Front Page Titles (by Subject) CHAPTER XVIII: Concerning Things privately done in a publick War. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XVIII: Concerning Things privately done in a publick 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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Concerning Things privately done in a publick War.
I.Whether it be lawful to hurt a publick Enemy privately explained by the Law of Nature, of Nations and Civil Law.I. 1. What we have said hitherto, does most belong either to those who command with an absolute Authority in War, or those who act by Vertue of the Orders they have received from the Sovereign. We are now to see, what may be privately done in War, whether we respect the Law of Nature, of Nations, or the Divine Law. Cicero1 relates in his first Book of Offices, that the Son of Cato the Censor served in the Army under Popilius the General, and in a short Time that Legion was disbanded; yet the young Man out of a military Inclination still continuing in the Army, Cato writ to Popilius, if he designed to have him still in the Army, to give him a second Oath; adding the Reason, because the former being discharged he could not lawfully fight with the Enemy. He also records the very Words of Cato out of his Letter to his Son, in which he warns him from engaging in Fight, for it is not lawful, for one that is not a Soldier to fight an Enemy. Plutarch much commendsaChrysantas a Soldier of Cyrus, who drew back his Sword, that he had lifted up to kill his Enemy, upon his hearing the Trumpet sound a Retreat. And Seneca tells us,2He is a bad Soldier, who regards not the Signal of a Retreat.
2. But they are mistaken, who think this arises only from the external Right of Nations; for if you barely consider that, as it is lawful for any one to seize on his Enemy’s Goods, (as web said before) so he may also kill his Enemy, for by that Right3 Enemies are accounted as if they were not real Persons. What Cato therefore adviseth, proceeds from the Roman military Discipline, which had a Law4 (as Modestinus observes) that he who disobeyed, should be put to Death, tho’ he had had good Success; but he was understood not to have obeyed, who without the General’s Command, fought the Enemy, as appears from the Example of Manlius. For if such a Thing were commonly permitted, the Soldier would abandon his Post of his own Head, or even Licentiousness might in Time proceed to such a Length, that the Whole Army or Part of it would rashly engage5 in dangerous Fights; which was by all Means to be avoided. Therefore Salust describing the Roman Discipline, says, 6They were oftener punished in War, who contrary to Orders had fought the Enemy, or kept the Field after sounding a Retreat. A certain Spartan, when just ready to kill his Enemy, stopt his Blow upon hearing the Retreat<685> sounded, and gave this Reason,7It is better to obey our Commanders, than to kill an Enemy. And Plutarch8 gives this Reason, why a Man dismissed from the Service, cannot kill an Enemy, because he is not obliged by the military Laws, which they that are to fight must observe. And Epictetus in Arrian9 relating the Action of Chrysantas, just mentioned, says, He thought it much better to obey the Orders of his General, than his own Will.
3. But if we respect the Law of Nature and true Justice,10 it seems lawful in a just War for any Man to do those Things, which may be beneficial to the innocent Party, provided it be within the just Measure of making War: Every one however has not a Right to appropriate to himself what he takes from the other Party, whose Cause we suppose bad; because nothing is due to him: Unless perhaps he may exact a just Punishment by the common Right of Men. Which last how it is restrained by the evangelical Law, may easily be understood from what we havec said before.
4. An Order then may be either general or special; general, as when the Consul cried out in the Tumult among the Romans,11Let them that wish well to the Commonwealth, follow me. Nay, this Right12 of killing is sometimes granted to every Subject, even beyond his own Defence, when the publick Safety requires it.
II.What may they do, that make War at their own private Charge, or fit out Ships, by internal Justice, in respect of the Enemy.II. 1. They may have a special Order, not only who receive Pay, but also they who serve in War at their own Expences, and what is more, they who maintain Part of the War at their own Charges; as they who fit out Ships, and maintain them at their own private Cost; who to reimburse themselves (instead of Pay) are allowed to keep and appropriate to themselves what they take, as we havea said elsewhere; but how far this may be reconcilable to true Justice, and Charity, may very well admit of a Dispute.
