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CHAPTER X: Advice concerning Things done in an unjust War. - 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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Advice concerning Things done in an unjust War.
I.In what Sense Honour and Conscience may be said to forbid what Law permits.I. 1. I must now reflect, and take away from those that make War almost all the Rights, which I may seem to have granted them; which yet in Reality I have not. For when I first undertook to explain this Part of the Law of Nations, I then declared, that many Things are said to be of Right and lawful, because they escape Punishment, and partly because Courts of Justice have given them their Authority, tho’ they are contrary to the Rules, either of Justice properly so called, or of other Vertues, or at least those, who abstain from such Things, act in a manner more honest and more commendable in the Opinion of good Men.
2. Seneca in his Troas1 makes Pyrrhus speak thus,
By Honour we are here to understand, not so much the Consideration of other Men, and the Care of our own Reputation; as a respect for Equity and Justice, at least a constant Adherence to that which is most just and most honest; so we read in Justinian’s2 Institutions, Feoffments of Trust so called, because they are secured by no Bond of Law, but only the Honour of the Person entrusted. So in Quintilian3 the Father, the reditor cannot (Salvo pudore) with Honour demand his Debt of the Security, but when he cannot get it from the prime Debtor. And in this Sense we often see, Justitia and Pudor, Justice and Honour, joined together.
Hesiod. Oper. & Dior. Ver. 192, 193.
Plato in his 12th Book of Laws,5 παρθένος γὰρ αἰδον̂ς δίκη λέγεταί τε καὶ ὄντως εἴρηται, or rather πάρεδρος. That the Sense may be, Justice is called the Companion of Honour, and that with Reason. And in another Place the same Plato tells us,6 θεὸς, &c. God being solicitous for Mankind, lest they should be entirely destroyed, bestowed upon Men Honour and Justice, the Ornaments of States, and the Bonds of Friendship.7Plutarch in like manner calls δίκην Justice, ἔνοικον αἰδον̂ς, the Cohabitant of Honour; and in another Place he joins αἰδω̂ & δικαιοσύνην, Honour and Justice, together. In Dionysius Halicarnassensis8 are named together, αἰδὼς, κόσμος, καὶ δίκη, Honour, Modesty and Justice. So Josephus9 couples together, αἰδω and ἐπιείκειαν, Honour and Equity. Paulus10 the Lawyer unites natural Right and Honour. But Cicero11 thus distinguishes between Justice and Honour. Justice (says he) teaches not to hurt our Neighbour, Honour not to offend him.
3. With the Verse before quoted of Seneca, agrees that Expression of the same Author in his philosophical Writings.12How small a Matter is it, to be a good Man, only so far as the Laws require? How much larger is the Rule of Duty than of Right? How many Things does natural Affection, Humanity, Liberality, Justice and Faith demand? Which are all beyond the reach of the civil Laws. Where one may see he puts a Difference between Jus, and Justitia, Right and Justice. He means by Right, that which is actionable in Courts of Judicature. The same Seneca excellently explains this in another Place, by the Example of a Master’s Right over his Slaves.13As to our bond Servants we must consider, not what we may without Danger of the Law put upon them, but what the Nature of Equity and Honesty would allow, which obliges us to be merciful to our Prisoners, and those purchased with our own Money. Further, Indeed every Thing is lawful with regard to a Slave,<628> considered as such: But there are some Things which are not lawful with regard to a Slave, considered as a Man, according to the common Right of Animals. In which Place we may observe the double Meaning of the Word lawful, the one being taken for that which is really lawful in itself, the other for that which is only lawful externally.
II.This applied to what is allowed by the Law of Nations.II. 1. To the same Intent is the Distinction of Marcellus in the Roman Senate,1Not what I have done is here to be debated, since the Right of War justifies whatsoever I have done against the Enemies, but what they ought to have suffered, viz. in Reason and Equity. Aristotle disputing the Point, whether Slavery arising from War may be esteemed just, hints at this Distinction.2Some having in View a Sort of Right, that is, the Law which is certainly3something just, maintain that Captivity in War is just, but they do not say it is absolutely just, because it may so happen that the War may proceed from an unjust Cause. Agreeable to this is that of Thucydides4 in the Oration of the Thebans, For those ye killed in Fight, it is not so much a Grievance to us, what they suffered was by a Kind of Right.
