Grotius

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Contents

Introduction

Peace the Goal of War

The Law of Nature

The Law of Nations

When Force is Necessary

Private Wars Unlawful

Sovereign Power

Just and Unjust Wars

Justifiable Causes for Wars

Avoiding Justifiable Wars

False Motives for War

Pre-emptive Wars

Specious Excuses for War

Religious Wars

Wars Based on False Claims

In Uncertainty, Favor Peace

Allies in War

Neutral Countries and Refugees

Freedom of the Seas

Seeking Peace

Source

 

 

 

Introduction

 

Hugo Grotius (1583-1645) or Huig van Groot was born in Delft, Holland. His father was a lawyer who also served as curator of the University of Leyden and as burgomaster of Leyden. At age nine Grotius was writing Latin verse; at age 12 he entered the university; at fifteen he was on an embassy to France. After a year he returned to study for the degree of doctor of law. Obtaining this, Grotius practicised law successfully, but was also active in translating classical works and in producing literary compositions, including three plays. At 20 he was appointed as historian to the United Provinces, and later as advocate general of the provinces of Holland and Zeeland. In 1604 he wrote De Jure Praedo, which was concerned with the legal aspects of seizure of enemy property. This was not published, but appears to be the beginning of Grotius’s development of his most famous work on the law of nature and the justification for war (published in 1625). He married Marie Reigersberg in 1608.

 

Grotius’s interest in war and peace led him to develop an argument for freedom of the seas, which was published in 1609 and infuriated Portuguese trading interests. English maritime businesses did not take to it kindly either, and attempted to refute it in 1632.

 

Europe was in great turmoil at this time, convulsed with religious and political wars. Grotius became active in attempting to achieve peaceful resolution of differences by promoting religious tolerance and attempting to mediate between warring parties. In 1619 his colleague in this work was beheaded and Grotius was imprisoned for life. Later, his wife was allowed to join him in prison. In 1621 Marie had him smuggled out in a chest, which enable Grotius to escape to Paris, Marie joining him later. He was subsequently offered use of a chateau near Senlis, where he composed his Law of War and Peace, Including the Law of Nature and of Nations. Continued theological bitterness prevented his return to Holland, and he became ambassador to France for Sweden. He requested his recall in 1645 and briefly visited Stockholm.

 

Grotius’s treatise on war and peace actually covered the much broader subject of the basis and principles of jurisprudence, which Grotius investigated in greater detail than predecessors such as Vasquez and Suarez on international law, and Ayala, Brunus, and Gentilis on war. Essentially, Grotius endeavored to establish the principles of justice and a basis for government without recourse to religious doctrine, even though he himself was a pious man and went to great lengths in his book to show consistency with Biblical material. It probably was his experience of rancorous disputes between Protestants and Catholics that made him unwilling to base jurisprudence on religious dogma. Instead he argued that a kinship among men is established by nature, leading to a community of rights. These extend between nations as well as between local communities. A bond like this between different types of human societies form a Natural Law, derived from the dictates of correct reasoning. Thus for Grotius, universal law can be founded on the nature of man as a rational creature.

 

Grotius found wars undertaken for defense, indemnification, or punishment to be justifiable. He found many more unjustifiable causes for war: pretexts used to cover up robbery or land theft or to falsely justify pre-emptive wars, religious wars, claims based on false title, desire for emigration, exercise of individual rights, promotion of slavery, display of courage or valor, wars for private interests, and so forth. In his argument, he quotes profusely from sources in many different nations, to demonstrate that the humanistic principles he relies on have been held through all times and by men in different cultures. The extracts that follow are from his major work.

 

 

 

Peace the Goal of War

 

1 The disputes arising among those who are held together by no common bond of civil laws to decide their dissensions . . all bear a relation to the circumstances of war or peace. But because war is undertaken for the sake of peace, and there is no dispute which may not give rise to war, it will be proper to treat all such quarrels, as commonly happen, between nations, as a subject in the rights of war: and then war itself will lead us to peace, as to its proper end.

