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The Law of War and Peace (1625)

by Hugo Grotius

BOOK 2, CHAPTER 19
On The Right of Sepulchre

I.     The right of burial of the dead has its origin in the same law of nations.
1.   THE burial of the dead also is an obligation which has its origin in the law of nations; and this, in turn, has its origin in the will.

Among usages or ‘customs’ which Dio Chrysostom contrasts with ‘the written laws,’ after the rights of ambassadors he declares that ‘the burial of the dead should not be prevented.’ Also Seneca the father includes the committing of a dead body to earth among the laws which are unwritten but more sure than all written laws. The Jews Philo and Josephus call this a law of nature, and Isidore of Pelusium, ‘an established ordinance of nature’; we have said elsewhere that common customs which are in accord with natural reason are customarily included under the term nature.

In Aelian are the words: ‘Since common nature herself enjoins that the dead be buried.’ Elsewhere the same author speaks of ‘the earth and burial as common, and equally due to all men.’ Euripides in the Suppliants called burial ‘laws of mankind’; Aristides, ‘a common law’; Lucan,’ the customary rites of men’; Papinius [Statius], ‘the laws of earth and a compact of the world.’ Tacitus speaks of ‘sympathy for the common lot of mankind ‘; the orator Lysias, of ‘the common hope.’ Whoever hinders burial is said by Claudian ‘to put off the nature of man ‘; by the Emperor Leo, ‘to bring disgrace upon nature,’ and by Isidore of Pelusium, ‘to violate sacred right.’

2.   Because the ancients were accustomed to refer to the gods as authors the rights which are common to civilized men, in order that these might seem more sacred, we see that this right, as well as that of legation, is generally ascribed to the gods. And so in the tragedy just mentioned, the Suppliants, you will find it called ‘the law of the gods ‘; and in Sophocles Antigone thus makes answer to Creon, who had forbidden the burial of Polynices:

      For this decree not Jupiter supreme
      Nor holy law of dead now deified,
      From whom the human race derived its other rights,
      Proclaimed. And I have not believed that your commands
      So potent are that you of mortal birth
      Could violate the laws unwrit but by the will
      Of gods ordained, and everlasting.
      Not of late Are they in force, but from all time,
      And hid their origin. Then should I not
      Obedience render to the mighty gods,
      And with stout heart the fear of mortal wrath disdain?

3.   Isocrates treating of the war of Theseus against Creon speaks thus:

Who does not know, who has not learned, even in the Dionysiac festivals from the writers of tragedies, what evils befell Adrastus before Thebes, when, wishing to reinstate the son of Oedipus, his son-in-law, he lost the most of his Argive troops and saw the leaders themselves lying slain; when he himself, disgracefully surviving, could not obtain a truce to bury the dead, he came as a suppliant to Athens, which Theseus then was ruling, and besought Theseus not to count it a trivial matter that such men lay unburied, and not to allow the contemptuous disregard of the ancient custom and ancestral right, which all men have in common, not as if established by man, but ordered by a divine power; and Theseus, when he heard this, without delay sent an embassy to Thebes.

Later the same author censured the Thebans because they had put the decrees of their own state above the divine laws. He mentions the same story also elsewhere, in the Panegyric, in the Praise of Helen, and in the Plataic Oration. Herodotus, too, mentions it in his ninth book, Diodorus Siculus in his Histories, Book IV, Xenophon in his Greek History, Book VI, and Lysias in the oration in honor of the dead; finally, Aristides has the story in his PanAthenian Oration, and he says that this war was undertaken on behalf of the common nature of men.

