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BOOK III. - Hugo Grotius, The Rights of War and Peace (1901 ed.) 
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).
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What is Lawful in War.
What is lawful in war—General Rules derived from the law of nature—Stratagems and lies—Arrangement of the following parts—First rule, all things necessary to the end lawful—Right resulting not only from the origin of a war, but from causes growing out of the same—Certain consequences justifiable, though not originally lawful—What measures are lawful against those who furnish an enemy with supplies—Stratagems—Negative—Positive—Sometimes allowable to use words in a sense different from the general acceptation—A lie according to the true notion of it injurious to the rights of others—Falsehood allowable in order to deceive children or madmen—Any one addressing another without intentions to deceive, not answerable for the misconceptions of a third person—A person not answerable for the willful mistakes of those to whom he speaks—The fictitious threats of a person in authority—Fiction allowable in order to save the lives of the innocent, or to promote other equally important purposes—Deception lawful against an enemy, but not including promises, or oaths—To forbear using this privilege an act of generosity and Christian simplicity—Not allowable to urge others to what is unlawful for them, but not for us to do—Allowable to use the services of deserters.
I. Having, in the preceding books, considered by what persons, and for what causes, war may be justly declared and undertaken, the subject necessarily leads to an inquiry into the circumstances, under which war may be undertaken, into the extent, to which it may be carried, and into the manner, in which its rights may be enforced. Now all these matters may be viewed in the light of privileges resulting simply from the law of nature and of nations, or as the effects of some prior treaty or promise. But the actions, which are authorised by the law of nature, are those that are first entitled to attention.
II. In the first place, as it has occasionally been observed, the means employed in the pursuit of any object must, in a great degree, derive the complexion of their moral character from the nature of the end to which they lead. It is evident therefore that we may justly avail ourselves of those means, provided they be lawful, which are necessary to the attainment of any right. Right in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses. On which account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self-defence, which nature grants to every one. Besides, if any one has sure and undoubted grounds to apprehend imminent danger from any thing belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may detain it as a precautionary measure, till he can obtain satisfactory assurance of security.
Upon the same principle any one has a natural right to seize what belongs to him, and is unlawfully detained by another: or, if that is impracticable, he may seize something of equal value, which is nearly the same as recovering a debt. Recoveries of this kind establish a property in the things so reclaimed; which is the only method of restoring the equality and repairing the breaches of violated justice. So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and every act that forms a part of the punishment, such as destroying an enemy’s property and country by fire or any other way, falls within the limits of justice proportionable to the offence.
III. In the second place, it is generally known that it is not the origin only of a just war which is to be viewed as the principal source of many of our rights, but there may be causes growing out of that war which may give birth to additional rights. As in proceedings at law, the sentence of the court may give to the successful litigant other rights besides those belonging to the original matter of dispute. So those who join our enemies, either as allies or subjects, give us a right of defending ourselves against them also. So too a nation engaging in an unjust war, the injustice of which she knows and ought to know, becomes liable to make good all the expences and losses incurred, because she has been guilty of occasioning them. In the same manner those powers, who become auxiliaries in wars undertaken without any reasonable grounds, contract a degree of guilt and render themselves liable to punishment in proportion to the injustice of their measures. Plato approves of war conducted so far, as to compel the aggressor to indemnify the injured and the innocent.
IV. In the third place, an individual or belligerent power may, in the prosecution of a lawful object, do many things, which were not in the contemplation of the original design, and which in themselves it would not be lawful to do. Thus in order to obtain what belongs to us, when it is impossible to recover the specific thing, we may take more than our due, under condition of repaying whatever is above the real value. For the same reason it is lawful to attack a ship manned by pirates, or a house occupied by robbers, although in that ship, or that house there may be many innocent persons, whose lives are endangered by such attack.
But we have had frequent occasion to remark, that what is conformable to right taken in its strictest sense is not always lawful in a moral point of view. For there are many instances, in which the law of charity will not allow us to insist upon our right with the utmost rigour. A reason for which it will be necessary to guard against things, which fall not within the original purpose of an action, and the happening of which might be foreseen: unless indeed the action has a tendency to produce advantages, that will far outweigh the consequences of any accidental calamity, and the apprehensions of evil are by no means to be put in competition with the sure hopes of a successful issue. But to determine in such cases requires no ordinary penetration and discretion. But wherever there is any doubt, it is always the safer way to decide in favour of another’s interest, than to follow the bent of our own inclination. “Suffer the tares to grown, says our divine teacher, least in rooting up the tares you root up the wheat also.”
The general destruction, which the Almighty, in right of his supreme Majesty, has sometimes decreed and executed, is not a rule, which we can presume to follow. He has not invested men, in the exercise of power, with those transcendent sovereign rights. Yet he himself, notwithstanding the unchangeable nature of his sovereign will, was inclined to spare the most wicked cities, if ten righteous persons could be found therein. Examples like these may furnish us with rules to decide, how far the rights of war against an enemy may be exercised or relaxed.
V. It frequently occurs as a matter of inquiry, how far we are authorised to act against those, who are neither enemies, nor wish to be thought so, but who supply our enemies with certain articles. For we know that it is a point, which on former and recent occasions has been contested with the greatest animosity; some wishing to enforce with all imaginary rigour the rights of war, and others standing up for the freedom of commerce.
In the first place, a distinction must be made between the commodities themselves. For there are some, such as arms for instance, which are only of use in war; there are others again, which are of no use in war, but only administer to luxury; but there are some articles, such as money, provisions, ships and naval stores, which are of use at all times both in peace and war.
As to conveying articles of the first kind, it is evident that any one must be ranked as an enemy, who supplies an enemy with the means of prosecuting hostilities. Against the conveyance of commodities of the second kind, no just complaint can be made.—And as to articles of the third class, from their being of a doubtful kind, a distinction must be made between the times of war and peace. For if a power can not defend itself, but by intercepting the supplies sent to an enemy, necessity will justify such a step, but upon condition of making restoration, unless there be some additional reasons to the contrary. But if the conveyance of goods to an enemy tends to obstruct any belligerent power in the prosecution of a lawful right, and the person so conveying them possesses the means of knowing it; if that power, for instance, is besieging a town, or blockading a port, in expectation of a speedy surrender and a peace, the person, who furnished the enemy with supplies, and the means of prolonged resistance, will be guilty of an aggression and injury towards that power. He will incur the same guilt, as a person would do by assisting a debtor to escape from prison, and thereby to defraud his creditor. His goods may be taken by way of indemnity, and in discharge of the debt. If the person has not yet committed the injury, but only intended to do so, the aggrieved power will have a right to detain his goods, in order to compel him to give future security, either by putting into his hands hostages, or pledges; or indeed in any other way. But if there are evident proofs of injustice in an enemy’s conduct the person who supports him in such a case, by furnishing him with succours, will be guilty not barely of a civil injury, but his giving assistance will amount to a crime as enormous, as it would be to rescue a criminal in the very face of the judge. And on that account the injured power may proceed against him as a criminal, and punish him by a confiscation of his goods.
These are the reasons, which induce belligerent powers to issue manifestoes, as an appeal to other states, upon the justice of their cause, and their probable hopes of ultimate success. This question has been introduced under the article, which refers to the law of nature, as history supplies us with no precedent to deduce its establishment from the voluntary law of nations.
We are informed by Polybius, in his first book, that the Carthaginians seized some of the Romans, who were carrying supplies to their enemies, though they afterwards gave them up, upon the demand of the Romans. Plutarch says that when Demetrius had invested Attica, and taken the neighbouring towns of Eleusis and Rhamnus, he ordered the master and pilot of a ship, attempting to convey provisions into Athens, to be hanged, as he designed to reduce that city by famine: this act of rigour deterred others from doing the same, and by that means he made himself master of the city.
VI. Wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents. But a doubt is sometimes entertained, whether stratagem may be lawfully used in war. The general sense of mankind seems to have approved of such a mode of warfare. For Homer commends his hero, Ulysses, no less for his ability in military stratagem, than for his wisdom. Xenophon, who was a philosopher as well as a soldier and historian, has said, that nothing can be more useful in war than a well-timed stratagem, with whom Brasidas, in Thucydides agrees, declaring it to be the method from which many great generals have derived the most brilliant reputation. And in Plutarch, Agesilaus maintains, that deceiving an enemy is both just and lawful. The authority of Polybius may be added to those already named; for he thinks, that it shews greater talent in a general to avail himself of some favourable opportunity to employ a stratagem, than to gain an open battle. This opinion of poets, historians, and philosophers is supported by that of Theologians. For Augustin has said that, in the prosecution of a just war, the justice of the cause is no way affected by the attainment of the end, whether the object be accomplished by stratagem or open force, and Chrysostom, in his beautiful little treatise on the priestly office, observes, that the highest praises are bestowed on those generals, who have practised successful stratagems. Yet there is one circumstance, upon which the decision of this question turns more than upon any opinion even of the highest authority, and that is, whether stratagem ought to be ranked as one of those evils, which are prohibited under the maxim of not doing evil, that good may ensue, or to be reckoned as one of those actions, which, though evil in themselves, may be so modified by particular occasions, as to lose their criminality in consideration of the good, to which they lead.
VII. There is one kind of stratagem, it is proper to remark, of a negative, and another of a positive kind. The word stratagem, upon the authority of Labeo, taken in a negative sense, includes such actions, as have nothing criminal in them, though calculated to deceive, where any one, for instance, uses a degree of dissimulation or concealment, in order to defend his own property or that of others.* So that undoubtedly there is something of harshness in the opinion of Cicero, who says there is no scene of life, that will allow either simulation, or dissimulation to be practiced. For as you are not bound to disclose to others all that you either know or intend; it follows that, on certain occasions, some acts of dissimulation, that is, of concealment may be lawful. This is a talent, which Cicero, in many parts of his writings, acknowledges that it is absolutely necessary for statesmen to possess. The history of Jeremiah, in the xxxviiith chapter of his prophecy, furnishes a remarkable instance of this kind. For when that prophet was interrogated by the king, respecting the event of the siege, he prudently, in compliance with the king’s orders, concealed the real matter from the nobles, assigning a different, though not a false reason for the conference, which he had had. In the same manner, Abraham called Sarah, his sister, an appellation used familiarly at that time to denote a near relation by blood, concealing the circumstance of her being his wife.
VIII. A stratagem of a positive kind, when practised in actions, is called a feint, and when used in conversation it receives the name of a lie or falsehood. A distinction is made by some, between these two kinds of stratagems, who say, that words are signs of our ideas, but actions are not so. But there is more of truth in the opposit e opinion, that words of themselves unaccompanied by the intention of the speaker, signify nothing more than the inarticulate cries would do of any one labouring under grief, or any other passion: which sounds come under the denomination of actions, rather than of speech. But should it be said that being able to convey to others the conceptions of his mind, by words adapted to the purpose, is a peculiar gift of nature, by which man is distinguished from other parts of the animated creation, the truth of this cannot be denied.
To which we may add that such communication may be made not only by words, but by signs or gestures, like those used to the dumb; it makes no difference, whether those signs or gestures have any natural connection with the thing they are intended to signify, or whether such a connection is only assigned to them by custom. Equivalent to such signs or gestures is handwriting, which may be considered, as a dumb language, deriving its force not merely from the words used, and the particular form of the letters, but from the real intention of the writer, to be gathered from thence:—to be gathered either from the resemblance between the characters and the intentions, as in the Egyptian hieroglyphics, or from pure fancy, as among the Chinese.
Here likewise another distinction is necessary to be applied in the same manner, as was done before, in order to remove all ambiguity in using the term of the Law of Nations. For it was there said, that the laws established by independent and separate states, whether or no those laws implied any mutual obligations, were denominated the Law of Nations.* So that words, gestures, and signs, made use of to convey a meaning, imply an obligation, in all the persons concerned, to receive and employ them in their common acceptation. But the employment of other means, coming under none of those descriptions, cannot be construed into a violation of any social contract, although some may be deceived thereby. It is the real nature of the actions that is here spoken of, and not the accidental circumstances attending them: such actions for instance, as occasion no mischief; or if they do so, there is no guilt, where there is no treacherous design.
We have an instance of the former kind in the conduct of our Saviour, who, on the way to Emmaus, pretended to the disciples, that he was going further; her was a harmless stratagem, unless we interpret the words, as expressive of his intention to have gone further, if he had not been prevented by their efforts and entreaties to detain him. And in another part of the sacred history it is said, that he intended to have done it, had he not been so earnestly importuned by them to go into the ship. There is another instance too in the conduct of Paul, who circumcised Timothy, though he knew the Jews would conclude from thence, that the ordinance of circumcision, which in reality had been abolished, was still binding upon the descendants of Israel, and that Paul and Timothy were of the same opinion. Whereas Paul had no such intention, but only hoped, by that means, to open for himself and Timothy a way to more familiar intercourse with the Jews. Neither could an ordinance of that kind, when the divine obligation was repealed, any longer be deemed of such importance, nor could the evil of a temporary error, resulting from thence, and afterwards to be corrected, be regarded as equivalent to the opportunity, which Paul thought to gain, of making it conducive to the introduction of Christian truth.
The Greek Fathers have given the name of economy, or management to stratagems of this kind. On this subject there is an admirable sentiment in Clement of Alexandria, who, in speaking of a good man, says that “he will do many things for the benefit of his neighbour alone, which he would not otherwise have undertaken.”
One of these stratagems was practised by the Romans, who, during the time that they were besieged in the Capitol, threw some loaves of bread into the enemy’s camp, that it might not be supposed they were pressed by famine. The feigned flight, which Joshua ordered his people to make, to assist him in his designs upon Ai, affords an instance of a stratagem of the second kind; the ensuing mischiefs of which may be considered, as some of the effects of lawful war. The original design of that pretended flight does not at all affect the question. The enemy took it for a proof of fear; and he was at liberty to do so, without debarring the other of his right to march this way, or that, with an accelerated or retarded motion, with a shew of courage, or an appearance of fear, as he might judge it most expedient.
History furnishes us with innumerable examples of deceptions practiced with success upon an enemy, by assuming his arms, ensigns, colours, or uniforms; all which may be justified upon the same principle. For all these are actions, which any one may avail himself of at his pleasure, by departing from the usual course of his military system. For such points of discipline and system depend upon the will and fancy of the military commanders in each state, rather than upon any invariable custom, equally binding upon all nations.
IX. Those signs, by which the daily intercourse of life is maintained, from a subject of more weighty discussion, with which the consideration of lies or falsehood is necessarily interwoven.
All stratagems of this kind are so direct a violation of all moral principle, both in their nature and consequences, that almost every page of the revealed will of God declares their condemnation. Solomon describes a righteous, that is, a good man, as one, who holds every false word in detestation, deprecating the least appearance of deception: and the Apostle’s injunction accords with these sentiments, instructing his disciples not to lie to one another.
Nor is it in the high standard of perfection alone, which the divine records present, that such a recommendation of fair, open, and sincere dealing is to be found. It is the theme of praise with poets and philosophers, and the angry hero of the Grecian poet declares, that he detests the man, as an infernal being, who utters one thing with his tongue, while he conceals another in his heart. But making some allowance for poetic fiction—we find even the grave, sober, and discerning, Stagirite describing falsehood, as a vile, and abominable refuge, and painting truth as a lovely object, that must extort the warmest praise.
These are all great and high authorities in favour of open dealing. Yet there are names of no less weight, both among sacred and profane writers, whose opinions are a vindication of stratagems, when used upon proper occasions. One writer speaks of a case, where stratagem may be used, even for the benefit of the person, on whom it is practised, and adduces the instances of a physician, who, by means of a deception, overcame the perverseness of a patient, and wrought a salutary cure.
X. To reconcile such a variety of discordant opinions, it may be necessary to devise some way of examining falsehood both in its more extensive, and more confined acceptation. Nor is speaking an untruth, unawares, to be considered in the nature of a lie, but the falsehood, which comes within the limits here defined, is the known and deliberate utterance of any thing contrary to our real conviction, intention, and understanding.
Words, or signs, importing the same meaning as words, are generally taken for conceptions of the mind, yet it is no lie for any man to utter a falsehood, which he believes to be true; but the propogation of a truth, which any one believes to be false, in him amounts to a lie. There must be in the use of the words therefore an intention to deceive, in order to constitute a falsehood in the proper and common acceptation. Consequently, when any one single word, or the whole tenour of a discourse, admits of more significations than one, either by the use of some popular phrase, some term of art, or intelligible figure of speech, in that case if the speaker’s intention correspond with any one of those meanings, he cannot be charged with using falsehood, although it is possible that a hearer may take his words in a very different sense. It is true that using such an ambiguous method of speaking on all occasions is not to be approved of, though there are particular circumstances under which it may be reconciled with honour and justice. In communicating knowledge, for instance, there is no harm in using a metaphor, an irony, or an hyperbole, figures of speech, tending either to adorn or to elucidate a subject. There are cases too, where by this doubtful mode of expression it may be proper to avoid an urgent and impertinent question. There is an instance of the former kind in our Saviour’s saying, that “our friend Lazarus sleepeth,” where the disciples understood him, as if he were speaking of the refreshing rest of an ordinary sleep: and when he spoke of restoring the temple, which he meant his own body, he knew that the Jews applied what he said to the material edifice of the Temple. In the same manner he frequently addressed the multitudes in parables, which they could not understand by barely hearing, without that docility of mind, and attention, which the subject required. Profane history too furnishes us with an example of the second kind, in the conduct of Vitellius, who, as Tacitus informs us, gave Narcissus doubtful and ambiguous answers, in order to avoid his urgent questions; as any explicit declaration might have been attended with danger.
On the other hand, it may happen to be not only censurable, but even wicked to use such a manner of speaking, where either the honour of God or the welfare of mankind is concerned, or indeed any matter, which demands explicit avowals, and open dealing. Thus in contracts every thing necessary to their fulfillment ought to be fully disclosed to those concerned. There is an apposite expression of Cicero, who says, that every degree of deception ought to be banished from all contracts, and there is in the old Athenian Laws a proverb, conformable to this, which says, there must be nothing, but open dealing in markets.
XI. In strictness of speech such ambiguity is excluded from the notion of a lie. The common notion of a lie therefore is something spoken, written, marked, or intimated, which cannot be understood, but in a sense different from the real meaning of the speaker. But a lie, in this stricter acceptation, having some thing unlawful in its very nature, necessarily requires that a distinction should be made between it and that latitude of expression already explained. And if this acceptation be properly considered, at least according to the opinion prevailing in all nations, it seems, that no other explanation of it is necessary to be given, except that it is a violation of the existing and permanent rights of the person, to whom a discourse, or particular signs, are directed. It is a violation of the rights of another; for it is evident, that no one can utter a falsehood with a view to impose upon himself. The rights here spoken of are peculiarly connected with this subject. They imply that liberty of judgment, which men are understood, by a kind of tacit agreement, to owe to each other in their mutual intercourse. For this, and this alone is that mutual obligation, which men intended to introduce, as soon as they began to use speech, or other signs of equal import. For without such an obligation the invention of those signs would have been perfectly nugatory. It is requisite too, that at the time a discourse is made, such a right or obligation should remain in full force.
A right may indeed have existed and afterwards have become obsolete, owing to the rise or occurrence of some new right: which is the case with a debt, that may be released by acquittance, or nonperformance of a condition. It is farther requisite, to constitute a violation of this right, that the ensuing injury should immediately affect the person addressed: as in contracts, there can be no injustice, but what affects one of the parties, or persons concerned.
And perhaps under the head of this right, it may not be improper to assign a place to that true speaking, which Plato, following Simonides, classes with justice, in order to from a more striking contrast with that falsehood, so often prohibited in Scripture, by the name of false witness to, or against, our neighbour, and which Augustin, in defining a lie, calls an intention to deceive. Cicero also in his offices lays down truth, as the basis of justice.
The right to a discovery of the whole truth may be relinquished by the express consent of the persons, who are engaged in a treaty: the one may declare his intention not to disclose certain points, and the other may allow of this reserve. There may be also a tacit presumption, that there are just reasons for such reserve which may perhaps be necessary out of regard to the rights of a third person: rights which, in the common judgment of all sober men, may be sufficient to counterbalance any obligation in either of the persons engaged in the treaty to make a full disclosure of his views and sentiments.—These principles, duly considered, will supply many inferences to reconcile any seeming contradiction in the opinions, that have been advanced.
XII. In the first place, many things may be said to madmen, or children, the literal meaning of which may not be true, without incurring the guilt of wilful falsehood. A practice which seems to be allowed by the common sense of all mankind. Quintilian, speaking of the age of puerility, says, it is a period of life, when many useful truths may be taught in the dress of fiction.—Another reason given is, that as children and madmen possess no perfect power of judging, impositions of that kind can do no injury to their rights, in such respects.
XIII. Secondly, when a conversation is addressed to any one, who is not thereby deceived, although a third person, not immediately addressed, may misconceive the matter, there is no wilful falsehood in the case. No wilful falsehood towards the person addressed: because he feels no greater injury from thence, than an intelligent hearer would do from the recital of a fable, or the use of a metaphor, irony, or hyperbole in speech. It cannot be said that an injury is done to the person, who accidentally and cursorily hears a matter, and misconceives it: for being no way concerned, there is no obligation due to him. As he misconceives a thing addressed to another, and not to himself, he must take upon his own head all the consequences of the mistake. For, properly speaking, the discourse, with respect to him, is no discourse, but an inexpressive sound that may signify one thing as well as another. So that there was nothing wrong in the conduct of Cato the Censor, who made a false promise of assistance to his confederates, nor in that of Flaccus, who informed others that Ameilius had taken the enemy’s city by storm, although the enemy were deceived by it. Plutarch mentions an instance of the same kind in the life of Agesilaus. Here no communication was made to the enemy, and the prejudice he sustained was an accidental thing no way unlawful in itself, either to be wished for or procured.
XIV. In the third place, whenever it is certain that the person, on whom a deception is practised, discovers that the intent of it was to do him a service; he will not feel it as a grievance, nor can it come under the strict denomination of a lie or falsehood. It will be no more an injury, than it would be a theft in any one, presuming upon an owner’s consent, to take something belonging to that owner, in order to convert it to his use in a very beneficial way. For in cases of notorious certainty, a presumption may be taken for express consent. But it is evident that no man would consent to receive an injury.
From hence it appears, that a person is guilty of no treachery, who uses unfounded or fictitious motives to console a friend in distress, as Arria did to Paetus upon the death of his son, of which there is an account in Pliny’s Epistles, or in a general, who in a perilous situation should avail himself of false intelligence, to encourage his troops, by which perhaps a victory might be gained.
It may be observed likewise, that the injury done to the freedom of judgment is, in such a case, of less consequence, because it is but momentary, and the real fact is soon discovered.
XV. There is a fourth case, which bears a near affinity to those above mentioned, and that is, when any one, possessing preeminent authority, orders another, in a subordinate capacity, to execute some device or stratagem, conducive either to his individual, or to the public welfare. Which Plato seems to have had particularly in view, in allowing those in authority to avail themselves of pretexts, or stratagems. The same writer is very correct in his notion of not making such a device a characteristic of that authority, which belongs to the supreme being. For all such devices, however justifiable they may be in certain cases, strongly betray that imperfection, which is inseparable from all human systems.
The stratagem, which Joseph employed to obtain further discoveries without making himself known to his brethren, is much commended by Philo, as a mark of great policy, when, contrary to the convictions and feelings of his own mind, he accused them of being spies, and afterwards charged them with theft. It was by a stratagem of the same kind, that Solomon gave proof of his inspired wisdom, when he used the fictitious threat of dividing the living child in order to discover the real mother.
XVI. The fifth case, which allows a stratagem to be practised, is that, where it may be the only means of saving the life of an innocent person, of obtaining some object of equal importance, or of diverting another from the perpetration of some horrid design. The heathen poet has given a beautiful illustration of this in his praises of Hypermnestra, whose conduct he calls “a splendid stratagem, ennobling the virgin to all posterity.”
XVII. It is evident that many writers of acknowledged wisdom, and sober judgment, have carried the point farther than has been done in this treatise, in allowing the use of false representations to an enemy. In cases, where public enemies are concerned, they maintain, that it is lawful to deviate from those strict rules of avowing and disclosing all our intentions, which they prescribe, on all other occasions. Such is the opinion of Plato and Xenophon among the Greeks, of Philo among the Jews, and Chrysostom among Christians. It may not perhaps be amiss to cite, in this place, the message sent by the men of Jabesh Gilead to the Ammonites, by whom they were besieged, and also that of the prophet Elisha, and at the same time to mention the conduct of Valerius Laevinus, who boasted of having killed Pyrrhus.
The third, the fourth and fifth observations above made, may be illustrated from what is said by Eustratus, Archbishop of Nice, “An able and upright counsellor is not obliged to disclose the whole truth: for there may be occasions, when it may be necessary for him to recommend the means of deceiving an enemy, or to employ some stratagem towards a friend, where it may turn to his advantage.”