 

2 In treating of the rights of war, the first point, that we have to consider is, what is war, which is the subject of our inquiry, and what is the right, which is what we we seek to establish. Cicero styled war a contention by force. But the practice has prevailed to indicate by that name, not an immediate action, but a state of affairs; so that war is the state of contending parties, considered as such.

 

3 Now any thing is unjust which is repugnant to the nature of society, established among rational creatures. Thus for instance, to deprive another of what belongs to him, merely for one's own advantage, is repugnant to the law of nature, as Cicero observes in the fifth Chapter of his third book of offices; and, by way of proof, he says that, if the practice were general, all society and intercourse among men must be overturned. Florentinus, the Lawyer, maintains that is impious for one man to form designs against another, as nature has established a degree of kindred amongst us. On this subject, Seneca remarks that, as all the members of the human body agree among themselves, because the preservation of each conduces to the welfare of the whole, so men should forbear from mutual injuries, as they were born for society, which cannot subsist unless all the parts of it are defended by mutual forbearance and good will.

 

 

The Law of Nature

 

4 After examining the sources of right, the first and most general question that occurs, is whether any war is just, or if it is ever lawful to make war. But this question like many others that follow, must in the first place be compared with the rights of nature. Cicero in the third book of his Bounds of Good and Evil, and in other parts of his works, proves with great erudition from the writings of the Stoics, that there are certain first principles of nature, called by the Greeks the first natural impressions, which are succeeded by other principles of obligation superior even to the first impressions themselves. He calls the care, which every animal, from the moment of its birth, feels for itself and the preservation of its condition, its abhorrence of destruction, and of every thing that threatens death, a principle of nature. Hence, he says, it happens, that if left to his own choice, every man would prefer a sound and perfect to a mutilated and deformed body. So that preserving ourselves in a natural state, and holding to every thing conformable, and averting every thing repugnant to nature is the first duty.

 

5 Natural right is the dictate of right reason. This reveals the moral necessity or moral turpitude of any act from its agreement or disagreement with a rational nature. . .We must farther remark, that natural right relates not only to those things that exist independent of the human will, but to many things which necessarily follow the exercise of that will. Thus property, as now in use, was at first a creature of the human will. But, after it was established, one man was prohibited by the law of nature from seizing the property of another against his will. Wherefore, Paulus the Lawyer said, that theft is expressly forbidden by the law of nature.

 

6 But from the knowledge of these principles, a notion arises of their being agreeable to reason, that part of a man which is superior to the body. Now that agreement with reason, which is the basis of propriety, should have more weight than the impulse of appetite; because the principles of nature recommend right reason as a rule that ought to be of higher value than bare instinct. As the truth of this is easily assented to by all men of sound judgment without any other demonstration, it follows that in inquiring into the laws of nature the first object of consideration is what is agreeable to those principles of nature. Then we come to the rules which, though arising only out of the former, are of higher dignity, and not only to be embraced when offered but pursued by all the means in our power.

 

 

The Law of Nations

 

7 There is a sentence of Hesiod that has been much praised, that opinions which have prevailed amongst many nations, must have some foundation. Heraclitus, establishing common reason as the best criterion of truth, says, those things are certain which generally appear so. Among other authorities, we may quote Aristotle, who says it is a strong proof in our favor when all appear to agree with what we say, and Cicero maintains that the consent of all nations in any case is to be admitted for the law of nature. Seneca is of the same opinion, any thing, says he, appearing the same to all men is a proof of its truth. Quintilian says, we hold those things to be true, in which all men agree.

 

 

When Force is Necessary

 

8 It has been said above that an investigation of the laws of nature implies an inquiry whether any particular action may be done without injustice. Now, by an act of injustice is understood that which necessarily has in it any thing repugnant to the nature of a reasonable and social being. So far from any thing in the principles of nature being repugnant to war, every aspect of them indeed rather favors it. For the preservation of our lives and persons, which is the end of war, and the possession or acquirement of things necessary and useful to life is most suitable to those principles of nature; and to use force if necessary for those occasions is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves.

