The Law of War and Peace (1625)
by Hugo Grotius
On The Good Faith of States, by Which War Is Ended; Also on the Working of Peace Treaties, on Decision by Lot, on Combat by Agreement; on Arbitration, Surrender, Hostages, and Pledges
I. Division of good faith between enemies, according to the order of what follows.
Understandings between enemies rest upon a promise expressed or implied.
An express promise is either public or private. If public it is imputed either to the supreme authority or to subordinate powers. That which is imputed to the supreme authority either puts an end to war or maintains its force while the war lasts.
Among the factors which terminate a war some are looked upon as principal, others as accessory. Those are principal which themselves end the war by their own action, as treaties, or by the consent to refer to something else, such as the drawing of lots, the issue of combat, or the decision of an arbitrator. Of the last three the first rests on pure chance, while the other two combine chance with strength of mind or body, or with capacity of judgement.
II. In a monarchy the right to make peace belongs to the king.
Those who have the right of initiative in conducting a war have the right to enter into treaties for the purpose of ending it. Each, in fact, is the manager of his own affairs. From this it follows that in a war which is public on both sides the right to end it belongs to those who have the right to exercise supreme power. In a true monarchy, therefore, this will belong to the king,’ provided also the king has unrestricted power.
III. What if the king is an infant, insane, a captive, or in exile.
1. A king who is of such an age that he does not possess maturity of judgement (in some kingdoms such an age is defined by law, elsewhere it will have to be determined by a more probable estimate) or a feeble-minded king cannot make peace.
The same principle will apply to a king in captivity, provided; he possesses a kingly authority which had its origin in the consent, of the people. It is, in fact, not credible that sovereignty was conferred by a people on such terms that it could be exercised by one who is not free. Therefore in this case also not the undivided sovereignty indeed,’ but the exercise, and, as it were, the guardianship of it, will belong to the people, or to the one to whom the people has entrusted it.
2. Nevertheless, if a king even in captivity has pledged anything of his own private possessions, the pledge will be valid, in accordance with the principle set forth in what we shall state concerning private agreements.
But if a king shall be in exile, will he be able to make peace? Surely so, if it be established that he is not living under constraint; otherwise his condition will differ too little from that of a captive, for there are captives also who are loosely guarded. Regulus refused to give his opinion in the senate, saying that he was not a senator so long as he was bound by an oath to the enemy.
IV. In an aristocracy or a democracy the right of making peace belongs to the majority.
In accordance with what we have said elsewhere, in aristocratic or democratic governments the right of making treaties will belong to the majority; in the former case, the majority of the public council, in the latter, the majority of the citizens who according to custom have the right to vote.
Accordingly, treaties so made will be binding even on those who have voted against them. Livy says: ‘ When a treaty has once been voted it will have to be defended as a good and advantageous treaty by all, even by those who were previously opposed to it.’ Dionysius of Halicarnassus states the case thus: ‘ What the majority has voted must be obeyed.’ Appian says: ‘All, without admitting any excuse, are bound to obey the decree.’ Says Pliny: ‘All had to observe what the majority had approved.’ Peace, moreover, is of advantage also to those whom it obligates, if they so wish.
V. Now the sovereignty, or a part of the sovereignty, or the property of the realm may be validly alienated for the sake of peace.
1. Let us now see what the things are which may be made subject of a treaty.
Kings, such as the majority now are, are not able to alienate by treaty either the whole sovereignty or a part of it, since they hold their royal authority not as a patrimony, but as if in usufruct. Even before they receive the kingship, while the people are still superior to them, such acts can be rendered entirely void for the future by a public statute, so that they cannot give rise to any obligation in the king’s interest. And it is to be believed that the people have so willed; for otherwise, if the act were binding on the contracting party to his interest, the goods of subjects might be taken for the king’s debts, and it would follow that the provision against the alienation of the sovereignty would be in vain.
2. In order, therefore, that the undivided sovereignty may be transferred in a valid manner, the consent of the whole people is necessary. This may be effected by the representatives of the parts which are called the estates.
In order to validly alienate any part of the sovereignty there is need of a twofold consent, that of the whole body, and in particular the consent of that part of which the sovereignty is at stake, since without its consent it cannot be separated from the body to which it has belonged. Yet in case of extreme and in other respects unavoidable necessity the part itself will probably transfer the sovereignty over itself in a valid manner without the consent of the whole people, because it is to be believed that that power was reserved when the body politic was formed.
3. In patrimonial kingdoms, however, there is nothing to prevent a king from alienating his crown. Yet it may happen that such a king would not be able to alienate a part of the sovereignty, if indeed he has received the kingdom as his property on the condition of not dividing it. But the property described as royal may be, included in the patrimony of the king in two ways, either separately, or indivisibly united with the kingdom itself. If included in the latter way, it may be transferred, but only with the transfer of the crown itself; if separately, it may be transferred separately.
4. But kings who do not hold their kingship in patrimony seem hardly to have been granted the right of alienating the property of the realm, unless this right plainly appears as arising from some early law, or has never been considered contrary to custom.
VI. How far the people, or his successors, are bound by a peace made by a king.
We have elsewhere stated how far the people, and at the same, time also the successors of the king, are bound by his promise, to wit: so far as the power of creating binding obligations was included in his sovereignty. This ought neither to be given unlimited range, nor to be confined within too narrow limits,’ but ought to be so understood that what is based on good reason may be accepted as valid.
The case will plainly be different if a king is at the same time the absolute master of his subjects, and has received a sovereignty akin to that of a household rather than to that of a state. Such are kings who have reduced to slavery people conquered in war; or a king who does not indeed have ownership of persons but of their property, as Pharaoh in the land of Egypt, in consequence of purchase; and others, who have taken strangers into their private possession. For here the right added to the royal power establishes the validity of that which could not be maintained as valid by the right of the king alone.
VII. In arranging peace the property of subjects can be given up for the sake of the public advantage, but with the obligation of making good the loss.
