The Law of War and Peace (1625)
by Hugo Grotius
Moderation in Regard to Captured Property
I. The property of enemy subjects which has been captured in war is to be held, up to the amount of their debt.
1. THE capture of enemy property in a lawful war is not to be thought devoid of wrong, or exempt from the obligation of restitution. In fact, if you consider what may justly be done,’ it is not permissible to take or to hold property of greater value than the equivalent of the enemy’s indebtedness, with this exception, that over and above that amount one may retain things necessary for a guarantee. When the danger is over, however, there should be a restoration, either of the things themselves or of their value, according to our discussion in the second chapter of Book II. What would be permitted in the case of property of persons at peace is much more permissible in regard to the property of enemies. There is, then, a certain right of seizure, without a complete right of ownership.
2. Now since a debt may be due to us either because of an inequality of possessions, or as the result of a punishment, the property of enemies may be acquired for either reason, but still with a distinction. For we have previously said that by a debt of the former sort not merely the property of the debtor, but also that of his subjects, according to the accepted law of nations, is made liable, as though in the case of surety.
This right of the law of nations, indeed, we hold to be of another kind than that which exists in mere impunity or the external power of courts of law. For just as he with whom we have completed a transaction by our private consent acquires not only a legal but also a moral right to our property, so also a right is acquired by a kind of common consent, which through a certain force contains in itself the consent of individuals, in the sense in which a law is called ‘a common agreement of the state.’ It is the more credible that such a basis of right was approved by nations in the kind of affair under consideration because the law of nations was introduced not only for the sake of avoiding greater evil but also to secure to each one his right.
II. The property of enemy subjects which has been captured in war is not to be held as punishment for the crime of another.
But in the other form of indebtedness, which is penal, I do not see that by the agreement of the nations such a right has been extended to the property of subjects. Such an obligation imposed upon the property of others is hateful, and consequently ought not to be extended further than the practice has clearly been. The advantage, furthermore, is not the same in the latter as in the former kind of indebtedness; for the former consists in goods, but the latter does not, and so its exaction can be omitted without loss.
This position is not controverted by what we said above about the Attic law. For according to its provisions men were held liable not in reality because the state could be punished, but rather to compel the state to do what it ought to do, that is, to render judgement against the guilty. This obligation arising from duty is to be referred to the former, not to the latter, sort of indebtedness. For it is one thing to be under an obligation to punish, and another to be subject to or liable to punishment, although the latter condition usually results from failure in respect to the former, but in such a way that one is distinctly the cause and the other the effect. Therefore the property of the subjects of enemies cannot be acquired on the ground of punishment, but only that of those who have themselves done wrong; among these are included also the magistrates who fail to punish the crimes.
III. Here we must understand as debt also indebtedness which arises in time of war.
Moreover the goods of subjects may both be seized and acquired, not only for the exaction of the original debt which gave rise to the war, but also for the exaction of indebtedness which, develops subsequently; this is according to what we said at the beginning of this book. In such a sense we must take what certain theologians write, that captures in war are not to be set off against the principal debt; for it is to be understood that such captures are an offset up to the point where, according to a sound judgement, satisfaction has been obtained for the loss occasioned by the war itself.
Thus in the dispute with Antiochus the Romans, as Livy relates, held it to be just that the king should pay all the expense which had been incurred for the war,’ since it was through fault of his that the war had arisen. In Justin is the phrase, ‘ ready, according to a just law, to assume the expenses of the war.’ In Thucydides the Samnians are condemned ‘to pay the expenses of the war.’ And so, frequently, in other instances. However, what is justly imposed upon the conquered may also be justly exacted by a war.
IV. In this matter it is an obligation of humaneness not to make the fullest use of one’s right.
1. But we must keep in mind that which we have recalled elsewhere also, that the rules of love are broader than the rules of law. He who is rich will be guilty of heartlessness if, in order that he himself may exact the last penny, he deprives a needy debtor of all his small possessions; and even much more guilty if the debtor has incurred the debt by his goodness-for instance, if he has gone surety for a friend-and has used none of the money for his own advantage, ‘ for,’ as Quintilian the Father says, ‘ the peril of a bondsman is worthy of commiseration.” Nevertheless so hard a creditor does nothing contrary to his right according to a strict interpretation.
2. Therefore humanity requires that we leave to them that do not share in the guilt of the war, and that have incurred no obligation in any other way than as sureties, those things which we can dispense with more easily than they, particularly if it is quite clear that they will not recover from their own state what they have lost in this way. Here applies what Cyrus said to his soldiers after the capture of Babylon: ‘What you have, you will hold not unjustly; but if you do not take away anything from the enemy that will be an evidence of your humanity.’
3. This also is to be observed. The right over the goods of innocent subjects has been introduced as a subsidiary means; and as long as there is hope that we can obtain what is ours with sufficient ease from the original debtors, or from those who by not rendering justice voluntarily make themselves debtors, to come to those who are free from blame, even though it is granted that this is not in conflict with our strict right, nevertheless is to depart from the rule of human conduct.
4. Instances of such humanity are found everywhere in history, particularly in the history of Rome. Examples are when lands have been ceded to the conquered enemy on the condition that they should pass to the state, that is, that they should fall to the conquered state; or when a part of the land was left to the ancient possessor I as a mark of respect. Thus Livy records that the inhabitants of Veii were penalized by Romulus with the loss of part of their land. Similarly Alexander the Macedonian granted to the Uxii under tribute the lands which they had possessed.
So you may often read that surrendered cities were not sacked; and we have said above that it is praiseworthy, and in accordance with the pious precepts of the canons, to spare not only the persons, but also the property, of the tillers of the soil, subject at any rate to tribute. Upon condition of a similar tribute, immunity from war is usually granted to merchandise also.