The Rights of War and Peace

by Hugo Grotius

V. Nor do the so much talked of rights of suppliants, and the inviolable nature of asylums at all weaken the argument that has been advanced. For the advantages of such protection are designed only for those, who are the victims of unmerited persecution, not for those who have committed crimes injurious to mankind, and destructive to society. Gylippus, the Lacedaemonian, as may be seen in the xiii. book of Diodorus Siculus, speaking of the rights of suppliants, says, that they were originally introduced, as measures of compassion to the unfortunate, and not a screen for malicious and wanton offenders, who have nothing but punishment to expect. And a little after he says, when such men, prompted by malice, or rapacity have plunged into evils, they have no right to talk of misfortune or to wear the name of suppliants. For that is a privilege granted by the laws of nature to the innocent, who are beaten down by the hard and oppressive strokes of ill fortune. But the refuge of compassion is withheld, where every line of a life has been marked with cruelty and injustice. Thus according to that law, which partakes of the wisdom of its divine author, asylums were open to those who had killed any one by a weapon escaping from their hand: slaves too were allowed places of refuge, but deliberate murderers, or those, who had disturbed the peaceful order of the state, found no protection even from the altar of God. Philo, in explaining this law says, that even the temple affords no refuge to the impious.

The more ancient of the Greeks acted upon the same principle. It is said that the Chalcidians refused to deliver up Nauplius to the Grecians, and the reason alleged was his having cleared himself of the charges made against him. There was among the Athenians an altar dedicated to Mercy; it is mentioned by Cicero, Pausanias, Servius, and also by Theophilus, and it is described at full length by Statius in the xii. book of his Thebais. The poet explains to what description of men it afforded shelter: it was, he says, to those who were driven from their homes by the calamity of war, or stripped of their kingdoms by usurpers. Tacitus in the third book of his Annals, and 60th chapter, reprobates the custom, prevailing in his time among the cities of Greece, of making it an act of religion to protect offenders from the punishment due to their crimes. Such offenders therefore ought either to be punished, or delivered up, or, at least, ordered to withdraw. Perseus the Macedonian king, clearing himself to Martius from the charge of screening those, who had attempted the life of Eumenes; said, "as soon as I was apprised by you of their being in Macedonia, I ordered immediate search to be made for them, peremptorily commanding their perpetual banishment from my kingdom."

The right of demanding the surrender or punishment of criminals that have fled into other kingdoms, has, in most parts of Europe, during the present, and the immediately preceding centuries, been generally exercised in cases, where the crimes were such as affected the safety of the state, or were attended with notorious atrocity. It has been usual to pass over, with mutual connivance, crimes of an inferior kind, except where it has been agreed to the contrary by express treaty. Nor can it be concealed that where robbers and pirates have gained a truly formidable power, it has often been deemed an act of humane policy both in Sovereign Princes, and States to exercise forbearance towards them, rather than to drive them to greater acts of desperation by treating them with all the rigour, which they deserve.

VI. If the act, of which refugees and suppliants are accused, is not prohibited by the law of nature or of nations, the matter must be decided by the civil law of the country, from which they come. This was a received opinion in ancient times, as we find from the language of Aeschylus, in whose Tragedy of the Suppliants, the King of Argos, addressing a number of the daughters of Danaus, on their coming from Egypt, says, "If the sons of Egypt exercise controul over you, maintaining that they are authorised to do so by the law of the state, as being the nearest allied by blood, who can resist them? It is for you to prove that, according to the laws of your country, they have no authority over you."

VII. and VIII. It has often been a celebrated topic of discussion, whether a whole community can be punished for misconduct. And this is the proper place for that inquiry.

It was shewn in a former part of this treatise, that a body politic though it may seem to vary by a succession of new members, continues the same, as long as it retains its form. In which case it seems liable to punishment no less than individuals. On the other hand bodies politic seem to possess many privileges peculiar to themselves, such as having a common treasury, a common seal, laws, and other similar advantages. But there are some distinctions, which they particularly derive from the INDIVIDUALS of which they are composed. Thus we say that Universities are learned, or Garrisons brave, according to the number of learned or gallant men, which they respectively contain. Merit is a distinction of this kind, as being a gift of nature to individuals, or an individual acquirement, which no public body, OF ITSELF, can have. So that upon the death or departure of those meritorious individuals, the degree of merit, which any public society derived from their presence, must become extinct. In the same manner, the debt of punishment which is considered as arising from some act of demerit, must cease with the debt of the individual delinquents.

