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CHAPTER VII: Of the Right over Prisoners. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
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Of the Right over Prisoners.
I.All Prisoners in a solemn War are, by the Law of Nations, Slaves.I. 1. There is no Man by Nature Slave to another, that is, in his primitive State considered, independently of any human Fact, as I havea said in another Place; in which Sense we may take the Lawyers, when they say that Slavery is1 against Nature, but it is not repugnant to natural Justice, that Men should become Slaves by a human Fact, that is, by Vertue of some Agreement, or in Consequence of some Crime,b as we have also said already.
2. But by the Law of Nations, which I am now treating of, Slavery is of a more large Extent, both as to Persons and Effects. For if we consider the Persons, not only they who surrender themselves, or submit by Promise to Slavery, are reputed Slaves; but all Persons2 what so ever taken in a solemn War, as soon as they shall be brought into a Place whereof the Enemy is Master; as Pomponius3 tells us. Neither is there any previous Crime required, for here every one’s Condition is alike, even of those who have unhappily been found among the Enemies, upon the sudden breaking out of the War,4 as I have said already. Polybius, of the Perfidy of the Mantineans, speaks thus,5What must these Men suffer, to make their Punishment just? If any one say, they should be sold, with their Wives and Children, as Prisoners of War; but so may they be, by the Law of Arms, who are most innocent. And hence it is, as Philo6 observes, Many good Men lose their natural Liberty by divers Accidents.
3. Dion Prusaeensis, recounting the several Ways of acquiring Property, says,7The third is, when a Man has taken a Prisoner in War, by that Means he makes him his Slave. So Oppian calls the carrying away of Children taken in War, Πολέμου νόμον, the Law of Arms. Halieut. Lib. 2.<603>
II.And their Posterity.II. Neither do only they themselves become Slaves, but their Posterity for ever; for whosoever is born of a Woman after she is a Slave, is born a Slave: And this is what1Martian said, that by the Law of Nations those that were born of Bond-Women are accounted Slaves. And Tacitus,2 speaking of the Wife of a German Prince (taken Prisoner) said, she had Servitio subjectum uterum, a Womb subjected to Bondage, that is, her Child would be a Bondslave.
III.Any Thing done to them is unpunishable.III. 1. But the Effects of this Right are infinite, so that there is nothing that the Lord may not do to his Slave, as Seneca1 the Father said, no Torment but what may be inflicted on him with Impunity,2 nothing commanded him but what may be exacted with the utmost Rigour and Severity; so that all manner of Cruelty may be exercised by the Lords upon their Slaves; unless this Licence is somewhat restrained by the civil Law. It is allowed by all Nations to the Lord, to have Power of Life and Death over his Slave, we are told by Caius,3 (the Lawyer.) He also adds, that this large Power had been limited by the Roman Laws, that is, in Countries which are under the Dominion of the Romans. Hither we may refer that of Donatus upon Teren. What may not a Lord lawfully do to his Slave?
2. Not only the Person, but all Things taken with him, become lawful Prize. A Slave that is in the Power of another,4Justinian says, can call nothing his own.
IV.The incorporeal Goods of the Slave become the Lord’s.IV. Hence the Opinion may be confuted, or at least restrained, which maintains that Things incorporeal1 cannot be acquired by the Law of Arms. It is true, that primarily, and directly, they cannot, but they may be acquired by means of the Person whose they had been. But we must except those Rights that are founded on a particular Relation of Persons, which renders them unalienable, such as paternal Power. For if these Rights are capable of remaining, they remain with the Person,2 if not, they are extinct.
V.The Reason why this was ordained.V. 1. Now this large Power is granted by the Law of Nations for no other Reason, than that the Captors being tempted by so many Advantages might be in-<604>clined to forbear that Rigour allowed them by the Law, of killing their Prisoners, either in the Fight, or some Time after. Asa I said before:1The Name of Slaves, Servi, (Pomponius tells us) arose from this, that Generals sold their Prisoners, thereby preserving them from Death. I said that they might be inclined to forbear, for there is no Sort of Agreement to engage them to it, if we only respect this Law of Nations, but a Motive drawn from Interest.
