The Rights of War and Peace

by Hugo Grotius

These opinions are supported by that of Paulus, who maintains, that persons captured by pirates still continue free, that is, are not to be considered as prisoners, for whom an exchange may be demanded. So that by the opinion of the Roman Lawyers it is evident, that no war is considered to be lawful, regular, and formal, except that which is begun and carried on by the sovereign power of each country. Cicero, in his fourth Philippic, describes "a public and authorised enemy to be the person, who possesses the civil and military powers of the state, who can command the treasury, and the services of the people in support of his measures, and who, as occasions offer, has power to conclude treaties of peace and amity."

II. A state, though it may commit some act of aggression, or injustice, does not thereby lose its political capacity, nor can a band of pirates or robbers ever become a state, although they may preserve among themselves that degree of subordination, which is absolutely necessary to the subsistence of all society. For with the latter, the commission of crime is the SOLE bond of union, whereas the former, though not always free from blame, but occasionally deviating from the laws of nature, which in many cases have been in a great measure obliterated, still regulate their conduct by the treaties, which they have made, and certain customs that have been established, being united among themselves for the mutual support of lawful rights, and connected with foreign states by known rules of standing polity.

The Scholiast, upon Thucydides, remarks that the Greeks, at the time when piracy was reckoned lawful, forebore committing massacres, or nightly depredations, and carrying off the oxen that were necessary for the plough. We are informed by Strabo, that other nations too, who lived by plunder, after they had returned home from their predatory voyages, sent messages to the owners, whom they had plundered, to know if they would redeem the captures at a fair price.

In morals, the whole system often derives its name from some one of the principal parts, as Cicero remarks, in the fifth book of his Bounds of Good and Evil, and Galen observes that a mixture is often called by the name of its chief ingredient. So that Cicero is not altogether correct in saying, that a state is not merely diseased, but entirely destroyed, by the injustice of its component and leading members. For a morbid body is still a body, and a state, though dreadfully diseased, is still a political being, as long as its laws and tribunals and other necessary parts of its constitution remain, to administer justice and give redress to foreigners, no less than to private subjects in their actions against each other.

There is a beautiful observation in Dion Chrysostom, who compares the law of a state, particularly that branch of it relating to the law of nations, to the body animated by the soul, upon the departure of which the corporeal frame becomes a mass of lifeless clay: in the same manner political society cannot subsist without the guiding and controuling principle of law. Aristides, encouraging the Rhodians to harmony, observes, that even under a tyrannical government many good laws may be found.

These are points, which may be cleared up by examples. Thus Ulpian maintains that those who are captured by pirates cannot be considered as prisoners of war: but if captured by the Germans, for instance, or any national enemy, they lose their liberty for a time. But the Germans, as we are informed by Caesar, thought acts of plunder, if committed in a foreign territory, no disgrace. Tacitus says that the Cattians, a noble race of people in Germany, and the Garamantians were addicted to the same habits of plunder, yet still retained their rank among states.—Such is the difference between a national and political body, and a band of men uniting together SOLELY FOR THE COMMISSION OF CRIMES.

III. A change may occur not only in the situations of individuals, as in those of Jephthah, Arsaces, and Viriatus, who, from being leaders of voluntary bands, became lawful commanders; but the same has also happened with respect to whole communities, which being originally composed of nothing but freebooters have, by the gradual course and changes of time, risen to the rank and dignity of states.

IV. What has been said with respect to the right of making formal and lawful war, being vested in the sovereign power alone, includes those who have any share in the sovereign power, as the different communities forming the States General of many commonwealths. The same rule will hold good of those, who are not SUBJECTS of a superior state, but joined to it in confederacy by an unequal treaty: innumerable instances of which are to be found in history. This was the case between the Romans and their allies, the Volscians, the Latins, and the Spaniards: and all whom we read of being engaged in wars, which were considered as lawful and just.

V. But to make a war just, according to this meaning, it must not only be carried on by the sovereign authority on both sides, but it must also be duly and formally declared, and declared in such a manner, as to be known to each of the belligerent powers. Cicero, in the first book of his offices, points out "the equity of the rules prescribed by the Roman Law for the declaration of war, from whence it may be concluded that no war is regular or just, but such as is undertaken to compel restitution, and to procure indemnity for injuries, and that too accompanied with a formal declaration." Livy also in the same manner deems an observance of these rules requisite to form the characteristic of a just war. And describing an incursion of the Acarnanians into Attica, and their ravaging the country, he says that "those acts of irritation ended in a declaration of JUST and REGULAR war on both sides."

VI. In order to understand all these points clearly respecting the declaration of war, an accurate distinction must be made between the principles, which are founded on the law of nature itself, and those, which, though not derived immediately from that source, are still found to be just: it will be necessary also to examine, what is required by the law of nations towards obtaining, IN WAR, all the consequences, privileges and effects of that law, and, at the same time, to investigate the consequences and rights arising from the peculiar laws and customs of particular nations.