 

9 Now right reason and the nature of society which claims the second, and indeed more important place in this inquiry, prohibit not all force, but only that which is repugnant to society by depriving another of his right. For the end of society is to form a common and united aid to preserve to every one his own. Which may easily be understood to have obtained before what is now called property was introduced. For the free use of life and limbs was so much the right of every one that it could not be infringed or attacked without injustice. So the use of the common productions of nature was the right of the first occupier, and for any one to rob him of that was manifest injustice. This may be more easily understood since law and custom have established property under its present form.

 

10 There is a celebrated passage in Cicero's speech for Milo, in which, justifying recourse to force in defense of life, he bears ample testimony to the feelings of nature. She has given us this law, which is not written but innate, which we have not received by instruction, hearing or reading. Instead, the elements of it have been engraved in our hearts and minds with her own hand. It is a law which is not the effect of habit and acquirement, but forms a part in the original complexion of our frame. For this reason, if our lives are threatened with assassination or open violence from the hands of robbers or enemies, any means of defense would be allowed and laudable.

 

11 It admits of some doubt whether those who unintentionally obstruct our defense or escape that is 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 neighbor upon a level with ourselves, does not permit it.

 

 

Private Wars Unlawful

 

12 The first and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons.

 

13 The proofs that have been already produced to show that to repel violence is not repugnant to natural law, afford a satisfactory reason to justify private war, as far as the law of nature is concerned. But perhaps it may be thought that since public tribunals have been erected, private redress of wrongs is not allowable. An objection which is very just. Indeed, although public trials and courts of Justice are not institutions of nature but erected by the invention of men, yet it is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested person than by the partiality and prejudice of the party aggrieved. Thus, natural justice and reason will dictate the necessity and advantage of every one's submitting to the equitable decisions of public judges. Paulus, the Lawyer, observes that "what can be done by a magistrate with the authority of the state should never be entrusted to individuals; as private redress would give rise to greater disturbance". And "the reason", says King Theodoric, "why laws were invented, was to prevent any one from using personal violence, for wherein would peace differ from all the confusion of war if private disputes were terminated by force?" And the law calls it force for any man to seize what he thinks his due, without seeking a legal remedy.

 

 

Sovereign Power

 

14 Since then it has already been established that no war can lawfully be made but by the sovereign power of each state, in respect to all the questions connected with war, it will be necessary to examine what that sovereign power is, and who are the persons that hold it.

 

15 The civil power is the sovereign power of the state. A state is a perfect body of free men, united together in order to enjoy common rights and advantages. The less extensive right, and not derived from the civil power itself, although subject to it, is various, comprehending the authority of parents over children, masters over servants, and the like. But the law of nations is a more extensive right, deriving its authority from the consent of all, or at least of many nations. . .Now this law of nations is proved in the same manner as the unwritten civil law, and that is by the continual experience and testimony of the Sages of the Law. For this law, as Dio Chrysostom well observes, is the discoveries made by experience and time. And in this we derive great advantage from the writings of eminent historians.

 

16 The moral power then of governing a state, which is called by Thucydides the civil power, is described as consisting of three parts which form the necessary substance of every state; and those are the right of making its own laws, executing them in its own manner, and appointing its own magistrates. Aristotle, in the fourth book of his Politics, describes the sovereignty of a state as the exercise of the deliberative, executive, and judicial powers. To the deliberative branch he assigns the right of deciding upon peace or war, making or annulling treaties, and framing and passing new laws. To these he adds the power of inflicting death, banishment, and forfeiture, and of punishing also for public peculation. In the exercise of judicial power, he includes not only the punishment of crimes and misdemeanors, but the redress of civil injuries.

 

 

Just and Unjust Wars

 

17 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. . .The following language of Dion Cassius is fully applicable to this 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. . .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."

 

18 Wars indeed undertaken by public authority are attended with certain effects of right, and have the sanction of opinion in their favor. 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. Augustine has a pertinent remark on this subject. He says, what are unjustly acquired dominions, but the spoils of robbery?