2. And for the same Reason he has Power to transfer this Right to another, in the same manner as the Property of Goods. This Power also reaches to the Children born in Captivity, because if the Captor had been pleased to have used his utmost Power, he might have prevented their being born; and consequently those born before the Captivity of the Mother, (if they are not personally taken) do not become Slaves. And the Reason that by the Law of Nations Children followed the Mother’s Condition, without regard to that of their Father, is because the Cohabitation of Slaves was neither regulated by the Laws, nor maintained in such a manner, that the Mother should be always under the Eye and Guard of the Father, so that it would have been a very difficult Thing to prove who was the Father. And thus we must understand that of Ulpian,2The Law of Nature is this, that he that is born without lawful Marriage should follow the Mother’s Quality, that is, general Custom founded on some natural Reason; for so the Expression Natural Right is sometimes taken in an improper Sense, as we have shewedb in another Place.
3. But that this Custom of Nations was not admitted without Reason, we may gather from the Practice of civil Wars, wherein Prisoners are generally put to the Sword, because they cannot be made Slaves, which3Plutarch well observed in the Life of Otho, and4Tacitus in the second Book of his History.
4. But whether Prisoners should belong to the People, or to the private Persons who took them, must be determined from what we have said already of the Spoil; for the Law of Nations has in this Case put Men in the same Rank with Goods. So5Cajus the Lawyer, Those Things which are taken from the Enemy, by the Law of Nations are instantly the Captors, so also free Men are made Slaves.
VI.Whether Prisoners may make their Escape.VI. 1. I cannot agree with those Divines, who maintain that Prisoners taken in an unjust War, or their Children, may not lawfully make their Escape, unless it be to their own Country. Here is the Difference,1If they can escape to their own<605> Country during War, they recover their Liberty by the Right of Postliminy: But if elsewhere, or to their own Country after the making of the Peace, they are to be delivered to their Masters upon demand. But it does not therefore follow,2 that the Prisoners are bound in Conscience not to run away, for there are many Rights that have only an external Effect, and impose no internal Obligation, such are those of War, of which we are now treating. Neither can one object, that from the very Nature of Property a real Obligation is laid upon the Conscience: Because there being many Kinds of Property it may be such an one as has only Power in3 human Judgment and by Compulsion, which is often found in other Kinds of Right.
2. For such in some Sort is also that Right that makes void some Wills, or Testaments, for want of some particular Forms which the civil Law requires. For the more probable Opinion is, that what is bestowed by such a Will, may be retained with4 a safe Conscience, at least, whilst there is no Opposition made to it. And the Right of Prescription, which a dishonest Possessor acquires by the civil Law, very much resembles that we now treat of. For the Courts of Justice maintain such a Possessor,5 as if he were real Proprietor; just as the Law of Nations maintains the Possessors of Prisoners that are taken even in an unjust War. And by this Distinction is solved that difficult Point of Aristotle’s,6 Ἄρα δίκαιον τὰ αὑτον̂ ἔχειν ἕκαστον, &c. Is it not just that every one should enjoy his own? But whatsoever the Judge has decreed to the best of his Knowledge, (however unjust his Sentence be) stands good in Law, so that the same Thing may be both just and unjust.
3. But to return to our Question, there can be no Reason supposed, why Nations should have extended the Force of this Right so far as to oblige the Conscience. For the Power of claiming a Prisoner, of forcing him to return, nay, of binding him too, and of taking what he has, is a Motive strong enough to induce the captor to save Life of his Captive; or if he were so barbarous as not to be moved by this Consideration, then certainly he would not be prevailed upon by any Bond of Conscience, but if he think that absolutely necessary,a he may demand an express Promise,7 or a formal Oath.
4. Besides we must not rashly admit that Interpretation, which makes an Act criminal, which is otherwise allowable, in a Law not arising from natural Equity, but made purposely to avoid a greater Mischief.8It signifies not much (says Florentinus the Lawyer) how a Prisoner escapes, whether freely dismissed, or by Force or<606> Cunning has got out of the Power of his Enemy.9 Because this Right of Captivity is so a Right, that in another Sense it is for the most part even an Injustice; as10Paulus the Lawyer expressly calls it; a Right as to some Effects, but an Injustice in respect to the Nature of the Thing itself. Whence it is also plain, if any Man taken in an unjust War fall into the Power of his Enemy, he cannot in his Conscience be thought guilty of Theft, if he carries off with him 11 what was his own; or tho’ not his own,12 if it were due to him as a Reward for his Labour, over and above his Sustenance; provided that he himself owes nothing to his Master, upon his own, or the publick Account, or to him from whom the Master derives his Right. Neither does it avail to say, that such a flight, and carrying off Goods, when caught, use to be severely punished: For there are many other Things that those who have the Power in their Hands do for their own Advantage, and not because they are just.
