The Law of War and Peace (1625)
by Hugo Grotius
On Good Faith During War; Herein Also Concerning a Truce, the Right of Safe-conduct, and the Ransom of Prisoners
I. What a truce is, and whether this interval is to be considered as peace or war.
1. EVEN during a war the sovereign authorities are accustomed to grant certain rights, which, with Virgil and Tacitus, I may call ‘intercourse of war,’ or with Homer, ‘solemn agreements.’ Among these are included the truce, the right of safe-conduct, and the ransom of prisoners.
A truce is an agreement by which warlike acts are for a time abstained from, though the state of war continues. I say, ‘though; the state of war continues,’ for, as Cicero says in the eighth Philippic, there is no middle ground between war and peace. War, further-, more, is the name of a condition which can exist even when it does not carry forward its operations.
Aristotle says: ‘ It may happen that a man may be endowed with virtue, and either sleep or pass his life in inactivity.’ Elsewhere the same author says: ‘Distance between places does not destroy friendship, but hinders the exercise of it.’ Andronicus of Rhodes remarks: ‘An accomplishment may so exist that it accomplishes nothing.’ Eustratius comments thus on the sixth book of the Nicomachean Ethics: ‘Skill considered in relation to power simply is spoken of as potentiality; but if compared with the action itself or its exercise it is called a power, as the surveyor’s art in a sleeping surveyor.’
- Just as Hermogenes, though silent, yet remains
A singer and the best of slayers; and Alphene,
Sly fellow, when his tools of trade were cast
Aside, and closed his shop, was still a cobbler.
2. In like manner, then, as Gellius also says: ‘A truce is not peace, for, though fighting ceases, the war continues.’ Also in the Panegyric of Latinus Pacatus we read: ‘ A truce suspends the acts of war.’ This I say that we may know that, if an agreement has been made which is to be valid in time of war, this will be valid also in a truce, unless it is clearly apparent that the agreement applies not to the state of war but to its acts.
On the contrary, if anything has been said in regard to peace, this will not be applicable in time of truce; although Virgil spoke of a truce as a mediatress of peace, and Servius, on the same passage, as a temporary peace. So the Scholiast on Thucydides calls a truce ‘an ephemeral peace in travail of war’; and Varro, a respite of military operations, lasting a few days. All these are not definitions but descriptions, and that, too, figurative. In the same class also is the characterization of Varro, when he called a truce the vacation of war; he might likewise have called it a slumber of war. Thus Papinius Statius called the holidays, which were free from lawsuits, peace. Aristotle called sleep the chain of the senses, and following his example you may rightly call a truce a chain of war.
3. Gellius rightly criticizes the explanation of Marcus Varro, which Donatus also follows, because Varro added the words ‘lasting for a few days ‘; he shows that truces are frequently given also for hours, and I may add likewise for twenty, thirty, forty, and even for one hundred years. There are examples of such truces in Livy, and they disprove the following definition of Paul the jurist also ‘A truce exists when, for a brief period and for the present time, an agreement is made that the two sides refrain from attacking each other.’
4. Nevertheless, if it shall be apparent that the sole and only determining cause of an agreement was the cessation of warlike acts, it may happen that what has been said of a time of peace will in that case apply during the truce, not from the force of the word, but from a sure inference as to the intention, regarding which we have spoken elsewhere.
II. The derivation of the word.
Moreover, it seems clear that the word induciae (truce) is not, as Gellius thinks, derived from inde uti iam (then as now); nor from endoitu, that is, introgressu (an entering in), as Opilius proposes, but [from inde otium] because inde, that is, ‘ from a certain time,’ there may be otium (rest), just as the Greeks call a truce ekeceiria (a holding of hands).
It is, in fact, apparent, even from Gellius and Opilius, that the ancients wrote this word with the letter t and not c; and, though now used as a plural, it was formerly without doubt also a singular. The old spelling was indoitia, for then they pronounced otium as oitium, from the verb oiti, which we now spell uti, just as from poina (now written poena) punio is derived, and from Poinus (now Poenus) Punicus comes.
Just as from the plural ostia, ostiorum has been derived the singular Ostia, Ostiae, so from indoitia, indoitiorum has come indoitia, indoitiae; hence indutia, the plural of which, as I have said, is now in use. Formerly, as Gellius notes, it was also used in the singular number. Donatus was not far out of the way when he wished to explain induciae from the fact that a truce furnished a rest for some days.
A truce, then, is a period of rest in war, not a peace. And so the historians use the term properly in saying, as they frequently do, that a peace was refused, a truce was granted.
