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CHAP. VIII.

still more odious than in assassination: it would be more BOOK III. difficult to guard against the consequences of such an attempt; and the practice would be more dreadful; accordingly, it has been more generally detested. Of this Grotius has accumulated many instances.* The consuls Caius Fabricius and Quintus Æmilius rejected with horror the proposal of Pyrrhus's physician, who made an offer of poisoning his master; they even cautioned that prince to be on his guard against the traitor,-haughtily adding: "It is not to ingratiate ourselves with you that we give this information, but to avoid the obloquy to which your death would expose us."t And they justly observe, in the same letter, that it is for the common interest of all nations not to set such examples.‡ It was a maxim of the Roman Senate, that war was to be carried on with arms, and not with poison.§ Even under Tiberius, the proposal of the prince of the Catti was rejected, who offered to destroy Arminius, if poison were sent him for that purpose: and he received for answer, that "it was the practice of the Romans to take vengeance on their enemies by open force, and not by treachery and secret machinations ;"|| Tiberius thus making it his glory to imitate the virtue of the ancient Roman commanders. This instance is the more remarkable, as Arminius had treacherously cut off Varus, together with three Roman legions. The senate, and even Tiberius himself, thought it unlawful to adopt the use of poison, even against a perfidious enemy, and as a kind of retaliation or reprisals.

Assassination and poisoning are therefore contrary to the laws of war, and equally condemned by the law of nature and the consent of all civilized nations. The sovereign who [ 361 has recourse to such execrable means should be regarded as the enemy of the human race; and the common safety of mankind calls on all nations to unite against him, and join their forces to punish him. His conduct particularly authorizes the enemy, whom he has attacked by such odious. means, to refuse him any quarter. Alexander declared, that "he was determined to proceed to the utmost extremities against Darius, and no longer to consider him as a fair enemy, but as a poisoner and an assassin."¶

The interest and safety of men in high command require, that, so far from countenancing the introduction of such prac

Book iii. chap. iv. xv.

† Ο δε γαρ ταύτα σῃ χαριτι μηνυομεν, αλλ' όπως μη το σον παθος ήμιν διαβολην EVEуKŋ. Plut. in Pyrr.

Sed communis exempli et fidei ergo visum est, uti te salvum velimus; ut esset, quem armis vincere possemus. -Aul. Gell. Noct. Attic. lib. iii. cap. viii.

Armis bella, non venenis, geri debere.-Valer. Maxim. lib. vi. ch. v. num. i.

Non fraude, neque occultis, sed palam, et armatum,-populum Romanum hostes suos ulcisci.-Tacit. Annal. lib. ii. cap. lxxxviii.

xviii.

Quint. Curt. lib. iv. cap. xi. num.

BOOK III. tices, they should use all possible care to prevent it. It was CHAP. VIII. wisely said by Eumenes, that "he did not think any general wished to obtain a victory in such manner as should set a pernicious example which might recoil on himself."* And it was on the same principle that Alexander formed his judgment of Bessus, who had assassinated Darius.†

may be used

in war.

156. Whe- The use of poisoned weapons may be excused or defended ther poison- with a little more plausibility. At least, there is no treachery ed weapons in the case, no clandestine machination. But the practice is nevertheless prohibited by the law of nature, which does not allow us to multiply the evils of war beyond all bounds. You must of course strike your enemy in order to get the better of his efforts: but if he is once disabled, is it necessary that he should inevitably die of his wounds? Besides, if you poison your weapons, the enemy will follow your example; and thus, without gaining any advantage on your side for the decision of the contest, you have only added to the cruelty and calamities of war. It is necessity alone that can at all justify nations in making war: they ought universally to abstain from every thing that has a tendency to render it more destructive: it is even a duty incumbent on them to oppose such practices. It is therefore with good reason, and in conformity to their duty, that civilized nations have classed among the laws of war the maxim which prohibits the poisoning of weapons; and they are all warranted by their common safety to repress and punish the first who should offer to break through that law.

2157. Whe

may be

poisoned.

A still more general unanimity prevails in condemning the ther springs practice of poisoning waters, wells, and springs, because (say some authors) we may thereby destroy innocent persons,we may destroy other people as well as our enemies. This is indeed an additional reason: but it is not the only nor even [362] the true one; for we do not scruple to fire on an enemy's ship, although there be neutral passengers on board. But though poison is not to be used, it is very allowable to divert the water, to cut off the springs, or by any other means to render them useless, that the enemy may be reduced to surrender. This is a milder way than that of arms. (163) I cannot conclude this subject, of what we have a right to positions to do against the person of the enemy, without speaking a few

? 158. Dis

*Nec Antigonum, nec quemquam ducum, sic velle vincere, ut ipse in se exemplum pessimum statuat.-Justin. lib. xiv. cap. i. num. xii.