XVIII. What has been said of false speaking must be understood as applied to affirmative declarations, which can be prejudicial to no persons, but public enemies: it can by no means be taken to include promises. For promises confer upon the person, to whom they are made, a peculiar right to claim their full performance. And this is a rule, which must take place, even between public enemies: a rule to which existing hostilities are not allowed to from an exception. It is a maxim proper to be enforced in tacit, as well as in express agreements: as when a parley or conference is demanded, there is always an implied promise, that both sides shall attend it with perfect safety. But these are points reserved for the discussion of another part of this treatise.
XIX. It will be necessary to repeat an observation made before, with respect to oaths, both of the affirmative and promissory kind, where it was maintained that they exclude all exceptions, all mental reservations towards the person, to whom they are made, being regarded not merely as a solemn transaction with that individual, but as a stedfast appeal to God. Such an appeal to the supreme being demands the performance of an oath, even if it gave the individual no right to the same.
At the same time it was observed, that a sworn declaration is not like one of any other kind, where an application of terms different from their usual meaning may supply the speaker with an excuse for evading their import. But truth requires every declaration and promise to be made in terms, which it is supposed that every man of integrity and clear judgement will understand, spurning at the impious thought, that men may be deceived by oaths, as children are by toys and trifles.
XX. Some nations and individuals indeed have rejected the use of those stratagems, which even the law of nature allows to be employed as a means of self-defence against an enemy. But they did so, not from any opinion of their unlawfulness, but from a noble loftiness of mind, and from a confidence in their own strength. Aelian has preserved a saying of Pythagoras, “that there are two things, in which man approaches nearest to God, in always speaking the truth, and doing good to others.” Aristotle, somewhere in his Ethics, calls speaking truth, the freedom of a great soul, and Plutarch says, that falsehood is the qualification of a slave. But an adherence to truth, in simplicity of heart, is not the only duty required of Christians, in this respect, they are commanded to abstain from all vain discourse, as having for their example him, in whose mouth there was found no guile.
XXI. With respect to the actions of men, there is another rule which may properly come under this head, and that is, the unlawfulness of urging or persuading any one to do an unlawful act. For instance, no subject has a right to lift his hand against his sovereign, to deliver up a town to without public authority, or to despoil his neighbour of his goods. It would be unlawful then to encourage the subject of an enemy, as long as he continues his subject, to do any of these acts. For the person, who urges another to do a wicked act, makes himself a partner in his guilt. Nor can it be received as a just answer, that urging a subject to the perpetration of such a deed is nothing more than employing the lawful means of destroying an enemy. For though it may be necessary and just to destroy him, if possible, yet that is not the way, in which it should be done. Augustin has well observed, that it makes no difference whether any one should commit a crime himself, or employ another as his instrument.
But employing the spontaneous offers of a deserter is not contrary to the laws of war, and is a very different action from that of seducing a subject from his allegiance.
In What Manner the Law of Nations Renders the Property of Subjects Answerable for the Debts of Sovereigns. The Nature of Reprisals.
No one but an heir bound by the act of another—Property of subjects answerable for the debts of sovereigns, according to the law of Nations—Capture of persons and property after satisfaction refused by the aggressor—Reprisals—Personal safety of subjects—Distinction made by the law of Nations in this respect.
I. The rights accruing from the law of Nations are the points next to be considered, which may be referred either to wars in general, or to those of a particular description.
Wars in general are those, which properly first come under notice.
By the literal law of nature, no one is bound by the actions of another, except the person, who succeeds to his property. For the introduction and establishment of property introduced and established also the power of transferring it with all its incumbrances. The Emperor Zeno however pronounces it repugnant to natural justice for one man to be molested for the debts of another. A principle, which gave rise to the distinctions in the Roman law, that the wife could not be sued for her husband, nor the husband for his wife, nor a son for his father, nor a father or mother for their son. Nor, as Ulpian clearly states it, could individuals be answerable for the debts of the community, and more especially if that community be possessed of property. Indeed if that were not the case individuals could only be obliged to contribute their due proportion, as members of that community.
Seneca says, “if any one lends money to my country, I am not to be considered as his debtor, nor to take the debt upon myself, though I am bound to pay my due proportion of it.” There was a special provision made in the Roman law, that one peasant should not be bound for the debts of another, and it is laid down as a rule, that the goods of one person shall not be distrained for the debts of another, even if they be public debts; and in Justinian’s Novels, pledges for others are forbidden, and the cause assigned for it is, because it is unreasonable that one person should incur the debt, and another be bound to the payment of it an exaction to which the name of odious is given. King Theodoric Cassiodor, calls it a shocking licence for one man to be detained as a pledge for another.
II. Although in the preceding observations there may be a great deal of truth, yet it is possible, and indeed appears actually to be the case, that the voluntary law of nations introduced the practice of rendering all the corporeal, and incorporeal property, belonging to the subjects of any state or sovereign, liable to the debts, which that state or sovereign may have incurred, either personally, or by refusing to make such reparation, as may be due for the injuries and aggressions, which they have committed.
Yet this is a practice, which nothing but necessity could justify; for, on any other ground, it would be opening a door to innumerable acts of wanton aggression and injustice against individuals. As the property of states and sovereigns cannot often so easily fall into an enemy’s hand, as that belonging to individuals, who are more numerous, and whose property is consequently more exposed. So that rights of this kind are to be reckoned among those, which Justinian says, are the offspring of stern necessity, the calamities of men driving them to the use of such means.
But though a practice like this owes its introduction to necessity, it is not so far at variance with the law of nature, as to exclude custom and tacit agreement from having some share in its establishment. For we find that sureties are bound by no other tie, but that alone of having given their consent. Besides, it might easily be supposed, that it was the best method of redress against the subjects of another state, where the aggrieved persons could not so easily prosecute their rights, or obtain indemnities, the claims or injuries of strangers being but little understood, and perhaps still less regarded in a foreign land.
Subjects, being thus liable to the loss of their property, by the conduct of their fellow subjects, or by that of the state, might sometimes feel it a hardship, while on other occasions, it would prove their greatest security against aggressions from the subjects of another power.
That this was a received custom appears not only from the regular wars, carried on by one state against another, the rules observed in which are often named in the manifestoes issued on such occasions: the form of which may be seen in the first book of Livy, where it is said, “I declare war against the ancient nations of the Latins, and likewise against the respective individuals” and the same writer, in his thirty first book, informs us, that, upon the question being put to the people, they were asked, whether it was their pleasure that war should be declared against Philip, and against the Macedonians, his subjects.—But the same custom also prevailed, even before the commencement of actual and open hostilities between two states, when mutual acts of aggression by the subjects of each power could be regarded as nothing but the eve, and prelude to a declaration of war. The words used by Agesilaus to Pharnabazus will serve to elucidate this point: he said; “While we were friends to the king of Persia, we treated him and his subjects in a friendly manner: Now we are enemies, you can expect nothing from us but hostilities. Therefore, Pharnabazus, while you chuse to continue a vassal to the King, we wound him through your sides.”
III. The Athenians had a method somewhat like this of seeking redress, which they called ἀνδροληψια a seizure of men’s persons, which was laid down in the Attic law in the following terms, “if any one has been murdered in a foreign country, the nearest relatives of the deceased are authorized to seize any three subjects of that country, but not more than three, till the perpetrators of the deed be punished, or at least delivered up to the hands of justice for that purpose.”
In this case we find that the personal liberty of subjects, which may be considered as a kind of incorporeal right, including the right of residing where they please, or doing whatever they may think proper, is made answerable for the debt of the state, who is bound to punish the criminal acts of her subjects: so that the subjects suffers constraint, till the state has discharged the debt, which it is bound to pay; and by the payment of this debt is meant the punishment of the guilty. For although the Egyptians, as we learn from Diodorus Siculus, maintained that neither the person, nor liberty of any one ought to be bound or constrained for a debt, there is nothing in it repugnant to the law of nature, and by the practice not only of the Greeks, but of other nations, the opposite opinion seems to have been established.
Aristocrates, who was contemporary with Demosthenes had made a motion for a decree, that if any one killed Charidemus, it might be lawful to seize him, wherever he was to be found, and that any one, who attempted to rescue that person, should be deemed an enemy. Demosthenes finds fault with many parts of this decree. For in the first place, Aristocrates had omitted making a proper distinction between murder and a lawful putting to death, the latter of which is an act of justice, in the next place, he has said nothing of bringing the person to a regular trial: besides, it was not the persons, among whom the murder had been committed, but those who afterwards received the murderer, that were to be declared enemies. Demosthenes says, that “the regular law prescribes, that if the persons in whose district a murder has been committed, neither punish, nor deliver up the perpetrator of the crime, three of their people shall be liable to be seized. But this decree, allowing the persons in whose district it has been committed to escape with impunity, not even naming them, passes sentence upon those, who in conformity to the common laws of humanity have received the fugitive, if they do not deliver him up, which would be a breach of the protection due to a suppliant.”
The fourth point, in which he blames Aristocrates, is for having carried matters to the extremities of open and actual war, in a case, where the law only authorized the seizure and detention of particular persons. Of these arguments, the first, the second, and the fourth, are by no means destitute of weight. But the third argument, unless it be confined entirely to the circumstance of accidental death, or that necessarily occasioned by defending one’s self, may be regarded more as an oratorical flourish than a just and solid reason. For the law of nations extends the privileges, and character of suppliants to those only, who have left their country on account of misfortune, and not owing to crimes. Indeed if the law of nations made no such distinction, the persons, among whom a crime has been committed, and who may be suspected of having countenanced the deed, and those who barely refuse to punish or deliver up the guilty fugitive, would be upon an equal footing as to right. So that it was either usage, which gradually introduced the above interpretation of that law, to which Demosthenes appeals, or it was afterwards more expressly established, in order to avoid such cavils. For no one can deny the truth of one of these positions who has attended to the observation of Julius Pollux, that “the seizure and detainder of persons can be enforced, whenever a power cannot obtain the surrender of fugitive, murderers, which they demand. In this case the aggrieved power or individual may seize and detain any three of the people belonging to the state, which refuses to make that surrender.”
It is upon the same principle that any power may detain the subjects of another state, in order to procure the release of any subjects of her own, unjustly seized, and imprisoned by that state.
IV. Another method of obtaining redress for any violation of persons, or property is by having recourse to what, in modern language, are called reprisals, which the Saxons and Angles denominated withernam, and to which the French gave the name of Letters of Marque, and those were usually obtained from the crown.
V. It is generally understood that recourse may be had to this method of redress not only against a foreign aggressor, but also against a debtor, if justice cannot be obtained in due time: but in notorious cases, which admit of no doubt, this right may be enforced even beyond the strict letter of the law. For even in doubtful matters, the presumption will always be in favour of judges appointed by public authority. For it is unlikely that they should greatly, or wantonly exceed their power; especially when, if so inclined, they have not the same means of enforcing their decrees against foreigners, as against their fellow subjects. Indeed even in disputes between subjects of the same country, they cannot annul a just debt. Paulus, the Lawyer, says that a real debtor, though discharged, owing to some informality or inability of the law to enforce payment, still remains a debtor according to the law of nature.
And when, in consequence of a judicial sentence, a creditor, under pretext of seizing his own property, had taken from a debtor something which did not belong to him thought it was in his possession: upon the discharge of the debt, a doubt arising whether the thing should be restored to the debtor, Scaevola maintained that it certainly ought to be restored.
There is a difference between the two cases. For subjects, as such, cannot make any violent resistance to the execution of a sentence, which they may not deem satisfactory, nor can they prosecute any right in opposition to the law. Foreigners may use violent means to enforce a right: tho’ they are not justified in using such means, while there is any possibility of obtaining redress in a legal, and peaceable manner.
It is on such grounds that reprisals are made upon the persons and property of the subjects, belonging to a power, who refuses to grant redress and reparation for injuries and aggressions. It is a practice not literally enacted by the law of nature, but generally received through custom. It is a practice too of the greatest antiquity: for in the eleventh book of the Iliad, we find Nestor giving an account of the reprisals, which he had made upon the Epeian nation, from whom he took a great number of cattle, as a satisfaction for a prize which his father Neleus had won at the Elian games; and for debts due to many private subjects of the Pylian kingdom. Out of this booty the king having selected his own due, equitably divided the rest among the other creditors.
VI. It has been a received opinion with many nations, that reprisals might be made even upon the lives of innocent subjects, owing to the right, which it was supposed that every one had over his own life, and which might be transferred from the individual to the state. A doctrine, which, as it was proved in the first book of this treaties, can never be reconciled either to sound religion or morality. Indeed a person may accidentally, though not intentionally be killed by us in attempting to prevent him from violently obstructing us in the prosecution of a lawful right. Yet if such an accidental calamity could be foreseen, the law of charity, setting so pre-eminent a value upon the life of man, would in such a case prescribe the forbearance of our right.
VII. But on this, as well as other points, we must take care not to confound the natural and fundamental law of nations, with the civil and conventional law of particular states.
By the law of nations all the permanent subjects, both natives and settlers, of an offending state or sovereign are liable to suffer reprisals: but the same rule does not bind those, who are passing through a country, or only residing in it for a time. For such reprisals are a kind of pledges, like public burdens, made answerable for the public debts, from which foreigners, being temporary residents, though owing obedience to the laws, are totally exempt.
In the same manner, Ambassadors, but not those sent from an enemy to our enemies, and their property, are exempt from such conditions by the law of nations. By the civil law too of many countries an exception is made in favour of women and children, of men of letters, and those who are traveling for the purposes of trade. But by the law of nations the goods of all are liable to reprisals, as was the case at Athens, respecting the seizure of persons. In many places, by the civil law, the right of making reprisals is obtained of the sovereign, and in others, of the judges.
By the law of nations the property of all captures is devoted to discharge the debt, and defray the expenses incurred, the remainder of which, after due satisfaction obtained, and peace concluded, should be restored. By the civil law the persons interested are summoned to appear, the property is sold by public authority, and the money, accruing from thence, divided among all who are entitled to a share of the same. But these and other points of the same kind are to be learned from civilians, who are conversant in such matters, and particularly from Bartolous, who has written upon reprisals. This subject may be closed with one observation is, that will in some measure tend to soften the rigour of this stern, but necessary right, and that observation is, that such as by not discharging a debt, or granting redress, have occasioned reprisals to be made, are bound, in justice and honour, to make good the losses of those, who have thereby suffered.
On Just or, Solemn War According to the Law of Nations on Declarations of War.
Solemn war, according to the Law of Nations between different states—A people, though engaged in unjust war, to be distinguished from pirates and robbers—Change in the condition of belligerents—Formal war can be made by the Sovereign power alone—Declaration of war—The Law of Nature, Law of Nations, respecting the same—Declaration, conditional, absolute—Forms of declaration introduced by the civil law—War declared against a Sovereign includes his subjects, and allies—The reason why allies are included—Declarations, why necessary to establish certain effects—Whether actual warfare immediately follows a declaration, considered—Whether the violation of an Ambassador’s rights to be a just ground of war.
I. In the first book of this treatise it was observed,that according to the best writers, a war is defined to be just, not on account of the causes solely, in which it originates, nor on account of the magnitude of its objects, but from certain, peculiar, effects of right, with which it is attended.
But to what kind of war such an appellation most duly belongs will be best understood by considering the definition, which the Roman Lawyers have given of a public or national enemy. “Those says Pomponius, are public and lawful enemies, with whose state our own is engaged in war: but enemies of every other description, come under the denomination of pirates and robbers. With that opinion Ulpian entirely accords, making an additional observation, that “if any one be taken by robbers, as he is not a lawful prisoner of war, he cannot claim of his own state the right of postliminium. But if he be taken prisoner by a public enemy of the state, being considered as a prisoner ofwar, he is entitled by the right of postliminium to be restored to his former condition.”
These opinions are supported by that of Paulus, who maintains, that persons captured by pirates still continue free, that is, are not to be considered as prisoners, for whom an exchange may be demanded. So that by the opinion of the Roman Lawyers it is evident, that no war is considered to be lawful, regular, and formal, except that which is begun and carried on by the sovereign power of each country. Cicero, in his fourth Philippic, describes “a public and authorised enemy to be the person, who possesses the civil and military powers of the state, who can command the treasury, and the services of the people in support of his measures, and who, as occasions offer, has power to conclude treaties of peace and amity.”
II. A state, though it may commit some act aggression, or injustice, does not thereby lose its political capacity, nor can a band of pirates or robbers ever become a state, although they may preserve among themselves that degree of subordination, which is absolutely necessary to the subsistence of all society. For with the latter, the commission of crime is the sole bond of union, whereas the former, though not always free from blame, but occasionally deviating from the laws of nature, which in many cases have been in a great measure obliterated, still regulate their conduct by the treaties, which they have made, and certain customs that have been established, being united among themselves for the mutual support of lawful rights, and connected with foreign states by known rules of standing polity.
The Scholiast, upon Thucydides, remarks that the Greeks, at the time when piracy was reckoned lawful, forebore committing massacres, or nightly depredations, and carrying off the oxen that were necessary for the plough. We are informed by Strabo, that other nations too, who lived by plunder, after they had returned home from their predatory voyages, sent messages to the owners, whom they had plundered, to known if they would redeem the captures at a fair price.
In morals, the whole system often derives its name from some one of the principal parts, as Cicero remarks, in the fifth book of his Bounds of Good and Evil, and Galen observes that a mixture is often called by the name of its chief ingredient. So that Cicero is not altogether correct in saying, that a state is not merely diseased, but entirely destroyed, by the injustice of its component and leading members. For a morbid body is still a body, and a state, though dreadfully diseased, is still a political being, as long as its laws and tribunals and other necessary parts of its constitution remain, to administer justice and give redress to foreigners, no less than to private subjects in their actions against each other.
There is a beautiful observation in Dion Chrysostom, who compares the law of a state, particularly that branch of it relating to the law of nations, to the body animated by the soul, upon the departure of which the corporeal frame becomes a mass of lifeless clay: in the same manner political society cannot subsist without the guiding and controuling principle of law. Aristides, encouraging the Rhodians to harmony, observes, that even under a tyrannical government many good laws may be found.
These are points, which may be cleared up by examples. Thus Ulpian maintains that those who are captured by pirates cannot be considered as prisoners of war: but if captured by the Germans, for instance, or any national enemy, they lose their liberty for a time. But the Germans, as we are informed by Caesar, thought acts of plunder, if committed in a foreign territory, no disgrace. Tacitus says that the Cattians, a noble race of people in Germany, and the Garamantians were addicted to the same habits of plunder, yet still retained their rank among states.—Such is the difference between a national and political body, and a band of men uniting together solely for the commission of crimes.
III. A change may occur not only in the situations of individuals, as in those of Jephthah, Arsaces, and Viriatus, who from being leaders of voluntary bands, became lawful commanders; but the same has also happened with respect to whole communities, which being originally composed of nothing but freebooters have, by the gradual course and changes of time, risen to the rank and dignity of states.
IV. What has been said with respect to the right of making formal and lawful war, being vested in the sovereign power alone, includes those who have any share in the sovereign power, as the different communities forming the States General of many commonwealths. The same rule will hold good of those, who are not subjects of a superior state, but joined to it in confederacy by an unequal treaty: innumerable instances of which are to be found in history. This was the case between the Romans and their allies, the Volscians, the Latins, and the Spaniards: and all whom we read of being engaged in wars, which were considered as lawful and just.
V. But to make a war just, according to this meaning, it must not only be carried on by the sovereign authority on both sides, but it must also be duly and formally declared, and declared in such a manner, as to be known to each of the belligerent powers. Cicero, in the first book of his offices, points out “the equity of the rules prescribed by the Roman Law for the declaration of war, from whence it may be concluded that no war is regular or just, but such as is undertaken to compel restitution, and to procure indemnity for injuries, and that too accompanied with a formal declaration.” Livy also in the same manner deems an observance of these rules requisite to form the characteristic of a just war. And describing an incursion of the Acarnanians into Attica, and their ravaging the country, he says that “those acts of irritation ended in a declaration of just and regular war on both sides.”
VI. In order to understand all these points clearly respecting the declaration of war, an accurate distinction must be made between the principles, which are founded on the law of nature itself, and those, which, though not derived immediately from that source, are still found to be just: it will be necessary also to examine, what is required by the law of nations towards obtaining, in war, all the consequences, privileges and effects of that law, and at the same time, to investigate the consequences and rights arising from the peculiar laws and customs of particular nations.
To repel force, or to punish a delinquent, the law of nature requires no declaration. And, as Thucydides relates, Sthenelaidas, one of the Ephori, maintains that “where we have been injured, not by words, but by actions, the matter cannot be decided by words and forms.” And Aelian, after Plato, observes that it is not the declaration of the Herald, but the voice and law of nature, which proclaim war, undertaken to repel force. Hence Dion Chrysostom, in addressing the Nicomedians, says that many wars are begun without any declaration.
Upon the same ground Livy condemns the conduct of Menippus, a general belonging to Antiochus for having killed some Roman citizens before any declaration of war had been made, or even before a sword had been drawn, or a drop of blood spilt, to shew that hostilities were intended. By this objection he proves that either a formal declaration, or some act indicative of hostilities was deemed requisite to justify actual warfare.
Neither, if we follow the law of nature, is there any more occasion for notice or declaration, where an owner intends to lay hands upon his own property. But when ever one thing is taken in return for another, or the property of a debtor is seized for the recovery of a debt, and, especially, ifany one intends seizing the property of those, who are subjects to the debtor, a formal demand must be made, as a proof that recourse to such security is the only means left to obtaining redress and satisfaction. Such a demand is necessary because that is not a primary and original rights, but a secondary right, substituted in the place of the primary and original, by the artificial rules of civil law.
In the same manner to justify an attack upon a sovereign power for the aggressions and debts of its subjects, a previous remonstrance, and a proper demand of justice must be made to that power. For it is only by refusing to punish the guilty, or to grant indemnity to the injured, that states or sovereigns can be implicated in the misconduct of their subjects.* But ever where the law of nature does not directly prescrible that such are monstrance or demand should be made, yet the common principles of humanity and equity will recommend theߤ use of any means, that may prevent recourse to the calamities of war. The commandment given by God to the Hebrews, to send a message of peace to any state or city, before they began an intended attack, was designed as a special command to that people, yet some have confounded it was not any kind of peace that was meant by that injunction, but only such a peace as imposed terms of subjection and tribute. We are informed by Xenophon, that when Cyrus went into the country of the Armenians, he sent messengers to the kind, to demand the tribute and number of troops, which had been stipulated by treaty.
But to obtain the peculiar rights, and consequences resulting from the law of nations, a declaration of war by one of the parties, at least, if not by both, is absolutely requisite in all cases.
VII. Those declarations are either conditional or absolute. A conditional declaration is that which is coupled with a demand of restitution or redress. Under the name of restitution, the Fecial Law of Rome, that is to the Law respecting declarations of war, comprehended not only the claims, which ownership established, but the prosecution of every right arising from criminal or civil causes.
Hence the declarations, were couched in terms, requiring restoration, satisfaction, or surrender. Here, by the term, surrender, the party appealed to is understood to have the option either of punishing the offender, himself, or delivering him up to the aggrieved person. This manner of demanding restitution is, according to the testimony of Pliny, called clarigation, that is, a loud and formal demand. Livy gives us an example of a conditional and qualified declaration, wherein the aggrieved power denounces “a determined resolution to prosecute her rights with the utmost violence, if the agressor will not make reparation andatonement for the injury he has done.” Tacitus also relates the substance of a dispatch sent to Caecina by Germanicus, wherein he declares, that “if the ringleaders of the mutinous and rebellious legions are not immediately punished, he will advance with his army, and put the whole to the sword.”
An absolute declaration of war is issued, where any power has already begun hostilities, or committed acts which call for exemplary punishment. Sometimes indeed a conditional, is followed by an absolute war, though in such a case the latter is not actually necessary, but only a confirmation of the former. This gave rise to the form, which says, “an appeal is hereby made against such a people, as unjust and refusing to grant redress.” There is another form also purporting, that “the principal herald of the Roman citizens has made known to the principal herald of the ancient Latins, and to the Latin people, that redress is demanded of them by just and lawful war, on account of all the disputes which they have refused to settle, and the indemnities which they have been bound to grant, and have refused; and that this is the only means remaining to recover all that has been unjustly detained.” There is also a third mode of declaration, which runs in the following tenour; “Since the ancient people of the Latins have committed aggressions against the people of Rome, the people of Rome, with the advice and consent of the senate, declare war against them, and in the name of the senate and people of Rome their purpose is thus published.”
But that in case of renewed wars such a declaration is not absolutely necessary, appears from the circumstance of its being made in due form at the nearest garrison, and not personally to the offender himself, according to the answer given by the heralds, when they were consulted in the case of Philip of Macedon, and afterwards respecting Antiochus. Whereas a declaration for the first time should be made to the enemy himself. Indeed in the war against Pyrrhus the declaration was made to one of his soldiers, in the Flaminian Circus, where, as Servius observes in his notes on the sixth book of the Aeneid, he was commanded to purchase a piece of ground, as a handle for dispute. A proof also that in some cases a declaration is superfluous may be taken from the circumstance that war is frequently declared by both sides, which was done by the Corcyraeans and Corinthians in the Peloponnesian war, though a declaration by one of the parties would have been sufficient.
