Front Page Titles (by Subject) CHAPTER VIII: Of Empire over the Conquered. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER VIII: Of Empire over the Conquered. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
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Of Empire over the Conquered.
I.That Sovereignty, whether in a King, or People, may be acquired by War; and the Effects of such an Acquisition.I. 1. No wonder that he who can bring into Slavery every particular Person of the Enemies Party, that falls into his Hands, (as we have shewn in the preceding Chapter) may1 also impose a Subjection upon the whole Body, whether it be a State, or part of a State; whether that Subjection be merely Civil, merely despotical or mixt. Seneca makes Use of this Argument in the Controversy De Olynthio,2he<609> had been taken by Right of War; he is my Slave by Purchase. It is your Interest, O Athenians, to maintain me in my Rights: Otherwise your Dominion must be confined within its former Bounds, by restoring what you have gained by War. Wherefore Tertullian3 owns, that Empires are gained by Arms, and enlarged by Conquests. So Quintilian,4 Kingdoms, Nations, the Bounds of Cities and Countries are determined by the Right of War. Alexander in Curtius5 says, that Laws are imposed by the Conqueror, and received by the Conquered. A Favourite (of Antiochus) in his Oration to the Romans,6Why do you send every Year your Praetor with the Ensigns of Empire, the Rods and Axes, unto Syracuse, and other Greek Cities in Sicily? Truly you can say nothing else, but that having subdued them by Arms, you impose these Laws upon them. And Ariovistus7 in Caesar’s Commentaries says, that by the Law of Arms the Conqueror may govern the Conquered as he pleases. And again, The Romans govern those whom they have conquered, not after the Prescriptions of others, but according to their own Pleasure.
2. Justin tells us out of Trogus,8 that Princes that made War before Ninus, sought not Empire, but Glory, and being contented with the Victory, did not reduce their Enemies under their Dominion. That Ninus was the first who enlarged the Bounds of his Empire, and subdued other Countries by War, and from him it became a Custom. Bocchus argues in Salust,9That he took up Arms to defend his Kingdom, for that Part of Numidia, from whence he had beaten Jugurtha, was become his own by the Right of War.
3. But Sovereignty may be acquired by Conquest, either so far as it was10 in the King, or another Governor, and then all the Power he had passes to the Conqueror, and no more. Or11 as it is in the People, and then the Conqueror has the same Right to alienate it as the People had, and thus Kingdoms become patrimonial, as I have said elsewhere, B. I. Chap. III. § 11.<610>
II.An Empire may be acquired over the People that is despotical, and then they cease to be a State.II. 1. And yet a Sovereignty may be more absolutely acquired, as that which before was a State may cease to be a State; which may be done, either by adding it to another State, as the Roman Provinces were, or without any such Incorporation, when a King making War1 at his own Charge conquers the People, so as to govern them not for their Profit, but chiefly his own Interest, which is the Character of despotic Power in Opposition to civil Government. Aristotle2 says, There is a Government for the Benefit of the Sovereign, and another for the Advantage of the Subject, the one takes Place among free Men, the other between Masters and Slaves. The People then under this Government, for the future, are not a State, but a Multitude of Slaves; for it was well said of Anaxandrides,3
2. And Tacitus thus opposes civil Government to arbitrary Power. And Xenophon of Agesilaus, ὁπόσας δὲ πόλεις προσαγάγοττο, &c.4Whatsoever Cities be subdued, be excused them from all servile Offices, and required no more Obedience than what a free People pay their Prince.
III.Sometimes a mixt Government is acquired.III. And hence we may understand, what a mixt Sovereignty is between the despotick and the civil, namely, when Slavery is mixt with a kind of personal Liberty. Thus we read some People have their Arms taken away, and that they should use no other1 Instruments of Iron, but what were necessary for Husbandry:2 Others forced to change their Language and Method of living.
