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 be thought 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 the manner 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.
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 authorise 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 levelled 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 formerly 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 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 no 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 sepulchres of an enemy: for the stones, taken from thence, may be applied to any other purpose. But this right does not authorise 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.
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 authorises 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 authorises 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 nations have 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 these rules 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.62
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.63 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 hazards, 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.64
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.
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 abandoning 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.
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 commonwealth, 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 chuses 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 Quintilian 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.
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 incorporeal, 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 controul 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 postliminium: 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 from 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.65 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.