VII. As to the use of the caduceum, or staff with the figure of two snakes twisted around it, which ambassadors carried, when they sued for peace, it was a ceremony peculiar to the Greeks, and not derived from the general law of nations. The Romans in the same manner had particular customs, such as using vervain in forming alliances, throwing abloody spear, as a declaration of war, renouncing all former friendship and alliance at the expiration of thirty days, after satisfaction had been demanded and refused, and again throwing another spear. None of these peculiar customs ought to be confounded with the general law of nations. For Arnobius informs us, that in his time many of them had fallen into disuse, and even in the time of Varro some of them were omitted. The third Punic war indeed was not declared till the moment of its actual commencement.
IX. A declaration of war, made against a sovereign, includes not only his own subjects, but all who are likely to become his associates, as thereby they make themselves accessories in the war. And this is what the modern lawyers mean, when they say that, in bidding defiance to a Prince, we bid defiance to all his associates. For they give the name of defiance to a declaration of war. By which is understood the war carried on with the power against whom it has been declared. Thus upon war being declared against Antiochus, there was no occasion for a separate declaration against the Aetolians, who had openly joined Antiochus. For, as the heralds in their answer justly observed, the Aetolians had, by that act voluntarily brought war upon themselves.
X. But if after the conclusion of such a war it should be deemed expedient to attack any other nation or king for having furnished supplies and assistance towards that war, a new declaration of war will be necessary. For that nation or king is then to be considered, not as an accessory, but as a principal enemy. And therefore it was with reason said, that the war of Manlius against the Galatians, and that of Caesar against Ariovistus, were not just wars according to the law of nations. For war was made upon them not as accessories, but as principals. So that for this purpose, as the law of nations would have required a declaration, in the same manner the Roman law would have required a new order of the Senate.
For on the motion being made for the war with Antiochus, the question was also put, whether it should not at the same time be made with his adherents. The same rule also being observed against King Perseus, it must be understood, as including the adherents during all the time that war with those princes continued; and implicating all who in reality gave them support.
XI. The reason why a declaration is necessary to constitute what is deemed, according to the law of nations, a just war, is not that which some writers assign. For they allege that it is to prevent every appearance of clandestine and treacherous dealing: an openness, which may be dignified with the name of magnanimity, rather than entitled a matter of right. On this point, we are informed that some nations have gone so far, as to settle and make known the very time and place of a general engagement.
But waving all conjecture, a more satisfactory reason may be found in the necessity that it should be known for certain, that a war is not the private undertaking of bold adventurers, but made and sanctioned by the public and sovereign authority on both sides; so that it is attended with the effects of binding all the subjects of the respective states;—and it is accompanied also with other consequences and rights, which do not belong to wars against pirates, and to civil wars.
XII. There is much truth indeed in the observations, which some have made, and which they have produced examples to confirm, that even in wars of this kind all captures become the lawful prize of the captors.
Yet this is only partially true, and that too, according to the law of nature, and not according to the voluntary law of nations. For the latter only makes provision to secure the rights of nations, as whole communities, and not of those, who, as in civil wars, form but one part of a nation.
The same writers are mistaken too in the supposition that defensive wars require no declaration. For it is no less necessary to shew by way of vindication that it is a defensive war, and at the same time by public declaration to give it the character of a national and lawful war, in order to establish those rights and consequences, that have been already mentioned, and which will hereafter be more fully explained.
XIII. They maintain another position also, which is by no means true, and that is, that a power ought not immediately to follow up a declaration of war with actual hostilities, as Cyrus did to the Armenians, and the Romans to the Carthaginians. For the law of nations requires the intervention of no definite time between the declaration and the commencement of war.
There may indeed be some cases, where natural justice will render such a delay proper. Thus, for instance, where reparation for injury, or the punishment of aggressors is demanded, it is but reasonable to wait till it can be known, whether the just demand will be complied with or rejected.
XIV. In order to establish the same consequences, a declaration will be equally necessary too, where the rights of Ambassadors have been violated. Yet it will be sufficient for it to be made in the manner, in which it may be done with the greatest safety. As in many other matters, in places which afford no security, satisfaction is demanded by denunciation or summons.
On the Right of Killing an Enemy in Lawful War, and Committing Other Acts of Hostility.
General explanation of the effects of formal war — Distinction between lawful and innocent impunity — Merit of the latter — Examples added to explain it — General effects of former war considered with respect to lawful impunity — The reason of their introduction — Historical testimonies — By the right all persons, found within an enemy’s territory, objects of hostility — Also all going thither before the war — The subjects of an enemy liable to be seized everywhere, except protected by the laws of a neutral teritory — Case of women and children —Case of prisoners — Of those whose voluntary offer of surrender is rejected — Unconditional surrender — Retaliation — Obstinate defence — Hostages.
I. Servius in his comment on the passage of Virgil, where that poet says that war “will authorise mutual acts of destruction and rapine,” in tracing the fecial or herald’s law to Ancus Martius, and even beyond him to a still more remote period, remarks that, “if ever the persons or property of subjects, belonging to the Roman state, were seized and carried off by any other nation, the principal Herald, or King at arms went out with the sacred ministers, who presided at the making of solemn treaties, and proceedings to the verge of the territories of the offending nation, declared with a loud voice the cause of the war, and the refusal of that nation either to restore what had been seized, or to deliver up the aggressors to justice. After this he threw a spear to indicate that war and all its consequences were from that moment begun.”
The commentator had previously observed that the ancients gave the name of rapine to every act of hostility even where there was no act of plunder committed; and they likewise called every kind of restitution a satisfaction.
By this explanation we learn that whenever war is proclaimed between two states or sovereigns, it is accompanied with certain rights or consequences, which do not necessarily belong to war itself. And this is perfectly conformable to the examples from the Roman Lawyers, which have been before produced.
II. But it will be proper to consider how far the lawfulness, which Virgil speaks of, extends. For the term lawful sometimes implies whatever is just and pious in all respects, although the pursuit of a different course may perhaps be more laudable: according to the expression of St. Paul, who says, “all things are lawful to me, but all things are not expedient.” Ulpian is speaking of a seller, who, at the expiration of a certain period, is not answerable for the safety of goods, which a buyer has neglected to take away, says he, will yet think himself bound in equity to preserve them with all imaginable care. On some occasions when it is said, that men may lawfully do a thing, the expression only means that doing such act will not subject them to human and legal penalties, but it by no means indicates that the action is strictly conformable to the rule of religion and morality. Thus among the Lacedaemonians and Egyptians stealing was allowed: an indulgence that by no means took away the guilt of theft.
Cicero in the fifth of his Tusculan questions, speaking of Cinna, beautifully and justly points out this abuse of the word, lawful. “He seems to me, says he, a wretched man indeed for having done those acts, and for having been in a situation, where they might be thought lawful. It can never be lawful for any man to do wrong: but we fall into a great mistake in the use of that word: for we consider a thing to be lawful, which any one may do with impunity.” This is the meaning, in which the term is generally understood, as the same orator, in addressing the judges in behalf of Rabirius Posthumus, observes, “it behoves you to consider, what is becoming your character, and not what the rigour of the law allows you to inflict. For if you consult the full extent of your authority, you may make away with any citizen you please.”
In the same manner legislators, as it was proved in a former book of this treatise, are not accountable, in their legislative capacity, to any human tribunal, for the laws, which they make, yet they cannot, in a moral point of view, avail themselves of this transcendent power to enact a thing that is evidently unjust. In this sense we often meet with a distinction made between what is proper or right, and what is lawful. Thus Cicero, in his speech for Milo, makes the law of nature the standard of what is right, and legal authority, the standard of what is lawful.
III. Thus qualified, the annoyance of an enemy, either in his person or property, is lawful. This right extends not only to the power engaged in a just war, and who in her hostilities confines herself within the practice established by the law of nature, but each side without distinction has a right to employ the same means of annoyance. So that any one taken in arms, even in another’s territory, cannot be treated as a robber, male-factor, or murderer, nor can even that neutral power, in whose territory he is taken, treat him as an enemy, for being found in arms.
IV. This principle was established by nations to prevent others from interfering in their disputes, or giving the law to them respecting the rights of war. Besides, if this were not the case, neutral powers would frequently be involved in the wars of others. A reason which the people of Marseilles urged in the dispute between Caesar and Pompey. They alleged that they had neither sufficient judgment to determine on which side justice lay, nor, if they could determine, had they strength to give effect to their decisions.
A spectator indeed is but ill qualified to judge, how far, even in the most just war, self-defence, the attainment of indemnity, or the punishment of an aggressor, may be carried. These are points, which, on many, if not most, occasions must be left to the conscience and discretion of the belligerents themselves: a mode far preferable to that of appealing to the mediation, and decision of disinterested and neutral powers. Livy has given an address of the Achaeans to the senate, in which they ask, “how their availing themselves of the rights of war can ever be fairly called in question, or made a subject of discussion?”
Besides the impunity attending certain actions done in war, the acquisition of territory by the right of conquest is another topic of consideration, which will hereafter be examined.
V. The lawfulness of injuring or destroying the person of a public enemy is supported by the testimony of many of the best writers, both poets, moralists, and historians. In one of the tragedies of Euripides, there is a proverb, which says, that “to kill a public enemy, or an enemy in war is no murder.” Therefore the custom of the ancient Greeks, which rendered it unlawful and impious to use the same bath, or to partake of the same festivities and sacred rites with a person who had killed another in time of peace, did not extend to any one who had killed a public enemy in war. Killing an enemy is indeed everywhere called a right of war. “The rights of war, says Marcellus in Livy, support me in all that I have done against the enemy.” And the same historian gives the address of Alcon to the Saguntines, where he says, “You ought to bear these hardships, rather than suffer your own bodies to be mangled, and your wives and children to be seized and dragged away before your eyes.” Cicero in his speech in defence of Marcellus passes a high encomium upon the clemency of Caesar, who, “by the laws of war and the rights of victory, might have put to death all, whom he had spared and protected.” And Caesar observes to the Eduans, that “it was an act of kindness in him, to spare those whom the laws of war would have authorized him to put to death.”
But the rights of war, for which these writers plead, could not perfectly justify the putting prisoners to death, but could only grant impunity to those who availed themselves of the barbarous custom. There is a wide difference however between actions like these, and destroying an enemy by proper means of hostility. For, as Tacitus says, “in the leisure hours of peace the merits and demerits of every case may be examined and weighed, but, in the tumult and confusion of war, the innocent must fall with the guilty”: and the same writer, in another place, observes, that “there are many actions, which the principles of humanity cannot entirely approve, but which the policy of war requires.” And it is in this, and no other sense that Lucan has said, “the complexion of right may be assigned to what is wrong.
VI. This right of making lawful what is done in war is of great extent. For in the first place it comprises, in the number of enemies, not only those who actually bear arms, or who are immediately subjects of the belligerent power, but even all who are within the hostile territories, as appears from the form given by Livy, who says, that “war is declared against the sovereign, and all within his jurisdiction.” For which a very good reason may be assigned; because danger is to be apprehended even from them, which, in a continued and regular war, established the right now under discussion.
Reprisals do not come exactly under the same rule. For like taxes, they were introduced for the discharge of public debts, for no part of which temporary residents, or foreigners are answerable. Therefore Baldus is right in his observation, that, after war is actually begun, much greater latitude is allowed, than in the bare right of making reprisals. So that what is said of foreigners, who enter into an enemy’s country, and reside there, after war is avowedly declared and begun, is undoubtedly true.
VII. But persons, who had gone to reside there before the war was begun, seem by the law of nations to be included in the number of enemies, unless within a reasonable time they chuse to withdraw. So that the Corcyraeans, when going to besiege Epidamnus, gave leave to all strangers to withdraw, denouncing that they would otherwise be treated as enemies.
VIII. But the persons of natural-born subjects, who owe permanent allegiance to a hostile power may, according to the law of nations, be attacked, or seized, wherever they are found. For whenever, as it was said before, war is declared against any power, it is at the same time declared against all the subjects of that power. And the law of nations authorises us to attack an enemy in every place: An opinion supported by most legal authorities: thus Marcian says “that deserters may be killed in the same manner as enemies, wherever they are found.” They may be lawfully killed there, or in their own Country, in the enemy’s country, in a country belonging to no one, or on the sea. But as to the unlawfulness of killing, or violently molesting them in a neutral territory, this protection does not result from any personal privileges of their own, but from the rights of the sovereign of that country. For all civil societies had an undoubted right to established it as a standing maxim that no violence should be offered to any person within their territories, nor any punishment inflicted but by due process of law. For where tribunals retain their authority in full vigour, to try the merits of every offence, and, after impartial inquiry, to acquit the innocent, or condemn the guilty, the power of the sword must be restrained from inflicting promiscuous death.
Livy mentions the circumstance of seven Carthaginian gallies riding at anchor in a part belonging to Syphax, who was then at peace with the Carthaginians and Romans, Scipio arrived at that time, with two gallies, which might have been attacked and sunk by the Carthaginians, before they could enter the port: a brisk wind rising carried them in, before the Carthaginians could weight anchor; but out of respect to the king’s authority they durst not attack the Romans in his harbour.
IX. But to return to the subject, which is, to decide how far the power of lawfully destroying an enemy, and all that belong to him, extends. An extent of which we may form some conception from the very circumstance, that even women and children are frequently subject to the calamities and disasters of war. There is no occasion to allege in this place, as an example, the conduct of the Hebrews, who slew the women and children of the Heshbonites, and who were commanded to execute vengeance upon the Canaanites, and upon all, who were involved in the same guilt. Those examples, where God manifestly interposes his commands, are not to be drawn into a precedent for authorizing actions of the same kind on different occasions. For the supreme and disposing power of God can never properly be compared with that, which men are allowed to exercise over each other. The Psalmist’s expression of the Babylonian children being dashed against the stones is a much stronger proof of the custom commonly prevailing among nations, in the use of victory, to which the language of Homer bears a close resemblance, where the poet says, that “in the cruel rage of war, even the bodies of infant-children were dashed against the ground.” Thucydides relates, that when Mycalessus was captured by the Thracians, they put all, even women and children to the sword. Arrian relates the same of the Macedonians, when they took the city of Thebes. And Germanicus Caesar, according to the account of Tacitus, laid waste whole cantons of the Marsians, a people of Germany, with fire and sword, to which the historian adds, “without sparing either age or sex.” The Jewish women and children too were exposed by Titus, to be torn to pieces by wild beasts at a public spectacle. Yet neither of those generals were thought deficient in humanity, so much had custom reconciled the minds of men to this barbarous usage. So that the massacre of the aged, like that of Priam by Pyrrhus, is no way surprising.
X. The right of putting prisoners of war to death, was so generally received a maxim, that the Roman Satirist has founded an adage upon it, and said, “that when you can sell a prisoner for a slave, it would be absurd to kill him.” Words which imply the full power of doing so, if the captor thought proper. The commentators indeed assign the act of saving, as the derivation of the Latin word, servus, a slave. Thus Thucydides speaks of the prisoners taken at Epidamnus, and killed by the Corcyraeans, and Hannibal is reported to have massacred five thousand prisoners at once. Nor was this power limited by the law of nations to any particular time, though it was controuled by greater restrictions in some places, than in others.
XI. Besides many examples occur of suppliants, being killed. Both ancient poets and historians relate such actions, as ordinary practices, authorized by the laws of war. Augustin commends the Goths for sparing suppliants, who had fled to churches for refuge, and adds by way of comment, that “they deemed it unlawful to avail themselves of the power, which had usually been allowed by the laws of war.”
Nor did those who offered to surrender always experience the lenity and mercy, which they sought thereby. Tacitus relates, that when the city of Uspes was invested, the besieged sent a deputation with offers of an immediate surrender, and of no less than ten thousand slaves, on condition that the free-born should remain unhurt. The terms were rejected—A proof that such a rejection was thought conformable to the rights of war.
XII. But even after an unconditional surrender, we find that those, who had capitulated were sometimes put to the sword. In this manner the princes of Pometia were treated by the Romans, the Samnites by Sylla, the Numidians and Vercingetorix by Caesar. It was almost a Standing practice with the Romans to crown their triumphs with the death of an enemy’s generals, whether made prisoners actually in the field, or by capitulation. Cicero notices this custom in his fifth speech against Verres. Livy may be consulted on this point in many parts of his history, particularly in the twenty-eighth book: and Tacitus also in the 12th book of his Annals. The latter writer, in the first book of his History, relates that Galba ordered every tenth man of those, whom he had, upon their earnest supplication, admitted to surrender, to be beheaded: and Caecina, after the capitulation of Aventicum, punished Julius Alpinus, one of the leading men, with death, as a chief promoter of the war, leaving the rest to the mercy or cruelty of Vitellius.
XIII. Historians sometimes account for this right of putting enemies to death, especially prisoners, or suppliants, either on the score of retaliation, or for obstinate resistance. These may sometimes be the real, but cannot be the justifiable motives of such proceedings. For the law of retaliation, strictly and properly so called, must be directly enforced upon the person of the delinquent himself. Whereas, in war, what is called retaliation frequently redounds to the ruin of those, who are no way implicated in the blame. The general consequences of war are thus described by Diodorus Siculus, “they could not be ignorant, says he, having learnt from experience, that all being involved in the common fortune of war, they are liable on both sides in defeat, to suffer the same calamities, which they themselves would have inflicted upon the conquered party.”
But as the Neapolitans reply to Belisarius, in Procopius, no one can he though deserving of punishment for a resolute adherence to the side on which he is engaged, especially when actuated by natural and just motives in his choice of that side. So far from incurring guilt by such a resolution, it is on the other hand more criminal for any one to desert his post: and so it was judged by the military laws of ancient Rome. Livy says, it was a capital offence, for which no fear of danger could be pleaded as an excuse. So that in the rigid application of this right, owing to its importance, every one is left to use his own discretion, and there may be times and circumstances, in which the law of nations will justify its full exertion.
XIV. The same right was exercised upon hostages also, not only upon those who had bound themselves, as it were, by convention, but even upon those, who had been delivered up by others. Two hundred and fifty hostages were once massacred by the Thessalians, and the Volsci Aurunci to the amount of three hundred by the Romans. It is to be observed that children were sometimes given, as hostages, which we find was done by the Parthians, and by Simon, who was one of the Maccabees. And in the times of Porsena it was usual to deliver women, as hostages: a practice, which, as Tacitus informs us, was followed by the Germans.
XV. As the law of nations permits many things, in themanner above explained, which are not permitted by the law of nature, so it prohibits some things which the law of nature allows. Thus spies, if discovered and taken, are usually treated with the utmost severity. Yet there is no doubt, but the law of nations allows any one to send spies, as Moses did to the land of promise, of whom Joshua was one.
Persons of that description may sometimes be lawfully employed by those, who are engaged in an evidently just war. Others too, who have not such evident proofs of the justice of their cause, may plead the rights of war as a vindication for employing such persons.
But if any are to be found, who disdain to avail themselves of such a privilege, or opportunity, no argument either for, or against the lawfulness of employing spies can be drawn from their conduct, which proceeds rather from a nobleness of mind, and a confidence in open strength, than from any decided opinion upon the subject.
On the Right to Lay Waste an Enemy’s Country, and Carry Off His Effects.
An enemy’s property may be wasted and plundered—Things deemed sacred, how far exempted—Stratagem, how far permitted.
I. Cicero, in the third book of his offices, has said that there is nothing repugnant to the law of nature in spoiling the effects of an enemy, whom by the same law we are authorized to kill. Wherefore it is not surprising that the same things should be allowed by the law of nations. Polybius, for this reason, in the fifth book of his history, maintains, that the laws of war authorize the destruction of an enemy’s forts, harbours, and fleets, the seizure of his men, or carrying off the produce of his country, and every thing of that description. And we find from Livy that there are certain rights of war, by which an enemy must expect to suffer the calamities, which he is allowed to inflict, such as the Burning of corn, the destruction of houses, and the plunder of men and cattle. Almost every page of history abounds in examples of entire cities being destroyed, walls leveled to the ground, and even whole countries wasted by fire and sword. Even in cases of surrender, towns have sometimes been destroyed, while the inhabitants were spared —an example of which is given by Tacitus, in the taking of Artaxata by the Romans; the inhabitants opened their gates and were spared, but the town was devoted to the flames.
II. Nor does the law of nations, in itself, considered apart from other duties, which will be mentioned hereafter, make any exemption in favour of things deemed sacred. For when places are taken by an enemy, all things without exception, whether sacred or not, must fall a sacrifice. For which it is assigned as a reason, that things which are called sacred, are not actually excepted from all human uses, but are a kind of public property, called sacred indeed from the general purposes, to which they are more immediately devoted. And as a proof of this, it is usual, when one nation surrenders to another state or sovereign, to surrender, along with other rights, every thing of a sacred kind, as appears by the form cited from Livy in a former part of this treatise.
And therefore Ulpian says, that the public have a property in sacred things. Conformably to which Tacitus says, that “in the Italian towns all the temples, the images of the Gods, and every thing connected with religion belonged of right to the Roman people.” For this reason a nation, as the Lawyers, Paulus and Venuleius openly maintain, may, under a change of circumstances, convert to secular uses things, that have before been consecrated: and an overruling necessity may justify the hand, which has formely consecrated the object in employing it as one of the resources and instruments of war. A thing which Pericles once did under a pledge of making the restitution: Mago did the same in Spain, and the Romans in the Mithridatic war. We read of the same actions done by Sylla, Pompey, Caesar, and others. Plutarch in his life of Tiberius Gracchus says that nothing is so sacred and inviolable, as divine offerings: yet to one can hinder these from being removed or applied to other purposes at the pleasure of the state. Thus Livy mentions the ornaments of the temples, which Marcellus brought from Syracuse to Rome, as acquisitions made by the right of war.
III. What has been said of sacred things and edifices applies also to another kind of solemn fabrics, and those are sepulchral structures, which may be considered not merely as repositories of the dead, but as monuments belonging to the living, whether families or states. For this reason Pomponius has said, that these, like all other sacred places, when taken by an enemy may lose their inviolability, and Paulus is of the same opinion, observing that we are not restrained by any religious scruple from using the sepulchers of an enemy: for the stones, taken from thence, may be applied to any other purpose. But this right does not authorize wanton insult, offered to the ashes of the dead. For that would be a violation of the solemn rights of burial, which, as it was shewn in a preceding part of this work, were introduced and established by the law of nations.
IV. Here it may be briefly observed, that, according to the law of nations any thing, belonging to an enemy, may be taken not only by open force, but by stratagem, provided it be unaccompanied with treachery.
On the Acquisition of Territory and Property by Right of Conquest.
Law of nature with respect to the acquisition of things captured in war—Law of nations on the same subject—In what cases the law of nations confirms the capture of things moveable—Lands acquired by conquest—Lawful prize cannot be made of things not belonging to an enemy—Goods found on board an enemy’s ships —Law of nations authorizes the making prize of what an enemy has taken from others in war—Sovereigns may acquire possession and dominion through those employed by them—Acts of hostility divided into public and private—Territory may be acquired by a sovereign or people—Private and public captures explained—Discretionary power of generals in this respect—Prizes belong either to the treasury, or to those, who take them—Places sometimes given up to be plundered by the soldiery—Different methods of dividing spoils—Peculation, a portion of the spoils sometimes given to allies, who have supported the war—Sometimes given up to subjects—This illustrated by examples—Utility of the above practices—Whether things taken without the territory of either of the belligerent powers can be acquired by the rights of war—In what manner this right peculiarly applies to solemn wars.
I. Besides the impunity allowed to men for certain actions, which have been mentioned before, there are other consequences and effects, peculiar to the law of nations, attending solemn and formal war. The law of nature indeed authorizes our making such acquisitions in a just war, as may be deemed an equivalent for a debt, which cannot otherwise be obtained, or as may inflict a loss upon the aggressor, provided it be within the bounds of reasonable punishment. According to this right, as we find in the fourteenth chapter of Genesis, Abraham devoted to God a tenth part of the spoils, which he had taken from the five kings: and the inspired writer in the seventh chapter of his Epistle to the Hebrews gives the same interpretation of this passage. In the same manner the Greeks too, the Carthaginians, and the Romans, devoted a tenth portion of the spoils of war to their deities. Jacob, in making a particular bequest to Joseph above his brethren, says, “I have given to thee one portion above thy brethren, which I took out of the hand of the Amorite with my sword, and with my bow.” In this place, the expression, I took, is used according to the prophetic style, where an event, that will for certain take place, is spoken of in the past time, and an action is here attributed to Jacob, which some of his descendants were to perform, supposing the progenitor and his children to be the same person.
Nor is it upon conjecture alone that such a right is founded, but the divine law giver himself pronounces sentence against a city that has rejected the offers of peace, and afterwards been taken by storm, that he gives all her spoils to the conqueror.
