The Law of War and Peace (1625)
by Hugo Grotius
On The Right Over Prisoners of War
I. According to the law of nations all persons captured in a war that is public become slaves.
1. By nature at any rate, that is, apart from a human act, or in the primitive condition of nature, no human beings are slaves, as we have said elsewhere.’ In this sense it is correct to accept what was said by the jurists, that slavery is contrary to nature. Nevertheless, as we have shown also in another connection, it is not in conflict with natural justice that slavery should have its origin in a human act, that is, should arise from a convention or a crime.
2. But in the law of nations, which we are now discussing, slavery has a somewhat larger place, both as regards persons and as regards effects. For if we consider persons, not only those who surrender themselves, or promise to become slaves, are regarded as slaves, but all without exception who have been captured in a formal public war become slaves from the time when they are brought within the lines, as Pomponius says. And no crime is requisite, but the fate of all is the same, even of those who by their ill-fortune, as we have said, are caught in the enemy’s territory when war has suddenly broken out.
3. Polybius says in the second book of his Histories: ‘What should these persons suffer so as to pay a fitting penalty? Perhaps, one would say, being sold as slaves with wives and children, after they have been conquered in war. But this is also appointed by the law of war for those to endure who have done no impious deed.’ Hence comes what Philo notes in these words: ‘Often at unforeseen times many good men have lost their inherited freedom.’
4. Dio of Prusa, after enumerating the ways of acquiring ownership, says: ‘And a third form of possession is whenever one has taken a prisoner in war and in this way holds him as a slave.’ So Oppian in his second book On Fishery calls it a law of war to carry off into slavery boys that have been captured in war.
II. Also the descendants of persons captured in war become slaves.
Not only do the prisoners of war themselves become slaves, but also their descendants for ever, that is to say those who are born of a slave mother after her enslavement. This is what Marcianus said, that by the law of nations those become our slaves who are born of our slave women. In speaking of the wife of a German chief, Tacitus said that her womb was subject to slavery.
III. What may be done to prisoners of war with impunity.
1. Moreover the effects of this law are unlimited, just as Seneca the Father said that there is nothing which a master is not permitted to do to his slave. There is no suffering which may not be inflicted with impunity upon such slaves, no action which they may not be ordered, or forced by torture, to do, in any way whatsoever; even brutality on the part of masters towards persons of servile status is unpunishable except in so far as municipal law sets a limit and a penalty for brutality. ‘ Among all nations alike,’ says Gaius, ‘ we may see that masters have had the power of life and death over slaves.’ Then he adds that limits have been set to this power by the Roman law, that is on Roman soil. Here applies the note of Donatus on Terence, ‘ What is it not lawful for a master to do to his slave? ‘
2. Also everything that has been captured is acquired, along with the person, for the master. The slave who is himself under the power of another, says Justinian, can have nothing of his own.
IV. The property of captives, even if incorporeal, belongs to their master.
On these grounds the view of those who say that incorporeal rights are not acquired by the law of war is refuted, or at any rate restricted. It is true that such rights are not acquired primarily and directly, but through the medium of the person to whom they had belonged.
Nevertheless, we have to make exception of those rights which have their source in a peculiar capacity of the person and are hence inalienable, as the right of the father. For if these rights can remain, they remain with the person; if not, they are extinguished.
V. The reason why the law has thus been established.
1. All these rights have been introduced by the law of nations, with which we are dealing, for no other reason than this: that the captors, mollified by so many advantages, might willingly refrain from recourse to the utmost degree of severity, in accordance with which they could have slain the captives, either immediately or after a delay, as we have said before. ‘The name of slaves (servi),’ says Pomponius, ‘ comes from the fact that commanders are accustomed to sell prisoners and thereby to save them (servare) and not to kill them.’ I have said ‘ that they might willingly refrain ‘; for there is no suggestion of an agreement whereby they may be compelled to refrain, if you are considering this law of nations, but a method of persuading them by indicating the more advantageous course.
