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 calamities 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, overpowered 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 wilful 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 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 practised, where there were any enormous acts of injustice, or any violation of faith; it was practised 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 any one 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.
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:67 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 authorising 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.
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 before68 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.
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 before70 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.
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 through 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.71
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 before72 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 expences, 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 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.
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 violation of treaties, both by injuring the allies of the Roman people, and assisting the enemy with supplies of men and money.
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 promises 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.74 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 conducive 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 he 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 person may 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 fulfil 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,75 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 any thing 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, though 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 hostility, 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.
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 therein—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 fulfilment 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 maxim, 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 form 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 benefit 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 state 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 judgment on proper occasions for the benefit of his people.
The case 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 state, as where he has entirely subjugated a people, or where his controul 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 in addition 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.76
The property of subjects is so far under the eminent controul of the state, that the state or 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 expence, 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.77
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.78
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 change. 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 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 so possessed, when inclosed 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 seize, 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 controul 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, whereby 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 favourable 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.79
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 held under a beneficial title, than those which are loaded with incumbrances, as things held by money payments, or by dower.