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The Law of War and Peace (1625)

by Hugo Grotius

BOOK 3, CHAPTER 14
Moderation in Regard to Prisoners of War

I.     To what extent, in accordance with moral justice, it is permissible to take men captive.
1.   In those places where custom sanctions the captivity and slavery of men, this ought to be limited primarily, if we have regard to moral justice, in the same way as in the case of property; with the result that, in fact, such acquisition may be permitted so far as the amount of either an original or derivative debt allows, unless perhaps on the part of the men themselves there is some special crime which equity would suffer to be punished with loss of liberty. To this degree, then, and no further, he who wages a lawful war has a right over the captured subjects of the enemy, and this right he may legitimately transfer to others.

2.   Furthermore in this case also it will be the task of equity and goodness to employ those distinctions which were noted above, when we discussed the question of killing enemies. Demosthenes, in his letter For the Children of Lycurgus, praises Philip of Macedon for not having enslaved all who were among his enemies., ‘For,’ said Demosthenes, ‘ he did not consider the same punishment for all either fair or right, but, examining the case in the light of what each had deserved, he acted in such matters as a judge.’

II.     What is permissible against a slave according to the moral power of justice.
1.   Now in the first place it must here be noted that that right, which originates in a kind of surety on behalf of the state, can nowhere extend so widely as the right which arises from a crime against those who become slaves as a penalty. Hence a certain Spartan said that he was a prisoner, not a slave; for, if we regard the question properly, this general right against prisoners captured in a lawful war is equivalent to that right which masters have over those who, under constraint of poverty, have sold themselves into slavery; only the misfortune is even more to be pitied of those who have met this fate not by their own particular act, but through fault of their rulers. ‘ To be captured by the law of war is a most bitter fate,’ as Isocrates bore witness.

2.   This servitude, then, is a perpetual obligation of services for maintenance that is likewise perpetual. The definition of Chrysippus well suits this class of slaves: ‘A slave is a perpetual mercenary.’ The Hebraic Law expressly compares to a mercenary the man who has sold himself under constraint of want (Deuteronomy 15:18, 40, 53), and in case of his redemption the law wishes his services to be credited to him just as crops gathered from land that has been sold would be credited to the former owner (Deuteronomy 18:50).

3.   Therefore that which may be done to a slave with impunity according to the law of nations differs widely from that which natural reason permits to be done. From Seneca we previously quoted this: ‘Although against a slave all things are permissible, there are some things which the common law of living things forbids, to be done against a human being.’ This saying of Philemon is to the same effect

      He, Master, who is born a man, though he may serve
      In slavery, still ceases not to be a human being.

Elsewhere Seneca says also: ‘They are slaves, nay rather men; they are slaves, nay rather comrades; they are slaves, nay, humble friends; they are slaves, nay rather fellow slaves.’ What you may read in Macrobius has clearly the same sense as the saying of the Apostle Paul: ‘ Masters, render unto your servants that which is just and equal, knowing that ye also have a Master in heaven.’ In another place the apostle wishes masters not to deal threateningly with their slaves, for the reason which we have just stated, that they also have a Master in heaven, who pays no regard to such differences of status. In the Constitutions, which are usually ascribed to Clement of Rome, we read: ‘Beware of commanding a slave or a handmaid in bitterness of heart.

Clement of Alexandria wishes us to treat our slaves as second selves, since they are human beings no less than we are. He is following the saying of the wise Jew: ‘If you have a slave, treat him as a brother, for he is such as you are.’

III.     It is not permissible to kill an innocent prisoner.
Therefore the right, which is called the right of life and death over the slave, causes the master to have domestic jurisdiction, which, indeed, is to be exercised with the same conscientiousness as public jurisdiction. This is what Seneca meant when he said ‘In the case of a slave you must consider, not how much he can suffer with impunity, but how much is permitted to you by the nature of justice and goodness, which bids you to spare even prisoners of war and those who have been bought for a price.’