5. But whereas some Canons13 prohibit the persuading a Slave to quit his Master’s Service; if that Prohibition relate to those Slaves who are justly punished with Bondage, or have by a voluntary Contract made themselves so, it is then just; but if to them, who are taken in an unjust War, or born of such, it shews only that Chris-<607>tians should advise Christians to Patience, rather than to those Acts, which tho’ strictly lawful, may give Offence either to Infidels or weak Minds. In like manner we are to understand the Advice of the Apostle’s given to Slaves, unless that Advice may seem rather to require of Slaves a faithful Obedience to their Masters, whilst they are with them, which is agreeable to natural Equity, for their Labour and their Maintenance mutually answer one another.
VII.Whether they may resist their Lords.VII. But as the same Divines hold, that a1 Slave cannot resist his Lord in executing that external Right which he has over him without Injustice, I entirely agree with them; but there is this manifest Difference between that external Right, and those Things I said before. That external Right, which consists not in a bare Impunity, but is moreover supported by the Authority of Courts of Justice, would be wholly vain, if on the other Side it were lawful to resist. For if it be allowable for a Slave to resist his Lord, he may2 as well resist the Magistrate that defends his Lord: Since it is from the Law of Nations that that Magistrate ought to defend the Lord in that Right, and in the Exercise of it. This Right therefore is like that, which we have elsewhere3 allowed to the Chief Magistrate in every State, whom the Subjects can never in Conscience resist. Therefore St. Augustin joins them both together, when he says,4Subjects should so bear with their Sovereigns, and Slaves with their Lords, that by suffering these temporal Evils with Patience, they may hope for eternal good Things.
VIII.That this Right is not allowed in all Nations.VIII. But this also we must observe, that this Law of Nations concerning Prisoners, has not been at all Times, nor among1 all Nations received, tho’ the Roman Lawyers call it General, thus giving the Name of Whole to the most known and most considerable Part. So among the Hebrews, who had peculiar Laws, whereby they were separated from the Commerce of other Nations, there was a Place of Refugea for Slaves, that is, for those (as the Interpreters well observe) who2 became so by their Misfortune, not their Crime; on which that Privilege seems grounded among the French, given to Slaves to enter again on Possession of their Liberty, the Moment they come into the Dominions of that Kingdom, which is also now allowed, not only to those taken in War, but to all others whatever.
IX.Nor now among Christians, and what is introduced in its stead.IX. 1. But among Christians1 it is generally agreed, that being engaged in War, they that are taken Prisoners, are not made Slaves, so as to sell them or force them to hard Labours, or to such Miseries as are common to Slaves, and that with Reason; for they are, or should be better instructed by the great Recommender of every Act of Charity, than not to be diverted from the killing of unhappy Persons, unless they may be allowed the Exercise of a somewhat less Cruelty.2 And Gregoras declares<608> it is a continued Custom among those of the same Religion, nor was it peculiar to them who lived under the Roman Government, but was common to the Thessalians, Illyrians, Triballians and Bulgarians. And this at least (tho’ but a small Matter) is an Effect of the regard Men have to the Christian Religion, which Socrates3 in vain attempted to have introduced among the Grecians.†
2. And what Christians in this Case observe among themselves,4 the Mahometans likewise do among themselves. Yet even among Christians this Custom still continues, that those taken in War are kept till their Ransom5 be paid, which is set at the Pleasure of the Conqueror, unless it be otherwise agreed upon; but this Right of keeping Prisoners is usually granted to the Captors, except they be Persons of considerable Rank, to whom the State only, or its chief Magistrate has a Right, according to the Custom of most Nations.
[a ]B. ii. ch. 22. § 11.
