievous oppressions. For when-

ever the impediment to any action

is

of a personal nature,

and not inherent in the action itself, one person may

perform for another, what he cannot

do

for himself,

provided

it

is

an action by which some kind service may

be rendered. Thus a guardian or any other friend may

undertake an action for

a

ward, which he

is

incapacitated

from doing for himself.

The impediment, which prohibits a

SUBJECT

from mak-

ing resistance, does no: depend upon the nature of the

OCCASION,

which would operate equally upon the feelings

of men, whether they were subjects or not, but upon the

character of the persons, who cannot transfer their

natural allegiance from their own sovereign to another.

But this principle does not bind those, who are not the

liege-subjects of that sovereign or power. Their opposi-

tion

to

him or the state may sometimes be connected

with the defence

of

the oppressed, and can never

be

construed into an act of treason. But pretexts of that

kind cannot always ,be allowed, they may often be used

as the cover of ambitious designs.

But

right does not

necessarily lose its nature from being in the hands of

wicked men. The sea still continues a channel

of

lawful

intercourse, though sometimes navigated by pirates, and

swords are still instruments

of

defence, though sometimes

wielded by robbers or assassins.

19

BOOK

111.

CHAPTER

I.

WHAT

IS

LAWFUL

IN

WAR.

mat

is lawful in war-General Rules derived from the law

of

nature-

Stratagems and lies- Arrangement

of

the

following

parts

-

First

rule, all things necessary to the end lawful- Right resulting not only

from the origin

of

a

war, but from causes growing out

of

the

same

-Certain consequences justifiable, though not originally lawful

-

What measures are lawful against those who furnish an enemy with

supplies

-

Stratagems

-

Negative -Positive

-

Sometimes allowable

to use

words

in

a

sense

different from the general acceptation-A lie

according to the true notion of

it

injurious to the rights

of

others-

Falsehood allowable in order to deceive children

or

madmen

-

Any

one addressing another without intentions

to

deceive, not answerable

for

the misconceptions of

a

third person-A

person

not

answerable

for

the wilful mistakes of those to whom he speaks-The fictitious

threats

of

a

person in authority- Fiction allowable in order to save

the lives

of

the innocent, or

to

promote other equally important pur-

poses-Deception lawful against an enemy, but not including prom-

ises,

or

oaths -To forbear using this privilege an act

of

generosity

and Christian simplicity

-

Not allowable to urge others to what is

unlawful

for

them, but

not

for

us

to do- Allowable to use the serv-

ices of deserters.

I.

HAVING,

in the preceding books, considered by what

persons, and

for

what causes, war may be justly declared

and undertaken, the subject necessarily leads to an in-

quiry into the circumstances, under which war may be

undertaken, into the extent, to which it may be carried,

and into the manner, in which its rights may be en-

forced. Now all these matters may be viewed in the

light of privileges resulting simply from the law of nature

and of nations,

or

as the effects of some prior treaty

or

promise. But the actions, which are authorised by the

law of nature, are those that are first entitled to atten-

tion.

11.

In

the first place, as

it

has occasionally been

ob-

served, the means employed in the pursuit of any object

must, in a great degree, derive the complexion

of

their

moral character

from

the nature

of

the end to which

(190,

,

THE RIGHTS

OF

WAR

AND PEACE

29

*

they lead.

It

is

evident therefore that we may justly

avail ourselves of those means, provided they be lawful,

which are necessary to the attainment of any right.

RIGHT

in this place means what

is

strictly

SO

called, sig-

nifying the moral power of action, which any one as a

member

of

society possesses. On which account, a per-

son, if he has no other means of saving his life, is justi-

fied in using any forcible means of repelling an attack,

though he who makes it, as for instance,

a

soldier in

battle, in doing

so,

is

guilty

of

no

crime.

For

this

is

a

right resulting not properly from the crime of another,

but from the privilege of self-defence, which nature

grants to every one. Besides, if any one has

SURE

and

UNDOUBTED

grounds to apprehend imminent danger from

any thing belonging to another, he may seize it without

any regard to the guilt or innocence of that owner. Yet

he does not by that seizure become the proprietor of it.

For that

is

not necessary to the end he has in view.

He may

DETAIN

it as

a

precautionary measure, till he

can obtain satisfactory assurance of security.

Upon the same principle any one has a natural right

to seize what belongs to him, and is unlawfully detained

by another:

or,

if that is impracticable, he may seize

something of equal value, which is nearly the same as

recovering a debt. Recoveries

of

this kind establish a

property in the things

so

reclaimed; which

is

the only

method of restoring the equality and repairing the

breaches of violated justice.

So

too when punishment

is lawful and just, all the means absolutely necessary to

enforce its execution are also lawful and just, and every

act

that

forms

a part

of

the punishment, such as destroy-

ing an enemy’s property and country by fire

or

any other

way, falls within the limits of justice proportionable to

the offence.

111.

In the second place, it is generally known that it

is

not the

ORIGIN

only of a just war which

is

to be

viewed as the principal source of many of our rights,

but there may be causes growing out of that war which

may give birth to additional fights.

As

in proceedings

at law, the sentence of the court may give to the suc-

cessful litigant other rights besides those belonging to

the original matter of dispute.

So

those who join

our

enemies, either as allies

or

subjects, give

us

a right of

defending ourselves against

THEM

also.

So

too a nation

engaging in an unjust war, the injustice of which she

292

HUGO

GROTIUS

knows and

ought to know, becomes liable to make

good

all the expences and losses incurred, because she has

been guilty of occasioning them. In the same manner

those powers, who become auxiliaries in wars undertaken

without any reasonable grounds, contract a degree of

guilt and render themselves liable to punishment in pro-

portion to the injustice

of

their measures. Plato approves

of war conducted

so

far, as to compel the aggressor to

indemnify the injured and the innocent.

IV.

In

the third place, an individual

or

belligerent

power may, in the prosecution of

a

lawful object,

do

many things, which were not in the contemplation of

the original design, and which in

THEMSELVES

it would

not be lawful to do. Thus in order to obtain what

belongs to

us,

when

it

is

impossible to recover the spe-

cific thing, we may take more than our due, under con-

dition

of

repaying whatever is above the real value. For

the same reason it is lawful to attack a ship manned

by

pirates,

or

a house occupied by robbers, although in that

ship,

or

that house there may be many innocent persons,

whose lives are endangered by such attack.

But we have had frequent occasion to remark, that

what

is

conformable to right taken in its strictest sense

is not always lawful in a moral point of view. For there

are many instances, in which the law of charity will not

allow

us

to insist upon our right with the' utmost rigour.

A

reason for which it will be necessary to guard against

things, which fall not within the original purpose of an

action, and the happening of which might be foreseen:

unless indeed the action has

a

tendency to produce

advantages, that will far outweigh the consequences of

any accidental calamity, and the apprehensions of evil

are by

no

means to be put in competition with the sure

hopes

of

a

successful issue. But to determine in such

cases requires no ordinary penetration and discretion.

But wherever there is any doubt, it is always the safer

way to decide

in

favour of another's interest, than to

follow the bent of our own inclination.

((

Suffer the tares

to grow,

says

our

divine teacher,

least in rooting up the

tares

you

root up the wheat also.

))

The general destruction, which the Almighty, in right

of

his supreme Majesty, has sometimes decreed and

executed, is not a rule, which we can presume to follow.

He has not invested men, in the exercise

of

power,

with those transcendent sovereign rights. Yet he himself,

THE

RIGHTS

OF

WAR

AND

PEACE

293

notwithstanding the unchangeable nature

of

his sovereign

will, was inclined to spare the most wicked cities,

if

ten

righteous persons could be found therein. Examples

like these may furnish

us

with rules to decide, how far

the rights of war against an enemy may be exercised or

relaxed.

V.

It

frequently occurs

as

a matter of inquiry,

how

far

we are authorised to act against those, who are neither

enemies, nor wish to be thought

so,

but who supply

our enemies with certain articles. For we know that it

is a point, which on former and recent occasions has

been contested with the greatest animosity; some wishing

to enforce with all imaginary rigour the rights

of

war,

and others standing up for the freedom

of

commerce.

In the first place, a distinction must be made between

the commodities themselves. For there are some, such

as arms for instance, which are only of use in war;

there are others again, which are of no use in war, but

only administer to luxury; but there are some articles,

such as money, provisions, ships and naval stores,

which are of use at all times both in peace and war.

As to conveying articles of the first kind, it is evident

that any one must be ranked as an enemy, who supplies

an enemy with the means of prosecuting hostilities.

Against the conveyance

of

commodities

of

the second

kind, no just complaint can be made.-And as to articles

of the third class, from their being of a doubtful kind,

a distinction must be made between the times

of

war

and peace. For if a power can not defend itself, but by

intercepting the supplies sent to an enemy, necessity

will justify such a step, but upon condition of making

restoration, unless there be some additional reasons to

the contrary. But if the conveyance of goods to an

enemy tends to obstruct any belligerent power in the

prosecution

of

a lawful right, and the person

so

convey-

ing them possesses the means of knowing it; if that

power,

for

instance,

is

besieging a town, or blockading a

port, in expectation of a speedy surrender and a peace,

the person, who furnishes the enemy with supplies, and

the means

of

prolonged resistance, will be guilty

of

an

aggrcssion and injury towards that power. He will incur

the same guilt, as a person would do by assisting a

debtor to escape from prison, and thereby to defraud

his creditor.

His

goods may be taken by way

of

indem-

nity, and in discharge of the debt.

If

the person

has

294

HUGO

GROTIUS

not yet committed the injury, but only intended to do

so,

the aggrieved power will have a right to detain his

goods,

in order to compel him to give future security,

either by putting into his hands hostages, or pledges;

or indeed in any other way. But

if

there are evident

proofs of injustice in an enemy’s conduct the person who

supports him in such a case, by furnishing him with

succours, will be guilty not barely of a civil injury, but

his giving assistance

will

amount to a crime as enormous,

as it would be to rescue a criminal in the very face

of

the judge. And on that account the injured power may

proceed against him as a criminal, and punish him by a

confiscation of his goods.

These are the reasons, which induce belligerent powers

to issue manifestoes, as an appeal to other states, upon

the justice of their cause, and their probable hopes

of

ultimate success. This question has been introduced

under the article, which refers to the law of nature, as

history supplies

us

with no precedent to deduce

its

es-

tablishment from the voluntary law of nations.

We are informed by Polybius, in his first book, that

the Carthaginians seized some of the Romans, who were

carrying supplies to their enemies, though they after-

wards gave them up, upon the demand

of

the Romans.

Plutarch says that when Demetrius had invested Attica,

and taken the neighbouring towns of Eleusis and Rham-

nus,

he ordered the master and pilot of a ship, attempt-

ing to convey provisions into Athens, to be hanged, as

he designed to reduce that city by famine: this act

of

rigour deterred others from doing the same, and by that

means he made himself master of the city.

VI.

Wars, for the attainment of their objects, it cannot

be denied, must employ force and terror as their most

proper agents. But

a

doubt is sometimes entertained,

whether stratagem may be lawfully used in war. The

general sense

of

mankind seems to have approved

of

such a mode of warfare. For Homer commends his hero,

Ulysses, no less for his ability in military stratagem, than

for his wisqom. Xenophon, who was a philosopher

as

well as a soldier and historian, has said, that nothing

can be more useful in war than a well-timed stratagem,

with whom Brasidas, in Thucydides agrees, declaring it

to be the method from which many great generals have

derived the most brilliant reputation. And in Plutarch,

Agesilaus maintains, that deceiving an enemy is both

THE

RIGHTS

OF

WAR

AND

PEACE

=9s

just and lawful. The authority of Polybius may be

added to those .already named; for he thinks, that

it

shews greater talent in a general to avail himself of

some favourable opportunity to employ a stratagem, than

to gain an open battle. This opinion of poets, historians,

and philosophers is supported by that of Theologians.

For Augustin has said that, in the prosecution of

a

just

war, the justice of the cause is

no

way affected by the

attainment of the end, whether the object be accom-

plished by stratagem or open force, and Chrysostom, in

his beautiful little treatise on the priestly office, observes,

that the highest praises are bestowed on those generals,

who have practised successful stratagems. Yet there is

one circumstance, upon which the decision of this ques-

tion turns more than upon any opinion even of the high-

est authority, and that is, whether stratagem ought to be

ranked as one of those evils, which are prohibited under

the maxim

OF

NOT

DOING

EVIL,

THAT

GOOD

MAY

ENSUE,

or

to be reckoned as one

of

those actions, which, though

evil

IN

THEMSELVES,

may be

so

modified by particular oc-

casions, as to lose their criminality in consideration of

the good, to which they lead.

0

VII.

There is one kind of stratagem, it is proper to

remark, of a negative, and another of a positive kind.

The word stratagem, upon the authority of Labeo, taken

in

a

negative sense, includes such actions, as have nothing

criminal in them, though calculated to deceive, where

any one, for instance, uses a degree of dissimulation or

concealment, in order to defend his own property

or

that

of others.*

So

that undoubtedly there is something of

harshness in the opinion of Cicero, who says there is

no scene of life, that will allow either simulation, or dis-

simulation to be practised. For as you are not bound

to disclose to others all that you either know or intend;

it

follows that, on certain occasions, some acts of dissim-

ulation, that is, of concealment may be lawful. This is

a talent, which Cicero, in many parts of his writings,

acknowledges that

it

is

absolutely necessary for states-

men to possess. The history of Jeremiah, in the xxxviiith

chapter of his prophecy, furnishes a remarkable instance

of

this kind. For when that prophet was interrogated

*Thus when

a

ship makes an appearance

of

mounting more

guns

than she really carries, in order to deter

an

enemy from attacking

her,

this

may be considered

as

one

of

those negative stratagems,

or

stratagems of

dissimulation,

to

which

our

author

alludes.

\

296

HUGO

GROTIUS

by the king, respecting the event of the siege, he pru-

dently, in compliance with the king’s orders, concealed

the real matter from the nobles, assigning a different,

though not a false reason for the conference, which he

had had. In the same manner, Abraham called Sarah,

his sister, an appellation used familiarly at that time to

denote a near relation by blood, concealing the circum-

stance

of

her being his wife.

VIII. A stratagem of a positive kind, when practised

in actions, is called a feint, and when used in conversa-

tion

it

receives the name of a lie or falsehood. A dis-

tinction is made by some, between these two kinds of

stratagems, who say, that words are signs of our ideas,

but

actions are not

so.

But there

is

more of truth in the

opposite opinion, that words of themselves unaccompanied

by the intention of the speaker, signify nothing more than

the inarticulate cries would do of any one labouring under

grief, or any other passion: which sounds come under

the denomination of actions, rather than of speech. But

should

it

be said that being able to convey to others

the conceptions of his mind, by words adapted to the pur-

pose, is a pwuliar gift of nature, by which man

is

dis-

tinguished from other parts

of

the animated creation, the

truth

of

this cannot be denied.

To

which we may add that such communication may

be made not only by words, but by signs or gestures,

like those used to the dumb;

it

makes no difference,

whether those signs or gestures have any natural connec-

tion with the thing they are intended to signify, or

whether such a connection

is

only assigned to them by

custom. Equivalent to such signs or gestures is hand-

writing, which may be considered, as a dumb language,

deriving its force not merely from the words used, and

the particular form of the letters, but from the real in-

tention of the writer, to be gathered from thence:

-

to

be gathered either from the resemblance between the

characters and the intentions, as in the Egyptian

hieroglyphics, or from pure fancy, as among the Chi-

nese.

Here likewise another distinction

is

necessary to be

applied in the same manner, as was done before, in order

to remove all ambiguity in using the term of

THE

LAW

OF

NATIONS.

For

it

was there said, that the laws estab-

lished by independent and separate states, whether or no

those laws implied any mutual obligations, were denomi-

THE RIGHTS OF

WAR

AND

PEACE

297

nated the

LAW

OF

NATIONS.*

So

that words, gestures,

and signs, made use of to convey

a

meaning, imply an

obligation, in all the persons concerned, to receive and

employ them in their common acceptation. But the em-

ployment of

OTHER

MEANS,

coming under

NONE

OF

THOSE

DESCRIPTIONS,

cannot be construed into

a

violation of any

social contract, although some may be deceived thereby.

It

is the

REAL

NATURE

of the actions that

is

here spoken

of,

and not the

ACCIDENTAL

circumstances attending them:

such actions for instance, as occasion no mischief; or

if

they do

SO,

there

is

no guilt, where there

is

no treacher-

ous

design.

We have an instance of the former kind in the conduct

of our Saviour, who, on the way to Emmaus, pretended

to the disciples, that he was going further; here was a,

harmless stratagem, unless we interpret the words, as

expressive of his intention to have gone further,

if

he

had not been prevented by their efforts and entreaties

to detain him. And in another part of the sacred history

it

is

said, that he intended to have passed by the Apostles

on the sea, that is, he intended to have done

it,

had he

not been

so

earnestly importuned by them to go into the

ship. There is another instance too in the conduct of

Paul, who circumcised Timothy, though he knew the

Jews would conclude from thence, that the ordinance

of

circumcision, which in reality had been abolished, was

still binding upon the descendants of Israel, and that

Paul and Timothy were

of

the same opinion. Whereas

Paul had no such intention, but only hoped, by that

means, to open for himself and Timothy a way to more

familiar intercourse with the Jews. Neither could an

ordinance of that kind, when the divine obligation was

repealed, any longer be deemed

of

such importance, nor

could the evil of a temporary error, resulting from thence,

and afterwards to be corrected, be regarded as equivalent

to the opportunity, which Paul thought to gain, of mak-

ing

it

conducive to the introduction of Christian truth.

*

Besides the

NECESSARY

law

of

nations, which

is

EQUALLY,

and at

ALL

TIMES binding

upon

ALL

states, there is

a

POSITIVE law

of

nations,

consisting

of

THE

VOLUNTARY,

THE CONVENTIONAL and

THE

CUSTOMARY

law. All

of

which ((proceed

from

the will

of

nations,-the

VOLUN-

TARY

from their presumed consent, the

CONVENTIONAL

from an express

consent, and the

CUSTOMARY

from

tacit consent: and as there can

be

no

other mode

of

deducing

any

law

from

the will

of

nations,

there

are

only

these three kinds

of

POSITIVE

LAW

OF

NATIONS.”--Vatte~,

Prelim. Sect.

27.

298

HUGO

GROTIUS

The Greek Fathers have given the name of

ECONOMY,

or

MANAGEMENT

to stratagems of this kind. On this sub-

ject there is an admirable sentiment in Clement of Alex-

andria, who, in speaking of a good man, says that “he

will do many things for the benefit of his neighbour

alone, which he would not otherwise have undertaken.’’

One of these stratagems was practised by the Romans,

who, during the time that they were besieged in the

Capitol, threw some loaves of bread into the enemy’s

camp, that it might not be supposed they were pressed

by famine. The feigned flight, which Joshua ordered

his people to make, to assist him in his designs upon

Ai, affords an instance of a stratagem of the second

kind; the ensuing mischiefs

of

which may be considered,

as some of the effects of lawful war, The

ORIGINAL

DESIGN

of

that pretended flight does not at all affect the

question. The enemy took it for a proof of fear; and

he was at liberty to do

so,

without debamng the other

of his right to march this way, or that, with an acceler-

ated or retarded motion, with

a

shew of courage, or an

appearance of fear, as he might judge

it

most expe-

dient.

History furnishes

us

with innumerable examples

of

deceptions practised with success upon an enemy, by

assuming his arms, ensigns, colours, or uniforms; all

which may be justified upon the same principle. For all

these are actions, which any one may avail himself of

at his pleasure, by departing from the usual course of

his military system.

For

such points of discipline and

system depend upon the will and fancy of the military

commanders in each state, rather than upon any invari-

able custom, equally binding upon all nations.

IX.

Those signs, by which the daily intercourse of life

is

maintained, form

a

subject of more weighty discussion,

with which the consideration of lies or falsehood

is

nec-

essarily interwoven.

All

stratagems of this kind are

so

direct a violation of

all moral principle, both in their nature and conse-

quences, that almost every page of the revealed will of

God declares their condemnation. Solomon describes a

righteous, that is, a good man, as one, who holds every

false word in detestation, deprecating the least appear-

ance of deception: and the Apostle’s injunction accords

with these sentiments, instructing his disciples

not

to

lie

to

one another,

THE

RIGHTS

OF

WAR

AND

PEACE

299

Nor is it in the high standard of perfection alone, which

the divine records present, that such a recommendation

of fair, open, and sincere dealing is to be found.

It

is

the theme of praise with poets and philosophers, and the

angry hero of the Grecian poet declares, that he detests

the man,

as

an infernal being, who utters one thing with

his tongue, while he conceals another in his heart.

But

making some allowance for poetic fiction-we find even

the grave, sober, and discerning, Stagirite describing

falsehood, as a vile, and abominable refuge, and paint-

ing truth as a lovely object, that must extort the warm-

est praise.

These are all great and high authorities in favour of

open dealing. Yet there are names of no less weight,

both among sacred and profane writers, whose opinions

are a vindication of stratagems, when used upon

PROPER

occasions. One writer speaks

of

a case, where stratagem

may be used, even for the benefit of the person,

on

whom it is practised, and adduces the instances of a

physician, who, by means

of

a deception, overcame the

perverseness of a patient, and wrought a salutary cure.

X.

To reconcile such a variety of discordant opinions,

it may be necessary to devise some way of examining

falsehood both in its more extensive, and more confined

acceptation. Nor is speaking an untruth,

UNAWARES,

to

be considered in the nature

of

a lie, but the falsehood,

which comes within the limits here defined, is the

KNOWN

and

DELIBERATE UTTERANCE

of any thing contrary to our

real conviction, intention, and understanding.

Words, or signs, importing the same meaning as words,

are generally taken for conceptions of the mind, yet it is

no lie for any man to utter a falsehood, which he believes

to be true; but the propogation of a truth, which any one

believes to be false,

IN

HIM

amounts to a lie. There must

be in the use of the words therefore an

INTENTION

to de-

ceive, in order to constitute a falsehood in the proper and

common acceptation. Consequently, when any one single

word, or the whole tenour of a discourse, admits of more

significations than one, either by the use of some popular

phrase, some term of art,

or

intelligible figure of speech,

in that case

if

the speaker’s intention correspond with any

one of those meanings, he cannot be charged with using

falsehood, although

it

is

possible that a hearer may take

his words in

a

very different sense. It is true that using

such an ambiguous method

of

speaking

on

ALL

OCCASIONS

300

HUGO

GROTIUS

is

not to be approved of, though there are particular cir-

cumstances under which it may be reconciled with honour

and justice. In communicating knowledge, for instance,

there

is

no

harm in using a metaphor, an irony,

or

an

hyperbole, figures of speech, tending either to adorn

or

to

elucidate a subject. There are cases too, where by this

doubtful mode of expression it may be proper to avoid

an urgent and impertinent question. There is an instance

of the former kind in

our

Saviour’s saying, that

((our

friend Lazarus sleepeth,’) where the disciples understood

him, as

if

he were speaking of the refreshing rest

of

an

ordinary sleep: and when he spoke of restoring the temple,

which he meant his own body, he knew that the Jews ap-

plied what he said to the

MATERIAL

EDIFICE

of the Temple.

In the same manner he frequently addressed the multi-

tudes in parables, which they could not understand by

barely hearing, without that docility of mind, and atten-

tion, which the subject required. Profane history too

furnishes

us

with an example

of

the second kind, in the

conduct of Vitellius, who, as Tacitus informs

‘us,

gave

Narcissus doubtful and ambiguous answers, in order to

avoid his urgent questions

;

as

any explicit declaration

might have been attended with danger.

On

the other hand,

it

may happen to be not only cen-

surable, but even wicked to use such a manner

of

speaking, where either the honour

of

God

or the welfare

of mankind

is

concerned,

or

indeed any matter, which

demands explicit avowals, and open dealing. Thus in

contracts every thing necessary to their fulfillment ought

to be fully disclosed

to

those concerned. There

is

an

apposite expression

of

Cicero, who says, that every de-

gree of deception ought to be banished from all con-

tracts, and there

is

in the old Athenian Laws a proverb,

conformable to this, which says, there must be nothing,

but open dealing in markets.

XI.

In

strictness

of

speech such ambiguity is ex-

cluded from the notion

of

a lie. The common notion of

a lie therefore

is

something spoken, written, marked,

or

intimated, which cannot be understood, but in a sense

different from the real meaning of the speaker. But a

lie, in this stricter acceptation, having some thing unlaw-

ful

in

its

very nature, necessarily requires that a dis-

tinction should be made between

it

and that latitude of

expression already explained. And

if

this acceptation be

properly considered, at least according to the opinion

THE

RIGHTS

OF WAR

AND

PEACE

30

I

prevailing in all nations, it seems, that

no

other explana-

tion of it is necessary to be given, except that it

is

a

violation of the existing and permanent rights of the

person, to whom a discourse, or particular signs, are

directed.

It

is a violation of the rights of ANOTHER; for

it

is evident, that no one can utter a falsehood with

a

view to impose upon himself. The rights here spoken

of

are peculiarly connected with this subject. They imply

that liberty

of

judgment, which men are understood, by

a kind of tacit agreement, to owe to each other in their

mutual intercourse.

For

this, and this alone is that

mu-

tual obligation, which men intended to introduce, as

Soon

as they began to use speech, or other signs of equal

import.

For

without such an obligation the invention of

those signs would have been perfectly nugatory.

It

is

requisite too, that at the time a discourse is made, such

a right

or

obligation should remain in full force,

A right may indeed have existed and afterwards have

become obsolete, owing to the rise or occurrence

of

some new right: which is the case with a debt, that may

be released by acquittance,

or

nonperformance of a con-

dition.

It

is

farther requisite, to constitute a

VIOLATION

OF

THIS

RIGHT,

that the ensuing injury should immedi-

ately affect the

PERSON

ADDRESSED: as in contracts, there

can be

no

injustice, but what affects one

of

the parties,

or persons concerned.

And

perhaps under the head of this right,

it

may not

be improper to assign a place to that

TRUE

SPEAKING,

which Plato, following Simonides, classes with justice,

in order to form a more striking contrast with that false-

hood,

so

often prohibited in Scripture, by the name of

false witness to, or against, our neighbour, and which

Augustin, in defining a lie, calls an intention to deceive.

Cicero also in his offices lays down truth, as the basis of

justice.

The right to a discovery of the whole truth may be re-

linquished by the express consent of the persons, who are

engaged in a treaty: the one may declare his intention

not to disclose certain points, and the other may allow

of

this reserve. There may be also a tacit presumption,

that there are just reasons for such reserve which may

perhaps be necessary out of regard to the rights

of

a

third person: rights which, in the common judgment

of

all sober men, may be sufficient to counterbalance any

obligation in either of the persons engaged

in

the treaty

302

HUGO

GROTIUS

to make a full disclosure of his views and sentiments.-

These principles, duly considered, will supply many in-

ferences to reconcile any seeming contradiction

in

the

opinions, that have been advanced.

XII. In the first place, many things may be said to

madmen, or children, the

LITERAL

MEANING

of which

may not be true, without incurring the guilt of wilful

falsehood.

A

practice which seems to be allowed by the

common sense of all mankind. Quintilian, speaking of

the age of puerility, says,

it

is

a period of life, when

many useful truths may be taught in the dress of fiction.

-Another reason given

is,

that as children and madmen

possess no perfect power of judging, impositions of that

kind can do

no

injury to their rights, in such respects.

XIII. Secondly, when a conversation

is

addressed to

any one, who

is

not thereby deceived, although a third

person, not immediately addressed., may misconceive the

matter, there is no wilful falsehood in the case.

No

WILFUL

FALSEHOOD

towards the person addressed: because

he feels no greater injury from thence, than an intelli-

gent hearer would do from the recital of a fable, or the

use of a metaphor, irony, or hyperbole in speech.

It

cannot be said that an injury is done to the person, who

accidentally and cursorily hears

a

matter, and miscon-

ceives it: for being no way concerned, there is no obli-

gation due to him.

As

he misconceives a thing addressed

to

ANOTHER,

and not to

HIMSELF,

he must take upon his

own head all the consequences

of

the mistake.

For,

properly speaking, the discourse,

WITH

RESPECT

TO

HIM,

is

no discourse, but an inexpressive

sound

that may signify

one thing as well as another.

So

that there was nothing

wrong in the conduct of Cat0 the Censor, who made a

false promise of assistance to his confederates,

nor

in

that of Flaccus, who informed others that Aemilius had

taken the enemy’s city by storm, although the enemy

were deceived by it: Plutarch mentions an instance of

the same kind in the life of Agesilaus. Here

no

corn-

munication was made to the enemy, and the prejudice he

sustained was an accidental thing

no

way unlawful in

itself, either to be wished for

or

procured.

XIV. In the third place, whenever

it

is

certain that

the person,

on

whom a deception

is

practised,

djs-

covers that the intent of

it

was to

do

him a service; he

will not feel

it

as a grievance, nor can

it

come under

the strict denomination

of

a lie or falsehood.

It

will

be

THE

RIGHTS-

OF

WAR

AND

PEACE

303

no

more an

INJURY,

than it would be a

THEFT

in any one,

presuming upon an owner’s consent, to take something

belonging to that owner, in order to convert

it

to his

use in a very beneficial way. For in cases of notorious

certainty, a

PRESUMPTION

may be taken for express con-

sent. But it is evident that

no

man would

CONSENT

to

receive an

INJURY.

From hence it appears, that a person is guilty of

no

treachery, who uses unfounded or fictitious motives to

console a friend in distress, as Arria did to Paetus upon

the death of his son, of which there

is

an account in

Pliny’s Epistles, or in a general, who in a perilous situ-

ation should avail himself of false intelligence, to encour-

age his troops, by which perhaps a victory might be

gained.

It may be observed likewise, that the injury done to

the freedom of judgment is, in such a case, of less con-

sequence, because it

is

but momentary, and the real fact

is soon discovered.

XV.

There is

a

fourth case, which bears a near affin-

ity to those above mentioned, and that is, when any one,

possessing preeminent authority, orders another, in a

subordinate capacity, to execute some device or stratagem,

conducive either to his individual, or to the public wel-

fare. Which Plato seems to have had particularly in view,

in allowing those in authority to avail themselves of pre-

texts, or stratagems. The same writer is very correct in

his notion of not making such a device a characteristic of

that authority, which belongs to the supreme being. For

all such devices, however justifiable they may be in

CER-

TAIN

CASES,

strongly betray that imperfection, which is

inseparable from all humaa systems.

The stratagem, which Joseph employed to obtain fur-

ther discoveries without making himself known to his

brethren, is much commended by Philo, as a mark of

great policy, when, contrary to the convictions and feel-

ings of his own mind, he accused them

of

being spies,

and afterwards charged them with theft.

It

was by a

stratagem of the same kind, that Solomon gave proof

of

his inspired wisdom, when he used the

FICTITIOUS

threat

of dividing the living child in order to discover the real

mother.

XVI. The fifth case, which allows a stratagem to be

practised,

is

that, where

it

may be the

ONLY

means

of

saving the life

of

an innocent person,

of

obtaining

some

304

HUGO

GROTIUS

object of equal importance, or of diverting another from

the perpetration of some horrid design. The heathen

poet has given a beautiful illustration of this in his praises

of

Hypermnestra, whose conduct he calls

((

a splendid strat-

agem, ennobling the virgin to all posterity.

))

XVII.

