The Law of War and Peace (1625)
by Hugo Grotius
How by the Law of Nations the Goods of Subjects May Be Held for the Debt of Their Rulers; and Therein, on Reprisals
I. By natural law no one except an heir is bound by the act of another.
1. Let us proceed to principles derived from the law of nations. These principles relate in part to war in general, and in part to a particular aspect of war. Let us begin with the general considerations.
By the strict law of nature no one is bound by another’s act, except one who inherits his property; for the principle that property should be transferred with its obligations dates from the establishment of proprietary rights.’ The Emperor Zeno says that it is contrary to natural justice for persons to be harassed for the debts of strangers. Hence the titles in the Roman Law; the wife is not to be sued for her husband, nor the husband for his wife, the son for his father, nor the father or mother for their son.
2. The debt of the corporation, moreover, is not a debt of the individuals, as Ulpian well declares, especially if the corporation has property; for the rest the members of a corporation are bound not as individuals, but as a part of the corporate body. Seneca says: ‘If any one lends money to my country, I shall not say that I am his debtor, nor will I admit this is my loan; yet I shall give my share towards paying it off.’ He had previously said: ‘As one of the people I shall not pay as though for myself, but I shall contribute as for my country ‘; also,’ Individuals will be indebted not as if for their personal debt, but for a share of the public debt.’
Hence in the Roman Law it was specifically provided that no member of a village should be held for the debts of other villagers; and elsewhere it is ordered that no property of one person is to be sued for the debts of others even if public debts. In a novel of Justinian, ‘pledge-taking,’3 that is, the taking of sureties for others, is forbidden, and the reason given is that it is not reasonable for one person to be the debtor and another to be made to pay. Here also exactions of this sort are called hateful. King Theodoric, in Cassiodorus, calls it disgraceful to permit one person to give sureties for another.
II. Nevertheless it has been established by the law of nations that both the possessions and the acts of subjects are liable for the debt of a ruler.
1. Although what has just been stated is true, nevertheless by the volitional law of nations there could be introduced, and appears to have been introduced, the principle that for what any civil society, or its head, ought to furnish, whether for itself directly, or because it has bound itself for the debt of another by not fulfilling the law, for all this there are held and made liable all the corporeal or incorporeal possessions of those who are subject to such a society or its head.
This principle, furthermore, is the outgrowth of a certain necessity, because otherwise a great licence to cause injury would arise; the reason is that in many cases the goods of rulers cannot: so easily be seized as those of private persons, who are more numerous. This then finds place among those rights which, as Justinian says have been established by civilized nations in response to the demands’ of usage and human needs.
2. This principle, however, is not so in conflict with nature that it could not have been introduced by custom and tacit consent, since sureties are bound without any cause, merely by their consent, It was hoped that members of the same society would be able through mutual relations to obtain justice from one another, and provide for their indemnification, more easily than foreigners, to whom in many places slight consideration is given. Hence the advantage’ derived from this obligation was common to all peoples, so that he who might now be burdened by it at another time might in, turn be relieved.
3. That this usage has been accepted, appears from the perfect wars which peoples wage against peoples. The practice observed, in such wars is in fact revealed by the formulas of declaration, as ‘I declare and make war upon the peoples of the ancient Latins and; the men of the ancient Latins,’ and in the question ‘whether they wished and ordered that war be declared upon King Philip and the, Macedonians who were under his rule.’ It is evidenced also by the decree itself, as, ‘The Roman People orders that war be waged upon the people of the Hermunduri and upon men of the Hermunduri,” which is cited from Cincius on military affairs; and elsewhere, as ‘Let him be an enemy, and also those who are within his defenses.’
We see that the same right is invoked also where a state of perfect war has not yet been reached, but where nevertheless there is need of an enforcement of a right by violent means, that is, by means of an imperfect war. Long ago Agesilaus said to Pharnabazus, who was a subject of the king of Persia: ‘Formerly, Pharnabazus, when we were friends of the king, we treated his possessions as became friends; now that we have become enemies, we treat them as belonging to a foe. Since, therefore, we see that even you desire to be classed among the king’s possessions, we do right to strike at him through you.’