II. But according to the law of nations, not only the person, who makes war upon just grounds; but any one whatever, engaged in regular and formal war, becomes absolute proprietor of every thing which he takes from the enemy: so that all nations respect his title, and the title of all, who derive through him their claim to such possessions. Which, as to all foreign relations, constitutes the true idea of dominion. For, as Cyrus, in Xenophon observes, when the city of an enemy is taken, every thing that is taken therein becomes a lawful prize to the conquerors; and Plato, in his treatise on laws asserts the same. Cicero in his speech against Rullus says that Mitylene belonged to the Roman people by the laws of war, and the right of conquest; and, in the first book of his offices, he observes, that some things become the private property of those, who take possession of them, when unoccupied, or of those, who make a conquest of them in war.—Theophilus, in his Greek institutes, calls the one the natural mode of acquisition, and Aristotle denominates the other the natural way of acquisition by the sword, without regarding any other reason, but the bare fact, from which the right arises. Thus Nerva, the son, as Paulus the lawyer relates, said that property arose from natural possession, some traces of which still remain respecting wild animals taken either upon the sea, or upon the land, or birds flying in the air. It is seen also in things taken in war, all which immediately become the property of the first captors. Now things are considered as taken from an enemy, when taken from his subjects.
Thus Dercyllides argues, in Xenophon, that as Pharnabazus was an enemy to the Lacedaemonians, every thing belonging to Mania, who was his subject, might be seized by the laws of war.
III. But in this question upon the rights of war nationshave decided, that a person is understood to have made a capture, when he detains a thing in such a manner, that the owner has abandoned all probable hopes of recovering it, or, as Pomponius, speaking on the same subject, says, when a thing has escaped beyond pursuit. This takes place with respect to moveable things in such a manner, that they are said to be taken, when they are carried within the territories of the enemy, or places belonging to him. For a thing is lost in the same manner as it is recovered by postliminium. It is said to be recovered whenever it returns within the territories of its owner’s sovereign, that is, into places, of which he is master. Paulus indeed has expressly said, that a power or state has lost a subject, when he has gone, or been carried out of the territories of that power: and Pomponius defines a prisoner of war to be an enemy, whom the troops of some other belligerent power have taken and carried into one of their own places; for before he is carried into those places, he continues still a subject of the enemy.
The law of nations, in these respects, treated persons and things in the same manner. From whence it is easy to understand, what is meant, when in another place it is said that things taken from an enemy immediately become the lawful prize of the captors, but only upon the condition of those things continuing in their possession for a reasonable and certain time. Consequently it is plain, that ships and other things taken at sea cannot be considered as really the property of the captors, till they have been carried into some of their ports, or to some place where their whole fleet is stationed. For in that case all hope of recovery seems to have vanished. By a late regulation among the European powers, it has been made an established maxim of the law of nations, that captures shall be deemed good and lawful, which have continued in the enemy’s possession for the space of twenty four hours.
IV. Lands are not understood to become a lawful possession and absolute conquest from the moment they are invaded. For although it is true, that an army takes immediate and violent possession of the country which it has invaded, yet that can only be considered as a temporary possession, unaccompanied with any of the rights and consequences alluded to in this work, till it has been ratified and secured by some durable means, by cession, or treaty. For this reason, the land without the gates of Rome, where Hannibal encamped, was so far from being judged entirely lost, that it was sold for the same price that it would have been sold for before that period.
Now land will be considered as completely conquered, when it is inclosed or secured by permanent fortifications, so that no other state or sovereign can have free access to it, without first making themselves masters of those fortifications. On this account Flaccus, the Sicilian, assigns no improbable conjecture for the origin of the word territory, because the enemy is deterred from entering it. At least there is as much probability in this conjecture, as in that of Varro, who derives it from the word terendo, treading the soil. Frontinus deduces it from terra, the earth, and Pomponius from the terror of judicial authority exercised in each country. Xenophon however in his book on tributes, seems to accord with the first of these opinions: for he says, that in time of war the possession of a country is kept by walls, strong holds, and barriers.
V. It is a clear point too, that for any thing to become a prize or conquest by the right of war, it must belong to an enemy. For things, within an enemy’s territory, for instance, in any of his towns or garrisons, cannot be acquired as property by the laws of war, if the owners of those things are neither subjects nor confederates of the enemy. It is observed in one of the speeches of Aeschines, that Philip, though at war with the Amphipolitans, could not lawfully take possession of Amphipolis, as a conquest, it being a city, which belonged to the Athenians. For as the enemy is likely to derive no assistance in the war, from things which neither belong to himself, nor to a confederate, no just reason can be assigned for taking them, and the right of making things change their owners by force is of too odious a nature to admit of any extension.
VI. The observation usually made, that all things on board an enemy’s ships are to be deemed an enemy’s goods, ought not to be received as a standing and acknowledged rule of the law of nations, but only as a maxim, indicating the strong presumption that both goods and vessel belong to the same owner, unless clear proof to the contrary can be brought. The States General of Holland made such a decision in the year 1338, at a time when the war with the Hanse-towns raged with the greatest violence, and the decision consequently passed into a law.
VII. According to the law of nations it is undoubtedly true, that things taken from an enemy which had been captured by him cannot be claimed by those, to whom they belonged before they were in the enemy’s possession, and who had lost them in war. Because the law of nations assigned them to the enemy by the first capture, and then to the person, who took them from him by the second.
Upon this principle among others, Jephthah defends himself against the Ammonites, because by the laws of war they had lost the land, which they claimed, in the same manner, as another part had been transferred from the Moabites to the Amorites, and from the Amorites to the Hebrews. Thus David too claims and divides as his own, what he himself had taken from the Amalekites, and the Amalekites, before him, from the Philistines.
Titus Largius, as we are informed by Dionysius of Halicarnassus, when the Volscians laid claim to some possessions, which they had formerly held, delivered it as his opinion in the Roman Senate, that “the Romans were the fair and just owners of what they had gained by the right of conquest, nor ought they to be so weak as to abandon the fruits of their valour. For not only the people of that day, but their posterity also had a right to a share of those possessions: so that to abandon them would be treating themselves like enemies.”
VIII. and IX. One great point, which the law of nations designed to establish, was that the effects or possessions of one enemy should be considered by another, as things having no owner.
Things, belonging to no one, became the property of those, who find or take them, both of those, who, like sovereign powers, employ others in such service, and of those, who take them with their own hands.
Thus not only slaves, or the immediate members of a man’s household, but all, who engage themselves, any way, in the service of others, may be said to acquire for their employers all the property, which they take or gain, even in those things, which apparently lie in common to all men, such as pearls, fish, or fowl.
Modestinus has justly said, “that whatever is naturally gained, like a possession, we may acquire through the means of any one we chuse to employ,” and, upon the same principle, Paulus observes, that “in every acquisition, the exertion of mind and body must concur; the former purely our own, and the latter, either our own, or that of another. In the same manner possession may be taken for us by an attorney, guardian, or trustee, provided they do it on our account and in our name.” The reason of which is, because one man may naturally be the voluntary instrument of another, with the consent of that other. So that the distinction made between persons in a servile and free condition, as to the acquisition of property, is a distinction only of the civil law, and applicable to its rules of transferring, acquiring, and confirming, property. And yet the emperor Severus afterwards applied theserules to the natural acquisition of things, not only from motives of utility, but, as he avowed himself, from motives of equity and justice. So that, apart from all authority of the civil law, it is an established maxim that what any one can do for himself, he can do through means of another, and doing such acts by another is the same as doing them himself.
X. A distinction must be made between actions in war, that are really of a public nature, and the acts of individuals, occasioned by public war: by the latter, individuals acquire an absolute and direct property, in the things, which they take, and by the former, the state makes those acquisitions. Upon this principle of the law of nations Scipio treated with Masinissa, stating that as it was under the auspices of the Roman people, that Syphax was conquered and taken prisoner, himself, his wife, his kingdom, his territory, his towns, and subjects inhabiting those towns, in short, every thing belonging to him became a lawful prize to the Roman people. In the same manner,Antiochus the Great maintained that Coelo-Syria belonged to Seleucus, and not to Ptolemy, because Seleucus had been the principal in the war, to which Ptolemy had contributed his assistance. In the fifth book of Polybius, there is an account of the matter.
XI. Things immoveable are generally taken by some public act, such as marching an army into the country, or placing garrisons there. So that, as Pomponius has said, “lands taken from the enemy become the property of the state, and form no part of the booty belonging to the individual captors.” Thus among the Hebrews and Lacedaemonians, lands that were made a conquest, were divided by lot. The Romans too either retained conquered lands to let them out for rent, sometimes leaving a small portion to the ancient possessor, or divided them among colonists, whom they sent out, or made them tributary; innumerable instances of which we meet with in their histories, their laws, and treaties on the admeasurements of lands.
XII. But things moveable, whether inanimate, or living, are taken either as connected or unconnected with the public service. When unconnected with the public service, they become the property of the individual captors.*
Reference may here be made to the remark of Celsus, that “enemy’s goods found among us do not belong to the state, but to the prior occupant.” By which are meant things found among us at the breaking out of a war. For the same was observed of persons, when, under the same circumstances, they were considered as goods taken.
On this subject there is a remarkable passage in Tryphoninus. “Those persons, says he, who have gone into a foreign country in time of peace, upon the sudden breaking out of war, are made slaves by those, among whom it is their misfortune to be found, being considered as enemies.”
XIII. What has been said upon the law of nations, allowing individuals to acquire property by taking it from an enemy, must be understood as meaning the law of nations, prior to the regulations of civil laws upon that point. For the capture of an enemy’s goods which at first appear to resemble things in common, which any one may seize, is now, like that of wild birds or beasts, subject to limitation by the laws of every state, being in some cases assigned to the sovereign, and in others, belonging to the captors. It may in some countries, indeed, be introduced as a rule of law for the whole of an enemy’s goods found there to be confiscated.
XIV. The case is very different respecting what any one takes in actual engagements. For there every individual bears the character of his country, acting in her stead, and supporting her rights. Through the exertions of those individuals, the state acquires both property and dominion, with a power, according to the principles of civilized countries, of conferring them on whom she pleases.
This is not a practice of modern date, but one prevailing among the most free and independent nations of remote antiquity. The poets, and historians of those days, describe the hero, after the heat, the burden, and dangers of the day, carrying his spoils to the common stock, to be divided by the General among the army, after retaining his proper share to himself.
XXIII. * It is observed by legal authorities to be a custom, which has silently gained ground, for either allies or subjects, who engage in war, without pay, and at their own risque and expence, to be rewarded with the captures that they make.
The reason, why allies have such a privilege, is evident. Because one ally is naturally bound to another to repair the losses, which he has sustained by entering into a mutual agreement to support a common cause. Besides it seldom happens, that services are given without some consideration in return.
Quintilian, applying the same reasoning to another case, alleges that it is but just for orators and advocates, who devote their whole time and talents to the business of others, to be requited for their services: as thereby they preclude themselves from acquiring gain in any other way.
It is most likely therefore that some advantage gained from the enemy is always expected, as a compensation for the loss and risque incurred, unless there is evidence to the contrary from some antecedent treaty, in which there is an express stipulation for gratuitous assistance and services.
XXIV. Such claim to a share of the spoils is not equally evident, where subjects only are concerned. For the state has a right to their services. Still where all are not engaged in arms, but only some, those, who give up their time to the calling of soldiers, and expose their lives to its hazard, have a right to be rewarded and supported by the body politic:—and as a compensation for this loss of time, and this personal danger, it is but reasonable they should have a share of the spoils.
With respect to allies there is an example in the Roman treaty, in which the Latins are admitted to an equal share of the spoil, in those wars, which were carried on under the auspices of the Roman people.
Thus in the war, which the Aetolians carried on with the assistance of the Romans, the lands and cities were ceded to the Aetolians, and the prisoners and moveable effects were given to the Romans. After the defeat of king Ptolemy, Demetrius gave part of the spoils to the Athenians. Ambrose, in speaking of the expedition of Abraham, shews the equity of this practice. He asserts that it was but just for those, who had assisted him as partners in the danger, to share in the prizes, which were their due reward.
As to what were the privileges of subjects in these respects, we have a proof in the conduct of the Hebrews, among whom it was usual for half of the spoils to be given to those, who were engaged in battle. In the same manner the soldiers of Alexander were allowed to appropriate to themselves whatever they took from individuals, except that it was usual for a considerable portion to be set apart for the king. So that it was made a subject of accusation against those at Arbela, who were said to have entered into a conspiracy for securing to themselves every thing that was taken, without contributing a due proportion of it to the treasury.
But individuals were not allowed in the same manner to appropriate to themselves the public property of an enemy, that is, such as belonged to the state. Thus when the Macedonians made themselves masters of the camp of Darius at the river Piramus, and every thing was given up to plunder, they spared the royal pavilion, in conformity to an ancient custom, “according to which, as Curtius observes, it was always reserved as the properest place, in which the victorious prince could be received.”
There was a custom somewhat like this among the Hebrews who always placed the crown of the vanquished king upon the head of the conqueror, and assigned to him every thing that was taken, belonging to the royal household. We read of the same conduct in Charles the great, who, upon conquering the Hungarians, gave up the private property as plunder to the soldiers, reserving for the royal use all the public treasures.
Some things indeed are too inconsiderable to be made public property. It is a generally received maxim for such things to belong to the individual captors.*
This was the practice in the ancient times of the Roman republic. A privilege not unlike this is sometimes given to seamen, who serve for pay. It is what the French call spoils, or pillage, including all wearing apparel, and all gold and silver under the value of ten crowns.
On this point different customs prevail in different countries. In Spain sometimes a fifth, and sometimes a third was allowed to the soldiers, and at others half was reserved for the crown. On some occasions, a seventh or tenth part was allowed to the general, and the rest belonged to the captors, except ships of war, which belong entirely to the crown.—Sometimes a division was made in proportion to the hazard and expence: which was the case among the Italians, where the third part of the prize was assigned to the owner of the victorious vessel, another third to those who had merchandise on board, and the remaining third to the combatants.
In some cases it happens that private adventurers are not allowed the whole of their captures, a certain portion of which must go to the state or to those, who have received a grant of such prizes from the state. Thus in Spain, if in time of war ships are fitted out by private persons, one part of the captures, which they make belongs to the crown, and another to the Lord High Admiral. So likewise in France, and Holland, the tenth part of a prize belonged to the Admiral, a fifth also being previously deducted for the use of the state. But by land it is customary upon the taking of towns, and in battles, for every one to keep the prizes which he takes. But in excursions, every thing taken becomes the common stock of all engaged, being afterwards divided amongst them according to their respective ranks.
XXV. As a consequence deducible from the above positions, it may be observed, that if a people not engaged in war be made mediators in a doubtful matter respecting things captured in war, the cause must be adjudged in favour of him, who has on his side the laws and customs of the country, which he has espoused. But if no such right can be proved, the prize must be adjudged to the state, rather than to the individual captor.—The maxim indeed of Quintilian can never be admitted, that the laws of war can never be enforced in matters, that may be decided by judicial authority; and that, on the other hand, whatever has been gained by arms can be maintained by force of arms alone.
XXVI. It was observed in a former part of this chapter, that things, not belonging to an enemy, cannot be taken, although found with him. For this is neither consonant to natural justice, nor introduced by the law of nations. But if in those things the enemy had any right connected with possession, such as the right of pledge, retention or service, that would not obstruct the power of the captors.
It is a disputed point, both as to persons and things, whether they can be lawfully taken in the territory of a power at war with neither of the belligerents. In regard only to the law of nations, as far as it allows us to kill an enemy wherever he is found, the place has nothing to do with the question. But considering the rights of the sovereign, to whom that territory belongs, he undoubtedly has a right to forbid the seizure of persons, or the capture of things within his own dominions: and may demand satisfaction for the violation of that right. In the same manner, though beasts, that are wild by nature, become the property of those, who take them, still an owner may forbid any one to commit a trespass upon his lands in order to take them.
On the Right Over Prisoners of War.
By the law of nations, slavery the result of being taken in solemn war—The same condition extends to the descendants of those taken—The power over them—Even incorporeal things may be gained by the rights of war—Reason of this—This right not prevalent to the same extent among Christian powers of the present day—The substitute used in place of this right.
I. By the law of nature, in its primaeval state; apart from human institutions and customs, no men can be slaves; and it is in this sense that legal writers maintain the opinion that slavery is repugnant to nature. Yet in a former part of this treatise, it was shewn that there is nothing repugnant to natural justice, in deriving the origin of servitude from human actions, whether founded upon compact or crime.
But the law of nations now under consideration is of wider extent both in its authority over persons, and its effects. For, as to persons, not only those, who surrender their rights, or engage themselves to servitude, are considered in the light of slaves, but all, who are taken prisoners in public and solemn war, come under the same description from the time that they are carried into the places, of which the enemy is master.
Nor is the commission of crime requisite to reduce them to this condition, but the fate of all is alike, who are unfortunately taken within the territories of an enemy, upon the breaking out of war.
II. and III. In ancient times, while slavery was permitted to exist, the offspring, born during captivity or servitude, continued in the same condition as the parents. —The consequences of such rules were of wide extent;— there was no cruelty, which masters might not inflict upon their slaves;—there was no service, the performance of which they might not compel;—the power even of life and death was in their hands. However the Roman laws at length set bounds to such wanton power, at least to the exercise of it within the Roman territories.
Every thing too, found upon the prisoner’s person, became a lawful prize to the captor. For as Justinian observes, one who was entirely in the power of another could have no property of his own.
IV. and V. Incorporeal rights, gained by the enemy, along with the person so captured, cannot be considered in the light of primary and original acquisitions. And there are some rights so purely personal in their nature, that they cannot be lost even by captivity, nor the duties attached thereto ever be relinquished. Of such a nature was the paternal right among the Romans. For rights of this kind cannot exist but immediately with the person to whom they originally belonged.
All these rights to prizes, which were introduced by the law of nations, were intended as an inducement to captors to refrain from the cruel rigour of putting prisoners to death; as they might hope to derive some advantage from sparing and saving them. From hence Pomponius deduces the origin of the word, servus, or slave, being one, who might have been put to death, but from motives of interest or humanity had been saved.
VI. (being the IX. of the original.) It has long been a maxim, universally received among the powers of Christendom, that prisoners of war cannot be made slaves, so as to be sold, or compelled to the hardships and labour attached to slavery. And they have with good reason embraced the latter principle. As it would be inconsistent with every precept of the law of charity, for men to refuse abondoning a cruel right, unless they might be allowed to substitute another, of great, though somewhat inferior rigour, in its place.
And this, as Gregoras informs us, became a traditionary principle among all who professed one common religion; nor was it confined to those, who lived under the authority of the Roman empire, but prevailed among the Thessalians, the Illyrians, the Triballians, and Bulgarians.— Though such an abolition of slavery, and mitigation of captivity may be considered as of trivial import, yet they were effects produced by the introduction of the Christian religion, especially upon recollection that Socrates tried, but without effect, to prevail upon the Greeks to forbear making slaves of each other.
In this respect the Mahometans act towards each other in the same manner as Christians do. Though it is still the practice among Christian powers to detain prisoners of war, till their ransom be paid, the amount of which depends upon the will of the Conqueror, unless it has been settled by express treaty. The right of detaining such prisoners has sometimes been allowed to the individuals, who took them, except where the prisoners were personages of extraordinary rank, who were always considered as prisoners of war to the state.
On Empire Over the Conquered.
Civil and sovereign jurisdiction acquired by conquest—Effects of such acquisition—Absolute power or mixed power gained by conquest—Incorporeal rights acquired in the same manner—Thessalian bond considered.
I. If individuals can reduce each other to subjection, it is not surprising that states can do the same, and by this means acquire a civil, absolute, or mixed, dominion. So that, in the language of Tertullian, victory has often been the foundation of dominion, and it often happens, as Quintilian remarks, that the boundaries of states and kingdoms, of nations and cities, can only be settled by the laws of war.
Quintus Curtius relates of Alexander, that he said, it was for conquerors to dictate laws, which the conquered were bound to receive. This has always been a general opinion and rule, thus Ariovistus, in Caesar, laid it down as an indubitable right of war, for the conqueror to impose whatever terms he pleased upon the conquered, nor did he suppose the Roman people would allow any one to interpose with them in the discretionary use of this right.
By conquest, a prince succeeds to all the rights of the conquered sovereign or state; and if it be a common-wealth, he acquires all the rights and privileges, which the people possessed. He gains the same right, which the state had before, to alienate the possessions, or to transmit them if he chused to his descendants, by which means they will become a patrimonial territory.
II. The right of conquest may go even beyond this. A state may hereby lose its political existence, so far as to form an appendage to another power, which was the case with the Roman provinces: or if a king engaged in war against a state, at his own expence, has reduced it to complete subjection, his authority over it becomes an absolute, rather than a limited sovereignty. It can no longer be called an independent state, but, by the right of conquest, forms an integral part of the prince’s immediate dominions. Xenophon in drawing the character of Agesilaus, commends him for requiring no other services and obedience of the cities he had conquered, than what is usually paid by subjects to their lawful sovereigns.
III. From hence it will be easy to understand what is meant by a mixed government, composed partly of civil, and partly of absolute power;—it is a government, where subjection is united with some degree of personal liberty.
We sometimes read of nations, that have been so far subdued, as to be deprived of the use of all warlike arms, being allowed to retain no instruments of iron, but the implements of husbandry; and of others, that have been compelled to change their national customs and language.
IV. States as well as individuals may lose their property by the laws of war: and even a voluntary surrender is in reality nothing more than giving up what might have been taken by force. For as Livy says, where all things submit to the power of arms, the conqueror may impose whatever terms, and exact whatever fines he pleases. Thus the Roman people by the victories of Pompey acquired all the territories, which Mithridates had gained by conquest.
The incorporeal rights too, belonging to one state, may pass to another by the rights of conquest. Upon the taking of Alba, the Romans retained all the rights belonging to that city. From hence it follows, that the Thessalians were released from the obligation of paying a sum of money, which they owed to the Thebans; Alexander, upon the taking of Thebes, having, as a conqueror, forgiven the debt. Nor is the argument used by Quintlian in favour of the Thebans, at all convincing: he maintains that nothing but what is of a tangible nature can pass by right of conquest, a class of things to which incorporeal rights can never be reduced: and that there is a material difference between inheritance and victory, the former of which may convey incorporeal rights, but the latter can give nothing except things of a solid and visible substance.
But on the other hand it may be justly said, that whoever is master of the persons, is master also of all the rights and things, which are vested in those persons, who are in that case considered as having nothing of their own. Indeed if any one should leave to a conquered people their rights, as a state, still there are some things belonging to that state, which he might appropriate to himself. For it is in his own power to determine, to what extent his generosity, or the exertion of his right shall go. Caesar imitated the conduct of Alexander, in forgiving the Dyrrachians a debt, which they owed to some one of the opposite party. But the kind of war, in which Caesar was engaged does not fall within the rules of the law of nations.
Of the Right of Postliminium.
Origin of the term, postliminium—Where it takes effect—Certain things recoverable thereby—In what cases the right of postliminium prevails in peace, as well as war—What rights are recoverable, and what rights not recoverable—When a people is not entitled to the right of postliminium—Extent of civil law in these cases—Deserters—Ransomed prisoners—Subjects—Lands recovered by right of postliminium—Distinction formerly observed with respect to movable things—Modern practice.
I. The professors of law in former ages have given no more satisfactory account of the rights of postliminium, than they have done of those, respecting things taken from the enemy. The subject has been more accurately handled by the ancient Romans, but often still with a considerable degree of confusion, so that a reader cannot easily distinguish, what part they assign to the province of the law of nations, and what part to the civil law of Rome.
Amidst a great variety of opinions, upon the meaning of the word, postliminium, that of Scaevola seems the most natural, who derives it from the word post, signifying a return after captivity, and limen the boundary or entrance of the house, or from limes, a public boundary. Thus the ancients called exile or banishment, eliminium, that is, sending any one out of the boundaries of the country.
II. Postliminium therefore, according to its original signification, means the right, accruing to any one in consequence of his return home from captivity. Pomponius defines the right of postliminium to take place the moment any one enters a town or garrison, of which his sovereign is master; but according to Paulus he must have entered within the territories of his own country before he can be entitled to that right.
Upon this principle nations have, in general, gone so far, as to allow the right of postliminium to take place, where any person, or indeed any thing, coming within the privileges of postliminium, have arrived within the territory of a friendly or allied power.
By the term friends, or allies, used in this place, are not simply meant, those who are at peace with another power, but those who are engaged in the same war, and in a common cause with that power. So that all, who have come into the territories of such powers, are protected under the pledge of public faith. For it makes no difference with respect to persons or things, whether they are in the territories of those powers, or in their own.
In the territory of a friendly power, who is not engaged in the same cause with either of two belligerent parties, prisoners of war do not change their condition, unless it has been agreed to the contrary by express treaty; as in the second treaty between the Romans and Carthaginians, it was stipulated that if any prisoners, taken by the Carthaginians from powers friendly to the Romans, should come into ports subject to the Roman people, their liberty might be claimed: and that powers friendly to the Carthaginians should enjoy the same privilege. For this reason, the Roman prisoners taken in the second Punic war, when sent into Greece, had not the right of postliminium there, the Greeks being entirely neutral, consequently they could not be released, till they were ransomed.
III. According to the language of the ancient Romans, even free men might be restored by the right of postliminium.
Gallus Ælius, in the first book of his explanation of law-terms, defines a person restored to his original situation by the right of postliminium, to be one, who had gone from his own country, in a free condition, to another, and returned to his own in consequence of such right. By the right of postliminium a slave also who has fallen into the hands of an enemy, upon his release from thence, returns to the service of his former master.