4.   Here and there among the authors cited we see that the names of the noble virtues are assigned to this discharge of duty. For Cicero and Lactantius call this a manifestation of humaneness; Valerius Maximus, of ‘humaneness and kindliness ‘; Quintilian, of ‘compassion and religious scruple’; Seneca, of ‘compassion and humaneness ‘; Philo, of ‘compassion for the common nature of mankind ‘; Tacitus, of’ sympathy for the common lot of mankind ‘; Ulpian, of ‘compassion and devotion ‘; Modestinus, of the’ memory of the lot of man’; Capitolinus, of ‘mercy’; Euripides and Lactantius, ‘justice’; and Prudentius, of ‘the work of kindness.’ The Donatists, who forbade the burial of the bodies of the Catholics, are accused of impiety by Optatus of Milevis. In Papinius [Statius] one reads:

      And Creon must be forced by war and arms
      To heed the customs of mankind.

Spartianus says that such men are ‘without reverence for humanity’; Livy calls the refusal of burial an act of cruelty’ evincing human rage beyond belief.’ Homer has styled such acts ‘shameful deeds.” Lactantius calls ‘impious’ ‘the wisdom of those who hold burial superfluous’; for the same reason Eteocles was called impious by Papinius [Statius].

II.     Whence the right arose.
1.   All do not seem to hold the same opinion regarding the cause of the introduction of the custom that bodies should be covered with earth, whether first embalmed, as among the Egyptians, or cremated, as among most of the Greeks, or buried as they are now; the last-mentioned, Cicero, and after him Pliny, noted as representing the most ancient custom. Moschion thinks that the occasion was given by the savagery of the giants in devouring men, and that burial marked its abandonment. He, in fact, speaks as follows:

      By laws then ’twas ordained to give to earth
      The bodies of the dead, or sprinkle with the dust
      Those not yet buried, lest the dreadful signs
      Of former feastings should be left to view.

2.   Others think that in this way men as it were of their own will paid a debt which otherwise nature demands of them even against their will. For not only did God make known to Adam, but also Greek and Latin writers generally acknowledge, that the body of man arose from earth and to earth must be returned. Cicero quotes from the Hypsipyle of Euripides:

      Earth must be to earth restored.

Also in the words of Solomon we read that ‘the dust returneth to earth, as it was, and the spirit returneth unto God, who gave it.’ Euripides in the Suppliants, touching upon this very subject in the person of Theseus, thus speaks:

      Now let the dead be covered in the lap of earth;
      Whence everything its origin received,
      Thereto it is restored.
      The spirit to heaven returns,
      The body to the earth.
      For not by right of sale,
      But as a loan and for brief time ’twas given.
      Soon earth asks back what it has nourished.

Lucretius similarly says of earth:

      Mother of all she is, and common tomb of things.

In his second book On Laws, Cicero quotes from Xenophon ‘The body is restored to earth; thus placed and buried it is, so to speak, covered with the veil of its mother.’ Pliny also wrote that the earth receives us at birth, nourishes us after birth, and always supports us when we have reached maturity; finally, when we have been abandoned by the rest of nature, as a mother she takes us to her bosom and hides us.

3.   There are some who think that by burial as a kind of memorial the hope of resurrection was handed down by the first parents of the human race to their descendants. For by the witness of Pliny, Book VII, chapter 55, Democritus taught that bodies ought to be preserved on account of the promise of living again. Moreover, the Christians often refer the custom of honorable burial to such a hope. Prudentius says:

      What mean, I pray, the hollowed rocks,
      Or what tomb structures beautiful,
      Unless there is to them entrusted
      A thing not dead, but by sleep overcome?

4.   A simpler explanation is that, since man surpasses the other animate beings, it has seemed an unworthy fate that other animals should feed on his body; wherefore, that this might be so far as possible avoided, burial was invented. Quintilian said that because of the compassion of men dead bodies were guarded against the attacks of birds and beasts.’ Cicero says in his first book On Invention: ‘Torn by wild beasts in death he lacked the common honor of burial.’ Also in Virgil we read:

      No loving mother shall bury thee in earth,
      Nor lay thy weight in the ancestral tomb.
      A prey to ruthless birds shalt thou be left.

