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Hugo Grotius (1583-1645), a Dutch scholar and jurist, published his legal masterpiece, De Jure Belli ac Pacis (On the Law of War and Peace), in 1625. In it he raised the question of whether nations were justified in pillaging with impunity the wealth of other nations during times of war. His work contributed significantly to the formation of international law as a distinct discipline.
III.XII.V. There are some things of such a nature, as to contribute, no way, to the support and prolongation of war: things which reason itself requires to be spared even during the heat and continuance of war. Polybius calls it brutal rage and madness to destroy things, the destruction of which does not in the least tend to impair an enemy’s strength, nor to increase that of the destroyer: Such are Porticos, Temples, statues, and all other elegant works and monuments of art. Cicero commends Marcellus for sparing the public and private edifices of Syracuse, as if he had come with his army to protect them, rather than to take the place by storm.
III.XII.VI. As this rule of moderation is observed towards other ornamental works of art, for the reasons before stated, there is still greater reason, why it should be obeyed in respect to things devoted to the purposes of religion. For although such things, or edifices, being the property of the state may, according to the law of nations, be with impunity demolished, yet as they contribute nothing to aggravate the calamities, or retard the successes of war, it is a mark of reverence to divine things to spare them, and all that is connected therewith: and more especially should this rule be adhered to among nations, worshipping the same God according to the same fundamental laws, although differing from each other by slight shades of variation in their rights and opinions. Thucydides says that it was a law among the Greeks of his time, in all their invasions of each other’s territories, to forbear touching the edifices of religion: and Livy likewise observes that, upon the destruction of Alba by the Romans, the temples of the Gods were spared.
Hugo Grotius, The Rights of War and Peace, including the Law of Nature and of Nations, translated from the Original Latin of Grotius, with Notes and Illustrations from Political and Legal Writers, by A.C. Campbell, A.M. with an Introduction by David J. Hill (New York: M. Walter Dunne, 1901).
In The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, Emmerich de Vattel, a Swiss jurist, explicitly made the case that plundering art and architecture in times of war should be considered unlawful.
“For whatever reason a belligerent plunders a country, he should spare buildings that are the pride of mankind and do not strengthen the enemy. Temples, tombstones, public buildings, and all other works of art distinguished for their beauty; what can be the advantage of destroying them? Only an enemy of mankind can thoughtlessly deprive humanity of those monuments of art, the exemplars of artistry.” Book III, Chapter IX, §168
Edward Dodwell, an Irish painter, traveller and writer on archaeology, witnessed Lord Elgin’s removal of sculpture from the Parthenon. He lamented the event , declaring that it and the other temples of Athens must not be destroyed since they are “the property of all nations.”
“During my first tour to Greece I had the inexpressible mortification of being present when the Parthenon was despoiled of its finest sculpture, and when some of its architectural members were thrown to the ground….
It is painful to reflect that these trophies of human genus, which had resisted the silent decay of time, during a period of more than twenty-two centuries, … should at last have been doomed to experience the devastating outrage which will never cease to be deplored. Independent of the moral blame which must necessarily attach to such an act, the authority of the example may henceforth be pleaded as a precendent, and employed as an apology for similar depredations. The Athenian temples will thus probably be destroyed for the sake of their ornaments; which instead of remaining in the original places, as the property of all nations, will be appropriated by the strongest.”
Edward Dodwell, A Classical and Topographical Tour Through Greece: During the Years 1801, 1805, and 1806, Volume 1 (Rodwell & Martin, 1819), pp. 322-323.
By a decree of Louis XVIII, a limited number of paintings were returned from France to Prussia after Napoleon’s defeat and his exile to Elba.
Treaties concluded by Napoleon with the states that he conquered specified works of art to be ceded to France. A division of the army called the Commission of Arts and Sciences was responsible for caring for the art and shipping it to Paris. After the Battle of Waterloo, the Duke of Wellington pressured France to restore to its owners any art taken by French troops as spoils of war. Although this was the first time that the significance of national cultural property was invoked to justify a major restitution of art works, the Second Treaty of Paris, signed on 30 May 1814, is silent on the subject.
The Duke of Wellington, in a letter to Viscount Castlereagh dated 23 September 1815, writes the following regarding the return of art objects taken to France by Napoleon:
Thus the question regarding the museum stands under the treaties. The Convention of Paris is silent upon it, and there was a communication upon the subject which reserved the decision for the Sovereigns.
Supposing the silence of the Treaty of Paris of May, 1814, regarding the museum, gave the French government an undisputed claim to its contents upon all future occasions, it will not be denied that this claim was shaken by this transaction.
Those who acted for the French government at the time considered that the successful army had a right to, and would, touch the contents of the museum, and they made an attempt to save them by an article in the military Convention. This article was rejected, and the claim of the Allies to their pictures was broadly advanced by the negotiators on their part; and this was stated as the ground for rejecting the article. Not only then the military Convention did not in itself guarantee the possession, but the transaction above recited tended to weaken the claim to the possession, by the French government, which is founded upon the silence of the Treaty of Paris of May, 1814.
The Allies then, having the contents of the museum justly in their power, could not do otherwise than restore them to the countries from which, contrary to the practice of civilized warfare, they had been torn during the disastrous period of the French Revolution and the tyranny of Buonaparte.
Arthur Wellesley Duke of Wellington. The Dispatches of Field Marshal the Duke of Wellington: During His Various Campaigns in India, Denmark, Portugal, Spain, the Low Countries, and France, Volume 8. Great Britain: Parker, Furnvall, and Parker 1847, p. 269.