As to the law of postliminium, horses, mules, and ships are considered in the same light as slaves. And whatever advantage this law gives any one in recovering persons or things from an enemy, the enemy in his turn has equal advantage from the same law.
But modern lawyers have made a distinction between two kinds of postliminium, by one of which, persons returned to their former condition, and by the other, things are recovered.
IV. The right of postliminium may extend to those, who are seized and detained in an enemy’s country upon the breaking out of war. For though during the continuance of that war, there may be reason for detaining them, in order to weaken the enemy’s strength, yet, upon the conclusion of a peace, no such motive and pretence can be devised for their release being refused or delayed. It is a settled point therefore that upon peace being made, prisoners of the above description always obtain their liberty, their claim to it being universally acknowledged.
With respect to other kinds of prisoners, every one used what he wished to be thought his right, except where fixed rules were prescribed by treaty. And for the same reason, neither slaves, nor things taken in war are restored upon a peace, except express stipulations be made to that purpose. A conqueror too, in general, wishes to have it believed that he had a right to make such acquisition; and indeed the departure from such a rule might give rise to wars without end.
V. and VI. A prisoner of war, upon his release, and return to his own country, is entitled to all his privileges there, and indeed to everything either corporeal, or in-corporeal, which he might have before possessed in a neutral state, at the time of his captivity. For if such a state, in order to preserve her neutrality, considered his captivity as a matter of right on the part of the enemy, so also, in order to shew her impartiality, she cannot lawfully abridge his right to any thing he may reclaim upon his release. The control therefore, which the person, to whom the prisoner belonged by the right of war, had over his effects, was not absolutely unconditional: for he might lose it, even against his will, whenever the prisoner came again under the protection, or within the territories, of his own sovereign. Along with the prisoner therefore he would lose everything, which was considered as an appendage to his person.
In cases where effects taken in war have been alienated, a question arises, whether the law of nations confirms the title, and secures the possession of the person, who has derived or purchased them from him, who was master of them by the rights of war, by having the prisoner in his custody at the time of alienation, or whether such things are recoverable; supposing the things to be in a neutral territory.
A distinction seems proper to be made between things recoverable by postliminium, and things excepted from that right: so that every alienation of the former must be qualified and conditional, but that of the latter may be absolute. By things alienated may be understood even those, of which a gift has been made, or to which the owner has relinquished every claim.
VII. Upon any one’s returning to his former condition by the law of postliminium, all his rights are restored as fully, as if he had never been in the hands and power of the enemy.
VIII. The case of those however, who have been conquered by the arms of an enemy, and have surrendered themselves, forms an exception to this rule; because engagements of that kind must be valid, and honourably adhered to according to the law of postliminium. So that during the time of a truce, the right of postliminium cannot be claimed.
But where a surrender has been made without any express or positive convention the right of postliminium exists in all its force.
IX. What has been said of individuals applies to nations: so that a free people, who have been subjugated, upon being delivered from the yoke of the enemy by the power of their allies, will recover their former condition.
But if the whole population that constituted a state has been dispersed, the people can no longer be considered as the same: nor does the law of nations in such a case enforce the right of postliminium for the restoration of all effects formerly belonging to that people. For as the identity of a ship, or any other material object, can only be ascertained by the permanent union of its original parts: so a nation can no longer be regarded as the same, when every peculiar characteristic belonging to it is effaced.
The state of Saguntum therefore was no longer judged to be the same, when it was restored to its ancient possessors, at the expiration of eight years: nor could Thebes any longer be deemed the original city, as its inhabitants had been sold by Alexander for slaves. From hence it is evident, that the Thebans could not, by the right of postliminium, recover the sum of money, which the Thessalians had owed them: and that for two reasons: because, in the first place, they were a new people; and, secondly, because Alexander at the time that he was absolute master of the city had a right, if he thought proper, to relinquish the claim to that debt, which he had actually done. Besides, a debt is not in the number of things recoverable by the right of postliminium.
The rules, respecting a state, are not much unlike those laid down by the ancient Roman law, which made marriage a dissoluble tie, so that it could not be restored by the right of postiliminium: but a new consent, and a new contract were necessary.
X. By the Roman civil law deserters were excluded from the right of postliminium.
XI. and XII. It is a point of much importance to the subject, and it was before declared in the affirmative, that nations, which have been under a foreign yoke, recover their former condition, even though their deliverance has not been effected by their former sovereign, but by some ally. It is a settled rule, where there is no express treaty to the contrary. At the same time it is but reasonable that such ally be indemnified for the expences incurred in accomplishing that deliverance.
XIII. Among things within the right of postliminium, lands in particular attract our attention. For, as Pomponius observes, upon the expulsion of an enemy lands naturally revert to their former masters. And in this sense expulsion is understood to take place from the time that his free and open access to a territory is entirely cut off.
Thus the Lacedaemonians, after taking Aegina from the Athenians, restored it to its ancient owners. Justinian and other emperors restored to the heirs of the ancient possessors of the lands, which had been recovered form the Goths and Vandals, still reserving against those owners all prescriptive rights, which the Roman laws had introduced.
The privileges belonging to lands attach to every right also connected with the soil. For religious or consecrated places, that had been taken by an enemy, when recovered returned, as Pomponius has said, to their former condition.
Upon the same principle it was provided by a law in Spain, that provinces, and all other hereditary jurisdictions, particularly supreme jurisdictions, should return to the original possessors by the right of postliminium; and those of an inferior kind, if reclaimed within the space of four years. Except that citadels lost by war always belonged to the crown, in whatever manner they were recovered.
XIV. On the contrary a general opinion prevails, that moveable property, which constitutes part of a lawful prize, is not recoverable by the right of postliminium. So that things acquired by purchase, wherever they are found, continue the property of the purchaser. Nor has the original owner a right to claim them, when found in a neutral state, or even carried into his own territory.
Things useful in war, as we find, were formerly an exception to this rule: an exception, which seems to have been favoured by the law of nations in order to induce men the more readily to provide them, in the hopes of recovering them, if lost. And this indulgence was the more easily granted, as most nations, at that period, in all their customs, seem to have had an eye to a state of warfare.—Among the things, coming under this description, ships of war, and merchant-ships are reckoned, but neither gallies, nor pleasure-boats: mules also are enumerated; but only such as are used to carry baggage: horses and mares too; but only such as are broken in to obey the bridle. And these are things, the bequest of which the Roman law confirmed, and which might come into the division of an inheritance.
Arms and cloathing indeed are useful in war, but still they were not recoverable by the right of postliminium; because the laws were by no means inclined to favour those, who lost either in war: and such a loss was deemed a disgrace, as we find from many parts of history. And in this respect, a distinction was made between a soldier’s arms and his horse: because the latter might easily break loose, and fall into an enemy’s hands without any fault of his rider. This distinction in moveable things seems to have prevailed in the western parts of Europe, under the Goths, even as far down as to the times of Boetius. For in explaining the Topics of Cicero, he speaks of this right, as a general custom of his day.
XV. But in later times, if not before, this distinction seems to have been abolished. For all intelligent writers speak of moveable effects as not recoverable by the right of postliminium, and it has evidently been decided so, in many places, with respect to ships.
XVI. The right of postliminium is quite unnecessary, before the things taken have been carried into some place of which the enemy is master, although they may be in his possession: for they have not yet changed their owner, by the law of nations. And, according to the opinions of Ulpian and Javolenus, the law of postliminium is no less superfluous, where goods have been taken by robbers and pirates, because the law of nations does not allow their possession of the goods to convey any change, or right of property to them.
Upon this ground, the Athenians wished to consider Philip, as restoring, and not giving them Halonesus, of which they had been robbed by pirates, from whom he had taken it again. For things taken by pirates may be reclaimed, wherever they are found; except that natural justice requires that the person, who has gained them out of their hands, at his own expence, should be indemnified, in proportion to what the owner himself would willingly have spent for their recovery.
XVII. But a different maxim may be established by the civil law. Thus by the law of Spain, ships taken from pirates become the lawful prize of the captors: which may seem a hardship upon the original owners; but in some cases individual interest must be sacrificed to the public good: especially where the danger and difficulty of retaking the ships is so great.* But such a law will not prevent foreigners from asserting their claims.
XVIII. It was rather a surprising maxim in the Roman law, which established the right of postliminium, not only between hostile powers, but between all foreign states, and, in some cases, between those, who were members of the Roman empire. But this was only a vestige of the rude and pastoral ages, before society was perfectly formed. So that even between nations, who were not engaged in public war with each other, a kind of licence resembling that of war prevailed.
In order to prevent such a licence from proceeding to all the calamities and slaughter of war, the laws of captivity were introduced: and, as a consequence of this, postliminium took place, which might be considered as a great step towards the formation of equal treaties, from the rules of which pirates and robbers were excluded, and which indeed they themselves despised.
XIX. In our times, the right of making prisoners, except in war, has been abolished not only among Christian states, but even among the greater part of Mahometans, those bands of society, which nature designed to establish amongst men, being in some measure restored.
But the ancient law of nations seems still in force against any rude or barbarous people, who, without any declaration or cause of war, consider all mankind as enemies. A decision has lately been made in the principal chamber of the parliament of Paris, declaring all effects belonging to the subjects of France, and taken by the Algerines, a people always engaged in predatory and maritime warfare with all other countries, if retaken, to belong to the captors.—At the same time it was decided, that, in the present day, ships are not reckoned among things recoverable by the right of postliminium.
The Right of Killing Enemies, in Just War, to be Tempered with Moderation and Humanity.
In what cases strict justice allows the destruction of an enemy—Distinction between misfortune and guilt—Between principals and accessories in war—Distinction between unwarrantable and excusable grounds of promoting war—Sometimes right and laudable to forbear punishing an inveterate enemy—Every possible precaution requisite to spare the innocent—Especially children, women, and the aged, except they have committed atrocious acts—Clergymen, men of letters, husbandmen, merchants, prisoners—Conditional surrender not to be rejected—Unconditional surrender—Exceptions to the above rules, some of them considered, and refuted—Delinquents when numerous to be spared—Hostages to be spared—Unnecessary effusion of blood to be avoided.
I. and II. Cicero, in the first book of his offices, has finely observed, that “some duties are to be observed even towards those, from whom you have received an injury. For even vengeance and punishment have their due bounds.” And at the same time he extols those ancient periods in the Roman government, when the events of war were mild, and marked with no unnecessary cruelty.
The explanations given in the first chapter of this book will point out the cases, where the destruction of an enemy is one of the rights of lawful war, according to the principles of strict and internal justice, and where it is not so. For the death of an enemy may proceed either from an accidental calamity, or from the fixed purpose of his destruction.
No one can be justly killed by design, except by way of legal punishment, or to defend our lives, and preserve our property, when it cannot be effected without his destruction. For although in sacrificing the life of man to the preservation of perishable possessions, there may be nothing repugnant to strict justice, it is by no means consonant to the law of charity.
But to justify a punishment of that kind, the person put to death must have committed a crime, and such a crime too, as every equitable judge would deem worthy of death. Points, which it is unnecessary to discuss any further, as they have been so fully explained in the chapter on punishments.
III. In speaking of the clamities of war, as a punishment, it is proper to make a distinction between misfortune and injury. For a people may sometimes be engaged in war against their will, where they cannot be justly charged with entertaining hostile intentions.
Upon this subject, Velleius Paterculus observes that “to blame the Athenians for revolting, at the time they were besieged by Sylla, betrays a total ignorance of history. For the Athenians always continued so steady in their attachment to the Romans, that their fidelity became a proverbial expression. Yet their situation at that time excused their conduct, over powered by the arms of Mithridates, they were obliged to submit to a foe within, while they had to sustain a siege from their friends without.”
IV. and V. Between complete injuries and pure misfortunes there may be sometimes a middle kind of actions, partaking of the nature of both, which can neither be said to be done with known and willful intention, nor yet excused under colour of ignorance and want of inclination. Acts of pure misfortune neither merit punishment, nor oblige the party to make reparation for the loss occasioned. Hence many parts of history supply us with distinctions that are made between those who are the authors of a war, and principals in it, and those who are obliged to follow others, as accessories in the same.
VI. But respecting the authors of war, a distinction is to be made also, as to the motives and causes of war: some of which though not actually just, wear an appearance of justice, that may impose upon the well meaning. The writer to Herennius lays it down as the most equitable vindication of injury, where the party committing it, has neither been actuated by revenge, nor cruelty; but by the dictates of duty and an upright zeal.
Cicero, in the first book of his offices, advises the sparing of those, who have committed no acts of atrocity and cruelty in war, and that wars, undertaken to maintain national honour, should be conducted upon principles of moderation. And, in one of his letters, adverting to the war between Pompey and Caesar, he describes the struggle between those two illustrious men, as involved in so much obscurity of motives and causes, that many were perplexed in deciding which side to embrace. In his speech too for Marcellus, he remarks that such uncertainty might be attended with error, but could never be charged with guilt.
VII. Such forbearance in war is not only a tribute to justice, it is a tribute to humanity, it is a tribute to moderation, it is a tribute to greatness of soul. It was in this moderation, says Sallust, the foundation of Roman greatness was laid. Tacitus describes his countrymen as a people no less remarkable for their courage in the field, than for their humanity to the vanquished and suppliant.
On this subject, there is a brilliant passage in the fourth book to Herennius, where it is said, “It was an admirable resolution of our ancestors, never to deprive a captive prince of his life. For it would be truly a violation of common justice to abuse, by wanton cruelty and rigour, the power over those, whom fortune has put into our hands, by reducing them from the high condition, in which she had placed them before; their former enmity is forgotten. Because it is the characteristic of bravery to esteem opponents as enemies, while contending for victory, and to treat them as men, when conquered, in order to soften the calamities of war, and improve the terms and relations of peace. But it may be asked, if the enemy now treated with this indulgence would have shewn the same lenity himself. To which a reply may be made, that he is not an object of imitation in what he would have done, so much as in what he ought to have done.”
VIII. Though there may be circumstances, in which absolute justice will not condemn the sacrifice of lives in war, yet humanity will require that the greatest precaution should be used against involving the innocent in danger, except in cases of extreme urgency and utility.
IX. After establishing these general principles, it will not be difficult to decide upon particular cases. Seneca says, that “in the calamities of war children are exempted and spared, on the score of their age, and women from respect to their sex.” In the wars of the Hebrews, even after the offers of peace have been rejected, God commands the women and children to be spared.
Thus when the Ninevites were threatened with utter destruction, on account of their grievous crimes, a mitigation of the sentence was allowed, in compassion to the many thousands, who were of an age incapable of making a distinction between right and wrong.
If God, from whose supreme gift the life of man proceeds, and on whose supreme disposal it depends, prescribes to himself a rule like this, it is surely incumbent upon men, who have no commission, but for the welfare and preservation of the lives of men, to act by the same rule. Thus age and sex are equally spared, except where the latter have departed from this privilege by taking arms, or performing the part of men.
X. The same rule may be laid down too with respect to males, whose modes of life are entirely remote from the use of arms. And in the first class of this description may be placed the ministers of religion, who, among all nations, from times of the most remote antiquity have been exempted from bearing arms.—Thus, as may be seen in sacred history, the Philistines, being enemies of the Jews, forbore doing harm to the company of prophets, that was at Gaba: and David fled with Samuel to another place, which the presence of a prophetic company protected from all molestation and injury.
Plutarch relates of the Cretans, that when all order among them was entirely broken by their civil broils, they abstained from offering violence to any member of the priesthood, or to those employed in the sacred rites belonging to the dead. From hence the Greeks came to denote a general massacre by the proverbial expression of no one being left to carry fire to the altar.
Equally privileged with the holy priesthood are those, who devote their lives to the pursuit of letters, and other studies beneficial to mankind.
XI. Diodorus bestows an encomium upon the Indians, who, in all their wars with each other, forbore destroying or even hurting those employed in husbandry, as being the common benefactors of all. Plutarch relates the same of the ancient Corinthians and Megarensians, and Cyrus sent a message to the king of Assyria to inform him that he was willing to avoid molesting all who were employed in tilling the ground.
XII. To the above catalogue of those exempted from sharing in the calamities of war, may be added merchants, not only those residing for a time in the enemy’s country, but even his natural-born, and regular subjects: artisans too, and all others are included; whose subsistence depends upon cultivating the arts of peace.
XIII. and XIV. More civilized manners having abolished the barbarous practice of putting prisoners to death, for the same reason, the surrender of those, who stipulate late for the preservation of their lives either in battle, or in a siege, is not to be rejected.
The Romans, when investing towns, always accepted offers of capitulation, if made before the battering ram had touched the walls. Caesar gave notice to the Atuatici, that he would save their city, if they surrendered, before the battering ram was brought up. And in modern times it is the usual practice, before shells are thrown, or mines sprung, to summon places to surrender, which are thought unable to hold out—and where places are stronger, such summons is generally sent, before the storming is made.
XV. and XVI. Against these principles of natural law and equity an objection is sometimes derived from the necessity of retaliation, or striking terror, in cases of obstinate resistance. But such an objection is by no means just. For after a place has surrendered, and there is no danger to be apprehended from the prisoners, there is nothing to justify the further effusion of blood.—Such rigour was sometimes practiced, where there were any enormous acts of injustice, or any violation of faith; it was practiced also upon deserters, if taken.
Sometimes, where very important advantages may attend striking a terror, by preventing the same crimes in future from being committed, it may be proper to exercise the right of rigour in its full extent. But an obstinate resistance, which can be considered as nothing but the faithful discharge of a trust, can never come within the description of such delinquencies, as justify extreme rigour.
XVII. Where delinquencies indeed are such as deserve death, but the number of offenders is very great, it is usual, from motives of mercy, to depart in some degree from the right of enforcing the whole power of the law: the authority for so doing is founded on the example of God himself, who commanded such offers of peace to be made to the Canaanites, and their neighbours, the most wicked of any people upon the face of the earth, as might spare their lives upon the condition of their becoming tributaries.
XVIII. From the opinions advanced and maintained above, it will not be difficult to gather the principles of the law of nature respecting hostages.
At the time, when it was a general opinion that every one had the same right over his life, as over his property, and that right, either by express or implied consent was transferred from individuals to the state, it is not surprising that we should read of hostages, though harmless and innocent as individuals, being punished for the offences of the state: and, in this case, the consent of the state to such a regulation implies that of individuals, who have originally resigned their own will to that of the public; in whom, after such resignation, it indubitably vested.
But when the day-spring rose upon the world, men, obtaining clearer views of the extent of their power, found that God, in giving man dominion over the whole earth, reserved to himself the supreme disposal of his life, so that man cannot resign to anyone the right over his own life or that of another.
XIX. By way of conclusion to this subject it may be observed, that all actions no way conducive to obtain a contested right, or to bring the war to a termination, but calculated merely to display the strength of either side are totally repugnant to the duties of a Christian and to the principles of humanity. So that it behoves Christian princes to prohibit all unnecessary effusion of blood, as they must render an account of their sovereign commission to him, by whose authority, and in whose stead, they bear the sword.
On Moderation in Despoiling An Enemy’s Country.
Lawfulness of despoiling an enemy’s country—Forbearance of using this right, where things may be useful to ourselves, and out of an enemy’s power—Forbearance in the hopes of speedy conquest, or where things are not immediately necessary to support an enemy, and aid him in maintaining the war—Buildings for the purposes of religion not to be wantonly destroyed—Advantages of this moderation.
I. One of the three following cases is requisite to justify any one in destroying what belongs to another: there must be either such a necessity, as at the original institution of property might be supposed to form an exception, as if for instance any one should throw the sword of another into a river, to prevent a madman from using it to his destruction: still according to the true principles maintained in a former part of this work he will be bound to repair the loss:* or there must be some debt, arising from the non-performance of an engagement, where the waste committed is considered as a satisfaction for that debt: or there must have been some aggressions, for which such destruction is only an adequate punishment.
Now, driving off some of our cattle, or burning a few of our houses, can never be pleaded as a sufficient and justifiable motive for laying waste the whole of an enemy’s kingdom. Polybius saw this in its proper light, observing, that vengeance in war should not be carried to its extreme, nor extend any further than was necessary to make an aggressor atone justly for his offence. And it is upon these motives, and within these limits alone, that punishment can be inflicted. But except where prompted to it by motives of great utility, it is folly, and worse than folly, wantonly to hurt another.
But upon duly and impartially weighing the matter, such acts are oftener regarded in an odious light, than considered as the dictates of prudent and necessary counsels. For the most urgent and justifiable motives are seldom of long continuance, and are often succeeded by weightier motives of a more humane description.
II. It may be possible, under some circumstances, to detain what belongs to an enemy, so as to prevent his deriving advantage from it, in which case it would be an unnecessary and wanton act to destroy it. And to such circumstances the divine law has an eye, in ordering wild trees to be made use of for the construction of works in a siege, while fruit-trees, and every thing necessary for the support of man, ought, if possible, to be spared.
III. Where there is an expectation also of speedy victory and conquest, prudence will dictate to a general or commander of any kind the necessity of forbearing from all acts of destruction, by authorizing and committing which he would only be injuring those possessions, that are likely to come into the hands of his own state or sovereign. Thus, as we are informed by Plutarch, when Philip had overrun Thessaly, destroying and plundering the whole country, Flaminius ordered his troops to march in a regular manner, as through a ceded country which had become their own.
IV. In the next place, it is unnecessary to destroy an enemy’s country, when he has other sources, from which he can draw his supplies, as for instance, the sea or any adjoining territory. Archidamus, in Thucydides, attempting to dissuade the Lacedaemonians from a war with the Athenians, asks them, what object they propose to themselves by such a war? he asks them if they suppose that Attica can easily be laid waste owing to the advantage, which their troops have in superiority and numbers? but, says he, they have other dominions to furnish them with supplies, and they can avail themselves also of maritime importations. So that under such circumstances, it is best to leave agriculture unmolested, even on the frontiers of each side: a practice lately followed in the wars of the low countries, where contributions were paid to both parties, in return for such protection.
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.
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.
VII. What has been said of the sacred edifices of religion applies also to monuments raised in honour of the dead, unnecessarily to disturb whose ashes in their repose bespeaks a total disregard to the laws and ties of our common humanity.
VIII. Although it does not fall within the province of this treatise to inquire into the utility of war in all its various branches, but only to regulate its practices by confining them within due and lawful bounds; yet it will not be improper to observe that rules and practices derive much of their merit from the utility, with which they are attended. So that one great quality, to recommend the moderation above alluded to, will be found in its preventing the enemy from being driven to those resources, which men never fail, at last, of finding in despair. It is a just remark made by some Theologians, that all Christian princes and rulers, who wish to be found such in the sight of God as well as that of men, will deem it a duty to interpose their authority to prevent or to suppress all unnecessary violence in the taking of towns: for acts of rigour can never be carried to an extreme without involving great numbers of the innocent in ruin. And practices of that kind, besides being no way conducive to the termination of war, are totally repugnant to every principle of Christianity and justice.
On Moderation in Making Captures in War.
Effects belonging to the subjects of an enemy, and taken detained as a pledge or debt—Not to be taken by way of punishment for another’s offence—The debt or obligation, arising from a state of war, illustrated by examples—Forbearance in the exercise of such a right from principles of humanity.
I. The capture of an enemy’s goods, even in just war, is not, in all cases, perfectly justifiable, nor is the captor always exempt from the ties of restitution. For strictly speaking, according to the rules of pure justice, it is not lawful to seize or detain goods except to the exact amount of the debt which the enemy has incurred. Indeed goods may be detained beyond that, as a necessary pledge of security, but still upon the condition of being restored, as soon as the danger has ceased: restored either literally, or by some proper compensation being made.
Here then is a right of capture, which confers no right of property or acquisition. But when any thing may become due to us, either from a penalty or the non-performance of an engagement, in both cases a right to an enemy’s goods, if they can be taken, is acquired. By the latter kind of debt not only the effects of the debtor himself, but those, belonging to his subjects, may according to the principles introduced by the law of nations be taken as a security.
This right of the law of nations is very different from that established in impunity alone, or depending upon the external force of judicial authority. For as by our private consent the person with whom we contract acquires not only an external and legal right over our property, but an internal right, proceeding from conscience, so he acquires the same right by a kind of common consent, which virtually comprehends the consent of individuals, in which sense the law is called the common compact or covenant of the state.
And in transactions of this kind it is most likely that nations approving of such a rule, introduced a law, which might not only prevent greater evils, but also enable every one to attain his own right.
II. But in the other kind of debt arising from penalty, or punishment, it does not appear, that nations consented to the establishment of any such right over the effects of subjects. For binding the property of one man for the offence of another is a kind of odious act, and therefore ought not to be extended farther than the law appears to have actually decreed. Nor is the advantage derived from the latter, by any means equal to that attending the former kind of debt. For what is due to us from damage, or the non-performance of a treaty may be considered as a part of our effects, but it is not so with the obligation to punishment, which is purely of a personal nature, therefore no loss is incurred by relinquishing this right.
Nor is the argument in the least weakened by what was said before* respecting the Athenian law. For there it was maintained that subjects were not bound to suffer, because the state was amenable to punishment, but in order to compel the state to do what she ought to do, in bringing the guilty to punishment: a debt arising from duty, and relating to obligations of the former kind, rather than to those of the latter. For there is a difference between being obliged to punish another and being one’s self amenable to punishment: tho’ the latter may frequently arise from the neglect of doing the former, but still there is the same distinction between them, as between cause and effect.
