The Law of War and Peace (1625)
by Hugo Grotius
On the Right to Rule Over the Conquered
I. By war also civil authority is acquired, sometimes as vested in a king, sometimes as vested in a people; the effects of such acquisition
1. It is not at all strange if he, who can subject individuals to himself in personal servitude, is able to subject to himself an aggregation of men – whether they formed a state, or a part of a state – in a subjection which may be purely civil, or purely personal, or mixed.
Some one in Seneca’s Controversy about a native of Olynthus uses the following argument: ‘ He, whom I purchased in accordance with the law of war, is my slave. This, men of Athens, is advantageous for you; otherwise your empire, in so far as it has been acquired by war, is reduced to its ancient limits.’ With similar purport Tertullian said that empires are sought by arms and expanded by victories. Quintilian declares that kingdoms, peoples, and the territories of nations and cities, depend upon the law of war. In Curtius, Alexander says that laws are laid down by the victors and accepted by the vanquished.
In his speech to the Romans Minio asks: ‘Why do you send a praetor every year with authority and rods and axes to Syracuse and the other Greek cities of Sicily? Clearly, you would say, for no other reason than this, that you have imposed these laws upon those who have been conquered in war.’ In Caesar Ariovistus says: ‘ It is the law of war that those who have conquered should rule those whom they have conquered, just as they please ‘; also ‘The Roman people has been accustomed to rule the conquered, not according to another’s dictation but according to its own judgement.’
2. Justin, quoting from Trogus, relates that up to the time of Ninus those who waged war had sought for themselves not sovereignty but glory, and, being content with victory, had abstained from empire; that Ninus was the first who extended the borders of his empire, and subjugated other peoples in war; and that from him this had passed into a general custom. Bocchus, in Sallust, declares,’that he had taken up arms to protect his kingdom; for the part of Numidia, from which he had expelled Jugurtha, had become his by the law of war.’
3. Sovereignty, furthermore, may be acquired for the victor; either such sovereignty merely as is vested in a king or other ruler, and in that case the victor succeeds to the right of the ruler only, and nothing beyond; or such as is vested in a people,’ in which case the victor holds sovereignty in such a way that he can even alienate it, just as the people could. We have elsewhere said that thus it has come about that certain kingdoms were held as a patrimony.
II. The right of a master may be acquired over a people, which then ceases to be a state.
1. Even a more fundamental change may be accomplished, so that, for instance, what was a state may cease to be a state. In such. cases the state that was may become an accession of another state, as the Roman provinces did; or it may not be attached to a state, as when a king waging war at his own expense so subjects a people to himself that he wishes it to be governed not for the good of the people but above all else for that of the ruler, and this is the rule of a master, not of civil authority.
In his Politics, Book VII, Aristotle says: ‘There is government … for the good of the ruler, and government for the good of the ruled. The former is the government of masters and slaves; the latter, the government of free men.’ A people, then, which is subject, to a power of this kind, will for the future be no state, but a great domestic establishment. It has been well said by Anaxandrides:
- A state of slaves, good sir, nowhere exists.
2. The two types of authority are thus contrasted by Tacitus ‘To conceive himself as a governor among freemen, not as a despot among slaves.’ Of Agesilaus Xenophon says: ‘The states which he brought under his authority he relieved of all the obligations which slaves render to their masters, and he exacted from them only the things in which freemen obey their rulers.’
III. Sometimes the two types of authority are mixed.
Hence we may understand the nature of that mixed authority, which I have said is in part civil and in part that of a master, that is to say, an authority in which servitude is mixed with a degree of personal liberty. Thus we read that arms have been taken from peoples; that peoples have been forbidden to have any iron except for agricultural purposes; and that other peoples have been compelled to change their language and manner of life.
IV. The possessions of a people, even such as are incorporeal, are also acquired; herewith is discussed the question of the written bond of the Thessalians.
1. Moreover, just as the possessions which belonged to individuals are, in accordance with the law of war, acquired by those who place the owners in subjection to themselves, so also the possessions of the aggregation of individuals as a whole become the property of those who subject the aggregation to themselves, if they so wish. Livy says in regard to those who have capitulated: ‘ In case all possessions have been surrendered to him who is superior in arms,’ the victor has the absolute right to decide what he wishes the vanquished to keep, and of what he wishes to deprive them ‘; and this statement holds true of those who are conquered in a public war. Surrender in fact voluntarily permits what force would otherwise take.
In Livy, Scaptius says that ‘the land under dispute had been a part of the territory of the Coriolani; and when Corioli was captured, by the law of war it became public land of the Roman people.’ Hannibal, in. a speech to his soldiers, recorded by the same author, declared: ‘All the possessions of the Romans, won and amassed in so many triumphs, will become ours along with the masters themselves.’ The same author makes Antiochus say: ‘ Since, when Lysimachus was conquered, all his possessions were transferred to Seleucus in accordance with the law of war, he thought that they
were now under his rule.’ Similarly Pompey acquired for the Roman people what Mithridates had captured in war and had annexed to his empire.
2. Consequently, the incorporeal rights also, which had belonged to the aggregation as a whole, will become the property of the victor, in so far as he wishes. Thus when Alba was conquered the Romans claimed for themselves the rights which the Albans had exercised. Hence it follows that the Thessalians were entirely acquitted of their debt of one hundred talents. Although they owed this sum to the Thebans, upon becoming master of Thebes, Alexander the Great, by right of victory, made the Thessalians a present of it. Nor is that true which is adduced on behalf of the Thebans in Quintilian, that only what the victor himself holds is his, but a right that is incorporeal cannot be seized by force; and that the position of an heir and that of a conqueror are fundamentally different, because a right passes to the former, but only property to the latter. In fact he who is master of persons is also master of their possessions and of every right which pertains to the persons. He who is the possession of another does not possess for himself, and he who is not his own master does not have anything in his own power.
3. Furthermore, if any one should leave to a conquered people the right to form a state, he might still take for himself certain things which had belonged to the state. It rests with him to decide what he wishes the measure of his beneficence to be. Caesar imitated the act of Alexander by making to the people of Dyrrachium a present of the debt which they owed to some one of the opposite party. In this case, however, the objection might have been raised that the war of Caesar was not of the kind in respect to which this law of nations has been established..’