Front Page Titles (by Subject) CHAPTER XIII: Moderation about Things taken in War. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XIII: Moderation about Things taken in 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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Moderation about Things taken in War.
I.That so much of the Goods of the Enemies Subjects taken in War, may be detained, as comes to the Value of what is due to us.I. 1. But the taking away of our Enemies Goods in a just War, is not to be reputed wholly innocent, or clear from the Obligation of Restitution. For1 if we respect that which is done rightly, it is not really lawful to take, or keep from the Enemy more than may be justly due from him, except what Things (beyond the same due) we are obliged to detain for our own necessary Security; but when the Danger is over, they are also to be restored, either in Kind, or to the full Value; according to the Principles we have laid down in the second Book, Chap. II. For what we may lawfully do with the Goods of those that are at Peace with us, we may do it much more to those of our Enemy. This then is a Sort of Right to take, without a Right of acquiring.
2. But since a Debt may arise to us, either from the Inequality of Things,2 or by way of Punishment, we may on either of these accounts seize on the Goods of the Enemy, but with some Difference; for as we saida before, from that former Obligation, not only the Goods of the Debtor, but also those of his Subjects by the allowed Law of Nations (as by way of Surety ship) stand engaged; which Law of Nations we look upon to be of another Kind, than that which consists in a bare Impunity, or of which the Use is maintained and authorised only externally, by the Effect of a Sentence, whether just or unjust. For as by our own personal Consent, our Dealer [[ei qui cum actum est does not only acquire an external Right, but also an internal one; (that<659> is, which he may in Conscience make use of.) So also by a certain general Consent, which vertually comprehends in it, the Consent of each Individual. In which Sense the Law is called3 πόλεως συνθήκη κοινὴ, A general Convention of the State. And it is the more probable, that it was thought proper by Nations, that in such a Case, such a Right might be allowed, because this Law of Nations4 was intended, not only to prevent greater Mischiefs, but also to enable every Person to recover his Due.]]
II.But not for the Punishment of another Man’s Crime.II. But, if the Prince’s Debt be penal, I do not see that by the Consent of Nations, such a Right is allowed on his Subjects Goods. For such an Obligation upon another Man’s Goods is odious, and therefore not to be extended beyond the manifest Intention of those who authorise it.1 Besides, there is no Reason of Utility so weighty, as could have induced Nations to establish in regard to the latter Sort of Debt, what they established in regard to the former. For that which is due to us on account of any Damage, makes Part of our Goods; but not that which is due to us in form of Punishment; so that the Prosecution of the latter may, without any Damage, be omitted. Neither does what I have alreadya mentioned of the Attic Law at all contradict it: For in that Case Men stood engaged not strictly because the State could be punished,2 but only to force the State to do what it ought to do; that is, to judge the Guilty: Which Obligation founded on a Duty, has Relation to the former Sort of Debt not to the latter. For it is one Thing to be obliged to punish, and another Thing to be liable to Punishment. Tho’ this is commonly the Consequence of an Omission about that; but still they are two different Things, since the one is the Cause, and the other the Effect. Therefore the Goods of the Enemies Subjects cannot be acquired under the Notion of Punishment, but only those of Offenders themselves, among whom are included the Magistrates, that do not (according to their Duty) punish Offences.
III.By Debt is here understood the Charges in War. Examples of this.III. Moreover, the Goods of an Enemy’s Subjects may be taken and acquired, not only to reimburse ourselves of the primary Debt, which was the Occasion of the War; but also to make Satisfaction for the subsequent Charges, according to what we have said in the beginning of this Book. And thus we must understand what some Divines have written, that Things taken in War are not to be compensated by the principal Debt. For this is to be understood, till, according to sound Judgment, Satisfaction be made for the Damage done in that War. Thus in the Treaty with Antiochus, the Romans (as Livy1 relates) judged it equitable, that the<660> King should bear the Charges of the War, who by his Fault had been the Occasion of it. So Justin2 calls it a reasonable Condition. The Samians are condemned in Thucydides,3To bear the Charges of the War. And elsewhere we find a great Number of the like Examples. But whatsoever is justly imposed on the Conquered, may be exacted in a just War.
