The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

CHAP. VIII. Of Empire over the Vanquished in War.

• I. That a Civil Empire, whether in a King or a people, may be acquired by War, and what the effects are of such an acquisition.
• II. Such an Empire may be gained over a people as is merely despotical, and then they cease to be a City.
• III. Sometimes a mixt Government is acquired.
• IV. Sometimes even the incorporeal things of the people may be acquired by War, where al∣so is handled the Bond given by the Thessa∣lians to the Thebans, forgiven by Alexan∣der.

I. That the Civil Empire, as well in a King as people, may be gained by War.

IT is no marvel that he who can bring into subjection every particular person, can also subdue the Body Politick, whether it be a City, or part of a City, and whether that subjection be merely civil, or merely despotical, or mixt. This Argument we shall find used by Seneca in that Controversie which is de Olynthio, where he brings in one pleading thus, He is my Slave whom I bought by the right of War; and very expedient it is for you, O ye Athenians, not only to acknowledge my Title to be just, but to defend it; otherwise not∣withstanding all your great Conquests, your Empire also must be confined within your ancient Ter∣ritories. Wherefore Tertullian acknowledgeth, That Empires are gained by Armes, but enlarged by Conquests. So likewise Quintilian, Kingdoms, Nations, and the Bounds of Cities and Countries, are determined by the Rights of War. Alexander in Curtius claims by this Right, saying, That Laws are usually given by the Conquerour, and received by the Conquered. Thus Minio in his Oration to the Romans, Why do ye Romans send every year your Praetor with the Ensigns of your Empire, the Rods and Axes into Syracuse, and other the Grecian Cities in Sicily; for which ye can give no other reason but this, That having con∣quered them by your Armes, you impose upon them what Laws you please. Ariovistus in Caesar's Commentaries saith, That by the Law of Armes, the Conquerour may govern the Conquered in what manner he pleaseth; and that the custom of the Romans was to govern those Cities which they had by their Armes subdued, not after other mens prescriptions, but according to their own will and pleasure. Justine likewise out of Trogus tells us, That before Ninus, Princes that made War, sought not Empire but Glory; and therefore were contented with the honour of the Victory, but sought not to enlarge their Kingdoms: and that this Ninus was the first that ever incroached upon another mans dominions, and from him it became a custom. Bocchus in Salust pleads, That he took up Arms only to defend himself; for that part of Numidia, from whence he had driven Jugurtha, was made his by the Law of Armes. But a Right may be gained by a Conquerour, either so far only as it was in the King or some o∣ther Governour; and then he succeeds in his Right only, and no farther. So Alexander after the Battel at Gaugamela was saluted King of Asia. And the Romans also claimed unto themselves all that was Syphax's by the Right of War. But when the Huns plead∣ed to the Romans, That the Country of the Gepidae was theirs, because they had taken their King Prisoner: the Romans denied it, because the Gepidae were governed by a Prince rather than by a King; for that the Kingdom was not Patrimonial. And therefore they con∣clude, That he could not lose more than what was his own. Or it may also be gained, as it is in the people; and then the Conquerour hath as much power to alienate it as the people had; and thus do some Kingdoms become Patrimonial, as I have elsewhere said. Thus the Persians in Menander plead for the Territories of the City Daras, For, say they, since the City Daras it self is by the Right of War subdued by us, it is but reasonable that what belonged to that City should likewise be ours. So Belisarius having conquered the Vandals, would have had Lilybaeum in Sicily yielded up to the Romans; because, as they pre∣tended, the Goths had before given it to the Vandals, which the Goths denied.

II. Such an Em∣pire may be gained over the people as is merely de∣spotical.

Or an Empire may be yet more absolutely gained. For such a Government may by War be gained, as that which was before a City, may cease to be any more a City, but be rather reduced (as it were) into a Family; which may be done either by adding it unto ano∣ther City, as Kingdoms were by the Romans annexed to their Empire as Provinces; or by annexing it to no other City, (but by destroying its Charter, and nulling the Govern∣ment thereof:) As for example, When a King maintaining the War at his own proper charge, doth so enslave the people, that in his Government over them he minds his own private gain and interest only, but neither their profit nor safety; which kind of Govern∣ment is Despotical, and not Civil. Aristotle thus distinguished them, Of Empire, saith he, some are altogether fitted to the profit of the Prince, others for the profit and safety of the Subjects; this is proper to Monarchy, that to Tyranny. Now the people that are held un∣der this kind of Government, are no longer Citizens, but a multitude of Servants in a great Family. It was well said of Anaxandrida,

—Servorum nulla est usquam Civitas.