[1 ]Servitus est constitutio Juris Gentium, qua quis dominio alieno contra naturam subjicitur. Digest. Lib. I. Tit. IV. De statu hominum, Leg. IV. § 1.
[b ]B. ii. ch. 5 § 27.
[2. ]That is to say, where it is customary to make Slaves of all such as are taken in War; for our Author says below, that this is not now practised amongst Christians, and that even formerly it was not a received Custom with all Nations. But in this Case, as in other Things, which our Author refers to his arbitrary Law of Nations, the Power of a Master over his Slaves, made such in this Manner, is not derived solely from Custom. If a Prisoner of War found the Condition of a Slave too hard, it was in his own Power to avoid it, by declaring that he would not acknowledge him for his Master, who had taken him. He did not thereby commit any Offence, nor violate any Law to which he was obliged to submit; he only exposed himself to the Effects of the Enemy’s Resentment, and to the Loss of Life, from the Fear of losing his Liberty. But if the Prisoner made no Declaration of his Will, contrary to the received Custom of States at War, he was, and might be deemed tacitly to submit to it, after the Victor had declared on his Side, his being contented to give him his Life, upon Condition, that he would acknowledge him for his Master, which he did by not keeping the Prisoner in Bonds, or narrowly watched; for neither was he in Rigour obliged, by Vertue of the Custom, to give the Prisoner Life, even tho’ the latter was willing at that Price to become his Slave: It was only necessary for him to make known sufficiently his not being willing to accept the Prisoner’s Offers. So that the Force of the received Custom was only founded upon the mutual Consent, express or tacit, of the Victor and Prisoner, from whence resulted an Engagement, which was presumed, and might easily be presumed, from the good Reasons for which this Custom was introduced, and of which our Author will speak below.
[3. ]See the Law cited in the preceding Chapter, § 3. Note 3.
[4. ]See also the preceding Chapter, § 12. Num. 1.
[5. ]Histor. Lib II. (Cap. LVIII. p. 200. Edit. Amstel.) The Grammarian Servius says, that Hesione, the Daughter of Laomedon, King of Troy, was made a Captive by Right of War, A cujus portu [Trojae] quum, &c. In Aeneid. Lib. I. (ver. 619.) He observes elsewhere, in relating the same Fact, that the Greeks refused to restore Hesione to the Trojans, because she was theirs by the Right of War. Hesionem Graeci Trojanis reddere noluerunt, dicentes, se eam habere Jure Bellorum. In Lib. X. Josephus speaks of some Jews, whom Cassius had taken Prisoners, but not according to the Laws of War; for which Reason, upon Hyrcanus’s demanding them in the Name of the Nation, Mark Anthony ordered them to be restored. Antiq. Jud. Lib. XIV. (Cap. XXII. p. 492. A.) He mentions the Law relating to Prisoners of War in another Place, Τῷ τω̂ν δοριαλότων νόμῳ, which Menanderthe Protector expresses thus, Δορυληπτω̂ν θεσμῷ. Many Things upon this Subject are said in the preceding Chapter; for Authors join together, or put in the same Class, Prisoners of War, and Things taken from Enemies. Grotius.
[6. ]Lib. omnem virum bonum esse liberum p. 866. Edit. Paris.
[7. ]Orat. XV.
[1 ]Jure Gentium servi nostri sunt qui ab hostibus capiuntur, aut qui ex ancillis nostris nascuntur. Digest, Lib. I. Tit. V. De Statu Hominum, Leg. V. § 1. See above B. II. Chap. V. § 29.
[2. ]He speaks of the Wife of Armininus, who was taken by the Romans, being with Child: Arminium, super insitam violentiam, &c. Annal. Lib. I. Cap. LIX. Num. 2.
[1 ]Our Author cites here in the Margin of his first Edition, X. Controv. V. The others have I. Controv. V. but there is nothing of this Kind in either of those Places. The Passage is in Lib. V. Controv. XXXIV. wherein the Rhetorician calls this absolute Power of Masters over their Slaves, a Right known to all the World: Qui [Pictor] haec tantum, &c. p. 391. Edit. Gron. Var. The fifth Declamation of the tenth Book of Excerpta Controv. treating this same Subject occasioned this Mistake: For the latter is extracted, Ex Controv. V. Lib. X. This we observe by the by as an Example of the Origin of these Mistakes, into which our Author pretty often falls. I find also a Passage very like this in Seneca the Philosopher: Quum in servum omnia liceant, est aliquid, quod in hominem licere commune jus animantium vetet. De Clement. Lib. I. Cap. XVIII.