III. An example in the seizure of persons.
1. One form of the enforcement of right regarding which I am speaking was what the Athenians called ‘seizure of men.’ Of this a law of Attica said: ‘If any one die by a violent death, for his sake it shall be right for his relatives and next of kin to proceed to apprehend men, until either the penalty has been paid for the murder, or the murderers are given up. Such seizure may extend to three persons, and no more.’ Here we see that for the debt of the state, which is bound to punish its subjects who have injured others, there is put under obligation a certain incorporeal right of its subjects, that is, their liberty of remaining where they wish and of doing what they wish; in consequence such subjects are temporarily in servitude, until the state does that which it is bound to do, that is, until it punishes the one who is guilty.
Although the Egyptians, as we learn from Diodorus Siculus, used to maintain that neither a person nor his liberty should be bound for a debt, nevertheless there is nothing in this that is repugnant to nature, and the practice not only of the Greeks, but of other nations also, has prevailed to the contrary.
2. Aristocrates, the contemporary of Demosthenes, had proposed a decree to permit the apprehension anywhere of any one who should slay Charidemus, and to number among the public enemies any who should resist such seizure. In this proposal Demosthenes criticizes many points: first, that Aristocrates did not distinguish between killing justly and killing unjustly, although sometimes it may be just to kill; secondly, that he did not require that a trial be previously demanded; and, further, that he wished those who received the homicide to be held responsible and not those among whom the killing was done. The words of Demosthenes are:
For the law ordains that if those, among whom the wrong is suffered, do not pay the penalty nor surrender the culprits, these shall be apprehended to the number of three. But he lets these indeed go unpunished, and makes no mention of them; while he proposes that those shall be outlawed who have received the murderer when he has taken refuge with them if they do not freely surrender him; I shall state the case in accordance with the custom common to mankind, which bids us receive the fugitive.
The fourth point of criticism is that Aristocrates at once brings the matter to a state of perfect war, when the law would have been satisfied with an arrest.
3. Of these criticisms the first, second, and fourth are not without reason. But the third objection, unless it is restricted to the single case of killing by accident or in self-defense, can only have been offered rhetorically, and more for the sake of argument than according to truth and right. For the law of nations that suppliants shall be received and protected applies, as we have previously said, only to those who are endangered by ill fortune and not by crime.
4. In other respects the law is the same for those among whom the crime has been committed and for those who refuse to punish or surrender the guilty person. Therefore either that very law, on which Demosthenes relies, received from practice the interpretation that I give, or afterward it was more explicitly formulated against such quibbles. That one of these alternatives is true will not be denied by any one who has given attention to the following definition of Julius Pollux: ‘Seizure of men takes place when any one upon demand does not receive murderers who have fled to some persons for refuge, for in that case he has the right to carry off as many as three persons of those who have not surrendered the culprits.’ In the same sense Harpocration says: ‘Seizure of men is the right to carry off men from some city. For they used to take sureties from a city which held a murderer and would not give him up for punishment.’
5. Similar to this right of seizure is the right of detention of citizens of another state in which a manifest wrong has been done to a national, in order to secure his recovery. Accordingly at Carthage’ certain persons prevented the seizure of Ariston of Tyre, giving it as their reason that ‘The same thing will happen to Carthaginians, both at Tyre and in the other commercial centers to which they go, in large numbers.’
IV. An example in the seizure of goods.
Another form of the enforcement of right by violence is ‘seizure of goods’ or’ the taking of pledges between different peoples”.’ This is called by the more modern jurists the right of reprisals; by the Saxons and Angles ‘withernam,’ and by the French, among whom such seizure is ordinarily authorized by the king, ‘letters of marque.’ This enforcement of right occurs, as the jurists say, where a right is denied.
V. Seizure is warranted after a right has been denied, and when it may properly be considered as settled that this has been done; wherein it is shown that a judicial decision does not properly give or take away a right.
1. Seizure by violence may be understood to be warranted not only in case a judgement cannot be obtained against a criminal or a debtor within a reasonable time, but also if in a very clear case (for in a doubtful case the presumption is in favor of those who have been chosen by the state to render judgement) judgement has been rendered in a way manifestly contrary to law; for the authority of the judge has not the same force over foreigners as over subjects.