† Quem quidem [Bessum] cruci ad-
fixum videre festino, omnibus regibus
gentibusque fidei, quam violavit, me-
ritas poenas solventum.-Q. Curt. lib.
vi. ch. iii. num. xiv.

Grotius, book iii. ch. iv. 2 xvi.
Grotius, ibid. xvii.

(163) But, in modern warfare, whatever may be the necessary practice in starving the besieged fortress into a surrender, we have instanced the English supplying the French army with medicine, to prevent the progress of a destructive disorder, although, if a petty policy were allowed to prevail, such an indulgence of humane feeling might appear injudicious (ante).-C.

towards an

enemy.

words concerning the dispositions we ought to preserve to- BOOK III. wards him. They may already be deduced from what I have CHAP. VIII. hitherto said, and especially in the first chapter of the second be preserved book. Let us never forget that our enemies are men. Though reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest ourselves of that charity which connects us with all mankind. Thus shall we courageously defend our country's rights without violating those of human nature.* Let our valour preserve itself from every stain of cruelty, and the lustre of victory will not be tarnished by inhuman and brutal actions. Marius and Attila are now detested; whereas we cannot forbear admiring and loving Cæsar; his generosity and clemency almost tempt us to overlook the injustice of his undertaking. Moderation and generosity redound more to the glory of a victor than his courage; they are more certain marks of an exalted soul. Besides the honour which infallibly accompanies those virtues, humanity towards an enemy has been often attended with immediate and real advantages. Leopold, duke of Austria, besieging Soleure, in the year 1318, threw a bridge over the Aar, and posted on it a large body of troops. Soon after, the river having, by an extraordinary swell of its waters, carried away the bridge together with those who were stationed on it, the besieged hastened to the relief of those unfortunate men, and saved the greatest part of them. Leopold, relenting at this act of generosity, raised the siege and made peace with the city. The duke of Cumberland, after his victory at Dettingen, appears to me still greater than in the heat of battle. As he was under the surgeon's hands, a French [ 363 ] officer, much more dangerously wounded than himself, being brought that way, the duke immediately ordered his surgeon to quit him, and assist that wounded enemy. If men in exalted stations did but conceive how great a degree of affection and respect attends such actions, they would study to

The laws of justice and equity are not to be less respected even in time of war. The following I quote as a remarkable instance :-Alcibiades, at the head of an Athenian army, was engaged in the siege of Byzantium, then occupied by a Lacedæmonian garrison; and finding that he could not reduce the city by force, he gained over some of the inhabitants, who put him in possession of it. One of the persons concerned in this transaction was Anaxilaus, a citizen of Byzantium, who, being afterwards brought to trial for it at Lacedæmon, pleaded in his defence, that, in surrendering the city, he had not acted through ill-will to the Lacedæmonians, or under the influence

of a bribe, but with a view to save the
women and children, whom he saw
perishing with famine; for Clearchus,
who commanded the garrison, had given
to the soldiers all the corn that was
found in the city. The Lacedæmoni-
ans, with a noble regard to justice, and
such as seldom prevails on similar oc-
casions, acquitted the culprit, observing
that he had not betrayed, but saved
the city, and particularly attending to
the circumstance of his being
Byzantine, not a Lacedæmonian.-
Xenoph. Hist. Græc. lib. i. cap. iii.-
Edit. A. D. 1797.

Watteville's Hist. of the Helvetic
Confederacy, vol. i. p. 126.
In the year 1743.

BOOK I. imitate them, even when not prompted to the practice by CHAP. VIII. native elevation of sentiment. At present, the European

159. Tenderness for

of a king

who is in

us.

nations generally carry on their wars with great moderation and generosity. These dispositions have given rise to several customs which are highly commendable, and frequently carried to the extreme of politeness.* Sometimes refreshments. are sent to the governor of a besieged town; and it is usual to avoid firing on the king's or the general's quarters. We are sure to gain by this moderation, when we have to do with a generous enemy: but we are not bound to observe it any further than can be done without injuring the cause we defend; and it is clear that a prudent general will, in this respect, regulate his conduct by the circumstances of the case, by an attention to the safety of the army and of the state, by the magnitude of the danger, and by the character and behaviour of the enemy. Should a weak nation or town be attacked by a furious conqueror who threatens to destroy it, are the defenders to forbear firing on his quarters? Far from it that is the very place to which, if possible, every shot should be directed.