[2. ]This Restriction is to be well observed; for if the Master treats the Slave, acquired by the Right of War, with excessive Cruelty, what ever Impunity he may promise himself, either from the civil Laws of his Country, or from neutral People; the Prisoner, who only submitted to Slavery upon the tacit Condition, that the Victor should behave to him in such a manner as not to make him think his Fate more insupportable than Death itself, is then discharged from his Engagements, and reenters into a State of War with his Master, who has violated his.
[3. ]Igitur in potestate sunt servi, &c. Digest, Lib. I. Tit. VI. De his qui sui vel alieni Juris sunt, Leg. I. § 1. See also the Institutes, at the same Title, I. 8. The Grammarian Donatus says, [Justa & Clemens] Ita dixit justa, ut alibi. Non necesse habeo omnia pro meo jure agere. Quod enim non justum domino in servum? In Andr. Terent. Act I. Scen. I. (Ver. 9.)
[4. ]Ipse enim servus, qui, &c. Institut. Lib. II. Tit. IX. § 3. Valerius Maximus, speaking of a Consul, who had been taken by the Carthaginians, says, that he had lost every Thing by Right of War; but he recovered all and was even made a Consul again: Quo [Cn. Cornelius Scipio Asina] Consul, &c. Lib. VI. Cap. IX. Num. 11. PhiloJudaeus says that a Slave can call nothing his own, not even his Person. Lib. Omnem virum bonum esse liberum, (p. 871. C.) Grotius.
[1 ]See what Pufendorf says upon this Question, B. VIII. Chap. VI. § 11. Law of Nature and Nations.
[2. ]Thus according to the Romans Laws, a Father who had been made Prisoner, if he returned into his Country, still retained the Rights of his paternal Power: But if he died in Captivity, his Children were deemed free from the Moment he had been taken, so that those Rights were then immediately extinct. Si ab hostibus captus fuit parens, &c. Institut. Lib. I. Tit. III. Quibus modis jus patriae potestatis solvitur, § 5. So, those who had surrendered themselves to the Enemy, not having any Claim to the Right of Postliminy; if a Father had fallen in this manner into the Hands of the Enemy, his Children from thenceforth were no longer in his Power, whether he did or did not return into his Country: Postliminio carent, qui armis victi hostibus se dederunt. Digest, Lib. XLIX. Tit. XV. De Captivis, &c. Leg. XVII. See below, Chap. IX. § 8.
[a ]Chap. iv.
[1 ]Servorumadpellatio, &c. Digest, Lib. L. Tit. XVI. De verborum significatione, Leg. CCXXXIX. § 1. See also the Grammarian Servius, where he gives the Etymology of the Word Saltem, in Aeneid. Lib. IV. (Ver. 327.) Grotius.
[2. ]Lex naturae haec est, ut qui nascitur, sine legitimo matrimonio, matrem sequatur, nisi lex specialis aliud inducit. Digest. Lib. I. Tit. V. De Statu hominum, Leg. XXIV. But there is just Reason to believe, that the Civilian understands here, by the Law of Nature, natural Right properly so called, and this is alluded to by a Passage of Cicero’s which Mr. Schulting cites in his Notes upon the Fragments of Ulpian, Tit. V. § 8. Ut enim, Jure Civili, qui matre est libera, liber est: Item, Jure Naturae, qui Dea matre est, Deus sit necesse est. “As according to Civil Right, an Infant born of a free Woman is also free. In like manner by the Law of Nature, he who has a Goddess for his Mother, must necessarily be a GOD.” De Natur. Deor. Lib. III. Cap. XVIII. For the antient Lawyers pretended, that according to the Law of Nature, founded upon Reason, Children, born out of Wedlock, follow the Condition of their Mother, on account of the Uncertainty in Relation to the Father. And this indeed takes Place, by the very Principles of that Law, in regard to Children born of a Mother, who abandons herself to all Comers: But as to those, whose Father is sufficiently known, as the Father of the Children of a Woman Slave may be, the Law of Nature of itself is far from allowing that their Condition shall always be the same with that of the Mother. See above, B. II. Chap. V. § 29. Num. 1. There is in Reality no greater Certainty, in regard to the Birth of Children, whose Mother is lawfully married: It is only a Presumption, authorized by the Laws, which leave it without Force, the Moment it is destroyed by sufficient Reasons. So that, according to the Roman Law, an Husband is not bound to acknowledge a Child for his own, because born of his Wife and in his House, in the Sight and Knowledge of all his Neighbours, if it appears by good Proof, that he has not lain with his Wife for some Time, upon account of a Distemper, or some other Impediment, or if he was impotent: Sed mihi videtur, quod &Scaevola probat, &c. Digest, Lib. I. Tit. VI. De his qui sui vel alieni juris sunt, Leg. VI.