1. This question also is frequently discussed: in the effort to secure peace, what conclusion regarding the property of subjects maybe adopted by kings who have no other right over the property of their subjects than that inhering in the royal power?
I have said elsewhere that the property of subjects belongs to the state under the right of eminent domain; in consequence the state, or he who represents the state, can use the property of subjects, and even destroy it or alienate it, not only in case of direct need, which grants even to private citizens a measure of right over others’ property, but also for the sake of the public advantage; and to the public advantage those very persons who formed the body politic should be considered as desiring that private advantage should yield.
2. But, we must add, when this happens, the state is bound to make good at public expense the damage to those who lose their property; and to this public levy the person himself who suffered the loss will contribute, if there is need.
The state, furthermore, will not. be relieved of this burden if perchance it is not equal to the payment at the time; but whenever the means shall be at hand the obligation will reassert itself as if merely held in suspense.
VIII. What in regard to property already lost in war?
I do not admit without modification the statement of Fernando Vazquez, that the state ought not to take upon itself the loss already caused by a war, for the reason that the law of war permits such damages. For that law of war has reference to other peoples, as I have explained elsewhere, and in part applies to the relationships of enemies but not to those of citizens with one another. Since citizens of a state are associates, it is right that they should share the common losses which are suffered by reason of their association. Obviously, also, the municipal law may expressly provide that there shall be no right of action against the state for property lost in war, to the end that each individual shall defend his property with greater energy.
IX. No distinction is here made between property acquired under the law of nations and under the municipal law.
Some make a broad distinction between property which belongs to citizens by the law of nations and that which belongs to the same persons by municipal law; in consequence they grant to the king a more unrestricted right over property owned under the law of nations, even to the extent of taking it away without cause and without compensation, while they admit no such right in the case of property held by the law of nature.
This distinction is. wholly erroneous, for ownership,, no matter’ from what cause it has arisen, always has effects originating in the law of nature; consequently it cannot be taken away except as the result of causes which are inherent in ownership by its very nature, or arise from an act of the owner.
X. From the point of view of foreigners public advantage is presumed.
Now this doctrine, that the property of individuals should not be given up except for the public advantage, has reference to the king and his subjects, just as the other doctrine regarding compensation for loss has reference to the state and individuals. The act of the king is in fact. sufficient for foreigners, who make agreements with him, not only by reason of the presumption established by the dignity of his person, but also in accordance with the law of nations, which permits the property of subjects to be made liable by the act of the king.
XI. General rule for the interpretation of peace covenants.
1. In the interpretation of peace covenants the observation should be made that, as we have previously stated, the more favorable a condition is, the more broadly it is to be construed, while the further a condition is removed from a favorable point of view the more narrow is the construction to be placed upon it.
If we have in view the law of nature, the most favorable condition seems to rest on this principle, that each shall obtain what belongs to him, which the Greeks have expressed by ekaston ecein ta eantou; hence the interpretation of ambiguous clauses ought to be directed to the end that the party who had a just cause of war should obtain that for which he took up arms, and should likewise recover for damages and costs, but that he should not also recover anything by way of penalty, for that would arouse more hatred.
2. Since, however, it is not customary for the parties to arrive at peace by a confession of wrong, in treaties that interpretation should be assumed which puts the parties as far as possible on an equality with regard to the justice of the war.
This is usually accomplished in one of two ways; either the possession of property, which has been disturbed by war, is adjusted in accordance with the former right of ownership’ [status quo ante bellum], the expression used in the speech of Menippus where he discusses the different kinds of treaties; or, things remain as they are [uti possidetis], and this the Greeks call ‘ holding what they have.’
XII. In doubtful cases it is believed that the understanding is that things remain as they are; how this ought to be interpreted.
1. Of the two ways mentioned, in case of doubt the presumption is in favor of the second, because it is easier and does not introduce a change. Hence the rule laid down by Tryphoninus, that in peace the right of postliminy applies only to those captives who have been expressly mentioned in the treaty, as we have stated above, where it was shown by sound arguments that Faber’s emendation of the text was correct. So also deserters will not be surrendered unless that is in the agreement. For we receive deserters by the law of war; that is, according to the law of war we are allowed to admit and enrol on our side the one who changes allegiance. Under such an agreement the other things remain in the hands of the possessor.
2. In such cases, however, the word possession is understood not according to municipal law but according to the law of nature. For in wars the fact of possession suffices, and nothing else is considered. Moreover we have said that lands are so held if they have been enclosed by fortifications; for temporary possession, as in the case of a stationary camp, is here not to be taken into account. In his speech for Ctesiphon Demosthenes says that Philip hastened to seize what places he could, knowing that, as matters stood, after the conclusion of peace he would retain what he held.
Incorporeal possessions are not retained except through the things to which they belong, as the servitudes of lands, or through the persons who possess them, provided that the rights do not run with land which formerly belonged to the enemy.
XIII. What if an agreement has been made, that all things are to be restored to the condition in which they were before the war?
In the first kind of agreement, in which possession disturbed by the war is restored, we must note that the last possession, which existed before the war, is meant; nevertheless with the understanding that private persons who have been dispossessed may institute legal proceedings either by possessory action or by a claim for damages.
XIV. In such cases those who previously were free and of their own accord became subject to another are not restored.
But if any free people has of its own will yielded to one of the belligerents, restitution will not be applicable to it; for restitution applies only to those things which are accomplished by force, or fear, or in other ways through deceit permissible only against an enemy. So when peace was made among the Greeks the Thebans retained Plataea,’ saying ‘that they held that place not by force, nor by betrayal, but by the free choice of those to whom it belonged.’ With equal right Nisaea remained in the possession of the Athenians. Titus Quinctius made use of the same distinction in relation to the Aetolians, saying ‘That is the rule for captured cities; of their own accord the cities of Thessaly came under our sway.’
XV. In case of doubt damages caused by war are considered as remitted.
If no other agreement has been made, in every peace it ought to be considered settled that there shall be no liability on account of the damages which have been caused by the war. This is to be understood also as to damages suffered by private persons; for such damages also are the result of war. In case of doubt it is presumed that the belligerents intended to make such an agreement that neither would be condemned as guilty of injustice.
