The Law of War and Peace (1625)
by Hugo Grotius
When Sovereignty or Ownership Ceases
I. Ownership and sovereignty cease when he who possessed the right is taken away and leaves no successor.
I HAVE already sufficiently explained in what manner not only private properties but also sovereign powers are originally acquired, and how they are transferred let us now see how they are terminated.
We have already shown above, in passing, that such rights are extinguished by abandonment, for the reason that, when the desire ceases, ownership does not continue. There is also another mode of extinguishment, when the subject, in whom the sovereignty or the ownership resides, is taken away before there is any transfer of ownership, either expressed or implied; such a case arises in succession to one who dies intestate. If, therefore, a person dies without having given any indication of his will and without leaving any blood relative, all the rights which he possessed are extinguished. In consequence, unless some human law prevents, his slaves will be free, and peoples that had been subject to his sway will become independent, because from their very nature such things cannot be acquired by possession unless they voluntarily yield their liberty. Other possessions of the deceased, however, will become the property of the first one who takes possession.
II. Similarly the rights of a family are extinguished when the family dies out.
The same rule is to be applied in case a family, which possessed certain rights, has become extinct.’
III. So also the rights of a people are extinguished if the people ceases to exist.
1. The result is the same if a people has ceased to exist. Isocrates, and after him the Emperor Julian, said that states are immortal; that is, they can continue to exist because a people belongs to the class of bodies that are made up of separate members, but are comprehended under a single name, for the reason that they have ‘a single essential character,’ as Plutarch says, or a single spirit, as Paul the jurist says. Now that spirit or ‘essential character’ in a people is the full and perfect union of civic life, the first product of which is sovereign power; that is the bond which binds the state together, that is the breath of life which so many thousands breathe, as Seneca says. These artificial bodies, moreover, are clearly similar to a natural body; and a natural body, though its particles little by little are changed, does not cease to be the same if the form remains unchanged, as Alfenus argues after the philosophers.
2. And so the statement of Seneca, that no one of us is the same in old age as he was in youth, ought properly to be so interpreted as to be understood only of that which is material. Similarly Heraclitus, as cited by Plato in the Cratylus and by Seneca in the passage just quoted, said that we do not twice descend the same river. This saying Seneca rightly corrects thus: ‘The name of the river remains the same, but the water has been borne along.’ Likewise also, in comparing a river to a people, Aristotle said that rivers bear the same name, though different water is always replacing that which is flowing on. Again, it is not an empty name merely that remains, but ‘the essential character,’ which Conon defines as an ‘inherent bodily character,’ Philo as a ‘spiritual bond,’ and the Latins as a spirit.
In this sense, then, as Alfenus, and Plutarch On the Delayed Vengeance of the Deity, say, a people is considered the same at this time as it was one, hundred years ago, although not one of the men of that time is now alive. A people survives’ so long as that common union, which makes a people and binds it together with mutual bonds, preserves its unity ‘; such are the words of the same Plutarch in this connection. Hence arose the custom of speech, that in addressing a people which now is we ascribe to it what happened to the same people many ages ago. This it is possible to, observe not only in the historians but also in the Scriptures, as in Mark 10:3, John 6:32; 7:19, 22), Acts 7:38. Thus in Tacitus Antonius Primus serving under Vespasian reminds the soldiers of the third legion of their former exploits, how ‘under Marc Antony they had defeated the Parthians, under Corbulo, the Armenians.’
3. As a result of hatred, then, and not in accordance with truth, in the writings of the same Tacitus, Piso says that the Athenians of his time are not Athenians,’ since these had been destroyed by so many slaughterings, but are the offscouring of the nations. That influx from abroad had perhaps lessened their prestige somewhat, but it had not made them a different people. Piso, in fact, was not unaware of this, since he reproached those very Athenians of his own time with their ancient defeats by the Macedonians and their cruelty to their fellow citizens. But while the change in the individual members does not cause a people to cease to be what it was even for a thousand years or more, yet it cannot be denied that a people may cease to exist. The extinction of a people, moreover, may be brought about in two ways: either by the destruction of the body, or by the destruction of that form or spirit which I have mentioned.
IV. Such extinction takes place if the essential parts have been destroyed.
A body perishes if the parts without which the body cannot exist have at the same time been destroyed, or if the corporate bond of union has been destroyed.
Under the first type of destruction we must class the engulfing of peoples by the sea, as the peoples of Atlantis mentioned by Plato, and others by Tertullian; likewise the destruction of peoples that an earthquake or a chasm in the earth has swallowed up, of which there are examples in Seneca, Ammianus Marcellinus, and elsewhere; and also of those who have voluntarily destroyed themselves, as the Sidonians and Saguntines. Pliny says that fifty-three peoples of ancient Latium had perished without leaving a trace.
What if there are so few survivors of such a people that they cannot constitute a people? It will be possible for the ownership of the property, which the people possessed as private citizens, still to remain in their hands; but not what belonged to the people as a people. The same principle holds true also in regard to a corporation.