Formerly, he who killed the king or general of the enemy was commended and greatly rewarded: the honours annexed the person the spolia opima are well known. Nothing was more natural: in former times, the belligerent nations had, almost in every arms against instance, their safety and very existence at stake; and the death of the leader often put an end to the war. In our days, a soldier would not dare to boast of having killed the enemy's king. Thus sovereigns tacitly agree to secure their own persons. It must be owned, that, in a war which is carried on with no great animosity, and where the safety and existence of the state are not involved in the issue, this regard for regal majesty is perfectly commendable, and even consonant to the reciprocal duties of nations. In such a war, to take away the life of the enemy's sovereign, when it might be spared, is perhaps doing that nation a greater degree of harm than is necessary for bringing the contest to a happy issue. But it is not one of the laws of war that we should on

Timur-bec made war on Joseph Sofy, king of Carezem, and subdued his kingdom. During the course of the war, that great man proved himself to be possessed of all that moderation and politeness which is thought peculiar to our modern warriors. Some melons being brought to him whilst he was besieging Joseph in the city of Eskiskus, he resolved to send a part of them to his enemy, thinking it would be a breach of civility not to 472

share those new fruits with that prince when so near him: and accordingly he ordered them to be put into a gold basin, and carried to him. The king of Carezem received this instance of politeness in a brutal manner; he ordered the melons to be thrown into the fossé, and gave the basin to the city gate-keeper.-La Croix, Hist. of Timur-bec, book v. ch. xxvii.-Edit. A. D. 1797.

every occasion spare the person of the hostile king: we are BOOK. III. not bound to observe that moderation except where we have CHAP. VIII. a fair opportunity of making him prisoner.*

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OF THE RIGHT OF WAR, WITH REGARD TO THINGS BELONGING CHAP. IX. TO THE ENEMY. (164)

8

A STATE taking up arms in a just cause has a double g 160. Prinright against her enemy,-1. a right to obtain possession of ciples of the her property withheld by the enemy; to which must be added right over things bethe expenses incurred in the pursuit of that object, the longing to charges of the war, and the reparation of damages: for, were the enemy. she obliged to bear those expenses and losses, she would not fully recover her property, or obtain her due. 2. She has a right to weaken her enemy, in order to render him incapable of supporting his unjust violence (§ 138)—a right to deprive him of the means of resistance. Hence, as from their source, originate all the rights which war gives us over things belonging to the enemy. I speak of ordinary cases, and of what

On this subject, let us notice a trait of Charles XII. of Sweden, in which sound reason and the most exalted courage are equally conspicuous. That prince, being engaged in the siege of Thorn in Poland, and frequently walking round the city, was easily distinguished by the cannoneers, who regularly fired upon him as soon as they saw him make his appearance. The principal officers of his army, greatly alarmed at their sovereign's danger, wished to have information sent to the governor, that, if the practice was continued, no quarter should be granted either to him or to the garrison. But the Swedish monarch would never permit such a step to be taken, telling his officers that the governor and the Saxon cannoneers were perfectly right in acting as they did, that it was himself who made the attack upon them, and that the war would be at an end if they could kill him; whereas they would reap very little advantage even from killing the principal officers of his army. Histoire du Nord, p. 26.-Edit. A. D. 1797.

(164) See, in general, Grotius, ch. 6; Horne on Captures; Marten's L. Nat.

287; and the modern decisions, 1 Chit-
ty's Commercial Law, 377-437; and
Chitty's Law of Nations, per tot. And
as to the legal right of embargo and
capture, as it affects commerce, and ex-
ceptions, as respects small fishing vessels,
1 Chitty's C. L. 426. But, that exemp-
tion is matter of forbearance, rather than
of right, and seems analogous to hus-
bandmen and cultivators of land being
usually spared, see Vattel, 147, ante,
352; and see Young, Jacob, and Johorca,
1 Rob. Rep. 19, as to fishing-boats and
fishermen, per Sir Wm. Scott.

Questions respecting captures and
prizes, or even imprisonment of the
person incident to the seizure as prize,
cannot in general become the subject
of litigation, directly, in any of the mu-
nicipal courts of this country, but must
be investigated in a prize court, which,
in this country, is holden under a dis-
tinct authority from that of the court
of Admiralty, viz. under a special com-
mission from the king, who would
otherwise preside in person over prize
questions: and from such commission
there is usually an appeal to the king
in council; see cases in note (165), post,
365.-C.

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