III. A new declaration of war after a truce is not necessary.
In consequence, after a truce there will be no need of a new declaration of war. For when the temporary obstacle is removed the state of war, which was not dead but sleeping, asserts itself, just as the right of ownership and the power of the father assert themselves in a man who has recovered from insanity.
Nevertheless, we read in Livy that, in accordance with the decision of the treaty priests, war was declared upon the termination of a truce. The fact is, however, that the ancient Romans wished by those unnecessary precautions to show how much they loved peace, and how just the causes were by which they were drawn into war. This is implied by Livy himself
They had fought recently near Nomentum and Fidenae with the Veientes. A truce, not a peace, had been made, the limit of which had expired, but before that date of expiration the Veientes had again taken up arms. Nevertheless heralds were sent, but when on oath they demanded restitution, in the manner of our ancestors, their words were not listened to.
IV. How the period of time fixed for a truce ought to be reckoned.
1. The duration of a truce is commonly made either a continuous period, as for one hundred days, or with the designation of a fixed limit, as up to the first of March. In the former case the calculation must be made exact to the minute. This, in fact, is in accord with nature; for the reckoning of time by civil days arises from the laws and customs of peoples. In the other case doubt is generally raised, whether the day, the month, or the year, which has been fixed for the duration of the truce, should be understood as reckoned inclusively or exclusively.
2. By nature, at any rate, there are two kinds of boundaries, one within the thing, as the skin is the boundary of the body, and the second outside of the thing, as a river is the boundary of a country. Boundaries which are fixed according to choice can be established by both methods. But it seems more natural that the boundary, which is a part of the thing,’ should be assumed. Aristotle says ‘That is called the boundary which is the extreme part of each thing.’
Such an assumption, furthermore, is not inconsistent with practice. ‘If any one has said that something will happen before the day of his death, that day also, on which he has died, is counted.’ Spurina warned Caesar of a danger which would not be delayed after the fifteenth of March. When accosted on the fifteenth, he said that the day had come, but had not yet passed . This interpretation, then, is all the more to be adopted when the extension of time contains an advantage in itself, as in the case of a truce, which spares human bloodshed.
3. But the day ‘from’ which a certain measure of time is said to begin will not be included in the measure, for the force of that preposition is to separate, not to unite.
V. When a truce begins to be binding.
Incidentally I may add this, that a truce, and everything else of the kind, is binding on the contracting parties immediately after the agreement is completed. The subjects on both sides, however, begin to be bound as soon as the truce has taken the form of a law, and this requires some sort of publication abroad. As soon as the publication has been made, it begins to have a binding force on the subjects. Nevertheless, if the publication has been made in one place only, that force does not manifest itself at the same moment throughout the whole area under governmental control, but only after a sufficient time for carrying the news to the different places. Therefore if in the meantime subjects have done anything contrary to the truce, while they will not be liable to punishment, the contracting parties will, nevertheless, be bound to make good the loss.
VI. What is lawful during a truce.
1. What is lawful, what is not lawful in a period of truce, may be understood from the very definition. For all acts of war are unlawful, whether against persons or against property, that is, whatever is done by force against the enemy. In a period of truce, in fact, all such acts are contrary to the law of nations; it was thus, according to Livy, that Lucius Aemilius explained the matter in a speech to his soldiers.
2. Even property of the enemy, which has come into our hands by chance, will have to be restored, although it had been ours before. For as regards the legal right, according to which such matters, have to be judged, the property in question has become theirs.
This is what Paul the jurist had in mind when he said that in a time of truce the right of postliminy does not exist; for postliminy requires, as antecedent, the right of capture in war, but this right does not exist in a truce.
3. On both sides it is lawful to go and to return, but with such equipment only as does not suggest peril. This was noted by Servius on the verse of Virgil:
- And with impunity the Latins mingled.
There Servius also relates that when Rome was besieged by Tarquin a truce was made between Porsenna and the Romans; and during the celebration of the Circensian games in the city the leaders of the enemy entered and contended in the chariot race, and were crowned as victors.
VII. Whether during a truce it is lawful to retreat and repair walls, and the like.
It is not inconsistent with a truce to withdraw with the army further inland, as we read in Livy that Philip did. Again, a truce does not prevent the rebuilding of walls, nor the enrolment of soldiers, unless some special agreement has been made.’