V. The rights of a people are extinguished when the body of the people as a whole is broken up.
The body politic of a people is broken up if by reason of pestilence or rebellion the citizens withdraw from the association of their own accord, or if they are so scattered by force a that they cannot unite together again, as sometimes happens in wars.
VI. The rights of a people are extinguished when the form of organization, under which the people exists, is destroyed.
A people’s form of organization is lost when its entire or full enjoyment of common rights has been taken away. In such cases the individual citizens may also become subject to personal slavery; thus, the people of Mycenae were sold by the Argives, the Olynthians by Philip, the inhabitants of Thebes by Alexander, and the Bruttians were made public slaves by the Romans. Citizens, again, may be deprived of the right of government, though personal liberty is left ‘to them. So Livy tells us that in regard to Capua the Romans decided that it should be inhabited as a city, but that there should be no body politic, no senate, no council of the common people, and no magistrates, but that the population should be without a public assembly and without authority, and that a prefect sent from Rome should administer justice. And so Cicero in his first speech before the people Against Rullus says that not even the shadow of statehood z had been left to Capua. The same thing should be said of peoples that have been reduced to the form of a province, and likewise of those that have been subjected to the sway of another people. Thus Byzantium was made subject to Perinthus by Severus, and Antioch to Laodicea by Theodosius.
VII. The rights of a people are not extinguished by reason of migration.
If, however, a people has migrated, either of its own accord, because of famine or other misfortunes, or under compulsion, as the people of Carthage did in the third Punic war, the people does not cease to exist,” provided the outward form, which I have mentioned, remains; and surely a people does not cease to exist if only the walls of its city have been leveled. And so when the Spartans refused to allow the Messenians to take oath to maintain the peace of Greece, because the walls of their, city had been destroyed, the case was decided against them by the common assembly of the allies.
VIII. Such rights are not extinguished by a change of government; and herein also the question of what is due to a new king or to a liberated people is treated.
1. Furthermore, it makes no difference in what way a people is governed, whether by royal power, or by an aristocracy, or by popular government. The Roman people, in fact, is the same under kings, consuls, and emperors. Nay more, though the king rules with absolute power, the people will be the same as it was before, when it was its own master, provided that the king governs it as the head of that people and not of another. For the sovereign power, which resides in the king as the head, remains in the people. as the whole body, of which the head is a part; and so when the king, if elective, has died, or the family of the king has become extinct, the sovereign power reverts to the people, as I have shown above. There is no reason why any one at this point should cite Aristotle against me. Aristotle declares that the state does not remain the same when the form of government is changed; just as a melody, he says, does not remain the same when it is transposed from the Dorian to the Phrygian mode.
2. We must, in fact, recognize that there may be several forms of a single artificial thing, as in a legion there is one form of organization through which it is governed, and another by means of which it fights. Thus one form of the state is the association of law and government, another the relation to each other of those parts which rule and are ruled. The political scientist has under consideration the latter, the jurist the former. And this did not escape the notice of Aristotle, when he added: ‘But whether, after a change in the form of government, the debts ought to be paid or not, is another question.’ That is, the question of payment of debts belongs to a different science, which Aristotle does not confuse with political science, lest he should himself commit the fault which he censures in others, ‘of jumping from one subject of discussion to another.’
3. A people by making itself subject to a king does not cease to owe the money which it owed when free. For it is the same people, and it retains its ownership of all public property; it even retains its sovereignty over itself, although this must now be exercised not by the body, but by the head.
From this principle is derived the answer to the question sometimes actually raised as to the place which ought to be occupied in assemblies by one who has acquired the sovereignty over a people previously free. Of course he is entitled to the same place which the people itself had occupied. Thus in the Amphictyonic Council Philip of Macedon received the place of the Phoceans. In like manner a free people will take the place which had belonged to their king.
IX. What becomes of such rights if peoples are joined together?
Whenever two peoples are united,’ their rights will not be lost but will be shared in common. Thus the rights first of the Sabines, and then of the Albans, were taken over by the Romans, and the peoples were made into a single state, as Livy says. The same principle should be applied in the case of kingdoms which are united not by treaty or by the fact merely that they have a king in common, but in a true union.
X. What becomes of such rights if a people is divided?
On the contrary, it may happen that what had been a single state may be divided, either by mutual consent or by the violence of war, as the Persian Empire was divided among the successors of Alexander. When such a division takes place several sovereignties exist in the place of one, with their respective rights over the individual parts. In such cases, whatever common property there was will have to be either administered in common, or divided pro rata.
The same reasoning must apply also in the separation of a people which occurs by mutual consent in sending out colonies. For thus also a new people arises, possessed of its own rights. The colonists, in fact, are not sent out as slaves, but possessed of equal rights,’ as Thucydides says. The same author relates that the Corinthians sent a second colony to Epidamnus with equal rights. According to Dionysius of Halicarnassus, king Tullus said: ‘We think it neither true nor just that mother cities should rule their colonies as if by the law of nature.’