It

is

evident that many writers of acknowledged

wisdom, and sober judgment, have carried the point

farther than has been done in this treatise, in allowing

the use of false representations to an enemy. In cases,

where public enemies are concerned, they maintain, that

it is lawful to deviate from those strict rules of avowing

and disclosing all our intentions, which they prescribe,

on all ‘other occasions. Such

is

the opinion

of

Plato and

Xenophon among the Greeks, of Philo among the Jews,

and Chrysostom among Christians, It may not perhaps

be amiss to cite, in this place, the message sent by the

men of Jabesh Gilead to the Ammonites, by whom they

were besieged, and also that of the prophet Elisha, and at

the same time to mention the conduct

of

Valerius Lae-

vinus, who boasted of having killed Pyrrhus.

The third, the fourth and fifth observations above made,

may be illustrated from what is said by Eustratus, Arch-

bishop of Nice, “An able and upright counsellor

is

not

obliged to disclose the whole truth: for there may

be

occasions, when it may be necessary for him to recom-

mend the means of deceiving an enemy,

or

to employ

some stratagem towards a friend, where it may turn to

his advantage.))

XVIII. What has been said

of

false speaking must be

understood as applied to affirmative declarations, which

can be prejudicial to no persons, but public enemies:

it

can by no means he taken to include promises. For

promises confer upon the person, to whom they are made,

a peculiar right to claim their full performance. And

this

is

a rule, which must take place, even between pub-

lic enemies; a rule to which existing hostilities are not

allowed to form an exception.

It

is a maxim proper to

be enforced in

TACIT,

as well as in

EXPRESS

agreements:

as when

a

parley or conference

is

demanded, there is

always an

IMPLIED

promise, that both sides shall attend

it with perfect safety. But these are points reserved

for

the discussion of another part

of

this treatise.

XIX.

It

will be necessary to repeat an observation

made before, with respect to oaths, both of the affirma-

tive

and promissory kind, where

it

was maintained that

THE

RIGHTS

OF

WAR

AND

PEACE

305

they exclude all exceptions, all mental reservations to-

wards the person, to whom they are made, being regarded

not merely as a solemn transaction with that individual,

but as

a

stedfast appeal to God. Such an appeal to the

supreme being demands the performance

of

an oath, even

if it gave the individual no right to the same.

At the same time it was observed, that a sworn dec-

laration is not like one

of

any other kind, where an

application of terms different from their usual meaning

may supply the speaker with an excuse for evading their

import. But truth requires every declaration and promise

to be made in terms, which it is supposed that every man

of

integrity and clear judgment will understand, spurn-

ing at the impious thought, that men may be deceived

by oaths, as children are by toys and trifles.

XX.

Some nations and individuals indeed have rejected

the use of those stratagems, which even the law

of

na-

ture allows to be employed as a means

of

self-defence

against an enemy. But they did

so,

not from any opin-

ion of their unlawfulness, but from a noble loftiness

of

mind, and from a confidence in their own strength. Ae-

lian has preserved a saying of Pythagoras, ((that there

are two things, in which man approaches nearest to

God,

in always speaking the truth, and doing good to others.)'

Aristotle, somewhere in his Ethics, calls speaking truth,

the freedom

of

a great soul, and Plutarch says, that false-

hood is the qualification of a slave. But an adherence to

truth, in simplicity of heart, is not the only duty required

of Christians, in this respect, they are commanded to ab-

stain from all vain discourse, as having for their example

him, in whose mouth there was found no guile.

XXI.

With respect to the actions

of

men, there is an.

other rule which may properly come under this head,

and that is, the unlawfulness of urging or persuading

any one to do an unlawful act. For instance, no subject

has a right to lift his hand against his sovereign, to

deliver up

a

town without public authority, or to des-

poil his neighbour

of

his goods.

It

would be unlawful

then to encourage the subject

of

an enemy, as long as

he continues his subject, to

do

any

of

these acts. For

the person, who urges another to do a wicked act, makes

himself a partner in his guilt. Nor can it be received

as a just answer, that urging a subject to the perpetra-

tion of such a deed is nothing more than employing the

lawful means of destroying an enemy.

For

though it

20

306

HUGO

GROTIUS

may be necessary and just to destroy him,

if

possible,

yet that

is

not the way,

in

which

3t should be done.

Augustin has well observed, that

it

makes

no

difference

whether any one

should

commit a crime himself,

or

employ another

as

his instrument.

But employing the spontaneous offers

of

a

deserter

is

not contrary to the laws of war, and

is

a

very

dif-

ferent action from that of seducing a subject from

his

allegiance.

CHAPTER

11.

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-fioperty

of

sub-

jects

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

natura1 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 mle,

(307)

308

HUGO

GROTIUS

that the goods of one person shall not be distrained for

the debts of another, even

if

they be public debts; and

in Justiriian’s Novels, pledges for others are forbidden,

and the cause assigned for it

is,

because

it

is

unreason-

able that one person should incur the debt, and an.other

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.

11.

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 cor-

poreal, 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 com-

mitted.

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

THE

RIGHTS

OF

WAR

AND

PEACE

309

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 mani-

festoes issued on such occasions: the form of which may

be seen in the first book of Livy. where

it

is

said,

((1

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 com-

mencement 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 man-

ner: 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.”

111.

The Athenians had a method somewhat like this

of

seeking redress, which they called

dv8poh$ra,

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

t.0

punish the criminal

acts

of

her subjects:

so

that the subject suffers constraint,

till t$e 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

310

HUGO GROTIUS

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 td seize him, wherever

he was to be found, and that any one, who attempted to

rescue that person, should be deemed an enemy. De-

mosthenes 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 put-

ting to death, the latter of which is an act of justice

'

in

the next place, he has said nothing of bringing the per-

son 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 peo-

ple shall be liable to be seized. But this decree, allow-

ing 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

pro-

tection 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 ac-

cidental death, or that necessarily occasioned by defend-

ing 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

suppli-

ants to those only, who have left their country on ac-

count 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

THE

RIGHTS

OF

WAR

AND

PEACE

31

1

up

the guilty fugitive, would be

upon

an equal footing

as to right.

So

that it was either

USAGE,

which

GRADU-

ALLY

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 en-

forced, 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 re-

fuses to make that surrender.

))

It

is upon the same principle that any power may de-

tain 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 vio-

lation

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 ag-

gressor, 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 be-

yond 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

312

HUGO

GROTIUS

restored to the debtor, Scaevola maintained that

it

cer-

tainly ought to be restored.

There is a difference between the two cases.

For

sub-

jects,

AS

SUCH,

cannot make any violent resistance to the

execution of a sentence, which they may not deem satis-

factory, 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 in-

nocent subjects, owing to the right, which it was sup-

posed 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

THE

RIGHTS

OF

WAR

AND

PEACE

313

those, who are passing through

a

country,

or

only

resid-

ing 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 to-

tally 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 seiz-

ure

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 ap-

pear, 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 stem,

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.

CHAPTER

III.

ON

JUST

OR

SOLEMN

WAR

ACCORDING

TO

THE

LAW

OF

NATIONS ON

DECLARATIONS

OF

WAR.

Solemn war, according to the Law

of

Nations between different

states

"A

people, though engaged in unjust war, to be distinguished

from pirates and robbers-Change in the condition

of

belligerents

-

Formal war

can

be

made by the Sovereign power alone- Dec-

laration

of

war-The Law of Nature, Law

of

Nations, respecting

the same

-

Declaration, conditional, absolute

-

Forms

of

declara-

tion introduced by the civil law-War declared against

a

Sover-

eign includes his subjects, and allies-The reason why allies are

included

-

Declarations, why necessary to establish certain effects

"Whether actual warfare immediately

follows

a declaration, con-

sidered-Whether the violation

of

an Ambassador's rights to be

a

just ground

of

war.

I.

IN

THE

first

book

of

this treatise

it

was observed,

that according to the best writers,

a

war

is

defined to

be just, not

on

account of the

CAUSES

solely, in which

it

originates, nor on account of the

MAGNITUDE

of its objects,

but from certain, peculiar, effects of right, with which

it

is attended.

But to what kind of war such an appellation most duly

belongs will be best understood by considering the defi-

nition, which the Roman Lawyers have given of

a

PUBLIC

or

NATIONAL

enemy. ((Those,

says

Pomponius,

are

PUBLIC

and

LAWFUL

ENEMIES,

with whose

STATE

our own is engaged

in war: but enemies

of

every other description, come

under the denomination of pirates and robbers. With

that opinion Ulpian entirely accords, making an addi-

tional observation, that ((if any one be taken by robbers,

as

he

is

not a lawful prisoner of war, he cannot claim

of his own state the right of postliminium. But

if

he

be taken prisoner by a public enemy

of

the state, being

considered as a prisoner of war, he

is

entitled by the

right of postliminium to be restored to his former con-

dition.

))

These opinions are supported by that

of

Paulus, who

maintains, that persons captured by pirates still continue

free, that

is,

are not to be considered as prisoners, for

whom an exchange may be demanded.

So

that by the

opinion of the Roman Lawyers

it

is

evident, that

no

war

314)

THE RIGHTS

OF

WAR

AND

PEACE

315

is considered to be lawful, regular, and formal, except

that which is begun and carried on by the sovereign

power of each country. Cicero, in his fourth Philippic,

describes ((a public and authorised enemy to be the

person, who possesses the civil and military powers of

the state, who can command the treasury, and the

services of the people in support of his measures, and

who, as occasions offer, has power to conclude treaties

of peace and amity.))

11.

A

state, though it may commit some act of aggres-

sion, or injustice, does not thereby lose its political

capacity, nor can a band of pirates or robbers ever be-

come a state, although they may preserve among them-

selves that degree

of

subordination, which is absolutely

necessary to the subsistence of all society. For with the

latter, the commission

of

crime is the

SOLE

bond

of

union,

whereas the former, though not always free from blame,

but occasionally deviating from the laws of nature, which

in many cases have been in a great measure obliterated,

still regulate their conduct by the treaties, which they

have made, and certain customs that have been estab-

lished, being united among themselves for the mutual

support of lawful rights, and connected with foreign

states by known rules of standing polity.

The Scholiast, upon Thucydides, remarks that the

Greeks, at the time when piracy was reckoned lawful,

forebore committing massacres, or nightly depredations,

and carrying

off

the oxen that were necessary for the

plough. We are informed by Strabo, that other nations

too, who lived by plunder, after they had returned home

from their predatory voyages, sent messages to the

owners, whom they had plundered, to know if they would

redeem the captures at a fair price.

In morals, the whole system often derives its name

from some one of the principal parts, as Cicero remarks,

in the fifth

book

of his

BOUNDS

of

GOOD

and EVIL, and

Galen observes that a mixture is often called by the

name of its chief ingredient.

So

that Cicero is not alto-

gether correct in saying, that a state is not merely

diseased, but entirely destroyed, by the injustice

of

its

component and leading members. For a morbid body is

still a body, and a state, though dreadfully diseased,

is

still a political being, as long as its laws and tribunals

and other necessary parts of its constitution remain, to

administer justice and give redress to foreigners,

no

less

316

HUGO

GROTIUS

than to private subjects in their actions against each

other.

There is a beautiful observation in Dion Chrysostom,

who compares the law of a state, particularly that branch

of it relating to the law of nations, to the body ani-

mated by the

soul,

upon the departure of which the cor-

poreal frame becomes a mass of lifeless clay: in the

same manner political society cannot subsist without the

guiding and controuling principle of law. Aristides, en-

couraging the Rhodians to harmony, observes, that even

under a tyrannical government many

good

laws may be

found.

These are points, which may be cleared up by

ex-

amples. Thus Ulpian maintains that those who are cap-

tured by pirates cannot be considered as prisoners of

war: but

if

captured by the Germans, for instance,

or

any national enemy, they lose their liberty for a time.

But the Germans, as we are informed by Caesar, thought

acts of plunder,

if

committed in a foreign territory, no

disgrace. Tacitus says that the Cattians, a noble race

of people in Germany, and the Garamantians were ad-

dicted

to

the same habits

of

plunder, yet still retained

their rank among states. -Such is the difference between

a national and political body, and a band of men uniting

together

SOLELY

FOR

THE

COMMISSION

OF

CRIMES.

111.

A change may occur not only in the situations

of

individuals, as in those of Jephthah, Arsaces, and Viri--

atus, who, from being leaders of voluntary bands, became

lawful commanders; but the same has also happened

with respect to whole communities, which being origin-

ally composed of nothing but freebooters have, by the

gradual course and changes of time, risen to the rank

and dignity of states.

IV. What has been said with respect to the right of mak-

ing formal and lawful war, being vested in the sovereign

power alone, includes those who have any share in the

sovereign power, as the different communities forming

the States General of many commonwealths. The same

rule

will

hold good of those, who are not

SUBJECTS

of a

.

superior state, but joined to it in confederacy by an un-

equal treaty: innumerable instances of which are to be

found in history. This was the case between the

Ro-

mans and their allies, the Volscians, the Latins, and the

Spaniards: and all whom we read of being engaged in

wars, which were considered as lawful and just.

THE

RIGHTS

OF

WAR

AND

PEACE

317

V.

But to make a war just, according to this meaning,

it must not only be carried on by the sovereign author-

ity on both sides, but

it

must

also

be duly and formally

declared, and declared in such

a

manner, as to

be

known

to

each of the belligerent powers. Cicero, in the first

book of his offices, points out ((the equity of the rules

prescribed by the Roman Law for the declaration of war,

from whence

it

may be concluded that no war

is

regular

or

just, but such as

is

undertaken to compel restitution,

and to procure indemnity for injuries, and that too ac-

companied with a formal declaration.)) Livy also in the

same manner deems an observance of these rules req-

uisite to form the characteristic of a just war. And

describing an incursion of the Acarnanians into Attica,

and their ravaging the country, he says that “those acts

of irritation ended in a declaration of

JUST

and

REGULAR

war on both sides.))

VI.

In order to understand all these points clearly re-

specting the declaration of war, an accurate distinction

must be made between the principles, which are founded

on the law of nature itself, and those, which, though not

derived immediately from that source, are still found to

be just:

it

will be necessary also to examine, what

is

re-

quired by the law of nations towards obtaining,

IN

WAR,

all the consequences, privileges and effects of that law,

and, at the same time, to investigate the consequences

and

rights arising from the peculiar laws and customs

of

particular nations.

To

repel force, or to punish a delinquent, the law of

nature requires no declaration. And, as Thucydides re-

lates, Sthenelaidas, one of the Ephori, maintains that

((where we have been injured, not by

WORDS,

but by

AC-

TIONS,

the matter cannot be decided by

WORDS

and

FORMS.))

And Aelian, after Plato, observes that

it

is not the dec-

laration

of

the Herald, but the voice and law of nature,

which proclaim war, undertaken to repel force. Hence

Dion Chrysostom, in addressing the Nicomedians,

says that many wars are begun without any declara-

tion.

Upon the same ground Livy condemns the conduct

of

Menippus, a general belonging to Antiochus for having

killed some Roman citizens before any declaration of

war had been made, or even before a sword had been

drawn, or a drop of blood spilt, to shew that hostilities

were intended.

By

this objection he

proves

that either

a

318

HUGO

GROTIUS

formal

declaration, or some act indicative

of

hostilities

was deemed requisite to justify actual warfare.

Neither,

if

we follow the law

of

nature,

is

there any

more occasion for notice or declaration, where an owner

intends to lay hands upon

HIS

OWN PROPERTY.

But when-

ever

one

thing

is

taken in return for another, or the

property

of

a debtor

is

seized for the recovery of a debt,

and, especially, if any one intends seizing the property

of those, who are subjects to the debtor,

a

formal de-

mand must be made, as a proof that recourse to such

security

is

the only means left of obtaining redress and

satisfaction. Such a demand is necessary because that

is

Dot a

PRIMARY

and

ORIGINAL

right, but a

SECONDARY

right,

SUBSTITUTED

in the place

of

the primary and

original, by the artificial rules

of

civil law.

In the same manner to justify an attack upon a sov-

ereign power

for

the aggressions and debts

of

its

sub-

jects, a previous remonstrance, and a proper demand of

justice must be made to that power. For it is only by

refusing to punish the guilty,

or

to grant indemnity to

the injured, that states

or

sovereigns can be implicated

in the misconduct. of their subjects.* But even where

the law of nature does not directly prescribe that such

a remonstrance or demand should be made, yet the com-

mon

principles of humanity and equity will recommend

thet use of any means, that may prevent recourse to

the calamities of war. The commandment given by God

to the Hebrews, to send a message of peace to any state

or city, before they began an intended attack, was de-

signed as a special command to that people, yet some

have confounded it with the general law of nations.

For

it was not

ANY

kind of peace that was meant by that in-

junction, but only such a peace as imposed terms of

SUBJECTION

and

TRIBUTE.

We are informed by Xenophon,

that when Cyrus went into the country of the Armeni-

ans, he sent messengers to the king, to demand the tribute

and number of troops, which had been stipulated by treaty.

But to obtain the peculiar rights and consequences re-

sulting from the law of nations, a declaration

of

,war by

one

of

the parties,

at

least,

if

not by both,

is

absolutely

requisite in all cases.

VII. Those declarations are either conditional or abso-

lute.

A

conditional declaration

is

that which

is

coupled

*See

b.

ii.

ch.

xxi.

sect.

2.

of

this

treatise

t

See

b.

ii

ch.

xxiii.

sect.

7.

ib&.

THE

RIGHTS

OF

WAR

AND

PEACE 319

with a demand of restitution or redress. Under the name

of restitution, the

FECIAL

LAW of Rome, that is the LAW

RESPECTING

DECLARATIONS

OF

WAR,

comprehended not only

the claims, which

OWNERSHIP

established, but the prosecu-

tion of

EVERY

right arising from criminal or civil causes.

Hence the declarations were couched in terms, requir-

ing restoration, satisfaction, or surrender. Here, by the

term, surrender, the party appealed to is understood to

have the option either

of

punishing the offender, him-

self, or delivering him up to the aggrieved person. This

manner of demanding restitution

is,

according to the

testimony of Pliny, called

CLARIGATION,

that is, a

LOUD

and

FORMAL DEMAND.

Livy gives

us

an example

of

a con-

ditional and qualified declaration, wherein the aggrieved

power denounces ((a determined resolution to prosecute

her rights with the utmost violence, if the agressor will

not make reparation and atonement for the injury he has

done.)) Tacitus also relates the substance of a dispatch

sent to Caecina by Germanicus, wherein he declares, that

((if the ringleaders of the mutinous and rebellious legions

are not immediately punished, he will advance with his

army, and put the whole to the sword.))

An

ABSOLUTE

declaration of war is issued, where any

power has already begun hostilities, or committed acts

which call for exemplary punishment. Sometimes indeed

a conditional, is foliowed by an absolute war, though

in

such a case the latter is not actually necessary, but only

a confirmation of the former. This gave rise to the

form,

which says, ((an appeal is hereby made against such a

people, as unjust and refusing to grant redress.

))

There

is another form also purporting, that “the principal

herald of the Roman citizens has made known to the

principal herald of the ancient Latins, and to the Latin

people, that redress is demanded of them by just and

lawful war, on account of all the disputes which they

have refused to settle, and the indemnities which they

have been bound to grant, and have refused; and that

this is the only means remaining to recover all that has

been unjustly detained.)) There is also a third mode of

declaration, which runs in the following tenour; “Since

the ancient people

of

the Latins have committed aggres-

sions against the people of Rome, the people of Rome,

with the advice and consent of the senate, declare war

against them, and .in the name of the senate

and

people

of

Rome their purpose is thus published.

”

320

HUGO

GROTIUS

But that in case of

REXEWED

wars such a declaration

is

not absolutely necessary, appears from the circumstance

of its being made in due form at the nearest garrison,

and not

PERSONALLY

to the offender himself, according to

the answer given by the heralds, when they were con-

sulted in the case of Philip of Macedon, and afterwards

respecting Antiochus. Whereas a declaration far the

FIRST

time should be made to the enemy himself. Indeed in

the war against Pyrrhus the declaration was made to

one

of

his soldiers, in the Flaminian Circus, where, as

Servius observes in his notes on the sixth book of the

Aeneid, he was commanded to purchase a piece of ground,

as a handle for dispute.

A

proof also that

IN

SOME

CASES

a declaration is superfluous may be taken from the cir-

cumstance that war is frequently declared by

BOTH

SIDES,

which was done by the Corcyraeans and Corinthians in

the Peloponnesian war, though a declaration by one

of

the parties would have been sufficient.

VIII.

As

to the use

of

the caduceum,

or

staff with

the figure of two snakes twisted around it, which am-

bassadors carried, when they sued for peace, it was a

ceremony peculiar to the

GREEKS,

and not derived from

the

GENERAL

law

of

nations. The

ROMANS

in the same

manner had particular customs, such as using vervain in

forming alliances, throwing a bloody spear, as a declar-

ation of war, renouncing all former friendship and

alliance

at

the expiration of thirty days, after satisfaction

had been demanded and refused, and again throwing

another spear. None

of

these

PECULIAR

customs ought

to be confounded with the

GENERAL

law of nations.

For

Arnobius informs

us,

that in his time many of them had

fallen into disuse, and even in the time

of

Varro some

of

them were omitted. The third Punic war indeed was

not declared till the moment of its actual commencement

IX.

A

declaration of war, made against a sovereign,

includes not only his own subjects, but all who are likely

to become his associates, as thereby they make them-

selves accessories in the war. And this is what the

modem lawyers mean, when they say that, in bidding

defiance to a Prince, we bid defiance to

all

his associates.

For they give the name

of

defiance to a declaration

of

war. By which is understood the war carried on with

the power against whom it has been declared.

Thus

upon

war being declared against Antiochus, there was no

occasion

for

a separate declaration against the Aetolians,

THE

RIGHTS

OF

WAR

AND

PEACE

321

who had openly joined Antiochus. For, as the heralds

in

their answer justly observed, the Aetolians had, by that

act voluntarily brought war upon themselves.

X.

But if after the conclusion of such a war

it

should

be deemed expedient to attack any other nation or king for

having furnished supplies and assistance towards that

war, a new declaration of war

will

be necessary, For

that nation or king is then to be considered, not as

an accessory, but as a principal enemy. And therefore

it was with reason said, that the war of Manlius against

the Galatians, and that

of

Caesar against Ariovistus, were

not just wars according to the law of nations, For war

was made upon them not as accessories, but as princi-

pals.

So

that for this purpose, as the law

of

nations

would have required a declaration, in the same manner

the Roman law would have required a new order of the

Senate.

For

on

the motion being made for the war with An.

tiochus, the question was also put, whether

it

should not

at the same time be made with his adherents. The same

rule also being observed against King Perseus,

it

must

be understood, as including the adherents during all the

time that war with those princes continued; and impli-

cating all, who in reality gave them support.

XI.

The reason why a declaration is necessary to con-

stitute what is deemed, according to the law of nations,

a just war, is not that which some writers assign. For

they allege that

it

is

to prevent every appearance

of

clandestine and treacherous dealing: an openness, which

may be dignified with the name of magnanimity, rather

than entitled a matter

of

right.

On

this point, we are

informed that some nations have gone

so

far, as to settle

and make known the very time and place of a general

engagement.

But waving all conjecture, a more satisfactory reason

may be found

in

the necessity that it should be known

for

CERTAIN,

that a war is not the

PRIVATE

undertaking

of bold

ADVENTURERS,

but made and sanctioned by the

PUBLIC

and

SOVEREIGN

authority

on

both sides;

so

that

it

is attended with the effects of binding all the subjects

of

the respective states;-and

it

is accompanied also with

other consequences and rights, which do not belong to

wars against pirates, and to civil wars.

XII.

There

is

much truth indeed in the observations,

which some have made, and which they have produced

PI

322

HUGO

GROTIUS

examples to confirm, that even

in

wars

of

this kind all

captures become the lawful prize

of

the captors.

Yet this is only partially true, and that too, according

to the law of nature, and not according to the voluntary

law of nations. For the latter only makes provision to

secure the rights of nations, as

WHOLE

communities, and

not

of those, who, as in civil wars, form but

ONE

PART

of a

nation.

The same writers are mistaken too

in

the supposit.ion

that defensive wars require

no

declaration. For it is noless

necessary to shew by way of vindication that

it

is a de-

fensive war, and at the same time by public declaration

to give

it

the character of a national and lawful war,

in

order to establish those rights and consequences, that

have been already mentioned, and which will hereafter be

more fully explained.

XIII.

They maintain another position also, which is by

no

means true, and that

is,

that a power ought not

IMMEDIATELY

to follow up a declaration of war with actual

hostilities,

as

Cyrus

did

to

the Armenians, and the

Romans to the Carthaginians. For the law of nations

requires the intervention of

no

DEFINITE

time between the

declaration and the commencement of war.

There may indeed be some cases, where natural justice

will render such a delay proper. Thus, for instance,

where reparation for injury,

or

the punishment of aggres-

sors

is demanded, it is but reasonable to wait till it can be

known, whether the just demand will be complied with

or rejected.

XIV.

In

order to establish the same consequences, a

declaration

will

be equally necessary too, where the rights

of Ambassadors have been violated. Yet

it

will be suf-

ficient for it to be made in the manner, in which it may

be done with the greatest safety.

As

in many other

matters, in places which afford

no

security, satisfaction

is

demanded by denunciation or summons.

CHAPTER

IV.

ON

THE

RIGHT

OF

KILLING

AN

ENEMY

IN

LAWFUL

WAR,

AND

COMMITTING OTHER ACTS

OF

HOSTILITY.

General explanation

of

the effects

of

formal war-Distinction between

lawful and innocent impunity- Merit

of

the latter-Examples

added to explain it- General effects

of

former war considered

with respect to lawful impunity-The reason of their introduction

-Historical testimonies

-

By

this right all persons,

found

within

an

enemy’s territory, objects of hostility-Also

all

going thither

before the war-The subjects

of

an enemy liable to be seized every-

where, except protected by the laws of

a

neutral teritory-Case

of

women and children-Case

of

prisouers-

Of

those whose voluntary

offer of surrender is rejected- Unconditional surrender- Retaliation

-

Obstinate defence -Hostages.

I.

SERVIUS

in his comment on the passage of Virgil.

where that poet says that war ((will authorise mutual

acts

of

destruction and rapine,)) in tracing the fecial or

herald’s law to Ancus Martius, and even beyond him to

a

still more remote period, remarks that,

((if

ever the

persons or property of subjects, belonging to the Roman

state, were seized and carried

off

by any other nation,

the principal Herald, or King at arms went out with

the sacred ministers, who presided at the making of

solemn treaties, and proceeding to the verge

of

the ter-

ritories of the offending nation, declared with a loud voice

the cause of the war, and the refusal of that nation

either to restore what had been seized, or to deliver up

the aggressors to justice. After this he threw a spear

to indicate that war and all its consequences were from

that moment begun.”

The commentator had previously observed that the

ancients gave the name of rapine to every act of hostility

even where there was no act

of

plunder committed;

and they likewise called every kind

of

restitution a

satisfaction.

By

this explanation we learn that whenever war

is

pro-

claimed between two states or sovereigns, it

is

accom-

panied with certain rights or consequences, which

do

not

PECESSARTLY

belong to war itself. And this

is

perfectly

(323)

324

HUGO

GROTIUS

conformable to the examples from the Roman Lawyers,

which have been before produced.

11.

But

it

will be proper to consider how far the law-

,

fulness, which Virgil speaks of, extends. For the term

lawful sometimes implies whatever is just and pious in

all respects, although the pursuit of a different course

may perhaps be more laudable: according to the expres-

sion of

St.

Paul, who says, ((all things are lawful to me,

but all things are not expedient.

))

Ulpian is speaking of

a seller, who, at the expiration of a certain period, is not

answerable for the safety of goods, which a buyer has

neglected to take away, says he, will yet think himself

bound in

EQUITY

to preserve them with all imaginable

care. On some occasions when

it

is said, that men may

LAWFULLY

do

a thing, the expression only means that

doing such act will not subject them to human and legal

penalties, but

it

by no means indicates that the action is

strictly conformable to the rule of religion and morality.

Thus among the Lacedaemonians and Egyptians stealing

was allowed: an indulgence that by no means took away

the

GUILT

of theft.

Cicero in the fifth of his Tusculan questions, speaking

of Cinna, beautifully and justly points out this abuse

of

the word,

LAWFUL.

((He seems to me,

says

he,

a wretched

man indeed for having done those acts, and for having

been in a situation, where they might be thought lawful.

It

can never be lawful for any man to

do

wrong: but we

fall into a great mistake in the use of that word: for we

consider a thing to be lawful, which any one may

do

with

impunity.” This

is

the meaning, in which the term is

generally understood, as the same orator, in addressing

the judges in behalf of Rabirius Posthumus, observes,

((it

behoves you to consider, what is becoming

your

character,

and not what the rigour of the law allows you to inflict.

For

if

you consult the full extent of your authority,

you

may make away with any citizen you please.))

In the same manner legislators, as it was proved in a

former book of this treatise, are not accountable, in their

legislative capacity, to any human tribunal, for the laws,

which they make, yet they cannot, in a moral point of

view, avail themselves of this transcendent power to enact

a

thing that is evidently unjust. In this sense we often

meet with

a

distinction made between what

is

proper or

right, and what is lawful.

Thus

Cicero, in his speech for

Milo,

makes the

LAW

OF

NATURE

the

standard

of

what

is

THE

RIGHTS

OF

WAR

AND

PEACE

325

RIGHT,

and

LEGAL

AUTHORITY,

the standard of what is

lawful.

111.

Thus qualified, the annoyance of an enemy, either

in his person

or

property, is lawful. This right extends

not only to the power engaged in a

just

war, and who

in

her hostilities confines herself within the practice

established by the law

of

nature, but each side without

distinction has a right to employ the same means of

annoyance.

So

that any one taken in arms, even

in

another’s territory, cannot be treated as a robber, male-

factor, or murderer, nor can even that neutral power, in

whose territory he is taken, treat him as an enemy, for

being found in arms.

IV. This principle was established by nations to pre-

vent others from interfering in their disputes, or giving

the law to them respecting the rights of war. Besides,

if

this were not the case, neutral powers would frequently

be involved in the wars of others. A reason which the

people of Marseilles urged in the dispute between Caesar

and Pompey. They alleged that they had neither suf-

ficient judgment to determine on which side justice lay,

nor, if they could determine, had they strength to give

effect to their decisions.

A spectator indeed is but

ill

qualified to judge, how

far, even in the most just war, self-defence, the attain-

ment of indemnity, or the punishment

of

an aggressor,

may be carried. These are points, which, on many, if

not most, occasions must be left to the conscience and

discretion of the belligerents themselves: a mode far

preferable to that of appealing to the mediation, and

decision of disinterested and neutral powers.

Livy

has

given an address

of

the Achaeans to the senate, in which

they ask, “how their availing themselves of the rights of

war can ever be fairly called in question,

or

made a

subject of discussion

?

))

Besides the impunity attending certain actllons done in

war, the acquisition of territory by the right of conquest

is

another topic of consideration, which will hereafter be

examined.

V.

The lawfulness of injuring

or

destroying the person

of a public enemy is supported by the testimony

of

many

of the best writers, both poets, moralists, and historians.

In one of the tragedies

of

Euripides, there is a proverb,

which says, that ((to kill a public enemy,

or

an enemy

in war is no murder.)) Therefore the custom of the

326

HUGO

GROTIUS

ancient Greeks, which rendered

it

unlawful and impious

to use the same bath,

or

to partake of the same festivi-

ties and sacred rites with a person who had killed another

in time of peace, did not extend to any one who had

killed a public enemy in war. Killing an enemy is in-

deed everywhere called a right of war.

((

The rights of

war,

says

MarceZZus

in

Livy,

support me in all that

I

have

done against the enemy.” And the same historian gives

the address of Alcon to the Saguntines, where he says,

((You

ought to bear these hardships, rather than suffer

your

own bodies to be mangled, and your wives and

children to be seized and dragged away before your eyes.))