2. Justice either respects the Enemy, or the State, with which we contract. We have alreadyb said, that in a just War the Possession of all Things that can contribute to the Maintenance of the War, may for our own Security be taken away from an Enemy, but even this with a Condition of Restitution; but the Property of those Things can be only so far acquired, as amounts to the Value of what is due to the State, either at the beginning of the War, or in the Prosecution of it, whether the Things belong to the State at Enmity with us, or particular Persons, that may be of themselves innocent; but the Goods of the Guilty, by way of Punishment, may be taken away, and become the Property of the Captor’s. Therefore the Goods of their Enemies shall be theirs, who maintain Part of the War at their own Charge; what respects the Enemy, so far, as that the reasonable Satisfaction on which I have mentioned, be allowed, to be adjudged by equal Arbitrators.
III.What in respect of their own State.III. And as to the State, the very same will be just, according to internal Justice, if there be an Equality in the Contract, that is, if our Charges and Hazard be equal to the uncertain Hope of the Booty. But if this Hope1 does far exceed, the Overplus is to be restored to the State; just as if one should buy at a very low Price the cast of a Net, the Success of which, tho’ uncertain, promises much, according to all Appearance.<686>
IV.What the Law of Christian Charity requires of us.IV. But it is not enough that we do nothing against the Rules of rigorous Justice, properly so called; we must also take Care that we offend not against Charity, especially Christian Charity. Now this may happen sometimes; when, for Instance, it appears, that such a plundering doth not so much hurt the State, or the King, or those who are culpable themselves, but rather the Innocent, whom it may render so extreamly miserable, that if we should use the like Extremity to our own private Debtors, it would be judged barbarously cruel. But farther, if the taking of this Booty neither contributes to the finishing of the War, nor considerably weakens the Enemy,1 the Gain arising to himself only from the Unhappiness of the Times, would be highly unbecoming an honest Man, much more a Christian.
V.How a private War may be mixt with a publick.V. But it happens sometimes, that from the Occasion of a publick War, there arises a private one; as if a Man should by Chance fall among his Enemies, and be thereby in Danger of losing his Life or his Goods, in which Case he ought to follow the Rules we have givena elsewhere concerning the just Defence of ones self. Private Persons are likewise often authorised by the State to act for their own particular Interest; as when having suffered much by the Enemy they obtain Permission to refund themselves out of their Effects. And here we are to regulate ourselves by what has been said aboveb of the Right of Reprisals.
VI.What he stands obliged to, who without Command hurts an Enemy, explained with a Distinction.VI. Yet if a Soldier, or any other Person, even in a just War, shall burn the Enemy’s Houses, lay waste their Fields, and commit such other Acts of Hostility, without any Command, and besides when there is no Necessity, or just Cause, in the Opinion of the Divines he stands obliged to make Satisfaction for those Damages. I have with Reason added, what they have omitted, if there be not a just Cause; for if there be, he may perhaps be answerable for it to his own State, whose Orders he hath transgressed, but not to his Enemy, to whom he hath done no Wrong. Not unlike to this was the Answer1 which a certain Carthaginian made to the Romans, when they demanded Hannibal to be delivered up to them. The Question is not whether Saguntum was besieged by private, or publick Authority, but whether the Fact were just or unjust? For it is our Business to call our own Subject to an Account, whether he did it of his own Head or by our Order? The only Point to be decided between you and us, is whether the Thing could be done without Prejudice to our Treaties.
[1 ]PopiliusImperator tenebat, &c. De Offic. Lib. I. Cap. XI.
[a ]See Xenophon, Cyr. Inst.
[2. ]Tam inutilis animi minister est, quam miles, qui signum receptui negligit. De Ira, Lib. I. Cap. IX.
[b ]Ch. 3. of this Book, § 10, 12.