In the prophets God threatens the kings that are hated by Him, that they shall have the burial of an ass, that dogs will lick their blood. Lactantius has no other thought in mind regarding burial when he says: ‘For we shall not suffer the form and image of God to be left a prey to beasts and birds.’ So also Ambrose, whose words are ‘There is no nobler duty than this, to confer a favor on one who can no longer requite it; to deliver from birds, to deliver from beasts, one who shares your nature.’

5.   Even the dead should not be exposed to such injuries, nevertheless with good reason it seems foreign to the dignity of man’s nature that a human body should be trodden under foot and torn to pieces. Not inconsistent with this point of view is the statement in the Controversies of Sopater:

It is a noble act to bury the dead; and by nature herself this boon was granted as it were to corpses, that they might not be exposed to shame after death by rotting away in nakedness. Whether the gods or the demigods granted this honor to bodies that are done with life, such disposition of the dead is agreeable to all men. In fact, since it is at variance with reason that the secrets of human nature should be exposed to the view of all after death, we have accepted from antiquity the custom of burying human bodies in order that, concealed in a tomb, they might waste away in secrecy, far removed from sight.

Of similar purport are the words of Gregory of Nyssa in his Letter to Letoius: ‘In order that that which is a blemish upon human nature may not be exposed to the sun.’

6.   Hence is it that the office of burial is said to be performed not so much for the man, that is, for the person, as for mankind, that is for human nature. Therein is the reason why Seneca and Quintilian called burial a humane public act, and Petronius characterized it as prescribed by custom. A natural consequence of this is that burial ought not to be denied either to private or to public enemies.

As regards private enemies there is in Sophocles a fine disquisition by Ulysses governing the burial of Ajax, in which, among other sentiments, these lines appear:

      O Menelaus, when so much is wisely said,
      Beware of doing injury to a man who is dead.

Euripides in the Antigone gives this reason:

      Death is for mortal man the end of strifes;
      Then what else greater can to death be added?

The same dramatist also in the Suppliants:

      If Argives have done ill to you in aught,
      Fallen they are; against a foe such vengeance is enough.

And Virgil says:

      No strife is there with vanquished men, and those
      Bereft of heaven’s air.

Citing this thought the author of the Ad Herennium adds: ‘For that which is the last of evils has already happened to them.’ Papinius [Statius] says:

      We fought, ’tis true;
      But hate has ceased, and gloomy wrath
      By death is quenched.

Optatus of Milevis, too, assigns the same reason: ‘If the contest was between those living, then let the death of the other appease your hatred. He with whom you strove before is now silent.’

III.     That burial is due also to public enemies.
1.   Consequently, all agree that even public enemies are entitled to burial. Appian calls this ‘a common right of wars ‘; Philo, ‘the common interchange in war.’ Says Tacitus: ‘Not even enemies begrudge burial.’ Dio Chrysostom says that this right is observed even ‘among enemies ‘; he adds, ‘even though hatred has reached the utmost limit.’

In treating of the same matter, Lucan says that the laws and customs of humanity must be observed in the case of an enemy. The same Sopater, who was cited above, asks: ‘What war has deprived the human race of this last honor? What enmity has extended the memory of evil deeds to such a point that it would dare to violate this law?’ And Dio Chrysostom, whom I have just cited, in his oration On the Law, says: ‘For this reason no one judges enemies after death, and wrath and insult are not extended to their bodies.’

2.   Examples are found everywhere. So Hercules buried his enemies, Alexander, those who fell at Issus. Hannibal sought out for burial the Romans, Gaius Flaminius, Publius Aemilius, Tiberius Gracchus, and Marcellus. ‘You might believe,’ says Silius Italicus, ‘that a Carthaginian leader had fallen.’ The same duty was discharged to Hanno by the Romans, to Mithridates by Pompey, to many by Demetrius, and to King Archelaus by Antony. In the oath of the Greeks, when they were making war on the Persians, there was this: ‘I will bury all allies; as victor in war, even ‘the barbarians.’