XVI. The principle stated does not apply to what was owed to individuals before the war.
Nevertheless we ought not to consider that debts, which were owed to individuals at the outbreak of war, have been cancelled. For cancellations of debts are not obtained by the law of war, but their collection has only been hindered by the war. When, therefore, the hindrance has been removed, they retain their full force. Although we should consider that no one ought easily to be deprived of the rights which he possessed before the war (for, as Cicero rightly says, commonwealths and states were established especially on this account, that individuals might be secure in holding what belonged to them), yet this must be understood in the case of those rights which arise from the inequality of things.
XVII. In case of doubt also punishments, which were publicly due before the war, are considered as remitted.
The same principle does not apply to the right to inflict punishment.’ For this right, in so far as it concerns kings or peoples, ought to be considered as held in abeyance, from fear that the peace will not be a perfect peace if it leaves the old causes for war.
Wherefore acts not known will also here be included under the general terms, as the case of the Roman traders who, as Appian relates, were drowned by the Carthaginians without the knowledge of the Romans. Dionysius of Halicarnassus declares that the best reconciliations are those which do away with the anger and the remembrance of the injuries. In his Plataic Oration Isocrates says ‘In peace it is not fitting to follow up former wrongs.’
XVIII. What of the right of private persons to inflict punishments?
As to the right of private persons to inflict punishment, the reason is not so strong for thinking that it should be held in abeyance, because it can be enforced through the courts without war. Nevertheless, since this right is not so clearly ours as that which arises from inequality, and punishments always cause hatred, a slight extension of the scope of the words will suffice to suggest that this right also may be understood to have been given up.
XIX. A right, which was publicly alleged before the war, but was in dispute, is easily understood to be in abeyance.
What I have said, that a right which existed before the war ought not easily to be considered annulled, should be firmly maintained with respect to the rights of individuals; but as to rights of kings and peoples it is easier to understand that some con donation has occurred, if only statements, or not improbable inferences, are in evidence. This is above all the case if the right in question was not clear, but had been in dispute. It is, in fact, the part of kindness to believe that the right was suffered to fall into abeyance in order that the seeds of war might be eradicated.
The same Dionysius of Halicarnassus, whom I quoted above, says: ‘We ought not so much to consider the renewing of our friendship for the present, as to take care. that we may not be involved in war a second time; for we have come together for the purpose not of putting off the evils but of putting an end to them.’ The latter part of this statement was taken almost word for word from the oration of Isocrates On Peace.
XX. Things captured after the making of peace must be restored.
It is well established that things which have been captured after the conclusion of a treaty of peace must be restored. The right of war had, in fact, already expired.
XXI. Some rules bearing upon the agreement to restore things captured in war.
In treaties which deal with the restitution of things captured in war, first, those provisions which apply equally to both sides ought to be interpreted more broadly than those which are one-sided. Again, the provisions that are concerned with persons are construed more favorably than those that treat of things. Among provisions treating of things those that deal with land are construed more favorably than those dealing with movables, and those dealing with public property more favorably than those that treat of private property. Also among provisions treating of private possessions those which order the return of things possessed under a saleable title allow greater latitude than those possessed under a burdensome title, as property held under bills of sale or as dowry.
XXII. Regarding income.
A person to whom a grant of property is made on the conclusion of a peace is entitled to receive the income of it also from the time of the grant, but not before that time. This principle was rightly’ maintained by Caesar Augustus against Sextus Pompey who, after the Peloponnesus had been granted to him, at the same time claimed also the taxes which were due for the previous years.
XXIII. On the names of regions.
The names of regions must be accepted according to the usage of the present time,’ and according to the usage of experts rather than of the common people; for such matters are usually treated by experts.
XXIV. Concerning reference to a former treaty; and concerning him through whom the failure to perform has come.
The following rules also are of frequent application. As often as reference is made to a former or ancient treaty, the qualifications or conditions of the former agreement are in each case considered as repeated. Also the party, who was willing to do an act, must be considered as having done it, if he was hindered from doing it by the other party with whom the dispute occurred.
XXV. Concerning delay.
However, the statement of some writers, that delay for a brief period is excusable, is not true unless an unforeseen necessity has proved a hindrance.’ It is, in fact, not strange that some canons favor the excusing of such delay, since it is their duty to influence Christians to that view which is consistent with love for one another. But in this investigation concerning the interpretation of treaties we are not now inquiring what is the better course nor what religion and honor demand of each, but to what limit the application of a principle, based wholly on that right, which we have called legal, can be carried.
XXVI. In case of doubt that interpretation should be adopted which is contrary to the interest of the party that made the terms.
In case the meaning is doubtful, an interpretation is preferably to be adopted contrary to the interest of him who dictated the conditions, because ordinarily he belongs to the stronger party. Hannibal says that the dictation of the terms of peace belongs to the man who grants peace and not to the one who asks for it. So likewise an interpretation is adopted against the seller; for he has himself to blame for not speaking more plainly.
The other party, however, could rightly accept, to his own advantage, a condition which admitted of several interpretations. This is in harmony with what Aristotle said: ‘ Where friendship exists for the sake of advantage, there the advantage of the one who receives is the measure of what is due.’
XXVII. Distinctions are drawn between furnishing a new cause for war and breaking a treaty.
Of daily occurrence is the discussion of the question, when should a treaty of peace be considered broken? This the Greeks call a ‘ breach of faith.’ It is, in fact, not the same thing to furnish a new cause for war and to break a treaty; but there is a great difference as regards both the penalty incurred by the one at fault and the relieving of the innocent party from his pledge in other matters.
A treaty of peace is broken in three ways: by acting either contrary to what is involved in every peace, or against what was expressly stated in the treaty of peace, or against what ought to be understood from the nature of every peace.