The goods of subjects can only be taken by way of reprisal in return for other goods taken by the enemy; but they can never be taken as a punishment for the neglect of bringing offenders to justice. The delinquents themselves, in the number of whom may be reckoned those, who have neglected to discharge their duty in this respect, must answer for such offences.
III. The goods of subjects may be taken, and a property acquired therein, not only in order to obtain payment of the original debt, which occasioned the war, but of other debts also, to which the same war may have given birth. And in this sense the words of those are to be taken, who maintain, that captures in war are not a perfect compensation for the principal debt, but only used as a means to enforce satisfaction for the damages sustained from aggressions. Thus the Romans, in their dispute with Antiochus, as related by Livy, thought it but right for that king to make reparation for all the expenses incurred in the war, which he had occasioned. Indeed any terms, that may be justly imposed upon the conquered may justly be enforced by war.
IV. The right of seizing the goods of the innocent subject of an enemy seems to have been introduced, in order to compel the original aggressor, or debtor to grant redress for the injury he had done: and although his falling on the innocent may be no way repugnant to what is legally right, it is in some measure a departure from the principles of humanity. On the other hand, history, especially the Roman history, abounds in examples of humanity, where lands have been restored to a conquered enemy, upon condition of their belonging to the state, and becoming subject to the payment of a tribute.
On Moderation in Acquiring Dominion.
How far internal justice permits us to acquire dominion—Moderation, in the use of this right over the conquered, laudable—Incorporating them with the conquerors—Allowing them to retain their dominions—Placing garrisons therein—Imposing tributes or other burdens—Utility of such moderation—Change in the form of a conquered government—The conquered permitted to retain some part of their former liberties—Especially in matters of religion—Clemency to be shewn.
I. That equity and moderation towards individuals, which are so highly extolled, are still more deserving of admiration, when exercised towards nations and kingdoms; where injustice would be attended with more signal calamities, and moderation with more beneficial effects.
In just war the right of dominion over a people, and the sovereign power, which that people possess, may be acquired as well as any other right. But the claims to such a right ought by no means to be prosecuted beyond indemnity for aggression, and security against future evils.
But this motive, so necessary to be observed, especially in all treaties of peace, as well as in the use of victory, is often confounded with others. In other points a sovereign prince or state may relinquish a claim from a principle of moderation, but where the future security of their subjects is concerned, it is an act of cruelty rather than of moderation to relax too far in favour of a conquered enemy.
II. Aristotle has, more than once, said, that war is undertaken for the sake of peace, and toil endured in order to obtain rest. And in the same manner, Cicero has observed, that men go to war, that they may live in peace without molestation and injury. War too, as we are instructed by the teachers of true religion, may be made, to remove every thing that interrupts, and stands in the way of peace.
In the primitive ages, as we find from history, wars in general were made to preserve territories rather than to extend them. And any deviation from this rule was thought unlawful: thus the prophet Amos reproves the Ammonites for their love of making conquests.
III. The prudent moderation of the ancient Romans approaches nearly to this model of primitive innocence. For although they made conquests, they mitigated the fate of the conquered by incorporating them with themselves.
IV. Another mark of moderation in the use of victory is leaving to conquered kings, or nations the dominions, which they lawfully held before.
Polybius highly extols the merit and wisdom of Antigonus, who, having Sparta in his power, allowed the inhabitants to retain their national polity and freedom.
V. Sometimes indeed a conqueror, though allowing a subjugated people to retain their dominion and sovereignty, must provide for his own security, by placing garrisons in their country.
VI. Contributions too are frequently imposed and levied, not so much by way of indemnity for expences incurred, as for a future security between the conqueror, and the conquered country. Upon the same principle, as was before* observed, in explaining the nature of unequal treaties, conditions may be imposed also requiring a conquered power to deliver up a certain number of her ships and forts, and to reduce her troops to a limited number.
VII. But leaving to conquered powers a part or the whole of their dominions is not only sometimes an act of justice and humanity, but an act of sound policy also. Among other of Numa’s institutions, his manner of celebrating the rites of Terminus, the deity of boundaries, is much commended; for he prohibited the use of blood in those ceremonies, as an intimation that nothing was more conducive to the peace and harmony of the world, than for every nation to confine herself within her proper bounds.
In conformity to which maxim Florus observes, that it is more easy to make conquests than to keep them. To which rule Plato, in his third book of Laws, adapts the proverbial expression of Hesiod, that half is better than the whole.
VIII. The Lacedaemonians and the Athenians anciently claimed no farther dominion over conquered cities and states, than purely wishing them to adopt forms of government like their own, the Lacedaemonians living under an aristocratic, and the Athenians under a democratic system. But whether such changes were conducive to a conqueror’s security, it is not to our present purpose to examine.
IX. If it is not perfectly safe to forbear exercising any dominion over a conquered enemy, the matter may be so regulated as to leave him some portion of his former sovereignty and power. Thus among the Jews the sceptre remained with the Sanhedrim, even after Archelaus was deprived of his kingdom; and Alexander in many cases allowed Darius to remain a sovereign over others, while he required of him submission to himself.
X. Even though a conquered power was deprived of all sovereignty, she might be allowed to retain some of her laws, privileges, and magistracies of inferior importance. Thus, Pliny, in his letters, informs us, that in the proconsular province of Bithynia, the city of Apamaea was allowed to regulate the form of her government at her own pleasure, and, in other places, the Bithynians were permitted to retain their own magistrates, and their own senate.
XI. This indulgence ought to be shewn to every people, especially in their attachment to the religion of their forefathers, of which they should never be deprived but with their own consent and conviction. An indulgence, which Agrippa in his address to Caius, as cited by Philo in the account of his embassy, approves of, as highly grateful to the conquered people, and by no means prejudicial to the conqueror. At the same time a conqueror will take care that erroneous opinions do not prevail to the prejudice and overthrow of true religion, as was done by Constantine upon his crushing the party of Licinius, and afterwards by the Franks and other kings.
On Moderation with Respect to Things Excluded from the Right of Postliminium by the Law of Nations.
Internal justice requires the restitution of things taken from others by an enemy in unjust war—Deductions made—Subjects and countries, if unjustly seized by an enemy, to be restored to their original sovereign—The time, when the obligation to restore them expires, defined—What is to be done in doubtful cases.
I. How far things taken in just war become the property of the captors has been explained before. From which a deduction must be made of things recoverable by the right postliminium, those being no captures at all.
But things, taken in unjust war, are to be restored, not only by those, who have taken them, but by others also into whose hands they may have by any means fallen. For, as the Roman lawyers say, no one can convey to another a greater right than he himself possesses. The original captor had no just title to any property therein, neither can the person, deriving his title though him, establish any better claim.—A second or third possessor may have acquired a property therein, which the law presumes he has a right to, till the contrary be shewn, and for which an action may be maintained. Yet it is a right of which he cannot honestly avail himself against the real owner, from whom it was unjustly taken.
II. and III. Therefore such things are to be restored to those, from whom they were taken, which we find in ancient times was often done. Livy in relating the defeat of the Volscians and Aequi by a Roman Consul, says that the booty was exposed in a public place, for the space of three days, that every one, coming to recognise what belonged to him, might take it away.*
But if any one has become possessed of such a thing by purchase, it may be asked, if he can charge the person from whom it was originally taken, with the price which he has paid for it? According to the principles before* laid down, he certainly may charge as much to the person losing it, as the repossession of a thing, which he despaired of ever recovering, is worth.
The history of Abraham seems applicable to this subject, when he returned from his victory over the five kings. Being a man of noble and exalted piety, he would appropriate nothing to himself, but considering the things retaken, as his own right, in recompence for his labour and danger, he devoted a tenth part to God, after deducting the necessary expenses, and divided a certain portion among his companions.
IV. As things are to be restored to their original owners, so subjects are to be restored to their former lawful sovereigns.
V. The period also, when the obligation to restitution expires, is often a subject of inquiry. But this is a question, when arising between subjects of the same kingdom, which must be settled by the municipal laws of that country: but when the contending parties are the subjects of foreign powers, the matter can only be decided upon a conjecture of the time sufficient to constitute a presumed dereliction of property.
VI. But where the right of war is doubtful, it will be safest to follow the conduct of Aratus of Sicyon, in advising the new possessors in some measure to prefer taking a sum of money in lieu of the possession, and recommending the same maxim to the original owners, to prefer a sum of money, if they could obtain it, equivalent to the recovery of their right.
Respecting Those Who are Neutral in War.
Nothing to be taken belonging to neutrals, but under circumstances of extreme necessity, and with an intention to pay the full price of it—Conduct of neutral powers towards belligerents.
I. It may appear superfluous to speak of neutral powers, against whom no rights of war can exist. But as war, under the plea of necessity, occasions many aggressions to be committed against them, especially when bordering upon the seat of its operations, it may be necessary briefly to repeat a former assertion, that nothing short of extreme exigency can give one power a right over what belongs to another no way involved in the war. The case too is equally clear that no emergency can justify any one in taking and applying to his own use what the owner stands in equal need of himself. But even where the emergency can be plainly proved, nothing can justify us in taking or applying the property of another to our use, beyond the immediate demands of that emergency. Where the custody of a thing, by securing it, is sufficient for the purpose, the use and consumption of it is absolutely unlawful. If the use of it is necessary, it must not be abused: and if the entire abuse of it be requisite, the full value should be paid.
II. Again, according to what was said in a preceding part of this book, it is the duty of those, who profess neutrality in a war to do nothing towards increasing the strength of a party maintaining an unjust cause, nor to impede the measures of a power engaged in a just and righteous cause. But in doubtful cases, they ought to shew themselves impartial to both sides, and to give no succour to besieged places, but should allow the troops of each to march through the country, and to purchase forage, and other supplies. The Corcyraeans, in Thucydides, say that if the Athenians intend to remain neuter, they ought either to prohibit the Corinthians from enlisting men in the territory of Attica, or to give them the same privilege. The Romans objected to the conduct of Philip king of Macedon, charging him with a double violations of treaties, both by injuring the allies of the Roman people, and assisting the enemy with supplies of men and money.
On Good Faith Between Enemies.
Good faith due to enemies of every description—Due even to pirates, and others of the same kind, in all treaties with them—A promise given to them, binding, when not extorted by fear—Oaths to be inviolably observed—The law of nations does not allow fear to be alleged as an exception to the above rules—Good faith to be observed even to a treacherous enemy—This obligation ceases, where one of the parties violates his engagements—Or refuses a just compensation—Even where the obligation arose from a different contract—From loss occasioned—Or from a penalty—Application of these principles to war.
I. It was before said that the number and extent of actions, lawful in war, may be considered either upon their own intrinsic merits, or as rising out of some antecedent engagement. The former point having before been fully explained, this is the proper place for discussing the latter, which comprehends the good faith of enemies towards each other.
Cicero, in his fifth book on the bounds of good and evil, has well observed that every one must approve and commend a disposition to adhere faithfully to our engagements not only from disinterested motives, but in some cases even in opposition to our own interest. And Augustine says that it is right to maintain the pledge of faith given to an enemy, for under the character of enemies men do not lose their right to the fulfilment of a promise, a right which every one possessed of reason is capable of. It is the power of reason and speech from which the obligation of promises springs. Nor is it to be supposed that, because it is lawful to deceive an enemy on some occasions, the same rule will authorise a violation of faith in engagements. For the obligation to speak the truth arises from causes antecedent in their existence to any state of warfare, and they are causes which a state of warfare may render it necessary to change or abridge. But a promise confers a new right of itself. A distinction which did not escape the notice of Aristotle, who, in speaking of truth, says that he does not consider truth and sincerity in engagements, with relation to justice or injustice, but as belonging to another class of virtues.
II. As to engagements with pirates, we may observe, that Pompey in a great measure concluded the disputes with them by treaty, sparing their lives, and allowing them places to reside in, on condition of their abandoning their former way of life. The law of nations indeed has not established the same mode of communication with them, as among regular enemies in just and lawful war: but still the very circumstance of their being men, entitles them to those privileges which are sanctioned by the law of nature, among which the observance of engagements is one.
III. Let us consider if a more specious argument than Cicero’s may not be devised on this subject.—In the first place it may be stated that atrocious malefactors, forming no part of a state, may be punished by any one whatever, according to the law of nature. For those, who may be punished with death, may upon the same principle be deprived of their property and all their rights. And among rights may be enumerated the right of requiring a fulfilment of promises and engagements: the guilty may therefore be deprived of this right by way of penalty. In reply to which it may be said, this will certainly be the case, if the person is treated with, but not as a malefactor: for the very act of treating with him shews that he is not considered any longer in that light, but as one entitled to all the rights of treaty, the criminal part of his character not being taken into the account, all penalties on that score being, as it were remitted. For every act of treaty must be interpreted so as to avoid absurdity.
IV. An objection to treating with pirates upon principles of good faith is deduced from their calling, which is to extort terms by fear. Now where a promise has been extorted, the promisor is released from his engagement, as having unjustly sustained a damage, by an act repugnant to the nature of human liberty, and to the nature of human action, which ought to be free.
This, it must be admitted, may sometimes happen, but does not apply to all promise made to pirates. For to make the person, to whom a promise has been given, liable to release the engagement, the promiser himself must have been forced to give the promise under impressions of unjust fear. So that if any one has promised a ransom in order to redeem a friend from captivity, he will be bound by his promise. For in this case there was no impression of fear, as he came voluntarily to make the contract.
V. A promise too made through the compulsion of fear will be binding, where it has been ratified by the solemn sanction of an oath: for in that case it is not only one man making an engagement to a fellow creature, but binding himself to God by the most solemn appeal: against which neither fear nor any other motive can form an exception. Yet the heir of a promiser is not bound by any such obligation: because inheritances pass according to the rules of human intercourse established at the original institution of property: but the divine right to the fulfilment of oaths, as such, is not included in these. From the above arguments a conclusion may be deduced, that if any one violates a pledge given to such an enemy either upon oath or without oath, he will not on that account be liable to punishment among other nations, because from the general horror which piracy excites, nations have thought proper to pass over without notice the violation of rules of faith towards them.
XI. * Solemn war, signifying such as is proclaimed and begun on both sides by authority of the sovereign or state, among its many other legal rights, includes also that of giving validity to every promise, which may be conductive to its termination, so that if either party, through an ill-grounded fear of further calamities, has even against his will, made promises unfavourable, or acceded to terms disadvantageous to himself, such an engagement will be binding. For the law of nations allows belligerent powers to alarm each other, if possible, into submission upon the most unequal terms, in the same manner, as it gives a sanction to many things not strictly equitable according to natural and municipal law. For if such a practice had not been established, wars, which are so frequent, could never have been brought to a conclusion, an object so much for the interest of mankind.
These are the rights of war which Cicero says ought to be inviolably preserved with an enemy: for an enemy not only retains his natural rights in war, but certain other rights originating in the consent of nations. Yet it does not follow from hence that any one, who has extorted such a promise in unjust war, can, consistently with piety and the duties of a good man, retain what he has so received, nor can be compel another to stand to such engagements, whether upon oath, or not. For the natural and internal injustice of such a promise always remains the same, nor can the injustice be removed or altered, till it has received a new and free concurrence from the party, by whom it was given.
XII. The only impressions of fear, that can be lawfully inspired in regular war, are those which are approved of by the law of nations. Thus no one can avail himself of a promise, extorted from an ambassador under impressions of fear excited by the seizing of his person.
XIII. and XIV. There are two cases, in which a personmay not perform his engagement or promise, without being guilty of treachery: and those are, where the conditions have not been fulfilled, or some compensation has been made. For in one and the same treaty all the clauses seem connected with each other, as a kind of condition expressing the intention of one party to fulfill his engagement, if the other shall do the same. Therefore Tullus, in replying to the Albans invokes destruction upon the head of that people who first rejected the just claims of ambassadors demanding restitution, wishing that all the calamities of war might fall upon them. For, says, Ulpian, he shall no longer be held as a confederate, who has renounced a treaty, owing to some condition, on which it was made, not being fulfilled. For which reason, wherever it is intended otherwise, it is usually stated in express terms, that the violation of any particular clause shall not annul the whole treaty.
XV. The origin of compensation was explained in the second book of this treatise,* where it was said to be the power and right of receiving an equivalent, for some thing belonging to us, which is in the hands of another, or anything due to us, which we cannot otherwise obtain: and much more then have we a right on the same account to detain any thing which is already in our power, whether it be of a corporeal or an incorporeal kind. So that we are not obliged to perform a promise, if it be no more than equivalent to a thing of ours which the other party detains. Seneca, in his sixth book On Benefits, says that a creditor often becomes under an obligation to his debtor, if he takes more than an equivalent for his debt. For though it may be granted that he has lent money, yet if by such a loan he has obtained the possession of lands, which he never bought, he changes situations with his debtor, and becomes a debtor in his turn.
XVI. It will be the same, if one of the contracting parties owes as much, or more, from some other engagement: and the debt cannot otherwise be obtained, than by taking advantage of the present contract. Thought it has no connection with the former debt. But in a legal point of view, all actions are perfectly distinct, nor can their forms, their grounds, or their substance be confounded; but certain cases are confined to certain laws, to which it is necessary invariably to adhere: one law cannot be mixed with another, but every one in the prosecution of a right must tread upon invariable and beaten ground. But the law of nations does not regard such distinctions, it allows us to transgress them where there is no other means of obtaining our right.
XVII. and XVIII. The same may be said too, where the party exacting a promise, has not contracted any debt by engagement, but has done an injury to the promiser. And whatever is due by way of punishment may be balanced against a promise.
XIX. If while a law-suit is depending, the parties enter into an agreement of any kind, either to pay the costs, or to make good other damages, they cannot avail themselves both of this agreement, and claim a further compensation, for the original matter in dispute. In the same manner, if during the continuance of a war the belligerents negotiate for a conclusion of the original dispute, they are supposed thereby to settle every cause of hospitality, nor can they any further avail themselves of the rights of war, so as to enjoy both the advantages of them, and of negotiation, at the same time. For if this were the case, no treaties could ever be enforced with certainty.
It may be asked, of what nature are the things for which a promise of compensation should be given? In answer to which it may be observed, that such a promise or engagement may be made in lieu of some other obligation incurred during the course of a war: as for instance, where the breach of a truce has been committed, the rights of an ambassador violated, or any other action done, repugnant to the principles established by the law of nations among belligerent powers.
Still it must be observed that the parties, in making compensation, should abstain with the utmost caution from infringing upon the rights of a third person, especially where this can be done without abandoning the principles of the law of nations, which makes the effects of subjects answerable for the debts of the state. Besides it is the mark of a dignified mind to adhere to engagements even after receiving an injury. On which account the Indian sage Jarchas commended that king, who on sustaining an injury from a neighbouring and confederate power, said he should not think himself released from his sworn engagements, which were solemn acts, that no injustice on the part of another could repeal.
Almost all questions relating to pledges of faith given by one belligerent power to another, may be solved upon the principles before laid down, in explaining the nature and force of promises in general; of oaths, treaties, and conventions, and also in explaining the rights of the obligations of kings, and the method of interpreting doubtful points. But in order to remove every doubt and difficulty, perhaps a brief discussion of the most usual and practical topics of negotiation will not be deemed tedious.
On the Public Faith, by which War is Concluded; Comprising Treaties of Peace, and the Nature of Arbitration, Surrender Hostages, Pledges.
In monarchies the power of making peace a royal prerogative—In aristocracies and democracies, this right belongs to a greater number of persons—In what manner the public dominions or any part of them may be alienated—How far a peace concluded by the king binds the state, or his successors—Property of individuals ceded for the benefit of the state at the time of making peace—Indemnity to those individuals—Losses sustained in war—No distinction between things acquired according to the law of nations and the civil law—Transactions of the sovereign with foreign nations deemed valid from motives of public utility—General rule of interpreting the terms of peace—In doubtful cases the former state of things supposed to be continued by a treaty of peace—Things restored to the state they were in before the war—Independent states, voluntarily joining one of the belligerent powers cannot claim indemnity of the other—General amnesty—Private debts subsisting before the war not included there in— Restoration of captures—Rules respecting such restorations—Dubious points to be interpreted to the prejudice of the party dictating the terms—Distinction between new causes of war, and the breach of a peace—Rupture by any act contrary to the terms of peace in general—Infraction of a treaty by allies or subjects— Violation of a particular treaty—Heads of treaties—Penalties annexed—Unavoidable impediments to the fulfillment of a treaty— Peace continued at the option of the injured party—Relations of amity—How far receiving subjects and exiles may be considered as a breach thereof—Victory—War concluded by arbitration—Arbitrators bound by rules of strict justice—Absolute, and conditional surrender—Hostages can be detained for no other than the express cause for which they were given—Released by the death of the party for whom they were given—Obligation of pledges—Right of redeeming them lost.
I. Good faith, either expressed or implied, must be the foundation of every treaty between hostile powers. And again the faith that is expressed is either of a public or a private nature, and the pledges given either by the sovereign, or inferior, authorities in states constitute the public faith. It is, by such pledges given on the part of the sovereign power, alone, that peace can be concluded, or the rights of war enforced. In the termination of every war, either the principal, or accessory causes are to be considered. Treaties are in general regarded as the principal instrument, by which wars are ended, and the mediation, or decision of a third person or power is deemed a secondary or accessory means.
II. The person, who has authority to begin a war, is the only one to whom the right of making peace can properly belong, according to the general maximum, that every one is the best judge in the management of his own affairs. From hence it follows, that public war can be made by the sovereign power alone on each side: a right which in every kingly government is very justly vested in the crown.
III. and IV. In popular or aristocratic forms of government, the right of making war, or concluding peace, is generally lodged in some public council or body, where a majority of voices may form treaties, conventions, or resolutions, which will be binding upon the dissentient part of such council. And all who are bound by a peace, whether approving it or not are entitled to its benefits.
V. In examining those objects, which from the most material part of treaties, we may observe, that kingdoms are not so much a patrimony, which may be alienated at pleasure, as a trust, placed in the hands of the sovereign for the benefits of his people. Indeed kings themselves are aware of this, even before the crown descends upon their heads, and they receive it upon condition of adhering to such sacred obligations.
Nor can such alienations ever be made, so as to be attended with consequences like those of private contracts, or to render the goods and effects of subjects answerable for such engagements. For if that were the case, the fundamental laws of the kingdom, prohibiting such alienations, would be of no effect.
To render the alienation of the whole public dominion valid, the consent of the constituted authorities of the states is requisite. And indeed to confirm the transfer of any particular portion, the consent of the whole body as well as of that particular member will be necessary: for otherwise such alienation would be like the violent separation of a limb from the natural body.
A whole people may in a case of extreme necessity transfer themselves to the dominion of another, a right which undoubtedly was reserved at the original formation of society.
Neither, is there any thing to prevent a king from alienating his patrimonial and private possessions. Yet there may be parts of the royal dominion, which the sovereign cannot alienate from the crown, especially, if he has received it upon condition of making no personal appropriation of any thing belonging thereto.
There are two ways in which the possessions of the crown may become the patrimony of the king, either as separable or inseparable parts of the kingdom. In the latter case they can only be transferred with the kingdom itself, but in the former, they may be alienated by themselves. And where the crown is not patrimonial and hereditary, the restrictions upon the sovereign in this respect are much greater.
VI. A nation and a king’s successors are bound by his engagements, in proportion to the power, which he derives from the constitution, of making such engagements. For though this power may not be absolutely unlimited, yet it ought not to be clogged with unnecessary restrictions. It should be such as may enable him to exercise his discretion and judgement on proper occasions for the benefit of his people.
The cases will be different, where a king’s power over his subjects is like that of a master over his household, more than of a sovereign over his household, more than of a sovereign over his state, as where he has entirely subjugated a people, or where his control over their property is absolute. Thus Pharaoh purchased all the land in Egypt, and others have admitted strangers into their territories allowing them to hold lands upon such conditions. For here, there is another right inaddition to that of a sovereign, and it is a right, which sovereignty alone without conquest could never have conferred.
VII. The right of sovereigns to dispose of the effects of individuals, in order to make peace, is often a disputed point, nor can they exercise this right over the property of subjects in any other manner than as sovereigns.*
The property of subjects is so far under the eminent controul of the state, that the state of the sovereign who represents it, can use that property, or destroy it, or alienate it, not only in cases of extreme necessity, which sometimes allow individuals the liberty of infringing upon the property of others, but on all occasions, where the public good is concerned, to which the original framers of society intended that private interests should give way. But when that is the case, it is to be observed, the state is bound to repair the losses of individuals, at the public expense, in aid of which the sufferers have contributed their due proportion. Nor will the state, though unable to repair the losses for the present, be finally released from the debt, but whenever she possesses the means of repairing the damages, the dormant claim and obligation will be revived.
VIII. There must be some hesitation in admitting the opinion of Ferdinand Vasquez, who maintains that the state is not bound to repair the losses, which are occasioned to individuals in the course of war, as those are accidents permitted by the rights of war.