Quite generally in the histories you may read that an armistice was granted ‘for the removal of the dead.’ There is an instance in the Attica of Pausanias: ‘The Athenians say that the Medes were buried by them, for the reason that it is right that all dead bodies be committed to earth.’

3.   For such reasons, according to the explanation of the Jews of the olden time, the high priest, though otherwise forbidden to be present at a funeral, nevertheless was even enjoined to bury a human body found unburied. The Christians esteemed burial so highly that they thought it permissible to melt down or sell even the consecrated vessels of the Church for this purpose, as well as for the support of the poor or the ransom of captives.

4.   There are, to be sure, some examples to the contrary, but they are universally condemned. In Virgil are the words:

      Ward off this rage, I pray;

and in Claudian,

      Blood-thirsty he put off the nature of a man,
      And to the slain begrudged the scanty gift of sand.

Diodorus Siculus says: ‘It is the part of a beast to wage war against the dead who were of the same nature.’

IV.     Whether the right of burial is obligatory in the case of notorious criminals.
1.   Nevertheless I see that there are reasons for doubt in regard to notorious malefactors. The divine law given to the Jews, which is the teacher of all virtue as well as of humaneness, commands that even those who had been hanged on the gallows should be buried on the same day. The gallows was considered the most disgraceful punishment (Numbers 25:4; Deuteronomy 21:23; 2 Samuel 21:26). Hence Josephus says that the Jews have so great regard for burial that before sunset they take down and bury in the earth even those whose bodies have been condemned to public execution. Other Jewish scholars add that such reverence was manifested for the divine image, after which man was fashioned.

In the third book of the Odyssey, Homer relates that Aegisthus, who to the murder of the king had added adultery, was buried by Orestes, the son of the king who was murdered. But Ulpian says that also among the Romans the bodies of those who are condemned to death ought not to be refused to their relatives; still further, Paul the jurist gave it as his opinion that they should be given to any one who might ask for them. The Emperors Diocletian and Maximinian rendered this decision: ‘We do not forbid that criminals be allowed burial after they have suffered the fitting penalty.’ ‘

2.   We read in the histories, to be sure, that examples of those left unburied are more frequent in civil than in foreign wars; and today we see that the bodies of some condemned criminals are left for a long time in the sight of the people. Nevertheless, not only statesmen but also theologians are discussing the question whether or not this custom is praiseworthy.

3.   On the contrary we see that praise has been given to commanders who ordered the burial of the bodies of those that had not allowed this privilege to others; such is the case of Pausanias, the Spartan king, who, though urged by the Aeginetans to avenge in like manner the action of the Persians against Leonidas, rejected the proposal as unworthy of himself and of the Grecian race. According to Papinius [Statius], Theseus thus addresses Creon:

      Go forth and offer utmost punishment,
      Yet at the end be sure of burial.

The Pharisees buried King Alexander Jannaeus, who had treated most shamefully the dead of their people. If God at times punished certain persons with loss of burial, He did this by His own right as being above the laws. And the act of David in keeping the head of Goliath for show was done, in fact, against a foreigner, who was a despiser of God, and under that law which limited the characterization of neighbor to the Jews alone.

V.     Whether the right of burial is obligatory in the case of those who kill themselves.
1.   Nevertheless, the fact is not unworthy of notice that even among the Jews the rule concerning the burial of the dead had an exception in the case of those who had committed suicide; this, in fact, we learn from Josephus. And this is not strange, since no other punishment can be devised against those who are beyond the reach of the death penalty. Thus the maidens of Miletus were kept from suicide by fear, and likewise formerly the plebeians at Rome,’ though this is denied by Pliny. So also Ptolemy ordered that the body of Cleomenes, who had committed suicide, should be hanged.

Aristotle says that it is everywhere the accepted custom that those who have committed suicide should be punished with some disgrace; and in explaining this passage Andronicus of Rhodes says that their bodies were denied burial. A provision of this kind Dio Chrysostom praises among other wise laws of Demonassa, queen of Cyprus. It is no objection to this custom that Homer, Aeschylus, Sophocles, Moschion, and others say that the dead are without feeling; in consequence they are not affected by injury or shame, It is, in fact, sufficient that what happens to the dead is feared by the living, that so they may be restrained from sinning in this way.