IV.That even the incorporeal Things may be acquired by War, where is handled a Question concerning the Thessalian Bond.IV. 1. But as the Goods of every particular Prisoner, by the Right of War, belong to the Captors, so the Goods of the People in general belong to the Conquerors, if they please. For what Livy said of those that surrendered themselves,1When all Things are given up to the Conqueror, it is wholly in his own Power and will to take what he pleases to himself, and to leave them what he has a mind; the same may be said of those conquered in a solemn War. For a Surrender doth but voluntarily yield up, what would otherwise be taken away by Force. So Scaptius in Livy2 says, That the<611> Lands in dispute were Part of the Territory of Corioli, which being taken, by the Right of War, they became then the Romans. And Hannibal in the same Author thus encourages his Soldiers in his Oration before the Battle,3Whatsover the Romans have by so many Victories got, and heaped up, shall, together with themselves the Masters of it, be ours upon the Victory. And thus4Antiochus pretended, that Seleucus having subdued all the Dominions of Lysimachus, those Countries belonged to him (Antiochus) as Conqueror of Seleucus. So all that Mithridates had taken in War, and added to his own Dominion,5Pompey (by beating him) made the Romans.
2. Wherefore even those incorporeal Rights, which belonged to the State, shall become the Conqueror’s, as far as he pleases. So upon the subduing Alba, all the Rights of the Citizens werea claimed by the Romans: Whence it follows, that the Thessalians were entirely discharged from the Obligation of an hundred Talents6 which they owed to the Thebans, when Alexander the Great having conquered the Thebans, had as their Lord by the Right of Conquest forgiven the Debt. Neither is that perfectly true, which Quintilian7 all edges in behalf of the Thebans, that what he takes only belongs to the Conqueror, that the Right which is incorporeal cannot be seized on; that the Condition of an Heir is one Thing, and that of a Conqueror another; because the Right passes to the one, and the Thing to the other: For he that is Master of the Persons, is also of the Things, and of the Rights belonging to them. He that is possessed by another,8 can be in Possession of nothing in his own Name, and when one is under the Power of another,9 he has nothing in his own Power.
3. Yea, tho’ the Conqueror leave to the Conquered Jus Civitatis, the form of a State, yet may he take to himself some Rights that belonged to it. For it is in his Power to limit his own Bounty as he pleases. Caesar imitated Alexander, in forgiving a Debtb to the Dyrrachians, which they owed to some of the contrary Party. But here it may be objected, that the War of Caesar10 was not of the same Kind, concerning which this Law of Nations was instituted.
[1 ]Provided there be on the Side of the Conquered either an express or tacit Consent. And in that Case the Acquisition is deemed lawful, whether the War was just or unjust; as I shall explain below, Chap. XIX. § 11. Note 1. Compare this Place with Pufendorf, B. VII. Chap. VII. § 5. and what Mr. Carmichael, Professor at Glasgow, says in his Notes upon the Abridgment De Officio Hom. & Civ. Lib. II. Cap. X. § 2. and Cap. XVI. § 14. The late Mr. Cocceius, has however maintained, that, in a just War, the Victor acquires an entire Right of Sovereignty over the Vanquished, by the sole Right of Conquest, independently of all Convention, and that, even tho’ the Victor has otherwise obtained all the Satisfaction and Amends he could require. The principal Reason this Doctor makes Use of to prove his Opinion is, that otherwise the Conqueror could not be assured of the peaceable Possession of what he had taken, or forced the Conquered to give him, for his Pretensions; since they might retake it from him by the same Right of War. See the Dissertation, De jure Victoriae diverso a jure Belli, § 23. But an Author of the same Nation, Mr. Freuer [[sic:Treuer, Professor of Politicks and Ethicks at Helmstadt, has refuted this Opinion in his Notes upon Pufendorf, De Offic. Hom. & Civ. Lib. II. Cap. XVI. § 13. The Reason alledged proves only, that the Victor, who has possessed himself of an Enemy’s Country, may command in it, whilst he holds it, and not resign it, till he has good Security, that he shall either obtain, or possess without Hazard, what is necessary for the Satisfaction and Amends he has a Right to exact by the Methods of Force. But the End of a just War does not always demand of itself, that the Conqueror should acquire an absolute and perpetual Right of Sovereignty over the Conquered. It is only a favourable Occasion of obtaining it, and for that Purpose there must always be either an express or tacit Consent of the Conquered; otherwise the State of War still subsisting, as is granted; the Sovereignty of the Victor has no other Title, but that of Force, and continues no longer than the conquered People are in capable of throwing off the Yoke. All that can be said is, that the neutral Powers, as being such, may and ought to look upon the Conqueror, as the lawful Possessor of the Sovereignty, even tho’ they should believe the War unjust on his Side; and that without the Necessity of supposing here, with our Author, an arbitrary Law of Nations.]]