XXVIII. How a treaty of peace may be broken by acting contrary to what is contained in every peace.
A violation of what is involved in every peace will take place if a warlike attack is made, especially when no new cause is presented. If the fact can be alleged with probability, it is better to believe that the wrong was committed without faithlessness than with it. This statement of Thucydides hardly needs mention: ‘Not those who ward off force with force break the peace, but those who are the first to make the attack.’
Having established this point, we must see by whom, and against whom, the armed attack which breaks the peace is made.
XXIX. What if allies have made an attack?
I see that there are some who think that if those, who have been allies, make such an attack, the treaty of peace is broken. And I do not deny that an agreement can be made on such terms, not, to be sure, that one people should be subject to punishment for another’s act, but that peace should not seem to have been finally made, but should remain subject to a condition depending partly on intention, partly on chance.
We ought not, however, to believe that a peace has been made in this way, unless the fact is perfectly clear. Such an arrangement is irregular, and not in harmony with the common desire of those who are making peace. Therefore those who made the attack without the aid of others will be responsible for breaking the treaty, and the right to wage war will exist against them and not against the others. In opposition to this view the Thebans formerly spoke against the allies of the Spartans.
XXX. What if subjects have so acted? How their action should be considered as approved.
If subjects do anything by armed attack without public orders, it will be necessary to see whether the act of individuals can be said to have been publicly approved.
From what we have said above, it can easily be understood that to show public approval three requisites are necessary: knowledge of the act, power to punish, and neglect to punish. Knowledge is shown by the fact that the acts are manifest, or have been made subject of complaint. Power is assumed, unless the lack of it is apparent. Neglect is evidenced by the expiration of the period of time ordinarily taken for the punishment of crimes in each state. Such neglect is equivalent to a decree; and in this sense the statement of Agrippa in Josephus should be taken, ‘that the king of the Parthians would consider the peace broken if his subjects should take up arms against the Romans.’
XXXI. What if subjects should engage in warfare under the command of others?
The question is frequently raised, whether the rule just given holds if subjects do not take up arms on their own account but serve under others who are carrying on war. Certainly according to Livy the people of Caere, in offering an excuse for themselves, say that their citizens did not serve with the public consent. Also the Rhodians had the same defense.
It is nearer the truth to consider that such service ought not to be permitted, unless it is made apparent, by plausible arguments, that a different point of view has been adopted. This sometimes happens now in accordance with the ancient example of the Aetolians, who held it right to take plunder from a plunderer.’ Polybius’ says that the force of this custom was that, though they were not themselves at war, but others, their friends or allies, were warring, it was nevertheless lawful for Aetolians without a public decree to serve on both sides and to take plunder from both. Of the same people Livy says: ‘They permit their young men to serve against their own allies, omitting merely the public authorization, and often opposing armies have Aetolian auxiliary troops on both sides. Formerly the Etruscans, though refusing aid to the Veientes, did not hinder any of their youth from going as volunteers to that war.’
XXXII. What if harm has been done to subjects? Herein a distinction is made.
1. Again, a treaty of peace ought to be considered broken, not only if an armed attack is made on the whole body of the state, but also if such an attack is made on its subjects, of course without a new cause. For peace is made in order that all subjects may be safe. Peace, in fact, is an act of the state on behalf of the whole body and on behalf of its parts. Even more, if a new cause arises, by the peace it will be permissible for them to defend themselves and their property. For, as Cassius says, it is natural to repel arms with arms. Consequently among equals it is not to be thought easy to give up this right. But it is not permissible to punish, or to recover stolen property, by force, except after judgement has been refused; for these matters admit of delay, while self-defense does not.
2. But if subjects commit wrongs so continuously, and in a manner so contrary to the law of nature, as to warrant the belief that they are acting wholly without the approval of their rulers, and if they cannot be brought into court, as in the case of pirates, it will be lawful both to recover property from them and to take vengeance on them, as if on persons who had been surrendered to us. But it is in truth contrary to the conditions of peace on that account to attack others who are innocent.
XXXIII. What if harm has been done to allies? Herein likewise a distinction is made.
1. Also an armed attack made upon allies breaks a treaty of peace,’ but only an attack upon those allies who have been included in the terms of peace, as I showed in examining the controversy over Saguntum. On this principle the Corinthians insisted in the speech which is found in the sixth book of Xenophon’s A Affairs of Greece ‘We have all taken oath to all of you.’
Further, if the allies themselves have not made the compact, but others for them, the same rule will nevertheless have to be applied, after it is fully settled that those allies have ratified the treaty of peace. For so long as it is still uncertain whether they wish to ratify it they are to be considered as enemies.
2. The case is different with other allies, such as those united by ties of blood and marriage, who are neither subjects nor named in the treaty of peace. Yet it does not follow, as I have said above, that war cannot be undertaken on that account, but it will be a war from a new cause.
XXXIV. How a treaty of peace may be broken by acting contrary to what has been stated in the peace terms.
As I have said, a treaty of peace is broken also by acting contrary to what has been stated in the peace terms. Under action, moreover, is included the failure to do what one should, and when one should.
XXXV. Whether a discrimination ought to be made between the articles of the treaty of peace.
I shall not here admit a differentiation of the terms of peace into those that are of greater and those that are of less importance. For everything that has been included in the treaty of peace ought to seem important enough to be kept. Goodness, nevertheless, and especially Christian goodness, will more easily pardon lighter faults, especially if repentance is added, so that the following is in point:
- Who sin regrets, is almost innocent.
But in order that peace may be still more securely safeguarded it will be wise to add to the topics of minor importance’ the provision that the treaty of peace is not to be broken by anything done in violation of these, or that arbitration should be tried before it is permissible to take up arms, as was provided, according to Thucydides, in the Peloponnesian treaty.
XXXVI. What if a penalty has been added?
And I am fully of the opinion that this seems to have been the intention, if any special penalty has been added;’ not because I do not know that a contract can be so made that the one, to whom the injury has been done, may have a choice, whether he prefers the penalty or withdrawal from the agreement, but because the nature of the business requires what I have said. This principle indeed is agreed upon, and has both been stated by us above and approved by the authority of history, that a treaty of peace is not broken by the party who fails to stand by it after the other has broken it; for he was only bound conditionally.