2. So also the Roman Lawyers themselves, what they often call the5 Right of Captivity, in another Place call an Injury, and oppose it to natural Equity; and Seneca6 says the Name of a Slave arose from Injustice, having a respect to what often happens. The Italians also in Livy,7 retaining what they had taken from the Syracusians in War, are called obstinate in keeping what they had unjustly gotten. Dion Prusaeensis having declared, that when Prisoners return Home, they recover their Liberty, adds this,8 ὡς ἀδίκως δουλεύοντας, As being unjustly enslaved.
3.9Lactantius speaking of the Philosophers says, When they dispute of Duties relating to military Affairs, they reason not according to the Principles of Justice and true Vertue, but adapt their Precepts to the common Practice and Customs of civil Life. He says afterwards, that the Romans10 acted unjustly by Law.
III.What is done in an unjust War is unjust in itself.III. We then first declare, if the Cause of the War be unjust, tho’ it be undertaken in a solemn Manner, yet all the Acts of Hostility done in it are unjust in themselves. So that they who knowingly do these Acts, or join in the acting of them, Are to be accounted in the Number of those, who without Repentance cannot enter into the Kingdom of Heaven, 1 Cor. vi. 10. But true Repentance, if Opportunity and Ability will allow, absolutely requires1 that he who has done any Da-<629>mage, either by killing, ravaging or plundering, should make full Restitution. Therefore GOD himself declares their2 Fasts to be unacceptable to him, who detained their Captives unjustly taken. And the King of Nineve, (Jonah iii. 8.) proclaiming a Fast to his Subjects, commands them all to restore what they had taken by Rapine; acknowledging, by the Guide of natural Reason, that all Repentance without such a Restitution would be but pretended, and to no Purpose. And not only the3Jews and Christians are of this Opinion, but even theaMahometans themselves.
IV.Who are hereby obliged to make Restitution, and how far.IV. But the Authors of War, whether by their Authority, or Counsel, are obliged to make this Restitution, according to what we have declared in generala elsewhere, for all those Damages which are the usual Consequences of War; and for what are unusual, if they either contributed to them by Command or Advice, or not prevented them, if it was in their Power to have done it. Thus are Generals and Officers also obliged to do, in Relation to those Things which have been committed by those under their Command. The Soldiers, who have concurred in an Act of Hostility committed in common, as the burning of a Town, are each responsible for1 the whole Damage. But if the Damage has been caused by the distinct Acts of several, each shall be answerable for the Mischief, of which he has been the sole or partial Cause.
V.Whether Things taken in an unjust War, are to be restored by the Captor.V. 1. Neither can I allow the Exception, which some make of those that serve under others, that they are only responsible for the Damage, when there is on their Part1 some Fault accompanied with Fraud. For the bare Fault, without bad Intention, is sufficient to engage to a Restitution. There are some who seem to think, that Things taken in a War, tho’ its Cause were really unjust, are not to be returned; because both Sides, when they engaged in the War, were supposed to have granted them to the Captors. But it cannot be easily presumed, that any Man will rashly part with his Right, and War in itself is far different from the Nature of Contracts. But that neutral Nations might know what to do, and might not be forced into a War against their Wills, it was judged sufficient to introduce this external Right of Property, (which we have mentioned before) which may be agreeable with the internal Obligation to Restitution. And indeed those very Authors seem to allow as much concerning the Right over Prisoners of War. Wherefore the Samnites in Livy2 say, We have restored the plundered Goods of our Enemies, which by the Law of Arms seemed to be ours; seemed only, he saith, because that War was unjust, as the Samnites had before acknowledged.<630>
2. Not much unlike this, a certain Power arises from the Law3 of Nations in a Contract made without Fraud, wherein there is an Inequality, to force the Contracter to perform his Contract; Nevertheless he that stipulates more than his Due, is obliged in Honesty and Conscience to reduce it to a fair and just Equality.
