The Law of War and Peace (1625)

by Hugo Grotius

Moderation in Laying Waste and Similar Things

I.     What devastation may be lawful, and in what degree.
1.   In order that any one may be able to destroy another’s property without doing wrong, it is requisite that one of these three conditions should precede

A necessity, such as should be understood to have been excepted in the first institution of ownership. An example would be that a person in order to escape imminent danger should cast into a river the sword of a third party, which a madman is about to use. In this case, however, we have elsewhere said that, in accordance with the better view, there remains an obligation to make good the loss.

Or, a debt arising from an inequality, it being understood that the thing destroyed is reckoned as received for that debt, since otherwise the right would not exist.

Or, a deserving of evil, for which such punishment may be an equivalent, or the measure of which is not exceeded by the punishment, for, as a theologian of sound judgement observes, equity does not suffer a whole kingdom to be laid waste because flocks have been driven off or some houses burned. This was -recognized also by Polybius, who does not wish punishment in warfare to be carried beyond all bounds, but only so far as necessary that crimes may be expiated in a just way.

These reasons, which are applicable only within proper limits, cause the absence of wrong in the destruction of another’s property.

2.   But, unless a motive of utility commends such a course, it would be foolish to injure another without securing any good for oneself. Those, therefore, that are wise are usually influenced by considerations of utility. Of such considerations the most weighty is that which was pointed out by Onesander: ‘Let him remember to ruin the enemy’s country, to burn and devastate it. For a lack of money and crops causes war to slacken as much as an abundance causes it to flourish.’ In accord with this is the saying of Proclus ‘It is the duty of a good general to weaken the resources of the enemy in every way.’ Curtius says of Darius: ‘He believed that an enemy, who had nothing except that which he had seized by pillage, could be defeated by lack of supplies.’

3.   In fact that kind of devastation must be tolerated which compels the enemy to sue for peace in a short time. This method of warfare was employed by Alyattes against the Milesians, by the Thracians against the Byzantines, by the Romans against the Campanians, the Capenates, the Spaniards, the Ligurians, the Nervii, and’ the Menapii.

Nevertheless, if you examine the matter aright you will find that such depredations are ordinarily committed from motives of hatred rather than from considerations of prudence. It usually happens either that those conditions which justify devastation are lacking, or that there are other more cogent reasons which advise against it.

II.     Devastation should be refrained from if the area is profitable for us and out of the power of the enemy.
1.   This will happen, first, if our occupation of fruitful ground is such that it cannot yield produce for the enemy. That is the particular point of the divine law, which ordains that wild trees be employed in making walls and military structures, but that fruit bearing trees be preserved for purposes of food, with the explanation that trees, unlike men, cannot rise up against us in battle; a restriction which Philo, by similar reasoning, extends to fields under cultivation, adding to the law these words:

Why will you be angry with inanimate things, which are both mild and productive of wholesome fruits? Do trees, like men who are enemies, show signs of hostility, so that; they must be uprooted for the things which they are doing or threaten to do? On the contrary, they are of use to the victors, and furnish them with a supply of the things which necessity demands, yes even those things which contribute to their pleasure. It is not man alone that pays tribute, for trees at fixed seasons bear richer tribute, such that without it man cannot live.

Moreover, in discussing the same passage, Josephus says that, if trees could speak, they would cry out that since they are not the cause of war it is wrong for them to bear its penalties. Unless I am mistaken, this is the source of the Pythagorean maxim in Iamblichus ‘Let it be unlawful to injure or cut down a cultivated and fruitful tree.’

2.   Furthermore, in describing the customs of the Jews, in the fourth book of his work On Abstaining from Animal Food, Porphyry extends this rule (interpreted, as I think, in the light of custom) even to living things employed in agricultural work. He says that Moses commanded that these too should be spared in war; the writings of the Talmud and the Hebrew interpreters add that this law is to be extended to anything whatever which may be destroyed without cause, as touching the burning of buildings, or the destruction of supplies which can be eaten or drunk.

In harmony with this law is the wise moderation of the Athenian general Timotheus, who, as Polyaenus relates, ‘ did not permit a house or a homestead to be destroyed, or a fruit-bearing tree to be cut down.’ There is also the law of Plato, in the fifth book of the Republic: ‘Let not the land be ravaged, nor the houses set on fire.’

3.   Still more binding will this restriction be after a complete victory. Cicero disapproved of the destruction of Corinth, even though Roman ambassadors had been shamefully treated there; and he also characterizes as horrible, criminal, and steeped in the depths of hatred, a war which is waged against walls, roofs, columns, and doors. Livy praises the leniency of the Romans after the conquest of Capua, because they did not by fire and destruction vent their anger upon innocent buildings and walls.’ In Seneca, Agamemnon says:

      For my part I will confess (thy pardon, Argive land!),
      I wished to see the Phrygians brought low and undone;
      But Troy destroyed and razed to earth-such fate
      I should have censured.