XXXVII. What if necessity has hindered fulfillment?
But if necessity is the cause why one party has not fulfilled his promise, as, for example, if the thing has been destroyed or lost, or the act rendered impossible by some chance, the treaty of peace will not be considered as broken; for, as I have said, a treaty is usually not dependent on a chance condition. But the other party will have his choice, whether he prefers to wait, if there is any hope that the promise may be carried out later, or to receive an equivalent in estimated value, or to be freed from mutual engagements corresponding with that item or of equal value.
XXXVIII. Peace continues, if the one injured so desires.
Certainly even after a broken agreement it is within the power of the injured party to preserve peace, as Scipio did after many treacherous acts of the Carthaginians; no one frees himself from an obligation by acting contrary to it. And if the provision has been added, that the treaty of peace should be considered broken by such an act, this provision ought to be considered as added merely for the benefit of the innocent party, in case he wishes to take advantage of it.
XXXIX. How peace may be broken by acting contrary to what belongs to the special nature of every peace.
Lastly we said that a treaty of peace is broken by doing what is contrary to the special nature of the peace.
XL. What falls under the term friendship?
1. Accordingly, acts that are contrary to friendship break a treaty of peace which was entered into under the terms of friendship. For whatever the duty of friendship by itself demands of other men ought by the right of the agreement to be performed in such a case as this also. To treaties of friendship (since Pomponius teaches us that there is also a kind of treaty not made for the sake of friendship), and not to every kind of treaty, I refer many matters arising out of injuries inflicted without force of arms, and insults, which are frequently discussed by legal experts; and to such treaties I refer the statement of Cicero: ‘ If any wrong has been committed after a return to friendly relations, it should be thought not due to neglect but a violation, and imputed not to imprudence but to faithlessness.’ But in such cases also the motive of ill-will should as far as possible be eliminated from the act.
2. Consequently, if a wrong has been done to a person intimately connected with the party with whom the peace was made, or to a subject, it will not be considered as done to the party himself unless the wrong was done openly as an affront to him.
This principle of natural justice is followed by the Roman laws in cases of cruelty in the treatment of slaves. Adultery, also, and violation of chastity, will be referred rather to lust than to rupture of friendly relations, and the seizure of another’s property will make the aggressor guilty of a new act of greed rather than of the breaking of faith.
3. When no new cause is presented, threats that are truly savage are inconsistent with friendly relations. To this head I shall refer also the building of fortresses on the boundaries, not for defense but for the purpose of inflicting harm; and an unwonted levying of troops, if it shall be apparent, from satisfactory indications, that these are being levied against no one else than the party with whom the peace has been made.
XLI. Whether it is contrary to friendship to receive subjects and exiles.
1. It is not contrary to friendship to admit individual subjects who wish to migrate from one government to another. Such liberty in fact, as I have said elsewhere, is not only natural but also advantageous.
Under the same principle I include the granting of asylum to exiles. For over exiles the state has no right, as I have noted elsewhere, quoting Euripides. In Livy Perseus rightly inquires: ‘What is accomplished by sending any one into exile, if there is not going to be a place anywhere for the person exiled? ‘ In the second speech On Leuctra, Aristides says: ‘It is a common right of mankind to admit exiles.’
2. As I have said elsewhere,’ it is clearly not permissible to admit towns or large aggregations, which constitute an integral part of a state. It is equally unpermissible to admit those who, by reason of an oath or in some other way, are under an obligation of service or of slavery. Moreover we have previously stated that among certain peoples the same rule has been introduced by the law of nations concerning those who are slaves by fortune of war. But also we have treated elsewhere of the surrender of those who, though not driven into exile, are seeking to escape a justly deserved penalty.
XLII. How war may be ended by drawing lots.
The result of a war cannot in all cases be made subject to the chance of drawing lots, but only in those cases in which the issue is one over which we have full power. For the obligation of the state to protect the life, chastity, and other rights of its subjects, and of the king to protect the welfare of the state, is too great to permit the disregard of those considerations which stand in the most natural relation to the defense of themselves and others. Nevertheless, if on a careful estimate the party attacked in an unjust war is so far inferior that there is no hope of resistance, it is apparent that a decision by lot can be offered, in order that a certain peril may be avoided by recourse to an uncertain one. This, in fact, is the least of the evils.
XLIII. How war may be ended by a set combat; and whether this is lawful.
1. There follows a much disputed question concerning combats which are agreed upon with definite numbers, for the sake of ending a war; such combats, for example, with one on each side, as that of Aeneas and Turnus, or Menelaus and Paris; with two on each side, as that between the Aetolians and the Eleans; with three on each side, as that between the Horatii, who were Romans, and the Curatii, who were Albans; or with thirty on each side, as that between the Lacedaemonians and the Argives.
2. If we consider only the law of nations, in a strict sense, there should be no doubt that, according to it alone, such contests are lawful; for this law permits the killing of enemies without distinction. If, again, the opinion of the ancient Greeks and Romans, and of other nations, were true, that each man is the master of his own life without restriction, then such combats would not lack moral justice also. But I have already several times said that this opinion is in conflict with true reason and the precepts of God. Elsewhere I have shown, both by reason and by the authority of the Sacred Writings, that whoever kills a man on account of things which we can do without sins against the law of love for his neighbor.
3. Let us now add that a man sins also against himself, and against God, who values so cheaply the life which was granted to him by God as a great favor. If the issue at stake, such as the safety of many innocent persons, is worthy of war, we must strive with all our strength to win. To use a set combat as an evidence of a good cause, or as an instrument of divine judgement, is unmeaning, and inconsistent with the true sense of duty.
4. There is only one condition which can render such a combat just and patriotic, from the point of view of one side merely; that is, if otherwise the expectation is in all respects warranted that the party supporting the unjust cause is going to be the victor with great slaughter of innocent persons. He, in fact, should be subject to no censure who prefers to fight in the way that will give to him the greatest probability of success. But this also is true, that some acts, which are not done rightly, are not approved as right by others, but are held permissible for the avoidance of more serious evils which cannot otherwise be escaped; as in many places base usurers and prostitutes are tolerated.