XI. Who is now possessor of the rights which once belonged to the Roman Empire, in so far as they do not appear to have been alienated?
1. Among historians and jurists there is also the notable question, who is now the possessor of those rights which once belonged to the Roman Empire. Many hold that these now belong to the kingdom of Germany as it was formerly called, or the Empire (it makes no difference by what name you call it); and they imagine some sort of a substitution of the latter empire in the place of the former, although it is nevertheless well known that Great Germany, or Germany beyond the Rhine, was outside the territory of the Roman Empire during the most of its existence.
It seems to me that a changing over or transfer ought not to be assumed, unless it is supported by sure proofs. I say, therefore, that the Roman people is the same that it formerly was, although mingled with an increment of foreigners, and that the empire has remained within it as if in the body in which it once existed and lived. For whatever the Roman people in former times could rightfully do, before the emperors ruled, it had the same right to do after each emperor had died, and so long as there was not yet a successor. Besides, the election of the emperor belonged to the people, and was sometimes made by the people in person, or through the senate. Moreover, the elections, which were made by different groups of legions, were not rendered valid by the right of the legions (for there could not be any sure right in an empty name) but by the approval of the people.
2. The fact that all the inhabitants of the Roman Empire were made Roman citizens by the constitution of Antoninus is not inconsistent with this view. By that constitution the subjects of the Roman Empire, in fact, obtained the rights which formerly the Roman colonies, municipal towns, and provinces had possessed, so that they both shared the honors and enjoyed the rights of Roman citizens. But the source of sovereign power did not reside in the other peoples in the same way as in the people of the city of Rome. This it was not in the power of the emperors to confer; they were, in fact, unable to change the mode and basis of holding the sovereign power.
The right of the Roman people was in no degree diminished by the fact that afterward the emperors preferred to reside in Constantinople rather than in Rome. But even then the whole people had to ratify the election made by the part which lived in Constantinople; and for this reason Claudian called the Byzantines Roman citizens. The Roman people furthermore kept a far from unimportant survival of its right in the pre-eminence of the city, the distinction of the consulship,’ and other privileges. Therefore whatever right the inhabitants of Constantinople could have had in choosing a Roman emperor was dependent on the will of the Roman people. To pass by other considerations when, contrary to the will and custom of the Roman people, the inhabitants of Constantinople had submitted to the rule of a woman, Irene, the Roman people very properly revoked its expressed or implied acceptance and independently chose an emperor and proclaimed his election by the utterance of the first citizen, that is, the bishop. Such was the procedure also in the Jewish state; when there was no king, the person of the high priest ranked first.
3. This election, moreover, was personal in the case of Charlemagne and certain of his successors, who carefully distinguished the right of sovereignty which they had over the Franks and also over the Lombards from the right of sovereignty which they had over the Romans, as if this had been acquired on new grounds. Later, to be sure, the Franks were divided into the western Franks, who now possess France, and the eastern, who hold Germany or Alemania; for they were called the two kingdoms of the Franks by Otto of Freising. When now the eastern Franks had begun to choose their kings by election (for up to this time the succession of the Frankish kings, though implying agnate succession, had not depended so much on fixed rights as on the choice by the people),’ the Roman people decided not to choose its own king, but to accept the king whom the Germans had elected, in order that it might have a more dependable assurance of protection. Nevertheless it did reserve for itself a measure of right to approve or disapprove of the election, in so far as this affected the Roman people.
4. Such approval, furthermore, was customarily proclaimed by the bishop and solemnly attested by a special coronation. In consequence the one that has been chosen as king by the seven electors who represent the whole of Germany has the right to rule the Germans in accordance with their customs; but it is by the approval of the Roman people that the same king becomes the Roman king or Roman emperor, or, as historians often style him, king of the kingdom of Italy.’ Under that title he holds subject to his sway all possessions that belonged to the Roman people, in so far as these have not passed under the rule of other peoples by treaties, or by occupation of abandoned territory, or by right of conquest.
From this it can easily be understood also by what right, in the case of a vacancy in the Empire, the Bishop of Rome assigns investitures of fiefs of the Roman Empire.’ The reason is that he holds the primacy among the Roman people who are at such a time free. The business of a corporate body is ordinarily administered in the name of that body by its leading person,’ as I have said elsewhere. In fact the principle laid down by Cynus and Rayner that, if the Roman Emperor is prevented from discharging the duties of his office by disease or captivity, a substitute can be appointed for him by the Roman people itself, is by no means unsound.
XII. Concerning the rights of heirs.
It is a clear legal principle that the person of the heir is considered the same as the person of the deceased in all that concerns the continuation of ownership of both public and private property.
XIII. Concerning the rights of the conqueror.
In what degree the conqueror succeeds, to the rights of the conquered will be discussed below, in treating the effects of war.