The Law of War and Peace (1625)
by Hugo Grotius
On Devastation And Pillage
I. Enemy property may be destroyed and pillaged.
THAT it is not contrary to nature to despoil him whom it is honorable to kill, was said by Cicero. Therefore it is not strange that the law of nations has permitted the destruction and plunder of the property of enemies, the slaughter of whom it has permitted. Consistently with this, Polybius in the fifth book of his Histories says that the plunder or destruction of enemy fortifications, harbors, cities, men, ships, crops, and anything else of the kind, is included in the law of war. We read in Livy that’ there are certain rules of warfare which it is proper for us both to enforce and to endure; the burning of crops, the destruction of buildings, and the driving off of men and cattle as spoil.’
On almost every page of historical writings you may find accounts’ of the destruction of whole cities, or the leveling of walls to the ground, the devastation of fields, and conflagrations. It must be;’ noted furthermore that such acts are permissible also against those, who have surrendered. ‘The townsmen,’ says Tacitus, ‘voluntarily; opened the gates and placed themselves and their belongings in the,’ hands of the Romans, and this secured safety for themselves; but Artaxata was set on fire.’
II. Even enemy property that is sacred may be destroyed and pillaged’ how this is to be understood.
1. Now the law of nations in itself, apart from the consideration of other obligations of which we shall speak below, does not exempt things that are sacred, that is, things dedicated to God or to the’ gods. ‘When places are taken by the enemy, all things cease to be sacred,’ says Pomponius the jurist. ‘Victory had made profane the sacred things of Syracuse,’ says Cicero in his fourth oration, Against Verres.
The reason is that the things, which are called sacred, are in fact not withdrawn from human use, but are public’; however, they are called sacred from the purpose to which they are devoted. The proof of what I say is that when any people surrenders itself to another people, or to a king, there are also at the same time surrendered the things which are called divine. This is clear from the formula which we have cited elsewhere from Livy; and with that the verse in the Amphitruo of Plautus agrees,
- Their city, lands, their altars, hearths, and persons
Let them give up;
- They yield themselves and all possessions, human and divine.
2. In consequence Ulpian says that even sacred things are included under public law. In his description of Arcadia Pausanias says that it was a custom common to both Greeks and barbarians, that sacred things should be at the disposal of those who had captured cities. Thus he relates that when Troy was taken the image of Hercaean Jupiter was granted to Sthenelus; and he gives many other examples of the same custom. Thucydides, in Book IV, says: ‘It was the custom among the Greeks, that those who had power over a country, whether large or small, should also possess its shrines.’ With this agrees the statement in Tacitus: ‘In the Italian towns, all ceremonies, and temples, and statues of the gods, are subject to the Roman law and authority.’
3. Hence, furthermore, a people, having changed its mind, may make profane what has been sacred, as is clearly indicated by the jurists Paul and Venuleius. We see that, under the necessity of the times, sacred things have been converted to the uses of war s by those who had consecrated them. This, we read, was done by Pericles, though with a promise of restitution, by Mago in Spain, by the Romans in the Mithridatic War, by Sulla, Pompey, Caesar, and others. In Plutarch Tiberius Gracchus says: ‘There is nothing so sacred and holy as offerings to the gods. Nevertheless no one has hindered the people from using, moving, or transferring these.’
In the Controversies of Seneca the Father we read: ‘Oftentimes the temples are stripped for the sake of the state, and we melt down offerings to serve as pay.’ Trebatius, a jurist of the time of Caesar, says: ‘That is profane, which, from being religious or sacred, has been transferred to the use and ownership of men.’ Of this law of nations, therefore, Germanicus made use against the Marsi, when, as Tacitus relates: ‘Profane and sacred structures alike, even the temple most famed among these peoples, which they called the shrine of Tanfana, were leveled to the ground.’ Here apply the lines of Virgil:
- If I Which altars always have revered,
Which the Trojans have profaned in war.