5. Therefore, as I previously said, when it is a question of avoiding war, if two persons, who are striving for the sovereignty, have prepared to contend with arms against each other, the people can allow such a combat in order that a greater calamity, otherwise imminent, may be avoided; so the same thing will have to be said when it is a question of ending a war. Thus Cyrus challenged the Assyrian king; and, according to Dionysius of Halicarnassus, Mettius said that it would not have been an unfair thing for the leaders themselves of the peoples to decide the question by fighting with each other, if the contest had been for their own power or rank and not for that of their peoples. So we read that the Emperor Heraclius fought in single combat with Chosroes, the son of the Persian king.
XLIV. Whether the act of kings in such cases binds their peoples.
On the other hand, those who thus refer a controversy to the outcome of a combat can indeed deprive themselves of whatever right they themselves possess, but in those kingdoms which are not patrimonial they cannot also give a right to another who does not possess it. In such cases, therefore, in order that a treaty may be valid, it is necessary to add the consent both of the people and of those persons, already born, who have the right to the succession. In fiefs which are not free the consent of the lord or seigneur of the fief also is required.
XLV. In such combats who is to be judged the victor?
1. Often in such combats the question is raised, which of the two should be considered the victor.’ Only those can be considered vanquished on whose side all have either fallen or taken to flight. So, according to Livy, withdrawal to one’s own territory or towns is a sign of defeat.’
2. In three famous historians, Herodotus, Thucydides, and Polybius, three disputes about victory are presented, and of these the first refers to a set combat. But if any one views the evidence correctly he will find that in all these contests the parties separated without a true victory. For the Argives were not put to flight by Othryades, but had gone away at the coming of night, thinking that they were victors, and intending to report the victory to their people. Neither had the Corcyraeans put to flight the Corinthians, who, after having fought successfully, had perceived a strong Athenian fleet and had gone away in good order without making any test of strength with the Athenians. Philip of Macedon had indeed captured a ship belonging to Attalus, after it had been deserted by its men, but he had completely failed to put the fleet to flight; and so, as Polybius remarks, he conducted himself, rather than considered himself, as a victor.
3. The other evidences-the collecting of spoils, the giving up of dead for burial,’ and challenging to battle a second time, which in the passage cited and in Livy you sometimes find mentioned as signs of victory-prove nothing in themselves, excepting in so far as, in connection with other signs, they bear witness to the flight of the enemy. Surely in case of doubt the one who has retired from the field of battle may be presumed to have fled. When, however, there are no sure proofs of victory, the issue remains in the same condition as before the battle, and must be referred either to battle or to new agreements.
XLVI. How war may be ended by arbitration; and here arbitration is understood to be without appeal.
1. Proculus teaches us that there are two kinds of arbitrators. One is of such a sort that we ought to render obedience, whether he is just or unjust; and this kind of arbitration, he says, is found when the parties resort to an arbitrator under mutual promises to abide by his decision. The other deals with matters of such a kind that they ought to be referred to the decision of a just man; and of this type we have an example in the reply of Celsus: ‘ If a freedman,’ he says, ‘ has sworn to give as many services as the patron has judged proper, the decision of the patron will not be valid, unless the freedman has thought it fair.’
While it was possible for this interpretation of an oath to be introduced by the Roman law, it is not in harmony with the simple meaning of the words viewed by themselves. Nevertheless this remains true, that an arbitrator can be chosen in either of two ways. Either he is charged with the task of reconciliation only, as we read that the Athenians were when selected as arbitrators between the Rhodians and Demetrius; or he serves as one whose decision must be absolutely obeyed. It is the latter class with which we are here dealing, and of which we said something above, when we spoke of the methods of avoiding war.
2. Although municipal law may make provision for arbitrators to whom resort is had under promises on both sides, and in some places has provided that it shall be lawful to appeal from them and to make complaint of injustice, nevertheless such a procedure cannot become applicable in relation to kings and peoples.’
For here there is no higher power, which can either hold fast or loosen the bond of the promise. Under such conditions, therefore, the decision of arbitrators, whether just or unjust, must stand absolutely, so that one may rightly apply here the saying of Pliny: ‘Each makes the man whom he chooses the supreme judge of his case.’ It is, in fact, one thing to make inquiry concerning the duty of the arbitrator, and another to inquire concerning the obligation of those who promise.
XLVII. In case of doubt it is understood that arbitrators are bound to decide according to law.
1. In respect to the duty of an arbitrator, the point must be considered, whether he has been chosen in the place of a judge, or with somewhat larger powers. Seneca seems to think the latter characteristic of an arbitrator, when he says:
The condition of a good case seems to be better if it is referred to a judge rather than to an arbitrator; for the rules of law apply to the former and set certain limits, which he may not pass. In the case of the arbitrator, a religious scrupulousness, free and unchecked by restraints, can both take away and add to, and direct the decision not as the law or justice advises, but as humanity and pity move.
Aristotle also says that ‘it is the part of a fair and kindly man to prefer to have recourse to an arbitrator rather than to go to law ‘; and he adds as the reason, ‘ For the arbitrator has regard to what is fair, but the judge follows the law. Indeed the arbitrator was brought into existence for this very purpose, that equity might prevail.’
2. In the passage just quoted equity does not properly mean, as elsewhere, that division of justice which interprets more narrowly the general import of law according to the intention of the lawgiver, for such interpretation has been committed to the judge also; rather it means everything which is better done than left undone, even outside of the rules of justice properly so called.
Such arbitrators, however, as are common between private persons and citizens of the same country are especially recommended also to Christians by the Apostle Paul (2 Corinthians 6). Yet in a case of doubt it ought not to be understood that so great power has been granted; in doubtful cases, in fact, we follow the narrowest interpretation. But this statement is especially in point in respect to those who hold sovereign power; for since they have no common judge, we must consider that they have restricted the arbitrator by those rules by which the office of a judge is usually restricted.