Cicero in his speech in defence

of

Marcellus passes a high

encomium upon the clemency

of

Caesar, who, ((by the

laws

of

war and the rights of victory, might have put to

death all, whom he had spared and protected.” And

Caesar observes to the Eduans, that ((it was an act of

kindness in

HIM.

to spare those whom the laws of war

would have authorised him to put to death.

))

But the rights

of

war,

for

which these writers plead,

could not

PERFECTLY

JUSTIFY

the putting prisoners to death,

but could only grant

IMPUNITY

to those who availed them-

selves

of

the barbarous custom. There is a wide differ-

ence however between actions like these, and destroying

an

enemy by proper means of hostility.

For,

as Tacitus

says, ((in the leisure

hours

of peace the merits and de-

merits of every case may be examined and weighed, but,

in the tumult and confusion of war, the innocent must

fall with the guilty

))

:

and the same writer, in another

place, observes, that

((

there are many actions, which the

principles of humanity cannot

ENTIRELY

approve, but

which the policy

of

war requires.)) And

it

is in this,

and no other sense that Lucan has said, “the complexion

of right may be assigned to what

is

wrong.

VI.

This right

of

making lawful what is done

in

war

is of great extent.

For

in the first place

it

comprises,

in

the number of enemies, not only those who actually

bear arms,

or

who are immediately subjects of the bel-

ligerent power, but even all who are within the hostile

territories, as appears from the form given by Livy, who

says, that ((war is declared against the sovereign, and all

within his jurisdiction.”

For

which a very good reason

may be assigned; because danger is to be apprehended

even from

THEM,

which, in a continued and regular war,

establishes the right now under discussion.

THE

RIGHTS

OF WAR

AND

PEACE

327

Reprisals do not come exactly under the same rule.

For like taxes, they were introduced for the discharge

of public debts, for no part of which temporary residents,

or

foreigners are answerable. Therefore Baldus is right

in his observation, that, after war is actually begun,

much greater latitude is allowed, than in the bare right

of

making reprisals.

So

that what is said

of

foreigners,

who enter into an enemy’s country, and reside there,

after war is avowedly declared and begun, is undoubt-

edly true.

VII.

But persons, who had gone to reside there before

the war was begun, seem by the law of nations to be

included in the number of enemies, unless within a

reasonable time they chuse to withdraw.

So

that the

Corcyraeans, when going to besiege Epidamnus, gave

leave to all strangers to withdraw, denouncing that they

would otherwise be treated as enemies.

VIII.

But the persons

of

natural-born subjects, who owe

permanent allegiance to

a

hostile power may, according

to the law

of

nations, be attacked, or seized, wherever

they are found. For whenever, as it was said before,

war is declared against any power, it is at the same time

declared against all the subjects of that power. And the

law of nations authorises

us

to attack an enemy in every

place: An opinion supported by most legal authorities:

thus Marcian says “that deserters may be killed in the

same manner as enemies, wherever they are found.”

They- may be lawfully killed there, or in their own

country, in the enemy’s country, in a country belonging

to

no

one, or on the sea. But as to the unlawfulness

of

killing, or violently molesting them in a neutral terri-

tory, this protection does not result from any personal

privileges

of

THEIR

OWN,

but from the rights of the

SOV-

EREIGN

of

that country. For all civil societies had an un-

doubted right to establish it as a standing maxim that

no violence should be offered to any person within their

territories, nor any punishment inflicted but by due

process of law. For where tribunals retain their author-

ity in

full

vigour, to try the merits of every offence,

and, after impartial inquiry, to acquit the innocent,

or

condemn the guilty, the power of the sword must be

re-

strained from inflicting promiscuous death.

Livy mentions the circumstance of seven Carthaginian

gallies riding at anchor in a port belonging to Syphax,

who

was

then at peace with the Carthaginians and

32%

HUGO GROTIUS

Romans. Scipio arrived at that time, with two gallies,

which might have been attacked and sunk by the Car-

thaginians, before they could enter the port: a brisk

wind rising carried them in, before the Carthaginians

could weigh anchor; but out of respect to the king’s au-

thority they durst not attack the Romans in his harbour,

IX.

But to return to the subject, which is, to decide

how far the power of lawfully destroying an enemy, and

all that belong to him, extends. An extent of which we

may form some conception from the very circumstance,

that even women and children are frequently subject to

the calamities and disasters of war. There is no occa-

sion to allege in this place, as an example, the conduct

of the Hebrews, who slew the women and children

of

the Heshbonites, and who were commanded to execute

vengeance upon the Canaanites, and upon all, who were

involved in the same guilt. Those examples, where God

MANIFESTLY

interposes his commands, are not to be drawn

into a precedent for authorising actions of the

SAME

kind

on

DIFFERENT

occasions. For the supreme and disposing

power of God can never properly be compared with that,

which men are allowed to exercise over each other. The

Psalmist’s expression of the Babylonian children being

dashed against the stones is a much stronger proof of

the custom commonly prevailing among nations, in the

use

of

victory, to which the language of Homer bears a

close resemblance, where the poet says, that ((in the

cruel rage of war, even the bodies of infant-children were

dashed against the ground.)’ Thucydides relates, that

when Mycalessus was captured by the Thracians, they

put all, even women and children to the sword. Arrian

relates the same of the Macedonians, when they took the

city

of

Thebes. And Germanicus Caesar, according to

the account of Tacitus, laid waste whole cantons of the

Marsians, a people of Germany, with fire and sword, to

which the historian adds, ((without sparing either age

or

sex.’) The Jewish women and children too were exposed

by Titus, to be torn to pieces by wild beasts at a pub-

lic spectacle. Yet neither of those generals were thought

deficient in humanity,

so

much had custom recohciled

,

the minds of men to this barbarous usage.

So

that the

massacre

of

the aged, like that of Priam by Pyrrhus, is

no

way, surprising.

X.

The right

of

putting prisoners of war to death, was

so

generally received a maxim, that the Roman Satirist

THE

RIGHTS

OF

WAR AND

PEACE

329

has founded an adage upon

it,

and said, “that when you

can sell a prisoner for a slave, it would be absurd to

kill him.” Words which imply the full power

of

doing

so,

if

the captor thought proper. The commentators in-

deed assign the act

of

saving, as the derivation of the

Latin word,

servus,

a slave. Thus Thucydides speaks

of

the prisoners taken at Epidamnus, and killed by the

Corcyraeans, and Hannibal

is

reported to have massacred

five thousand prisoners at once. Nor was this power

limited by the law of nations to any particular time,

though

it

was controuled by greater restrictions in some

places, than in others.

XI. Besides many examples occur

of

suppliants, being

killed. Both ancient -poets and historians relate such

actions, as ordinary practices, authorised by the laws

of

war. Augustin commends the Goths for sparing sup-

pliants, who had fled to churches for refuge, and adds by

way

of

comment, that “they deemed it unlawful to avail

themselves

of

the power, which had usually been allowed

by the laws of war.”

Nor did those who offered to surrender always experi-

ence the lenity and mercy, which they sought thereby.

Tacitus rehtes, that when the city of Uspes was invested,

the besieged sent a deputation with offers of an immedi-

ate surrender, and

of

no less than ten thousand slaves,

on

condition that the free-born should remain unhurt.

The terms were rejected-A proof that such a rejection

was thought conformable to the rights

of

war.

XII.

But even after an unconditional surrender, we find

that those, who had capitulated were sometimes put to

the sword. In this manner the princes of Pometia were

treated by the Romans, the Samnites by Sylla, the

Numidians and Vercingetorix by Caesar.

It

was almost a

standing practice with the Romans to crown their tri-

umphs with the death

of

an enemy’s generals, whether

made p&oners actually in the field, or by capitulation,

Cicero notices this custom in his Gfth speech against

Verres.

Livy

may be consulted on this point in many

parts of his history, particularly in the twenty-eighth

book

:

and Tacitus also in the 12th book of his Annals.

The latter writer, in the first book of his

HISTORY,

re-

lates that Galba ordered every tenth man

of

those,

whom he had, upon their earnest supplication, admitted

to surrender, to be beheaded: and Caecina, after the

capitulation of Aventicum, punished Julius Alpinus, one

330

HUGO

GROTIUS

of the leading men, with death, as a chief promoter of

the war, leaving the rest to the mercy or cruelty of

Vitellius.

XIII.

Historians sometimes account for this right of

putting enemies to death, especially prisoners, or suppli-

ants, either on the score of retaliation, or for obstinate

resistance. These may sometimes be the real, but cannot

be the

JUSTIFIABLE

motives of such proceedings. For the

law of retaliation, strictly and properly

so

called, must be

directly enforced upon the person of the delinquent him-

self. Whereas, in war, what is called retaliation fre-

quently redounds to the ruin of those, who are no way

implicated in the blame. The general consequences of

war are thus described by Diodorus Siculus,

((

they could

not be ignorant,

says

he,

having learnt from experience,

that all being involved in the common fortune

of

war,

they are liable on both sides in defeat, to suffer the same

calamities, which they themselves would have inflicted

upon the conquered party.”

But as the Neapolitans reply to Belisarius, in Procopius,

no one can he thought deserving of punishment for a

resolute adherence to the side on which he is engaged,

especially when actuated by natural and just motives in

his choice of that side.

So

far from incurring guilt by

such a resolution, it is on the other hand more criminal

for any one to desert his post: and

so

it was judged by

the military laws

of

ancient Rome. Livy says, it was a

capital offence, for which no fear of danger could be

pleaded as an excuse.

So

that in the rigid application of

this right,

OWING

TO

ITS

IMPORTANCE,

every one

is

left to

use his own discretion, and there may be times and

circumstances, in which the law

of

nations will justify its

full exertion.

XIV.

The same right was exercised upon hostages also,

not only upon those who had bound themselves, as it

were, by convention, but even upon those, who had been

delivered up by others. Two hundred and fifty hostages

were once massacred by the Thessalians, and the Volsci

Aurunci to the amount of three hundred by the Romans.

It

is to be observed that children were sometimes given,

as hostages, which we find was done by the Parthians,

and by Simon, who was one

of

the Maccabees. And in

the times of Porsena it was usual to deliver women, as

hostages: a practice, which, as Tacitus informs

us,

was

followed by the Germans.

THE

RIGHTS

OF

WAR AND PEACE

331

XV.

As

the law of nations permits many things, in the

manner above explained, which are not permitted by the

law of nature,

so

it

prohibits some things which the law

of

nature allows. Thus spies,

if

discovered and taken,

are usually treated with the utmost severity, Yet there

is no doubt, but the law of nations allows any one' to

send spies; as Moses did to the land of promise, of whom

Joshua was one.

Persons

of

that description may sometimes be

LAWFULLY

employed by those, who are engaged in an

EVIDENTLY

just war. Others too, who have not such evident proofs

of the justice

of

their cause, may plead the rights of war

as a vindication for employing such persons.

But

if

any are to be found, whc disdain to avail them-

selves of such

a

privilege, or opportunity, no argument

either

FOR,

or

AGAINST

the

LAWFULNESS

of employing spies

can be drawn from their conduct, which proceeds rather

from a nobleness of mind, and

a

confidence in open

strength, than from any decided opinion upon the subject.

CHAPTER

V.

ON

THE

RIGHT

TO

LAY

WASTE

AN

ENEMY'S

COUNTRY,

AND

CARRY

OFF

HIS

EFFECTS.

An

enemy's property may be wasted and plundered-Things deemed

sacred, how far exempted

-

Stratagem, how

far

permitted.

1

I.

CICERO,

in the third book of his offices, has said

that there is nothing repugnant to the

LAW

OF

NATURE

in spoiling the effects of an enemy, whom by the same

law we are authorized to kill. Wherefore it is not

sur-

prising that the same things should be allowed by the

LAW

OF

NATIONS.

Polybius, for this reasog, in the fifth

book

of his history, maintains, that the laws of war

authorise the destruction of an enemy's forts, harbours,

and fleets, the seizure of his men,

or

carrying off the

produce of his country, and every thing of that descrip-

tion. And we find from Livy that there are certain

rights

of

war, by which an enemy must expect to suffer

the calamities, which he is allowed to inflict, such as the

burning of corn, the destruction of houses, and the plunder

of

men and cattle. Almost every page of history abounds

in examples of entire cities being destroyed, walls levelled

to the ground, and even whole countries wasted by fire

and sword. Even in cases

of

surrender, towns have some-

times been destroyed, while the inhabitants were spared

-an example of which is given by Tacitus, in the taking

of

Artaxata by the Romans; the inhabitants opened their

gates and were spared, but the town was devoted to the

flames.

11.

Nor

does the law of nations, in itself, considered

apart from other duties, which will be mentioned herc-

after, make any exemption in favour of things deemed

sacred.

For

when places &re taken by an enemy, all

things without exception, whether sacred

or

not, must

fall a sacrifice.

For

which it is assigned as a reason,

that things which are called sacred, are not actually ex-

cepted

from

all human uses,

but

are a kind of public

property, called sacred indeed from the general purposes,

to

which they are more immediately devoted. And as a

proof of

this,

it

is

usual, when one nation surrenders to

(332)

THE

RIGHTS

OF

WAR

AND

PEACE

333

another state or sovereign, to surrender, along with other

rights, every thing of a sacred kind, as appears by the

form .cited from Livy in

a

former part of this treatise.

And therefore Ulpian says, that the public have a

property in sacred things. Conformably to which Tacitus

says, that ((in the Italian towns all the temples, the im-

ages of the

Gods,

and every thing connected with reli-

gion

belonged

of

right to the Roman people.)) For this

reason a nation, as the Lawyers, Paulus and Venuleius

openly maintain, may, under a change of circumstances,

convert to secular uses things, that have before been

consecrated: and an overruling necessity may justify the

hand, which has formerly consecrated the object in em-

ploying it as one

of

the resources and instruments of

war. A thing which Pericles once did under a pledge

of making restitution: Mago did the same in Spain, and

the Romans in the Mithridatic war. We read of the

same actions done by Sylla, Pompey, Caesar, and others.

Plutarch in his life of Tiberius Gracchus

says

that noth-

ing is

so

sacred and inviolable, as divine offerings: yet

no one can hinder these from being removed or applied

to other purposes at the pleasure of the state. Thus

Livy mentions the ornaments of the temples, which Mar-

cellus brought from Syracuse to Rome,

as

acquisitions

made by the right

of

war.

111.

What has been said

of

sacred things and edifices

applies also to another kind of solemn fabrics, and those

are sepulchral structures, which may be considered not

merely as repositories of the dead, but as monuments

belonging to the living, whether families or states. For

this reason Pomponius has said, that these, like all other

sacred places, when taken by an enemy may lose their

inviolability, and Paulus is

of

the same opinion, observ-

ing that we are not restrained by any religious scruple

from using the sepulchres

of

an enemy: for the stones,

taken from thence, may be applied to any other purpose.

But this right does not authorise wanton insult, offered

to the ashes of the dead. For that would be a violation

of the solemn rights of burial, which, as

it

was shewn

in a preceding part of this work, were introduced

and

established by the law of nations.

IV. Here

it

may be briefly observed, that, according

to the law

of

nations any thing, belonging to an enemy,

may be taken not only by open force,

but

by stratagem,

provided

it

be

unaccompanied with treachery.

CHAPTER VI.

ON

THE ACQUISITION

OF

TERRITORY

AND

PROPERTY

BY

RIGHT

OF

CONQUEST.

Law

of

nature with respect to the acquisition

of

things captured

in

war- Law

of

nations

on

the same subject

“In

what cases the

law

of

nations confirms the capture

of

things moveable- Lands

acquired

by

conquest-Lawful prize cannot be made

of

things not

belonging to an enemy-Goods found

on

board an enemy’s ships

-Law

of

nations authorises the making prize

of

,what an enemy

has taken from others in war-Sovereigns may acquire possession

and dominion through those employed by them

-

Acts

of

hostility

divided into public and private-Territory may be acquired by

a

sovereign

or

people -Private and public captures explained

-

Dis-

cretionary power

of

generals in this respect-Prizes belong either

to the treasury,

or

to those, who take them- Places sometimes

given up

to

be plundered by the soldiery -Different methods

of

dividing spoils- Peculation,

a

portion

of

the spoils sometimes given

to allies, who have supported the war- Sometimes given

up

to

subjects- This illustrated by examples- Utility

of

the above prac-

tices-Whether things taken without the territory

of

either

of

the

belligerent powers can be acquired by the rights

of

war-In what

manner this right peculiarly applies to solemn wars.

I.

BESIDES

the impunity allowed to men for certain ac-

tions, which have been mentioned before, there are other

consequences and effects, peculiar to the law of nations,

attending solemn and formal war. The law

of

nature

indeed authorises

our

making such acquisitions in a just

war, as may be deemed an equivalent for a debt, which

cannot otherwise be obtained, or as may inflict a

loss

upon the aggressor, provided it be within the bounds

of

reasonable punishment. According to this right,

as

we

find in the fourteenth chapter of Genesis, Abraham de-

voted to

God

a tenth part of the spoils, which he had

taken from the five kings: and the inspired writer in the

seventh chapter

of

his Epistle to the Hebrews gives the

same interpretation of this passage. In the same manner

the Greeks too, the Carthaginians. and the Romans, de-

voted a tenth portion of the spoils of war to their deities.

Jacob, in making a particular bequest to Joseph above

his brethren, says,

((I

have given to thee one portion

above thy brethren, which

I

took out

of

the hand

of

the

Amorite with my sword,

and

with

my

bow,”

In

this

(334)

THE

RIGHTS

OF

WAR

AND

PEACE

335

place, the expression,

I

TOOR,

is

used according to the

prophetic style, where an event, that will for certain take

place,

is

spoken of in the past time, and an action is

here attributed to Jacob, which some

of

his descendants

were to perform, supposing the progenitor and his chil-

dren

to

be

the same person.

Nor

is

it upon conjecture alone that such a right

is

founded, but the divine law giver himself pronounces

sentence against

a

city that has rejected the offers of

peace, and afterwards been taken by storm, that he gives

all her spoils to the conqueror.

11.

But

according to the law

of

nations,

not

only the

person, who makes war upon just grounds; but any one

whatever, engaged in regular and formal war, becomes

absolute proprietor of every thing which he. takes from

the enemy:

so

that all nations respect his title, and the

title of

all,

who derive through him their claim to such

possessions. Which, as to all foreign relations, consti-

tutes the true idea of dominion.

For,

as Cyms, in Xen-

ophon observes, when the city

of

an enemy

is

taken,

every thing that is taken therein becomes a lawful prize

to the conquerors; and Plato, in his treatise on laws

asserts the same. Cicero in his speech against Rullus

says that Mitylene belonged to the Roman people by the

laws of war, and the right of conquest; and, in the first

book of his offices, he observes, that some things become

the private property of those, who take possession of

them, when unoccupied,

or

of those, who make a con-

quest

of

them in war.-Theophilus,

in

his Greek insti-

tutes, calls the one the natural mode

of

acquisition, and

Aristotle denominates the other the natural way of acqui-

sition by the sword, without regarding any other reason,

but the bare fact, from which the right arises. Thus

Nerva, the son, as Paulus the lawyer relates, said that

property arose from natural possession, some traces of

which

still

remain respecting wild animals taken either

upon the sea,

or

upon the land, or birds flying in the

air.

It

is seen also in things taken

in

war, all which

immediately become the property of the first captors.

Now

things are considered as taken from an enemy,

when taken from his subjects.

Thus Dercyllides argues, in Xenophon, that as mar-

nabazus was an enemy to the Lacedaemonians, every

thing

belonging to Mania, who was his subject, might

be

seized

by

the laws

of

war.

336

HUGO

GROTIUS

111.

But in this question upon the rights

of

war nations

have decided, that a person is understood to have made

a

capture, when he detains a thing in such a manner, that

the owner has abandoned all probable hopes

of

recover-

ing

it,

or,

as Pomponius, speaking

on

the same subject,

says, when a thing has escaped beyond pursuit. This

takes place with respect to moveable things in such a man-

ner, that they are said to be taken, when they are carried

within the territories

of

the enemy,

or

places belonging to

him.

For

a thing

is

lost

in

the same manner as

it

is recov-

ered by postliminium.

It

is said to

be

recovered whenever

it returns within the territories of

its

owner’s sovereign, that

is, into places, of which he

is

master. Paulus indeed has

expressly said, that a power

or

state has lost a subject, when

he has gone,

or

been carried out

of

the territories

of

that

power: and Pomponius defines

a

prisoner

of

war to be an

enemy, whom the troops

of

some other belligerent power

have taken and carried into one

of

their own places; for be-

fore he

is

carried into those placcs, he continues still a

subject

of

the enemy.

The law

of

nations, in these respects, treated persons

and things in the same manner. From whence it is easy

to understand, what

is

meant, when in another place it is

said that things taken

from

an enemy immediately be-

come the lawful prize of the captors, but only upon the

condition

of

those things continuing in their possession for a

reasonable and certain time. Consequently it is plain, that

ships and other things taken at sea cannot be considered as

really the property

of

the captors, till they have been

carried into some

of

their ports,

or

to some place where

their whole fleet

is

stationed.

For

in that case all hope

of

recovery seems to have vanished. By a late regulation

among the European powers,

it

has been made an estab-

lished maxim

of

the law

of

nations, that captures shall be

deemed good and lawful, which have continued in the

enemy’s possession

for

the space of twenty

four

hours.

IV.

Lands are not understood to become

a

lawful pos-

session and absolute conquest

from

the moment they

are invaded.

For

although

it

is

true,

that an army takes

immediate and violent possession of the country which

it

has invaded, yet that can only be considered as a tem-

porary possession, unaccompanied with any

of

the rights

and consequences alluded to in this work, till

it

has been

ratified and secured by some durable means, by cession,

or

treaty.

For

this reason, the land without the gates

of

'I'HE RIGHTS

OF

WAR

AND

PEACE

337

Rome, where Hannibal encamped, was

so

far

from

being

judged entirely lost, that it was

sold

for the same

price that

it

would have been

sold

for before that

period.

Now land will be considered as completely conquered,

when

it

is

inclosed

or

secured by permanent fortifica-

tions,

SO

that no other state

or

sovereign can have free

access to

it,

without first making themselves masters of

those fortifications.

On

this account Flaccus, the Sicilian,

assigns no improbable conjecture for the origin of the

word territory, because the enemy

is

DETERRED

from enter-

ing

it.

At least there is as much probability in this con-

jecture, as in that of Varro, who derives it from the word

terendo,

treading the soil. Frontinus deduces

it

from

terra,

the earth, and Pomponius from the

TERROR

of judi-

cial authority exercised in each country. Xenophon how-

ever in his book on tributes, seems to accord with the

first of these opinions: for he says, that in time of war

the possession of a country

is

kept by walls, strong holds,

and barriers.

V.

It

is a clear point too, that

for

any thing to become

a prize

or

conquest by ",he right of war,

it

must belong

to an enemy.

For

things, within an enemy's territory,

for instance, in any

of

his towns

or

garrisons, cannot be

acquired as property by the laws

of

war, if the owners

of those things are neither subjects nor confederates of

the enemy.

It

is

observed in one of the speeches of

Aeschines, that Philip, though at war with the Amphi-

politans, could not lawfully take possession of Amphipo-

lis,

as

a conquest,

it

being

a

city, which belonged to the

Athenians.

For

as the enemy

is

likely to derive no assist-

ance in the war, from things which neither belong to

himself,

nor

to a confederate, no just reason can be as-

signed

for

taking them, and the right of making things

change their owners by force is

of

too odious

a

nature

to admit of any extension.

VI.

The observation usually made, that all things

on

board an enemy's ships are to be deemed an enemy's

goods, ought not to

be

received

as

a

STANDING

and

ACKNOWLEDGED

rule of the law of nations, but only as a

maxim, indicating the strong presumption that both goods

and

vessel belong to the same owner, unless clear Prod

to the contrary can be brought. The States General

of

Holland made such a decision in the year

1338,

at

a

time

when the war with the Hanse-towns raged with

the

aa

338

HUGO

GROTIUS

greatest violence, and the decision consequently passed

into a law.

VII. According to the law of nations it

is

undoubtedly

true, that things taken from an enemy which had been

captured by him cannot be claimed by those, to whom

they belonged before they were in the enemy’s posses-

sion, and who had lost them in war. Because the law

of

nations assigned them to the enemy by the first capture,

and then to the person, who took them from him by the

second.

Upon this principle among others, Jephthah defends

himself against the Ammonites, because by the laws of

war they had

lost

the land, which they claimed, in the

same manner, as another part had been transferred

from the Moabites to the Amorites, and from the

Amorites to the Hebrews. Thus David too claims and

divides as his own, what he himself had taken from

the Amalekites, and the Amalekites, before him, from

the Philistines.

Titus Largius, as we are informed by Dionysius of

Halicarnassus, when the Volscians laid claim to some

possessions, which they had formerly held, delivered it

as

his opinion in the Roman Senate, that “the Romans

were the fair and just owners of what they had gained

by the right of conquest, nor ought they to be

so

weak

as to abandon the fruits

of

their valour.

For

not only

the people of that day, but their posterity also had a

right to a share of those possessions:

so

that to abandon

them would be treating themselves like enemies.

))

VIII. and IX. One great point, which the law of

nations designed to establish, was that the effects

or

pos-

sessions

of

one enemy should be considered by another,

as things having no owner.

Things, belonging to no one, became the property

of

those, who find

or

take them, both of those, who, like

sovereign powers, employ others in such service, and of

those, who take them with their own hands.

Thus not only slaves,

or

the immediate members of a

man’s household, but all, who engage themselves, any

way, in the service of others, may be said to acquire for

their employers all the property, which they take

or

gain,

even in those things, which apparently lie in common to

all men, such as pearls, fish, or fowl.

Modestinus has justly said, that whatever is naturally

gained, like

a

possession, we may acquire through the

THE

RIGHTS

OF

WAR

AND

PEACE

339

means of any one we chuse to employ,)) and, upon the

same principle, Paulus observes, that

((in

every acquisi-

tion, the exertion of mind and body must concur; the for-

mer purely our own, and the latter, either our own, or that

of another. In the same manner possession may be taken

for

us

by an attorney, guardian,

or

trustee, provided they

do

it

on our account and in

our

name.

))

The reason of which

is, because one man may naturally be the voluntary in-

strument of another, with the consent of that other.

So

that the distinction made between persons in a servile

and free condition, as to the acquisition of property, is a

distinction only of the civil law, and applicable to its

rules of transferring, acquiring, and confirming, property.

And yet the emperor Severus afterwards applied these

rules to the natural acquisition of things, not only from

motives of utility, but, as he avowed himself,

from

motives

of equity and justice.

So

that, apart from all authority

of the civil law, it is an established maxim that what any

one can do

for

himself, he can do through means of an-

other, and doing such acts by another is the same as

doing them himself.

X.

A

distinction must be made between actions in war,

that are really of a

PUBLIC

NATURE,

and the acts of

INDI-

VIDUALS,

occasioned by public war: by the latter, individuals

acquire an absolute and direct property, in the things,

which they take, and by the former, the state makes those

acquisitions. Upon this principle of the law of nations

Scipio treated with Masinissa, stating that as it was under

the auspices of the Roman people, that Syphax was con-

quered and taken prisoner, himself, his wife, his kingdom,

his territory, his towns, and subjects inhabiting those

towns, in short, every thing belonging to him became a

lawful prize to the Roman people. In the same manner,

Antiochus the Great maintained that Coelo-Syria belonged

'

to Seleucus, and not to Ptolemy, because Seleucus had

been the principal in the war, to which Ptolemy had con-

tributed his assistance. In the fifth book of Polybius,

there is an account of the matter.

XI. Things immoveable are generally taken by

some

public act, such as marching an army into the country,

or plazing garrisons there.

So

that, as Pomponius

has

said, ((lands taken from the enemy become the property

of the state, and form no part of the booty belonging to

the individual captors.

))

Thus among the Hebrews and

Lacedaemonians,

lands

that were made

a

conquest,

were

340

HUGO

GROTIUS

divided by lot. The Romans too either retained con-

quered lands to let them out for rent, sometimes leaving

a small portion to the ancient possessor,

or

divided them

among colonists, whom they sent out,

or

made them

tributary; innumerable instances of which we meet with

in their histories, their laws, and treaties

on

the ad-

measurements

of

lands.

XII. But things moveable, whether inanimate,

or

living,

are taken either as connected

or

unconnected with the

public service. When unconnected with the public serv-

ice, they become the property of the individual captors.*

Reference may here be made to the remark of Celsus,

that ((enemy’s goods found among

us

do not belong to

the state, but to the prior occupant.

))

By which are

meant things found among us at the breaking out of a

war.

For the same was observed of persons, when,

under the same circumstances, they were considered as

goods taken.

On this subject there is a remarkable passage in Trypho-

ninus. ((Those persons,

says

he,

who have gone into a for-

eign country in time

of

peace, upon the sudden breaking

om

of war, are made slaves

by

those, among whom

it

is their misfortune to be found, being considered as

enemies.))

XIII. What has been said upon the law of nations, al-

lowing individuals to acquire property by taking

it

from

an enemy, must be understood as meaning the law

of

nations, prior to the regulations

of

civil laws upon that

point.

For

the capture of an enemy’s goods which at

first appear to resemble things in common, which any

one may seize, is now, like that

of

wild birds

or

beasts,

subject to limitation by the laws

of

every state, being

in some cases assigned to the sovereign, and in others,

belonging to the captors. It may in some countries, in-

deed, be introduced

as

a rule of law for the whole

of

an

enemy’s goods

found

there to be confiscated.

XIV. The case is very different respecting what any

one takes in actual engagements.

For

there every indi-

vidual bears the character

of

his country, acting in her

stead, and supporting her rights. Through the exertions

of those individuals, the state acquires both property and

dominion, with a power, according to the principles of

civilized countries, of conferring them

on

whom she pleases.

*But such captures

cannot

be

made without authority from

the

sovereign.

THE

RIGHTS

OF

WAR

AND

PEACE

34

I

This

is

not a practice of modem date, but one prevail-

ing among the most free and independent nations of

remote antiquity. The poets, and historians of those

days, describe the hero, after the heat, the burden, and

dangers of the day, carrying his spoils to the common

stock, to be divided by the General among the army,

after retaining his proper share to himself.

XXIII.*

It

is

observed by legal authorities to be a

custom, which has silently gained ground, for either

allies or subjects, who engage in war, without pay, and

at their own risque and expence, to be rewarded with

the captures that they make.

The reason, why allies have such a privilege, is evi-

dent. Because one ally is naturally bound to another to

repair the losses, which he has sustained by entering

into a mutual agreement to support a common cause.

Besides

it

seldom happens, that services are given with-

out some consideration in return.

Quintilian, applying the same reasoning to another

case, alleges that

it

is but just for orators and advocates,

who devote their whole time and talents to the business

of others, to be requited for their services: as thereby

they preclude themselves from acquiring gain in any

other way.

I

It

is most likely therefore that some advantage gained

from the enemy is always expected, as a compensation for

the loss and risque incurred, unless there is evidence to

the contrary from some antecedent treaty, in which there

is

an express stipulation for gratuitous assistance and services.

XXIV. Such claim to a share of the spoils is not equally

evident, where

SUBJECTS

ONLY

are concerned. For the

state has a

RIGHT

TO

THEIR

SERVICES.

Still where

ALL

are

not engaged in arms, but only

SOME,

those, who give

up

their time to the calling of soldiers, and expose their lives

to

its

hazards, have a right to be rewarded and supported

by the body politic

:

-

and as a compensation for this loss

of time, and this personal danger, it is but reasonable they

should have a share

of

the spoils.