[b ]B. 2. ch. 13. § 26.
[3. ]P. 1073. Vol. I. Edit. Wech.
[4. ]Obstructae strage corporum viae, &c. (Cap. XLIV. Num. 1.) The same Historian Remarks elsewhere in speaking of the People of Cremona, that it signified nothing to the Soldiers to make them Prisoners, for all Italy were agreed not to buy such Slaves: Inritamque praedam fecerat consensus Italie, emtionem talium mancipiorum aspernantis, Lib. III. (Cap. XXXIV. Num. 3.) Grotius.
[5. ]Item quae ex hostibus capiantur, &c. Digest, Lib. XLI. Tit. I. De acquirendo rerum dominio, Leg. V. and VII. Princ.
[1 ]See below, Chap. IX. § 5. Pliny says, that Marcus Servius was taken twice by Hannibal, and escaped as often out of Prison: Bis ab Annibale captus—bis vinculorum ejus profugus, &c. Hist. Natur. Lib. VII. Cap. XXVIII. Grotius.
[2. ]But there is an express or tacit Consent of the Prisoner in this Case, by Virtue of which, the Victor has acquired a Right over him, that lays the Slave under a real Obligation, and consequently will not permit him in Conscience to run away, or to withdraw himself in any other manner from the Subjection, into which he is entered. See above, § 1. of this Chapter, Note 2. § 3. Note 2. and Pufendorf’s Law of Nature and Nations, B. VI. Chap. III. § 6. as also Mr. Noodt’s Discourse Of the Power of Sovereigns, p. 247. & seqq. the second of the French Translation. The Justice or Injustice of the War has nothing to do in this Case. How unjustly soever an Enemy has taken up Arms, the Conventions made with him whilst an Enemy were not the less valid, by the Confession of our Author who lays that down as a Principle below. Besides both Parties generally believe their own Cause just: And if the Victors apprehended, that the Prisoners under Pretext of the Injustice of the War, should believe they had a Right to throw off the Yoke, as soon as they had a favourable Occasion; they would give none of them their Lives. The Interest therefore of Mankind, and even the good of the Conquered, required, that the Engagement of Prisoners, whether express or tacit, should be valid, and that they should renounce the Right of using Reasons deduced from the Injustice of the War, or the Necessity to which they had been reduced, in order to save their Lives. From whence appears the Difference between this Case, and that objected, of a Person who falling into the Hands of Robbers and Pirates should engage to become their Slave. See a Dissertation of the late Mr. Hertius, De Lytro, in Vol. I. of his Comment. and Opuscul, &c. Sect. II. § 24. p. 277, 278. The Reader may consult also the Commentary of Mr. Van der Meulen, who also refutes our Author.
[3. ]Dominium, quod tantum in judicio humano, & quidem coactivo, valeat, says our Author.
[4. ]See Pufendorf’s Law of Nature and Nations, B. IV. Chap. X. § 7.
[5. ]That is to say, in the Prescription of thirty or forty Years: For Faith and just Dealing was required in the Usucaption, or ordinary Prescription. See Pufendorf, Law of Nature and Nations, B. IV. Chap. XII. § 1.
[6. ]De Sophist. Elench. Lib. II. Cap. V. (XXV.) p. 308. D. Vol. I. Edit. Paris.