XLVIII. Arbitrators ought not to decide concerning possession.
Nevertheless this observation should be made, that arbitrators chosen by peoples or by sovereigns ought to render a decision regarding the main point at issue, but not in regard to possession. For decisions regarding possessions belong to municipal law; by the law of nations the right of possession follows ownership. Consequently, while the case is under advisement, no change ought to be made, not only to avoid prejudice, but also because recovery is difficult. In his account of those who served as arbitrators between Carthage and Masinissa, Livy says: ‘The commissioners made no change in the right of possession.’
XLIX. What is the force of surrender pure and simple?
1. The acceptance of an arbitrator is of a different sort when any one entrusts the decision regarding himself to an enemy; for this is pure surrender, which makes the one who surrenders a subject, and confers the sovereign power on him to whom the surrender is made. The Greeks call this ‘yielding the power over oneself.’ So we read that the Aetolians were asked in the senate, whether they would leave the decision regarding themselves to the Roman people. According to Appian the advice of Publius Cornelius Lentulus in regard to the Carthaginian state at the end of the Second Punic war was as follows:
Let the Carthaginians entrust themselves to our decision, as conquered peoples are accustomed to do, and as many have done heretofore. We shall then look into the matter, and if we shall have granted anything to them they will be grateful to us; for they will not be able to call it a treaty.
That, furthermore, makes a very great difference. So long as we make treaties with them they will always be finding pretexts, as if wronged in respect to some point of the treaty, in order that they may break it. For openings for controversy always remained, since many points are of doubtful interpretation. But when we have taken away their arms from them as having surrendered, and have brought their very persons under our power, then at length they will understand that they have nothing that is their own; then they will lose heart, and whatever they may have received from us they will gladly accept as if bestowed from another’s bounty.
2. But here we ought also to distinguish what the conquered ought to endure; again, what the victor can do lawfully, what even in conformity with the full discharge of duty, and finally, what it is most fitting for him to do.
After the surrender there is nothing that the vanquished may not have to suffer. He is, in truth, already a subject; and, if we consider only the strictly legal rights of war, he is in such a position that everything can be taken from him. his life, his personal liberty, and the property not only of the state but also of individuals.
In another passage Livy says: ‘The Aetolians, having surrendered at discretion, were afraid that vengeance would be wreaked upon their persons.’ Elsewhere I have cited the following: ‘When all things have been surrendered to him who is the more powerful in arms, it is for the victor to judge, and to decide, what he wishes the conquered to have, what he wishes them to give up by way of punishment.’ The following statement of Livy bears upon the same point
It was an ancient custom of the Romans not to assume sovereignty over a people as conquered-a people with which they were not united in friendship either by treaty or by common laws-until all things, divine and human, had been surrendered, hostages had been accepted, arms taken away, and garrisons placed in the cities.
Also we have shown that the putting to death of those who had surrendered was sometimes lawful.
L. What is the duty of the victor toward those who make an unconditional surrender?
1. But in order that the victor may not do anything unjustly he ought first to see to it that he kill no one, unless this fate is deserved by the prisoner’s own act; again, that he take nothing from any one except as a lawful penalty. Moreover within this limit,’ so far as one’s own safety allows, it is always the part of honor to incline to clemency and generosity; sometimes, in consideration of the circumstances, such a course is even made necessary by the rule of custom.
2. As I have said elsewhere, wars are well ended when they terminate with pardoning. According to Diodorus, Nicolaus of Syracuse says: ‘They surrendered themselves with their arms, relying on the clemency of the victor. Therefore it would be shameful for them to be deceived in their expectation of humane treatment on our part.’ Afterward he adds: ‘Who of the Greeks ever thought that those ought to be punished relentlessly who entrusted themselves to the clemency of the victor? ‘
In Appian Octavius Caesar, addressing Lucius Antony, who had come in order to surrender, says:
If you had come to make a treaty, you would have found me both a conqueror and a man incensed by wrong-doing. Now, since you yield yourself, your friends, and your army to my decision, you take away my anger, you take away also that power which you would have been forced to yield to me in a treaty. For now I am obliged to take into account, along with what you ought to suffer, also a second consideration, what it is right for me to do; and I shall give preference to the latter.
3. In the Roman histories the expression ‘ to surrender oneself to the good faith,’ or ‘ to surrender oneself to the good faith and clemency,’ is often found. So in Livy, Book XXXVII: ‘In a kindly manner he listened to the embassies from neighboring peoples surrendering their states to his good faith.’ Also in Book XLIV, where the narrative concerns King Perseus, we read: ‘Since Paulus was insisting that he should surrender himself and his possessions to the good faith and clemency of the Roman people.’ Still the fact should be recognized that by these words nothing else is understood than absolute surrender; and the word translated good faith in these passages does not suggest anything else than the probity of the victor, to which the vanquished commits himself.
4. In Polybius and Livy there is a famous story about Phanaeas, the ambassador of the Aetolians, who in his speech to the consul Manius yielded as far as to say: ‘Therefore the Aetolians have resolved to surrender themselves and their possessions,’ as Livy states, ‘to the good faith of the Roman people.’ In response to a question of the consul, he affirmed this a second time; then the consul demanded that certain persons who had stirred up the war should be surrendered to him without delay. Phanaeas took exception to this and said: ‘We have surrendered ourselves to your good faith, and not to slavery,’ adding that what was ordered was not consistent with Greek custom. The consul replied that he did not care what the custom of the Greeks was; that according to Roman custom he had power over those who had surrendered to his discretion; and he gave orders that the ambassadors be put in chains. In the Greek author is the question: ‘Are you here discussing duty and propriety, when you have already surrendered yourselves to our good faith? ‘
From these words it is clear with how great impunity, and without violating the law of nations, he can act to whose good faith a people has surrendered. Yet the Roman consul did not take advantage of this power, but both dismissed the ambassadors and gave to the council of the Aetolians an opportunity of deliberating anew.