[3. ]Pro nullis habentur, says our Author, applying here what the Roman Lawyers say of Slaves with regard to civil Rights: Quod adtinet ad jus civile, Servi pro nullis habentur. Digest, Lib. L. Tit. XVII. De diversis Reg. Jur. Leg. XXXII. But this Fiction, which in some manner excludes Slaves from the Number of Men, in order to rank them amongst the Goods of Fortune, is only founded upon the arbitrary Decisions of a particular Legislator, which can have no Place in the present Question. It were better to give this for the Reason of it; that neutral People, from only continuing such, being bound to regard the Acts of Hostility on both Sides, as equally just; it suffices, with regard to them, that he is a Person of one of the Parties, who has killed or plundered his Enemy: They have then no Business to trouble themselves whether he, who has committed such an Act of Hostility, acted or not by the publick Authority. For tho’ we were to suppose a Law of Nations merely arbitrary, such as our Author imagines there is, as this Right would necessarily turn upon Things, of which the common Interest of Nations required the Observation; there would be nothing in this Case that can be referred to it, since it is of no import to Nations, whether private Persons do or do not, act against an Enemy of their own Head, and since the End of the War demands on the contrary, that all those of one Party may take all Occasions to hurt the other. So that the present Question can only regard the publick Right of every State. See what our Author observes at the End of this Chapter.
[4. ]In bello, qui rem a Duce prohibitam fecit, aut mandata non servavit capitepunitur etiamsi res bene cesserit. Digest, Lib. XLIX. Tit. XVI. De Re Militar. Leg. III. § 15.
[5. ]Avidius Cassius punished some Officers of his Army with Death, who had gone without his Orders with an handful of Men to surprize three Thousand, tho’ they had put the latter to the Sword and returned laden with their Spoils. He gave as his Reason for so severe a Sentence, that there might have been some Ambuscade: Dicens evenire potuisse, ut essent insidiae, &c.Vulcatius Gallican. Cap. IV. Grotius.
[6. ]Quod in bello saepius vindicatum est in eos, &c. Bell. Catilinar. Cap. IX. Edit. Wass.
[7. ]Plutarch, Lacon. Apopht. p. 236.
[8. ]Quaest. Rom. XXXIX. p. 274. A.
[9. ]Lib. II. Cap. VI.
[10. ]This indeed proves, that the Enemy is not wronged, when a private Act of Hostility is committed against him; but it does not follow from thence, that in Civil Society a private Person can act against the Enemy without the express or tacit Order of those, who are invested with the publick Authority. So that the Question, as we have said, relates to publick Right: And the Law of Nature, upon that Foot, far from leaving every one at Liberty to commit Acts of Hostility of his own Head, requires on the contrary, that in a Thing of so great Importance, and which relates to one of the principal Parts of Sovereignty, nothing should be done without the particular or general Permission of the Sovereign, or his Ministers; since that is a necessary Consequence of the Engagement of a Subject, considered as such.
[c ]B. 2. Ch. 20. § 11.
[11. ]Aut certè si esset tumultus, &c.Servius in Aeneid. VIII. 1.
[12. ]Declarations of War sometimes not only license, but order, The Subjects of an Enemy to be attacked wherever they are found.
[a ]B. 3. Ch. 6. § 23, 24.
[b ]B. 3. C. 13.
[1 ]It has been said with Reason, that it is very difficult to make an exact Estimate in this Case; but I do not think it in the least necessary: There is great Reason to presume, that the Sovereign in having authorised Voluntiers, Partisans, and those who fit out Vessels to make Incursions upon the Enemy, and to keep the Booty for themselves, was also willing, that the Whole, however great it were, should be theirs; unless he had previously reserved a Part of it to himself. These Captures are generally not considerable enough with regard to the State, tho’ they are so to the private Persons who take them, and may therefore be left entirely to them, without Prejudice to the Publick.
[1 ]Plutarch blames Crassus for this in his Life, p. 543. D. Grotius.
[a ]B. 2. C. 1.
[b ]B. 3. C. 2.
[1 ]This Passage is quoted above, B. I. Chap. III. § 5. Num. 4.