On the Law of War and Peace

Hugo Grotius

• Publisher: Jazzybee Verlag
• Year: 2017
• ISBN:
  9783849648732
• Topic: Law
• Subtopic: Legal History
• Index: Law

"On The Law of War and Peace" was translated into many languages, and most law schools adopted it as the basis of the right of nations. Princes and statesmen consulted the book, and just as Alexander the Great always had a copy of Homer's 'Iliad, ' so the great Gustavus Adolphus always had with him a copy of Grotius' work, to remind himself that even the most successful general must respect some laws. Grotius' strength lies in his moderation and in the fact that he quotes copiously from the best authorities to fortify his views.

Book II

CHAPTER 1: Defense of Person and Property

Causes of War — Defence of person and property — What are called justifiable causes of war — Justifiable causes of War are Defence, recovery of one's property or debt, or the punishment of offences committed War for defence of life, justifiable, and lawful — This kind of war lawful against an aggressor only — The danger must be present and real, not an imaginary danger — Lawful to kill any one attempting to maim one's person, or violate one's chastity — Occasions where this right may be lawfully waved — This right to be waved particularly with respect to the person of the Sovereign, which is sacred and inviolable — Homicide in defence of one's property allowed by the law of nature — How far homicides permitted by the law of Moses — Self-defence in public war — Not lawful to attack any power solely on account of its increasing greatness — The hostile measures of an aggressor, not to be justified on the plea of self-defence.

I. THE causes of war by which are meant the justifiable causes, are now to be considered. For in some cases motives of interest operate distinctly from motives of justice. Polybius accurately distinguishes these motives from each other, and from the beginning of the war, or that which gave occasion to the first acts of hostility; as was he case when Ascanius wounded the stag, which gave rise to the war between Turnus and Aeneas. But though here is an actual distinction between the justifiable causes, he pretexts, and the beginning of war; yet the terms used to express them are often confounded. For what we call justifiable causes, Livy, in the speech which he as put into the mouth of the Rhodians, calls beginnings. he Rhodian deputies said, "You Romans profess to believe that your wars are successful, because they are just: or do you boast so much of their victorious issue, as of he just principles, upon which you make them.".

The principal drift of our argument rests upon these justifiable causes, to which the sentiment of Coriolanus in Dionysius of Halicarnassus, particularly applies, he says, "in the first place, I beseech you to consider how you may find pious and just pretexts for the war." And Demosthenes in his second Olynthiac, makes a similar observation, "I think, says he, that as in a ship, or house, or any other fabric, the lowest parts ought to be the strongest; so in all political measures the motives and pretexts ought to be laid deeply in the principles of truth and justice." The following language of Dion Cassius is no less applicable to the question. "Justice must be made the principal ground of our actions. For with such support there is the best hope of success to our arms. But without that, any point which may be gained for the moment has no firm ground to rest upon." To which may be added, the words of Cicero, who maintains those wars to be unjust, which are made without sufficient cause. And in another place, he reproves Crassus for having intended to pass the Euphrates, when there was no cause of war. Which is no less true of public than of private wars. Hence come the complaints of Seneca, "Why do we restrain homicide, and the murder of individuals, but glory in the crime of slaughter, which destroys whole nations? Avarice and cruelty know not any bounds. By decrees of the Senate, and of the people cruel acts are authorized, and measures, which are pursued by order of the state, are forbidden to individuals." Wars indeed undertaken by public authority are attended with certain effects of right, and have the sanction of opinion in their favour. But they are not the less criminal, when made without just cause. For which reason Alexander was not improperly styled a robber by the Scythian ambassadors, as may be seen in Quintus Curtius. Seneca and Lucan give him the same appellation; the Indian sages call him a madman; and a pirate once presumed to rank him with his own class. Justin speaks of Philip in the same terms, who, says he, in deciding a dispute between two rival kings, stripped both of their dominions with all the treachery and violence of a robber. Augustin has a pertinent remark on this subject. He says, what are unjustly acquired dominions, but the spoils of robbery? In the same strain, Lactantius says, "Men, captivated with the appearances of vain glory, give the names of virtues to their crimes." Injury, or the prevention of injury forms the only justifiable cause of war. "And, in the language of the same Augustin, all the evil consequences of war are to be laid at the door of the aggressor." Thus the Roman Herald in a declaration of war makes a solemn appeal against the aggressor, as having violated the laws of nations, and refused proper satisfaction.