Even among subjects such a decision does not cancel a true obligation. ‘A true debtor, even though he is absolved, still remains a debtor by the law of nature,’ says Paul the jurist. ‘And when by a wrongful decision of a judge a creditor had taken away from its, owner, as if it had been bound over to him, property which did not belong to the debtor, and the question was raised whether, after the payment of the debt, this should be restored to the debtor, Scaevola approved of its restitution.’ There is this difference, that subjects cannot legally hinder by force the execution of a judgement even if it is unjust, or assert their rights by force against it, because of the effectiveness of the authority over them; but foreigners have the right of compulsion, which they may not use, however, so long as they can obtain what is theirs by a judgement.
2. The principle, therefore, was not introduced by nature, but has been widely accepted in practice, that for such a cause the persons, or movable property, of the subjects of him who does not render justice, may be seized. The most ancient instance is given by Homer, in the Iliad. Here it is recounted that Nestor seized the flocks and herds of the men of Elis in revenge for the horses stolen from his father,’ taking reprisals,’ as the Poet says; in this passage Eustathius explains ‘reprisals’ as ‘what is confiscated in return for something, that is, dragged off and seized in return for what has been previously taken.’ The narrative goes on to say that all those to whom anything was owed by the Eleans were summoned by proclamation to secure their rights, surely,
- Lest any one of his just due should be deprived.
Another instance is in Roman history, in the case of the Roman ships which Aristodemus, the heir of the Tarquins, held at Cumae as compensation for the property of the Tarquins. Dionysius of Halicarnassus states that slaves, cattle, and money were held. Still another instance is given by Aristotle, in the second book of the Economics, on the law of the Carthaginians relating to seizure of the ships of foreigners, ‘if any one has a right of seizure,’ as the condition is there expressed.
VI. Such seizure does not warrant the taking of human life.
That for such a cause the lives of innocent subjects are liable, has perhaps been believed among some peoples, because, they supposed that every man has in himself a full right over his life, and that it was possible to transfer this to the state. That supposition, as we have elsewhere said, is by no means capable of proof, nor is it in harmony with a more sound theology.
Nevertheless it may happen that those who wish by force to hinder the enforcement of a right may be killed, not intentionally but accidentally. But if this can be foreseen, we have shown elsewhere that we ought rather to surrender the furthering of the right, in, accordance with the law of love. According to this law, particularly for Christians, the life of a man ought to be of greater value than our property, as has been proved in another connection.
VII. The distinction between what there is relating to this matter in municipal law and in the law of nations.
1. In this matter, no less than in others, we must take care note to confuse the things which properly belong to the law of nations, and those which are established by municipal law or treaties between peoples.
2. By the law of nations all subjects of him who does the injury are liable to the furnishing of sureties, provided they are subjects from a permanent cause, whether native or immigrant, and not persons who are present anywhere for the purpose of travel or for a brief residence. The furnishing of pledges is treated after the manner of burdens which are imposed in order to pay the public debts, and from which those are immune who are only temporarily subject to the laws of the place. However, ambassadors are excepted by the law of nations from the number of subjects, provided that they have not been sent to our enemies; and their goods also are excepted.
3. By the municipal law of states, however, the persons of women and children are often excepted; and in fact even the property of those who are engaged in literary pursuits of come to carry on trade. By the law of nations individuals possess the right of taking sureties, as at Athens, in the seizure of men. By the municipal law of many countries this right is ordinarily sought in some cases from the supreme authority, in other cases from judges.
By the law of nations ownership is acquired over seized goods by the mere act of seizure, up to the limit of the debt and expenditure, in such a way that the residue shall be restored.’ By the municipal law the parties concerned are usually summoned, and afterwards by public authority the property is sold or assigned to those who are affected. But for these and other topics reference should be made to those who discuss the municipal codes; on this subject particularly Bartolus, who has written on reprisals.
4. A further statement I shall add, because it concerns the mollification of this law, which is in itself sufficiently rigorous. Those who, by not paying what they owe or by not furnishing satisfaction, have given occasion for the taking of sureties, by natural and divine law are bound to make good the damages z to others, who for that reason have incurred a loss.