[2. ]Servus, inquit, est meus, quem ego emi belli jure; vobis Athenienses, expedit: Alioquin imperium vestrum in antiquos fines redigitur, quidquid est bello partum, et est contra. At ille, &c. Controvers. Lib. V. Contr. XXXIV. p. 390. Edit. Gron. Major. Tho’ the Sense of this Passage is sufficiently clear, the Words are however corrupted, as the learned Commentator John Schulting remarks, who conjectures with Probability enough, that it ought to be read: Servus, inquit, est meus, quem ego emi belli jure. Id tueri vobis, Athenienses, expedit: Alioquin—redigitur; quidquid est bello partum perdetis. Contra ait: Ille, &c. It seems to me only that after belli jure, captum ought to be read, or some Term of the same Sense, as I have expressed it in my Translation; for it is not by the Right of War, that the Painter bought the Slave; but the Validity of the Purchase was founded upon the Seller’s possessing the Slave by the Right of War. For the Rest, the reasoning contained in those Words amounts to that of our Author, by the Reason of Contraries. For the Painter means, if Prisoners of War are not lawfully acquired by those who take them, neither can a Conqueror lawfully become Master of a People by the Right of Conquest.
[3. ]Ni fallor enim, omne Regnum, vel Imperium, bellis quaeritur, & victoriis propagatur. Apologetic. Cap. XXV.
[4. ]Sed hinc aspera & vehemens quaestio exoritur de jure Belli, dicentibus Thessalis, hoc regna populos fines gentium atque urbium contineri. Instit. Orat. Lib. V. Cap. X. p. 431. Edit. Burman.
[5. ]Leges autem a victoribus dici, accepi a victis, Lib. IV. Cap. V. Num. 7.
[6. ]Cur Syracusas, &c. Lib. XXXV. Cap. XVI. Num. 3.
[7. ]Ad haec Ariovistus respondit, &c. De Bell. Gall. Lib. I. Cap. XXXVI.
[8. ]Fines imperii tueri magis, &c. Lib. I. Cap. I. Num. 3. & seqq.
[9. ]Se non hostili animo, &c. De Bell. Jugurth. Cap. CX. p. 506. Edit. Wass.
[10. ]Alexander the Great after the Battle of Gaugamela (otherwise called the Battle of Arbela) was saluted King of Asta.Plutarch, in Vit. Alex. p. 685. B. Vol. II. Edit. Wech.
[11. ]The Persians, as the same Menander, cited in the foregoing Note relates, maintained, that the Territory of the City of Daros belonged to them, because they had conquered that City: Belisarius, after having defeated the Vandals, insisted that the City of Lilybaeum in Sicily should become dependent upon the Roman Empire, because the Goths had given it to the Vandals: But the Goths denied their having given it to them, as we find in Procopius, Vandalic. Lib. II. (Cap. V.) Henry the Son of the Emperor Frederick Barberossa, after having taken Sicily, claimed also the Cities of Epidamnum, Thessalonica, and other Places possessed by the Sicilians:Nicetas, Lib. I. De Alexio Isaaci fratre, (Cap. IX.) Bajan, Chagan (or Prince) of the Avari, told the Emperor, that the City of Sirmium was his, because it had belonged to the Gepidae, whom the Avari had conquered. Menander, Protector, (Cap. III. Legat. Justin. Justinian & Tiber.) Peter, Justinian’s Embassador, told Chosroez, King of Persia, that he who is Master of the Principal, ought to be so of the Accessory; and that therefore Suania was conquered with the Lazi, as the Suanians and Lazians agree that the latter had formerly been in Subjection to the former. Apud eundem, (Chap. III.) See above, § 4. Grotius.
[1 ]See above, B. I. Chap. III. § 12. Num. 2.
[2. ]Politic. Lib. VII. Cap. XIV. p. 442. D.
[3. ](In Anchis. Excerpt. Vett. Comic. & Frag. p. 639.) Tacitus says: Addiditque praecepta [Claudius Caesar]—ut non dominationem & servos, sed rectorem & cives cogitaret. Annal. Lib. XI. (Cap. XII. Num. 2.) Grotius.
[4. ]De Agesil. (Chap. I. § 22. Edit. Oxon.) Grotius.