4.   It is true that sacred history teaches us that certain cities were doomed to destruction by God, and that even contrary to the general law it was ordered that the trees of the Moabites should be cut down. This, however, was not done out of hatred of the enemy) but to show a just abhorrence of their crimes, which were either publicly recognized as such, or in the judgement of God were worthy of such punishment.

III.     Devastation should be refrained from if there is good hope for a speedy victory.
1.   In the second place, what we have said will hold good even where the possession of land is in doubt, if there is good hope of a speedy victory, of which the prize will be both the land and its fruits. Thus, as Justin relates, Alexander the Great prevented his soldiers from devastating Asia, ‘saying that they must spare their own property,’ and not destroy the things which they had come to take possession of.’ So Quintius, when Philip was traversing Thessaly with a band engaged in plundering, for his part exhorted his troops, as Plutarch says, to pursue their march as though through a district which had been given up and already made their own. When urging Cyrus not to turn Lydia over to his soldiery to lay waste, Croesus said: ‘You will not plunder my city, nor my possessions, for in no way do these things now belong to me; they are yours-yours are the things they will destroy.’

2.   To those who do otherwise, the words of Jocasta to Polynices in Seneca’s Women of Thebes are not ill suited:

      Seeking to win your country you destroy it;
      To make it yours, you wish to make it nothing;
      Your cause is harmed by this, with hostile arms
      You burn the land, lay low the ripened crops,
      And terror spread
      Through all the fields. No one so wastes his own.
      What you bid ruin with fire, with sword to reap,
      You hold to be another’s.

There is a similar thought in these words of Curtius: ‘ Whatever they had not ruined, they confessed belonged to the enemy.’ Not far different are the arguments urged by Cicero in his Letters to Atticus against Pompey’s plan of destroying his own country by starvation. On this ground Alexander the Aetolian censures Philip in the seventeenth book of Polybius, whose words, according to the Latin version of Livy, are as follows:

In war he (Philip) does not fight in the open field, nor engage in pitched battles, but he burns and plunders cities as he flees, and when vanquished spoils the victor’s prizes. Such was not the custom of the ancient kings of Macedon; they were wont to fight on the field of battle, and to spare cities, so far as they could, in order that they might have a wealthier empire. What sort of a policy is it, to destroy the things the possession of which is at stake, and to leave for himself nothing except the war?

IV.     Devastation should be refrained from if the enemy has means of subsistence from other sources.
1.   In the third place, the same thing will happen if the enemy can have means of subsistence from another source, for instance, if the sea, or if other boundaries, shall be open. According to Thucydides, Archidamus, in the speech in which he tried to dissuade his fellow Lacedaemonians from war against the Athenians, asks what hopes they have in waging war: Do they perhaps hope that, because they enjoy military superiority, it is easy for them to lay waste the land of Attica? But, he said, the Athenians have other lands under their sway (meaning Thrace and Ionia) and can obtain what they need through importations by sea.

Under such conditions, therefore, it is best to leave agriculture undisturbed even along the common frontier. This we see in recent times was the arrangement for a considerable period in the war of the Netherlands against the Empire, with the payment of tribute to either party.

2.   This is in accord with the ancient custom in India, where, as Diodorus Siculus says: ‘ The farmers are undisturbed and, as it were, held sacred; in fact even in the vicinity of camps and armies they pursue their tasks secure from danger.’ He adds: ‘Men neither burn the enemy’s fields, nor cut down the trees.’ Later ‘No enemy inflicts harm upon any farmer, but this class of men, as being common benefactors, is accorded protection from all wrongdoing.’

3.   Xenophon says that it was agreed also between Cyrus and the Assyrian king that ‘there should be peace with the farmers, war with those who bore arms.’ So Timotheus rented the most fertile part of the land to husbandmen, as Polyaenus relates; nay more, as Aristotle adds, he even sold the crops to the enemy, and paid his soldiers with the money. Appian bears witness that this was done also by Viriathus in Spain. As we have seen, in the war of the Netherlands and the Empire which we have mentioned, this arrangement was carried out with the highest degree of reason and profit, and evoked the admiration of foreigners.

4.   The canons, teachers of humanity, established these practices for the imitation of all Christians, as those who ought to exercise and who profess a greater degree of humaneness than others; and so they seek to protect from the perils of war not merely the farmers, but also the animals which they use in cultivation and the seeds which they keep for sowing. The reason is assuredly the same as that for which the civil laws forbid that things useful for ploughing be taken as a pledge. In ancient times among the Phrygians and Cyprians, and later among the Athenians and Romans,’ it was considered a crime to kill a plough-ox.