For those rights regard the relation of foreign states and enemies to each other, but bear no reference to the disputes of subjects among themselves, who being united in the same cause, ought to share the common losses, which happen to them in supporting the privileges of their society. It is a rule likewise established by the civil law, that no action can be brought against the state for the losses sustained in war, as every one is thereby induced to defend his own property with more earnestness and spirit.*
IX. Some make a distinction between the property which subjects are entitled to from the law of nations and that which they possess by the authority of the civil law, allowing the king a more extensive controul over the latter, even to the power of taking it without cause or compensation, which is not the case with property of the former kind. But this is an improper distinction. For whatever may be the origin of property, it is always attended with peculiar effects according to the law of nature: so that it cannot be taken away for any other reasons than those inherent in the nature of property itself, or derived from some act of the owners.
X. The prohibition respecting the property of individuals being given up, except for some public advantage, is a matter resting entirely between a sovereign and his subjects, and a compensation for losses is an affair between the state and individuals. But in all transactions between a king and foreigners, the act of the king is sufficient to give them national validity, not only out of respect to his personal dignity, but according to the law of nations, which renders the effects of subjects responsible for the acts of the sovereign.
XI. In interpreting treaties of peace, favourable circumstances are always to be taken in their utmost latitude, and unfavourable circumstances to be limited as strictly as possible.*
Regarding purely the law of nature, the most favourable construction is that, whereby every one is restored to his own property and possessions. Therefore where the articles of a treaty are ambiguous, the construction should go so far, as to grant the party, who has evidently justice on his side, the object for which he went to war, and likewise indemnity for the losses which he has sustained.
But it is not allowable that either party should gain more than an indemnity, or demand any thing by way of punishment, which is of an odious nature.
As in making peace, it scarcely ever happens that either party will acknowledge the injustice of his cause, or of his claims, such a construction must be given, as will equalize the pretensions of each side, which may be accomplished, either by restoring the disputed possessions to their former situation, or by leaving them in the state, to which the war has reduced them.
XII. Of these two methods, in a doubtful case, the latter is preferred, as being the more easily adjusted, and occasioning no further c hange. From hence the right of postliminium belongs to such prisoners, as are expressly included in the treaty. Neither are deserters to be given up, unless it to be so agreed. For by the laws of war any power is allowed to receive deserters, and even to enlist them in his own army.
By such agreement other things remain in the hands of the possessors, by which is not meant a civil, but a natural possession; for in war bare possession is sufficient, nor is any other kind looked for. And lands are said to be possessed, when in closed or defended by fortifications, for a temporary occupation by an encampment is not regarded in this case. Hence Demosthenes in his speech for Ctesiphon, says that Philip was anxious to make himself master of all the places he could size, as he knew that upon the conclusion of a peace, he should retain them.
Incorporeal rights cannot be held but by the occupation of the things with which they are connected; as for instance, the services of lands, or through means of the persons, to whom they belong: but the holders of such rights lose them, when an enemy has become master of the country.
XIII. In that other mode of treaty, whereby possession, that has been disturbed in the course of a war, is restored, it is proper to observe that the last possession, immediately before the war began, is that, which is always meant, so that the individuals then unjustly ejected, may have recourse to law, either to obtain possession by a provisional decree, or to make good their claim.
XIV. If an independent people voluntarily and spontaneously place themselves under the control and protection of one of the belligerent powers, such a people cannot be included among those entitled to restitution, which only belongs to those who have suffered losses by violence, through fear, or any lawful stratagem of war. Thus when peace was made among the Grecian states, the Thebans retained Plataea, observing that they neither owed their possession of it to violence, nor treachery, but to the free surrender of those, to whom it belonged.
XV. Unless there is an express stipulation to the contrary, it is understood that, in all treaties of peace, there is an implied assent that no actions are to be brought for losses occasioned by the accidental calamities of war, either to states or individuals. For those are natural consequences of a state of hostilities; and it is supposed that in doubtful cases, no belligerent would consent to be convicted of injustice.
XVI. The debts, owing to individuals, at the beginning of a war, are not to be thought thereby discharged. For they are not things acquired by the laws of war; for war only prevents the claim to them from being prosecuted, but by no means releases the obligation. So that when the impediment of war is removed, such debts retain their original force. For though it ought not to be presumed that any one should easily be deprived of a right subsisting before the war, yet this is to be understood of the rights arising out of the foundation of property, where by a community and equality of goods was abolished. For states and governments, says Cicero, were originally and principally designed to preserve to every one the possession of his own property.
XVII. The right to claim lands or goods of any kind, by way of punishment, is not of equal force with the above rules. For in transactions and treaties of that kind between kings and sovereign states, all claims of that kind seem and indeed ought to be relinquished, otherwise peace would be no peace, if the old and original causes of the war were allowed to remain and be revived. And the most latent and remote causes are supposed to be included in the most general terms, in treaties of peace, whereby they are sunk in oblivion.
XVIII. The rights of individuals to penalties are not supposed to be abandoned, resting entirely upon different grounds: because they may be decided by legal tribunals without appealing to the sword. Yet as our rights of this sort are not of the same kind with those of absolute property, and as penalties have always something odious in their nature, any faint verbal conjecture will be thought a sufficient presumption of their being remitted.
XIX. The objection made against taking away any rights, that existed before the war, applies chiefly to the rights of individuals. For where the words of a treaty supply any probable conjecture, it is most natural to suppose that kings and nations have more readily relinquished certain rights, especially in matters, where those rights are not clearly and fully ascertained. So that, giving the most favorable construction to their conduct, they are supposed to have been animated with the noble desire of rooting up and destroying all the seeds of war.
XX. All captures, made after a treaty is finished, must evidently be restored. For the treaty puts an end to all the rights of war.
XXI. But in treaties relating to the restoration of things taken in war, a more extensive interpretation must be given, where the advantages are mutual; than where they incline only to one side.*
In the next place all the parts of a treaty relating to persons are to be interpreted more favourably than those relating to things: and among those relating to things, priority is given to lands before moveable effects, and also among these, such as are in the hands of the state are held in more consideration than the possessions of individuals. And again, among things in the possession of individuals, those are more favoured which are loaded with incumbrances, as things held by money payments, or by dower.
XXII. The person, to whom any thing is ceded by a treaty of peace, is entitled to the produce and fruits of it, from the time of such cession, and not farther back: a point maintained by Augustus Caesar in opposition to Sextus Pompey, who, upon Peloponnesus being ceded to him, claimed also the tributes and revenues, that were due for former years.
XXIII. The names of countries are to be taken according to the usage of the present time, not so much according to the popular acceptation, as to that of men of science, by whom those subjects are generally treated of.
XXIV. These rules also are of frequent use, whenever there is a reference to an antecedent, or to an ancient treaty. For in that case the qualities and conditions of the latter treaty are considered as a repetition of those expressed in the former.—And the person contracting is to be considered as having really performed his part of the engagement, which he certainly would have done, had he not been prevented by the party with whom he is engaged in dispute.
XXV. What some allege in excuse for a short delay in the execution of a treaty is not to be admitted as true, except some unforeseen necessity has occasioned the impediment. For though some of the canon-laws may favour such a plea, that is not surprising, considering they are framed solely with the view of promoting charity among Christians. But in this question relating to the interpretation of treaties, it is not so much our business to lay down what is best and properest for every one to do, nor even to state what religion and piety require, as to consider what every one may be compelled by legal authority to do.
XXVI. In doubtful matters it is usual for an interpretation to be given more prejudicial to the party who has dictated the terms, than to the other, because in general he is the more powerful: in the same manner, in explaining the terms of a bargain, a construction is generally given against the seller: as he may blame himself for not having spoken more clearly, and openly. Whereas the other, comprehending the terms in more meanings than one, might fairly select that most favourable to himself.
XXVII. It is a matter of frequent dispute what constitutes the breach of a peace. For it is not the same thing to break of a peace, as to furnish new grounds and causes of war. There is a great difference between these things, both as to the penalty incurred by the aggressor, and as to the aggrieved party being, in other respects, released from his engagements.
There are three ways, in which a peace may be broken, —either by doing something contrary to the very essence of all peace,—or something in violation of the express terms of a particular peace,—or something contrary to the effects, which are intended to arise from every peace.
XXVIII. A thing is done contrary to the very essence of all peace, when hostile aggressions are committed without any new grounds of war. But where any specious pretext can be assigned for taking arms, it is better it should be supposed purely an act of injustice, than an act of injustice accompanied with perfidy. It is hardly necessary to quote the words of Thucydides, who says, “it is not the party, who repels force by arms, but the power who first makes the attack, that violates a peace.”
Having laid down these rules, it remains to be considered, who are the aggressors, and who are the aggrieved persons, in the breaking of a peace.
XXIX. There are some, who think that a peace is broken, when even those, who have been allies do any of these things. Nor indeed can it be denied, that such an agreement may be made, for one ally to become liable to punishment for the actions of another, and for a peace to be deemed ratified and permanent only upon conditions, partly arbitrary, and partly casual.
But it is hardly credible, unless there is the clearest evidence of it, that peace is ever concluded upon such terms. For it is contrary to all rule, and repugnant to the common wishes of those, who make peace. Therefore those, who have committed hostile aggressions, without the assistance of others, will be deemed breakers of the peace, against whom alone the injured party will have a right to take arms.
XXX. If subjects have committed any act of hostility without authority and commission from the state, it will form a proper subject of inquiry, whether the state can be judged responsible for the acts of individuals: to constitute which responsibility, it is evident that a knowledge of the fact, power to punish it, and having neglected to do so, are requisite.
A formal notice given to the sovereign of the offending subjects is supposed to amount to a knowledge of the fact, and it is presumed that every sovereign is able to controul and punish his own subjects, unless there be some defect in his authority: and a lapse of time, beyond what is usually taken for the punishment of civil offences in every country, may be construed into willful neglect. And such neglect amounts to a sanction of the offence.
XXXI. It is likewise frequently made a subject of inquiry, whether a state is answerable for the conduct of any of her people, who do not take arms by her authority, but serve in the armies of some other power engaged in war. The Cerites, in Livy, clear themselves upon this principle, that it was not by their authority their people bore arms. And it is a well-founded opinion that no such permission ought to be deemed as given, unless it appear from probable reasons that it was intended it should be granted: a thing sometimes done, according to the example of the ancient Aetolians, who thought they had a right to deprive every plunderer of his spoils. A custom the force of which Polybius expresses in the following words, “when other powers, friends and allies of the Aetolians, are at war with each other, the Aetolians may nevertheless serve in the armies on either side, destroying and spoiling their respective countries.”
XXXII. Again, a peace ought to be deemed broken, not only by any act of violence done to the body politic itself, but to any of the subjects, without new grounds of war. For peace is made with a view to the security of every individual subject: as the state in making peace acts for the whole, and for all its parts.
Indeed even if new grounds of war should arise, every one may, during the continuance of peace, defend himself and his property. For it is a natural right to repel force by force: a right which it cannot easily be supposed that those, who are upon a footing of equality have ever renounced.
But to practise revenge, or use violence in recovering things taken away will not be lawful, except where justice is denied. Justice may admit of some delay: but the other method demands prompt execution, and therefore should not be undertaken but in extreme emergency. But if the subjects of any country persist in a course of uniform crime, and aggression, repugnant to all natural and civil law, in defiance of the authority of their own government, so that the hand of justice cannot reach them, it will be lawful for any one to deprive them of their spoils, and to exercise upon them the same rigour, as if they were delivered up to punishment. But to attack other innocent persons on that account is a direct violation of peace.
XXXIII. Any act of violence also offered to allies, constitutes a breach of the peace, but they must be such allies as are comprehended in the treaty.
The same rule holds good, even if the allies themselves have not made the treaty, but others have done so on their behalf: since it is evident that those allies regarded the peace as ratified and valid. For they are looked upon as enemies, till it is certain they have consented to the ratification.
Other allies, or connections, who are neither subjects nor named in the treaty of peace, form a distinct class, to whom any violence done cannot be construed into an act of breaking the peace. Yet it does not follow that war may not be undertaken on such an account, but then it will be a war resting entirely upon new grounds.
XXXIV. A peace is broken by doing any thing contrary to the express terms of it; and by this is likewise meant the non-performance of engagements.
XXXV. Nor can we admit of any distinction between articles of greater or minor importance.
For all the articles of a treaty are of sufficient magnitude to require observance, though Christian charity may overlook the breach of them upon due acknowledgement. But to provide greater security for the continuance of a peace, proper clauses will be annexed to the minor articles, stating that any thing done against them shall not be deemed an infraction of the treaty: or that mediation shall be adopted in preference to having recourse to arms.
XXXVI. This seems to have been plainly done in treaties, where any special penalty was annexed. A treaty indeed may be made upon terms allowing the injured party his option either of enacting the penalty, or receding from his engagement: but the nature of the business rather requires the method of mediation. It is evident and proved from the authority of history, that one of the parties, who has not fulfilled his engagement, owing to the neglect of the other to do so, is by no means guilty of breaking the peace: as his obligation was only conditional.
XXXVII. If there is any unavoidable necessity to prevent one party from fulfilling his engagement, as for instance, if a thing has been destroyed, or carried off, by which the restoration of it has become impossible, a peace shall not thereby be deemed broken, the continuance of it not depending upon casual conditions. But the other party may have his option, either to prefer waiting, if there is any reason to hope that the engagement may be fulfilled at some future period, or to receive an equivalent, or to be released, on his side from some corresponding article of the treaty.
XXXVIII. It is honourable, and laudable to maintain a peace, even after it has been violated by the other party: as Scipio did, after the many treacherous acts of the Carthaginians. For no one can release himself from an obligation by acting contrary to his engagements. And though it may be further said that the peace is broken by such an act, yet the breach ought to be taken in favour of the innocent party, if he thinks proper to avail himself of it.
XXXIX. Lastly, a peace is broken by the violation of any special and express clause in the treaty.
XL. In the same manner, those powers, who commit unfriendly acts, are guilty of breaking that peace, which was made solely upon condition of amicable relations being preserved. For what, in other cases, the duties of friendship alone would require, must here be performed by the law of treaty.
And it is to treaties of this kind that many points may be referred, which are discussed by legal writers, relating to injuries done without force of arms, and to the offences of insults. According to this principle, Tully has observed, that any offence committed after a reconciliation is not to be imputed to neglect, but to willful violation, not to imprudence, but to treachery.
But here it is necessary, if possible, to exclude from the account every charge of an odious kind. So that an injury done to a relation of subject of the person, with whom a treaty of peace has been made, is not to be deemed the same, as one done to himself, unless there are evident proofs that, through them, an attack upon him was intended. And an invasion of another’s rights is often to be ascribed to new motives of rapacity, rather than to those of treachery.
Atrocious menaces, without any new grounds of offence, are repugnant to all terms of amity. Any one may assume this threatening posture, by erecting new fortifications in his territory, as a means of annoyance rather than offence, by raising an unusual number of forces: when it is evident that these preparations can be designed against no one, but the power with whom he has concluded peace.
XLI. Nor is it contrary to the relations of amity to receive individual subjects, who wish to remove from the dominions of one power to those of another. For that is not only a principle of natural liberty, but favourable to the general intercourse of mankind. On the same grounds a refuge given to exiles may be justified. But it is not lawful to receive whole towns, or great bodies, forming an integral part of the state. Nor is it more allowable to receive those, who are bound to the service of their own state by oath or other engagement.
XLVI. * There are two kinds of arbitration, the one of such a nature that it must be obeyed whether the decision be just or unjust, which, Proculus says, is observed when, after a compromise, recourse is had to arbitration.
The other kind of arbitration is where a matter ought to be left to the decision of a person, in whose integrity confidence may be placed, of which Celsus has given us an example in his answer, where he says, “though a freedman has sworn, that he will do all the services, which his patron may adjudge, the will of the patron ought not to be ratified, unless his determination be just.”
This interpretation of an oath, though comfortable to the Roman laws, is by no means consistent with the simplicity of language considered by itself. For the justice of the case remains the same, in whatever way an arbiter is chosen, whether it be to reconcile contending parties, a character, in which we find the Athenians acting between the Rhodians and Demetrius, or to make an absolute decree.
Although the civil law may decide upon the conduct of such arbiters to whom a compromise is referred, so as to allow of an appeal from their decrees, or of complaints against their injustice, this can never take place between kings and nations. For here there is no superior power, that can either rivet or relax the bonds of an engagement. The decree therefore of such arbiters must be final and without appeal.
XLVII. With respect to the office of an arbiter or mediator, it is proper to inquire, whether the person has been appointed in the character of a judge, or with powers more extensive and discretionary than legal powers. Aristotle says that “an equitable and moderate man will have recourse to arbitration rather than to strict law, adding as a reason, because an arbitrator may consider the equity of the case, whereas a judge is bound by the letter of the law. Therefore arbitration was introduced to give equity its due weight.”
Equity does not signify in this place, as it does elsewhere, that part of justice, which gives a strict interpretation of the general expressions of the law, according to the intention of the law-giver. For that is left to the judge. But it includes every thing, which it is more proper to do than to omit, even beyond what is required by the express rules of justice.—Such kind of arbitration being common among individuals and subjects of the same empire, it is recommended by St. Paul as a practice peculiarly proper for Christians. Yet in doubtful cases it ought not to be presumed that such extensive powers are granted. For where there is any obscurity it abridges this latitude of decision: and especially in contested matters, between independent sovereigns, who, having no common judge, are supposed to bind the mediators, and arbitrators, whom they chuse, by the strictest rules of law.
XLVIII. It is to be observed that arbitrators chosen by nations or sovereign princes may decide upon the matter in dispute, but not confer a possession, which is a matter that can only be decided by established rules of civil law, for by the law of nations the right of possession follows the right of property. Therefore while a cause is pending, no innovation ought to be made, both to prevent partiality and prejudice, and because, after possession has been given, recovery is difficult. Livy in his account of some disputed points between the people of Carthage and Masinissa, says, “The Ambassadors did not change the right of possession.”
XLIX. There is another kind of arbitration, which takes place, when any one makes an absolute surrender of himself and all his rights to an enemy or foreign power. But still a distinction ought to be made, even here, between the bounds of right and wrong, limiting the submission of the vanquished, on the on the one hand, and the authority of the conqueror, on the other, to a certain degree.
For there are particular duties, which ought to be observed in the exercise of every right. Taking the right of the conqueror in its literal meaning and full extent, it is true that he is entitled to impose any terms upon the conquered, who is now placed, by the external laws of war, in a situation to be deprived of every thing, even personal liberty or life, much more then, of all his property, either of a public or private kind.
L. The first object of a conqueror should be to avoid committing any act of injustice, or using any rigour, except the demerits and atrocity of the enemy require it; to take nothing but by way of lawful punishment. Observing these bounds, as far as security allows, it is always laudable to incline to moderation and clemency. Sometimes even circumstances may require such a line of conduct, and the best conclusion of any war is that, which reconciles all contending claims by a fair adjustment, and a general amnesty. The moderation and clemency to which the vanquished appeal, are by no means an abolition but only a mitigation of the conqueror’s absolute right.
LI. There are conditional surrenders, reserving to the individuals, certain personal privileges, and remains of their property, and to the state, certain parts of its constitution.
LII. Hostages and pledges may be considered as an appendage to treaties. And some of those hostages are a voluntary surrender, and others given by authority of the state as a security. For the sovereign has the same power over the persons and actions of his subjects, as over their property. But the state or its ruler will be bound to recompense individuals or their relatives for any inconveniences they may sustain.
LIII. Though the law of nations may in its literal rigour allow of putting hostages to death, it can never conscientiously be enforced, but where they have committed crimes deserving of capital punishment. Neither can they be made slaves. Indeed the law of nations permits them to leave their property to their heirs, although by the Roman law provision was made for confiscating it to the state.
LIV. If it should be asked whether hostages may lawfully make their escape: it may be answered in the negative, especially if, at first, or afterwards, they have pledged their faith to remain, upon condition of being prisoners at large. But it does not appear that states so much intended to impose a hardship upon their subjects by forbidding their escape, as to give the enemy security for the performance of their engagements.
LV. The obligation of hostages is of an odious nature, as being unfriendly to personal liberty, and arising from the act of another. Therefore a strict interpretation must be given to such engagements, so that hostages delivered on one account cannot be detained on any other, nor for any contract, where hostages are not required. But if in another case there has been any violation of good faith, or any debt contracted, hostages may be detained, not as hostages, but in the capacity of subjects, whom the law of nations makes liable to be seized and detained for the acts of their sovereigns. To guard against which, provision may be made by additional clauses for the restoration of hostages, whenever the engagement for which they were delivered has been fulfilled.
LVI. Whoever has been delivered as a hostage for other prisoners, or for the redemption of other hostages, will naturally be released upon the death of those persons. For by death the right of the pledge is extinguished in the same manner as by the ransom of a prisoner. And therefore, according to U1pian, as a personal debt is confined to him, who has contracted it, so one person, being substituted for another, cannot be detained any longer than while the obligation of that other continues.
LVII. The decision, whether hostages can be detained upon the death of the sovereign, by whom they were delivered, must depend upon the nature of the engagements, which he has made. If they are personal, they continue in force only during his natural life, but if they are what are called real or more permanent treaties, they pass with all their consequences to his successors. For accessory articles cannot authorise any deviation from the general rule of interpreting the fundamental and principal points of a treaty, but the accessory articles themselves ought rather to be explained in conformity to those general rules.
LVIII. A cursory observation may be made, that hostages are sometimes considered, not as appendages, but as forming the principal part of an engagement, where any one is bound not for himself, but for another, and, in case of non-performance, being obliged to pay damages, his hostages or sureties are answerable in his stead.—There is not only some thing of harshness, but even injustice in the opinion that hostages may be bound for the conduct of another even without their own consent.
LIX. Pledges have some characteristics in common with hostages, and some peculiar to themselves. It is a common characteristic of both to be detained for something else that is due, except where public faith is given, and provision made to the contrary. Pledges may be detained with greater latitude than hostages; which is one of their peculiar characteristics, there being less of odium in the former case than in the latter: thing being of a nature more proper for detention than persons.
LX. No time can bar the redemption of a pledge, whenever the engagement for which it was given is fulfilled. For it is never to be presumed that engagements proceed from new causes, when old and known causes can be assigned. If a debtor therefore has forborne to redeem a pledge, we may still suppose that he has not abandoned his original engagement, unless there be clear proof to the contrary: as if, for instance, though desirous of redeeming it, he has been prevented, or suffered a space of time to elapse unnoticed, that would be requisite to imply his consent.
On Faith During the Continuance of War, on Truces, Safe-Conducts, and the Redemption of Prisoners.
Truces of an intermediate denomination between peace and war—Origin of the word—New declaration of war not necessary after a truce—Time from whence a truce and all its correspondent obligations and privileges commence—A retreat may be made, or fortifications repaired during a truce—Distinction respecting the occupying of places—The case of a person prevented from making his retreat, and taken in the enemy’s territories at the expiration of a truce, considered—Express terms and consequences of a truce—Breach of a truce by one party justifies a renewal of war by the other—Penalty annexed—Truce broken by the acts of individuals—Rights belonging to safe-conducts without a truce—Persons in a military capacity how far allowed the benefit of a safe-conduct—Privileges of goods arising from thence—Attendants of the person protected by a safe-conduct—Safe-conduct does not expire upon the death of the grantor—Safe-conduct given to continue during the pleasure of the grantor—Protection thereof extending beyond his own territory—Redemption of prisoners favoured, and not to be prohibited by law.
I. and II. In the midst of war there are certain points generally conceded by the belligerent powers to each other, which Tacitus and Virgil call the intercourse of war, and which comprehend truces, safe-conducts, and the redemption of prisoners.—Truces are conventions, by which, even during the continuance of war, hostilities on each side cease for a time. During the continuance of war; for, as Cicero says, in his eighth Philippic, between peace and war there is no medium. By war is meant a state of affairs, which may exist even while its operations are not continued. Therefore, as Gellius has said, a peace and a truce are not the same, for the war still continues, though fighting may cease. So that any agreement, deemed valid in the time of war, will be valid also during a truce, unless it evidently appears that it is not the state of affairs, which is considered, but the commission of particular acts of hostility. On the other hand, any thing, agreed to, to be done, when peace shall be made, cannot take place in consequence of a truce. There is no uniform and invariable period fixed for the continuance of a truce, it may be made for any time, even for twenty, or thirty years, of which there are many instances in ancient history. A truce, though a repose from war, does not amount to a peace, therefore historians are correct in saying that a peace has often been refused, when a truce has been granted.
III. After a truce a new declaration of war is not necessary.
For upon the removal of a temporary impediment, the state of warfare revives in full force, which has only been lulled asleep, but not extinguished. Yet we read in Livy, that it was the opinion of the heralds’ college, that after the expiration of a truce war ought to be declared. But the ancient Romans only meant to shew by those superfluous precautions, how much they loved peace, and upon what just grounds they were dragged into war.
IV. The time, generally assigned for the continuance of a truce, is either some uninterrupted period, of a hundred days, for instance, or a space limited by some artificial boundary of time, as the Calends of March. In the former case, the calculation is to be made according to the natural motion of time: whereas all civil computations depend upon the laws and customs of each country. In the other case it is generally made a matter of doubt, whether in naming any particular day, month or year, for the expiration of a truce, that particular day, month, or year, are comprehended in the term of the truce, or excluded from it.