II. The grounds of war are as numerous as those of judicial actions. For where the power of law ceases, there war begins. Now there are methods in law to prevent intended injuries, as well as actions for those actually committed. For CIVIL INJURIES various methods of redress, or prevention are appointed by the law; and by the same power securities are provided to prevent the commission of crimes and misdemeanors. In civil cases, the party aggrieved may recover damages for the injuries sustained; and in crimes, which are offences against the public, the aggressor must submit to actual punishment. Plato, in his ninth book on laws, very properly makes the same distinction, as Homer had done before him.

Now reparation or indemnity relates to what either does or did belong to us; which gives rise to real and personal actions. These ascertain our right to the damages, which are our due, either from an agreement, or from an injury received. A right which is termed in law a right by contract, or injury. Crimes, which are offences against society, are prosecuted by indictment, that is by an accusation in the name of the sovereign.

The justifiable causes generally assigned for war are three, defence, indemnity, and punishment, all which are comprised in the declaration of Camillus against the Gauls, enumerating all things, which it is right to defend, to recover, and the encroachment on which it is right to punish.

There is an omission in this enumeration, unless the word recover be taken in its most extensive sense. For recovering by war what we have lost, includes indemnity for the past, as well as the prosecution of our claim to a debt. Plato has not omitted to notice this distinction, for he has said, "that wars are made to punish not only oppression or robbery, but also fraud and deception." With whom Seneca agrees; for to command payment of what you owe, he calls, "an equitable sentence, stamped with the authority of the law of nations." Indeed the form which was prescribed for the Roman heralds to use in declarations of war, bears exactly the same import. For therein the aggressor is charged with having neither given, paid, nor done what was due. Sallust in one of his fragments, has made a Tribune, in his harangue to the people, say, "As a final settlement of all discussion; I demand restitution according to the law of nations."

St. Augustin, in defining those to be just wars, which are made to avenge injuries has taken the word avenge in a general sense of removing and preventing, as well as punishing aggressions. This appears to be his meaning from the following sentence of the passage, in which he does not enumerate the particular acts, which amount to injury, but adds, by way of illustration, that "the state or nation, which has neglected to punish the aggressions of its own subjects, or to make reparation for the losses occasioned by those aggressions, is a proper object of hostility and attack." Prompted by this natural knowledge of right and wrong, the Indian King, as we are informed by Diodorus, accused Semiramis of having commenced war against him without having received any injury, Thus the Romans expostulated with the Senones, that they ought not to attack a people who had given them no provocation. Aristotle in the second book and second chapter of his Analytics, says, war generally is made upon those who have first done an injury. Quintus Curtius describes the Abian Scythians, as the best acquainted with the principles of justice of any of the Barbarians. For they declined having recourse to arm; unless provoked by aggression. A just cause then of war is an injury, which though not actually committed, threatens our persons or property with danger.

III. It has already been proved that when our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided: an instance, as it has been shewn, on which the justice of private war rests. We must observe that this kind of defence derives its origin from the principle of self. preservation, which nature has given to every living creature, and not from the injustice or misconduct of the aggressor. Wherefore though he may be clear of guilt, as for instance a soldier in actual service, mistaking my person for that of another, or a madman in his frenzy, or a man walking in his sleep, none of these cases deprive me of the right of self-defence against those per. sons. For I am not bound to submit to the danger or mischief intended, any more than to expose myself to the attacks of a wild beast.

IV. It admits of some doubt, whether those, who unintentionally obstruct our defence, or escape, which are necessary to our preservation, may be lawfully maimed or killed. There are some, even Theologians, who think they may. And, certainly if we look to the law of nature alone, according to its principles, our own preservation should have much more weight with us, than the welfare of society. But the law of charity, especially the evangelical law, which has put our neighbour upon a level with ourselves, does not permit it.

Thomas Aquinas, if taken in a right sense, has justly observed, that in actual self-defence no man can be said to be purposely killed. Indeed, it may some times happen that there is no other way for a person to save himself, than by designedly doing an act, by which the death of an aggressor must inevitably ensue. Yet here the death of any one was not the primary object intended, but employed as the only means of security, which the moment supplied. Still it is better for the party assaulted, if he can safely do it, to repel or disable the aggressor than to shed his blood.