 

 

Justifiable Causes for Wars

 

19 The justifiable causes generally assigned for war are three: defense, indemnity, and punishment, all which are contained 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 extended 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."

 

20 St. Augustine, 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."

 

21 The first step which an aggressor ought to take should be an offer of indemnity to the injured party, by the arbitration of some independent and disinterested state. And if this mediation be rejected, then his war assumes the character of a just war.

 

 

Avoiding Justifiable Wars

 

22 Although it seems not to fall within the immediate province of a treatise entitled the Rights of War to enter into an investigation of other moral duties that the relations of war and peace prescribe, yet it may not be improper to touch slightly upon certain errors that it is necessary to obviate. This is necessary to prevent any one from supposing that, after establishing the right of war, he is authorized instantly or at all times, to carry his principles into action, and to reduce his theory to practice. So far from this, it frequently happens that it is an act of greater piety and rectitude to yield a right than to enforce it.

    It was before shown, in its proper place, how honorable it is to be regardless of our own lives where we can preserve the lives and promote the lasting welfare of others. A duty that should operate with greater force upon Christians, who have before their eyes continually the example of him who died to save us, while we were enemies and ungodly. An example which calls upon us, in the most affecting manner, not to insist upon the rigorous prosecution of our most just rights, where it can not be done but by the calamities which war occasions. If arguments and motives like these required reference to authorities, abundance of authorities might be adduced for their support.

 

23 In exacting punishment it is necessary to use the precaution of avoiding hostilities with a power of equal strength. For to avenge a wrong, or to assert a right by force of arms requires a superiority of strength. So that not only prudence, but a regard for their subjects will at all times deter rulers from involving their people in the calamities of war. Also, a principle of justice, the sole directress of human affairs—binding sovereigns and subjects to each other by their mutual interests—will teach this lesson of precaution. For reparation must be looked for at the hands of those who bring on the calamities of wanton and unnecessary war. Livy calls that a just (i.e., necessary) war and a pious cause when no hope is left but in recourse to arms.

 

 

False Motives for War

 

24 In a former part of this work, where the justice of war was discussed, it was observed that some wars were founded upon real motives and others only upon colorable pretexts. . . Thus Alexander made war upon Darius, under the pretence of avenging the former wrongs done by the Persians to the Greeks. But the real motive of that bold and enterprising hero, was the easy acquisition of wealth and dominion, which the expeditions of Xenophon and Agesilaus had opened to his view.

 

25 Though most powers when engaging in war wish to color over their real motives with justifiable pretexts, yet some, totally disregarding such methods of vindication, seem able to give no better reason for their conduct than what is told by the Roman lawyers of a robber. He, being asked, what right he had to a thing that he had seized, replied, it was his own because he had taken it into his possession. Aristotle in the third book of his Rhetoric, speaking of the promoters of war, asks if it is not unjust for a neighboring people to be enslaved, and if those promoters of slavery have no regard to the rights of unoffending nations. Cicero, in the first book of his Offices, speaks in the same strain, and calls the courage which is conspicuous in danger and enterprise, absolutely undeserving of the name of valor if devoid of justice. It should rather be considered as a brutal fierceness outraging every principle of humanity.

    Others make use of pretexts, which though plausible at first sight, will not bear the examination and test of moral rectitude. When stripped of their disguise, such pretexts will be found fraught with injustice. In such hostilities, says Livy, it is not a trial of right, but some object of secret and unruly ambition which acts as the chief spring. Most powers, it is said by Plutarch, employ the relative situations of peace and war, as a current coinage, for the purchase of whatever they deem expedient.

 

 

Pre-emptive Wars

 

26 Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorizes one power to commence hostilities against another whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favor. The causes which entitle a war to the denomination of 'just' are somewhat different from those of expediency alone. But to maintain that the bare probability of some remote or future annoyance from a neighboring state affords a just ground of hostile aggression, is a doctrine repugnant to every principle of equity.