[a ]See Bembo, Hist. l. 10.
[7. ]Our Author then confesses, that an express Promise would be valid in this Case. Now such Promises were often made. And wherefore should not a tacit Engagement have as much Force?
[8. ]Nihil interest, quomodo captivus, &c. Digest, Lib. XLIX. Tit. XV. De Captivis & Postlimin, &c. Leg. XXVI.
[9. ]This does not prove, that the Obligation of Prisoners of War was considered as of no Force: Otherwise they ought to have been received also, and to have had the Right of Postliminy granted them, after the making of Peace. But this was, because during the course of the War, the Prisoners were not deemed to be fully engaged as Slaves. It was not known to what Fate the Conqueror would doom them. There was always Hopes of recovering them, and it gave no great Trouble, if they had contracted in that respect any particular Engagement, which the State was not obliged to make good. In making Peace then, the State renounced the Right of receiving Prisoners, and of reinstating them in all the Rights of their former Liberty, if it was not stipulated by the Treaty.
[10. ]Idque naturali aequitate introductum est, ut quiper injuriamab extraneis detinebatur, is, ubi in fines suos rediisset, pristinum jus suum reciperet, Digest, Lib. XLV. Tit. XV. De Captivis & Postlimin. &c. Leg. XIX. Princ. I do not know, whether this Lawyer intended to tax with Injustice, in the Sense and Meaning of our Author, the Detention of a Prisoner of War, much less his Subjection to Slavery. Upon that Foot all the Wars of the Romans were just on their Side, as the Right of Postliminy, of which we now speak, took Place in them all. It is likely, that Paulus means only, that the Prisoner was in no Fault, and the Word injuria, signifies in this Place no more than an Act of Hostility, just or not, on the Side of those, who exercise it. It is in this Sense, that another Civilian, speaking of violent Means, used by private Persons, says, that, if without having assembled People, or beaten any one, they have taken away per injuriam, that is to say, by main Force, any Thing belonging to another; they render themselves thereby liable to the Penalty of the Julian Law. De Vi privatâ: Sed si nulli convocati, nullique pulsati sint;Per Injuriamtamen ex bonis alienis quid ablatum sit: Hac lege teneri eum, qui id fecerit. Digest, Lib. XLVIII. Tit. VII. Ad Leg. Jul. de Vi privat. Leg. III. § 2. Per injuriam signifies the same in this Passage, as Vim facere in the beginning of the Law.
[11. ]This being a Consequence of our Author’s Principle, which we have refuted in Note 2. upon this Paragraph, it follows that we must decide in a manner directly contrary to it.
[12. ]To this may be referred the Passages of St. Irenaeus and Tertullian, which we have quoted before, B. II. Chap. VII. § 2. Note 3. There is a Passage in Philo Judaeus, where the same Subject is handled, that is, what the Israelites did on their Departure out of Egypt. “As the Egyptians, (says he) subdued at Length by so many Plagues from Heaven, pressed the Israelites to depart, and expelled them in some Measure; the latter calling to mind the Dignity of their Origin, undertook a Thing worthy of free Men, who had not forgot the unjust and cruel Treatment they had been made to suffer. For they carried off a great Booty, with one Part of which they loaded themselves, and with the other their Beasts of burden. Not that they were greedy of Riches, or coveted the Goods of others, as Slanderers might accuse them; for from whence could they have such Sentiments? But their Motive was, first to obtain by that Means the Reward due to them for their long Service, and next to avenge themselves, tho’ not so much as the Egyptians deserved, for the Slavery they had imposed upon them. For there is no Comparison between Loss of Money and Loss of Liberty; for the Preservation of which, wise Men sacrifice both their Lives and Estates.” So that whether the Israelites are considered in a State of Peace or War with the Egyptians, it is most easy to justify their Conduct. For, in the first Case, they did no more than seize the Wages, that had been so long kept from them, and in the other, they plundered their Enemies by the Right of Victors, as they had supplied them with a just Cause for taking up Arms, by treating them like Prisoners of War, when they were Strangers, and Suppliants. De Vita Mosis, (p. 624. Edit, Paris.) In St. Jerome’s Letters there is a like Account concerning an holy Person named Malchus. See also that of Leupges the Lombard as related by his great Grandson, Paul Warnafrede, Lib. IV. and the Confession published under the Name of Lanicius Patricius.Grotius.
