The Law of War and Peace (1625)
by Hugo Grotius
On Secondary Acquisition of Property by The Act of Man; Also, Alienation of Sovereignty And of The Attributes of Sovereignty
I. What is necessary, on the part of the giver, that the alienation of a right should be valid.
1. A THING becomes ours by secondary acquisition either through the act of man or by operation of law.
After the introduction of ownership it is of the law of nature that men, who are the owners of property, should have the right to transfer the ownership, either in whole or in part. For this right is present in the nature of ownership, at least of full ownership. Thus Aristotle says: “The definition of ownership is to have within one’s power the right of alienation.”
Two matters only are to be noted, the one affecting the giver, the other the receiver. In the case of the giver a mental act of will is not sufficient, but together with it either words or other external signs are required, because a mere mental act, as I have said elsewhere, does not meet the requirements of human society.
2. The requirement that delivery of the property take place arises from municipal law. But because this has been received by many nations it is improperly called a principle of universal law. Thus we see that in some places it is the custom to require a declaration in the presence of the people, or before a magistrate, and insertion in the public records; and it is quite certain that all these formalities arise from municipal law. But the act of will, which is expressed by a sign, must always be understood to be the act of a rational will.
II. What is necessary on the part of the receiver.
In the case of the receiver, in turn, if we disregard the municipal law, the requirement by the law of nature is willingness to receive, accompanied by its natural sign. This willingness ordinarily follows the giving, but it can also precede, as, for instance, if any one has asked that a thing be given or granted to him. It is in fact believed that the willingness continues unless a change becomes apparent.
The other conditions, which are required both for the transfer of a right and for its acceptance, and the question how both can take place, will be treated below n the chapter on promises. For in these matters the method of alienation and that of promising are alike, at least by the law of nature.
III. That sovereignty can be alienated, sometimes by the king, sometimes by the people.
Moreover, as other things, so also sovereignty can be alienated by the one under whose control it in reality is; that is, as we have shown above, by the king, if he holds the sovereignty by inheritance, otherwise by the people, but with the consent of the king, because he also has a certain right as possessor of a kind of life interest which ought not to be taken away against his will. These considerations apply to sovereignty in its entirety.
IV. That sovereignty over a part of a people cannot be alienated by the people against the will of the part.
In the alienation of a part of a people there is the additional requirement that the part whose alienation is under consideration also give consents For those who unite to form a state form a kind of perpetual and lasting association by reason of the character of those parts which are called integral.
From this it follows that these parts are not so dependent on their body as are the parts of a natural body, which cannot live without the life of the body, and, therefore, may rightly be cut off for the advantage of the body. This body of which we are treating is in fact of a different kind, since it was formed from voluntary compact. For this reason, again, the right of the whole over its parts must be measured from the original intent, which we ought not to believe was such that the body should have the right to cut off parts from itself and give them into the power of another.
V. That a part cannot alienate the sovereignty over itself except in case of extreme necessity.
Likewise in turn it is not right for a part to withdraw from the body unless it is evident that it cannot save itself in any other way. For, as I have said above, in the case of all rules of human devising, absolute necessity seems to make an exception, and this reduces the matter to the strict law of nature. In the eighteenth book of the City of God, Augustine says: “Among almost all nations this utterance of nature has in some way been heard, that they should prefer to yield themselves to the conquerors rather than to be exterminated with every kind of war’s destruction.” And so in the oath of the Greeks, in which those who should have yielded to the Persians were devoted to death, there was added the exception, “unless they should be actually forced.”
VI. The reason for the difference indicated.
Hence it can be clearly enough understood why, in this respect, the right which the part has to protect itself is greater than the right of the body over the part. The part, in fact, employs the right which it had before entering the association, but not so the body.
Furthermore no one should say that sovereignty exists in a body as in a subject, and so can be alienated by it, just as ownership can. Just as the soul, in fact, exists in bodies that are suited to it; so sovereignty, resides in the corporate body as in a subject which is entirely filled, and not divisible into several bodies. But necessity, which restores a thing to the law of nature, cannot exert its force here, because in the law of nature use indeed is included, as eating, and as keeping, which are natural acts, but not the right of alienating, because that was introduced by act of man, and so by that fact the extent of its validity is measured.
VII. That sovereignty over a place can be alienated.
Nevertheless, I see nothing to hinder a people, or even. a king with the consent of the people, from alienating sovereignty over a place, that is, a part of its territory, for example, a part that is uninhabited or deserted. For because a part of the people possesses freedom of choice, so also it possesses the right of refusal; but both the whole territory and its parts are the undivided common property of the people, and therefore subject to the will of the people.
If, on the other hand, the people is not allowed to alienate the sovereignty over a part of the people, as we have just said, still less can a king do so, though possessed of absolute authority, since this power is not without restrictions, as I have shown above.
VIII. Refutation of the opinion that a king can lawfully alienate portions of his dominion for reasons of advantage or necessity.