 

27 For to authorize hostilities as a defensive measure, they must arise from the necessity, which just apprehensions create; apprehensions not only of the power, but of the intentions of a formidable state, and such apprehensions as amount to a moral certainty.

 

 

Specious Excuses for War

 

28 Nor can the advantage to be gained by a war be ever pleaded as a motive of equal weight and justice with necessity.

    Neither can the desire of emigrating to a more favorable soil and climate justify an attack upon a neighboring power. This, as we are informed by Tacitus, was a frequent cause of war among the ancient Germans.

    There is no less injustice in setting up claims, under the pretence of newly discovered titles to what belongs to another.

    Neither can the wickedness and impiety nor any other incapacity of the original owner justify such a claim. For the title and right by discovery can apply only to countries and places that have no owner.

    Neither moral nor religious virtue, nor any intellectual excellence is requisite to form a good title to property. Only where a race of men is so destitute of reason as to be incapable of exercising any act of ownership can they hold no property, nor will the law of charity require that they should have more than the necessaries of life. For the rules of the law of nations can only be applied to those who are capable of political or commercial intercourse: but not to a people entirely destitute of reason—though it is a matter of just doubt whether any such is to be found.

 

29 But neither the independence of individuals, nor that of states, is a motive that can at all times justify recourse to arms, as if all persons indiscriminately had a natural right to do so. For where liberty is said to be a natural right belonging to all men and states, by that expression is understood a right of nature, antecedent to every human obligation or contract. But in that case, liberty is spoken of in a negative sense, and not by way of contrast to independence, the meaning of which is that no one is by the law of nature doomed to servitude, though he is not forbidden by that law to enter into such a condition. For in this sense no one can be called free, if nature leaves him not the privilege of choosing his own condition.

 

30 And there is equal injustice in the desire of reducing by force of arms any people to a state of servitude, under the pretext of its being the condition for which they are best qualified by nature. It does not follow that, because any one is fitted for a particular condition, another has a right to impose it upon him. For every reasonable creature ought to be left free in the choice of what may be deemed useful or prejudicial to him, provided another has no just right to a control over him.

 

 

Religious Wars

 

31 From the kind of evidence on which Christianity rests, it is plain that no force should be used with nations to promote its acceptance. It is not merely by natural arguments it can gain assent; for it has made an addition of many things to natural religion. Its evidence rests upon the history of Christ's resurrection, and upon the miracles performed by himself and his Apostles. So that it is a matter of fact proved by the most undeniable evidence and of great antiquity. Therefore a doctrine of this kind cannot be thoroughly received upon the first hearing of it, without the secret assistance of God. This assistance is not given as a reward for the merit of works. Thus, wherever this assistance is withheld or less copiously bestowed, it is done for reasons which though just are generally unknown to us, and therefore not punishable by human judgments. For it is the custom in the sacred writings to assign the divine pleasure as the cause of things unknown to us.

 

 

Wars Based on False Claims

 

32 It would scarce have been necessary to refute the foolish opinion of some, who have ascribed to the Roman Emperors dominion over the most remote and unknown nations, if Bartolus, deemed a lawyer of the first eminence, had not pronounced it heresy to deny those pretensions. This opinion has been built upon the Roman Emperor's some times having styled himself Sovereign of the whole world; a term which it was not unusual for many people to apply to their own country.

 

33 But there have been some who have asserted the rights of the church over unknown parts of the world, though the Apostle Paul himself has expressly said that Christians were not to judge those who were without the pale of their own community. And though the right of judging, which belonged to the Apostles, might in some cases apply to worldly concerns, yet in its general nature it was of a celestial rather than an earthly kind—a judgment not exercised by fire and sword, but by the word of God, proposed to all men and adapted to their peculiar circumstances—

 

34 It is necessary to observe that a war may be just in its origin, and yet the intentions of its authors may become unjust in the course of its prosecution. For some other motive, not unlawful in itself, may actuate them more powerfully than the original right, for the attainment of which the war was begun. It is laudable, for instance, to maintain national honor; it is laudable to pursue a public or a private interest, and yet those objects may not form the justifiable grounds of the war in question. A war may gradually change its nature and its object from the prosecution of a right to the desire of seconding or supporting the aggrandizement of some other power. But such motives, though blamable, when even connected with a just war, do not render the war itself unjust, nor invalidate its conquests.