Elsewhere Seneca says: ‘ What does it matter by what power any one is held, if he is held by a power that is absolute? ‘ In this passage he compares a subject to a slave, and says that on different grounds it is permissible to treat them alike; a statement that is certainly most true in respect to the right of taking away their life, and whatever approximates this. ‘ Our ancestors,’ says the same Seneca, ‘ considered our household to be a diminutive state ‘; and Pliny writes: ‘ For slaves the household is a sort of republic, and, as it were, a state.’ Cato the Censor, in Plutarch’s account, did not inflict punishment upon a slave, who appeared to have committed a capital crime, until after he had been condemned, and that by the judgement of his fellow slaves. With this should be compared the words in Job 31:13, and following.

IV.     It is not permissible to punish with severity.
But in regard to minor punishments also, as the beating of slaves, we must apply fairness, and further, clemency. ‘ Thou shalt not oppress him, thou shalt not rule him harshly,’ says the divine law in regard to the Jewish slave-a rule which should now be extended to all slaves, through extension of the force of relationship (Deuteronomy 15:17, 45, 53). On this passage Philo comments thus:

Slaves in respect to fortune, indeed, are inferior, but by nature they are equal to their masters; for in the divine law the rule of justice is not that which accords with fortune, but that which accords with nature. Hence masters ought not to use their power over slaves wantonly, nor in consequence of the possession of such power to indulge in pride, insolence, and savage wrath. For these are manifestations of a spirit that is not calm, but is ill-controlled and rages against those subject to it with a sort of tyrannical despotism.

‘Is it in fact right,’ asks Seneca, ‘ that orders should be given to a man with greater severity and harshness than to dumb animals? Now a groom who is a skillful tamer does not frighten a horse with repeated blows; for the horse will become timid and balky unless you stroke him with a caressing touch.’ And soon after: ‘What is more foolish than to blush to vent one’s anger upon yoke-animals and dogs, while the worst condition is that of man? ‘

Whence it comes that by the Hebraic law liberty was owed to a male or female slave not only for the loss of an eye, but also for that of a tooth,’ wrongfully injured, of course.

V.     It is not permissible to impose upon slaves tasks that are excessively severe.
1.   But services also are to be exacted with moderation and the health of slaves is to receive humane consideration. Besides other things the Hebraic law aimed to accomplish this result through the institution of the Sabbath, presumably in order that slaves might have some time to rest from their labors. There is also a letter of Gaius Pliny to Paulinus, which begins thus: ‘ I see how leniently you handle your slaves, therefore I will the more frankly admit to you with what indulgence I treat mine. I have always in mind that saying of Homer, ” But the stepfather was as kind as a father,” and this is our term for the father of the household (paterfamilias).’

2.   In connection with the same word Seneca also notices the humanity of the ancients: ‘Do you not even see this, how our ancestors protected masters from all ill-will, and slaves from all insolence? They called the master the father of the household (paterfamilias), the slaves members of the household (familiares).’ In describing a most excellent king, Dio of Prusa says: ‘So far is he from usurping the title of master over free men, that he refrains from the use of it even in relation to slaves.’

In Homer Ulysses’ says that the slaves whom he found faithful will have in his house the same place as if they were brothers of Telemachus, his own son. Tertullian declares: ‘ The name of piety is more gracious than that of power; the heads of households are called fathers rather than masters.’ Jerome or Paulinus writes to Celantia: ‘So rule and order your household that you may wish to appear the mother rather than the mistress of your slaves, and from these exact respect by kindness rather than by severity.’

Augustine says:

The peace of the household was in olden times so directed by just fathers that with regard to these temporal goods they distinguished the lot of sons from the status of slaves, but in the worship of God they consulted with equal care the interests of all members of their household. This is in accordance with the prescription of the order of nature, so that from this source the name ‘father of the household ‘ arose and became so widely current that even those who rule unjustly are glad to be called by this name. However, those who are true fathers of the household aid all in their household just as sons to worship and propitiate God.

