The Rights of War and Peace

by Hugo Grotius

Either party may go to or return from, any particular place, but without any warlike apparatus or force, that may prove a means of annoyance, or be attended with any danger. This is observed by Servius on that passage of Virgil, where the poet says, "the Latins mingled with their foes with impunity," where he relates also that upon a truce being made between Porsenna and the Romans during a siege, when the games of the circus were celebrating, the generals of the enemy entered the city, contented in the lists, and were many of them crowned as conquerors.

VII. To withdraw farther into the country with an army, which we find from Livy that Philip did, is no way contrary to the intention and principles of a truce: neither is it any breach of it to repair the walls of a place, or to raise new forces, unless it has been prohibited by special agreement.

VIII. To corrupt an enemy's garrisons, in order to seize upon the places which he holds, is undoubtedly a breach of the spirit and letter of any truce. For no such advantage can justly be gained but by the laws of war. The same rule is to be laid down respecting the revolt of subjects to an enemy. In the fourth book of Thucydides, Brasidas received the city of Menda, that revolted from the Athenians to the Lacedaemonians during a truce, and excused his conduct upon the plea of the Athenians having done the same.

Either of the belligerent powers may take possession of places that have been deserted: if they have been REALLY deserted by the former owner with the intention never to occupy them again, but not merely because they have been left unguarded, either BEFORE, or AFTER, the making of a truce. For the former owner's right of dominion therein still remaining renders another's possession of them unjust. Which is a complete refutation of the cavil of Belisarius against the Goths, who seized upon some places during a truce, under pretext of their being left without garrisons.

IX. It is made a subject of inquiry, whether any one being prevented by an unforeseen accident from making his retreat, and being taken within the enemy's territories, at the expiration of a truce, has a right to return. Considering the external law of nations he is undoubtedly upon the same footing as one, who, having gone into a foreign country must, upon the sudden breaking out of war, be detained there as an enemy till the return of peace. Nor is there any thing contrary to strict justice in this; as the goods and persons of enemies are bound for the debt of the state, and may be seized for payment. Nor has such a one more reason to complain than innumerable other innocent persons, on whose heads the calamities of war have fallen. Nor is there occasion to refer to the case, which Cicero has alleged, in his second book On Invention, of a ship of war driven by the violence of the wind into a port, where by law it was liable to confiscation. For in the former case the unforeseen accident must do away all idea of punishment, and in the latter, the right of confiscation must be suspended for a time. Yet there can be no doubt but there is more of generosity and kindness in releasing such a person than in insisting upon the right of detaining him.

X. The express nature of a convention renders some things unlawful during a truce, as for instance, if it is granted only in order to bury the dead, neither party will have a right to depart from those conditions. Thus if a siege is suspended by a truce, and nothing more than such a suspension is thereby granted; the besieged cannot lawfully avail himself of it, to convey fresh supplies of troops and stores into the place. For such conventions ought not to prove beneficial to one party, to the prejudice of the other, who grants them. Sometimes it is stipulated that no one shall be allowed to pass to and fro. Sometimes the prohibition extends to persons and not to goods. In which case, if any one, in protecting his goods, hurts an enemy, the act will not constitute a breach of the truce. For as it is lawful that either party should defend his property, an accidental circumstance cannot be deemed an infringement of that personal security, which was the principal object provided for by the truce.

XI. If the faith of a truce is broken by one of the parties, the other who is thereby injured, will undoubtedly have a right to renew hostilities without any formal declaration. For every article in a treaty contains an implied condition of mutual observance. Indeed we may find in history instances of those, who have adhered to a truce till its expiration, notwithstanding a breach on the other side. But on the other hand there are numerous instances of hostilities commenced against those, who have broken their conventions: a variation, which proves that it is at the option of the injured party to use or not to use his right of renewing war upon the breach of a truce.

XII. It is evident that, if the stipulated penalty is demanded of the aggressor, and paid by him, the other party can no longer maintain his right of renewing the war. For the payment of the penalty restores every thing to its original footing. And on the other hand, a renewal of hostilities implies an intention of the injured party to abandon the penalty, since he has had his option.

XIII. A truce is not broken by the acts of individuals, unless they are sanctioned by the authority of the sovereign, which is generally supposed to be given, where the delinquents are neither punished nor delivered up, nor restitution is made of goods taken away.

XIV. The rights belonging to a safe-conduct are a privilege distinct from the nature of a truce, and our interpretation of them must be guided by the rules laid down respecting privileges.