 

 

In Uncertainty Favor Peace

 

35 It may happen in many disputed points that the intrinsic merits of the case, or the opinions of the learned, are equal on both sides. When that happens, if the matters in discussion are of no great importance, there is nothing to blame in the person that makes his choice either way. But in matters of moment, where the lives of men are at stake, the decision should incline to the safer side, according to the proverbial maxim, which pronounces it better to acquit the guilty than to condemn the innocent.

    War then being an object of such weighty magnitude, in which the innocent must often be involved in the sufferings of the guilty, between wavering opinions the balance should incline in favor of peace.

 

36 Although in doubtful case both sides are bound to devise every means of avoiding hostilities, yet it is a duty more incumbent upon the claimant than upon the immediate possessor of whatever may be the subject of dispute. For it is a rule not only of civil, but of natural law, that where the pretensions are equal those of the possessor are to be preferred.

    To the foregoing remarks an additional observation may be made, that if any one, knowing his pretensions to be just, cannot produce sufficient proofs to convict the intruder of injustice, he cannot lawfully have recourse to arms, because he has no ostensible right by which he can compel the intruder to relinquish the possession.

 

 

Allies in War

 

37 Next to subjects, and even upon an equal footing with them as to claims of protection, are allies, a name including in its consequences and effects both those who have formed a subordinate connection with another power and those who have entered into engagements of mutual assistance. Yet no such compacts can bind either of the parties to the support or prosecution of unjust wars. And this is the reason why the Lacedaemonians, before they went to war with the Athenians, left all their allies at liberty to decide for themselves upon the justice of the quarrel. To which an additional observation may be made, that no ally is bound to assist in the prosecution of schemes which afford no possible prospect of a happy termination. For this would be defeating the very end of alliances, which are contracted from motives of public advantage, and not for a participation in ruin.

 

38 Another question frequently arises, which is, when two states are engaged in war with each other, to which of them a power, equally allied to both, ought in preference to give assistance. Here too we must observe there can be no obligation to support unjust wars. On which account that confederate power, which has justice on its side, will have a claim to preference, if engaged in war with another not comprehended in the number of confederates, or even if engaged with one of the confederates themselves.

    But if two powers engage in a war, equally unjust on both sides, a third power, united in confederacy with both, will prudently abstain from interference. Again, if two powers allied to us are engaged in a just war against others with whom we have no connection, in the supplies of men or money that we furnish to either we ought to follow the rule observed in the case of personal creditors.

 

 

Neutral Countries and Refugees

 

39 Now among Theologians also it is a received opinion that if in urgent distress any one shall take from another what is absolutely necessary for the preservation of his own life, the act shall not be deemed a theft. . .Now this indulgence must be granted with precautions and restrictions, to prevent it from degenerating into licentiousness. As of these precautions, the first requires the distressed party to try every mode of obtaining relief—by appeal to a magistrate, or by trying the effect of entreaty to prevail upon the owner to grant what is necessary for his pressing occasions. . . In the next place, this plea of necessity cannot be admitted where the possessor is in an equal state of necessity himself. For under equal circumstances the owner has a better right to his possessions. . . In the third place, the party thus supplying his wants from the property of another is bound to make restitution or give an equivalent to the owner, whenever that is possible.

 

40. Hence it may be inferred, that, in the prosecution of a just war, any power has a right to take possession of a neutral soil; if there be real grounds, and not imaginary fears for supposing the enemy intends to make himself master of the same, especially if the enemy's occupying it would be attended with imminent and irreparable mischief to that same power. But in this case the restriction is applied that nothing be taken but what is actually necessary to such precaution and security. Barely occupying the place is all that can be justified: leaving to the real owner the full enjoyment of all his rights, immunities, and jurisdiction, and all the productions of his soil. And this must be done too with the full intention of restoring the place to its lawful Sovereign, whenever the necessity for which it was occupied may cease.

