The Law of War and Peace (1625)
by Hugo Grotius
On Acts Done by Individuals in a Public War
I. The question whether it is permissible for individuals to do harm to a public enemy is discussed with special regard to the law of nature, the law of nations, and municipal law.
1. WHAT I have heretofore said applies chiefly to those who either possess the supreme command in war or are carrying out public orders. We must also consider what is permissible for an individual in war, not only according to natural and divine law, but also according to the law of nations.
In his first book On Duties, Cicero says that the son of the Censor Cato had served in the army of the general Pompilius, but that the legion in which he was serving was disbanded; nevertheless, since the youth from love of warfare remained in the army, Cato wrote to Pompilius that he ought to oblige the young man to take the military oath a second time, if he wished him to remain in the army. Cato gave as a reason that after the first oath had been cancelled his son could not lawfully fight with the enemy. Cicero adds the very; words of Cato from a letter to his son, in which he warns the youth to avoid engaging in battle, for the reason that it is not right for one who is not a soldier to fight with an enemy.
Similarly we read that Chrysantas, a soldier of Cyrus, received,’ praise because, in an attack on the enemy, he drew back his sword as soon as he heard the signal for retreat.’ Also Seneca said: ‘He who disregards the signal for retreat is called a worthless soldier.’
2. But those are deceived who think that the principle thus stated has its origin in the law of nations. This becomes clear if you consider that, just as any one is permitted to seize the property of an enemy, so also, as we have shown above, it is permissible to kill an enemy. For according to the law of nations enemies are held to be entitled to no consideration. The advice of Cato, therefore, comes from Roman military discipline, which, according to Modestinus, contained the provision that one who had not obeyed orders; should be punished with death, even if what he had done turned out successfully. But one who had fought an enemy outside the ranks: and without the command of the general was understood to have disobeyed orders, as the instructions of Manlius teach us. The reason is that, if such disobedience were rashly permitted, either the outposts might be abandoned or, with increase of lawlessness, the’ army or a part of it might even become involved in ill-considered battles,” a condition which ought absolutely to be avoided.
Consequently Sallust, describing the Roman discipline, says ‘In war punishment is more often inflicted on those who have fought against the enemy contrary to orders than against those who have withdrawn from battle too slowly when recalled.’ A certain Spartan, who was on the point of slaying an enemy, heard the signal for retreat and held back his stroke, giving as the reason, ‘ It is in fact better to obey the commander than to kill an enemy.’ The reason why a discharged soldier cannot kill an enemy is thus stated by Plutarch: he is not bound by the military laws, by which those who are going to fight ought to be bound. According to Arrian, Epictetus, referring to the deed of Chrysantas just mentioned, said: ‘It seemed to him so much better to obey the will of his commander than his own.’
3. If, however, we regard the law of nature and moral justice, it is apparent that in a lawful war any person is allowed to do whatever he trusts will be of advantage to the innocent party, provided he keeps within the proper limits of warfare; nevertheless he is not allowed to make captured property his own, because nothing is due to him, unless indeed he is enforcing a legal penalty according to the common law of mankind. From our previous discussion we can understand how this last right has been restricted by the law of the Gospel.
4. Now, a command may be either general or particular. A general command is exemplified in the words which the consul was accustomed to utter in the presence of the Romans in case of an uprising: ‘ Let those who wish the safety of the state follow me.’ Individual subjects, moreover, in addition to the right of self-protection, are sometimes given the right to kill in case this is to the advantage of the state.
II. What in respect to the enemy is permitted by moral justice to those who are serving in the army, or fitting out ships, at their own expense.
1. A special command may be given not only to those who receive pay, but also to those who serve at their own charges; and -a more important consideration-to those who support a part of the war with their own expenditures, such as those who fit out and maintain ships at private cost. Such contributors, in lieu of pay, are generally allowed to hold captured property as their own, as we have said elsewhere. How far this practice may be extended without the violation of moral justice and love, is a proper question for discussion.
2. Justice has regard either for the enemy or for the state itself with which an agreement is made. We have said that possession of all things, which can support war, may be taken from the enemy for the sake of security, but under the condition of making restitution. Indeed absolute ownership may be acquired in compensation for that which is due to a state waging a lawful war, either, from the beginning of the war or from a later act, whether the property belongs to the hostile state or to individuals, even though the individuals themselves be guiltless; the property of the guilty may, be taken away and acquired by the captors as a means of imposing’ a penalty. Enemy goods will therefore become the property of those who are conducting at their own expense a part of the war, so far as this affects the enemy, provided that the limit which I have mentioned b e not exceeded; whether the limit has been reached ought,, to be decided by a fair-minded judgement.
III. What in respect to their own state is lawful for those who are serving in the army, or fitting out ships, at their own expense.
As regards their own state the arrangement with such contributors, will be just, according to the standard of moral justice, if there” shall be equality in the contract, that is, if the expenses and dangers, shall be as great as the chance of booty. For if the expectation of booty shall be much greater, whatever shall be acquired in excess ought to be restored to the state. The case is like that of a man who has bought at a very low price a cast of the net, which is, indeed, of uncertain value, but is easy to make and warrants the expectation of a great catch of fish.
IV. What the rule of Christian love demands of such persons.
Even when justice, strictly speaking, is not violated, one may sin against the duty which consists of loving others, especially the duty prescribed by the Christian law. A case of this character might arise if it should be apparent that plundering by such persons would not’ be especially harmful to the enemy as a whole, nor to the king, nor, to those who are in fact guilty, but would harm innocent persons, and in fact to such an extent that it would plunge them into the greatest misfortunes, into which it would be the negation of mercy to cast those who are privately indebted to us. Now if to this, is added the consideration that such plundering will have no notable effect in ending the war, or in weakening the public strength of the enemy, then gain acquired solely in consequence of the unhappy condition of the times’ ought to be considered unworthy of a just man, and especially of a Christian.
V. How a private war may be mingled with a public war.
Sometimes it happens that a private war arises in connection with a public war; as, for example, if a person has fallen among enemies and his life or property is endangered. In such cases the rules should be observed which we have elsewhere stated in regard to the limit permissible in self-defense.
Public authority, again, is wont to be joined with private advantage; a case would be if a person who had suffered a great loss at the hands of the enemy should obtain the right of collecting damage from the enemy’s property. The right in that case must be defined in accordance with the principles stated above in regard to the taking of security.
VI. The obligation resting upon a person, who has done harm to the enemy without orders, is set forth with a distinction.
But if a soldier or any other person, even in a just war, has burned houses belonging to the enemy, has devastated fields, and caused losses of this character without orders, when, furthermore, there was no necessity or just cause, the theologians rightly hold that he is bound to make good the losses. I am, however, justified in adding, what was omitted by them, ‘when there was no just cause’; for if there is such a cause he will perhaps be answerable to his own state, whose laws he has transgressed, but not likewise to the enemy, to whom he has done no legal wrong.
This is not unlike the reply made by a certain Carthaginian to the Romans who were demanding the surrender of Hannibal:
I consider that the question at issue is not whether Saguntum was attacked in accordance with a decision of an individual or of the state, but whether it was attacked rightfully or wrongfully. For the question whether our citizen acted in accordance with our decision, or his own, is our business, and to us belongs the punishment of a citizen of ours. The subject of discussion between you and us is merely, whether under our treaty the attack was permissible.