2. For the same reason this right is transferred to others, just as the ownership of things. Further, it has been agreed that ownership should be extended to children; the reason is that otherwise, if the captors had used their full right, the children would not have been born. Whence it follows that children who were born before the catastrophe do not become slaves, unless they are themselves captured.
Moreover, it has been acceptable to the nations that children should follow the status of the mother, for the reason that the unions of slaves were regulated neither by law nor by definite oversight, and consequently the father was indicated by no adequate presumption. In this sense we are to understand the statement of Ulpian: ‘ It is a law of nature, that he who is born outside of lawful matrimony follows the status of his mother ‘; that is, the law represents a general custom which has grown up from a natural reason, just as we have elsewhere shown that the term ‘law of nature’ is at times employed with some inexactness.
3. The rights under consideration, moreover, have not been introduced by the nations in vain. This we may perceive from what happens in civil wars, in which we find that on many occasions captives have been killed because they could not be reduced to slavery. The fact is noted by Plutarch in his Otho, and by Tacitus in the second book of his Histories.
4. Whether those who have been captured become the property of the people, or of individuals, must be decided by what we have said in regard to booty; for in this case the law of nations has put men in the same category as things. Gaius the jurist said in his Daily Questions, Book II: ‘Also what is captured from the enemy becomes at once, by the law of nations, the property of the captors, to the extent indeed that even free men are led off into slavery.’
VI. Whether it is permissible for those who have been captured to flee.
1. Nevertheless, as regards the belief of some theologians, that it is unlawful for those to flee who have been captured in an unlawful war, or are born of captives, unless they flee to their own people, I have myself no doubt that the view is erroneous. There is indeed this difference, that if captives make their escape to their own people while the war is still in progress they attain their freedom by right of postliminy; if they flee to others, or to their own people, after peace has been made, they must be given up to the master who claims them. But it does not follow as a consequence that a bond of conscience is laid also upon the captives; there are many rights which look only to an external judgement, and such are the rights of war which we are now explaining.
There is, further, no reason for any one to raise the objection that from the nature of ownership such an obligation becomes binding on the mind. For I shall reply that, since there are many forms of ownership, it is possible that one may exist which is valid only in a judgement that is human and at the same time continues a condition which arises also in other kinds of rights.
2. Such in fact, to some extent, is also the right of nullifying wills, on account of the lack of some formality which the civil laws prescribe. The more acceptable view is, that what has been left by such a will may be retained with a clear conscience, at least as long as the will is not contested.
Not very different is the ownership of one who in accordance with the civil laws has exercised prescription in bad faith; for his ownership also is protected by the civil courts. By making the distinction, we easily loosen the knot which Aristotle ties in his Sophistical Refutations, Book II, chapter v: ‘Is it not right for each one to have what is his own? But what any judge may decide according to his opinion, even if this be false, is valid according to the law. Therefore the same thing is both right and wrong.’
3. In the question before us no reason can be imagined why the nations should have had in view anything else than that external restraint. For the opportunity of claiming a slave and restraining him, and further, of putting him in bonds and retaining his property, was enough to induce captors to spare captives. If the captors were so ferocious as not to be influenced by these advantages, certainly they would not have been affected by the imposition of any moral restraint. Yet, if they believed such a restraint at all necessary for themselves, they could have exacted an assurance or an oath.’
4. However, in a law which has been established not according to natural equity, but to avoid a greater evil, we should not rashly adopt an interpretation which would make criminal an act otherwise permitted. Florentinus the jurist says: ‘ It makes no difference how a captive has returned; whether he has been set free, or has escaped from the power of the enemy by force or by guile.’ This is so because the right of captivity is of such a sort, that in another sense it is often also a wrong, a characterization which is applied to it by the jurist Paul. It is a right in respect to certain effects; a wrong, if we regard its intrinsic nature.