Arrian is justly commended for censuring the vengeance retorted upon the Persians by Alexander, at a time, when those, who had committed the original aggressions on the Greeks, had long been laid in their graves. He passes a like sentence upon the burning of Persepolis, as a retaliation for what the Persians had done at Athens. Such acts of retaliation, after a lapse of years, have been vindicated by some writers, as an imitation of the slow, but unerring progress of divine justice. But we must remember that the ways of God are not as our ways, nor is the exercise of his justice to be measured by our counsels. For if descendents can claim no merit for the actions of their FOREFATHERS, neither is it right they should be punished for THEIR transgressions. The consequences of merit indeed may be transmitted without injury, and therefore without injustice; but it is not so with punishments.

IX. Having thus shewn that a communication of punishment is necessarily connected with a participation in guilt, it remains to consider whether punishment can be extended to those, who are no way concerned in the crime. In order to understand this clearly, and to prevent the mistakes that may arise from a similarity of expression, where there is no similarity of facts, it will be necessary to make use of some precautions.

X. In the first place there is a difference between a loss DIRECTLY occasioned by any act, and one resulting but INDIRECTLY from it. Now it may be called a direct injury to deprive any one of what peculiarly belongs to him as his right. An indirect injury is that which prevents any one from possessing what he otherwise would have done, by destroying the condition or means, which gave him such a right. As an example, Ulpian says, "if any one has opened a well in his own ground, by which the subterraneous streams of water, that would have passed to the lands of another, are cut off, here no fault is imputable to the person who has only exercised his own right." And in another place, he says, it makes a great difference, whether any one directly does an injury, or is only indirectly and unintentionally instrumental in preventing another from reaping advantages, which he would otherwise have enjoyed. And it is absurd, says Paulus, another legal authority, for men to be called rich before they possess the means of being so. Thus when the property of parents is forfeited, it is felt as an inconvenience by their children; though it cannot be considered as a direct punishment inflicted upon them, because that property would never have been theirs, unless the parents had retained it to their last breath. On which Alphenus has made a just observation, in saying, that, by the punishment of the father, children lose that which would have come to them from him, but things, which they do not receive from him, such as the gifts of nature, or those derived from any other quarter, remain untouched. Cicero relates that in this manner the children of Themistocles were reduced to want, nor does he think it unjust that the children of Lepidus should share the same fate. And he says that it is an ancient custom, and the received usage of all states, the hardship of which nevertheless was greatly softened by the laws of Rome at a later period. Thus when a whole people is implicated in the misconduct of the majority, which holds the representative character of the state, and consequently loses its civil liberties, its fortifications, and other privileges, the loss affects innocent individuals, but only in those things, which they could not have enjoyed, except as belonging to that community.

XI. Besides, we must observe, that the offence of one man may sometimes occasion inconvenience or loss to another, and yet that offence may not be considered as the immediate cause of the action, which is grounded on the exercise of a right. This may be explained by an example. Thus if any one has engaged for another's debt, he brings himself into the dilemma named in the ancient proverb, that being bound for any one is the next stage to ruin; but it is a MAN'S OWN PROMISE, and NOT ANOTHER'S HAVING INCURRED A DEBT, that is the real cause of his obligation. For as a person, who has given security for a purchaser, is not, properly speaking, bound by the PURCHASE, but by his own PROMISE: so if any one has engaged to be responsible for a delinquent, it is his own ENGAGEMENT, and not the ACT OF THAT DELINQUENT, which creates his obligation. And hence the inconvenience of that kind which any one incurs, must be measured not by the delinquency of another, but by his own power to enter into any such voluntary engagement. In consequence of which no one can give surety to suffer death for another; because no one has such power over his own life, as to take it away himself, or to be bound to forfeit it for another. Though the ancient Greeks and Romans thought otherwise, and therefore they maintained that a surety might be put to death for any one, as may be seen in the well known story of Damon and Pythias, and hostages were frequently punished in this manner.