I cannot agree, therefore, with the jurists who add two exceptions, public advantage and necessity, to the rule concerning the inalienability of parts of a state, except with this understanding, that when the common advantage is the same, both for the corporate body and for its parts, the consent of the people and of its parts seems easily established from a silence of no long duration, but more easily still if the necessity is apparent. But when an opposing desire is manifest, either on the part of the whole state or of a part, the act must be understood to be null and void, except, as I have said, where a part has been compelled to withdraw from the corporate body.
IX. That infeudation and pledging are contained in alienation.
Under the head of alienation is properly included infeudation with liability of forfeiture in case of felony or lack of issue; for this is a conditional alienation. Therefore we see that infeudations of kingdoms, as well as alienations, which kings have made without consulting the people, have been held void by most peoples. But we are to understand that the people has given its approval, whether it has assembled as a whole, as was formerly the custom among the Germans and Gauls, or has expressed its will through satisfactorily instructed delegates of integral parts. For we do also that which we do through the agency of another.
Furthermore, a part of a state cannot be given in pawn except with similar consent, and not merely for the reason that alienation customarily results from giving in pawn, but also for the reason that both the king is under obligation to the people to exercise his sovereign authority in person, and the whole people is likewise bound to its parts to preserve in entirety this exercise of that authority for the sake of which they united in civil society.
X. That for alienating inferior powers also the consent of the people is required, either express or inferred from custom.
Nothing, however, hinders the people from being able by hereditary right to bestow the inferior offices of government, since those do not at all diminish the integrity of the state as a whole, or of its sovereignty. But the king cannot do this without consulting the people, if we are to remain within the bounds of the law of nature; because a temporary right, such as that possessed by elected kings, or those succeeding to sovereignty by the law of nature, can produce no effects except those which are equally temporary. Nevertheless silence introduced by custom, as well as the express consent of the people, could have assigned this right to kings, and this we see is now the rule generally. And so we read in history, that formerly the kings of the Medes and Persians exercised this right of granting towns or whole provinces as permanent possessions.
XI. That the public domain cannot be alienated by kings.
Also the public domain, the fruits of which have been assigned to support the burdens of government or of royal rank, cannot be alienated by kings, either in whole or in part; for in this they have no greater right than of usufruct. And I do not admit an exception if the thing is of little value; for I have no right to alienate even a small part of that which is not my own. But the consent of the people is more easily inferred from knowledge and silence in the case of small than of great matters.
With this in mind we can apply to the public domain what we have said above concerning the necessity and public advantage in alienating parts of the state, and with even more cogency, because here a matter of less moment is at stake. The public domain was, in fact, established for the sake of the state.
XII. That it is necessary to distinguish the income arising out of public domains from the domains themselves.
But many are deceived on this point, because they confuse the income from the public domains with the domains themselves. Thus the right of acquiring alluvial additions ordinarily belongs to the domain, but the alluvial lands added belong to the income. The right of collecting taxes belongs to the domains, the money coming from the taxes to the income. The right of confiscation concerns the domains, the estates confiscated belong to income.
XIII. To what extent parts of the public domain can be pledged by kings, and why.
Parts of the public domain can for good and sufficient reasons be pledged by kings possessed of absolute power, that is, by those who have the right to levy new taxes for good and sufficient reasons. For as the people is bound to pay taxes justly levied, so also it is bound to redeem property pledged for good reason. Such redemption is, in fact, a kind of tax.
The public domain, moreover, is pledged to the king as a security for the obligations due from the people; and what has been pledged to me can be pledged in turn. However, what I have said thus far is valid only on the condition that no law has been enacted for the state which either has increased or diminished the power of king or people.
XIV. That a will is a form of alienation and formed upon the law of nature.
1. While we are treating of alienation, the fact should be recognized that wills also are included in this class. Though in fact a will, as other acts, can take a definite form in accordance with municipal law, nevertheless in its essential character it is related to ownership, and, if we grant that, it belongs to the law of nature. I can, in fact, alienate my property, not only absolutely but also under conditions, and not only irrevocably but also with right of recovery, even meanwhile retaining possession with unrestricted right of user.
A will, however, becomes an alienation only in the event of death. Up to that time it is recoverable, and the right of possession and enjoyment is meanwhile retained. Plutarch rightly observed this, for having said that the right to make wills was granted to the citizens by Solon, he added: “He made every man the master of his own property with full ownership.” Quintilian the father says in a declamation: “Even an inherited estate can seem a burden if the possession is not absolute; and although absolute power over it is entrusted to us while living, it may be taken away at death.” In accordance with this right, if Abraham had died without children he would have left his possessions to Eliezer, as is indicated in Genesis 15:22.
2. The fact that the right to make a will is not everywhere granted to foreigners is not due to a universal principle of law but to a special statute of a particular state; and, unless I am mistaken, the restriction goes back to the time when foreigners were considered almost as enemies. In consequence, among the more civilized nations, this restriction has deservedly fallen into disuse.