With respect to allies there is an example in the Roman

treaty, in which the Latins are admitted to an equal share

of the spoil, in those wars, which were carried on under

the auspices of the Roman people.

*The translation proceeds

from

the

XV.

to the

XXIII.

Section

of

the original, the intermediate Sections

being

only

a confirmation

of

the

preceding arguments

by

examples

from

ancient

history.

-TRANSLATOR.

342

HUGO

GROTIUS

Thus in the war, which the Aetolians carried on with

the assistance of the Romans, the lands and cities were

ceded to the Aetolians, and the prisoners and moveable

effects were given to the Romans. After the defeat of

king Ptolemy, Demetrius gave part of the spoils to the

Athenians. Ambrose, in speaking of the expedition of

Abraham, shews the equity of this practice. He asserts

that it was but just for those, who had assisted him as

partners in the danger, to share in the prizes, which were

their due reward.

As to what were the privileges

of

subjects in these

respects, we have a proof in the conduct

of

the Hebrews,

among whom

it

was usual for half of the spoils to be given

to those, who were engaged in battle, In the same

manner the soldiers of Alexander were allowed to appro-

priate to themselves whatever they took from individuals,

except that it was usual for a considerable portion to be

set apart

for

the king.

So

that it was made

a

subject

of

accusation against those at Arbela, who were said to have

entered into a conspiracy for securing to themselves every

thing that was taken, without contributing a due propor-

tion

of

it to the treasury.

But individuals were not allowed in the same manner

to appropriate to themselves the public property of an

enemy, that is, such as belonged to the state. Thus when

the Macedonians made themselves masters of the camp of

Darius at the river Piramus, and every thing was given

up to plunder, they spared the royal pavilion, in con-

formity to an ancient custom, ((according to which,

as

Curtius

observes,

it

was always reserved as the properest

place, in which the victorious prince could be received.

))

There was a custom somewhat like this among the

Hebrews who always placed the crown

of

the vanquished

king upon the head

of

the conqueror, and assigned to him

every thing that was taken, belonging to the royal house-

hold. We read of the same conduct in Charles the great,

who, upon conquering the Hungarians, gave up the pri-

vate property as plunder to the soldiers, reserving for

the royal use all, the public treasures.

Some things indeed are too inconsiderable to be made

public property.

It

is a generally received maxim for

such things to belong to the individual captors.*

Our

author

here

speaks

of

things taken in battle. For

upon

the surrender

of

towns,

in almost all articles

of

capitulation it

is

stipulated,

that

the General

and

other superior officers,

and

the

officers

THE RIGHTS

OF

WAR

AND

PEACE

343

This

was the practice

in

the anciert times

of

the

Roman republic.

A

privilege not unlike this

is

some-

times given to seamen, who serve for pay.

It

is what

the French call spoils,

or

pillage, including all wearing

apparel, and all gold and silver under the value of ten

crowns.

On this point different customs prevail in different

countries. In Spain sometimes a fifth, and sometimes

a third was allowed to the soldiers, and at others half

was reserved for the crown.

On

some occasions,

a

seventh or tenth part was allowed to the general, and

the rest belonged to the captors, except ships

of

war,

which belong entirely to the crown.-Sometimes a division

was made in proportion to the hazard and expence: which

was the case among the Italians, where the third part

of

the prize was assigned to the owner of the victorious

vessel, another third to those who had merchandise on

board, and the remaining third to the combatants.

In some cases it happens that private adventurers are

not

allowed the whole

of

their captures, a certain portion

of which must go to the state or to those, who have

received a grant of such prizes from the state. Thus in

Spain,

if

in

time

of

war ships are fitted out by private

persons, one part

of

the captures, which they make be-

longs to the crown, and another to the Lord High Admiral.

So

likewise in France, and Holland, the tenth part of a

prize belonged to the Admiral, a fifth also being pre-

viously deducted for the use

of

the state. But by land it

is customary upon the taking

of

towns, and in battles,

for every one to keep the prizes which he takes. But in

excursions, every thing taken becomes the common stock

of all engaged, being afterwards divided amongst them

according to their respective ranks.

xxv,

As

a consequence deducible from the above

positions, it may be observed, that

if

a people not en-

gaged in war be made mediators in a doubtful matter

respecting things captured in war, the cause must be

adjudged in favour

of

him, who has

on

his side the laws

and customs of the country, which he has espoused.

But

if

no

such right can be proved, the prize must be

adjudged

to

the state, rather than to the individual

captor.-The maxim indeed of Quintilian can never be

of

regiments shall preserve their

swords

and their private baggage, and

the noncommissioned officers and soldiers shall preserve their hap

sacks.

344

HUGO GROTIUS

admitted, that the laws

of

war can never be enforced in

matters, that may be decided by judicial authority; and,

that, on the other hand, whatever has been gained by

arms

can be maintained by force of arms alone.

XXVI.

It

was observed in a former part of this chapter,

that things,

NOT BELONGING

to an enemy, cannot be taken,

although found with him. For this

is

neither consonant

to

natural justice, nor introduced by the law of nations.

But if in those things the enemy had any right connected

with possession, such as the right of pledge, retention or

service, that would not obstruct the power of the captors.

It is a disputed point, both as to persons and things,

whether they can be lawfully taken in the territory of a

power at war with neither of the belligerents. In regard

ONLY

to the law

of

nations, as far as it allows

us

to kill

an enemy wherever he is found, the

PLACE

has nothing

to

do

with the question. But considering the rights of

the sovereign, to whom that territory belongs, he undoubt-

edly has a right to forbid the seizure of persons, or the

capture

of

things within his own dominions: and may

demand satisfaction for the violation of that right. In

the same manner, though beasts, that are wild by nature,

become the property of those, who take them, still an

owner may forbid any one to commit a trespass upon his

lands in order to take them.

CHAPTER

VII.

ON

THE

RIGHT

OVER

PRISONERS

OF

WAR.

By

the law

of

nations, slavery

the

result

of

being taken

in

solemn

war-The same condition extends to the descendants

of

those

taken

-

The power over them- Even incorporeal things may be

gained by the

rights

of

war

-Reason

of

this-This right

not

prevalent to the same extent among Christian powers

of

the

pres-

ent

day

-

The substitute used

in

place

of

this right.

I.

BY

THE

law of nature, in its primaeval state; apart

from human institutions and customs, no men can be

slaves: and it is in this sense that legal writers maintain

the opinion that slavery

is

repugnant to nature. Yet in

a former part of this treatise, it was shewn that there

is

nothing repugnant to natural justice, in deriving the ori-

gin

of servitude from human actions, whether founded

upon compact or crime.

But the law of nations now under consideration is

of

wider extent both in its authority over persons, and its

effects. For, as to persons, not only those, who surren-

der their rights, or engage themselves to servitude, are

considered in the light of slaves, but all, who are taken

prisoners in public and solemn war, come under the same

description from the time that they are carried into the

places, of which the enemy

is

master.

Nor

is

the commission of crime requisite to reduce them

to

this condition, but the fate of all is alike, who are

unfortunantly taken within the territories of an enemy,

upon the breaking out of war.

11.

and

111.

In ancient times, while slavery was per-

mitted to exist, the offspring, born during captivity or

servitude, continued in the same condition as the parents.

-The consequences of such rules were of wide extent

;

-

there was

no

cruelty, which masters might not inflict

upon their slaves

;

-there was no service, the performance

of which they might not compel ;-the power even of life

and death was in their hands. However the Roman laws

at length set bounds to such wanton power, at least

to

the exercise of

it

within the Roman territories.

(345)

346

HUGO GROTIUS

Every thing too, found upon the prisoner’s person,

became

a

lawful prize to the captor. For as Justinian

observes, one who was entirely in the power

of

another

could have no property of his own.

IV. and V. Incorporeal rights, gained by the enemy,

along with the person

so

captured, cannot be considered

in

the light of primary and original acquisitions, And

there are some rights

so

purely personal in their nature,

that they cannot be lost even by captivity, nor the duties

attached thereto ever be relinquished. Of such a nature

was the paternal right among the Romans. For rights

of this kind cannot exist but immediately with the person

to whom they originally belonged.

All these rights to prizes, which were introduced by

the law of nations, were intended as an inducement to

captors to refrain from the cruel rigour

of

putting pris-

oners to death; as they might hope to derive some

advantage from sparing and saving them. From hence

Pomponius deduces the origin of the word,

SERVUS,

or

SLAVE,

being one, who might have been put to death,

but from motives of interest

or

humanity had been

saved.

VI. (being the

IX.

of the original.) It has long been a

maxim, universally received among the powers of Chris-

tendom, that prisoners of war cannot be made slaves,

so

as to be sold, or compelled to the hardships and labour

attached to slavery. And they have with good reason

embraced the latter principle. As it would be incon-

sistent with every precept

of

the law of charity, for men

to refuse abondoning a cruel right, unless they might be

allowed to substitute another, of great, though somewhat

inferior rigour, in its place.

And this, as Gregoras informs

us,

became a traditionary

principle among all who professed one common religion

;

nor was

it

confined to those, who lived under the authority

of the Roman empire, but prevailed among the Thes-

salians, the Illyrians, the Triballians, and Bulgarians.-

Though such an abolition of slavery, and mitigation of

captivity may be considered as of trivial import, yet

they were effects produced by the intriduction

of

the

Christian religion, especially upon recollection that

Socrates tried, but without effect, to prevail upon the

Greeks to forbear making slaves

of

each other.

In

this respect the Mahometans act towards each

other in the same manner as Christians do. Though it

THE RIGHTS

Ol?

WAR

AND

PEACE

347

is

still the practice among Christian powers to detain

prisoners

of

war, till their ransom be paid, the amount

of

which depends upon the will

of

the Conqueror, unless

it has been settled by express treaty. The right

of

de-

taining such prisoners has sometimes been allowed to the

individuals, who took them, except where the prisoners

were personages

of

extraordinary rank, who were always

considered as prisoners

of

war to the state.

CHAPTER VIII.

ON EMPIRE

OVER

THE

CONQUERED.

civil

and sovereign jurisdiction acquired by conquest- Effects

of

such

acquisition- Absolute power or mixed power gained by mnquest-

Incorporeal rights acquired

in

the same manner -Thessalian bond

considered.

I.

IF

INDIVIDUALS

can reduce each other to subjection,

it

is not surprising that states can

do

the same, and by

this means acquire a civil, absolute, or mixed, dominion.

So

that, in the language of Tertullian, victory has often

been the foundation of dominion, and it often happens,

as

Quintilian remarks, that the boundaries of states and

kingdoms, of nations and cities, can only

be

settled by

the laws of war.

Quintus Curtius relates of Alexander, that he said,

it

was for conquerors to dictate laws, which the conquered

were bound to receive. This has always been a general

opinion and rule, thus Ariovistus, in Caesar, laid it down

as

an indubitable right of war, for the conqueror to im-

pose whatever terms he pleased upon the conquered, nor

did he suppose the Roman people would allow any one to

interpose with them in the discretionary use of this

right.

By conquest, a prince succeeds to all the rights

of

the

conquered sovereign

or

state

;

and if it be a common-

wealth, he acquires all the rights and privileges, which

the people possessed. He gains the same right, which

the state had before, to alienate the possessions,

or

to

transmit them

if

he chuses to his descendants, by which

means they will become a patrimonial territory.

11.

The right

of

conquest may go even beyond this.

A

state may hereby lose its political existence,

so

far as to

form an appendage to another power, which was the case

with the Roman provinces: or if a king engaged in war

against a state, at his own expence, has reduced

it

to

complete subjection, his authority over

it

becomes an

absolute, rather than a limited sovereignty.

It

can no

longer be called an independent state, but, by the right

(348)

/

THE

RIGHTS

OF

WAR

AND

PEACE

349

of

conquest, forms an integral part of the prince’s

im-

mediate dominions. Xenophon in drawing the character

of Agesilaus, commends him for requiring

no

other serv-

ices and obedience

of

the cities he had conquered, than

what

is

usually paid by subjects to their lawful sover-

eigns.

111.

From hence

it

will be easy to understand what

is

meant by a mixed government, composed partly of civil,

and partly

of

absolute power;-

it

is a government, where

subjection

is

united with some degree of personal liberty.

We sometimes read of nations, that have been

SO

far

subdued, as to be deprived

of

the use

of

all warlike arms,

being allowed to retain no instruments of iron, but the

implements

of

husbandry; and of others, that have been

compelled to change their national customs and language.

IV.

States as well as individuals may lose their prop-

erty by the laws

of

war: and even a voluntary surrender

is in reality nothing more than giving up what might

have been taken by force. For as Livy says, where

all

things submit to the power of arms, the conqueror may

impose whatever terms, and exact whatever fines he

pleases. Thus the Roman people by the victories

of

Pompey acquired all the territories, which Mithridates

had gained by conquest.

The incorporeal rights too, belonging to one state,

may pass to another by the rights of conquest. Upon

the taking of Alba, the Romans retained all the rights

belonging to that city. From hence it follows, that the

Thessalians were released from the obligation

of

paying

a sum of money, which they owed to the Thebans; Alex-

ander,

upon

the taking of Thebes, having, as a con-

queror, forgiven the debt. Nor is the argument used by

Quintlian in favour of the Thebans, at all convincing:

he maintains that nothing but what

is

of

a tangible na-

ture can pass

by

right of conquest, a class

of

things to

which incorporeal rights can never be reduced: and that

there

is

a material difference between inheritance and

victory, the former

of

which may convey incorporeal

rights, but the latter can give nothing except things

of

a solid and visible substance.

But on the other hand it may be justly said, that who-

ever

is

master of the persons,

is

master also

of

all

the

rights and things, which are vested in those persons,

who are in that case considered

as

having nothing

of

their own. Indeed

if

any one should leave to

a

con-

3

50

HUGO

GROTIUS

quered people their rights, as a state, still there are

some

things belonging to that state, which he might appropri-

ate to himself. For it is in his own power to determine,

to what extent his generosity,

or

the exertion

of

his

right shall go. Caesar imitated the conduct of Alexan-

der, in forgiving the Dyrrachians a debt, which they

owed to some one of the opposite party.

But

the kind

of war, in which Caesar was engaged does not

fall

within

the rules of the law of nations.

CHAPTER

IX.

OF

THE

RIGHT

OF

POSTLIMINIUM.

Origin

of

the term, postliminium- Where

it

takes effect -Certain

things recoverable thereby-In what cases the right

of

postlimin-

ium prevails

in

peace,

as

well

as

war-What rights are recover-

able, and what rights not recoverable-When

a

people

is

not

entitled to the right

of

postliminium- Extent

of

civil

law

in these

cases

-

Deserters

-

Ransomed prisoners

-

Subjects

-

Lands

recov-

ered by

right

of postliminium

-

Distinction formerly

observed

with

respect to movable things- Modem practice.

I.

THE

professors of law in former ages have given

no

more satisfactory account

of

the rights of postliminium,

than they have done of those, respecting things taken

from the enemy. The subject has been more accurately

handled by the ancient Romans, but often still with a

considerable degree of confusion,

so

that a reader cannot

easily distinguish, what part they assign to the province

of the law of nations, and what part to the civil law of Rome.

Amidst

a

great variety of opinions, upon the meaning

of

the word, postliminium, that of Scaevola seems the

most natural, who derives it from the word

post,

signi-

fying

a

return after captivity, and

Zimen

the boundary

or

entrance of the house,

or

from

Zimes,

a public boundary.

Thus the ancients called exile

or

banishment,

eZiminium,

that is, sending any one out of the boundaries of the

country.

11.

Postliminium therefore, according to its original

signification, means the right, accruing

to

any one in

consequence of his return home from captivity. Pompo-

nius defines the right of postliminium to take place the

moment any one enters a town

or

garrison,

of

which his

sovereign is master; but according to Paulus he must

have entered within the territories of his own country

before he can be entitled to that right.

Upon this principle nations have, in general, gone

SO

far, as to allow the right of postliminium to take place,

where any person,

or

indeed any thing, coming within

the privileges of postliminium, have arrived within the

territory of a friendly

or

allied power.

By the term friends,

or

allies, used in this place,

are

not simply meant, those who are at peace with another

(351)

352

HUGO

GROTIUS

power, but those who are engaged in the same war,

and in a common cause with that power.

So

that all,

who have come into the territories of such powers, are

protected under the pledge of public faith.

For

it

makes

no difference with respect to persons

or

things, whether

they are in the territories

of

those powers, or in their

own.

In

the territory of a friendly power, who is not engaged

in the same cause with either of two belligerent parties,

prisoners of war do not change their condition, unless

it has been agreed to the contrary by express treaty; as

in the second treaty between the Romans and Cartha-

ginians,

it

was stipulated that

if

any prisoners, taken

by the Carthaginians from powers friendly to the Ro-

mans, should come into ports subject to the Roman

people, their liberty might be claimed: and that powers

friendly to the Carthaginians should enjoy the same

privilege.

For

this reason, the Roman prisoners taken

in

the second Punic war, when sent into Greece, had not

the right of postliminium there, the Greeks being entirely

neutral, consequently they could not be released, till they

were ransomed.

111.

According to the language of the ancient Romans,

even free men might be restored by the right of

postliminium.

Gallus Blius, in the first book of his explanation

of

law-terms, defines a person restored to his original situa-

tion by the right

of

postliminium, to be one, who had

gone from his own country, in a free condition, to

another, and returned to his own in consequence of such

right. By the right of postliminium a slave also who

has fallen into the hands of an enemy, upon his release

from thence, returns to the service of his former master.

As to the law

of

postliminium, horses, mules, and ships

are considered in the same light as slaves. And whatever

advantage this law gives any one in recovering persons

or

things from an enemy, the enemy in his turn has equal.

advantage from the same law.

But modern lawyers have made

a

distinction between

two kinds of postliminium, by one of which, persons

returned to their former condition, and by the other,

things are recovered.

IV.

The right of postliminium may extend to those, who

are seized and detained in an enemy’s country upon the

breaking out of war.

For

though during the continuance

THE

RIGHTS

OF

WAR

AND PEACE

353

of that war, there may be reason for detaining them, in

order to weaken the enemy’s strength, yet, upon the con-

clusion of a peace, no such motive and pretence can be

devised for their release being refused or delayed.

It

is

a settled point therefore that upon peace being made,

prisoners of the above description always obtain their

liberty, their claim to it being universally acknowledged.

With respect to other kinds of prisoners, every one

used what he wished to be thought his right, except

where fixed rules were prescribed by treaty. And for

the same reason, neither slaves, nor things taken in war

are restored upon a peace, except express stipulations be

made to that purpose.

A

conqueror too, in general,

wishes to have it believed that he had a right to make

such acquisition; and indeed the departure from such

a

rule might give rise to wars without end.

V.

and

VI.

A

prisoner of war, upon his release, and

return

to

his own country,

is

entitled to all his privileges

THERE,

and indeed to everything either corporeal, or in-

corporeal, which he might have before possessed in a

NEUTRAL

STATE,

at the time of his captivity. For

if

such

a state, in order to preserve her neutrality, considered

his captivity as a matter of right on the part of the

enemy,

so

also, in order to shew her impartiality, she

cannot lawfully abridge his right to any thing he may

reclaim upon his release. The controul therefore, which

the person, to whom the prisoner belonged by the right

of war, had over his effects, was not absolutely uncondi-

tional: for he might lose it, even against his will, when-

ever the prisoner came again under the protection,

or

within the territories,

of

his

own sovereign. Along with

the prisoner therefore he would lose everything, which

was considered as an appendage to his person.

In cases where effects taken in war have been alien-

ated, a question arises, whether the law

of

nations con-

firms

the title, and secures the possession of the person,

who has derived or purchased them from him, who was

master

of

them by the rights of war, by having the

pris-

oner in his custody at the time of alienation, or whether

such things are recoverable

;

supposing the things to

be

in

a

nmtral territory.

A distinction seems proper to be made between things

recoverable by postliminium, and things excepted from

that right:

so

that every alienation

of

the former must

be qualified and conditional, but that of the latter

may

23

J

354

HUGO

GROTIUS

be absolute. By things alienated may be understood even

those, of which a

gift

has been made, or to which the

owner has relinquished every claim.

VII. Upon any one’s returning to his former condition

by the law of postliminium, all his rights are restored as

fully,

as

if

he had never been in the hands and power

of the enemy.

VIII. The case of those however, who have been con-

quered by the arms of an enemy, and have surrendered

themselves, forms an exception to this rule

;

because en-

gagements of that kind must be valid, and honourably

adhered to according to the law of postliminium.

So

that during the time of a truce, the right of postliminium

cannot be claimed.

But where a surrender has been made without any

express or positive convention the right of postliminium

exists in all its force.

IX.

What has been said of individuals applies to na-

tions:

so

that a free people, who have been subjugated,

upon being delivered from the yoke of the enemy by

the power of their allies, will recover their former con-

dition.

But if the whole population that constituted a state

has been dispersed, the people can no longer be con-

sidered as the same: nor does the law of nations in such

a case enforce the right of postliminium for the restora-

tion

of

all effects formerly belonging to that people.

For as the identity of a ship, or any other material

object, can only be ascertained by the permanent union

of

its original parts:

so

a nation can no longer be re-

garded as the same, when every peculiar characteristic

belonging to it

is

effaced.

The state of Saguntum therefore was no longer judged

to be the same, when it was restored to its ancient pos-

sessors, at the expiration of eight years:

nor

could Thebes

any longer be deemed the original city, as its inhabit-

ants had been sold by Alexander for slaves. From

hence

it

is

evident, that the Thebans could not, by the

right of postliminium, recover the sum of money, which

the Thessalians had owed them: and that for two rea-

sons:

because, in the first place, they were a new people

;

and, secondly, because Alexander

at

the time that he

was absolute master of the city had a right,

if

he

thought proper, to relinquish the claim to that debt,

which he had actually done. Besides, a debt

is

not in

THE

RIGHTS

OF

WAR AND

PEACE

355

the number of things recoverable by the right of post-

liminium.

The rules, respecting a state, are not much unlike

those laid down by the ancient Roman law, which made

marriage

a

dissoluble tie,

so

that

it

could not be re-

stored by the right of postliminium: but a new consent,

and a new contract were necessary.

X.

By the Roman civil law deserters were excluded

from the right of postliminium.

XI. and XII.

It

is a point of much importance to the

subject, and

it

was before declared in the affirmative,

that nations, which have been under a foreign yoke, re-

cover their former condition, even though their deliver-

ance has not been effected by their former sovereigti, but

by some ally. It is a settled rule, where there

is

no

express treaty to the contrary. At the same time

it

is

but reasonable that such ally be indemnified for the ex-

pences incurred in accomplishing that deliverance.

XIII. Among things within the right of postliminium,

lands

in

particular attract our attention. For, as Pom-

ponius observes, upon the expulsion of an enemy lands

naturally revert to their former masters. And in this

sense expulsion is understood to take place from the time

that his free and open access to a territory

is

entirely

cut

off.

Thus the Lacedaemonians, after taking Aegina from

the Athenians, restored

it

to its ancient owners.

Jus-

tinian and other emperors restored to the heirs

of

the

ancient possessors

of

the lands, which had been recov-

ered from the Goths and Vandals, still reserving against

those owners all prescriptive rights, which the Roman

laws had introduced.

The privileges belonging to lands attach to every right

also connected with the soil.

For

religious or conse-

crated places, that had been taken by an enemy, when

recovered returned, as Pomponius has said, to their former

condition.

Upon the same principle

it

was provided by a law

in

Spain, that provinces, and all other hereditary

jurisdic-

tions, particularly supreme jurisdictions, should return to

the original possessors by the right

of

postliminium; and

those of an inferior kind,

if

reclaimed within the space

of

four years. Except that citadels lost by war always

belonged to the crown, in whatever manner they were

recovered.

356 HUGO

GROTIUS

XIV.

On

the contrary a geneal opinion prevails, that

moveable property, which constitutes part of a lawful

prize, is not recoverable by the right of postliminium.

So

that things acquired by purchase, wherever they are

found, continue the property of the purchaser. Nor has

the original owner a right to claim them, when found

in

a neutral state, or even carried into his own territory.

Things useful

in

war,

as

we find, were formerly an

exception to this rule: an exception, which seems to have

been favoured by the law of nations in order to induce

men the more readily to provide them, in the hopes of

recovering them,

if

lost. And this indulgence was the

more easily granted, as most nations, at that period, in

all their customs, seem to have had an eye to a state of war-

fare.-Among the things, coming under this description,

ships of war, and merchant-ships are reckoned, but

neither gallies, nor pleasure-boats: mules also are enu-

merated

;

but only such as are used to carry baggage:

horses and mares too

;

but only such as are broken in

to

obey the bridle. And these are things, the bequest

of

which the Roman law confirmed, and which might come

into the division of an inheritance.

Arms and cloathing indeed are useful in war, but still

they were not recoverable by the right of postliminium

;

because the laws were by no means inclined to favour

those, who lost either in war: and such a loss was deemed

a

disgrace, as we find from many parts

of

history. And

in this respect, a distinction was made between a soldier's

arms and his horse: because the latter might easily break

loose, and fall into an enemy's hands without any fault

of his rider. This distinction in moveable things seems

to have prevailed in the western parts

of

Europe, under

the Goths, even as far down as to the times of Boetius.

For in explaining the Topics

of

Cicero, he speaks of this

right, as a general custom of his day.

xv.

But in later times, if not before, this distinc-

tion Seems to have been abolished. For all intelligent

writers speak of moveable effects as not recoverable by

the right of postliminium, and it has evidently been

decided

so,

in many places, with respect to ships.

XVI,

The right

of

postliminium is quite unnecessary,

before the things taken have been carried into Some

place of which the enemy is master, although they may

be

in

his possession: for they have not yet changed their

owner, by the law

of

nations. And, according to the

THE

RIGHTS

OF

WAR

AND

PEACE

357

opinions of Ulpian and Javolenus, the law of postliminium

is

no less superfluous, where goods have been taken by

robbers and pirates, because the law of nations does not

allow

THEIR

possession of the goods to convey any change,

or right of property to

THEM.

Upon this ground, the Athenians wished to consider

Philip,

as

RESTORING,

and not

GIVING

them Halonesus, of

which they had been robbed by pirates, from whom he

had taken

it

again. For things taken by pirates may be

reclaimed, wherever they are found; except that

NATURAL

JUSTICE

requires that the person, who has gained them

out of their hands, at his own expence, should be indem-

nified, in proportion to what the owner himself would

willingly have spent for their recovery.

XVII. But a different maxim may be established by

the

CIVIL

LAW.

Thus by the law of Spain, ships taken

from pirates become the lawful prize of the captors:

which may seem a hardship upon the original owners;

but in some cases individual interest must be sacrificed

to the public good: especially where the danger and dif-

ficultyof retaking the ships

is

so

great.* But such

a

law will not prevent foreigners from asserting their

claims.

XVIII. It was rather

a

surprising maxim in the Roman

law, which established the right of postliminium, not only

between hostile powers, but between

all

foreign states,

and, in some cases, between those, who were members

of the Roman empire. But this was only a vestige of

the rude and pastoral ages, before society was perfectly

formed.

So

that even between nations, who were not

engaged

in

public war with each other,

a

kind of licence

resembling that of war prevailed.

In order to prevent such

a

licence from proceeding to

all

the calamities and slaughter of war, the laws of cap-

tivity were introduced: and, as a consequence of this,

postliminium took place, which might be considered as

a

great step towards the formation of equal treaties, from

the rules of which pirates and robbers were excluded, and

which indeed they themselves despised.

XIX. In our times, the right of making prisoners, ex-

cept in war, has been abolished not only among Christian

states, but even among the greater part of Mahometans,

*((The end

of

such

a law

is

to

animate soldiers and privateers to

pursue

robbers

and pirates,

by

the

hopes

of

possessing things taken

wen from the subjects

of

the state.)”-Barbeyrac.

358

HUGO

GROTIUS

those bands

of

society, which nature designed to estab-

lish amongst men, being in some measure restored.

But the ancient law of nations seems still in force

against any rude or barbarous people, who, without any

declaration or cause

of

war, consider all mankind as ene-

mies. A decision has lately been made in the principal

chamber of the parliament

of

Paris, declaring

all

effects

belonging to the subjects

of

France, and taken by the

Algerines,

a

people always engaged

in

predatory and

maritime warfare with all other countries,

if

retaken, to

belong to the captors.- At the same time it was decided,

that, in the present day, ships are not reckoned among

things recoverable by the right of postliminium.

CHAPTER

XI.*

THE

RIGHT

OF

KILLING

ENEMIES,

IN

JUST

WAR,

TO

BE

TEMPERED

WITH

MODERATION

AND

HUMANITY.

In

what cases strict justice allows the destruction

of

an enemy-Dis-

tinction between misfortune and guilt- Between principals and

accessories

in

war

-

Distinction between unwarrantable and excus-

able grounds of promoting war-Sometimes right and laudable to

forbear punishing an inveterate enemy- Every possible precaution

requisite to spare the innocent-Especially children, women, and

the aged, except they have committed atrocious acts-Clergymen,

men

of

letters, husbandmen, merchants, prisoners "Conditional

sur-

render not to be rejected- Unconditional surrender- Exceptions

to

the above rules, some of them considered, and refuted -Delinquents

effusion

of

blood to be avoided.

when numerous to be spared- Hostages

to

be spared

-

Unnecessary

I.

AND

11.

CICERO,

in the first book of his offices, has

finely observed, that ((some duties are to be observed even

towards those, from whom you have received an injury,

For

even vengeance and punishment have their due

bounds.

))

And

at

the same time he extols those ancient

periods in the Roman government, when the events

of

war were mild, and marked with no unnecessary cruelty.

The explanations given in the

first

chapter of this book

will

point out the cases, where the destruction of

an

enemy

is

one of the rights of lawful war, according to the

principles of strict and internal justice, and where

it

is

not

so.

For

the death of an enemy may proceed either from

an accidental calamity,

or

from the fixed purpose

of

his

destruction.

No

one can be justly killed by design, except by way of

legal punishment, or to defend

our

lives, and preserve our

property, when

it

cannot be effected without his destruc-

tion. For although in sacrificing the life of man to the

preservation of perishable possessions, there may be

nothing repugnant to strict justice, it

is

by

no

means

consonant to the law of charity.

But to justify a punishment of that kind, the person

put to death must have committed a crime, and such a

*

The tenth Chapter chiefly containing remarks that have been inter-

spersed in other

parts

of the work,

is

omitted here.-TRANSLATOR.

(359)

360

HUGO

GROTIUS

crime too, as every equitable judge would deem worthy

of death. Points, which

it

is

unnecessary to discuss any

further, as they have been

SO

fully explained in the

chapter on punishments.

111.

In speaking of the clamities

of

war, as a punish-

ment,

it

is

proper to make a distinction between misfor-

tune and injury. For a people may sometimes be engaged

in war against their will, where they cannot be justly

charged with entertaining hostile intentims.

Upon this subject, Velleius Paterculus observes that

((to blame the Athenians for revolting, at the time they

were beseiged by Sylla, betrays a total ignorance

of

history. For the Athenians always continued

so

steady

in their attachment to the Romans, that their fidelity

became a proverbial expression. Yet their situation at

that time excused their conduct, overpowered by the

arms of Mithridates, they were obliged to submit to a

foe within, while they had to sustain a siege from their

friends without.)’

IV. and

V.

Between complete injuries and pure mis-

fortunes there may be sometimes a middle kind of

actions, partaking of the nature

of

both, which can

neither be said to be done with known and wilful inten-

tion, nor yet excused under colour of ignorance and want

of

inclination. Acts of pure misfortune neither merit

punishment, nor oblige the party to make reparation for

the

loss

occasioned. Hence many parts of history supply

us

with distinctions that are made between those who

are the authors of a war, and principals in

it,

and those

who are obliged to follow others, as accessories in the same.