VIII. A distinction regarding the seizure of places in time of truce.
1. Without doubt it is a violation of a truce to bribe garrisons of the enemy and seize places which they were holding. Such an: acquisition, in fact, cannot be lawful except by right of war. The same principle must be applied in case subjects wish to revolt to the enemy. There is an example in Livy, Book XLII:
The people of Corona and Haliartus, who had a kind of natural predilection for kings, sent envoys into Macedonia asking for a garrison with which they might be able to defend themselves against the unrestrained arrogance of the Thebans. To this embassy the king made answer, that he could not send a garrison to them on account of his truce, with the Romans.
According to Thucydides, Brasidas in time of truce received the city of Mende, which revolted from Athens to Sparta; but the excuse is added, that he in turn had charges to make against the Athenians.
2. It is indeed lawful to take possession of ownerless property, provided this has been really abandoned, that is, with the intention that it should no longer belong to those to whom it had belonged; but it is not lawful if the property is merely unguarded, whether the guard was removed before the truce was made, or afterward. Continuance of ownership in one renders possession by another unlawful. And by this rule the quibble of Belisarius against the Goths is refuted; for under such a pretext he had seized places which’ had been stripped of their garrisons’ in time of truce.
IX. Whether, at the end of the truce, one can return who has been detained by force majeure.
1. The question is raised, whether a person, who has been hindered by force majeure from returning, and is arrested within the territory of the enemy after the expiration of the truce, has the right to return.
If we consider the strict law of nations, I do not doubt that this person is in the same position as one who, although he had come in time of peace, by his own misfortune is caught among the enemy by a sudden outbreak of war. We have noted above, that such a person remains a captive until the conclusion of peace. Nor is moral justice opposed to this, since the property and acts of the enemy are liable for the debt of the state and are taken in payment. The case in question does not in reality furnish more ground for complaint than that of so many other innocent persons upon whom the misfortunes of war fall.
2. In this connection, moreover, no comparison can be made with merchandise in a case of confiscation, nor with the illustration given by Cicero in the second book On Invention; he there speaks of a war vessel as having been driven into port by a storm, which the quaestor wished to confiscate according to law. In such cases force majeure frees from the penalty. But in the case of the person forcibly detained after a truce it is not, properly speaking, a question of penalty, but of a right, which was suspended during a certain time only. Nevertheless, there is no doubt that the releasing of such a person is a more kindly, yes, also a nobler, act.
X. Of special agreements in truces and the questions wont to arise therefrom.
Certain acts are unlawful during a truce on account of the special nature of the agreement; for example, if a truce has been granted only for the purpose of burying the dead, no deviation from that condition ought to be made. So if a truce has been given to those who are besieged, with the provision merely that they are not to be attacked,’ it will not be lawful to admit auxiliary forces and supplies. For, while such a truce is advantageous to the one side, it ought not to make the situation harder for the other side which granted it.
Sometimes also the agreement is made, that it shall not be lawful to go back and forth. Sometimes, again, provision is made for persons and not for things. In the latter case, if persons are injured while property is being defended, the truce will not be violated. For since it is permissible to defend property, then personal safety must. be referred to the main provisions, and not to what is derived from the consequences of some one provision.
XI. When the terms of a truce have been violated by the one side, the other may begin war.
If the good faith of the truce has been violated by the one party, it should not be doubted that the party injured is free to take up arms even without declaring war. For the main points of the agreement are implied in the manner of a condition in the agreement, as I have said a little above.
In the histories you may indeed find examples of those who have endured wrongs till the end of the truce. But you may also read that war was declared against the Etruscans and others, because they had acted contrary to the truce. This difference is proof that the law is as I say, but that it is at the option of the injured party to use, or not to use, the right which he has.
XII. What if a penalty, in case of violation of the truce, has been added?
This is established, that if the penalty agreed upon is demanded, and is paid by the one who has done the wrong, the right to make war no longer remains. The penalty, in fact, is paid with this in view, that all else may remain in safety. On the contrary, if war is begun, it is necessary to consider that, since the choice was given, the idea of paying the penalty has been abandoned.
XIII. When the acts of private citizens break the truce.
Private acts do not break a truce unless in addition there is a public act, that is, through command or approval.
Private acts are understood to be in accordance with public command or approval if the guilty parties are neither punished nor surrendered, and if restitution is not made.
XIV. What interpretation ought to be put on the right of safe-conduct outside of the. period of truce.
The right of safe-conduct outside of the time of truce is a kind of privilege. In its interpretation, therefore, the rules which are laid down in regard to privileges ought to be followed. This privilege, however, is neither harmful to a third party nor very burdensome to the one who grants it. Consequently, within the natural meaning of the words a loose rather than a strict interpretation ought to be admitted, and so much the more in case the favor has not been granted in response to a request, but has been offered voluntarily; so much the more, also, if a public advantage of some sort is connected with the business outside of private gain. A strict interpretation, therefore, even according to the meaning of the words, ought to be rejected, unless otherwise some absurdity would ensue, or very probable inferences as to intention seem to require it.