IV.Humanity bids us not use this Right to the utmost.IV. 1. But we must observe, which we have elsewhere mentioned, that the Rules of Charity reach farther than those of Right. He that abounds in Wealth is guilty of gross Inhumanity, if he strip his poor Debtor of all that ever he is worth, by the Rigour of the Law, to satisfy his own Debt; but more particularly, if that Debtor contracted that Debt by his Kindness to another; as if he had engaged for his Friend, but had received none of the Money to his own proper Use.1Very miserable is the Condition of a Security, says Quintilian the Father. Yet such a hard hearted Creditor acts nothing against Right, properly so called.
2. Wherefore2 Humanity requires us to spare the Goods of those who are in no Fault concerning the War, and who are no otherwise concerned than by Way of Surety ship, which we may better be without than they; but especially if it appear, that they shall receive no Reparation for them from their own State. Agreeably to this, said Cyrus to his Soldiers, at the taking of Babylon,3What ye get (from your Enemies) is justly your own, but if you leave them any Thing, it will be an Act of Humanity.
3. This is also to be observed, since this Right of seizing the Goods of innocent Subjects is but Subsidiary, or by Way of Surety ship, as long as there are any Hopes of recovering our own from the principal Debtor, or from those who, by refusing to render Justice, make themselves Debtors, to prosecute those who are wholly innocent, tho’ it does not contradict the Rules of strict Justice, yet it is far distant from the Rule of Humanity.
4. Examples of this Humanity are very frequent in History, especially the Roman; as when, upon conquering the Enemy, their Lands were returned to them,4 upon this Condition, that they should from thenceforth belong to the conquered State. Or when a small Part of those Lands were, for Honour’s Sake,5 left to<661> the antient Possessors. Thus Livy tells us, that the Veientes6 were punished by Romulus, with the Loss of part of their Lands only. So Alexander the Macedonian restored their Lands to the Uxii under a Tribute. Thus we often read that surrendered Cities were not pillaged. And we said before,a that not only the Persons, but also the Goods of Husbandmen, were by a laudable Custom, and conformable to the Canons, spared, at least with a Tribute laid upon them; and a Liberty of Trade was allowed to Merchants, upon their paying Custom for their Commodities.
[1 ]See the Opinion of Pope Innocent related by Bembo, Hist. Lib. I. Grotius.
[2. ]The Romans condemned Prusias, King of Bithynia, not only to make Attalus, King of Pergamus amends, but to pay him a Sum of Money, by way of Penalty. Appian. Alexand. De Bell. Mithridat. (p. 172, 173. Edit. H. Steph.)
[a ]Chap. 2. of this Book.
[3. ]See above, B. II. Chap. XI. Num. 5.
[4. ]We have shewn above, Chap. II. of this Book, § 2. Note 1. that this is founded upon Reasons independent of this Consent of Nations, which is supposed, but not proved.
[1 ]These Reasons would only prove, that so much Rigour ought not to be used with regard to the Subjects for the latter as the former Sort of Debt. For if there be any just War merely penal, as our Author acknowledges there is, and that in such War, there be no Means of getting Satisfaction for the Offence received, or the Crime committed, without having recourse to the Effects of the Subjects themselves, who have no Share in it, and without keeping those Effects; I see no Reason, why the Subjects in that Case should not answer for the Fact of the State, as well as upon Refusal of what is Due, for Instance, by Virtue of a Treaty. The Reasons, which I have alledged elsewhere, founded upon the Constitution itself of Civil Societies, (Chap. II. of this Book, § 2. Note 1.) subsist in this Case in all their Force, and that without having Occasion for a tacit Consent of Nations.
[a ]Ch. 2. § 3. of this Book.
[2. ]But even by seizing these Persons, it was supposed at least, that the State might render itself culpable by a Refusal to do Justice, without which it would not have been necessary to have proceeded so far. Besides, when the State had actually refused to punish or deliver up the Murtherer, and had thereby rendered itself worthy of Punishment, without doubt the Persons, who had been seized on that Account, were not released: Otherwise to what Purpose would they have been seized? Why then might the Liberty of the Subjects be answerable for the Crime of the State, rather than their Effects? Are the latter dearer to them than the former? It is in vain to say, that the Subjects were only deprived of their Liberty for a Time, that is, till the State had done what it ought. For it might easily happen, that the Prisoners might die before that: And it will be said also, in regard to Goods, that they are seized till the State has made, either out of its own Effects or otherwise, a Satisfaction answerable to the Punishment it deserves.