3.   In commenting on the verse of Virgil, ‘Now, boys, close up the rivulets,’ Servius observed a similar instance of piety in the use of the word ‘boys’ (pueri), which men applied to slaves. In the same spirit the Heracleots called their Mariandynian slaves ‘gift-bearers (8c)po4dpot),’3 thus ‘ sparing the bitterness of the name,’ as the ancient interpreter Callistratus remarked in a note on Aristophanes. Tacitus praises the Germans, because their slaves were treated as tenant farmers. Theano says in a letter: ‘ This is the just way to use slaves; not to let them be worn out with toil, nor be too weak to endure labor because of poverty.’

VI.     Under what circumstances the savings of a slave belong to the master, and under what circumstances to the slave.
1.   As we have said, maintenance is due to the slave for his work. Cicero says: ‘Those make wise suggestions who bid us use slaves just as men who serve for hire, declaring that work is to be required of them, but that they are to be furnished with what they deserve.’ Says Aristotle: ‘ The slave’s pay is his maintenance.’ And Cato: ‘ Let him see to it that his slaves fare well, that they are neither cold nor hungry.’

‘There are some things,’ says Seneca,-‘ ‘which a master should furnish to his slave; as rations and clothing.’ The rations included four bushels of grain monthly, which, according to Donatus, were supplied to slaves. Marcianus the jurist says that there are some things which it is necessary for the master to supply to a slave, as tunics and the like. The cruelty of the Sicilians, who killed the Athenian prisoners by starvation, is condemned by historians.

2.   Seneca, moreover, in the passage cited proves that in relation to certain matters the slave is free, and that he has also the means of conferring a benefit, if he does something which exceeds the measure of his duty as a slave, something which is tendered not at a command, but voluntarily, where there is a transition from the obligation of service to the affection of a friend; this Seneca explains at length. It is in harmony with these ideas that if a slave, as in Terence, in his leisure hours, has saved something by cheating his own soul, or by his industry, this is in some way his own.

Theophilus does not do badly to define the slave’s savings (peculium) as ‘ a natural patrimony,’ as you might define ‘the union of slaves (contubernium) ‘ as ‘a natural marriage.’ Ulpian also calls the slave’s savings a diminutive patrimony. It does not matter that the master can at his discretion take away or lessen the patrimony, for if he does this without cause he will not do what is just. By cause, however, I understand not only punishment, but also the master’s necessity; for the advantage of the slave is subordinate to the advantage of his master, even more than the interests of citizens are subordinate to that of their state. On this point, Seneca appositely remarks: ‘ It is not true that the slave has nothing merely because he will have nothing if his master is unwilling that he should have anything.’

3.   Hence it is that a master does not seek to recover anything which was owed to a slave during slavery, and which was paid to the slave after emancipation. The reason, as Tryphoninus says, is that the ground for indebtedness or non-indebtedness is seen naturally in the claim of restitution; the master may naturally be indebted to his slave. And so we read that, just as clients have made contributions for the use of patrons, and subjects for the use of kings, so slaves have made contributions for the use of their masters, as on the occasion of giving a dowry to a daughter, or ransoming a captive son, or some similar occurrence.

Pliny, as he himself records in his letters, even allowed his slaves to make wills of a sort, that is to divide, donate, and leave their belongings within the household. We read that among some peoples slaves were allowed an even fuller right of acquiring property, just as we have elsewhere said that there are several degrees of slavery.

4.   Among many peoples the laws have reduced even the external right of masters to this moral justice, which we are explaining. For among the Greeks slaves who had been too harshly treated were permitted ‘to demand their sale,’ and at Rome to take refuge at statues, or to seek the aid of the magistrates against cruelty or starvation or intolerable wrong. Furthermore it will happen, not from a strict interpretation of law, but from humanity and kindness, that at times a slave will be given his freedom, which is due to him on the ground of long or very great services.

5.   After slavery was introduced by the law of nations, there followed the benefit of emancipation, says Ulpian. Let us take as an example the lines of Terence:

      From a slave I made you my freedman,
      Because like a free man you served.