[1 ]This in a Treaty of Peace granted by Porsenna, King of Etruria, to the Romans, after they had expelled their Kings, there was an express Clause, that the Romans should not have any Instruments of Iron, but for the Uses of Agriculture. In foedere, quod, expulsis regibus, &c.Pliny, Hist. Natur. Lib. XXXIV. Cap. XIV. Our Author quotes this Example himself in a Note upon the first Book of Samuel, Chap. XIII. Ver. 19. where he thinks a like Method is spoke of, which the Philistines used for disarming the Israelites. But it seems probable, that it was in a different Manner; the Reader may see Mr. Le Clerc’s Commentary upon it. The Roman Historians have passed over in silence this Circumstance of the Treaty between Porsenna and the Romans, as shameful to a People, who were afterwards Masters of the World; as our Author observes in the same Place. To this maybe added a Note of Freinshemius upon Florus, Lib. I. Cap. X. Num. 2.
[2. ]The learned Gronovius introduces here very properly the Example of the Lydians, from whom Cyrus, after having conquered them, took away their Arms and Horses, obliging them at the same Time to frequent Taverns, Places of Diversion, and bawdy Houses: Quibus [Lydis] iterum victis, arma & equi ademti, jussique cauponias & ludicras artes, & lenocinia exercere.Justin. Lib. I. Cap. VII. Num. 12. See Mr. Bernegger’s Note upon this Passage, who adds other Examples.
[1 ]See above, B. I. Cap. III. § 8. and B. II. Cap. V. § 31. and in this B. Cap. V. § 2. and afterwards, Cap. XX. § 49. Add also the Extracts of Polybius, Legat. CXLII. they that yield themselves to the Romans, do first give up their Country and the Cities therein, besides all the Men and Women that are in the Country or the Cities. Also all the Rivers and Ports, and in general all Things Sacred and Religious: So that the Romans become Lords of all, and those that surrender themselves have nothing that they can call their own. See what has been said above, B. I. Cap. IV. § 7. Justin, B. XXXV. speaking of the Jews, says, afterward, with the Persians they fell into the Power of Alexander the Great.Grotius.
[2. ]Agrum, de quo ambigitur, &c. Lib. III. Cap. LXXI. Num. 6.
[3. ]Quidquid Romani tot triumphis. &c. Idem, Lib. XXI. Cap. XLIII. Num. 6.
[4. ]Quo [Lysimacho] victo, quum omnia, &c.Livy, Lib. XXXIII. Cap. XL.
[5. ]See Strabo, Geograph. Lib. XII. (p. 815. Edit. Amstel. 541. Paris.)
[a ]Dion. Hal. l. 3. c. 31.
[6. ]See Pufendorf, Law of Nature and Nations, B. VIII. Chap. VI. § 20. and what our Author says in the following Chapter, § 9. Num. 2. Mr. Carmichael, Professor at Glasgow, says in his Notes upon the Abridgment De Officio Homin. & Civis, Lib. II. Cap. XVI. § 14. that the Advantage of the Discharge, in the Case under Consideration, can hardly be extended to beneficent Contracts, or such as have been entered into solely for the Debtor’s Benefit. So that it does not suffice, according to this Author, that the Conqueror discharges those of such a Debt owed to the Conquered. But if the Neutrality, which dispenses with the Debtor’s examining into the Justice of the War and of the Conquest, lays him under the Obligation of paying the Conqueror, and thereby discharges him with regard to the Creditor, to whose Rights the Conqueror is deemed to succeed: I do not see why the same Thing should not take Place in the Case of a Donation, or an Acceptilation. What Generosity or Humanity requires is foreign to the Question: But as to Right, properly so called, that is certainly the same in both Cases.
[7. ]Tum secundo gradu, &c. Institit. Orat. Lib. V. Cap. X. p. 432. Edit. Burman.
[8. ]Qui in servitute est, usucapere non potest, nam, quum possideatur, possidere non videtur. Digest, Lib. L. Tit. XVII. De diversis Reg. Juris, Leg. CXVIII.
[9. ]In sua enim potestate non videtur habere, qui non est suae potestatis, Lib. XLVIII. Tit. V. Ad Leg. Jul. de Adulteriis coercendis, Leg. XXI.
[b ]Cicer. Epist. ad Brut. VI.
[10. ]Antony commanded the Tyrians to restore what they held belonging to the Jews, not granted by the Senate, and possessed before the War of Cassius, as Josephus relates. See also Bizar. Genuens. Histor. Lib. X. Grotius.