VI. But respecting the authors of war, a distinction

:S

to be made also, as to the motives and causes of war:

some of which though not actually just, wear an appear-

ance of justice, that may impose upon the well meaning,

The writer to Herennius lays

it

down as the most equi-

table vindication of injury, where the party committing

it, has neither been actuated by revenge, nor cruelty;

but by the dictates

of

duty and an upright zeal.

Cicero, in the first book of his offices, advises the spar-

ing

of

those, who have committed no acts of atrocity

and cruelty in war, and that wars, undertaken to main-

tain national honour, should be conducted upon principles

of

moderation. And, in one

of

his letters, adverting to

the war between Pompey and Caesar, he describes the

struggle between those two illustrious men,

as

involved

THE

RIGHTS

OF

WAR AND PEACE

36

I

in

so

much obscurity of motives and causes, that many

were perplexed in deciding which side to embrace. In

his speech too for Marcellus, he remarks that such uncer-

tainty might be attended with error, but could never be

charged with

guilt.

VII. Such forbearance in war

is

not only a tribute to

justice,

it

is a tribute to humanity,

it

is

a tribute to

moderation,

it

is

a tribute to greatness of soul.

It

was

in this moderation, says Sallust, the foundation of

Ro-

man greatness was laid. Tacitus describes his country-

men as a people no less remarkable for their courage in

the field, than for their humanity to the vanquished and

suppliant.

On this subject, there is a brilliant passage in the

fourth book to Herennius, where it is said,

((It

was an

admirable resolution of our ancestors, never to deprive

a

captive prince of

his

life. For

it

would be truly a viola-

tion of common justice to abuse, by wanton cruelty and

rigour, the power over those, whom fortune has put into

our hands, by reducing them from the high condition,

in which she had placed them before

;

their former en-

mity

is

forgotten. Because

it

is

the characteristic of brav-

ery

to

esteem opponents

as

enemies, while contending

for victory, and to treat them as men, when conquered,

in order to soften the calamities

of

war, and improve the

terms and relations

of

peace. But

it

may be asked,

if

the enemy now treated with this indulgence would have

shewn the same lenity himself. To which a reply may

be made, that he is not an object of imitation in what

he

WOULD

have done,

so

much as in what he

OUGHT

to

have done.

))

VIII. Though there may be circumstances, in which

absolute justice will not condemn the sacrifice of lives

in war, yet humanity will require that the greatest pre-

caution should be used against involving the innocent

in danger, except in cases of extreme urgency and

utility.

IX. After establishing these general principles,

it

will

not be difficult to decide upon particular cases. Seneca

says, that

((

in the calamities

of

war children are exempted

and spared, on the score of their age, and women from

respect to their sex.

))

In the wars of the Hebrews,

even after the offers of peace have been rejected,

God

commands the women and children to be spared.

Thus when the Ninevites were threatened with utter

362

HUGO

GROTIUS

destruction,

on

account of their grievous cnmes,

a

miti-

gation

of

the sentence was allowed, in compassion to the

many thousands, who were of an age incapable

of

mak-

ing a distinction between right and wrong.

If

God, from whose supreme gift the life

of

man pro-

ceeds, and

on

whose supreme disposal

it

depends, pre-

scribes to himself a rule like this, it is surely incumbent

upon men, who have no commission, but for the welfare

and preservation

of

the lives of men, to act by the same

rule. Thus age and sex are equally spared, except where

the latter have departed from this privilege by taking

arms,

or performing the part of men.

X. The same rule may be laid down too with respect

to

males, whose modes of life are entirely remote from

the use of arms. And in the first class of this descrip-

tion

may be placed the ministers

of

religion, who, among

all

nations, from times of the

most

remote antiquity have

been exempted from bearing arms.-Thus, as may be seen

in sacred history, the Philistines, being enemies of the

Jews, forbore doing harm to the company of prophets,

that was at Gaba: and David fled with Samuel to another

place, which the presence

of

a prophetic company pro-

tected from all molestation and injury.

Plutarch relates of the Cretans, that when all order

among them was entirely broken by their civil broils,

they abstained from offering violence to any member

of

the priesthood, or to those employed in the sacred rites

belonging to the dead. From hence the Greeks came to

denote a

GENERAL

MASSACRE

by the proverbial expression

Equally privileged with the holy priesthood are those,

who devote their lives to the pursuit of letters, and other

studies beneficial to mankind.

XI.

Diodorus bestows an encomium upon the Indians,

who, in all their wars with each other, forbore destroy-

ing

or

even hurting those employed in husbandry, as

being the common benefactors of all. Plutarch relates

the same of the ancient Corinthians and Megarensians,

and Cyrus sent a message

to

the king

of

Assyria to

inform

him that he was willing to avoid molesting all

who

were employed in tilling the ground.

XII.

To

the above catalogue of those exempted from

sharing in the calamities of war, may be added merchants,

not

only

those residing for a time in the enemy’s country,

but

even

his

natural-born, and regular subjects: artisans

Of

NO

ONE BEING LEFT TO CARRY

FIRE

TO THE ALTAR.

THE

RIGHTS

OF

WAR

AND

PEACE

363

too, and all others are included; whose subsistence de-

pends upon cultivating the arts of peace,

XIII. and XIV. More civilized manners having abol-

ished the barbarous practice of putting prisoners to death,

for the same reason, the surrender of those, who stipu-

late for the preservation of their lives either in battle,

or

in a siege, is not to be rejected.

The Romans, when investing towns, always accepted

offers of capitulation, if made before the battering ram

had touched the walls. Caesar gave notice to the Atu-

atici, that he would save their city,

if

they surrendered,

before the battering ram was brought up. And in mod-

ern times it

is

the usual practice, before shells are thrown,

or

mines sprung, to summon places to surrender, which

are thought unable to

hold

out-and where places are

stronger, such summons is generally sent, before the

storming is made.

XV. and XVI. Against these principles

of

natural law

and equity an objection is sometimes derived from the

necessity

of

retaliation,

or

striking terror, in cases

of

obstinate resistance. But such an objection is by

no

means just.

For

after a place has surrendered, and there

is no danger to be apprehended from the prisoners, there

is nothing to justify the further effusion of blood.-Such

rigour was sometimes practised, where there were any

enormous acts of injustice, or any violation of faith; it

was practised also upon deserters, if taken.

Sometimes, where very important advantages may at-

tend striking a terror, by preventing the same crimes in

future from being committed,

it

may be proper to exer-

cise the right of rigour in its

full

extent. But an obsti-

nate resistance, which can be considered as nothing but

the faithful discharge of a trust, can never come within

the description of such delinquencies, as justify extreme

rigour.

XVII. Where delinquencies indeed are such as deserve

death, but the number of offenders

is

very great, it

is

usual, from motives of mercy, to depart in some degree

from the right of enforcing the whole power of the law:

the authority for

so

doing is founded

on

the example

of

God himself, who commanded such offers of peace to be

made to the Canaanites, and their neighbours, the most

wicked of any people upon the face of the earth,

might spare their lives upon the condition

of

their be-

coming tributaries.

364

HUGO

GROTIUS

XVIII. From the opinions advanced and mamtained

above,

it

will not

be

difficult to gather the principles

of

the law

of

nature respecting hostages.

At the time, when it was a general opinion that every

one had the same right over his life, as over his property,

and that right, either by express or implied consent was

transferred from individuals to the state,

it

is not sur-

prising that we should read of hostages, though harmless

and innocent as individuals, being punished for the

offences

of

the state: and, in this case, the consent of

the state to such a regulation- implies that of individuals,

who have originally resigned their own will to that of

the public;

in

whom, after such resignation, it indubitably

vested.

But when the day-spring rose upon the world, men,

obtaining clearer views of the extent of their power,

found that God, in giving man dominion over the whole

earth, reserved to himself the supreme disposal of his

life,

so

that man cannot resign to anyone the right over

his own life or that of another.

XIX. By way

of

conclusion to this subject it may be

observed, that all actions no way conducive to obtain a

contested right, or to bring the war to a termination,

but

calculated merely to display the strength of either

side are totally repugnant to the duties

of

a Christian

and to the principles of humanity.

So

that it behoves

Christian princes to prohibit all unnecessary effusion of

blood, as they must render an account of their sovereign

commission to him, by whose authority, and in whose

stead, they bear the sword.

CHAPTER

XII.

ON

MODERATION

IN

DESPOILING

AN

ENEMY’S

COUNTRY.

Lawfulness

of

despoiling an enemy’s country

-

Forbearance

of

using

this right, where things may be useful to ourselves, and out

of an

enemy’s power

-

Forbearance in the

hopes

of

speedy

conquest,

or

where things are

not

immediately necessary

to

support an enemy,

and aid him in maintaining the war

-

Buildings

for

the purposes

of

religion not to

be

wantonly destroyed-Advantages

of

this mod-

eration.

I.

ONE

of the three following cases

is

requisite to

jus-

tify any one in destroying what

BELONGS

to another:

there must be either such a necessity, as at the original

institution of property might be supposed to form an ex-

ception, as if for instance any one should throw the sword

of another into a river, to prevent a madman from using

it

to his destruction: still according to the true principles

maintained in a former part of this work he will be bound

to repair the

loss:

*

or there must be some debt, arising

from the non-performance of an engagement, where the

waste committed

is

considered as a satisfaction for that

debt: or there must have been some aggressions, for

which such destruct!on is only an adequate punish-

ment.

Now, driving

off

some of our cattle, or burning a few

of our houses, can never be pleaded as a sufficient and

justifiable motive for laying waste the whole of an enemy’s

kingdom. Polybius saw this in its proper light, observ-

ing, that vengeance in war should not be carried to its

extreme, nor extend any further than was necessary to

make an aggressor atone justly for his offence. And

it

is

upon these motives, and within these limits alone, that

punishment can be inflicted. But except where prompted

to

it

by motives of great utility, it is folly, and worse

than folly, wantonly to

hurt

another.

But upon duly and impartially weighing the matter,

such acts are oftener regarded in an odious light, than

considered as the dictates

of

prudent and necessary

*

See b.

ii.

chap.

ii.

sect.

9.

(365

1

366

HUGO

GROTIUS

counsels.

For

the most urgent and justifiable motives

are seldom of long continuance, and are often suc-

ceeded by weightier motives of a more humane descrip-

tion.

.

11.

It

may be possible, under some circumstances, to

detain what belongs to an enemy,

so

as to prevent his

deriving advantage from

it,

in which case

it

would be an

unnecessary and wanton act to destroy

it.

And to such

circumstances the divine law has an eye, in ordering

wild trees to be made use of for the construction

of

works in a siege, while fruit-trees, and every thing neces-

sary for the support of man, ought, if possible, to be

spared.

111.

Where there is an expectation also of speedy

victory and conquest, prudence

will

dictate to a general

or commander of any kind the necessity of forbearing

from all acts of destruction, by authorising and com-

mitting which he would only be injuring those posses-

sions, that are likely to come into the hands of his own

state

or

sovereign. Thus, as we are informed by Plu-

tarch, when Philip had overrun Thessaly, destroying and

plundering the whole country, Flaminius ordered his

troops to march in a regular manner, as through a ceded

country which had become their

own.

IV. In the next place,

it

is unnecessary

to

destroy

an

enemy’s country, when he has other sources, from which

‘he can draw his supplies, as for instance, the sea

or

any

adjoining territory. Archidamus, in Thucydides, attempt-

ing to dissuade the Lacedaemonians from a war with the

Athenians, asks them, what object they propose to them-

selves by such a war

?

he asks them if they suppose that

Attica can easily be laid waste owing to the advantage,

which their troops have in superiority and numbers

?

but,

says he, they have other dominions to furnish them with

supplies, and they can avail themselves also of maritime

importations.

So

that under such circumstances, it

is

best to leave agriculture unmolested, even

on

the fron-

tiers of each side: a practice lately followed in the wars

of the low countries, where contributions were paid to

both parties, in return for such protection.

V.

There are some things of such a nature, as

to

con-

tribute,

no

way, to the support and prolongation of war:

things which reason itself requires to be spared even dur-

ing the heat and continuance of war. Polybius calls

it

THE

RIGHTS

OF

WAR

AND

PEACE

367

brutal rage and madness to destroy things, the destruction

,

of which does not in the least tend to impair an enemy's

strength, nor to increase that of the destroyer: Such are

Porticos, Temples, statues, and all other elegant works

and monuments of art. Cicero commends Marcellus for

sparing the public and private edifices of Syracuse, as

if

he had come with his army to protect

THEM,

rather than

to take the place by storm.

VI. AS this rule of moderation is observed towards other

ornamental works of art, for the reasons before stated,

there is still greater reason, why

it

should be obeyed in

respect to things devoted to the purposes of religion.

For although such things, or edifices, being the property

of the state may, according to the law of nations, be with

impunity demolished, yet as they contribute nothing to

aggravate the calamities,

or

retard the successes of war,

it

is

a

mark of reverence to divine things to spare them, and

all that

is

connected therewith: and more especially

should this rule be adhered to among nations, worship-

ping the same

God

according to the same fundamental

laws, although differing from each other by slight shades

of variation in their rights and opinions. Thucydides

says that

it

was a law among the Greeks of his time, in

all their invasions of each other's territories, to forbear

touching the edifices of religion: and Livy likewise

ob-

serves that, upon the destruction of Alba by the Romans,

the temples of the

Gods

were spared.

VII. What has been said of the sacred edifices of re-

ligion applies also to monuments raised in honour of the

dead, unnecessarily to disturb whose ashes in their repose

bespeaks

a

total disregard to the laws and ties of our

common humanity.

VIII. Although it does not fall within the province

of

this treatise to inquire into the utility of war in all

its

various branches, but only to regulate its practices by

confining them within due and lawful bounds; yet

it

will not be improper to observe that rules and practices

derive much of their merit from the utility, with which

they are attended.

So

that one great quality, to recom-

mend the moderation above alluded to, will be found in

its preventing the enemy from being driven to those re-

sources, which men never fail, at last, of finding in

despair,

It

is

a just remark made by some Theologians,

that all

CHRISTIAN

princes and rulers, who wish to

be

368

HUGO

GRBTIUS

found

sum

in the sight of God as well as that of

men,

will

deem

it

a duty to interpose their authority to pre-

vent or

to

suppress all

UNNECESSARY

violence in,the taking

of

towns: for acts of rigour can never be carried

to

an

extreme without involving great numbers of the innocent

in

ruin, And practices

of

that kind, besides being

no

way conducive to the termination of war, are totally

re-

pugnant to every principle

of

Christianity and justice.

CHAPTER

XIII.

ON

MODERATION

IN

MAKING

CAPTURES

IN

WAR.

Effects

belonging to the subjects

of

an enemy, and taken detained

as

a

pledge or debt

-

Not

to

be taken by way of punishment for

another’s

offence- The debt or obligation, arising from a state

of

war,

illus-

trated

by examples

-

Forbearance

in

the

exercise of such aright

from

principles

of

humanity.

I.

THE

capture

of

an enemy’s goods, even in

JUST

WAR,

is

not, in

ALL

CASES,

perfectly justifiable, nor is the captor

always exempt from the ties of restitution. For strictly

speaking, according to the rules of pure justice, it is not

lawful to seize or detain goods except to the exact amount

of the debt which the enemy has incurred. Indeed goods

may be detained beyond that, as a necessary pledge of

security, but still upon the condition

of

being restored,

as

soon as the danger has ceased:

RESTORED

EITHER

LITERALLY,

Here then is

a

right of capture, which confers

no

right

of property

or

acquisition.

But

when any thing may be-

come due to

us,

either from a penalty

or

the non-per-

formance of an engagement, in both cases a right to an

enemy’s goods, if they can be taken, is acquired. By the

latter kind of debt not only the effects of the debtor

himself, but those, belonging to his subjects, may accord-

ing to the principles introduced by the law of nations be

taken as a security.

This right of the law

of

nations is very different

from

that established in impunity alone,

or

depending upon

the external force of judicia1 authority. For

as

by our

private consent the person with whom we contract ac-

quires not only an external and legal right over our

property, but an internal right, proceeding from con-

science,

so

he acquires the same right by a kind

of

common consent, which virtually comprehends the con-

sent

of

individuals,

in

which sense the law

is

called

the

common compact

or

covenant of the state.

And

in transactions of this kind it is most likely that

nations approving

of

such

a

rule, introduced

a

law, which

24

(369)

OR

BY

SOME PROPER COMPENSATION BEING MADE.

370

HUGO

GROTIUS

might not only prevent greater evils, but also enable

every one to attain his own right.

11.

But in the other kind of debt arising from penalty,

or punishment, it does not appear, that nations consented

to the establishment of any such right over the effects

of subjects. For binding the property of one man for

the offence of another is a kind of odious act, and there-

fore ought not to be extended farther than the law

appears to have actually decreed. Nor

is

the advantage

derived from the latter, by any means equal to that

attending the former kind of debt. For what

is

due to

us from damage, or the non-performance of a treaty may

be considered as a part

of

our effects, but

it

is

not

so

with the obligation to punishment, which

is

purely of

a

personal nature, therefore no

loss

is

incurred by relin-

quishing this right.

Nor is the argument in the least weakened by what

was said before

*

respecting the Athenian law. For there

it

was maintained that subjects were not bound to suffer,

because the state was amenable to punishment, but in

order to compel the state to do what she ought to

do,

in bringing the guilty to punishment: a debt arising

from duty, and relating to obligations of the former kind,

rather than to those of the latter. For there is a differ-

ence between being obliged to punish another and being

one’s self amenable to punishment: tho’ the latter may

frequently arise from the neglect of doing the former,

but still there

is

the same distinction between them, as

between cause and effect.

The goods of subjects can only be taken by way of

reprisal in return for other goods taken by the enemy;

but they can never be taken as a punishment for the

neglect

of

bringing offenders to justice. The delinquents

themselves, in the number of whom may be reckoned

those, who have neglected to discharge their duty in this

respect, must answer for such offences.

111.

The goods of subjects may be taken, and

a

prop-

erty acquired therein, not only

.in

order to obtain pay-

ment

of

the

ORIGINAL

debt, which occasioned the war,

but of

OTHER

debts also, to which the same war may

have given birth. And in this sense the words of those

are to be taken, who maintain, that captures in war are

not

a

perfect compensation for the principal debt, but

only

used

as

a

means to enforce satisfaction for the

*See

b.

iii

ch.

ii.

of

this

work.

THE

RIGHTS

OF

WAR

AND PEACE

371

damages sustained from aggressions. Thus the Romans,

in

their dispute with Antiochus, as related by Livy,

thought it but right for that king to make reparation for

all the expenses incurred in the war, which

he

had

oc-

casioned. Indeed any terms, that may be justly imposed

upon the conquered may justly be enforced by war.

IV.

The right of seizing the goods of the innocent sub-

ject of an enemy seems to have been introduced, in order

to compel the original aggressor, or debtor to grant

redress for the injury he had done: and although his

falling on the innocent may be no way repugnant

to

what is legally right, it is in some measure

a

departure

from the principles of humanity.

On

the other hand,

history, especially the Roman history, abounds in ex-

amples of humanity, where lands have been restored to

a conquered enemy, upon condition of their belonging to

the

STATE,

and becoming subject to the payment

of

a

tribute.

CHAPTER

XV.*

ON

MODERATION

IN

ACQUIRING DOMINION.

How

far internal justice permits

us

to acquire dominion

-

Moderation,

in

the use

of

this right over the conquered, laudable-hcorporat-

ing them

with

the conquerors-Allowing them to retain their

dominions

-

Placing garrisons therein

-

Imposing tributes or other

burdens-Utility of such moderation

-

Change in the

form

of

a

conquered government-The conquered permitted

to

retain some

part

of

their former liberties-Especially in matters

of

religion-

Clemency to be shewn.

I.

THAT

equity and moderation towards individuals,

which are

so

highly extolled, are still more deserving of

admiration, when exercised towards nations and king-

doms; where injustice would be attended with more signal

calamities, and moderation with more beneficial effects.

In just war the right of dominion over a people, and

the sovereign power, which that people possess, may be

acquired as well as any other right. But the claims to

such a right ought by no means to be prosecuted be-

yond

indemnity for aggression, and security against

future evils.

But this motive,

so

necessary to be observed, espe-

cially in all treaties of peace,

as

well as in the use of

victory, is often confounded with others. In other points

a

sovereign prince

or

state may relinquish a claim from

a

principle of moderation, but where the future security

of

their subjects is concerned, it is an act of cruelty

rather than of moderation to relax too far in favour of

a

conquered enemy.

11.

Aristotle has, more than once, said, that war

is

undertaken for the sake of peace, and toil endured in

order to obtain rest. And in the same manner, Cicero

has observed, that men go to war, that they may live in

peace without molestation and injury. War too, as we

are instructed by the teachers of true religion, may be

made, to remove every thing that interrupts, and stands

in

the way

of

peace.

+The translation proceeds from

the

XIII.

to

the

XV.

Chapter

of

the

origina~.-TRANrLAToL

(371)

THE

RIGHTS

OF

WAR

AND

PEACE

373

In

the primitive ages, as we find from history, wars

in

general were made to preserve territories rather than to

extend them. And any deviation from this rule was

thought unlawful: thus the prophet

Amos

reproves the

Ammonites for their love

of

making conquests.

111.

The prudent moderation of the ancient Romans

approaches nearly to this model

of

primitive innocence.

For although they made conquests, they mitigated the

fate

of

the conquered by incorporating them with them-

selves.

IV. Another mark of moderation in the use of victory

is

leaving to conquered kings, or nations the dominions,

which they

LAWFULLY

held before.

Polybius highly extols the merit and wisdom of Antip

onus, who, having Sparta in his power, allowed the

inhabitants to retain their national polity and freedom.

V. Sometimes indeed a conqueror, though allowing a

subjugated people to retain their dominion and sov-

ereignty, must provide for his

own

security, by placing

garrisons in their country,

VI. Contributions too are frequently imposed and

levied, not

so

much by way of indemnity for expences

incurred, as for a future security between the conqueror,

and

the conquered country. Upon the same principle, as

was before* observed, in explaining the nature of

un-

equal treaties, conditions may be imposed also requiring

a conquered power to deliver up a certain number of her

ships and forts, and to reduce her troops to a limited

number.

VII. But leaving to conquered powers a part

or

the

whole

of

their dominions

is

not only sometimes an act

of justice and humanity, but an act

os

sound policy also.

Among other

of

Numa’s institutions, his manner

of

cele-

brating the rites of

TERMINUS,

the

DEITY

OF

BOUNDARIES,

is

much commended; for he prohibited the use of blood

in those ceremonies, as an intimation that. nothing was

more conducive to the peace and harmony

of

the world,

than

for

every nation to confine herself within her proper

bounds.

In conformity to which maxim

Florus

observes, that

it

is

more easy to make conquests than to keep them.

TO

which rule Plato, in his third

book

of Laws, adapts the

proverbial expression of Hesiod, that

HALF

IS

BETTER

THAN THE WHOLE.

*

B.

ii.

ch.

xv.

sect,

7.

374

HUGO

GROTIUS

VIII.

The Lacedaemonians and the Athenians anciently

claimed no farther dominion over conquered cities and

states, than purely wishing them to adopt forms of gov-

ernment like their own, the Lacedaemonians living under

an aristocratic, and the Athenians under a democratic

system. But whether such changes were conducive to a

conqueror's security,

it

is

not to our present purpose to

examine.

IX.

If

it is not perfectly safe to forbear exercising

ANY

dominion over a conquered enemy, the matter may be

so

regulated as to leave him some portion of his former

sovereignty and power. Thus among the Jews the scep-

tre remained with the Sanhedrim, even after Archelaus

was deprived

of

his kingdom; and Alexander

in

many

cases allowed Darius to remain a sovereign over others,

while he required of him submission

to

himself.

X.

Even though a conquered power was deprived of

all sovereignty, she might be allowed to retain some of

her laws, privileges, and magistracies of inferior impor-

tance. Thus, Pliny, in his letters, informs

us,

that in the

proconsular province

of

Bithynia, the city of Apamaea

was allowed to regulate the form

of

her government

at her own pleasure, and, in other places, the Bithynians

were permitted to retain their own magistrates, and their

own senate.

XI.

This indulgence ought to be shewn to every peo-

ple, especially in their attachment to the religion of their

forefathers, of which they should never be deprived but

with their own consent and conviction. An indulgence,

which Agrippa in his address to Caius, as cited

by

Philo

in the account of his embassy, approves of, as highly

grateful to the conqnered people, and by

no

means grej-

udicial to the conqueror. At the same time a conqueror

will take care that erroneous opinions do not prevail to

the prejudice and overthrow of true religion, as was done

by Constantine upon his crushing the party

of

Licinius,

and afterwards by the Franks and other kings.

CHAPTER

XVI.

ON

MODERATION

WITH

RESPECT

TO

THINGS EXCLUDED

THE

LAW

OF

NATIONS.

Internal justice requires the restitution of things taken from others by

an enemy in unjust war

-

Deductions made-Subjects and

coun-

tries,

if

unjustly seized by

an

enemy, to be restored to their original

sovereign -The time, when the obligation to restore them expires,

defined

-

What is to

be

done in doubtful cases.

I.

How far things taken in just war become the prop-

erty of the captors has been explained before. From

which a deduction must be made of things recoverable

by the right postliminium, those being no captures at all.

But things, taken in unjust war, are to be restored,

not only by those, who have taken them, but by others

also into whose hands they may have by any means fallen.

For,

as

the Roman lawyers say, no one can convey to

another a greater right than he himself possesses. The

original captor had no just title to any property therein,

neither can the person, deriving his title through him,

establish any better claim.-A

SECOND

or

THIRD

possessor

may have acquired a property therein, which the law

presumes he has a right to, till the contrary be shewn,

and for which an action may be maintained. Yet it is

a

right of which he cannot honestly avail himself against

the real owner, from whom it was unjustly taken.

11.

and

111.

Therefore such things are to be restored

to

those, from whom they were taken, which we find in

ancient times was often done. Livy in relating the de-

feat of the Volscians and Aequi by a Roman Consul,

says that the booty was exposed in

a

public place,

for

the space

of

three days, that every one, coming to rec-

ognise what belonged to him, might take it away.*

*a

The difficulty of recognising things of this nature, and the endless

disputes, which would arise from the prosecution of the owner’s claims

to them, have been deemed motives of sufficient weight for the estab-

lishment of

a

contrary practice.

It

is

therefore with reason, that move-

ables or booty are excepted

from

the right of postliminium, unless

retakenfrom the enemy immediately after his capture

of

them;

in

which

case the proprietor neither finds

a

difficulty in recognising his effects,

noria

presmed

to

hve

relinquished them.*-Vattel b.iii.ch.xiv.sect.

log.

FROM

THE

RIGHT

OF

POSTLIMINIUM

BY

(375)

376

HUGO

GROTIUS

But

if

any one has become possessed

of

such

a

thing

by purchase,

it

may be asked, if he can charge the per-

son

from whom

it

was originally taken, with the price

which he has paid for it

?

According to the principles

before

*

laid down, he certainly may charge

as

much to

the person losing it, as the repossession of a thing, which

he despaired of ever recovering, is worth.

The history of Abraham seems applicable to this

sub-

ject, when he returned from his victory over the five

kings. Being a man of noble and exalted piety, he would

appropriate nothing to himself, but considering the things

retaken, as his own right, in recompence for his labour

and danger, he devoted a tenth part to God, after de-

ducting the necessary expences, and divided a certain

portion among his companions.

IV.

As

THINGS

are to be restored to their original own-

ers,

so

SUBJECTS

are to be restored to their former lawful

sovereigns.

V.

The period also, when the obligation to restitution

expires, is often a subject of inquiry. But this is a ques-

tion, when arising between subjects

of

the same kingdom,

which must be settled by the municipal laws

of

that

country: but when the contending parties are the subjects

of foreign powers, the matter can only be decided upon

a

conjecture of the time sufficient to constitute a pre-

sumed dereliction of property.

VI.

But where the right of war is doubtful, it will be

safest to follow the conduct of Aratus

of

Sicyon,

in

ad-

vising the new possessors in some measure to prefer

taking a sum of money in lieu of the possession, and

recommending the same maxim to the original owners,

to prefer a sum of money, if they could obtain it, equiv-

alent to the recovery of their right.

*B.

ii.

ch.

x.

sect.

9.

CHAPTER

XVII.

RESPECTING

THOSE

WHO

ARE

NEUTRAL

IN

WAR.

Nothing to be taken belonging to neutrals,

but

under circumstances

of

extreme necessity, and with

an

intention to

pay

the

full

price

of

it- Conduct

of

neutral powers towards belligerents.

I. IT

MAY

appear superfluous to speak of neutral

powers, against whom no rights

of

war can exist. But

as war, under the plea of necessity, occasions many

aggressions to be committed against them, especially

when bordering upon the seat of its operations,

it

may

be necessary briefly to repeat a former assertion, that

nothing short of extreme exigency can give one power

a right over what belongs to another no way involved

in the war. The case too

is

equally clear that no emer-

gency can justify any one in taking and applying to his

own

use what the owner stands in equal need of him-

self. But even where the emergency can be plainly

proved, nothing can justify

us

in taking

or

applying the

property of another to our use, beyond the

IMMEDIATE

DE-

MANDS

OF

THAT

emergency. Where the

CUSTODY

of

a

thing, by securing

it,

is sufficient for the purpose, the

USE

and

CONSUMPTION

of it

is

absolutely unlawful.

If

the

USE

of

it

is

necessary,

it

must not be

ABUSED:

and

if

the entire

ABUSE

of it be requisite, the full value should

be paid.

11.

Again, according to what was said in a preceding

part of this book, it is the duty of those, who profess

neutrality in a war to do nothing towards increasing the

strength

of

a party maintaining an unjust cause, nor to

impede the measures of a power engaged in a just and

righteous cause. But in doubtful cases, they ought to

shew themselves impartial

to

both sides, and to give no

succour to besieged places, but should allow the troops

of each to march through the country, and to purchase

forage, and other supplies. The Corcyraeans, in Thucyd-

(377)

378

HUGO

GROTIUS

ides, say that

if

the Athenians intend to remain neuter,

they ought either to prohibit the Corinthians from en-

listing men in the territory

of

Attica, or to give

THEM

the same privilege. The Romans objected to the

con-

duct of Philip king of Macedon, charging him with a

double violation of treaties, both by injuring the allies

of the Roman people, and assisting the enemy with

supplies of men and money.

CHAPTER

XIX.*

ON

GOOD

FAITH

BETWEEN ENEMIES.

Good faith due to enemies of every description-Due even to

pirates, and others

of

the same kind, in all treaties with them-

A

promise given to them, binding, when not extorted by fear

-Oaths to be inviolably observed -The law of nations does not

allow fear to be alleged as

an

exception to the above rules-

Good

faith to be observed even to

a

treacherous enemy-This

obligation ceases, where one of the parties violates his engage-

ments

-

Or refuses a just compensation

-

Even where the obliga-

tion arose from a different contract-From

loss

occasioned-Or

from

a

penalty- Application

of

these principles

to

war.

I. IT

WAS

before said that the number and extent of

actions, lawful in war, may be considered either upon

their own intrinsic merits, or as rising out of some ante-

cedent engagement. The former point having before

been fully explained, this is the proper place for discuss-

ing the latter, which comprehends the good faith

of

enemies towards each other.