 

41 Nor ought a permanent residence to be refused to foreigners who, driven from their own country, seek a place of refuge. But then it is only upon condition that they submit to the established laws of the place, and avoid every occasion of exciting tumult and sedition. . .Yet settlers of this description have no right to demand a share in the government. A proposal of this kind made by the Minyae to the Lacedaemonians who had received them, is very properly considered by Herodotus as insolent, and unreasonable.

    It is indeed but an act of common humanity in a sovereign to allow strangers, at their request, liberty to fix their residence upon any waste or barren lands within his dominions, still reserving to himself all the rights of sovereignty.

 

 

Freedom of the Seas

 

42 Among the causes assigned to justify war, we may reckon the commission of injury, particularly such as affects any thing which belongs to us. Now, we establish this claim to any thing as our own either by a right common to us as men, or acquired by us in our individual capacity. . .

    At the same time, we learn how things passed from being held in common to a state of property. It was not by the act of mind alone that this change took place. For men in that case could never know what others intended to appropriate for their own use, so as to exclude the claim of every other pretender to the same; and many to might desire to possess the same thing. Property therefore must have been established either by express agreement, as by division, or by tacit consent, as by occupancy.

 

43 Notwithstanding the statements above made, it must be admitted that some things are impossible to be reduced to a state of property, of which the sea affords us an instance both in its general extent, and in its principal branches. But as some are willing to make this concession with regard to individuals, but not with regard to nations, the position advanced in the beginning of this section may be proved from the following moral argument. That is, as in this case the reason no longer exists why men should hold all things in common, the practice ceases also. For the magnitude of the sea is such as to be sufficient for the use of all nations, to allow them without inconvenience and prejudice to each other the right of fishing, sailing, or any other advantage which that element affords. The same may be said of air as common property, except that no one can use or enjoy it, without at the same time using the ground over which it passes or rests.

 

 

Seeking Peace

 

44 In the very heat of war the greatest security and expectation of divine support must be in the unabated desire and invariable prospect for peace, as the only end for which hostilities can be lawfully begun. So that in the prosecution of war we must never carry the rage of it so far as to unlearn the nature and dispositions of men.

    These and these alone would be sufficient motives for the termination of war and the cultivation of peace. But apart from all considerations of humanity, the interests of mankind would inevitably lead us to the same point. In the first place it is dangerous to prolong a contest with a more powerful enemy. In such a case some sacrifices should be made for the sake of peace, as in a storm goods are sometimes thrown overboard to prevent a greater calamity and to save the vessel and the crew.

    Even for the stronger party, when flushed with victory, peace is a safer expedient than the most extensive successes. For there is the boldness of despair to be apprehended from a vanquished enemy, dangerous as the bite of a ferocious animal in the pangs of death.

    If indeed both parties are upon an equal footing, it is the opinion of Caesar that it is the most favorable moment for making peace, when each party has confidence in itself.

 

45 On whatever terms peace is made, it must be absolutely kept. From the sacredness of the faith pledged in the engagement, and every thing must be cautiously avoided, not only savoring of treachery, but that may tend to awaken and inflame animosity. For what Cicero has said of private friendships may with equal propriety be applied to public engagements of this kind, which are all to be religiously and faithfully observed, especially where war and enmity have ended in peace and reconciliation.

 

 

Source

 

Adapted from The Rights of War and Peace, Including the Law of Nature and of Nations, by Grotius, translated from the original Latin by A. C. Campbell. M. Walter Dunne, New York, 1901.

 

The text of this work is on-line at the Liberty Library of Constitutional Classics.

 

An alternative on-line source is that of Wei Wilson Chen at Geocities.

 

Authors born between 1665 and 1700 CE

Harvey ] [ Grotius ] Descartes ] Gracian ] Locke ] Newton ] Sor Juana ] Voltaire ]

 

 

 

Introduction and adaptation of  extracts Copyright © Rex Pay 2004