VI.Whether by him also that detains.VI. 1. But further, tho’ a Man has not done the Damage himself, or if he did it without any Fault of his,a but yet keeps in his Possession1 a Thing taken away by another in an unjust War, he is obliged to restore it; because there can be no Reason produced naturally just, why the other should be deprived of it. There is neither a Consent on his Part, nor an Occasion of Punishment, nor a Compensation to make. Not unlike to this is that of Valerius Maximus.2The People of Rome, saith he, when P. Claudius publickly sold some Camerine Prisoners taken in the War, when he was General, tho’ they found their Treasury filled with the Money, and the Borders of the Empire enlarged, yet because they were not fully convinced of the Justice of that Expedition, they with utmost Diligence having sought out the Prisoners, redeemed them, and restored them their Lands. Thus by the Decree of the Romans, even their publick Liberty was restored to the3Phocians, and also their Lands, which had been taken from them: And afterwards the4Ligurians, who had been sold by M. Pompilius, (their Ransom being paid to the Purchasers) were restored to their Liberty, and their Goods carefully returned. The Senate5 decreed the same in favour of the Abderites, adding this Reason for it, because the War made upon them was unjust.
2. Yet may the present Possessor, whatsoever Charge or Pains he has been at, lawfully deduct as much, as the Proprietor would willingly have expended to have recovered his endangered Possession, according to the Principles we have before laid down. But if the Possessor of it, without any Fault of his, has either wasted or alienated it, he shall not be obliged to refund, further than he shall be thought to have been made richer by it.
[1 ]Ver. 333, 334.
[2. ]Sciendum itaque est, &c. Instit. Lib. II. Tit. XXIII. De Fideicommissari is hereditat. § 1.
[3. ]Non enim aliter, &c. Declamat. CCLXXIII.
[4. ]Speaking of the Reign of Saturn.Ovid. Fast. Lib. I. Ver. 249. & seqq.
[5. ]De Legib. p. 943. E. Vol. II.
[6. ]In Protagor. (p. 322. C. Vol. I. Edit. H. Steph.)
[7. ]Ad princip. in erudit. (p. 781. Vol. II. Edit. Wech.)
[8. ]Antiq. Roman. Lib. VI. (Cap. XXXVI. p. 354. Edit. Oxon. 369. Sylb.)
[9. ]Antiq. Jud. Lib. XIII. Cap. XIX. (p. 456. A.)
[10. ]In speaking of Marriages, wherein Modesty, properly so called is intended: The Lawyer says, that it is contrary to the Rules of this natural Modesty, and in Consequence to the Law of Nature, to marry one’s own Daughter: In contrahendis matrimoniis, Naturale jus & Pudor inspiciendus est. Contra pudorem est autem, filiam uxorem ducere. Digest, Lib. XXIII. Tit. II. De ritu Nuptiarum, Leg. XIV. § 2.
[11. ]Honour, in general, is not meant here, according to the Idea, which our Author, after the Antients, affixes to the Word Pudor, I mean, a constant Adherence to the Rules of Honesty and Virtue. Cicero speaks of that Virtue, which consists in the Observation of the Rules of Decorum:Justitiaepartes non violare homines,Verecundiae, non offendere. De Offic. Lib. I. Cap. XXVIII.
[12. ]Ut hoc ita sit, quam angusta innocentia, &c. De Ira, Lib. II. Cap. XXVII. That Philosopher observes elsewhere, that there are many Things, for which there is no Law nor any Action to be brought, that however the Rules of Commerce in human Society require, which are superior to all written Laws: Multa legem non habent, nec actionem, ad quae consuetudo vitae humanae, lege omni valentior dat aditum. De Benefic. Lib. V. Cap. XXI. Cicero maintains, that the Laws redress Wrongs, in a different manner from that in which the Philosophers correct them. The Laws confine themselves to what is more gross and palpable; the Philosophers cut off every Thing, as far as the Light of an attentive and penetrating Reason extends: Sed aliter Leges aliter philosophi tollunt astutias: Leges quatenus manu tenere possunt: Philosophi, quatenus ratione & intelligentia. De Offic. Lib. III. Cap. XVII. See a Passage in Quintilian, Instit. Orat. Lib. III. Cap. VI. which has been cited above in the fourth Chapter of this Book, § 2. Num. 2. Grotius.