Pausanias has recorded that gifts to the gods are as a rule seized by the victors and Cicero, speaking of Publius Servilius, calls this the law of war. ‘He removed statues and ornaments,’ Cicero says, ‘from the city of the enemy which had been taken by force and, valor, in accordance with the law of war and the right of a commander.’ Thus Livy says that the adornments of the temple, which Marcellus brought to Rome from Syracuse, ‘were acquired by the law of war.’ Gaius Flaminius, in speaking for Marcus Fulvius, says: ‘Statues were carried off and other things done which are usually done when cities are captured.’ Fulvius also in a speech calls this very thing the law of war. Cato [Caesar] in a speech reported by Sallust, in recalling what usually happens to the vanquished, mentions likewise the pillaging of shrines.
4. Nevertheless this is true, that if a divinity is believed to reside in an image it is unlawful that the image shall be defiled or destroyed by those who share such belief. On the assumption that such a belief is held, those who have committed acts of this character are sometimes accused of impiety or of contravention of the law of nations. The case is different if the enemy do not hold the same view; so the Jews were not only permitted but even enjoined to destroy the idols of the Gentiles.
The reason why the Jews were forbidden to take the idols of their enemies was, that they might the more abominate the superstitions of the Gentiles, having been warned against contamination by the very prohibition of contact. The purpose was not to spare what was sacred to others, as Josephus explains, doubtless from flattery to the Romans, just as in his explanation of the other command, about not naming the gods of the Gentiles; for he explains this as though the Jews were forbidden to speak evil of the gods of the Gentiles, when in fact the law would not permit them to be named for the sake of honoring them, or without execration. The Jews in fact knew, through the most certain admonition of God, that in these idols there dwelt, not the spirit of God, nor good angels, nor the power of the stars, as the misguided Gentiles thought, but base demons, hostile to the human race. As Tacitus rightly said in describing the institutions of the Jews: ‘In their view all things are profane which among us are sacred.’ Hence it is not strange if we read that the Maccabees more than once set fire to temples of a profane cult. When, therefore, Xerxes destroyed the images belonging to the Greeks, he did nothing contrary to the law of nations, although Greek writers exaggerate this greatly in order to arouse enmity. For the Persians did not believe that there were any divinities in
idols, but thought that God was the sun, and any fire was a part of him. By the Hebraic law, as Tacitus also rightly says: ‘None but the priests were permitted to cross the threshold of the Temple.’
5. Nevertheless Pompey, according to the same author, ‘entered the Temple by right of conquest’; or, as Augustine, referring to the same incident, says, ‘not with the devotion of a suppliant, but by the right of a conqueror.’ He did well to spare the Temple and its furnishings, although, as Cicero expressly says, he did so from shame and fear of his critics, not from respect; but he did wrong to enter, seeing that he despised the true God, an attitude which the Prophets censured in the Chaldaeans also. For this reason some persons even believe that the wonderful providence of God caused the Pompey whom I mentioned to be slain as it were in the sight of Judaea, at Cassius, a promontory of Egypt.
Still, if you consider the point of view of the Romans, nothing in relation to the Temple in Jerusalem was done contrary to the law of nations. Thus Josephus relates that the Temple was destroyed by Titus, and adds that it was destroyed ‘in accordance with the law of war.’
III. Enemy property that is consecrated may be destroyed or pillaged; a caution is added.
What we have said of sacred things should be understood of consecrated things as well; for these, also, do not belong to the dead but to the living, being the possession of a people or of a family Therefore Pomponius in the passage cited above wrote that, just a: sacred places, so consecrated places ceased, when taken by enemies; to be such; and Paul the jurist said: ‘The burial-places of the enemy are not consecrated for us, and so we can use for any purpose stones that have been removed from them.’
Nevertheless the principle laid down must be so interpreted that the bodies of the dead are not to be mistreated, because that is contrary to the law of burials; and the law of burials, as we have shown elsewhere, was introduced by the law of nations.
IV. How far deceit is permissible in these matters.
At this point I shall briefly repeat, that enemy property may be seized not alone by force, but that ruses which do not involve breach of faith are held to be permissible; permissible, again, is even the inciting of another to treachery. In truth the law of nations begins to wink at these frequent minor wrongs, just as municipal laws at harlotry and usury.