Salvianus says that it was a frequent custom for slaves to be given their liberty, even when their service had not been of the best, at any rate if it had not been wicked; he adds, ‘and they are not forbidden to take from their masters’ house those things which they have acquired when in a servile condition.’ Many instances of this sort of kindness appear in the martyrologies.

In this respect also we must praise the lenity of the Hebraic law, which ordained that the Jewish slave should be completely. emancipated after the lapse of a fixed time, and not without gifts., The prophets bitterly complain of the disregard of this law. Plutarch censures Cato the Elder for selling slaves who were worn out from old age, unmindful of that common nature in which all men share.

VII.     Whether it is permissible for slaves to attempt to escape.
The question here arises, whether it is right for a person who has been made a prisoner in a just war to attempt to escape; we are not dealing with him who has deserved this penalty by his own crime, but with him who has come into such a condition by a public’ act. The sounder view is that it is not right, because, as we have said, by the common consent of nations such a captive owes his services on behalf of his state.

This view nevertheless is not to be understood as valid in a case’ where intolerable cruelty imposes the necessity of escape upon the, captive. On this subject one may consult the response of Gregory of Neocaesarea, xvi.

VIII.     Whether the children of slaves are bound to the master, and to what extent.
1.   In another connection we raised the question, whether and to what extent the offspring of slaves are bound to the master by: moral justice. This question should not be passed over here,’ because it particularly concerns prisoners of war. If the parents had merited death by their own crimes, then for the preservation of their lives the offspring which was expected of them could be bound to slavery, because otherwise these would not be born. As we have said elsewhere, parents may in fact sell their children into slavery if otherwise they would face starvation. Such is the right which God granted to the Jews over the descendants of the Canaanites.

2.   However, children that were already born, no less than their parents, as part of the state could have been made liable for a debt of the state; but with regard to those who have not yet been born this reason does not seem sufficient, and another appears to be required, Either the obligation in question may arise from the express consent of the parents, along with the necessity of supporting the children, and then it may exist without end; or it may arise from the mere furnishing of sustenance, in which case it exists only up to the time when their services shall have cancelled all that has been’ expended for them. If any further right over the children is given to their master, apparently it arises from the civil law, which to masters is more generous than just.

IX.     What is to be done in countries where the enslavement of prisoners of war is not customary.
1.   Among those peoples who do not avail themselves of the right of slavery which arises from war, the best course will be to exchange prisoners; the next best, to release them at a price that is not unfair. What that price is cannot be set forth in exact terms; but humanity teaches that it should not be raised to the point where its payment would place the prisoner in want of the necessities of life. Such indulgence is in fact granted by the laws of certain countries to many who have fallen into debt by their own acts.

In some places the price put upon captives is fixed by agreements or by custom; as the sum of a mina among the Greeks of antiquity,’ and at present among soldiers at a month’s pay. Plutarch relates that formerly wars between the Corinthians and Megarians were waged ‘humanely and as became peoples of the same race.’ If any one were taken prisoner, he was treated by his captor as a guest and, upon his promise to pay his ransom, dismissed to his home; and from this arose the name ‘ war-guests (8opveevoi).’

2.   The saying of Pyrrhus, which is praised by Cicero, reveals a nobler spirit:

      I ask for myself not gold, nor shall you pay me a ransom;
      With steel, not with gold, on each side fight we for life.
      To them whose valor the fortune of war has spared,
      Their liberty I am resolved to grant.

There is no doubt that Pyrrhus believed that he was waging a just war; yet he thought that he ought to spare the liberty of those whom worthy reasons had led into war.

Xenophon lauds a similar act of Cyrus; Polybius, the course taken by Philip of Macedon after his victory at Chaeronea; Curtius, the conduct of Alexander in relation to the Scythians; Plutarch, that of King Ptolemy and Demetrius, who rivaled each other fully as much in their kindness toward prisoners as in military operations. Dromichaetes, king of the Getae, made Lysimachus, who had been taken prisoner, his guest, and by causing him to witness at the same time both the poverty and the civility of the Getae he induced Lysimachus to prefer to have the friendship of such people rather than their enmity.

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