[13. ]Et in mancipio cogitandum, &c. Lib. I. De Clementia, Cap. XVIII. We might believe from what the Philosopher calls in the End of this Passage, commune jus animantium, that according to the Stoicks, there was a Right really and properly common to Men and Beasts. But see what I have said upon Pufendorf, Law of Nature and Nations, B. II. Chap. III. § 2. Note 2. and § 3. Note 10. of the second Edition.
[1 ]Sed non, quid ego fecerim in disquisitionem venit, quem, quidquid in hostibus feci, jus belli defendit, sed quid isti parti debuerint.Livy, Lib. XXVI. Cap. XXXI. Num. 2. So our Author cites this Passage. But the Words quem, quidquid in hostibus feci, jus belli defendit, which he cites also above, Chap. IV. of this Book, § 5. Note 3. are not in the Manuscript, and Gronovius had Reason for omitting them in his Edition, which has only, in dis quisitionemvenit, quamquidisti. See that learned Critick’s Note. He might have observed, that this Gloss crept in probably from the following Words, which are a little lower in the Text, and which I have substituted in the Note referred to: Quae autem singulis victor aut ademi, aut dedi, quum belli jure, tum ex cujusque merito, scio me fecisse.
[2. ]Politic. Lib. I. Cap. VI. p. 302. A. Vol. II. Edit. Paris. See Giphanius’s Commentary upon it.
[3. ]Seneca says, that some acquire a Right to Lands belonging to other People by Arms: Alii armis sibi jus in aliena terra fecerunt. Consolat. ad. Helviam Cap. VI. Right, and the Acquisition of another’s Effects, continuing such, seem incompatible. But they are reconcileable by the Principles we have here laid down in the Text. Add what we have said in Chap. IV. of this Book, § 2. Grotius.
[4. ]Lib. III. Cap. LXVI. Edit. Oxon.
[5. ]See the Law cited above, Chap. VII. of this Book, § 6. Note 10. with the Reflection which I have made there.
[6. ]He says, that as the Title of Knight arose from Ambition, the Names of freed Man and Slave derived their Origin from Injury and Injustice: Quid est Eques Romanus, aut Libertinus, aut Servus? Nomina ex ambitione, aut ex injuria nata. Epist. XXXI.
[7. ]On the contrary it was the Greeks, who were for keeping what they had taken, during the War, from the antient Inhabitants of Italy: Graeci res a quibusdam Italici generis, &c. Lib. XXIX. Cap. I. Num. 16, 17.
[8. ]Orat. XV.
[9. ]Itaque quum de Officiis, &c. Instit. Divin. Lib. VI. Cap. VI. Num. 24. St. Austin says, that if Men duly observed the Precepts of the Gospel, War itself would not be made without Charity and Benevolence: Ac per hoc si terrena, &c. Epist. IV. Ad Marcellin. He observes elsewhere, that Wars themselves are peaceable among the sincere Adorers of the true GOD: apud verosDeicultores, etiam ipsa bella pacata sunt. De diversis Ecclesiae Observationibus. Grotius.
[10. ]These Words have been cited above, Chap. IV. of this Book, § 5. in fin.
[1 ]See Numbers v. 6, 7. St. Jerome says, that if all we have unjustly taken be not restored, we cannot avoid the Sentence of Condemnation: Nec differtur ultionis sententia, si non reddantur universa. Ad Rusticum. St. Austin maintains, that if another’s Goods are not restored, for which we have sinned, when it is in our Power to restore them our Repentance is not real, but feigned. Ad Macedon. Epist. LIV. The latter Passage is cited in the Canon Law, Caus. XIV. Quaest. VI. Can. I. Grotius.