V.     Devastation should be refrained from if the thing itself is of no use in furnishing resources for war.
In the fourth place, it happens that certain things are of such a nature that they are of no value for making or waging war. Such things reason wishes us to also spare, during the continuation of the war. Here applies the speech of the Rhodians to Demetrius, the taker of cities, on behalf of the portrait of Ialysus, at it appears in the Latin translation of Gellius:

What is your reason for wishing to destroy that likeness by setting fire to the temple? If you conquer us all, and take this whole city, by your victory you will obtain that portrait also, safe and intact. But if you prove to be unable to conquer us, we ask you to consider, lest you incur the bad repute of having waged war against the dead Protogenes because you were unable to conquer the Rhodians.

Polybius says it is a sign of an infuriated mind to destroy those things which, if destroyed, do not weaken the enemy, nor bring gain to the one who destroys them; such things are temples, colonnades, statues, and the like. Marcellus, whom Cicero praises, ‘ spared all the buildings of Syracuse, public and private, sacred and profane, just as if he had come with his army to defend them, not to capture them.’ The same author later says: ‘ Our ancestors left to them the things which seemed agreeable to the vanquished, but of small value to us.’

VI.     The principle stated is particularly applicable to things that are sacred or connected with things that are sacred.
1.   While what has been said holds true of other things of artistic value, for the reason which we have already given, there is a particular reason in the case of those things which have been devoted to sacred uses. Although such things also, as we have said elsewhere, are public in their own way, and so, according to the law of nations, are violated with impunity, nevertheless, if there is no danger from them, reverence for divine things urges that such buildings and their furnishings be preserved, particularly among those who worship the same God, in accordance with the same law, even if perhaps they disagree in respect to certain doctrines or points of ritual.

2.   Thucydides says that it was the law among the Greeks of his time ‘ that those, who made an attack upon hostile territory, should refrain from doing harm to sacred places.’ When Alba was destroyed by the Romans, Livy says that they spared the temples of the gods. Of the Romans at the taking of Capua, Silius, in his thirteenth book, speaks thus:

      Lo, through their breasts there creeps a silent feeling
      Of sudden awe, and soothes their savage hearts,
      That they wish not for fire and torch, nor now
      That temples fall in ashes in one pyre.

Livy recounts that it was said in criticism of Quintus Fulvius the censor, ‘ That he involved the Roman people in irreverence by building temples with the ruins of temples, as though the immortal gods were not everywhere the same, but some were to be worshiped and adorned with the spoils of others.’ But Marcius Philippus, upon arriving at Dium, ordered his encampment to be laid out in the shadow of the temple itself, in order that nothing in the sacred place might be profaned. Strabo relates that the Tectosages, who with others had carried off the treasures from Delphi, consecrated these at home with an addition, in order to appease the deity.

3.   To come now to Christian peoples, Agathias records that the Franks spared the temples, seeing that they were of the same religion as the Greeks. In fact it has been customary also to spare men on account of religious edifices, conduct which (not to mention pagan peoples, which afford many examples, since, in fact, writers call this custom ‘a law common to the Greeks ‘) in the case of the Goths who captured Rome is praised by Augustine as follows:

To this the places of the martyrs and the basilicas of the Apostles, which in the midst of the sack received the vanquished that fled to them, both Christian and pagan, bear witness. So far the gore-stained enemy raged; there the madness of butchery was stayed. Thither were led by pitying enemies those whom (for ‘those whom (quibus) ‘ I should prefer ‘who (qui),’ for he distinguishes the milder from the more savage) they had spared outside these places, that they might not be attacked by those who did not have the same feelings of mercy. Nevertheless, after those, who themselves elsewhere were savage and raged in the manner of enemies, came to these places where that was forbidden which was elsewhere permitted by the law of war, all their savage frenzy was checked, and their desire to take captives was assuaged.

VII.     The principle is applicable also to consecrated things.
1.   What I have said of sacred things must also be understood of consecrated things, also of structures erected in honor of the dead; for these cannot be violated without contempt for human feeling, even though the law of nations does accord impunity to the venting of anger against them. The jurists say that that is the highest reason which acts in defense of religion. The pious utterance of Euripides in his Trojan Women relates as much to consecrated as to sacred things:

      Mad is the man who cities devastates,
      With temples and the Manes’ consecrated seats.
      For him there waits the doom of like destruction.

Apollonius of Tyana thus interpreted the fable of the giants assaulting the sky: ‘That they did violence to the temples and seats of the gods.’ In Statius, Hannibal is termed sacrilegious because ‘he set torch to the altars of the gods.’

