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Of War considered as between Enemies.
T T may be said that a state of war ought rather to exist among princes for whose interest alone in most cases it is carried on, than among their subjects, who, unless the war is made for their own quarrel, are not actuated by so hostile a spirit. Yet when hostilities are to be waged against another nation, no one can expect that we shall compliment our enemies and wish them well. The grave majesty of the Roman people displayed itself in the conduct of Caius Popilius, who, although he was saluted by king Antiochus, then his enemy, refused to return the salutation while the war continued. So we are told by Plutarch, Apophthegm, p. m. 364.: Livy, b. 45. c. 12., and Polyb. Excerp. Legat. c. 92., relate likewise, that Antiochus offered his hand to Popilius, who refused to take it.
The Roman consuls however, in their letter to king Pyrrhus, with whom they were at war, as related by Gellius, b. 3. c. 8., wished him health. This perhaps was necessitated by the state of Roman affairs at that time, but so addicted to flatteiy has the last century been, as well as the present, princes omit none of the usual adulatory forms even in the. midst of war. Hence enemies now wish to each other every kind of prosperity, call each other friends, and are almost sorry for their mutual losses. This is exemplified in the letters of the states-general to the king of England, of the 10th of July,* 16th September,: and 26th of November, 1666; and again in the letters of the king of England to the statesgeneral of the 4th of August,\ and 4th of October 1666. Although the two nations were at that time at open war, and bent upon mutual injury, yet the states-general write in their said letter of the 10th of July 1666, que les offices de civilite ne
* Aitz. b-46. t Aitz- Urid. tAitz. ibid.
sont pas incompatibles' avec les devoirs de la guerre,—that an interchange of civilities is not incompatible with the duties of war. And the king of France, in the year 1666, who was then at war with the king of England, sent an ambassador to condole with him on the conflagration of the city of London. It is certainly noble to practise the duties of humanity, clemency, piety and other magnanimous virtues in the midst of war; but I think it disgusting to trifle with mere words, for what else is it than trifling when you express sorrow for the conflagration of a city to which you would wish to set fire yourself?
As the conqueror may lawfully do any thing that he pleases with the vanquished, no one can doubt his having on that account over him the power of life and death. There are so many instances on record of the exercise of this right amongst all nations in ancient times, that a large book would not be sufficient to contain an account of them all; and the publicists have already exercised their industry upon this subject. But although the right of killing has almost become obsolete, yet it is to be attributed merely to the will and to the clemency of the victor; nor can it be denied but that it might be exercised even at this time, if one should chuse to avail himself of his right. That there still exist some remains of this right is in full proof; for in this sense alone is to be taken and on this ground alone is to be defended the edict of the statesgeneral of the 1st of October 1589, which inflicted the penalty of death on those who should be found with the traitors of Gertruydenberg; and also their other edict of the 24th February 1696, by which they inflicted the same penalty on those enemies who should approach the shore nearer than the buoys, or should land on the coast for the sake of plundering.
One who is in company with. his fellow soldiers is not guilty of any crime by the laws of war, though they be traitors, nor is he who invades a hostile shore in hopes of making booty. Drive him away if you can, but if you cannot, why will you treat him differently from other enemies? It is on the ground of the same right of life and death that I defend the conduct of the Dutch,* who sometimes hanged the * Aitz.b. 6,
Spaniards because they were not ransomed, for so it is related to us. It is lawful to hang prisoners; but if it were not lawful, there is no reason or authority for doing it because they are not ransomed, but the contrary is practised, as will be sten hereafter.