On the other hand, a freer interpretation than is afforded by the natural meaning of the words will be in point, in order that a like absurdity may be avoided, or because of very cogent inferences.
XV. Who may be classed under the term combatants.
From what has been said we draw the inference that the right of safe-conduct granted to combatants extends not only to inferior officers but also to officers of the highest rank; for the natural meaning of the word admits of this interpretation, although there is another interpretation that is narrower. Similarly a bishop is included under the term clergy.
Sailors also, who are serving in fleets, are understood to be combatants, and in fact all are who have taken the military oath.
XVI. How, in this connection, we are to understand the terms go, come, and depart.
A provision in regard to going is considered to cover also the return, not from the meaning of the word, but to avoid an absurdity; for a favor ought not to be void of use. And a safe departure should be understood to hold good until the person has reached a place where he is in safety. For this reason the good faith of Alexander’ was under accusation; for he had ordered that those to whom he had granted the right to depart should be killed on the way.
However, a person to whom permission has been granted to depart cannot also return. Again, a person who has received permission to come himself will not be able to send another; and the reverse of this also holds. Such, in fact, are different matters, and in such cases reason does not compel us to go beyond the meaning of the words. Nevertheless, this principle is applicable with the understanding that, though an error confers no right, it at any rate relieves from the penalty, if a penalty formed a part of the agreement.
Also the person who has received permission to come will come only once, and not a second time unless the allocation of time supplies a different interpretation.
XVII. On the extension of this to persons.
The son does not follow his father, nor the wife her husband, otherwise than in accordance with the right of residence. For we are accustomed to live with our family, but to travel abroad without it. Nevertheless it will be understood, even if not expressly stated, that one or two servants are included in the case of a person for whom it would be unbecoming to travel without such attendance. For he who grants a favor grants that which of necessity follows. However, in such cases, necessity must be understood in a moral sense.
XVIII. On the extension of safe-conduct to baggage.
Similarly, not all kinds of goods will be included in the safe-conduct, but only such as are ordinarily taken or. a journey.
XIX. Who are included under the terms attendants and nationality.
If the term attendants is used, those ought not to be understood whose case is more provocative of hatred than that of the one for whom the safe-conduct is arranged. Such are pirates, brigands, deserters, and fugitives. The designated nationality of the attendants indicates clearly enough that the right is not extended to others.
XX. Whether a right of safe-conduct is annulled by the death of the grantor.
Since the right of safe-conduct is derived from the force of authority, in case of doubt it is not annulled by the death of the one who granted it. This is in accordance with the rules which I have stated elsewhere in regard to favors granted by kings and other rulers.
XXI. What if a right of safe-conduct has been granted subject to the pleasure of the grantor?
There is usually a discussion regarding a safe-conduct granted with the restriction, ‘so long as I wish.’
The opinion of those is nearer the truth who think that a favor of this kind continues even if no new act of will occurs; in case of doubt the presumption is that that remains in force which is sufficient for the validity of the right. But the force of the safe-conduct does not continue when the one who granted it has ceased to be able to wish it,’ a condition brought about by death. When in fact the person is removed, the assumption of continuance also will cease, just as the accident ends with the destruction of the substance.
XXII. Whether security outside of the territory also is due.
Moreover, safe-conduct is due to the person to whom it has been granted even outside of the territory of the grantor. For it is granted in derogation of the right of war, which in itself is not confined to a territory, as we have said elsewhere.
XXIII. The favor of ransoming captives.
The ransoming of captives is in large measure an act of favor, especially among Christians, to whom the divine law especially commends this kind of compassion. ‘The ransoming of captives is a great and glorious function of justice,’ says Lactantius. The ransoming of captives, especially from a barbarous enemy, is called by Ambrose a characteristic and supreme generosity. Likewise he defends his own act and that of the Church, because they had broken up even the consecrated vessels of the Church in order to redeem captives. ‘The ransom of captives is the adornment of sacraments,’ he says, and he uses many other expressions to the same effect.
Augustine imitated this act of Ambrose, as Possidius relates [Life of Augustine, xxiv]; he says that this was done against the worldliness on the part of some persons. Deogratias, a bishop in the same Africa, also imitated the act of Ambrose, as Victor of Utica relates, [Victor Vitensis, I. viii].