In natural things there are two kinds of boundaries, one of which forms an inseparable part of the things themselves, as the skin does of the body, and the other only adjoins them, as a river adjoins the land, which it bounds or washes. In either of these ways voluntary boundaries may be appointed. But it seems more natural for a boundary to be taken as a part of the thing itself. Aristotle defines the extremity of anything to be its boundary: a meaning to which general custom conforms:—thus if any one has said that a thing is to be done before the day of his death, the day on which he actually dies is to be taken into the account as forming part of the term. Spurinna had apprised Caesar of his danger, which could not extend beyond the Ides of March. Being accosted, respecting the matter, on the very day, he said, the Ides of March are come, but not passed. Such an interpretation is the more proper where the prolongation of time is of a favourable nature, as it is in truces, which are calculated to suspend the effusion of human blood.
The day, from which any measure of time is said to begin, cannot be taken into the account; because the word, from, used on that occasion, implies separation and not conjunction.
V. It is to be observed that truces, and engagements of that kind immediately bind the contracting parties themselves from the very moment they are concluded. But the subjects on either side are only bound from the time that those engagements have received the form of a law, for which public notice and the regular promulgation are necessary. Upon this being done they immediately derive their authority to bind the subjects. But if notice thereof has only been given in one place, the observance of them cannot be enforced through the whole dominions of the respective sovereigns at one moment, but sufficient time must be allowed for the due promulgation of them to be made in every part. Therefore if in the meantime the subjects on either side have committed an infraction of the truce, they shall be exempt from punishment, but the contracting parties themselves shall be obliged to repair the damages.
VI. The very definition of a truce implies what actions are lawful, and what are unlawful during the continuance of it. All acts of hostility are unlawful either against the persons or goods of an enemy. For every act of violence during a truce is contrary to the law of nations. Even things belonging to an enemy, which by any accident have fallen into our hands, although they had been ours before, must be restored. Because they had become theirs by that external right according to which such things are adjudged. And this is what Paulus the lawyer says, that during the time of a truce the law of postliminium cannot exist, because to constitute the law of postliminium there must be the previous right of making captures in war, which ceases upon the making of a truce.
Either party may go to or return from, any particular place, but without any warlike apparatus or force, that may prove a means of annoyance, or be attended with any danger. This is observed by Servius on that passage of Virgil, where the poet says, “the Latins mingled with their foes with impunity,” where he relates also that upon a truce being made between Porsenna and the Romans during a siege, when the games of the circus were celebrating, the generals of the enemy entered the city, contented in the lists, and were many of them crowned as conquerors.
VII. To withdraw farther into the country with an army, which we find from Livy that Philip did, is no way contrary to the intention and principles of a truce: neither is it any breach of it to repair the walls of a place, or to raise new forces, unless it has been prohibited by special agreement.
VIII. To corrupt an enemy’s garrisons, in order to seize upon the places which he holds, is undoubtedly a breach of the spirit and letter of any truce. For no such advantage can justly be gained but by the laws of war. The same rule is to be laid down respecting the revolt of subjects to an enemy. In the fourth book of Thucydides, Brasidas received the city of Menda, that revolted from the Athenians to the Lacedaemonians during a truce, and excused his conduct upon the plea of the Athenians having done the same.
Either of the belligerent powers may take possession of places that have been deserted: if they have been really deserted by the former owner with the intention never to occupy them again, but not merely because they have been left unguarded, either before, or after, the making of a truce. For the former owner’s right of dominion therein still remaining renders another’s possession of them unjust. Which is a complete refutation of the cavil of Belisarius against the Goths, who seized upon some places during a truce, under pretext of their being left without garrisons.
IX. It is made a subject of inquiry, whether any one being prevented by an unforeseen accident from making his retreat, and being taken within the enemy’s territories, at the expiration of a truce, has a right to return. Considering the external law of nations, he is undoubtedly upon the same footing as one, who, having gone into a foreign country, must, upon the sudden breaking out of war, be detained there as an enemy till the return of peace. Nor is there any thing contrary to strict justice in this; as the goods and persons of enemies are bound for the debt of the state, and may be seized for payment. Nor has such a one more reason to complain than innumerable other innocent persons, on whose heads the calamities of war have fallen. Nor is there occasion to refer to the case, which Cicero has alleged, in his second book On Invention, of a ship of war driven by the violence of the wind into a port, where by law it was liable to confiscation. For in the former case the unforeseen accident must do away all idea of punishment, and in the latter, the right of confiscation must be suspended for a time. Yet there can be no doubt but there is more of generosity and kindness in releasing such a person than in insisting upon the right of detaining him.
X. The express nature of a convention renders some things unlawful during a truce, as for instance, if it is granted only in order to bury the dead, neither party will have a right to depart from those conditions. Thus if a siege is suspended by a truce, and nothing more than such a suspension is thereby granted; the besieged cannot lawfully avail himself of it, to convey fresh supplies of troops and stores into the place. For such conventions ought not to prove beneficial to one party, to the prejudice of the other, who grants them. Sometimes it is stipulated that no one shall be allowed to pass to and fro. Sometimes the prohibition extends to persons and not to goods. In which case, if any one, in protecting his goods, hurts an enemy, the act will not constitute a breach of the truce. For as it is lawful that either party should defend his property, an accidental circumstance cannot be deemed an infringement of that personal security, which was the principal object provided for by the truce.
XI. If the faith of a truce is broken by one of the parties, the other who is thereby injured, will undoubtedly have a right to renew hostilities without any formal declaration. For every article in a treaty contains an implied condition of mutual observance. Indeed we may find in history instances of those, who have adhered to a truce till its expiration, notwithstanding a breach on the other side. But on the other hand there are numerous instances of hostilities commenced against those, who have broken their conventions: a variation, which proves that it is at the option of the injured party to use or not to use his right of renewing war upon the breach of a truce.
XII. It is evident that, if the stipulated penalty is demanded of the aggressor, and paid by him, the other party can no longer maintain his right of renewing the war. For the payment of the penalty restores every thing to its original footing. And on the other hand, a renewal of hostilities implies an intention of the injured party to abandon the penalty, since he has had his option.
XIII. A truce is not broken by the acts of individuals, unless they are sanctioned by the authority of the sovereign, which is generally supposed to be given, where the delinquents are neither punished nor delivered up, nor restitution is made of goods taken away.
XIV. The rights belonging to a safe-conduct are a privilege distinct from the nature of a truce, and our interpretation of them must be guided by the rules laid down respecting privileges.
Such a privilege, to be perfect, must be neither injurious to a third person, nor prejudicial to the giver. Therefore in explaining the terms, in which it is couched, a greater latitude of interpretation may be allowed, especially where the party suing for it receives no benefit, but rather confers one, and still more so where the advantage, accruing to the individual from thence, redounds also to the public benefit of the state.
Therefore the literal interpretation, which the words may bear, ought to be rejected, unless otherwise some absurdity would follow, or there is every reason to suppose that such a literal interpretation is most conformable to the will and intention of the parties concerned. In the same manner, on the other hand, a greater latitude of interpretation may be allowed, in order to avoid the same apprehended absurdity, or to comply more fully with the most urgent and forcible conjectures respecting the will of the contracting parties.
XV. Hence we may infer that a safe-conduct, granted to soldiers, includes not only those of an intermediate rank, but the highest commanders. For that is a signification strictly and properly authorised by the words themselves, although they may be taken in a more limited meaning. So the term clergymen includes those of episcopal as well as those of inferior rank, and by those serving on board a fleet, we mean not only sailors, but all persons found there, who have taken the military oath.
XVI. Where a free passage is granted, liberty to return is evidently implied, not from the literal force of the expressions themselves, but to avoid the absurdity which would follow the grant of a privilege, that could never be made use of. And by the liberty of coming and going is meant a safe passage till the person arrives in a place of perfect security. From hence the good faith of Alexander was impeached, who ordered those to be murdered on the way, whom he had allowed to depart.
Any one may be allowed to go away without being allowed to return. But no power can properly refuse admitting any one, to whom he has granted leave to come, and on the other hand, his admission implies such a leave to have been given. Going away and returning are indeed very different, nor can any construction of language give them the same meaning. If there be any mistake, although it may confer no right, it exempts the party from all penalties.—A person permitted to come shall only come once, but not a second time, unless the additional mention of some time may supply room to think otherwise.
XVII. A son shares the fate of his father, and a wife of her husband no farther than as to the right of residing, for men reside with their families, but in general undertake public missions without them. Yet one or two servants, though not expressly named, are generally understood to be included in a safe-conduct, especially where it would be improper for the person to go without such attendants. For every necessary consequence is understood to go along with any privilege that is given.
XVIII. In the same manner no other effects are included in a safe-conduct, but such as are usually taken on a journey.
XIX. The name of attendants, expressed in a safe-conduct, granted to any one, will not allow him to extend the protection of it to men of atrocious and criminal characters, such as pirates, robbers, and deserters. And the country of the attendants being named shews that the protection cannot extend to those of another nation.
XX. The privileges of a safe-conduct do not, in doubtful cases, expire upon the demise of the sovereign who granted it, according to what was said in a former part of this treatise on the nature of favours granted by kings and sovereign princes.
XXI. It has often been a disputed point, what is meant by the expression used in a safe-conduct, that it shall continue during the pleasure of the grantor. But there seems most reason and truth in the opinion of those, who maintain that the privilege shall continue, till the grantor make some new declaration of his will to the contrary. Because, in doubtful cases, a favour is presumed to continue, till the right, which it conveys, is accomplished. But not so, where all possibility of will in the grantor has ceased, which happens by his death. For upon the death of the person all presumption of his will continuing must cease: as an accident vanishes when the substance is destroyed.
XXII. The privilege of a safe-conduct protects the person, to whom it is given, even beyond the territories of the grantor: because it is given as a protection against the rights of war, which are not confined to his territory.
XXIII. The redemption of prisoners is much favoured, particularly among Christian states, to whom the divine law peculiarly recommends it as a kind of mercy. Lactantius calls the redemption of prisoners a great and splendid office of justice.
On the Faith on Those Invested with Subordinate Powers in War.
Commanders—Extent of their engagements in binding the sovereign—Exceeding their commission—The opposite party bound by such engagements—Power of commanders in war, or of magistrates with respect to those under their authority—Generals cannot make peace, but may conclude a truce—Extent of their authority in granting protection to persons and property—Such engagements to be strictly interpreted—Interpretation of capitulations accepted by generals—Precautions necessary till the pleasure of the sovereign be known—Promise to surrender a town.
I. Ulpian reckons the agreements, entered into between the generals of opposite armies during the course of a war, among public conventions. So that after explaining the nature of the faith pledged by sovereign powers to each other, it will be proper to make a short inquiry into the nature of engagements made by subordinate authorities; whether those authorities bear a near approach to supreme power, as commanders in chief, or are removed to a greater distance from it. Caesar makes the following distinction between them, observing that the offices of commander and deputy are very different; the latter being obliged to act according to prescribed rules, and the former having unqualified discretion in matters of the highest importance.
II. The engagements of those invested with such subordinate powers are to be considered in a double point of view, whether they are binding upon the sovereign, or only upon themselves. The former of these points has been already settled in a former part of this treatise, where it was shewn that a person is bound by the measures of an agent, whom he has appointed to act in his name, whether his intentions have been expressly named, or are only to be gathered from the nature of the employment. For whoever gives another a commission, gives him along with it every thing in his power that is necessary to the execution of it. So that there are two ways, in which persons acting with subordinate powers may bind their principals by their conduct, and that is, by doing what is probably thought to be contained in their commission, or apart from that, by acting according to special instructions, generally known, at least to those, with whom they treat.
III. There are other modes too, in which a sovereign may be bound by the previous act of his minister; but not in such a manner as to suppose the obligation owes its existence to that action, which only gives occasion to its fulfillment. And there are two ways, in which this may happen, either by the consent of the sovereign, or by the very nature of the thing itself. His consent appears by his ratification of the act, either expressed or implied, and that is, where a sovereign has known and suffered a thing to be done, which can be accounted for upon no other motive but that of approval and consent.
The very nature and obligation of all contracts imply that one party is not to gain advantage by the loss of another. Or if advantage is expected from a contract, the contract must be fulfilled or the advantage abandoned. And in this sense, and no other, the proverbial expression, that whatever is beneficial is valid, is to be understood.
On the other hand a charge of injustice may fairly be brought against those, who condemn an engagement, yet retain the advantages, which they could not have had without it.
IV. It is necessary to repeat an observation made before, that a sovereign, who has given a commission to another, is bound by the conduct of that person, even though he may have acted contrary to his secret instructions, provided he has not gone beyond the limits of his ostensible, and public commission.
This was a principle of equity, which the Roman Praetor observed in actions brought against employers for the conduct of their agents or factors. An employer could not be made answerable for any act or measure of his factor, but such as was immediately connected with the business, in which he employed him. Nor could he be considered as an appointed agent, with whom the public were apprized, by due notice, to make no contract—If such notice was given, without having come to the knowledge of the contracting parties, the employer was bound by the conduct of the agent. If any one chuses to make a contract on certain conditions, or through the intervention of a third person, it is right and necessary for that person to observe the particular conditions on which he is employed.
From hence it follows that kings and nations are more or less bound by the conventions of their commanders in proportion as their laws, conditions, and customs, are more or less known. If the meaning of their intentions is not evident, conjecture may supply the place of evidence, as it is natural to suppose that any one employed would be invested with full powers sufficient to execute his commission.
A person acting in a subordinate capacity, if he has exceeded the powers of his commission will be bound to make reparation, if he cannot fulfil his engagement, unless he is prevented from doing so by some well known law.
But if he has been guilty of treachery also, in pretending to greater powers than he really possessed, he will be bound to repair the injury, which he has wilfully done, and to suffer punishment corresponding with his offence. For the first of these offences, his property is answerable, and on failure of that, his personal liberty: and in the latter case, his person or property, or both must be answerable according to the magnitude of the crime.
V. As a sovereign or his minister is always bound by every contract, it is certain the other party will also be bound by the engagement: nor can it be deemed imperfect. For in this respect there is a comparative equality between sovereign and subordinate powers.
VI. It is necessary to consider too what are the powers of subordinate authorities over those beneath them. Nor is there any doubt that a general may bind the army, and a magistrate, the inhabitants of a place by those actions, which are usually done by commanders, or magistrates, otherwise their consent would be necessary.
On the other hand, in engagements purely beneficial, the advantage shall be on the side of the inferior: for that is a condition comprehended in the very nature of power.—Where there is any burdensome condition annexed it shall not extend beyond the usual limits in which authority is exercised; or if it does, it shall be at the option of the inferior to accept or refuse that condition.
VII. As to the causes and consequences of a war, it is not with in the province of a general to decide them. For concluding and conducting a war are very different things, and rest upon distinct kinds of authority.
VIII. and IX. As to granting truces, it is a power which belongs not only to commanders in chief, but also to inferior commanders. And they may grant them for themselves, and the forces immediately under their command, to places which they are besieging or blockading: but they do not thereby bind other parts of the army. Generals have no right to cede nations, dominions, or any kind of conquests made in war. They may relinquish any thing of which a complete conquest has not been made: for towns frequently surrender on condition of the inhabitants being spared, and allowed to retain their liberty and property: cases, in which there is no time for consulting the will and pleasure of the sovereign. In the same manner, and upon the same principle this right is allowed to subordinate commanders, if it falls within the nature of their commission.
X. As commanders, in all such engagements, are acting in the name of others, their resolutions must not be interpreted so strictly as to bind their sovereigns to greater obligations than they intended to incur, nor at the same time to prove prejudicial to the commanders themselves for having done their duty.
XI. An absolute surrender implies that the party so capitulating submits to the pleasure and discretion of the conqueror.
XII. In ancient conventions a precaution was usually added, that they would be ratified, if approved of by the Roman people. So that if no ratification ensued, the general was bound no further than to be answerable for any advantage that might have accrued to himself.
XIII. Commanders having promised to surrender a town, may dismiss the garrison.
On Tacit Faith.
Tacit faith—Example of in desiring to be taken under the protection of a king or nation—Implied in the demand or grant of a conference—Allowable for the party seeking it to promote his own interest thereby provided he uses no treachery—Meaning of mute signs allowed by custom.
I. Both public, private, and mixed, conventions admit of tacit consent, which is allowed by custom. For in whatever manner consent is indicated and accepted it has the power of conveying a right. And, as it has been frequently observed in the course of this treatise, there are other signs of consent besides words and letters: some of them indeed naturally rising out of the action itself.
II. An example of such tacit agreement may be found in the case of a person coming from an enemy, or foreign country, and surrendering himself to the good faith of another king or people. For such a one tacitly binds himself to do nothing injurious or treacherous to that state, where he seeks protection, a point which is beyond all doubt.
III. In the same manner, a person who grants or requests a conference, gives a tacit promise, that he will do nothing prejudicial to the parties, who attend it. Livy pronounces an injury done to an enemy, under the pretext of holding a conference, a violation of the law of nations.
IV. But such a tacit promise, to take no advantage of a parley or conference, is not to be carried farther than what has been said. Provided all injury and injustice are avoided, it is reckoned a lawful stratagem, for any one to avail himself of a parley in order to draw off the enemy’s attention from his military projects, and to promote his own. The device, by which Asdrubal extricated his army from the Ausetanian forest, was of this kind, and by the same means Scipio Africanus, the elder, gained a perfect knowledge of Syphax’s camp. Both these circumstances are related by Livy.
V. There are certain mute signs, deriving all their force and meaning from custom; such as the fillets, and branches of olive formerly used: among the Macedonians pikes erected, and among the Romans shields placed upon the head, were signs of a suppliant surrender obliging the party to lay down his arms. In the present day a white flag is a sign of suing for a parley. Therefore all these methods have the force of express declarations.
Admonitions to the observance of good faith—Peace always to be kept in view in the midst of war—Peace beneficial to the conquered—To the conqueror—And to be chosen in cases where the issue is doubtful—To be religiously observed—Prayer—Conclusion of the work.
I. Here seems to be the proper place to bring this work to a conclusion, without in the least presuming that every thing has been said, which might be said on the subject: but sufficient has been produced to lay a foundation, on which another, if he pleases, may raise a more noble and extensive edifice, an addition and improvement that will provoke no jealously, but rather be entitled to thanks.
Before entirely dismissing the subject, it may be necessary to observe, that, as in laying down the true motives and causes, that alone will justify war, every possible precaution at the same time was taken to state the reasons for which it should be avoided; so now a few admonitions will not be deemed superfluous, in order to point out the means of preserving good faith in war, and maintaining peace, after war is brought to a termination, and among other reasons for preserving good faith the desire of keeping alive the hope of peace, even in the midst of war, is not the least important. For good faith, in the language of Cicero, is not only the principal hold by which all governments are bound together, but is the key-stone by which the larger society of nations is united. Destroy this, says Aristotle, and you destroy the intercourse of mankind.
In every other branch of justice there is something of obscurity, but the bond of faith is clear in itself, and is used indeed to do away the obscurity of all transactions. The observance of this is a matter of conscience with all lawful kings and sovereign princes, and is the basis of that reputation by which the honour and dignity of their crowns are maintained with foreign nations.
II. In the very heat of war the greatest security and expectation of divine support must be in the unabated desire, and invariable prospect of peace, as the only end for which hostilities can be lawfully begun. So that in the prosecution of war we must never carry the rage of it so far, as to unlearn the nature and dispositions of men.
III. These and these alone would be sufficient motives for the termination of war, and the cultivation of peace. But apart from all considerations of humanity, the interests of mankind would inevitably lead us to the same point. In the first place it is dangerous to prolong a contest with a more powerful enemy. In such a case some sacrifices should be made for the sake of peace, as in a storm goods are sometimes thrown overboard to prevent a greater calamity, and to save the vessel and the crew.
IV. Even for the stronger party, when flushed with victory, peace is a safer expedient, than the most extensive successes. For there is the boldness of despair to be apprehended from a vanquished enemy, dangerous as the bite of a ferocious animal in the pangs of death.
V. If indeed both parties are upon an equal footing, it is the opinion of Caesar, that it is the most favourable moment for making peace, when each party has confidence in itself.
VI. On whatever terms peace is made, it must be absolutely kept. From the sacredness of the faith pledged in the engagement, and every thing must be cautiously avoided, not only savouring of treachery, but that may tend to awaken and inflame animosity. For what Cicero has said of private friendships may with equal propriety be applied to public engagements of this kind, which are all to be religiously and faithfully observed, especially where war and enmity have ended in peace and reconciliation.
VII. And may God, to whom alone it belongs to dispose the affections and desires of sovereign princes and kings, inscribe these principles upon their hearts and minds, that they may always remember that the noblest office, in which man can be engaged, is the government of men, who are the principal objects of the divine care.
[*]Thus when a ship makes an appearance of mounting more guns than she really carries, in order to deter an enemy from attacking her, this may be considered as one of those negative stratagems, or stratagems of dissimulation, to which our author alludes.
[*]Besides the NECESSARY law of nations, which is EQUALLY, and at ALL TIMES binding upon ALL states, there is a POSITIVE law of nations,—consisting of THE VOLUNTARY, THE CONVENTIONAL and THE CUSTOMARY law. All of which “proceed from the will of nations,—the VOLUNTARY from their presumed consent, the CONVENTIONAL from an express consent, and the CUSTOMARY from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of POSITIVE LAW OF NATIONS.”—Vattel, Prelim. Sect. 27.
[*]See b. ii. ch. xxi. sect. 2. of this treatise
[ߤ]See. b. ii. ch. xxiii. sect. 7. ibid.
[*]But such captures cannot be made without authority from the sovereign.
[*]The translation proceeds from the XV. to the XXIII. Section of the original, the intermediate Sections being only a confirmation of the preceding arguments by examples from ancient history.—TRANSLATOR.
[*]Our author here speaks of things taken in battle. For upon the surrender of towns, in almost all articles of capitulation it is stipulated, that the General and other superior officers, and the officers of regiments shall preserve their swords and their private baggage, and the noncommissioned officers and soldiers shall preserve their knapsacks.
[*]“The end of such a law is to animate soldiers and privateers to pursue robbers and pirates, by the hopes of possessing things taken even from the subjects of the state.”—Barbeyrac.
[*]The tenth Chapter chiefly containing remarks that have been interspersed in other parts of the work, is omitted here.—TRANSLATOR.
[*]See b. ii. chap. ii. sect. 9.
[*]See b. iii ch. ii. of this work.
[*]The translation proceeds from the XIII. to the XV. Chapter of the original.—TRANSLATOR.
[*]B. ii. ch. xv. sect. 7.
[*]“The difficulty of recognising things of this nature, and the endless disputes, which would arise from the prosecution of the owner’s claims to them, have been deemed motives of sufficient weight for the establishment of a contrary practice. It is therefore with reason, that moveable or booty are excepted from the right of postiliminium, unless retaken from the enemy immediately after his capture of them; in which case the proprietor neither finds a difficulty in recognising his effects, nor is presumed to have relinquished them.”—Vattel b. iii. ch. xiv.sect.209.
[*]B. ii. ch. x. sect. 9.
[*]The translation proceeds from the xviith to the xixth chapter of the original.—TRANSLATOR.
[*]Sections VI, VII, VIII, IX and X of the original are omitted in the translation. (Translator.)
[*]B. ii. ch. viii. sect. 2.
[*]“The necessity of making peace authorizes the Sovereign to dispose of the property of individuals; and the eminent domination gives him a right to do it. Every thing in the political society ought to tend to the good of the community; and since even the powers of the citizens are subject to this rule, their property cannot be excepted. The state could not subsist, or constantly administer the public affairs in the most advantageous manner, if it had not a power to dispose occasionally of all kinds of property.”—Vattel, b. iv. ch. ii. sect. 12 ibid, b. i. ch. xx. sect. 244.
[*]“Some damages are done deliberately and by way of precaution, as when a field, a house or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a tower, rampart, or any other piece of fortification,— or when his standing corn, or his storehouses are destroyed, to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bear only his quota of the loss. But there are other damages, caused by inevitable necessity, as for instance, thedestruction caused by the artillery in retaking a town from the enemy. These are merely accidents, they are misfortunes, which chance deals out to the proprietors on whom they happen to fall. The sovereign ought indeed to shew an equitable regard for the sufferers, if the situation of his affairs will admit of it: but no action lies against the state for misfortunes of this nature,—for losses, which she has occasioned, not willfully, but through necessity and mere accident, in the exertion of her rights. The same may be said ofdamages caused by the enemy.” Vat. B. iii. Ch.xv. sect. 232.
[*]See b. i i ch. xv. sect. 12.
[*]“Because then the condition of the contracting parties being unequal, there is great reason to believe, that he, to whose disadvantage the inequality is, has pretended to engage himself as little as possible: and it was the other’s business who was to have the benefit of it, to have the thing explained in as clear a manner as possible.”—Barbeyrac.
[*]Sections XLII, XLIII, XLIV, & XLV, of the original, relating to decisions by lot and single combat, are omitted in the translation.—TRANSLATOR.
[*]The XXIII Chapter of the Original, on Private Faith in War, is omitted in the translation.—TRANSLATOR.