[13. ]That of the Council of Gangra: Si quis servum alienum, &c. Caus. XVII. Quaest. IV. Can. XXXVII. See also the following Canon, and what has been said above, B. II. Chap. V. § 29. in fin. Grotius.
[1 ]Our Author’s Principles do not agree very well in this Place. For if the Slave, of whom he speaks, may run away, I do not see, why he may not resist his Master, and even kill him, when he has it in his Power, in order to deliver himself from Slavery; since if there be no Engagement on his Side, the State of War subsists always between him and his Master. See the following Note.
[2. ]No doubt he may, if he was not bound by any Engagement to his Master. But the Magistrate supposes or ought to suppose, a real Agreement by which the Slave is bound; and that is the reason, why he may be obliged to deliver him up to the Master, who reclaims him, without putting himself to the Trouble of examining, whether the War, in which the Slave was taken, was just or unjust.
[3. ]B. I. Chap. IV. But there also we have shewn that our Author carries the Obligation of Non-resistance to Sovereigns too far.
[4. ]The Passage has already been cited in the same Place § 7. Num. 8. Note 31. I find since, that our Author in reciting it in his Treatise De imperio Summarum Potestatum circa Sacra, Cap. III. § 6. gives it as St. Prosper’s, Sentent. XXXIV. exAugustin. in Psalmum CXXIV. but adds he, non ad verbum, that is to say the Sense is in that Father, tho’ not the express Terms of the Passage.
[1 ]Amongst the Indians there were no Slaves. Strabo, Geograph. Lib. XV. p. 1036. Edit. Amstel. (710. Paris.) Gronovius cites this Example.
[a ]Deut. xxiii. 15. See precep. vetant. 109.
[2. ]This is a meer Supposition. The Law is general, and relates to all Slaves, that is to say, the Slaves of other Nations. See Mr. Le Clerc’s Commentary upon it. So that this Law may be considered as one of those, wherein GOD used his Right of Sovereignty over the Goods of Men; by which the Israelites were excused from restoring foreign Slaves to those to whom they belonged.
[1 ]And before them the Essenes, from whom the first Christians derived their Original, according to Josephus. Grotius.
[2. ]2 B. IV. where are these Words, It is a Custom delivered without Corruption from the Antients to Posterity, that it was lawful not only for the Graeco-Romans and Thessalians, but for the Illyrians, Triballians and Bulgarians, because they were of the same Faith, to seize upon the Goods indeed as Spoils, but not to take the Men Prisoners of War, nor kill them, when the Battle was over. Adam Bremen of St. Ansgarius, returning from thence to Hamburg, rebuked the Nordalbians for selling the Christians. This Custom Boer. speaks of Decis. 178. and adds, it is observed in France, England and Spain, that if a Duke, Count or Baron was taken, he does not belong to the Soldiers, but to the Prince who makes War. Grotius.
[3. ]Our Author cites here in the Margin one of Plato’s Dialogues, wherein that Philosopher, whom he supposes in this to have followed his Master’s Doctrine, establishes for one of the Laws of his Republick, that no Greek should make Slaves of those of his own Nation, nor advise other Greeks to do so: De Legib. Lib. p. 469. C. Vol. II. Edit. H. Steph.
[† ][[This translation of the sentence invites misunderstanding. The original runs Atque ita hoc saltem, quanquam exiguum est, perfecit reverentia Christianae legis quod cum Graecis inter se servandum olim diceret Socrates, nihil impetravit: that is, “In this way, even though to a small degree, reverence for the Christian religion brought about what Socrates in vain urged the Greeks to practise amongst themselves,” i.e., the abolition of slavery within their own community.]]
[4. ]See Chalcocondylas, Rerum Turcic. Lib. III. Leunclavius, Lib. III. and XVII. Busbequ. Epist. exotic. III. (p. 162. Edit. Elzevir 1662.) Grotius.
[5. ]See upon this Subject a Dissertation of the late Mr. Hertius, De Lytro, in the first Volume of his Comment. & Opuscul. &c. p. 253. & seqq.