Similarly the Romans are said to have replied to the Faliscans, that they had been given to understand that the Faliscans had surrendered themselves not to the power, but to the good faith of the Romans. We read also of the Campanians, that they had come into the good faith of the Romans not by treaty, but by surrender.
5. You would, in truth, not ineptly apply to the duty of him to whom a surrender has been made this passage of Seneca ‘Clemency possesses unlimited right of decision. It judges not according to the letter of the law, but according to what is just and good; and it may acquit, or assign a penalty as great as it will.’ And I do not think that it makes any difference whether the one who surrenders says that he surrenders himself to the wisdom, or to the moderation, or to the mercifulness of the victor. All these words are merely gracious expressions. The fact remains, that the victor becomes absolute master.
LI. Concerning conditional surrender.
Nevertheless there are also conditional surrenders. These either safeguard the interests of individuals, that the safety of their lives, or the freedom of their persons, or even certain property may be reserved; or they make provision for the whole body of the people. Such surrenders in some cases may even introduce a sort of mixed sovereignty, as I have explained elsewhere.
LII. Who can, and should, be given as hostages?
Hostages and pledges are accessories of treaties. I have said that hostages are given either of their own will, or by him who holds the power and authority. For in the supreme civil authority is included the right over the acts as well as over the property of the subjects. But the state or its ruler will be obligated to compensate the person who suffers, or his relatives, for the inconvenience.
If there should be several persons, and it should make no difference to the state which of these should go as a hostage, it seems clear that pains should be taken to have the choice settled by lot.
The lord of a fief does not possess the right to select a vassal as a hostage unless the vassal is also a subject. For the fealty and duty, which the vassal owes, do not go so far.
LIII. What the right over hostages is.
I have said that according to the strict law of nations a hostage can be put to death; but that is not also in accord with moral justice, unless there is a fault on the part of the hostage meriting such punishment. Hostages, moreover, do not become slaves. Furthermore, by the law of nations they can both hold property and leave it to their heirs; although the Roman law provided that their property should go to the state treasury.
LIV. Whether a hostage may lawfully escape.
Is the question raised whether a hostage may lawfully make his escape? It is agreed that he may not, if at the beginning, or afterward, he gave a pledge, in order that he might have more liberty. Under other conditions it seems to have been the intention of the state not to bind its citizen not to try to escape, but to give to the enemy the power to guard him as it might wish.
Thus the deed of Cloelia can be defended. But, although she had not herself done wrong, yet the state could not receive and retain the hostage.’ So Porsenna said: ‘ If the hostage is not surrendered, the treaty will be considered as broken’; then we read ‘The Romans restored the pledge of peace in accordance with the treaty.’
LV. Whether a hostage may be lawfully detained for any other reason.
The obligation arising from the use of hostages, moreover, is distasteful, not only because it infringes liberty, but also because it arises from the act of another. Consequently, a narrow interpretation is here in point. Hence it follows that hostages given on one account cannot be detained on another. This is to be understood as applying in case some other promise has been made without the addition of hostages.
If, however, good faith has already been violated in another matter, or a debt contracted, the hostage can then be retained, not as a hostage, but in accordance with the law of nations, according to which subjects can be detained ‘by reprisal’ (kat androlhyian) on account of an act of their rulers. Nevertheless provision may be made that this should not happen, by adding an agreement regarding the return of the hostages when the matter on account of which they were given has been closed up.
LVI. A hostage is set free at the death of the one for whom he came as hostage.
One who has been given as a hostage, merely to take the place of a captive or hostage, is set free at the death of the latter. For Ulpian says that at the moment the latter dies the right of pledge is destroyed, as in the case of a ransomed captive. Therefore, as in Ulpian’s inquiry the ransom, which was to take the place of the person, is not due, so here the person who was made the substitute of another will not remain bound.
Thus according to Appian Demetrius not unjustly demanded that he be released by the Roman senate, since he had been given as a hostage in the place of Antiochus, and Antiochus had died. Justin, following Trogus, says: ‘Demetrius, a hostage at Rome, having learned of the death of his brother Antiochus, came before the senate saying ‘ that he had come as a hostage when his brother was living, but, now that his brother was dead, he did not know for whom he was a hostage.’
LVII. Whether a hostage may be retained after the death of the king who gave him.
The decision whether a hostage may still be held after the death of the king who made the treaty is dependent on the question treated by us elsewhere, whether the treaty should be considered personal or real. For accessories cannot cause us to withdraw from the rule in the interpretation of the main articles, the nature of which the accessories themselves ought to follow.
LVIII. Sometimes hostages are under obligation as principals, and one is not bound for the act of the other.
It should be added, in passing, that sometimes hostages are not mere accessories to the obligation, but are in fact the principal party. This would be the case, for example, when any one has promised under contract to perform an act not his own, and because he is bound for the resulting damage, if the act is not performed, his hostages are bound in his place; and I have said elsewhere that this seems to have been the decision regarding the Caudine treaty compact. On the other hand the opinion of those who hold that hostages without their consent can be mutually bound for each other’s acts is not only severe but also unjust.
LIX. Of what sort is the obligation arising from pledges of property?
Pledges of property have certain points in common with hostages, and certain points peculiar to themselves. It is a characteristic common to both, that they are retained even on account of another debt, unless faith has been pledged to the contrary. It is a characteristic peculiar to pledges of property that an agreement made concerning them is not taken as strictly as one concerning hostages. For the matter is not equally distasteful, since things are made to be held, but men are not.
LX. When the right of redemption is lost.
This also I have mentioned elsewhere, that no length of time can bring it about that a pledge of property should not be redeemable, if that is performed for which the pledge was given. For an act, which has an old and familiar cause, is not supposed to arise from a new cause. Thus the patience of the debtor should be ascribed to the old contract, and not to the abandonment of ownership, unless inferences that are warranted suggest another interpretation; as if a person, prevented at the time when he wished to redeem a pledge, had allowed the matter to pass without mention for so long a time that it might warrant the presumption of consent.