XXIV. Whether ransom may be forbidden by law is explained with the help of a distinction.
1. These considerations lead me not to venture to approve without discrimination the laws which forbid the ransom of captives, such as existed, we read, among the ancient Romans. Some one said in the Roman Senate, ‘ In no state are captives rated more cheaply than in our own.’ The same state is said by Livy to have had the least consideration for captives, even from early times. There is a familiar ode of Horace which touches on this subject, in which he calls the ransoming of captives disgraceful terms and a precedent dragging ruin with it, a loss added to disgrace.
What Aristotle criticizes in the institutions of Sparta is likewise ordinarily held to be faulty in those of the Romans. As a matter of fact all their energies were directed to matters of war, as if on these alone the safety of the state depended. But if we should only have regard for considerations of humanity it would in many cases be better that a right which is sought in war should be lost, than that a great many men,” our relatives, in fact, or fellow countrymen, should be left in the most pitiable condition.
2. Such a law, therefore, does not seem just, unless the need of such severity is plain, with the purpose in view that greater evils, or the largest possible number of evils, which are otherwise with moral certainty inevitable, may be avoided. In case of such necessity, since the captives themselves, in accordance with the law of love, ought to bear their lot with resignation, the injunction not to set themselves in opposition can be laid upon them and upon others, in accordance with the principles which we have laid down elsewhere in regard to the surrender of a citizen for the public good.
XXV. Can the right to a captive be transferred?
According to our customs, it is true, those who are captured in war are not slaves. Yet I do not doubt that the right to collect; the price of ransom from a captive can be transferred from, the party who holds the captive to another. For nature allows a transfer of ownership, even in things which do not have corporeal existence.
XXVI. A ransom can be owed to several by one person.
Further, the same person can owe a ransom to more than one person if he has been let go by the first and captured by another before the first ransom has been paid. Such, in fact, are different debts, arising from different causes.
XXVII. Whether an agreement can be annulled on the ground that the wealth of the captive was unknown.
An agreement in regard to the amount of ransom cannot be annulled on the ground that the captive is understood to be richer than was believed. By the strict law of nations, which we are investigating, no one is compelled to make good what he has promised in a contract at less than a fair price, if there has been no deception. This can be understood from the explanations previously made concerning contracts.
XXVIII. What goods of the captive belong to the captor.
From what we have said, that captives are not our slaves, it follows that there is no room for the complete acquisition which, as we have said elsewhere, is the essential condition of ownership over the person. No other property, therefore, will be gained by the captor than what he has actually taken.
In consequence, if the captive has something concealed on his person, it will not be acquired, since it has not been taken. Just so Paul the jurist made answer, in opposition to Brutus and Manlius, that a man, who has taken possession of a farm, has not taken into his possession a treasure which he does not know is on the farm; for a person cannot possess what he does not know of. The conclusion from this is that property concealed on the person of a captive can be used in paying the price of the ransom, since ownership has in effect been retained.
XXIX. Whether the heir owes the price of ransom is explained, with the help of a distinction.
1. This question is also commonly raised, whether a ransom agreed upon, but not paid before death, is due from the heir.
The answer seems to me void of difficulty. The ransom is not due if the captive died in prison. There was, in fact, a condition attached to the promise, that the captive should be set free; but a dead man is not set free. On the contrary, if the captive died when at liberty, the ransom is due; for he had already gained that in return for which the ransom had been promised.
2. I admit that obviously the agreement can be made also with different conditions, so that the ransom may be unreservedly due from the very moment of the contract, the captive being retained no longer as a prisoner of war, but as security for himself. On the contrary, the contract can be so drawn up that the payment of the price shall only be made if on the appointed day the captive is alive and free. But these conditions, as being less natural, are not to be assumed without clear proofs.
XXX. Whether a person, who has been released in order to free another, ought to return if the other has died.
Again, the question is proposed for discussion, whether a return to prison is obligatory for a man who has been released under the agreement that he should cause another to be freed, where the other has anticipated release by dying.
I have said elsewhere that the act of a third party, if fairly promised, is satisfactorily performed if nothing on the part of the promisor is omitted, but that in the case of burdensome promises the promisor is obligated only to an equivalent amount. So, in the question under discussion, the one who has been released will not be bound to restore himself to custody; for this was not the agreement, and the presumption in favor of liberty does not allow a tacit agreement to be understood. But the person who has been released ought not to get his freedom as clear profit; he will pay the estimated value of what he cannot furnish.” For this is more in accord with natural simplicity than what the interpreters of the Roman law set forth in an action according to prescribed formulas and on a formal claim for restitution of a thing given for a cause, when the cause did not follow.