Commentary on the Law of Prize and Booty. Hugo Grotius
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their respective losses from the individual at fault.b
Conclusion VII, Article III, Part I
In short, we may summarize the restrictions of form in this matter by saying that, A war is justly waged by voluntary agents in so far as it remains within the sphere of the right contested and is waged among the persons obligated with respect to that right.
New explanation
The discussion of certain special cases will enable us to clarify this conclusion, particularly in regard to the subjects of public enemies, who constitute, as a rule, the chief cause for dispute among writersc on the law of war. Accordingly, we should ascertain the extent to which this famous passage from Euripidesd is true:
καθαρὸς ἅπας τοι πολεμίους ὃς ἂν κτάνῃ.
That man is undefiled and dutiful Who slays a public enemy. . . .
We must decide, too, whether or not Tacituse was right when he wrote: “In time of peace, causes and merits are taken into consideration; when war breaks out, the innocent and the guilty fall side by side.” For if we apply this generalization specifically to the subject of the laws of prize and booty, the said laws will become more readily understandable.
In so far as bodily attack is concerned, it is permissible—in accordance with the laws of the first order [Laws I and II], which do not take into account the intent of one’s adversary—to make an attack upon all enemy subjects who resist, whether knowingly or in ignorance, the execution of our rights.a For such subjects, without exception, are “bringing about” an injury, even though that injury may not be “voluntary.”17 This assertion is expressly confirmed by divine law,b which decrees the slaughter of the whole adult population of certain cities taken by storm, although many of the adults in question must be innocent. Conversely, the same rule will be applicable in justifying the defence of a city. Thus Augustinec has said: “Nor does that man incur guilt for another’s death, who has surrounded his property with walls which have been utilized in causing someone to be wounded and to perish.”
Nevertheless, if there are some individuals who can be separated from the whole body of the enemy and who do not impede the execution of our rights,d such individuals should of course be spared altogether from attack upon their persons. Ciceroe offers the following admonition: “Furthermore, we ought to accord a favourable reception to those who, having laid down their arms, take refuge in the good faith of our generals, even though the battering-ram has struck through their walls.” Moreover, scholarly authorities have expressed the opinion that this is precisely the interpretation which must be given to the pronouncement of Celsus,f namely, that by the law of war we “receive”18 deserters, that is to say, those persons who have abandoned the enemy ranks. Yet again, [49] just as the precepts of equity and those of divine law,a that infallible guide of equity, direct us to spare all persons in a surrendered city, so also they direct that in the case of a city taken by assault, all those whose lives do not impede the execution of our rights shall be spared in so far as is possible. Thus Seneca, in his tragedy Octavia,b suggests that the title “foe” cannot be applied to a woman. Similarly, Camillusc asserts that he bears no weapons against persons of that tender age which is spared even when cities are captured. Alexander,d too, declares: “I am not wont to wage war against captives and women; he whom I hate must bear arms.” The inclusion of a reference to “captives” is commendable; for that other [war-like ruler, Pyrrhus,] speaks falsely and in the excessively ferocious fashion characteristic of Aeacus’ descendants, when he says:e
There is no law to spare the captive foe,
Or bar his punishment. . . .
Nor is the answer given him,
That act which law forbids not, shame forbids,
sufficiently forceful. For such conduct as that of Pyrrhus is forbidden by law, too—in fact, by that most sacred of natural precepts which declares that man must not be prodigally misused by his fellow man. Senecaf maintains that “the essential principles of equity and virtue demand that mercy be shown even to captives.” The theologian Augustineg admonishes us as follows: “Let it be by necessity, not by choice, that we lay low the enemy who battles against us. Just as he who offers warlike resistance is repaid with violence, so mercy is owed to him who has been captured through our victory, and especially to him from whom no disturbance of the peace is feared.” Wherefore Eurystheus also, according to Euripides,a declared that those hands would never be washed clean, which should fail to spare him whom the fortunes of war had spared. Farmers—that is to say, unarmed men who dwell amid the open fields and who readily yield to armed force—are properly included in more or less the same category. For what purpose is served by raging against these men, since they are not an obstacle to the conduct of the war, but rather, as Pollio was wont to say, a prize for the victor? In accordance with this very argument, however, a different criterion will prevail if the enemy is rendered stronger by the fact that agricultural activities have not been hampered.b
These same observations may be applied, moreover, to those subjects who act in good faith, or in other words, to those who have incurred no guilt. As Senecac says, the wise man “will let his enemies go unharmed, sometimes even with praise, if they have girded themselves for war with honourable motives, [for example,] in order to keep faith, in observance of a treaty, or in defence of freedom.”
But the guilty must by all means be punished,d in conformity with the Fifth Law. The right underlying this law does not cease to exist once victory has been attained, as does that other right [for which the war is prosecuted], a distinction which will be obvious to anyone who considers the matter at all carefully. Therefore, culpable persons ought to be subjected even to corporal punishment, provided only that the offence involved calls for such a penalty. When this is the case, the same judgement should be rendered in warfare as in legal trials.e Platof expresses admirably his approval of the discord attendant upon war, μἑχρις οὑ̑ ἂν οἱ αἴτιοι ἀναγκασθω̑σιν ὑπὸ τω̑ν ἀναιτίων ἀλγούντων δου̑ναι δίκην, “up to the point where those who have incurred guilt, are forced by the innocent victims of the original injury, to pay the penalty.” According to Diodorus Siculus,a Gylippus, in his oration against the Athenian captives, maintains that the said captives, overtaken by disaster because of their own wickedness and cupidity, are striving in vain to lay the [49′] blame on their ill fortune and to acquire the status of suppliants, since this defence is reserved for men of pure hearts which have been led astray solely by circumstances. For it was the intention of the authors of the law regarding suppliants, that mercy should be granted to the unfortunate, but that punishment should be inflicted on those who had transgressed with unjust intent. Gylippus then comes to the following conclusion: διόπερ ἑκουσίως ἑλόμενοι πόλεμον ἄδικον εὐψύχως ὑπομενόντων τὰ τούτου δεινά; “Wherefore, since they have begun an unjust war of their own free will, let them bear with fortitude the misfortunes attending that war.” Themistiusb follows a like trend of thought when he says that pardon should be extended to misfortune, correction to error, and punishment to iniquity. Under the third head he places those individuals who have been the instigators of rebellion; under the second, those who have been carried away, so to speak, by the impetus of war; and under the first, those who have succumbed to the party which at the time happened to be the stronger. Similarly, Velleiusc observes that the Athenians in the time of Mithridates were overwhelmed by their enemies and besieged by their friends, so that their hearts were outside the city walls while, in obedience to necessity, their bodies remained within the walls. This example may be used to confirm the distinction implicit in the saying that, “Some men are of the enemy, while others are with the enemy.” Accordingly, the victor, having attained judicial authority, will temper in the manner above indicated the punishments to be decreed.
So