[1 ]Ea, quae Legato magna ad pacem impetrandam videbantur, parva Romanis visa. Nam & impensam, quae in bellum facta esset, omnem praestare Regem aequum censebant; cujus culpa bellum excitatum esset. Lib. XXXVII. (Cap. XXXV. Num. 8.) Polybius mentions this, Excerpt. Legat. XXIII. The People of Asia were condemned to the same Thing by Sylla, as Appianus Alexandrinus relates, De Bell. Mithridat. (p. 213. Edit. H. Steph.) The King of Poland alledges this Custom in his Favour. Thuanus, Hist. Lib. LXXIII. upon the Year 1591. The Scholiast of Homer explaining wherein the Amends demanded by the Greeks from the Trojans for the Expences of the War consisted, makes it the Moiety of the Riches of the City. In Iliad. Lib. III. (Ver. 286.) Grotius.
[2. ]Impenas belli lege justa suscepturus [Perseus] Lib. XXXIII. Cap. I. Num. 5. So our Author cites this Passage, I know not from what Edition: For all that I have seen say without any Variety of Reading whatsoever: LegeVicti. That is to say, according to the Condition generally imposed on the Conquered by the Victor.
[3. ]Lib. I. Cap. CXVII. Edit. Oxon.
[1 ]Etiam quum istud periculum est Sponsoris, miserabile est: Bonitate labitur, humanitate conturbat. [Declam. CCLXXIII.] The same Author adds, that the Creditor cannot, with Honesty, sue a Surety, unless there is no Means of recovering the Debt from the Principal himself. Non enim aliter, salvo pudore, ad Sponsorem, venit Creditor, quam si recipere a Debitore non possit. He has Reason for saying, salvopudore, with Honesty; for as Cicero observes, there is a Kind of Shame and Dishonour in suing a Surety. Esti Sponsores adpellare, videtur habere quamdam, δυσωπίαν. Lib. XVI. Epist. ad Attic. XV. Grotius.
[2. ]Ptolemey having gained a Victory over Demetrius, the Son of Antigonus, sent back his Tent, and the rest of his Baggage, with the Money also which he had taken from him, telling him, that their Dispute was for Empire and Glory, and not for every Kind of Things. This Plutarch relates, in the Life of Demetrius, (p. 891. A. The last Words of which Passage are cited above, in Chap. XI. of this Book, § 6. Num. 2.) See also what Sancho King of Navarre did, in Mariana, Hist. Lib. XI. Cap. XVI. Grotius.
[3. ]Xenophon, De Cyri Instit. Lib. VII. Cap. V. § 26. Edit. Oxon.
[4. ]EtTrebatiusait agrum, qui hostibus devictis ea conditione concessus sit, ut in civitatem veniret, habere adluvionem, neque esse limitatum, &c. Digest, Lib. XLI. Tit. I. De adquir. rerum Domin. Leg. XVI. The Lands spoken of in this Passage, were not purely and simply restored, but upon Condition of paying a certain Tribute, which was exacted from the Body of the conquered State, and not from every individual; for which Reason the Lands are said to be given to the State. See the Notes of the late Mr. Goes upon the Auctores Rei Agrariae, p. 198.
[5. ]Item si forte ager fuit, &c. Digest. Lib. VI. Tit. I. De Rei vindicat. Leg. XV. § 2. It relates to some private Persons, to whom this Mark of Distinction was given, when the Rest of the Lands were divided amongst the Soldiers. An antient Author speaks of it thus, Nec tamen omnibus personis victis ablati sunt agri: Nam quorumdam dignitas aut gratia, aut amicitia, victorem ducem movit, ut eis concederat agros suos.Siculus Flaccus, De conditionib. agror. p. 16. Edit. Goes. See Cujas, upon the Law here quoted, Recit. in Digest, p. 278, 279. Edit. Fabrott.
[6. ]Appianus Alexandrinus says in general, that the antient Romans acted in this Manner, with Regard to their conquered Enemies. De bell. Civil. Lib. II. (p.516. Edit. H. Steph.) We find in History, that the Vandals observed the same Maxim in Africa, and the Goths in Italy.Grotius.
[a ]Chap. 12. of this Book. § 4. Num. 3.