2.   Most excellently, in opposition to the Stoics and all the rest who considered the avoidance of slavery and disease, and even the hope of glory, as a just cause for suicide, the Platonists think that the soul ought to be kept in the custody of the body, and that migra tion from this life ought not to be undertaken without the order of Him by whom the soul was given to us. Many statements on thy point it is possible to find in the writings of Plotinus, and Olympia dorus, and of Macrobius On the Dream of Scipio.

Following this opinion, Brutus had at one time condemned the deed of Cato, which he afterwards imitated, ‘maintaining that it was neither loyal nor manly to yield to fortune and to try to escape from impending misfortunes, which ought to be borne bravely.’ Also Megasthenes noted that the deed of Calanus was condemned by the wise men of India, and that such an end for men dissatisfied with life was not approved by their teachings. Not otherwise, as it seems, was the opinion of the Persians, whose king Darius, according to Curtius, says: ‘I prefer to die by another’s crime rather than by my own.’

3.   And so ‘to die’ the Jews expressed as’ to be set free,’ that is ‘to be dismissed’; this it is possible to see not only in Luke 2:29, but also in the Septuagint text of Genesis 15:2 and Numbers 20.

This form of expression is usual for the Greeks also. Themistius, On the Soul, remarks: ‘They say that one who dies is dismissed, and they call death dismissal.’ In Plutarch’s Consolation are words to this effect: ‘Until the deity himself dismisses us.’

4.   Some of the Jews, however, make one exception to the law against killing oneself, considering it a’ commendable exit,’ as it were, if any one should see that thereafter he would be living as a reproach of God Himself. For because they assign the right over our lives not to ourselves, but to God, as Josephus rightly teaches his countrymen, they think that the presumption of the will of God alone justifies the determination to hasten death.

To this justification they refer the case of Samson, who saw that ‘the true religion was an object of derision in his own person; also that of Saul, who fell on his sword that he might not be made sport of by the enemies of God and of himself. For they make out that haul returned to his senses after the shade of Samuel had predicted his death; and after he knew that his death was at hand if he should fight he did not decline battle for his native land and the law of God, thence meriting eternal glory, according to the witness of David; those who had buried Saul with honor received from David the acknowledgement of a deed rightly done. A third case is that of Razis, a senator of Jerusalem, in the history of the Maccabees.

Furthermore, in the history of Christianity we find similar examples of those who committed suicide in order that, when put to torture, they might not forswear the religion of Christ; also of virgins, who threw themselves into a river that they might not lose their chastity; the virgins the Church enrolled in the list of martyrs. But nevertheless it is worth while to see what Augustine thinks of such cases.

5.   I see that a second exception to the law of burial was in force among the Greeks; and this the Locrians maintained against the Phocaeans,’ that it was a custom common to all Greeks that those who were guilty of sacrilege should be left unburied.’ So also Dio of Prusa says in his Rhodian Oration, that’ the sacrilegious and impious’ are deprived of burial. Plutarch in his Antiphon says that the same rule was established at Athens against traitors.’

But to return to my subject, with great unanimity the ancients agreed that war is lawfully undertaken on account of the denial of burial. This is apparent from the story of Theseus, which Euripides treats in the tragedy of the Suppliants already mentioned, and Isocrates in the passage which we cited.

VI.     What other rights impose obligation by virtue of the law of nations.
There are also some other rights, which impose obligation by virtue of the volitional law of nations. Such are the right to things possessed for a long time, the right of succession to one who dies intestate, and the rights which are created by a contract, no matter how unfair. For although all these rights are in some degree derived from the law of nature, yet from human law they acquire a kind of support, either against the uncertainties of conjecture, or against certain exceptions which otherwise natural reason seems to suggest; and this was shown by us above in treating the law of nature.

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