Cicero, in his fifth book on the bounds of good and

evil, has well observed that every one must approve and

commend a disposition to adhere faithfully to

our

engage-

ments not only from disinterested motives, but in some

cases even in opposition to our own interest. And Aug-

ustine says that it is right to maintain the pledge of faith

given to an enemy, for under the character of enemies

men do not lose their right to the fulfilment of a promise,

a right which every one possessed of reason is capable of.

It

is the power

of

reason and speech from which the

obligation of promises springs.

Nor

is it to be supposed

that, because it is lawful to deceive an enemy on some

occasions, the same rule will authorise

a

violation

of

faith in engagements. For the obligation to speak the

truth arises from causes antecedent in their existence

to

any state of warfare, and they are causes which, a state

of warfare may render

it

necessary to change

or

abridge.

But

a

promise confers a new right of itself,

A

distinc-

tion which did not escape the notice of Aristotle, who,

*The

translation proceeds from the xviith

to

the xixth

chapter

of

the

Odginal.-TRANSLATOR.

(379)

380

HUGO

GROTIUS

in speaking of truth, says that he does not consider

truth and sincerity in engagements, with relation to

jus-

tice

01

injustice, but as belonging to another class of

virtues.

11.

As

to engagements with pirates, we may observe,

that Pompey in a great measure concluded the disputes

with them by treaty, sparing their lives, and allowing

them places to reside in,

on

condition of their abandon-

ing their former way

of

life. The law of nations indeed

has not established the same mode of communication

with them, as among regular enemies in just and lawful

war: but still the very circumstance of their being

MEN,

entitles them to those privileges which are sanctioned by

the law of nature, among which the observance of en-

gagements is one.

111.

Let

us

consider if a more specious argument than

Cicero’s may not be devised on this subject.-In the first

place it may be stated that atrocious malefactors, forming

no part of a state, may be punished by any one what-

ever, according to the law of nature. For those, who

may be punished with death, may upon the same princi-

ple be deprived

of

their property and all their rights.

And among rights may be enumerated the right of

requiring a fulfilment of promises and engagements: the

guilty may therefore be deprived of this right by way

of penalty. In reply to which it may be said, this will

certainly be the case, if the person is treated with, but

not as a malefactor: for the very act of treating with

him shews that he is not considered any longer in that

light, but as one entitled to all the rights of treaty, the

criminal part

of

his character not being taken into the

account, all penalties on that score being, as

it

were re-

mitted. For every act of treaty must be interpreted

so

as to avoid absurdity.

IV.

An

objection to treating with pirates upon princi-

ples of good faith is deduced from their calling, which

is to extort terms by fear. Now where a promise has

been extorted, the promisor is released from his engage-

ment, as having unjustly sustained a damage, by an act

repugnant to the nature

of

human liberty, and to the

nature of human action, which ought to be free.

This,

it

must be admitted, may sometimes happen, but

does not apply to all promises made to pirates.

For

to

make the person,

to

whom

a

promise has been given,

liable to release the engagement, the promiser himself

THE RIGHTS

OF

WAR

AND

PEACE

.

38

1

must have been forced to give the promise under im-

pressions of unjust fear.

So

that

if

any one has prom-

ised a ransom in order to redeem a friend from captivity,

he will be bound by his promise.

For

in this case there

was

no

impression of fear, as he came voluntarily to

make the contract.

V.

A

promise too made through the compulsion of fear

will be binding, where it has been ratified by the solemn

sanction of an oath: for in that case it is not only one

man making an engagement to a fellow creature, but

binding himself to

God

by the most solemn appeal:

against which neither fear

nor

any other motive can form

an exception. Yet the heir of a promiser is not bound

by any such obligation: because inheritances pass accord-

ing to the rules

of

human intercourse established at the

original institution of property: but the divine right to

the fulfilment of oaths, as such, is not included in these.

From the above arguments a conclusion may be deduced,

that if any one violates a pledge given to such an enemy

either upon oath

or

without oath, he will not

on

that

account be liable to punishment among other nations,

because from the general horror which piracy excites,

nations have thought proper to pass over without notice

the violation of rules

of

faith towards them.

XI.*

Solemn war, signifying such as is proclaimed

and begun

on

both sides by authority

of

the sovereign

or

state, among its many other legal rights, includes

also that of giving validity to every promise, which may

be conducive to its termination,

so

that if either party,

through an ill-grounded fear of further calamities, has,

even against his will, made promises unfnvourable,

or

acceded to terms disadvantageous to himself, such an

engagement will be binding.

For

the law of nations

allows belligerent powers to alarm each other, if possible,

into submission upon the most unequal terms, in the

Same madaer, as

it

gives a sanction

to

many things not

strictly equitable according to natural and municipal law.

Fcr

if such a practice had not been established, wars,

which' are

so

frequent, could never have been brought to

a conclusion, an object

so

much for the interest

of

man-

kind,

These are the rights

of

war which Cicero says ought

to be inviolably preserved with an enemy: for an enemy

*Sections

VI,

VII, VIII, IX

and

X

of

the

original

are

omitted

in

the

translation.

("or.)

382

HUGO

GROTIUS

not only retains his natural rights

in

war, but certain

other rights originating in the consent of nations. Yet

it

does not follow from hence that any one, who has

extorted such a promise in unjust war, can, consistently

with piety and the duties of a good man, retain what he

has

so

received, nor can he compel another to stand to

such engagements, whether upon oath, or not, ,For the

natural and internal injustice of such a promise always

remains the same, nor can the injustice be removed or

altered, till it has received a new and free concurrence

from the party, by whom it was given.

XI.

The only impressions of fear, that can be lawfully

inspired in regular war, are those which are approved of

by the law of nations. Thus no one can avail himself

of a promise, extorted from an ambassador under im-

pressions of fear excited by the seizing of his person.

XIII. and

XIV.

There are two cases, in which a per-

son may not perform his engagement or promise, with-

out being guilty of treachery: and those are, where the

conditions have not been fulfilled, or some compensation

has been made.

For

in

one

and the same treaty all the

clauses seem connected with each other, as a kind of

condition expressing the intention of one party to fulfil

his engagement,

if

the other shall do the same. There-

fore Tullus, in replying to the Albans invokes destruction

upon the head of that people who first rejected the just

claims of ambassadors demanding ,restitution, wishing

that all the calamities of war might fall upon them.

For, says Ulpian, he shall

no

longer be held as a con-

federate, who has renounced a treaty, owing to some

condition, on which it was made, not being fulfilled. For

which reason, wherever it is intended otherwise, it is

usually stated in express terms, that the violation of any

particular clause shall not annul the whole treaty.

XV. The origin of compensation was explained in the

second book of this treatise,* where

it

was said to be the

power and right of receiving an equivalent, for Some

thing belonging to

us,

which is in the hands of another,

or any thing due to

us,

which we cannot otherwise

obtain: and much more then have we a right on the

same account to detain any thing which is

ALREADY

IN

OUR

POWER,

whether it be of a corporeal

or

an incor-

poreal kind.

So

that we are not obliged to perform

a

promise, if it be no more than equivalent to

a

thing of

*

B.

ii.

ch.

vii.

sect.

2.

THE

RIGHTS

OF

WAR

AND

PEACE

383

ours which the other party detains. Seneca, in his sixth

book

ON

BENEFITS,

says that a creditor often becomes

under an obligation to his debtor,

if

he takes more than

an equivalent for his debt. For though

it

may be

granted that he has lent money, yet

if

by such

a

loan he

has obtained the possession of lands, which he never

bought, he changes situations with his debtor, and be-

comes

a

debtor in his turn.

XVI.

It

will be the same,

if

one of the contracting

parties owes as much, or more, from some other engage-

ment: and the debt cannot otherwise be obtained, than

by taking advantage of the present contract, though

it

has

no

connection with the former debt. But in a

LEGAL

point of view, all actions are perfectly distinct, nor can

their forms, their grounds, or their substance be con-

founded; but certain cases are confined to certain laws,

to

which

it

is

necessary invariably to adhere: one law

cannot be mixed with another, but every one in the prose-

cution of a right must tread upon invariable and beaten

ground. But the law of nations does not regard such

distinctions, it allows

us

to transgress them where there

is no other means of obtaining our right.

XVII. and XVIII. The same may be said too, where

the party exacting a promise, has not contracted any

debt by engagement, but has done an injury to the

promiser. And whatever

is

due by way of punishment

may be balanced against a promise.

XIX.

If

while a law-suit

is

depending, the parties enter

into an agreement of any kind, either to pay the costs,

or to make good other damages, they cannot avail them-

selves both of this agreement, and claim a further com-

pensation for the original matter in dispute. In the same

manner,

if

during the continuance of a war the bellig-

erents negotiate for

a

conclusion

of

the original dispute,

they are supposed thereby to settle every cause of hos-

tility, nor can they any further avail tkemselves of the

rights of war,

so

as to enjoy both the advantages

of

them, and of negotiation, at the same time. For

if

this

were the case,

no

treaties could ever be enforced with

certainty.

It

may be asked, of what nature are the things for

which a promise of compensation should be given

?

In

answer to which

it

may be observed, that such a prom-

ise or engagement may be made in lieu of some other

obligation incurred during the course of

a

war:

as

for

384

HUGO

GROTIUS

instance, where the breach

of

a truce has been commit-

ted, the rights of an ambassador violated, or any other

action done, repugnant to the principles established by

the law of nations among belligerent powers.

Still it must be observed that the parties, in making

compensation, should abstain with the utmost caution

from infringing upon the rights of a third person, es-

pecially where this can be done without abandoning the

principles

of

the law of nations, which makes the effects

of subjects answerable for the debts of the state. Besides

it is the mark of

a

dignified mind to adhere to engage-

ments even after receiving an injury. On which account

the Indian sage Jarchas commended that king, who on

sustaining an injury from a neighbouring and confeder-

ate power, said he should not think himself released

from his sworn engagements, which were solemn acts,

that no injustice on the part of another could repeal.

Almost all questions relating to pledges of faith given

by one belligerent power to another, may be solved upon

the principles before laid down, in explaining the nature

and force of promises in general; of oaths, treaties, and

conventions, and also in explaining the rights of the ob-

ligations of kings, and the method of interpreting doubt-

ful points. But in order to remove every doubt and

difficulty, perhaps a brief discussion of the most usual

and practical topics of negotiation will not be deemed

tedious

CHAPTER

XX.

ON

THE

PUBLIC

FAITH,

BY

WHICH

WAR

IS

CONCLUDED;

TURE

OF

ARBITRATION,

SURRENDER

HOSTAGES,

PLEDGES.

In

monarchies the power of making peace

a

royal prerogative-

In

aristocracies and democracies, this right belongs to a greater number

of

persons-In what manner the public dominions

or

any part

of

them may be alienated-How far a peace concluded by the king

binds the state, or his successors

-

Property of individuals ceded for

the benefit

of

the

state

at the time of making peace-Indemnity

to

those individuals- Losses sustained in war-

No

distinction between

things acquired according to the lam

of

nations and the civil

law-

Transactions of the sovereign with foreign nations deemed valid

from motives of public utility -General rule

of

interpreting the

terms of peace-In doubtful cases the former

state

of

things sup-

posed to be continued by

a

treaty of peace-Things restored tothe

state they were in before the war

-

Independent states, voluntarily

joining one of the belligerent powers cannot claim indemnity

of

the

other

-

General amnesty- Private debts subsisting before the

war

not included therein- Restoration of captures-Rules respecting

such restorations-Dubious points

to

be

interpreted

to

the prejudice

of the party dictating the terms

-

Distinction between new causes

of

war, and the breach of

a

peace

-

Rupture by any act contrary to the

terms

of

peace in general

-

Infraction

of

a

treaty by allies or subjects

-Violation of a particular treaty

-

Heads of treaties

-

Penalties

annexed

-

Unavoidable impediments to the fulfilment of

a

treaty-

Peace continued

at

the option of the injured party

-

Relations

of

amity-How far receiving subjects and exiles may be considered

as

a

breach thereof

-

Victory- War concluded by arbitration

-

Arbi-

trators bound by rules

of

strict justice -Absolute, and conditional

surrender

-

Hostages can be detained for

no

other than the express

cause for which they were given-Released by the death of the

party for whom they were given

-

Obligation

of

pledges-Right

of

redeeming them lost.

I.

Good faith, either expressed or implied, must be the

foundation of every treaty between hostile powers. And

again the faith that

is

expressed is either of a public or

a

pri-gate nature, and the pledges given either by the

SOV-

ereign,

or

inferior authorities in states constitute the

public faith.

It

is, by such pledges given

on

the part of

the sovereign power alone, that peace can be concluded,

or the rights

of

war enforced. In the termination of

25

(385)

COMPRISING

TREATIES

OF

PEACE,

AND

THE

NA-

386

HUGO

GROTIUS

every

war, either the principal, or accessory causes are to

be

considered, Treaties are in general regarded as the

principal instrument, by which wars are ended, and the

mediation, or decision of a third person or power

is

deemed a secondary or accessory means.

11.

The per?~~n, who has authority to begin a war, is the

only one to whom the right of making peace can properly

belong, according to the general maxim, that every one

is the best judge in the management

of

his own affairs.

From hence it follows, that public war can be made by

the sovereign power alone on each side: a right which in

every kingly government is very justly vested in the

crown.

,

111.

and IV. In popular or aristocratic forms of govern-

ment, the right

of

making war, or concluding peace, is

generally lodged in some public council or body, where a

majority of voices may form treaties, conventions, or

resolutions, which will be binding upon the dissentient

part of such council. And all who are bound by a peace,

whether approving it

or

not are entitled to its benefits.

V. In examining those objects, which form the most

material part of treaties, we may observe, that kingdoms

are not

so

much a patrimony, which may be alienated at

pleasure, as a trust, placed in the hands of the sovereign

for the benefit of his people. Indeed kings themselves are

aware of this, even before the crown descends upon their

heads, and they receive it upon condition of adhering to

such sacred obligations.

Nor can such alienations ever be made,

so

as to be

attended with consequences like those of private contracts,

or

to

render the

goods

and effects of subjects answerable

for

such engagements. For if that were the case, the

fundamental laws of the kingdom, prohibiting such alien-

ations, would be of no effect,

To

render the alienation of the whole public dominion

valid, the consent of the constituted authorities of the

state is requisite. And indeed to confirm the transfer of

any particular portion, the consent of the whole body as

well as of ,that particular member will be necessary: for

otherwise such alienation

would

be like the violent sep-

aration of a limb from the natural body.

A whole people may in a case of extreme necessity

transfer themselves to the dominion

of

another,

a

right

which undoubtedly was reserved at the original formation

of society.

THE

RIGHTS

OF

WAR

AND

PEACE

381

Neither

is

there any thing to prevent a

king

from alien-

ating

his patrimonial and private possessions. Yet there

may be parts of the royal dominion, which the sovereign

cannot alienate from the crown, especially,

if

he

has

re-

ceived

it

upon condition of making

no

personal appro-

priation of any thing belonging thereto.

There are two ways in which the possessions of the

crown may become the patrimony of the king, either as

separable or inseparable parts of the kingdom. In the

latter case they can only be transferred with the king-

dom itself, but in the former, they may be alienated by

themselves. And where the crown is not patrimonial

and hereditary, the restrictions upon the sovereign in this

respect are much greater.

VI.

A

nation and a king’s successors are bound by his

engagements, in proportion to the power, which he de-

rives from the constitution, of making such engagements.

For

though this power may not be absolutely unlimited,

yet it ought not to be clogged with unnecessary restric-

tions. It should be such as may enable him to exercise

his discretion and judgment on proper occasions for the

benefit of his people.

The case will be different, where a king’s power over

his subjects

is

like that

of

a

master over his household,

more than of a sovereign over his state,

as

where he has

entirely subjugated a people, or where his controul over

their property is absolute. Thus Pharaoh purchased all

the land in Egypt, and others have admitted strangers

into their territories allowing them to hold lands upon

such conditions.

For

here, there is another right in addi-

tion to that

of

a sovereign, and it

is

a right, which sover-

eignty alone without conquest could never have conferred.

VII.

The right of sovereigns to dispose of the effects

of

individuals, in order to make peace, is often a disputed

point, nor can they exercise this right over the property

of subjects in any other manner than as sovereigns.*

The property of subjects is

so

far under the eminent

*

((The necessity

of

making peace authorises the Sovereign

to

dispose

of

the property

of

individuals; and the eminent dominion gives him

a

right do it. Every thing

in

the political society ought

to

tend to the

go&

of

the community; and since even the powers

of

the citizens

are

subject to this rule, their property cannot

be

excepted. The state Could

not subsist,

or

constantiy administer the public affairs in

the

most ad-

vantageous

manner,

if

it had not

a

power to dispose occasionally

Of

dl

kinds

of

prOp&y.)LVattel,

b.

iv.

ch.

ii.

sect.

11.

ibid.

b

i.

ch.

XX.

sect.

244.

388

HUGO

GROTIUS

controul of the state, that the state or the sovereign who

represents it, can use that property, or destroy

it,

or

alienate

it,

NOT ONLY

IN

CASES

OF

EXTREME NECESSITY,

which

sometimes allow individuals the liberty of infringing upon

the property

of

others, but on all

OCCASIONS,

where the

public good is concerned, to which the original framers

of society intended that private interests should give way.

But when that is the case,

it

is to be observed, the state

is bound to repair the losses

of

individuals, at the public

expence, in aid

of

which the sufferers have contributed

their due proportion. Nor will the state, though unable

to repair the losses for the present, be finally released

from the debt, but whenever she possesses the means

of

repairing the damages, the dormant claim and obligation

will be revived.

VIII.

There must be some hesitation in admitting the

opinion of Ferdinand Vasquez, who maintains that the

state is not bound to repair the losses, which are occa-

sioned to individuals in the course

of

war, as

those

are

accidents permitted by the rights of war.

For those rights regard the relation

of

foreign states

and enemies to each other, but bear

no

reference to the

disputes of subjects among themselves, who, being united

in the same cause, ought to share the common

losses,

which happen to them in supporting the privileges of

their society.

It

is a rule likewise established by the

civil law, that no action can be brought against the state

for the losses sustained in war, as every one is thereby

induced

to

defend his own property with more earnest-

ness and spirit.*

*((Some damages are done deliberately and by way of precaution,

as when a field, a house, or a garden, belonging to a private person,

is

taken for the purpose

of

erecting

on

the spot a tower, rampart, or

any other piece

of

fortifkation,"or when his standing corn, or his

storehouses are destroyed, to prevent their being of use to the enemy.

Such damages are

to

be

made god to the individual,

who

should bear

only his quota of the

loss.

But there are other damages, caused by

inevitable necessity, as for instance, the destruction caused by the

artillery

in

retaking a

town

from the enemy, These are merely acci-

dents, they are misfortunes, which chance deals

out

to

the proprietors

on

whom they happen to fall. The sovereign ought indeed to shew

an

equitable regard for the sufferers,

if

the situation of his affairs

will admit of it: but

no

action lies against the state for misfortunes

of

this nature,-for

losses,

which she

has

occasioned, not wilfully, but

through necessity and mere accident, in the exertion

of

her rights.

The 'same may

be

said

of

damages

caused by

the

enemy.))

Vat.

b.

iii.

ch.

N.

sect.

232.

THE RIGHTS

OF

WAR

AND

PEACE

389

IX.

Some make a distinction between the property which

subjects are entitled to from the law of nations and that

which they possess by the authority of the civil law,

allowing the king

a

more extensive controul over the

latter, even to the power of taking it without cause

or

compensation, which is not the case with property of the

former kind. But this is an improper distinction. For

whatever may be the origin of property, it

is

always

attended with peculiar effects according to the law of

nature:

so

that

it

cannot be taken away for any other

reasons than those inherent in the nature of property

itself, or derived from some act

of

the owners.

X.

The prohibition respecting the property of individ-

uals being given up, except for some public advantage,

is a matter resting entirely between a sovereign and his

subjects, and a compensation for losses is an affair be-

tween the state and individuals. But in all transactions

between a king and foreigners, the act of the king is

sufficient to give them

NATIONAL

validity, not only out of

respect to his personal dignity, but according to the law

of nations, which renders the effects

of

subjects respon-

sible for the acts of the sovereign.

XI.

In interpreting treaties of peace, favourable cir-

cumstances are always to be taken in their utmost lati-

tude, and unfavourable circumstances to be limited as

strictly as possible.

*

Regarding purely the law of nature, the most favour-

able construction

is

that, whereby every one is restored

to his own property and possessions. Therefore where

the articles of

a

treaty are ambiguous, the construction

should go

so

far, as to grant the party, who has evi-

dently justice on his side, the object for which he went

to war, and likewise indemnity for the losses which he

has sustained.

But it is not allowable that either party should gain

more than an indemnity, or demand any thing by way

of

punishment, which is of an odious nature.

As

in making peace, it scarcely ever happens that

either party will acknowledge the injustice of his cause,

or of his claims, such a construction must be given,

as will equalize the pretensions of each side, which

may be accomplished, either

by

restoring the disputed

possessions to their former situation,

or

by leaving them

in the state, to which the war has reduced them.

*See

b.

ii

ch.

xv.

sect.

12.

390

HUGO

GROTIUS

XII. Of these two methods, in a doubtful case, the

latter is preferred, as being the more easily adjusted,

and occasioning no further change. From hence the

right of postliminium belongs to such prisoners,

as

are

expressly included in the treaty. Neither are deserters

to be given up, unless

it

be

so

agreed. For by the laws

of war any power is allowed to receive deserters, and

even to enlist them in his own army.

By

such agreement other things remain in the hands

of the possessors, by which is not meant a civil, but a

natural possession: for in war

BARE

POSSESSION

is

suffi-

cient, nor

is

any other kind looked for. And lands are

said to be

so

possessed, when inclosed or defended by

fortifications, for a temporary occupation by an encamp-

ment is not regarded in this case. Hence Demosthenes

in his speech for Ctesiphon, says that Philip was anxious

to make himself master of all the places he could seize,

as

he knew that upon the conclusion of a peace, he should

retain them.

Incorporeal rights cannot be held but by the occupa-

tion of the things with which they are connected; as for

instance, the services

of

lands, or through means of the

persons, to whom they belong: but the holders of such

rights lose them, when an enemy has become master

of

the country.

XIII. In that other mode of treaty, whereby possession,

that has been disturbed in the course of a war, is restored,

it

is proper to observe that the last possession, immedi-

ately before the war began, is that, which is always meant,

so

that the individuals then unjustly ejected, may have

recourse to law, either to obtain possession by a provi-

sional decree, or

to

make good their claim.

XIV.

If

an independent people

VOLUNTARILY

and

SPON-

TANEOUSLY

place themselves under the controul and pro-

tection

of

one of the belligerent powers, such a people

cannot be included among those entitled to restitution,

which only belongs to those who have suffered losses by

violence, through fear, or any lawful stratagem of war.

Thus when peace was made among the Grecian states,

the Thebans retained Plataea, observing that they neither

owed their possession of

it

to violence, nor treachery,

but to the free surrender of those, to whom it Belonged.

XV. Unless there is an express stipulation to the con-

trary, it is understood that, in all treaties of peace, there

is

an

implied assent that no actions are to be brought for

THE RIGHTS

OF

WAR

AND PEACE 39

1

losses occasioned by the accidental calamities

of

war,

either to states or individuals. For those are natural

consequences of a state of hostilities: and

it

is

supposed

that in doubtful cases, no belligerent would consent to

be convicted

of

injustice.

XVI.

The debts, owing to individuals, at the beginning

of a war, are not to be thought thereby discharged.

For

they are not things acquired by the laws of war:

for

war only prevents the claim to them from being prose-

cuted, but by no means releases the obligation.

SO

that

when the impediment of war is removed, such debts re-

tain their original force. For though it ought not to be

presumed that any one should easily be deprived of

a

right subsisting before the war, yet this is to be under-

stood of the rights arising out of the foundation

of

prop-

erty, wgereby a community and equality

of

goods was

abolished. For states and governments, says ICicero,

were originally and principally designed to preserve to

every one the possession

of

his own property.

XVII.

The right to claim lands or goods

of

any kind,

by way

of

PUNISHMENT,

is not of equal force with the

above rules. For in transactions and treaties of that

kind between kings and sovereign states, all claims of

that kind seem and indeed ought to be relinquished,

otherwise peace would be no peace, if the old and original

causes

of

the war were allowed to remain and be revived.

And the most latent and remote causes are supposed to

be included in the most

GENERAL

TERMS,

in treaties of

peace, whereby they are sunk in obiivion.

XVIII.

The rights of individuals to penalties are not

supposed to be abandoned, resting entirely upon diEerent

grounds: because they may be decided by legal tribunals

without appealing to the sword. Yet

as

our rights of

this

sort

are not of the same kind with those of absolute

property, and

as

penalties have always something odious

in their nature, any faint verbal conjecture will be

thought a sufficient presumption of their being remitted.

XIX.

The objection made against taking away any

rights, that existed before the war, applies chiefly to the

rights

of

INDIVIDUALS.

For where the words of

a

treaty

supply any probable conjecture,

it

is most natural to

Sup-

pose that

KINGS

and

NATIONS

have more readily din-

quished certain rights, especially in matters, where those

rights are not clearly and fully ascertained.

So

that,

giving the most favourable construction

to

their conduct,

39

2

HUGO

GROTIUS

they are, supposed to have been animated with the noble

desire of rooting up and destroying all the seeds of war.

xx.

All captures, made after a treaty is finished, must

evidently be restored. For the treaty puts an end to all

the rights of war.

XXI. But in treaties relating to the restoration of

things taken in war, a more extensive interpretation

must be given, where the advantages are mutual than

where they incline only to one side.*

In the next place all the parts of a treaty relating to

persons are to be interpreted more favourably than those

relating to things: and among those relating to things,

priority is given to lands before moveable effects, and

also among these, such as are in the hands of the state

are held in more consideration than the possessions of

individuals. And again, among things in the possession

of individuals, those are more favoured which are held

under a beneficial title, than those which are loaded with

incumbrances, as things held by money payments, or

by

dower.

XXII. The person, to whom any thing is ceded by a

treaty of peace, is entitled to the produce and fruits

of

it, from the time

of

such cession, and not farther back:

a point maintained by Augustus Caesar in opposition to

Sextus Pompey, who, upon Peloponnesus being ceded to

him, claimed also the tributes and revenues, that were

due for former years.

XXIII. The names of countries are

to

be taken accord-

ing

to the usage

of

the present time, not

so

much ac-

cording to the popular acceptation, as to that of men of

science, by whom those subjects are generally treated of.

XXIV.

These rules also are

of

frequent use, whenever

there

is

a reference to an antecedent,

or

to an ancient

treaty. For in that case the qualities and conditions of

the latter treaty are considered as a repetition of those

expressed in the former. -And the person contracting is

to be considered as having really performed his part of

the engagement, which he certainly would have done,

had he not been prevented by the party with whom he

is engaged in dispute.

((Because then the conditionof the contracting parties beingunequal,

there

is

great reason

to

believe, that he, to whose disadvantage the

in-

equality

is,

has

pretended to engage himself

as

little as possible: and

it

was

the other's business who

was

to

have

the benefit

of

it, to have

the

thing

explained in as clear a manner as possible.)) "Barbeyrac.

THE

RIGHTS

OF

WAR

AND

PEACE

393

XXV.

What some allege in excuse for a short delay in

the execution of a treaty

is

not to be admitted

as

true,

except some unforeseen necessity has occasioned the

impediment.

For

though

some

of the canon-laws may

favour such a plea, that

is

not surprising, considering

they are framed solely with the view of promoting charity

among Christians. But in this question relating to the

interpretation of treaties,

it

is

not

so

much our business

to lay down what is best and properest for every one to

do, nor even to state what religion and piety require, as

to consider what every one may be compelled by legal

authority to

do.

XXVI.

In doubtful matters

it

is

usual for an interpre-

tation to be given more prejudicial to the party who has

dictated the terms, than to the other, because in general

he is the more powerful: in the same manner, in explain-

ing the terms of a bargain, a construction

is

generally

given against the seller: as he may blame himself for not

having spoken more clearly, and openly. Whereas the

other, comprehending the terms in more meanings than

one, might fairly select that most favourable to himself.

XXVII. It is a matter of frequent dispute what consti-

tutes the breach of a peace. For

it

is

not the same

thing to break a peace,

as

to furnish new grounds and

causes of war. There

is

a great difference between these

things, both as to the penalty incurred by the aggressor,

and as to the aggrieved party being, in other respects,

released from his engagements.

There are three ways, in which a peace may be broken,

-either by doing something contrary to the very essence

of

ALL

peace,- or something in violation of the

EXPRESS

terms of a

PARTICULAR

peace,-

or

something contrary to

the

EFFECTS,

which are intended to arise from every peace.

XXVIII. A thing is done contrary to the very essence

of all peace, when hostile aggressions are committed

without any new grounds of war. But where any specious

pretext can be assigned for taking arms,

it

is

better it

should be supposed purely an act of injustice, than an

act of injustice accompanied with perfidy.

It

is

hardly

necessary to quote the words of Thucydides, who says,

((it

is

not the party, who repels force by arms, but the

power who

first

makes the attack, that violates a peace.”

Having laid down these rules,

it

remains to be consid-

ered, who are the

AGGRESSORS,

and who are the

AGGRIEVED

PERSONS,

in

the breaking of a peace.

394

HUGO

GROTIUS

XXIX.

There are some, who think that a peace

is

broken, when even those, who have been allies do

any

of these things. Nor indeed can

it

be denied, that such

an agreement

MAY

be made, for one ally to become liable

to punishment for the actions ,of another, and for a

peace to be deemed ratified and permanent only upon

conditions, partly arbitrary, and partly casual.

But it is hardly credible, unless there is the clearest

evidence of it, that peace is ever concluded upon such

terms. For it is contrary to all rule, and repugnant to

the common wishes of those, who make peace. There-

fore those, who have committed hostile aggressions, with-

out the assistance of others, will be deemed breakers of

the peace, against whom alone the injured party will

have a right to take arms.

XXX.

If

subjects have committed any act

of

hostility

without authority and commission from the state, it will

form a proper subject

of

inquiry, whether the state can

be judged responsible for the acts of individuals: to con-

stitute which responsibility,

it

is

evident that a knowl-

edge of the fact, power to punish it, and having neglected

to do

so,

are requisite.

A formal notice given to the sovereign of the offend-

ing subjects is supposed to amount to a knowledge of

the fact, and it is presumed that every sovereign is able

to controul and punish his own subjects, unless there be

some defect in his authority: and a lapse of time, beyond

what is usually taken

for

the punishment

of

civil offences

in every country, may be construed into wilful neg-

lect. And such neglect amounts to a sanction

of

the

offence.

XXXI.

It is likewise frequently made a subject of

inquiry, whether a state is answerable for the conduct of

any of her people, who do not take arms by her authority,

but serve in the armies of some other power engaged in

war. The Cerites, in Livy, clear themselves upon this

principle, that it was not by their authority their people

bore arms. And

it

is a well-founded opinion that

no

such

permission ought to be deemed as given, unless it appear

from probable reasons that it was intended it should be

granted: a thing sometimes done, according to the example

of the ancient Aetolians, who thought they had a right

to deprive every plunderer of his spoils. A custom the

force of which Polybius expresses in the following words,

“when other powers, friends and allies

of

the Aetolians,

THE RIGHTS

OF

WAR

AND PEACE

395

are at war with each other, the Aetolians may neverthe-

less serve in the armies on either side, destroying and

spoiling their respective countries.))

XXXII.

Again, a peace ought to be deemed broken,

not only by any act of violence done to the body politic

itself, but to any of the subjects, without new grounds

of war.

For

peace is made with a view to the security

of every individual subject: as the state in making peace

acts for the whole, and for all its parts.

Indeed even

if

new grounds

of

war should arise, every

one may, during the continuance of peace, defend him-

self and his property.