To the right of killing our enemies has succeeded that of making them slaves, which was formerly exercised during many ages. But this custom of making slaves of prisoners has now fallen into disuse among most nations, in consequence of the improvement of their manners. Cujacius, indeed has said, Comment, post, ad 1. 5.ff. de Just, et Jnr., that even among Christians, prisoners were still made slaves of; but that their servitude was milder than formerly. He however does not prove his position otherwise than by the right of redeeming. But why should the custom of redeeming prisoners and their detention until they are redeemed be considered as a species of servitude, any more than fo^ instance the imprisonment offoreign* debtors, until they pay what they owe to us? For in • those cases such debtors are never discharged, unless they pay the money due, or give security for it, precisely as in the case of prisoners of war. Nay, prisoners of war, if they are not redeemed, are very often released, even without a ransom. Thus the supreme military council of the United Provinces on the "14th of December 1602, permitted the release of twenty-four prisoners, taken at the siege of Boisleduc, because they were not redeemed, and lest those unfortunate wretches should perishrby the miseries of a gaol. It would have been very unexpected indeed, and quite contrary to the manners which now prevail, if the council had ordered those prisoners to be either hanged or made slaves of. Hence, when the rhingrave of Solms,] who served in the British army in Ireland in the year 1690, had ordered prisoners to be transported to America, there to be made slaves, the
• In Holland, foreigners alone and transient persons, who have no domicile in the country, are imprisoned for debt. T. f AiU. b. 30.
duke of Berwick* gave him notice, that if this should be done, all the prisoners that he should make would be sent to the galleys in France. But as slavery itself has fallen entirely into disuse among christians, we do not inflict it upon our prisoners. We may however, if we please, and indeed we do sometimes still exercise that right upon those who enforce it against us. Therefore the Dutch are in the habit, of selling to the Spaniards as slaves, the Algerines, Tunisians and Tripolitans, whom they take prisoners in the Atlantic or in the Mediterranean; for the Dutch themselves have no slaves, except in Asia, Africa and America. Nay, in the year 1661, the states-general gave orders to their admiral to sell as slaves all the pirates that he should take. The same thing was done in the year 1664.f
To the slavery of prisoners succeeded the custom of exchanging them according to their respective grades and ranks, and detaining them until redeemed.! And the necessity of redeeming them is sometimes expressed in treaties, with a specified sum, according to the dignity of each person that may be taken, which sum being paid, there is an end of that summum jus which belongs to the victors over their prisoners. Among the Romans the right of capture was exercised upon those who at the; breaking out of the war were found in each other'js territory, 1. 12. ff. de Capt. et. Postlim. Revers.; but in modern times it rarely takes place, although the right still exists. Nay, Louis XIV. himself, king of France, when on the 26th of January 1666, he had declared war against England by sea and land, and interdicted all commerce between
• The duke of Bemick, a natural son of James II. of England, commanded at that time the French army in Ireland. He was afterwards commander in chief of the French forces in Spain, during the succession war, while the British troops were commanded by the earl of Galisiay, a Frenchman. . , . T.
t Aitz- b- *t 44
\ We are informed by the public papers that by a late cartel which has been settled between the British and French, sixteen French prisoners are. to be given for every nine British, until the whole are regularly exchanged; it having been ascertained that the number of French prisoners in England exceeds that of the English in France in that proportion. T.
the two nations, in consequence of which the English wh» were in France were in fears for their persons and property, issued on the 1st of February 1666, another edict, telling them that their fears were vain; for that by the edict of the 26th of January 1666, he had merely declared war against those of the English who should be found thereafter on the high seas, or who should commit hostilities on the French territory, but not against those'private individuals who had established their domicil in France; that however, it was his pleasure that English subjects residing in France, and who were not naturalized, should depart within three months, and go whithersoever they should please.
But that this is to be attributed solely to humanity, if there exist no treaties suspending the state of war, I have endeavoured to shew in. the preceding chapter.* Because, however, there are many such treaties, the laws of war are seldom exercised upon thosc,who have come in time of peace to a country where war afterwards has arisen, and have been found there at the time of the war's taking place. But after the expiration of. the time which has been granted to them either by humanity or by treaty, those who remain in the country, or come into it without permission, may lawfully be arrested. On this principle, the states-general on the 4th of April 1674 issued an edict, that if any enemies should tarry within the United Provinces or the dominions of the statesgeneral, without having obtained liberty to come, they should be arrested, and not be restored until redeemed. .
But although the right of killing prisoners hds fallen into disuse, it is made a question, however, whether it may not be, without the least imputation, exercised upon those who defend themselves too obstinately; and there are some who maintain the affirmative. But I think it would be a shameful action, unless the weak and defenceless girl, who obstinately
* On this principle, probably, the first consul of France arrested and de'tained, without any previous notice, all the British subjects who were found in France at the commencement of the present war. The principle may be correct; but if it is, it must be acknowledged that the tummumjus of war is very near akin to barbarism. T.