The Rights of War and Peace

by Hugo Grotius

XXVI. In doubtful matters it is usual for an interpretation to be given more prejudicial to the party who has dictated the terms, than to the other, because in general he is the more powerful: in the same manner, in explaining the terms of a bargain, a construction is generally given against the seller: as he may blame himself for not having spoken more clearly, and openly. Whereas the other, comprehending the terms in more meanings than one, might fairly select that most favourable to himself.

XXVII. It is a matter of frequent dispute what constitutes the breach of a peace. For it is not the same thing to break a peace, as to furnish new grounds and causes of war. There is a great difference between these things, both as to the penalty incurred by the aggressor, and as to the aggrieved party being, in other respects, released from his engagements.

There are three ways, in which a peace may be broken,—either by doing something contrary to the very essence of ALL peace,—or something in violation of the EXPRESS terms of a PARTICULAR peace,—or something contrary to the EFFECTS, which are intended to arise from every peace.

XXVIII. A thing is done contrary to the very essence of all peace, when hostile aggressions are committed without any new grounds of war. But where any specious pretext can be assigned for taking arms, it is better it should be supposed purely an act of injustice, than an act of injustice accompanied with perfidy. It is hardly necessary to quote the words of Thucydides, who says, "it is not the party, who repels force by arms, but the power who first makes the attack, that violates a peace."

Having laid down these rules, it remains to be considered, who are the AGGRESSORS, and who are the AGGRIEVED PERSONS, in the breaking of a peace.

XXIX. There are some, who think that a peace is broken, when even those, who have been allies do any of these things. Nor indeed can it be denied, that such an agreement MAY be made, for one ally to become liable to punishment for the actions of another, and for a peace to be deemed ratified and permanent only upon conditions, partly arbitrary, and partly casual.

But it is hardly credible, unless there is the clearest evidence of it, that peace is ever concluded upon such terms. For it is contrary to all rule, and repugnant to the common wishes of those, who make peace. Therefore those, who have committed hostile aggressions, without the assistance of others, will be deemed breakers of the peace, against whom alone the injured party will have a right to take arms.

XXX. If subjects have committed any act of hostility without authority and commission from the state, it will form a proper subject of inquiry, whether the state can be judged responsible for the acts of individuals: to constitute which responsibility, it is evident that a knowledge of the fact, power to punish it, and having neglected to do so, are requisite.

A formal notice given to the sovereign of the offending subjects is supposed to amount to a knowledge of the fact, and it is presumed that every sovereign is able to controul and punish his own subjects, unless there be some defect in his authority: and a lapse of time, beyond what is usually taken for the punishment of civil offences in every country, may be construed into wilful neglect. And such neglect amounts to a sanction of the offence.

XXXI. It is likewise frequently made a subject of inquiry, whether a state is answerable for the conduct of any of her people, who do not take arms by her authority, but serve in the armies of some other power engaged in war. The Cerites, in Livy, clear themselves upon this principle, that it was not by their authority their people bore arms. And it is a well-founded opinion that no such permission ought to be deemed as given, unless it appear from probable reasons that it was intended it should be granted: a thing sometimes done, according to the example of the ancient Aetolians, who thought they had a right to deprive every plunderer of his spoils. A custom the force of which Polybius expresses in the following words, "when other powers, friends and allies of the Aetolians, are at war with each other, the Aetolians may nevertheless serve in the armies on either side, destroying and spoiling their respective countries."