For

it is a natural right to repel

force by force: a right which it cannot easily be sup-

posed that those, who are upon

a

footing of equality have

ever renounced.

But to practise revenge,

or

use violence in recovering

things taken away will not be lawful, except where

jus-

tice is denied. Justice may admit of some delay: but

the other method demands prompt execution, and there-

fore should not be undertaken but in extreme emergency.

But

if

the subjects of any country persist in a course of

uniform crime, and aggression, repugnant to all natural

and civil law, in defiance

of

the -authority of their own

government,

so

that the hand of justice cannot reach

them, it will be lawful

for

any one to deprive them of

their spoils, and to exercise upon them the same rigour,

as if they were delivered up to punishment. But to at-

tack other innocent persons on that account is a direct

violation of peace.

XXXIII. Any act of violence also offered to allies, con-

stitutes a breach of the peace, but they must be such

allies

as

are comprehended in the treaty.

The same rule holds good, even if the allies themselves

have not made the treaty, but others have done

so

on

their behalf: since it is evident that those allies regarded

the peace as ratified and valid.

For

they are looked upon

as enemies, till

it

is certain they have consented to the

ratification.

Other allies,

or

connections, who are neither subjects

nor named in the treaty

of

peace, form a distinct class,

to whom any violence cdone cannot be construed into an

act of breaking the peace. Yet it does not follcm

that war may not be undertaken on such an account,

but then it will be a war resting entirely upon new grounds.

XXXIV.

A

peace is broken by doing any thing con-

396

HUGO GROTIUS

*ary to the express terms of it; and by this is likewise

meant the non-performance of engagements.

XXXV. Nor can we admit of any distinction between

articles of greater

or

minor importance.

For

ALL

the articles of a treaty are of sufficient mag-

nitude to require observance, though Christian charity

may overlook the breach of them upon due acknowledge-

ment. But to provide greater security for the continu-

ance of a peace, proper clauses will be annexed to the minor

articles, stating that any thing done against them shall not

be deemed an infraction of the treaty: or that mediation

shall be adopted in preference to having recourse to arms.

XXXVI. This seems to have been plainly done in

treaties, where any special penalty was annexed.

A

treaty indeed may be made upon terms allowing the in-

jured party his option either of enacting the penalty,

or

receding from his engagement: but the nature

of

the

business rather requires the method of mediation. It is

evident and proved from the authority of history, that one

of

the parties, who has not fulfilled his engagement,

owing to the neglect of the other to do

so,

is by no

means guilty of breaking the peace: as his obligation

was only conditional.

XXXVII.

If

there

is

any unavoidable necessity to pre-

vent one party from fulfilling his engagement, as for in-

stance,

if

a thing has been destroyed,

or

carried

off,

by

which the restoration of

it

has become impossible, a

peace shall not thereby be deemed broken, the continu-

ance of it not depending upon

CASUAL

conditions. But

the other party may have his option, either to prefer

waiting,

if

there is any reason to hope that the engage-

ment may be fulfilled at some future period,

or

to re-

ceive an equivalent, or to be released, on his side from

some corresponding article of the treaty.

XXXVIII.

It

is honourable, and laudable to maintain

a

peace, even after it has been violated by the other

party: as Scipio did, after the many treacherous acts

of

the Carthaginians. For no one can release himself from

an obligation by acting contrary to his engagements.

And though it may be further said that the peace is

broken by such an act, yet the breach ought to be taken

in favour of the innocent party,

if

he thinks proper to

avail himself

of

it.

XXXIX. Lastly, a peace

is

broken by the violation of

any special and express clause in the treaty.

THE

RIGHTS

OF

WAR

AND PEACE

397

XL.

In the same manner, those powers, who commit

unfriendly acts, are guilty of breaking that peace, which

was made solely upon condition

of

amicable relations

being preserved. For what, in other cases, the duties of

friendship alone would require, must here be performed

by'the law of treaty.

And

it

is to treaties of this kind that many points may

be referred, which are discussed by legal writers, relat-

ing to injuries done without force of arms, and to the

offences of insults. According to this principle, Tully

has observed, that any offence committed after a recon-

ciliation is not to be imputed to neglect, but to wilful

violation, not to imprudence, but to treachery.

But here

it

is

necessary,

if

possible, to exclude from the

account every charge

of

an odious kind.

So

that an

injury done to a relation

or

subject of the person,

with whom a treaty of peace has been made, is not

to be deemed the same, as one done to himself, unless

there are evident proofs that, through them, an attack

upon him was intended. And an invasion of another's

rights

is

often to be ascribed to new motives of ra-

pacity, rather than to those of treachery.

Atrocious menaces, without any new grounds

of

of-

fence, are repugnant to all terms of amity. Any one

may assume this threatening posture, by erecting new

fortifications in his territory, as a means of annoyance

rather than offence, by raising an unusual number of

forces: when it is evident that these preparations can

be designed against

no

one, but the power with whom

he has concluded peace.

XLI.

Nor

is

it contrary

to

the relations of amity to re-

ceive individual subjects, who wish to remove from the

dominions of one power to those of another. For that

is

not only a principle

of

natural liberty, but favourable to

the general intercourse of mankind. On the same grounds

a refuge given to exiles may be justified. But

it

is not

lawful to receive whole towns, or great bodies, forming

an integral part of the state. Nor

is

it

more allowable

to receive those, who are bound to the service

of

their

own state by oath or other engagement.

XLVI.* There are two kinds

of

arbitration, the one

of

such a nature that

it

must be obeyed whether the

*Sections

XLII, XLIII, XLIV,

&

XLV,

of

the

original,

relating to

decisions by lot

and

single combat,

are

omitted

in

the

translation.-

TRANSLATOR.

398

HUGO

GROTIUS

decision be just or unjust, which, Procuius says, is observed

when, after a compromise, recourse is had to arbitration.

The other kind of arbitration is where a matter ought

to be left to the decision

of

a person, in whose integrity

confidence may be placed,

of

which Celsus has given us

an example in his answer, where he says, ((though

a

freedman has sworn, that he will

do

all the services,

which his patron may adjudge, the will of the patron ought

not to be ratified, unless his determination be just.

))

This interpretation

of

an oath, though comformable to

the Roman laws, is by

no

means consistent with the

simplicity of language considered by itself. For the jus.

tice of the case remains the same, in whatever way an

arbiter is chosen, whether it be to reconcile contending

parties, a character, in which we find the Athenians act-

ing between the Rhodians and Demetrius, or to make an

absolute decree.

Although the civil law may decide upon the conduct

of

such arbiters to whom a compromise is referred,

so

as

to allow of an appeal from their decrees, or of complaints

against their injustice, this can never take place between

kings and nations. For here there is

no

superior power,

that can either rivet or relax the bonds of an engagement.

The decree therefore of such arbiters must be final and

without appeal.

XLVII.

With respect to the office of an arbiter or

mediator, it is proper to inquire, whether the person has

been appointed

in

the character of a judge, or with powers

more extensive and discretionary than legal powers.

Aristotle says that ((an equitable and moderate man will

have recourse to arbitration rather than to strict law,

ADDING

AS

A

REASON,

because an arbitrator may consider

the equity of the case, whereas a judge is bound by the

letter

of

the law. Therefore arbitration was introduced

to give equity its due weight.))

Equity does not signify in this place, as it does else-

where, that part of justice, which gives

a

strict interpre-

tation

of

the general expressions

of

the law, according

to

the intention

of

the law-giver. For that is left to the

judge. But

it

includes every thing, which it is more proper

to

do

than to omit, even beyond what is required by the

express rules

of

justice. -Such kind of arbitration being

common among individuals and subjects

of

the same

empire, it is recommended

by

St. Paul as a practice

peculiarly proper for Christians. Yet in doubtful cases

THE

RIGHTS

OF

WAR

AND

PEACE

399

it

ought not to be presumed that such extensive powers

are granted.

For

where there

is

any obscurity

it

abridges

this latitude of decision: and especially in contested mat-

ters, between independent sovereigns, who, having

no

common judge, are supposed to bind the mediators, and

arbitrators, whom they chuse, by the strictest rules

of

law.

XLVIII.

It

is to be observed that arbitrators chosen

by nations or sovereign princes may decide upon the

matter in dispute, but not confer a possession, which is

a matter that can only be decided by established rules

of civil law, for by the law

of

nations the right of pos-

session follows the right of property. Therefore while

a cause

is

pending, no innovation ought to be made, both

to prevent partiality and prejudice, and because, after

possession has been given, recovery

is

difficult. Livy in

his account of some disputed points between the people

of Carthage and Masinissa, says, “the Ambassadors did

not change the right

of

possession.”

XLIX. There

is

another kind of arbitration, which

takes place, when any one makes an absolute surrender

of himself and

all

his rights to an enemy or foreign

power. But still a distinction ought to be made, even

here, between the bounds

of

right and wrong, limiting

the submission

of

the vanquished, on the one hand, and

the authority

of

the conqueror, on the other, to a certain

degree.

For

there are particular duties, which ought to be

ob-

served in the exercise of

EVERY

right. Taking the right

of

the conqueror in its literal meaning and full extent,

it is true that he

is

entitled to impose

ANY

terms upon

the conquered, who is now placed, by the external laws of

war, in a situation to be deprived

of

every thing, even

personal liberty or life, much more then, of all his prop-

erty, either

of

a public or private kind.

L.

The

first

object of a conqueror should be to avoid

committing any act

of

injustice, or using any rigour, ex-

cept the demerits and atrocity of the enemy require

it;

to

take nothing but by way of lawful punishment. Observ-

ing these bounds, as far as security allows,

it

is always

laudkble to incline to moderation and clemency. Some-

times even circumstances may require such a line

of

con-

duct, and the best conclusion

of

any war is that, which

reconciles all contending claims by a fair adjustment, and

a

general amnesty. The moderation and clemency

to

4b

HUGO

GROTIUS

which the vanquished appeal, are by no means an abolition

but only a mitigation of the conqueror's absolute right.

LI. There are conditional surrenders, reserving to the

individuals, certain personal privileges, and remains

of

their property, and to the state, certain parts of its con-

stitution.

LII. Hostages and pledges may be considered as an

appendage to treaties. And some of those hostages are a

voluntary surrender, and others given by authority of the

state as a security.

For

the sovereign has the same power

over the persons and actions of his subjects, as over their

property. But the state

or

its ruler will be bound to

recompense individuals

or

their relatives for any incon-

veniences they may sustain.

LIII, Though the law of nations may in its literal

rigour allow of putting hostages to death, it can never

conscientiously be enforced, but where they have com-

mitted crimes deserving of capital punishment. Neither

can they be made slaves. Indeed the law of nations per-

mits them to leave their property to their heirs, although

by the Roman law provision was made for confiscating it

to the state.

LIV.

If

it should be asked whether hostages may law-

fully make their escape:

it

may be answered in the neg-

ative, especially if, at first,

or

afterwards, they have

pledged their faith to remain, upon condition of being

prisoners at large. But

it

does not appear that states

so

much intended to impose a hardship upon their subjects

by forbidding their escape, as to give the enemy security

for

the performance of their engagements.

LV. The obligation of hostages is of an odious nature,

as being unfriendly to personal liberty, and arising from

the act of another. Therefore a strict interpretation

must be given to such engagements,

so

that hostages de-

livered

on

one account cannot be detained on any other,

nor for any contract, where hostages are not required.

But

if

in another case there has been any violation of

good faith,

or

any debt contracted, hostages may be de-

tained, not as 'hostages, but in the capacity of subjects,

whom the law of nations makes liable to be seized and

detained for the acts of their sovereigns. To guard

against which, provision may be made by additional

clauses for the restoration of hostages, whenever the en-

gagement for which they were delivered has been

ful-

filled.

THE

RIGHTS

OF

WAR

AND

PEACE

LVI. Whoever has been delivered as a hostage for

other prisoners, or for the redemption of other hostages,

will naturally be released upon the death of those per-

sons. For by death the right of the pledge is extin-

guished

in

the same manner

as

by the ransom of a

prisoner. And therefore, according to Ulpian, as

a

PER-

SONAL

debt

is

confined to him, who has contracted

it,

so

one person, being substituted for another, cannot be de-

tained any longer than while the obligation

of

that other

continues.

LVII. The decision, whether hostages can be detained

upon the death of the sovereign, by whom they were de-

livered, must depend upon the nature of the engage-

ments, which he has made. If they are

PERSONAL,

they

continue

in

force only during his natural life, but if they

are what are called

REAL

or more

PERMANENT

treaties,

they pass with all their consequences to his successors.

For

ACCESSORY

articles cannot authorise any devi-

ation from the

GENERAL

rule of interpreting the

fundamental and principal points of a treaty, but the ac-

cessory articles themselves ought rather to be explained

in conformity to those general rules.

LVIII.

A

cursory observation may be made, that

hostages are sometimes considered, not as appendages,

but as forming the principal part of an engagement,

where any one is bound not for himself, but for another,

and, in case of non-performance, being obliged to pay

damages, his hostages or sureties are answerable in his

stead.-There is not only some thing of harshness, but

even injustice in the opinion that hostages may be bound

for the conduct of another even without their own con-

sent.

LIX. Pledges have some characteristics

in

common

with hostages, and some peculiar to themselves. It is a

common characteristic of both to be detained for some-

thing else that is due, except where public faith is given, and

provision made to the contrary. Pledges may be detained

with greater latitude than hostages; which is one of

their peculiar characteristics, there being less of odium

in the former case than in the latter:

THINGS

being of a

nature more proper for detention than

PERSONS.

LX.

No

time can bar the redemption of a pledge,

whenever the engagement for which it was given is ful-

filled. For

it

is

never

to

be presumed

that

engagements

a6

402

HUGO

GROTIUS

proceed from new causes, when old and known causes

can

be assigned.

If

a

debtor therefore has forborne to

redeem a pledge, we may still suppose that he has not

abandoned his original engagement, unless there be clear

proof to the contrary:

as

if, for instance, though desirous

of redeeming it, he has been prevented, or suffered a space

of

time to elapse unnoticed, that

would

be requisite

to

imply his consent.

CHAPTER

XXI.

ON

FAITH

DURING

THE CONTINUANCE

OF

WAR,

ON

TRUCES,

SAFE-CONDUCTS,

AND

THE

REDEMPTION

OF

PRISONERS.

Truces of an intermediate denomination between peace and War-

Origin of the word- New declaration

of

war not necessary after

truce-Time from whence a truce and all its correspondent obligs-

tions and privileges commence

-

A retreat may be made, or forts.

cations repaired during a truce- Distinction respecting the occupying

of places-The case of

a

person prevented from making his retreat,

aud taken in the enemy’s territories at the expiration of

a

mce,

considered

-

Express terms and consequences

of

a

truce

-

Bread

of

a

truce by one party justifies

a

renewal of war by the other-

Penalty annexed-Truce broken by the acts of individuals-Rights

belonging to safe-conducts without

a

truce-Persons in a military

capacity how far allowed the benefit of

a

safe-conduct-privileges

of goods arising from thence -Attendants

of

the person protected

by

a

safe-conduct- Safe-conduct does not expire

upon

the death of

the grantor

-

Safe-conduct given

to

continue during the pleasure

of

the grantor

-

Protection thereof extending beyond his own territory

-Redemption

of

prisoners favoured, and not to be prohibited

by law.

I.

and

11.

IN

THE

midst of war there are certain points

generally conceded by the belligerent powers to each

other, which Tacitus and Virgil call the intercourse of

war, and which comprehend truces, safe-conducts, and

the redemption of prisoners.- Truces are conventions,

by which, even during the continuance of war, hostili-

ties on each side cease for a time. DURING

THE

CON-

TINUANCE

OF

WAR;

for, as Cicero says, in his eighth

Philippic, between peace and war there

is

no medium,

By war is meant a state of affairs, which may exist

even while its operations are not continued. Therefore,

as Gellius has said, a peace and a truce are not the

same, for the war still continues, though fighting may

cease.

So

that any agreement, deemed valid in the

time

of

war, will be valid also during a truce, unless

it

evidently appears that

it

is

not the state

of

affairs, which

is considered, but the commission of particular acts of

hostility. On the other hand, any thing, agreed to, to be

done, when peace shall be made, cannot take place in

consequence of a truce. There is no uniform and in-

variable period fixed

for

the continuance of a truce, it

(4031

404

HUGO

GROTIUS

may be made for any time, even for twenty,

or

thirty

years, of which there are many instances in ancient his-

tory.

A

truce, though a repose from war, does not

amount to a peace, therefore historians are correct in

saying that a peace has often been refused, when a truce

has been granted.

111.

After a truce a new declaration of war is not

necessary.

For

upon the removal of a temporary impediment, the

state of warfare revives in full force, which has only been

lulled asleep, but not extinguished. Yet we read in

Livy, that it was the opinion of the heralds' college, that

after the expiration of a truce war ought to be declared.

But the ancient Romans only meant to shew by those

superfluous

precautions, how much they loved peace, and

upon what just grounds they were dragged into war.

IV.

The time, generally assigned for the continuance

of a truce, is either some uninterrupted period, of a

HUN-

DRED

DAYS,

for instance, or a space limited by some arti-

ficial boundary of time, as the Calends

of

March. In the

former case, the calculation is to be made according to

the natural motion of time: whereas all civil computations

depend upon the laws and customs of each country. In

the other case

it

is generally made a matter of doubt,

whether in naming any particular day, month

or

year,

for the expiration of a truce, that particular day, month,

or

year, are comprehended in the term of the truce,

or

excluded from it.

In natural things there are two kinds of boundaries,

one of which forms an inseparable part

of

the things

themselves, as the skin does

of

the body, and the other

only adjoins them, as a river adjoins the land, which it

bounds

or

washes. In either of these ways voluntary

boundaries may be appointed. But it seems more natural

for a boundary to be taken as a part of the thing itself.

Aristotle defines the extremity of anything to be its

boundary: a meaning to which general custom conforms:

-thus

if

any one has said that a thing is to be done

before the day of his death, the day on which he actu-

ally dies

is

to be taken into the account as forming part

of

the term. Spurinna had apprised Caesar of his dan-

'

ger,

which could not extend beyond the Ides of March.

Being accosted, respecting the matter, on the very day,

he said, the Ides of March are come, but not passed.

Such an interpretation

is

the more proper where the pro-

THE RIGHTS

OF

WAR

AND

PEACE

40

s

,

longation of time

is

of a favourable nature, as

it

is

in

truces, which are calculated to suspend the effusion of

human blood.

The day,

FROM

which any measure of time

is

said to

begin, cannot be taken into the account; because the word,

FROM,

used

on

that occasion, implies separation and not

conjunction.

V.

It

is

to be observed that truces, and engagements

of that kind immediately bind the contracting parties

themselves from the very moment they are concluded.

But the subjects

on

either side are only bound from the

time that those engagements have received the form of

a law, for which public notice and the regular promulga-

tion are necessary. Upon this being done they immedi-

ately derive their authority to bind the subjects. But

if

notice thereof has only been given in one place, the

observance of them cannot be enforced through the whole

dominions

of

the respective sovereigns at one moment,

but sufficient time must be allowed for the due promul-

gation of them

to

be made in every part. Therefore

if

in the meantime the subjects on either side have com-

mitted an infraction of the truce, they shall be exempt

from punishment, but the contracting parties themselves

shall be obliged to repair the damages.

VI. The very definition

of

a truce implies what actions

are lawful, and what are unlawful during the continu-

ance of

it.

All acts

of

hostility are unlawful either

against the persons

or

goods

of

an enemy.

For

every

act of violence during a truce is contrary to the law

of

nations. Even things belonging to an enemy, which by

any accident have fallen into our hands, although they

had been

ours

before, must be restored. Because they

had become theirs by that external right according to

which such things are adjudged. And this is what Paulus

the lawyer says, that during the time of a truce the law

of postliminium cannot exist, because to constitute the

law of postliminium there must be the previous right of

making captures in war, which ceases upon the making

of a truce.

Either party may go

to

or

return

from,

any particular

place, but without any wariike apparatus

or

force, that

may prove a means of annoyance,

or

be attended with

any danger. This

is

observed by Servius

on

that pas-

sage of Virgil, where the poet says,

((

the Latins mingled

with their foes with impunity,” where he relates also

that

406

HUGO

GROTIUS

upon a truce being made between Porsenna and the

Ro-

mans during a siege, when the games of the circus were

celebrating, the generals of the enemy entered the city,

contented in the lists, and were many of them crowned

as conquerors.

VII. To withdraw farther into the country with an army,

which we find from Livy that Philip did, is no way con-

trary to the intention and principles of a truce: neither

is

it

any breach of it to repair the walls of a place, or

to raise new forces, unless

it

has been prohibited by

special agreement.

VIII. To corrupt an enemy’s garrisons, in order to

seize upon the places which he holds, is undoubtedly a

breach of the spirit and letter of any truce. For no

such advantage can justly be gained but by the laws of

war. The same rule is to be laid down respecting the

revolt of subjects to an enemy.

In

the fourth book of

Thucydides, Brasidas received the city of Menda, that

revolted from the Athenians to the Lacedaemonians

dur-

ing a truce, and excused his conduct upon the plea of the

Athenians having done the same.

Either of the belligerent powers may take possession

of places that have been deserted: if they have been

REALLY

deserted by the former owner with the intention

never to occupy them again, but not merely because they

have been left unguarded, either

BEFORE,

or

AFTER,

the

making of a truce.

Fur

the former owner’s right‘

of

dominion therein still remaining renders another’s pos-

session of them unjust. Which is a complete refutation

of the cavil of Belisarius against the Goths, who seized

upon some places during

a

truce, under pretext

of

their

being left without garrisons.

IX. It is made a subject of inquiry, whether any one

being prevented by an unforeseen accident from making

his retreat, and being taken within the enemy’s territo-

ries, at the expiration of a truce, has a right to return.

Considering the external law of nations, he is undoubtedly

upon the same footing as one, who, having gone into a

foreign country, must, upon the sudden breaking out of

war, be detained there as an enemy till the return of

peace. Nor is there any thing contrary to strict justice

in this

;

as the goods

and

persons of enemies are bound

for the debt of the state, and may be seized for pay-

ment.

Nor

has such a one more reason to complain

than innumerable other innocent persons,

on

whose heads

THE

RIGHTS

OF

WAR AND PEACE

407

the calamities of war have fallen.

Nor

is

there occasion

to refer to the case, which Cicero has alleged, in his

second book

ON

INVENTION,

of a ship of war driven by

the violence of the wind into a port, where by law 'it

was

liable to confiscation.

For

in the former case the unfore-

seen accident must do away all idea of punishment, and

in the latter, the right of confiscation must be suspended

for a time. Yet there can be no doubt but there

is

more

of

generosity and kindness in releasing such a

person than in insisting upon the right of detaining him.

X.

The express nature of a convention renders some

things unlawful during a truce, as for instance,

if

it

is

granted only in order to bury the dead, neither party

will have a right to depart from those conditions. Thus

if

a siege is suspended by a truce, and nothing more

than such a suspension is thereby granted; the besieged

cannot lawfully avail himself of it, to convey fresh

sup-

plies

of

troops and stores into the place. For such con-

ventions ought not to prove beneficial to one party, to

the prejudice

of

the other, who grants them. Some-

times it is stipulated that no one shall be allowed to

pass to and fro. Sometimes the prohibition extends to

persons and not to goods. In which case,

if

any one, in

protecting his goods, hurts an enemy, the act will not

constitute a breach of the truce.

For

as it

is

lawful

that either party should defend his property, an acci-

dental circumstance cannot be deemed an infringement

of that personal security, which was the principal object

provided for by the truce.

XI.

If

the faith of a truce is broken by one of the

parties, the other who is thereby injured, will undoubt-

edly have a right to renew hostilities without any formal

declaration. For every article in a treaty contains an

implied condition of mutual observance. Indeed we may

find in history instances of those, who have adhered to

a truce till its expiration, notwithstanding a breach on

the other side. But on the other hand there are numer-

ous

instances of hostilities commenced against those, who

have broken their conventions: a variation, which proves

that

it

is at the option of the injured party to use

or

not

to use his right of renewing war upon the breach of

a truce.

XII.

It

is

evident that,

if

the stipulated penalty

is

demanded of the aggressor, and paid by

him,

the other

party

can no longer maintain his right

of

renewing the

408

HUGO

GROTIUS

war. For the payment of the penalty restores every thing

to its original footing. And

on

the other hand, a renewal

of hostilities implies an intention of the injured party to

abandon the penalty, since he has had his option.

XIII.

A

truce is not broken by the acts of individuals,

unless they are sanctioned by the authority of the sov-

ereign, which is generally supposed to be given, where

the delinquents are neither punished nor delivered up,

nor restitution is made of goods taken away.

XIV.

The rights belonging to a safe-conduct are a

privilege distinct from the nature of a truce, and our in-

terpretation' of them must be guided by the rules laid

down respecting privileges.

Such a privilege, to be perfect, must be neither inju-

rious

to a third person, nor prejudicial to the giver. There-

fore in explaining the terms, in which

it

is couched, a

greater latitude of interpretation may be allowed, espe-

cially where the party suing for

it

receives

no

benefit,

but rather confers one, and still more

so

where the ad-

vantage, accruing to the individual from thence, redounds

also to the public benefit of the state.

Therefore the literal interpretation, which the words

may bear, ought to be rejected, unless otherwise some

absurdity would follow, or there is every reason to sup-

pose that such a literal interpretation

is

most conforma-

ble

to

the will and intention of the parties concerned.

In the same manner,

on

the other hand, a greater latitude

of interpretation may be allowed, in order to avoid the

same apprehended absurdity, or to comply more fully

with the most urgent and forcible conjectures respecting

the will of the contracting parties.

XV.

Hence we may infer that a safe-conduct, granted

to

SOLDIERS,

includes not only those of an

INTERMEDIATE

RANK,

but the

HIGHEST

COMMANDERS.

For that is a

signification strictly and properly authorised by the words

themselves, although they

MAY

be taken in a more

LIMITED

meaning.

So

the term clergymen includes those of

episcopal as well, as those of inferior rank, and by those

serving

on

board a fleet, we mean not only sailors, but

all persons found there, who have taken the military

oath.

XVI.

Where a free passage

is

granted, liberty to return

is

evidently implied, not from the literal force of the ex-

pressions themselves, but to avoid the absurdity which

would

follow the grant

of

a

Drivilege, that could sever

THE

RIGHTS

OF

WAR

AND

PEACE

409

be made use

of.

And by the liberty of coming

and

going

is meant a safe passage till the person arrives in

a

place

of

perfect security. From hence the good faith

of

Alex-

ander was impeached, who ordered those to be murdered

on

the way, whom he had allowed to depart,

Any

one

may be allowed to go away without being

allowed to return. But

no

power can properly refuse

admitting any

one,

to whom he has granted leave

to

come, and

on

the other hand, his admission implies such

a leave to have been given.

GOING

AWAY

and

RETURNING

are indeed very different, nor can any construction of

language

give

them the same meaning. If there be any

mistake, although

it

may confer no right, it exempts the

party from all penalties.-

A

person permitted

to

come

shall only come

ONCE,

but not a

SECOND

TIME,

unless the

additional mention of some time may supply room to

think otherwise.

XVII.

A

son shares the fate of his father, and a wife

of her husband

no

farther than as to the right of resid-

ing, for men reside with their families, but in general

undertake public missions without them. Yet

one

or two

servants, though not expressly named, are generally

understood to

be

included in a safe-conduct, especially

where

it

would be improper for the person to go without

such attendants. For every necessary consequence is

understood to

go

along with any privilege that is

given.

XVIII.

In

the same manner

no

other effects are in-

cluded in a safe-conduct, but such as are usually taken

on a journey.

XIX. The name of attendants, expressed in a safe-

conduct, granted to any one, will not allow him to extend

the protection of

it

to men of atrocious and criminal

characters, such as pirates, robbers, and deserters. And

the

COUNTRY

of the attendants being named shews that

the protection cannot extend to those of another nation.

xx.

The privileges of a safe-conduct do not, in doubt-

ful cases, expire

upon

the demise of the sovereign who

granted it, according to what was said in a former part

of this treatid on the nature

of

favours granted by kings

and sovereign princes.

XXI.

It

has often been a disputed point, what is meant

by the expression used in a safe-conduct, that it shall

continue during the

PLEASURE

OF

THE

GRANTOR.

But

there seems most reason and truth

in

the

opinion

of

those, who maintain that the privilege shall contlnue, till

410

HUGO

GROTIUS

the grantor make some new declaration of his will to the

contrary. Because, in doubtful cases, a favour

is

pre-

sumed to continue, till the right, which

it

conveys,

is

accomplished. But

not

so,

where all possibility of

WILL

in the grantor has ceased, which happens by his death.

For

upon the death of the person all presumption

of

his

WILL

continuing must cease:

as

an accident vanishes

when the substance

is

destroyed.

XXII. The privilege of a safe-conduct protects the per-

son, to whom it

is

given, even beyond the territories of

the grantor: because

it

is given as a protection against

the rights of war, which are not confined to his terri-

tory.

XXIII.

The redemption

of

prisoners is much favoured,

particularly among Christian states, to whom the divine

law peculiarly recommends it as a kind of mercy.

Lactantius calls the redemption of prisoners a great and

splendid office of justice.

CHAPTER

XXII.

ON

THE

FAITH

ON

THOSE

INVESTED

WITH

SUBORDINATE

POWERS

IN

WAR.

.

Commanders

-

Extent

of

their engagements in binding the sovereign

-

Exceeding their commission-The opposite party bound by such

engagements

-

Power

of

commanders in war, or

of

magistrates with

respect to those under their authority-Generals cannot make peace,

but may conclude a truce

-

Extent

of

their authority

in

granting pro-

tection

to

persons and property -Such engagements to

be.

strictly

interpreted

-

Interpretation

of

capitulations accepted by generals

-

Precautions necessary till the pleasure

of

the sovereign be

known-

Promise to surrender a town.

I.

ULPIAN reckons the agreements, entered into between

the generals

of

opposite armies during the course

of

a

war, among public conventions.

So

that after explaining

the nature of the faith pledged by sovereign powers to

each other,

it

will be proper to make a short inquiry

into the nature of engagements made by subordinate

authorities

;

whether those authorities bear a near ap-

proach to supreme power, as commanders in chief, or

are removed to a greater distance from it. Caesar makes

the following distinction between them, observing that

the offices of commander and deputy are very different;

the latter being obliged to act according to prescribed

rules, and the former having unqualified discretion in

matters

of

the highest importance.

11.

The engagements of those invested with such

subordinate powers are to be considered in a double

point

of

view, whether they are binding upon the sover-

eign,

or

only upon themselves. The former of these

points has been already settled in a former part

of

this

treatise, where

it

was shewn that a person

is

bound by

the measures of an agent, whom he has appointed to act

in

his

name, whether his intentions have been expressly

named, or are only to be gathered from the nature

of

the employment.

For

whoever gives another a commis-

sion, gives him along with

it

every thing in his power

that

is

necessary to the execution of it.

So

that there

are two ways, in which persons acting with subordinate

powers may bind their principals by their conduct, and

(41

I

412

HUGO

GROTIUS

that is, by doing what is probably thought to be con-

tained in their commission, or apart from that, by acting

according to special instructions, generally known, at

least to those, with whom they treat.

111.

There are other modes too, in which a sovereign

may be bound by the previous act of his minister; but

not in such

a

manner as to suppose the obligation owes

its

EXISTENCE

to that action, which only gives occasion

to its fulfilment. And there are two ways, in which this

may happen, either by the consent

of

the sovereign, or

by the very nature of the thing itself. His consent ap-

pears by his ratification of the act, either expressed or

implied, and that is, where a sovereign has known anc'

suffered

a

thing to be done, which can be accounted for

upon no other motive but that

of

approval and consent.