Hence this also is apparent. If any one who has been captured in an unlawful war has come into the power of the enemy, his conscience is not tainted by the crime of theft if he secretly takes away his own property, or a recompense for his toil, in case it is right that any should be furnished him over and above his keep, provided that he neither in his own name, nor in that of his state, is in any way indebted to his master, or to him whose right his master has received. And it does not matter that such flight and abstraction when detected are usually punished with severity. For these things and many others are done by the more powerful, not because they are just, but because it is to the advantage of the more powerful to do them.
5. Certain canons forbid any one to persuade a slave to desert his master’s service. If you refer this to slaves who are undergoing a just punishment, or have bound themselves by a voluntary agreement, it is a just injunction. But if you refer it to those who have been captured in an unlawful war, or have been born of captives, it teaches that Christians should encourage Christians to be patient rather than to engage in an action which, although permissible, might yet offend minds alien to Christianity or otherwise weak.
In a similar way we may understand the admonitions of the Apostles to slaves, except that these are seen rather to demand obedience from slaves while in servitude. This is in accord with natural justice; for food and service have a reciprocal connection.
VII. Whether it is permissible for those who have been captured to resist their master.
But I think that it was correctly said by the theologians to whom I have just referred, that a slave cannot resist a master who is exercising that external right without violating the duty of justice.
Between this case and that which we have just discussed there is a manifest difference. The external right, which consists not only in impunity of acting but also in the protection of the courts, will be of no effect if a right to offer resistance remains on the other side. For if it is permissible forcibly to resist a master, it will also be permissible forcibly to resist a magistrate who protects the master, when, nevertheless, according to the law of nations, the magistrate should defend the master in such ownership and the enjoyment thereof. This right therefore is like that which we have elsewhere attributed to the highest authorities in each state, in saying that it is not legally nor morally permissible forcibly to resist them. Thus Augustine also joined the two rights when he said: ‘ Princes are to be endured by the commons, and masters by their slaves, in such a way that temporal things may be borne in the exercise of longsuffering, and things eternal may be hoped for.’
VIII. The law under consideration has not always existed among all nations.
But the fact must further be recognized that this law of nations with regard to captives has not always been accepted, nor, accepted among all nations, although the Roman jurists speak of it as universal, designating the more prominent part by the name of the whole. Thus among the Jews,’ who by their special institutions were separated from the common practice of other peoples, there was an asylum for slaves; at least, as the commentators rightly note, for slaves who had come into this unhappy condition through no fault of their own.
From such a source it seems that there may have arisen the right of claiming their freedom which is given to slaves in the country of the Franks; although we see that this is now granted not only to those captured in war, but also to other slaves of any sort.
IX. The law under consideration does not now exist among Christians; what has been substituted for it.
1. Christians furthermore have as a whole agreed that those who are captured in a war which has arisen among themselves do not become slaves so as to be liable to be sold, constrained to labor, and suffer the fate of slaves in other respects. In this they are surely right, because they have been, or should have been, better instructed in the teachings of Him who has sanctioned all charity than to be unable to be restrained from the slaughter of unfortunate men in any other way than by the concession of a lesser cruelty.
Gregoras writes that this treatment of captives in former times was handed down from ancestors to descendants among those who professed the same religious belief, and that it was not peculiar to those who lived under Roman rule but was also common to Thessalians, Illyrians, Triballians, and Bulgars. And so this degree of progress at any rate, small though it is, has been accomplished by reverence for the law of Christ; a degree of progress which Socrates failed to secure, although he had recommended such treatment of captives by the Greeks among themselves.
2. Moreover, the practice of Christians in this matter is followed also by Mohammedans among themselves. Nevertheless, even among Christians the custom still prevails of keeping prisoners under guard until a ransom is paid, the amount of which is decided by the victor, unless some definite agreement has been made.
Furthermore the right of guarding captives is usually granted to the individuals who have taken them, except in the case of persons of high rank; for the customs of most nations give the right over these to the state or its head.