[2. ]It is in the fine Passage of Isaiah, Chap. LVIII. Ver. 5, 6, 7. that JustinMartyr, repeats in Greek in his Dialogue with Tryphon. (p. 47. Edit. Oxon.) Grotius.
[3. ]Micotzi, Lib. Praeceptorum Legis, Praecept. jub. XVI. See also the Penitential Canons of Maimonides, Cap. II. § 2. Grotius.
[a ]See Leunclavius, Turc. v. and 17.
[a ]B. 2. c. 17.
[1 ]It is decided in a Law, which our Author cites in the Margin, that if two or more Men have stolen a Beam, which one of them alone could not carry off, each of them is entirely responsible for the Theft: Si duo pluresve unum, &c. Digest, Lib. XLVII. Tit. II. De Furtis, Leg. XXI. § 9. We must further observe here, that it is generally impossible for a Soldier to make amends for the Damage, to which he has concurred in common, and for which he is thus wholly responsible. The Instance of burning a City suffices to explain this. And as to what a Soldier has done, where the Proportion of the Damage he has caused, may be distinguished, as when he has been concerned with others in plundering a City; he cannot commonly know to whom what he has taken belonged, nor in Consequence to whom he ought to restore it. In the first Case the absolute Impossibility of Amends must acquit him, with regard to those who have suffered the Damage. In the latter, the Obligation of making Restitution is suspended, till the Soldier has discovered the right Owner of the Booty he has taken. But in either Case, a Person that has the least Tenderness of Conscience, will be extremely mortified for the Impossibility either absolute or present under which he finds himself; since when People have the Means in their own Hands of making Amends for a Wrong done, it is a great Consolation, and a Discharge, which obliterates in some Sort the Crime. After all, as the Powers, who undertake an unjust War, are always more culpable than those who serve under them in such Wars, they can also generally make Amends, either wholly or in Part, for the Evils of which they have been the first Cause; and by discharging their Duty in that manner, exempt the Soldiers from the Obligation they are under of making Restitution, which they very seldom believe they are bound to do.
[1 ]In all the Editions it is in this Place: Si modo in ipsis aliquid haereat culpae. But our Author’s Answer to this Proposition shews, that there must be some Fault in it. I therefore translate it, as if it had been writ: Aliquid haereatDolosaeculpae. The Sense necessarily requires something of this Kind, and I might perhaps assure myself, that I have guessed the Word, if I had Sylvester, to whom our Author refers in the Margin, (Part I. Num. 10) and whom he refutes.
[2. ]Res hostium in praeda captas, quae belli jure nostrae videbantur, remisimus, Lib. IX. Cap. I. Num. V.
[3. ]See above, B. II. Chap. XII. § 26. or last.
[a ]See B. 2. ch. 10.
[1 ]This must be explained according to the Principles referred to in my Notes upon the Chapter cited in the Margin.
[2. ]Idem [Populus Romanus] quum, &c. Lib. VI. Cap. V. Num. I. Mark Anthony caused the Tyrians to return what belonged to the Jews. He ordered, that the Prisoners, who had been sold should be set at Liberty, and the Effects taken from the Jews restored to their Right Owners. Joseph. Antiq. Jud. Lib. XIV. (Cap. XXII. p. 492. G.) Macrinus restored the Prisoners and Booty to the Parthians, because the Romans had broken the Treaty without Cause. Herodian. Lib. IV. in fin. Sultan Mahomet set the Prisoners at Liberty that had been taken at Santa Maria in Achaia,Chalcocondylas, Lib. IX. Grotius.
[3. ]Phocaeensibus & ager, quem, &c. Livy, Lib. XXXVIII. Cap. XXXIX. Num. 12.
[4. ]Quas ob res, placere Senatui, &c. Idem. Lib. XLII. Cap. VIII. Num. 7. See also Diod. Sicul. Excerpt. Peiresc. (p. 298.) Grotius.
[5. ]Iisdem mandatum, ut & Hostilio, &c. Livy, Lib. XLIII. Cap. VI. Num. 21.