2.   Scipio, having taken Carthage, bestowed gifts upon his soldiers, ‘ excepting,’ says Appian, ‘those who had sinned against the temple of Apollo.’ As Dio relates, Caesar ‘ did not dare to overthrow ‘ the trophy erected by Mithridates, ‘ because it was consecrated to the gods of war.’ Marcus Marcellus, being restrained by religious scruples, did not touch the things which victory had made profane, says Cicero in his fourth Against Verres; and he adds in the same passage that there are some enemies who in time of war observe the laws of religion and custom. The same author elsewhere said that the war waged by Brennus against the shrine of Apollo was wicked.

The action of Pyrrhus, who plundered the treasures of Proserpina, is called by Livy disgraceful and insulting to the gods. Diodorus characterizes a similar act of Himilco as ‘ impiety ‘ and ‘ a crime against the gods.’ Again, Livy calls the war of Philip wicked, as, though waged against the gods of the upper and the nether worlds; also madness, and an aggregate of crimes. Of the same war Florus says: ‘ Philip exceeded the rights of the victor in his violence to temples, altars, and tombs.’ Touching the same affair, Polybius’ adds this judgement: ‘Who will deny that, to set to work to destroy what will neither prove useful to us in waging war, nor disadvantageous to the enemy, particularly temples and the statues and similar ornaments which they contain, is the work of a mind that is wicked and maddened with rage? ‘ In the same passage he does not accept the excuse of revenge.

VIII.     The advantages which follow from such moderation are pointed out.
1.   It is, in truth, not strictly a part of our purpose to inquire at this point what is advantageous; we desire rather to restrict the unrestrained licence of war to that which is permitted by nature, or to the choice of the better among the things permitted. Nevertheless virtue itself, in low esteem in the present age, ought to forgive me if, when of itself it is despised, I cause it to be valued on account of its advantages.

In the first place, then, such moderation, by preserving things which do not delay the war, deprives the enemy of a great weapon, despair. There is a saying of Archidamus in Thucydides: ‘Think of the enemy’s land as nothing else than a hostage, the better the more: it is cultivated; therefore it must be spared, so far as is possible, that despair may not make the enemy harder to conquer.’ The same policy was followed by Agesilaus when, contrary to the view of the Achaeans, he let the Acarnanians sow their crops in freedom, saying that the more they sowed the more desirous of peace they would be. This is what the satire says: ‘For those, who have been plundered of everything, weapons still remain.’ Livy, in relating the capture of the city of Rome by the Gauls, says: ‘ The chiefs of the Gauls had decided that all the houses should not be burned down, in order that what remained of the city might serve them as a pledge to break the morale of the foe.’

2.   There is the further consideration that, in the course of a war, such moderation gives the appearance of great assurance of victory, and that clemency is of itself suited to weaken and to conciliate the spirit. According to Livy, Hannibal did no damage in the territory of Tarentum: ‘It appeared,’ he says, ‘ that this course was pursued not because of the moderation of the soldiers or their general, but in order to conciliate the feelings of the Tarentines.’

For a similar cause Augustus Caesar refrained from pillaging the Pannonians. Dio gives the reason: ‘He hoped that in this way he would win them over to him without compulsion.’ Polybius [Polyaenus] says that Timotheus, with that care of which we have already spoken, above all else ‘ sought to win great good-will from the enemy themselves.’ Regarding Quintius and those Romans who were under his orders, Plutarch, having narrated what we have said above, adds ‘Not long afterward he received the fruit of this moderation; for, when he arrived in Thessaly, the cities went over to him. Then in fact the Greeks who dwelt within Thermopylae also ardently longed for Quintius; and the Achaeans, renouncing the friendship of Philip, entered with the Romans into an alliance against him.’

The state of the Lingones escaped the devastation which they had dreaded in the war waged by the general Cerealis, under the authority of Domitian, against Civilis the Batavian and his allies; regarding it, Frontinus narrates the following: ‘Because the state had not lost any of its possessions, owing to the fact that contrary to expectation it had not been laid waste, when brought back to its allegiance it furnished to him seventy thousand armed men.’

3.   Opposite results have attended the opposite policy. Livy gives an example in the case of Hannibal: ‘His spirit, inclined to avarice and cruelty, was prone to despoil what he could not protect. This policy was destructive both in its inception and in its result. For it alienated the minds not only of those who suffered undeserved wrong, but of others also, since more persons were affected by the example than by the disaster.’

4.   Moreover, that which has been observed by certain theologians I hold to be true, that it is the duty of the highest authorities and commanders, who wish themselves to be regarded as Christian; both by God and by men, to forbid the violent sack of cities and other similar actions. Such actions cannot take place without very serious harm to many innocent persons, and often are of little consequence for the result of the war; so that Christian goodness almost always, and bare justice very often, shrinks from them.

Surely the bond which unites Christians is greater than that which united the Greeks of old, in whose wars a decree of the Amphictyons provided against the blotting out of a Greek city. And the ancients relate that Alexander of Macedon repented of nothing that he had done more than that he had completely destroyed Thebes.