V. The danger must be immediate, which is one necessary point. Though it must be confessed, that when an assailant seizes any weapon with an apparent intention to kill me I have a right to anticipate and prevent the danger. For in the moral as well as the natural system of things, there is no point without some breadth. But they are themselves much mistaken, and mislead others, who maintain that any degree of fear ought, to be a ground for killing another, to prevent his SUPPOSED intention. It is a very just observation made by Cicero in his first book of Offices, that many wrongs proceed from fear; as when the person, who intends to hurt another, apprehends some danger to himself unless he tool, that method. Clearchus, in Xenophon, says, I have known some men, who partly through misrepresentation, and partly through suspicion, dreading one another, in order to prevent the supposed intentions of their adversaries, have committed the most enormous cruelties against those who neither designed, nor wished them any harm.

Cato in his speech for the Rhodians, says, "Are we to prevent them by doing first, what we say they intended to do to us?" On this subject there is a remarkable passage in Aulus Gellius, "When a Gladiator prepares to enter the lists for combat, such is his lot that he must either kill his adversary, or be killed himself. But the life of man is not circumscribed by the hard terms of such an over-ruling necessity, as to oblige him to do an injury to prevent him from receiving one." Quintilian has quoted a passage from Cicero, wherein the orator asks, "Whoever made such a decision, or to whom could such a point be yielded without the most imminent danger, that you have a right to kill the person, by whom you say, you fear that you shall afterwards be killed yourself?" To which this passage of Euripides, may be applied, "If your husband, as you say, intended to have killed you, you ought to have waited, till he actually did make the attempt." Conformably to which Thucydides, in the first book of his history, has expressed himself in the following terms, " The issue of war is uncertain, nor ought we to be so far transported by our fears, as to engage in immediate and open hostilities." The same writer too in his luminous description of the dangerous factions, that had arisen in the Grecian states, condemns the approbation bestowed on the person, that injured or destroyed another from whom he himself apprehended injury or destruction."

Livy says, "Men, to guard against their alarms, make themselves objects of terror; averting the danger from their own heads, by imposing upon others the necessity of either doing or suffering the evil which they them. selves fear." Vibius asked a person, that appeared armed in the forum, " Who gave you permission to shew your fear in this manner?" A question not inapplicable to the present subject, and much commended by Quintilian. Livia also in Dion says, that great infamy redounds to those, who by anticipation perpetrate the criminal act, which they fear.

Now if any one intend no immediate violence, but is found to have formed a conspiracy to destroy me by assassination, or poison, or by false accusation, perjury, or suborned witnesses, I have no right to kill him. For my knowledge of the danger may prevent it. Or even if it were evident that I could not avoid the danger without killing him; this would not establish my right to do so. For there is every presumption that my knowing it will lead me to apply for the legal remedies of prevention.

VI. and VII. The next thing to be considered is, what must be said upon the mutilation of a limb. Now, as the loss of a limb, especially that of a principal limb in the body, is a grievous detriment, and nearly equal to the loss of life, to which may be added the probability of death ensuing from such a calamity; the lawfulness of killing any one, who makes such an attempt, if the danger cannot otherwise be avoided, scarce admits of a doubt. Neither is there any more difficulty in allowing the same right for the personal defence of chastity, the preservation of which, both in the common estimation of men, and by the divine law, is deemed of equal value with life itself. We have an example of this in Cicero, Quintilian, and Plutarch, in the person of one of Marius's tribunes, who was killed by a soldier. Among the actions of women, who have defended themselves. Heliodorus records that of Heraclea, which he calls a just defence of her injured honour.

VIII. Though some, as it has been already said, admit the lawfulness of killing the person, who attempts with open violence to destroy one's life, yet they deem it more commendable to spare the life of another, even at the hazard of one's own. Yet to persons, in whose preservation the public interest is involved, they will grant an exemption from this rule of forbearance. Indeed it seems unsafe to impose upon ANY, whose lives are of importance to others, a rule of forebearance so contrary to all the principles of all law. This exemption therefore must be allowed to all vested with any public office, which makes them responsible for the safety of others; as the generals who conduct armies, or the rulers of the state, and many others in similar situations; to whom may be applied the lines of Lucan — "When the lives and safety of so many nations depend upon yours, and so great a portion of the world has chosen you for its head; it is cruelty to expose yourself willfully to death."

IX. On the other hand it may happen, that the aggressor may be one whose person is rendered sacred and inviolable by all divine, human, and natural laws; which is the case with respect to the person of the Sovereign. For the law of nature regards not only the principles of STRICT JUSTICE, but comprises othe...

Table of contents

• Book I
• Book II
• Book III