A multitude of Slaves can never constitute a City. Which distinction is allowed of by Taci∣tus, He did not carry himself, saith he, in his Government as a Lord over his Slaves, but as be∣ing chief among his Fellow Citizens. So Xenophon of Agesilaus, What Cities soever he reduced under his obedie••ce, he made free by exempting them from the slavery which Captives pay unto their Lord, and by contenting himself with that obedience that a free people do willingly yield unto their natural Prince.

III. A mixt Go∣vernment is sometimes got by War.

Whence we may understand the nature of a mixt Monarchy, that is, between that which is Despotical, and that which is Civil; as namely, when our servitude is mixt with some kind of personal liberty. Thus we read, that to some people the use of Armes are forbidden by the Conquerour, and that no Iron shall be wrought into any thing, but such Instruments only as are necessary for ploughing the Earth, and such like. So some people being conquered, are enforced to change their language, others to alter the whole course of their lives, and the like.

IV. That even the incorporeal things of the people, may be by a War gain∣ed.

Now as whatsoever any particular Prisoner had when he was taken, was by the Law of Arms his or theirs that took him; so whatsoever belongs to the people in general is his or theirs that subdue them, if they will take it. For what Livy saith of such as surrender them∣selves, namely, All are given up to the Conquerour; so that what he will take to himself, and wherein and how far forth he will punish the Conquered, is wholly in his own power. The very same in a Solemn War may be said of those that are conquered. Thus Polybius, They that yield themselves up to the Romans, do yield up in the first place their Country, and what Towns and Cities soever are therein, together with all their Men and Women that are in them; then all their Rivers and Ports, and generally all things sacred and religious: so that the Romans are Lords of all, and they that thus surrender themselves have nothing left. And the self same Right hath the Conquerour over those that are actually conquered in a solemn War. For dedition doth but voluntarily yield up that which otherwise would be taken away by force. Hannibal encourageth his Souldiers, being ready for Battel, with this Argument, Whatsoever the Romans have by so many Conquests got and heaped up, shall together with themselves be ours af∣ter the Victory. Thus all that Mithridates had by force of Armes added to his own, Pom∣pey by subduing him annexed to the Roman Empire; wherefore even those incorporeal Right which formerly belonged to the whole Body of the people, are now by the Law of Armes the Conquerours, so far forth as he pleaseth. Thus Alba being subdued, what Rights soever the Albans enjoyed were claimed by the Romans. Whence it follows, That the Thessalians stood fully discharged of the hundred Talents for which they stood bound to the Thebans, when Alexander the Great conquering the Thebans, had by the Right of Conquest forgiven the Debt. Neither is that altogether true that Quintilian urgeth in the defence of the Thebans, namely, That that only is the Conquerours which he can lay hold on. But that Right which is incorporeal cannot be apprehended by any mans hand; and again, That the condition of an Heir is one thing, and that of a Conquerour is another; because to the Heir may pass the Right, but to the Conquerour the thing: For he that is Master of the persons, is also Master of the Estate, and of all the rights belonging to the persons. He that is himself possest as a Slave, cannot be said to possess any thing to himself; neither can he have any thing in his power to dispose of, who hath no power to dispose of himself: yea, though the Conquerour do grant unto the conquered Jus Civitatis, The Right of being a City; yet may he take away and reserve to himself whatsoever he pleaseth out of what was the Cities. It is in his own power to prescribe what bounds he will to his own bounty. Thus Caesar, in imitation of that Fact of Alexander's to the Thessalians, forgave a very great Debt to the Dyrrhachines, which they owed to another City of the adverse part. But here it might have been objected, That that War of Caesar's was not of the same kind with that concerning which this Law of Nations was instituted. So also we read that Mark Anthony commanded the Tyrians to restore unto the Jews what belonged unto them, as not being granted unto them by the Roman Senate, and whereof they were possest before the War made with Cassius; as Josephus relates it.

Notes

• Liv. l. 35.
• De Bello Gallic.
• Lib. 1.
• Book 1. Ch. 3, Sect. 2.
• Procop. Vand. 2.
• De Repub. lib. 7.
• Annal. lib. 12.
• See Book 1. Chap. 4, Sect. 8. Book 2. Ch. 5. Sect. 31. Book 3. Ch. 5. Sect. 2. and Ch. 20. Sect. 49. Vid. Ch. 7. Sect. 8.