The very nature and obligation of all contracts imply

that one party

is

not to gain advantage by the

loss

of

another. Or

if

advantage is expected from a contract,

the contract must be fulfilled or the advantage abandoned.

And in this sense, and no other, the proverbial expres-

sion, that whatever is beneficial is valid, is to be under-

stood.

On the other hand a charge

of

injustice may fairly be

brought against those, who condemn an engagement, yet

retain the advantages, which they could not have had

without it.

IV. It is necessary to repeat an observation made be-

fore, that

a

sovereign, who has given a commission to

another, is bound by the conduct

of

that person, even

though he may have acted contrary to his secret instruc-

tions, provided he has not gone beyond the limits

of

his

ostensible, and public commission.

This was a principle of equity, which the Roman

Praetor observed in actions brought against employers

for the conduct of their agents or factors. An employer

could not be made answerable for any act or measure of

his factor, but such as was immediately connected with

the business, in which he employed him. Nor could

HE

be considered as an appointed agent, with

WHOM

the

public were apprized, by due notice, to make no contract

"If

such notice was given, without having come to the

knowledge of the contracting parties, the employer was

bound by the conduct of the agent.

If

any one chuses

to make a contract on certain conditions, or through the

intervention

of

a

third person, it

is

right and necessary

THE

RIGHTS OF

WAR

AND

PEACE

413

for that person to observe the particular conditions

on

which he

is

employed.

From hence

it

follows that kings and nations are more

or less bound by the conventions of their commanders

in proportion as their laws, conditions, and customs, are

more or less known. If the meaning of their intentions

is not evident, conjecture may supply the place of evi-

dence, as it is natural to suppose that any one employed

would be invested with full powers sufficient

to

execute

his commission.

A

person acting in a subordinate capacity,

if

he has ex-

ceeded the powers of his commission will be bound to

make reparation, if he cannot fulfil his engagement,

un-

less he

is

prevented from doing

so

by some well known

law.

But

if

he has been guilty

of

treachery also, in pre-

tending to greater powers than he really possessed, he

will be bound to repair the injury, which he has

WIL-

FULLY

done, and to suffer punishment corresponding with

his offence.

For

the first of these offences, his property

is answerable, and

on

failure of that, his personal lib-

erty: and in the latter case, his person or property, or

both must be answerable according to the magnitude of

the crime.

V.

As a sovereign or his minister is always bound by

every contract,

it

is certain the other party will also be

bound by the engagement: nor can it be deemed imper-

fect. For in this respect there

is

a comparative equality

between sovereign and subordinate powers.

VI.

It is necessary to consider too what are the pow-

ers of subordinate authorities over those beneath them.

Nor

is

there any doubt that a general may bind the

army, and a magistrate, the inhabitants of a place by

those actions, which are usually done by commanders,

''

or

magistrates, otherwise their consent would be neces-

sary.

On the other hand, in engagements purely beneficial,

the advantage shall be on the side of the inferior: for

that

is

a condition comprehended in the very nature

of

power.-Where there is any burdensome condition an-

nexed it shall not extend beyond the usual limits in

which authority

is

exercised; or

if

it does,

it

shall be at

the option

of

the inferior to accept or refuse that condition.

VII.

As

to the causes and consequences

of

a war,

it

is

not within the province

of

a general to decide them.

414

HUGO

GROTIUS

For

concluding and conducting a war are very different

things, and rest upon distinct kinds of authority.

VIII.

and IX. As to granting truces,

it

is a power

which belongs not only to commanders in chief, but also

to inferior commanders. And they may grant them for

themselves, and the forces immediately under their com-

mand, to places which they are besieging

or

blockading:

but they do not thereby bind other parts of the army.

Generals have no right to cede nations, dominions,

or

any

kind

of

conquests made in war. They may relinquish any

thing of which a complete conquest has not been made:

for towns frequently surrender on condition

of

the

in-

habitants being spared, and allowed to retain their liberty

and property: cases, in which there

is

no time for con-

sulting the will and pleasure of the sovereign. In the

same manner, and upon the same principle this right is

allowed to subordinate commanders, if it falls within the

nature of their commission.

X.

As commanders, in all such engagements, are acting

in

the name

of

others, their resolutions must not be in-

terpreted

so

strictly as to bind their sovereigns to greater

obligations than they intended to incur, nor at the same

time to prove prejudicial to the commanders themselves

for having done their duty.

XI. An absolute surrender implies that the party

so

capitulating submits to the pleasure and discretion of the

conqueror.

XII. In ancient conventions a precaution was usually

added, that they would be ratified, if approved

of

by the

Roman people.

So

that if no ratification ensued, the

general was bound no further than to be answerable for

any advantage that might have accrued to himself.

XIII.

Commanders having promised to surrender a

town, may dismiss the garrison.

CHAPTER

XXIV.*

ON

TACIT

FAITH.

Tacit faith-Example of in desiring to be taken under the pro&ction

of

a

king

or nation

-

Implied

in

the demand or grant of

a

conference

-

Allowable for the party seeking it

to

promote his

own

interest

lowed by custom.

thereby provided he

uses

no

treachery

-

Meaning of mute

signs

al-

I.

BOTH public, private, and mixed, conventions admit of

tacit consent, which is allowed by custom. For in what-

ever manner consent

is

indicated and accepted it has the

power of conveying a right. And, as it has been fre-

quently observed in the course of this treatise, there are

other

signs

of consent besides words and letters: some of

them indeed naturally rising out of the action itself.

11.

An example of such tacit agreement may be found

in the case of a person coming from an enemy, or foreign

country, and surrendering himself to the good faith of

another king or people. For such a one tacitly binds

himself to do nothing injurious or treacherous to that

state, where he seeks protection, a point which

is

beyond

all doubt.

111.

In the same manner, a person who grants or re-

quests a conference, gives a tacit promise, that he will

do

nothing prejudicial to the parties, who attend it. Livy

pronounces an injury done to an enemy, under the pre-

text of holding a conference, a violation of the law of

nations.

IV. But such a tacit promise, to take no advantage

of

a parley or conference,

is

not to be carried farther than

what has been said. Provided all injury and injustice are

avoided,

it

is

reckoned a lawful stratagem, for any one to

avail himself of a parley in order to draw

off

the enemy's

attention from his military projects, and to promote his

own. The device, by which Asdrubal extricated his army

from the Ausetanian forests, was of this kind, and

by

the

same means Scipio Africanus, the elder, gained a perfect

*The

XXIII

Chapter of the Original,

on

Private Faith

in

War,

is

Omitted in the

tranSlatiOn."TRANSLATOR.

'

(415)

416

HUGO

GROTIUS

knowledge of Syphax’s camp. Both these circumstances

are related by Livy.

V.

There are certain mute signs, deriving all their

force and meaning from custom; such as the fillets, and

branches of olive formerly used: among the Macedonians

pikes erected, and among the Romans shields placed upon

the head, were signs

of

a suppliant surrender obliging

the party to lay down his arms,

In

the present day a

white flag is a sign of suing

for

a parley. Therefore all

these methods have the force of express declarations.

CHAPTER

XXV.

CONCLUSION.

Admonitions

to

the observance

of

good faith-Peace always

to

be

kept

in

view in the midst

of

war

-

Peace beneficial to the conquered

-

To

the conqueror- And

to

be chosen

in

cases

where the issue is doubt-

ful

-

To

be religiously observed

-

Prayer

-

Conclusion

of

the work.

I.

HERE

seems to be the proper place to bring this

work to a conclusion, without in the least presuming

that every thing has been said, which might be said

on

the subject: but sufficient has been produced to lay a

foundation, on which another, if he pleases, may raise

a

more noble and extensive edifice, an addition and improve-

ment that will provoke no jealousy, but rather be en-

titled to thanks.

Before entirely dismissing the subject,

it

may be neces-

sary to observe, that, as in laying down the true motives

and causes, that alone will justify war, every possible

precaution at the same time was taken to state the reasons

for which it should be avoided;

so

now a few admonitions

will not be deemed superfluous,

in

order to point out the

means of preserving good faith in war, and maintaining

peace, after war

is

brought to a

'

termination, and among

other reasons for preserving good faith the desire of

keeping alive the hope of peace, even

in

the midst of

war, is not the least important.

For

good faith, in the

language

of

Cicero, is not only the principal hold by

which all governments are bound together, but

is

the

key-stone by which the larger society of nations

is

united.

Destroy this, says Aristotle, and

you

destroy the inter-

course

of

mankind.

In

every other branch of justice there

is

something of

obscurity, but the bond of faith is clear

in

itself, and

is

used indeed to do away the obscurity

of

all

transactions,

The observance of this is a matter

of

conscience with

all lasvful kings and sovereign princes, and

is

the basis

of that reputation by which the honour and dignity of

their crowns are maintained with foreign nations.

11.

In the very heat of war the greatest security and

expectation of divine support must be

in

the unabated

27

(417)

418

HUGO.

GROTIUS

desire, and invariable prospect of peace, as the only end

for which hostilities can be lawfully begun.

So

that in

the prosecution of war we must never carry the rage of

it

so

far, as to unlearn the nature and dispositions of

men.

111.

These and these alone would be sufficient motives

for the termination of war, and the cultivation of peace.

But apart from all considerations of humanity, the

IN-

TERESTS

of mankind would inevitably lead

us

to the same

point. In the first place it is dangerous to prolong a

contest with a more powerful enemy. In such a case

some sacrifices should be made for the sake

of

peack,

as in a storm goods are sometimes thrown overboard to

prevent a greater calamity, and to save the vessel and

the crew.

IV. Even for the stronger party, when flushed with

victory, peace is a safer expedient, than the most exten-

sive successes.

For

there is the boldness of despair to

be apprehended from a vanquished enemy, dangerous as

the bite of a ferocious animal in the pangs of death.

V.

If

indeed both parties aremupon an equal footing, it

is the opinion of Caesar, that

it

is the most favourable

moment for making peace, when each party has confi-

dence in itself.

VI. On whatever terms peace is made, it must be abso-

lutely kept. From the sacredness

of

the faith pledged in

the engagement, and every thing must be cautiously

avoided, not only savouring of treachery, but that may

tend to awaken and inflame animosity. For %.hat Cicero

has said of private friendships may with equal propriety

be applied to public engagements of this kind, which are

all to be religiously and faithfully observed, especially

where war and enmity have ended in peace and recon-

ciliation.

VII. And may God, to whom alone it belongs to dispose

the affect,ions and desires of sovereign princes and kings,

inscribe these principles upon their hearts and minds,

that they may always remember that the noblest office,

in which man can be engaged, is the government of

men, who are the principal objects

of

the divine care.

INDEX

Abandoned property, title

to,

107,

111.

Acceptance

:

Necessity

of,

in

promise to

Acceptilation,

111.

Accessories to crimes, 197,

257.

Accomplices, punishment

of,

256.

Acquisitions

:

Of

property in war, 334

el

convey a right, 139.

sw.,

39..

Actions at law: Stipulations as to, in

treaties, 390.

AErmations, 164, 165.

Admiralty, 146.

Agents

:

Acts

of,

binding

on

principal,

Agency, 339,

412.

of

dommlon, 379.

Agreements: special and exclusive,

IOI.

Between citizens

of

different countries,

138 139 412.

136.

Alexandrinus, Clemens,

52.

Alienation:

Of

things by right

of

war,

of

publlc dominion, 386.

353s 389.

Alliances

:

Between states, partnerships,

146.

Allies: Aid to, 173.

Unequal, 158.

170.

Word construed, 183.

Causes justifying participation

of,

in

war,

285,

187.

Rewards to,

341.

Ambassadors: Promises of, binding, 139.

Ratification

of

treaties made by,

167.

Inviolability of,

202,

zq.

Must be duly accredited,

202.

Sovereign states may send, m3.

Refusal to receive,

204.

Exemptions,

20s.

29,

210,

ZII.

313.

Passage through foreign states,

209.

Punishment of, for crimes,

208.

Suite and personal effects

of,

211.

House

of,

as asylum,

211.

Debts contracted by,

112.

Ambrose,

3.

Andronicus,

14.

Antoninus, Marcus,

65.

Antoninus, Pius,

112.

Arbiter, office

of,

398.

Aptitude, 19.

Arbitration,

84,

276,

397.

Ardfinium,

106.

Aristotle, 19,

20,

22,

24,

61,

62!

a,

76,

118,

Asylum, right of,

260.

Aurelius, Marcus,

52,

68.

Augustine,

$3,

74.

120,

19,

218,

251,

268.

hrbeyrac, 173. 392.

Blackstone's Commentaries,

29,

62,

S,

Bodies

politic, privileges

of,

sa.

roo,

136,

1%.

155,

19,

177,

18z-noles.

Boundary. rivers as,

xq.

Breach of peace, 395.

Burial, right

of,

a13

d

scg.

Burke, Edmund,

182

nofc.

Caduceum, use of,

320.

Captures in war, 334, 369.

Caesar, Julius, 59.

Things immovable, 339.

Title to,

335,

336, 338.

Things movable,

go.

Restoration

of,

392.

Cargo, in enemy's ships, title to, 337.

Cassius,

&I,

74.

Cato, 59,

77.

Causes

of

war, justifiable, 85.

Chirographarii, 173.

Chrysostom, Dio,

25.

Cicero,

18,

23,

24.

31, 34,

35,

60,

68,

78,

86,

6

92,

137, 191,

208,

2%

215,

268,

283, 317,

379.

91.

Civil law

:

Relation

of,

to law

of

natUrCt

And interpretation of treaties,

194.

Prizes taken

from

Pirates,

357.

Right

of

postliminium under, 357.

Clarigation, 319.

Commerce. treaties

of,

169.

170.

Commissions: Special,

of

ambassador,

16?.

Vanations from,

188.

Common right to actions,

99.

Common right

to

things,

99.

community

of

goods,

86.

Compensation, defined, 382.

Compromise: As method

of

settling

Conditional surrender.

400.

national disputes,

176.

Conference: To Settle disputes

of

na-

Conqueror, rights

of,

399.

Consent to conventions, 415.

Conquest, rights resulting from,

348,

399.

Consideration

of

contracts,

136,

138.

Constantine, 53,

3.

Contracts: Expressed and implied,

x04

Between citizens of different countrieq

Conslderation

for,

136, 137.

Exchange,

145.

146.

Of agents, 137.

Revocation

of,

14s.

of

sale, 146,

151.

Mixed,

147.

Bquality

in.

148.

Getting and hiring,

153.

Fraudulent,

1%.

Of

sovereigns,

387,413.

Of

lands.

88.

tions,

276.

'45.

136.

Contributions levied

for

futnre

security.

373.

(419)

THE RIGHTS

OF

WAR

AND

PEACE

Conventions: Public and private,

166.

Galen,

33,62.

Public, division

of.

167.

Good

faith, fonndation

of

all treaties,

Requiring ratification, 167, 174,

412,

414.

385. 417.

Power to make, in monarchies,

168.

Goods

in enemy's ships, title to, 337.

Resting in law

of

nature,

168.

Government: Change

of

form

of,

effect

Of commerce and amity,

1%.

Of peace,

IF.

Effects

on

treaties,

185.

Truces, 403.

Obligations

of

negotiator,

174.

Mixed,

39.

Made by subordinates,

411.

Governments, established for what,

68.

Tacit consent to, 415.

Gregory

of

Tours,

@.

Corporeal rights,

85.

Guaranty of performance by another,

143.

Creditors, personal, 173.

Countries, names of, 392.

Crimes: Principals and accessories, 197, Hemogenianust S6.

Heraclitus, 24.

Herodotus,

66,

68.

And mlsdemeanors,

31.

Hesiod, 23.

24,

68.

Hiring! 153,

Homiclde, excusable,

q.

upon debts.

121.

15%

257.

Damages,

I+,

197,rgg,

200,

388.

Hostages

:

Right to kill, 330, 364.

Debts, lindiddual, effect of war upon,

Appendaaes to treaties.

400.

Deception, innocent, 302.

Declaration

of

war, 318, 321.

Defense:

A

justifiable cause

of

war,

15.

Demand of restitution, 319.

Demosthenes, 74,

81,

170,

240,

310.

Deserters: Not entitled to right

of

post-

Dictator, sovereign power

of,

72.

Dionysius, 61, 74, 98, 163.

Disputes

of

nations, methods

of

settle-

Divided and assigned land,

106.

Dominion, acquisition of, 372,

Duration

of

truces, 404.

Duties: Right to impose,

on

goods in

Duty of citizen to prevent war,

286.

391,

After truce, not necessary, 404.

Right

of,

395.

liminium, 355, 390.

ment,

276.

transit, 97.

Eliminium, 351.

Enemies: Furnishing aid to, q3-321.

Public, 314.

Killing of, 325, 327, 359.

Foreign residents may become, 327

Property

of,

right to destroy, 332,

Forbearance toward, 373,

Engagements, 167.

Good

faith between, 379.

Epictetus,

22.

Of

sovereigns or states, 387.

Equity'

A

species

of

justice,

190.

In

interpreting treaties, 191.

In matters

of

arbitration, 398.

3%.

Euripides,

22,

78.

Exchange, contracts

of,

145.

Extradition,

258,

259.

Immunity

of

Ambassadors,

202.

Incorporeal rights, 85, 309, 346.

Indemnity: A justifiable cause for war,

Injunctions,

170.

Injuries to property: Robbery,

81.

Of

a state lost by conquest, 349.

75.

Redress for, 311.

Amounting to breach of peace, 397.

Interest, lawfulness

of,

19,

156.

Insurance, contract of, 156, 157.

Interpretation:

Of

laws, 136.

Of treaties, 176

el

scg.

Of

promises, 137.

Words, taken in common acceptation,

Words

of

art, 177~

181.

Probable consequences, 179,

Obscure words, 178.

177.

Context, 179.

Allies, construed, 183.

Motive,

I&.

Absurd conditions, 188.

And law of nations,

194,

'&,

Names

of

countries, 392.

Of peace, 389, 392, 401.

JosePhus, 35,

50.

Justifiable causes

of

war, 73) 75,

85,

247?

Justinian,

58.

Kings, accountability

of,

69.

285.

Not all made by the people, 67.

Lactautius. 23. 74.

Lakes, when property,

9.

Lands

:

Threefold division

of,

16.

When considered as taken possession

Factors: Acts

of,

bind merchants, when,

Faculty, definition

of,

19.

Falsehood, discussed,

el

sq.

Fecial law of Rome, 319.

Federal Union, 62.

121.

Fera nature,

86.

Rights

of

sovereign as to, 91.

Fishing, a common right,

101.

Foreign residents, rights of,

98,

3?7.

Florentinus, 19. 35.

Free passage through countries, nght of,

139, 412.

Permission first asked,

$.

95

97.

Funeral ritcs,

214.

Postliminium rights

of,

355.

of, in war, 336, 339.

Waste,

yz+

91.

Fecial,

of

Rome, 319.

Law: Basis

of,

136.

Lawful war,

18,

31,278,

324.

Law

of

Nations, 23.

How proved,

25,

101.

Voluntary,

I#.

And interpretation

of

treaties,

19.

Use

of

term,

ag6.

Positive,

297.

Right

to

destroy property

of

enemy

Respecting captures

in

war,

Jja,

under, 332.

338.

INDEX

I.aw

of

nature,

22,

Relation

to

civil law,

91.

Civil customs not part of,

248.

Ignorance of, excusable,

248.

Law8

*

Interpretation of,

136.

As

to

things captured in

war,

334.

Power to repeal, 238.

Letters of marque and reprisal,

278,

311.

Letting and hiring,

153.

Lie, what

is

a,

299.

LiV,

64

13,

78,

114,

167-

170,

26

31X 332.

Losses of individuals in war, 388.

&ot, as method of settling national dis

putes,

277.

311.

Marque and reprisal, letters of,

Mediation,

84.

Mediator, office of, 398.

Money, variations in value, 153.

Moral distinctions, as to acts

274

el

Mosaic Law,

26-28.

Not binding upon Christians,

3.

Mutius, Quintius, 36.

Monopoly,

101,

152.

Piracy,

sovereign answerable

for,

am.

Pirates, treatment of, 380.

Pledges

:

Appendages to treaties,

400.

Pliny,

36,

254.

Plutarch,

23,

%

65,

93,

221,

226,

227,

as

Polybius, 23,

733

208.

Pomponius, 159.

Ponds, when property,

go.

Porphyry,

4.

Possession: Uninterrupted, transfers

of

property, at conclusion

of

war,

350.

Right of, 359.

Plate,

75,

9%

124,

26,

229.

Redemption of,

401.

property, 114.

Posthumous rights to property,

114.

Postliminium

:

Definition of,

1%.

351.

Right of, 3% 336, 351, 354,390,

405.

Horses, mules, and ships under law of,

Deserters, 355,

390.

Lands, 355.

Things useful in war, 356.

Movable property, 356.

Premium of insurance.

16

352,

405,

~ ~~

Nations. law

of,

23.

Prescription, law of, as applied to

a

mv-

.-

voluntary,

158.

Union of, rights continue,

121.

Ptice, governed by demand,

151.

Restoration of conquered,

354,

355, Prisoners: Surrender of,

258,

259.

ereign,

115.

190.

Killing of, 328, 363.

Natukl Right,

21.

As slaves, 345.

Nature, law of, unalterable,

zz.

Ransom of, 347) 410.

Naval associations: Apportionment

of Rights of, on release, 353.

losses.

158.

Right of making, 357.

proof of existence

of,

24.

Right of postliminium,

352,

390.

Necessity, appropriation of property

un-

Negotiation of treaties, true basis for, 385,

Neutral soil: Right of belligerent to, 93.

der,

92,

93.

"

occupancy, title by,

90.

Promises,

131.

13.5,

occupatory

lands,

16.

offenses against society, punishment of,

258.

Origen, 49.

Ovid, 32.

Pardons, lawfulness

of,

236,

238.

Parley, sign of,

416.

partnerships, 146.

Trading "proportion

of

profits

IosJes,

157.

and

peace: The object of wars. 379.

Paulus,

21.

Treaties of,

385.

who

may make, 386.

Interpretation of,

389.

Breach of,

393.

Preservation

of,

417.

Penal statutes, construction of,

181.

Penalties: Remitted.

391.

for,

Priviteers,

200.

Private right,

20.

Privileges of bodies politic,

6%

Prizes:

By

right of war, 337*

343,

346.

Captures

on,

344.

Taken from pirates,

357.

Neutrals, rlghts and duties, 377.

Oaths: Sanctity

of,

160

d

SCq.

Goods, 337. Prohibitions in treaties, 193.

Promises

:

Obligation of, 131, 135, 379,

381.

Perfect, 135,

1%.

Interpretation of, 137.

Obtained by fraud or fear, 137.

Erroneous, 137, 142.

Valid, 138.

Meaning of,

161.

Validity and form of, 162.

Effect and substance

of,

163, 381.

Authority

of

sovereign over,

164.

Imperfect, 134.

Resulting from injury,

195.

Enforcina performance of, 287.

Obligations' Arising from property,

123.

~~~~b~~~"4~39'

Acceptance of, 139, 141,

415.

With conditions,

142.

Obligations arising from possession

of,

Alienated by rights of war, 353.389.

Restoration of, taken in Unjust war,

375.

possession of, for long time may not

give right of,

19,-

but

see

114.

Redress of injuries to, 311, 318.

of

enemy, right to destroy, 332,365, 36.

Title to, 335. 90.

Appropriation of,

on

ground

of

neces-

Possession of, after war, 390.

of

subjects, liability of for debts of

Title to, as between enemies, 338.

use of.

94.

Property

:

Means of acquiring.

103.

123

et

seq.

sity, 91,

92.

states, 308. 370. 387.

.

-.

special,

396.

Performance

ot

contract, guaranty

Payment of, effect

on

wars,

408.

143.

.

-.

special,

396.

Performance

ot

contract, guaranty

Payment of, effect

on

wars,

408.

143.

Acquisiiion of,

in

war,

340.

Idea of how established.

89.

Captured, 369.

When

right of, ceases to exist,

117.

Things not reducible to,

89.

Movable and immovable, 88,356.

In lakes, ponds, and rivers,

go.

Abandoned,

Iq,

111.

THE

RIGHTS

OF

WAR

AND

PEACE

Puffendorf,

193.

Punishment:

A

justifiable cause

of

war,

Defined,

221.

Who may inflict,

223,

226,

228.

75.

Object of,

224.

226,

229, 232,

240,

247, 370.

Capital,

233.

Under the Gospel,

230.

Wicked acts not subject to,

235.

proportioned to offense,

243

et

seq.

communication of,

upon

accomplices,

Of

offenses against God,

249

et

seq.

Offenses affecting society,

258.

Of non-participants,

262.

Of children for parents'

sins,

266.

Of surety,

264.

Classes exempt from,

362.

Right to claim property as,

391.

Of hostages,

364.

256.

Quintilian,

q,

89.

Ratification of treaties and conventions,

Recovery of things alienated by rights

Redemption of pledges,

401.

Redress. method of obtaining,

311, 318.

Religion, based

on

four truths,

250.

Remedial statutes, construction of,

181.

Reprisal

:

Letters of Marque and,

278.

167. 175, 414.

of war,

353.

A

method of obtaining redress,

311, 312.

Residents, foreign, rights of.

97.

Restoration: Of subjugated people,

354.

327, 370.

Of property.

375. 392.

To

impose duties

on

goods in transit,

355.

Right:

To

movables by occnpaucy,

104.

Common-passage through countries.

97.

95,

97%

99.

Of

burial,

213.

Violation of,

301.

Of dominion, acquisition

of,

379

Of governors and governed,

I9

Of prisoners,

353.

Definition and signification of,

18,

19,

20,

To actions,

9.

Private,

20.

Superior.

20.

Voluntary,

25.

Of

asylum,

260.

Of making war,

386.

Of

possession,

399.

Sources of,

195.

Disputed, methods of settling,

276.

Of property,

307.

Resulting from conquest.

348.

Of persons,

19, 307~ 391.

Arising out

of

law of nations,

219.

Real,

19.

Corporeal and incorporeal,

85,

309,

346.

Of

war,

18,

332, 336, 381.

Of

temporary residents,

98.

Of native,

92.

River: Effect of change

jn

course of,

10-5.

Middle of boundary between territo-

When property,

sp,

104.

Rights

:

Human and Divine,

25.

ries,

107.

Robbery, right to klll robber.

81.

Romanns, Clemens,

52.

Sacred things not exempt from destrnc-

tion by

enemy,

332.

Safe conduct, a,

408.

Expiration of,

409

Sales and purchases: Right

of

restrict-

ing,

100.

Sallust,

206.

Salvian.

51.

Sea

:

Open,

not

property,

go.

Self-defense,

77.

When contract complete,

151.

Portions

of,

may become property,

104.

Seneca,

19, 24, 74, 75,

80,

92,

108,

118,

135,

192.

Services, gratuitous,

r~.

Settlement of national disputes, methods

Sh. ps

.

Owners bound by acts of masters

of,

276.

of,

when,

139.

Under

law

of

postliminium,

35%

Goods

found

in enemy's,

337.

Silanian, Decree,

53.

Slavery,

35.

Slaves

:

Prisoners of war,

345,

Smith, Adam,

IOI

n.

Right of postliminium,

352,

Soldiers, compensation to,

341,

343.

Sovereign power: Not in the people in

Ceases, when,

117.

Sovereigns: Elective and hereditary,

71.

To

declare war,

316. 386.

Responsibility

for

piracy and robbery,

For acts of subjects.

257.

Bound by acts of commissioner,

412.

every case,

63

et

xq.,

120.

200.

Sovereizntv

:

Its nature and where it re-

Not forfeitable

by

act of delinquency,

sicei,

G,

62,

70, 71. 103.

Spies, treatment of, when captured,

331.

80.

Sponsio.

167.

State

:

Definition of,

25.

Sovereign,

62.

Conquered, privileges allowed to,

374.

Division

of,

into constituent parts, by

consent of war,

121.

States: When immortal,

117.

May lose political existence by con.

StatesGeneral: Three divisions of,

70, 71.

quest,

348, 349.

Power of,

71.

Of Holland,

337.

Statutes

:

Penal construed strictly; reme.

Strabo,

62,

9.

Stratagem, use

of,

in war,

294

et

seq.

Subjects: Of sovereign, detention of,

311.

Liability toattack, in time of war, any

dial liberally,

181.

Superior right,

20.

Supply of a thing affects its price,

151.

Surety: Punishment of,

264.

Surrender

:

Of a people, in war,

390.

Sylla, Lucius Cornelius,

57.

where,

327.

Bound by consent,

308.

Conditional,

4w.

Tacitus,

64>

68,

106,

110,

213.

Taxeson goods in transit,

97.

Terminus, rites of,

373.

Tertullian,

49,

51,

52.

Territory long possessed, title to,

1x0.

Thucydides,

60,

174.

Time: As

an

element of right

of

prop

erty,

109.

Transit, goods in,

97.

Immemorial,

113.

INDEX

423

Treaties

:

Public and private,

165.

Equal,

170.

Unequal,

158, 170, 171-

184.

Deanition of,

167.

Requiring ratification.

167.

Power to make in monarchies,

168.

Resting in law of nature,

168.

Of

commerce and amity,

169, 170,

185.

Renewal

of,

173.

Effect

of

violation

of,

174.

Interpretation of,

176

et

scq.

(See In-

Where governments change

form,

184,

Personal and real,

184.

Of

peace, material part

of,

386.

Stipulations as to actions at law,

390.

Hostages and pledges under,

400.

Truces

:

Deanition,

403.

Duration

of,

404,

Public notice of,

405.

Breach of,

406,

Granting of,

414

Of peace.

170, 386,389,391.

terpretation of Treaties.)

185.

Ulpian,

21,

34, 36, 129,

162,

166,

263, 333.

Unlawful acts,

305.

Usucaption, law of, as applied to sover

eigns,

115.

Usufruct.

155.

Usufructuary property,

86.

usury,

155.

Valentinian,

67.

Value of a thing governed by what?

150.

Vasquez,

80,

239,

286,

388.

Vattel,

101,

158,

167~

169,

177*

203, 297, 387.

Of money,

153.

388

-notes.

War: Definition

of,

IS,

403.

Derivation of word,

18.

Division of, public, private, and mixed,

All, not repugnant to law

of

nature,

Private,

55,

56, 83.

ustlfiable causes pretexts, and begin-

'

iing

of,

73.75:

247,285.

Defense, indrmnity and punishment,

Time of beginning,

284,

75,

245.

Object

of,

379.

Effect upon debts,

391.

Lawfulness

of,

18, 31, 278. 324.

Under divine voluntary law,

36, 40.

Causes, justifying participation

of

al-

Aid to parties

to,

173.

Lawful means used in,

290~

363.

Use

of

stratagem,

294,

Suspicion of hostile intentions,

83.

Demand

of

surrender of citizen,

285.

Injury to property,

85.

Precautions against,

280

et seq.

Right of belligerents to neutral soil,

93.

Unjust, causes of,

267

el

seq.

Avoidance of,

280

et

seq.,

418.

Declaration

of,

318, 321, 404,

and forms,

Right to mske,

386.

Losses

of

individuals by,

388.

Public, formal and informal, declared

Right to avert, and

to

punish wrongs,

55.

34 36.

lies,

285.

319.

by sovereign,

57,

316,

317, 386.

81.

200.

247.

280.

a

Wealb of'Nations,D

101

n.

Wrqngs

:

Divlsion of, private and public,

Withernam,

311.

bI.

Sovereign power may avert and punish,

83.

Xenophon,

32, 93.

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