fubject. Accordingly, whenever it is certain and evident that fuch a measure, fuch an act of hoftility, is neceffary in general for overpowering the enemy's refiftance, and attaining the end of a lawful war, that measure, thus viewed in a general light, is, by the law of nations, deemed lawful in war, and confiftent with propriety, although he who unneceffarily adopts it when he might attain his end by gentler methods, is not innocent before God and his own confcience. In this, lies the difference between what is juft, equitable, irreprehenfible in war, and what is only allowed between nations, and fuffered to pafs with impunity. The fovereign who would preferve a pure confcience, and punctually discharge the duties of humanity, ought never to lose fight of what we already have more than once obferved, -that nature gives him no right to make war on his fellow-men, except in cafes of neceffity, and as a remedy, ever difagreeable, though often neceffary, against obstinate injustice or violence. If his mind is duly impreffed with this great truth, he will never extend the application of the remedy beyond its due limits, and will be very careful not to render it more harth in its operation, and more fatal to mankind, than is requifite for his own security and the defence of his rights. to weaken Since the object of a juft war is to reprefs injustice and vio-§ 138. lence, and forcibly to compel him who is deaf to the voice of The right justice, we have a right to put in practice, against the enemy, an enemy every measure that is neceffary in order to weaken him, and dif- by every able him from refifting us and supporting his injustice; and we juftifiable may choose such methods as are the most efficacious and best calculated to attain the end in view, provided they be not of an odious kind, nor unjustifiable in themselves, and prohibited by the law of nature. method. § 139. The right over the The enemy who attacks me unjustly, gives me an undoubted right to repel his violence; and he who takes up arms to oppose me when I demand only my right, becomes himself the real ag- enemy's greffor by his unjust refiftance: he is the first author of the vio- perfon. lence, and obliges me to employ forcible means in order to fecure myself against the wrong which he intends to do me either in my perfon or my property. If the forcible means I employ produce fuch effect as even to take away his life, he alone must bear the whole blame of that misfortune: for if I were obliged to fubmit to the wrong rather than hurt him, good men would foon become the prey of the wicked. Such is the origin of the right to kill our enemies in a juft war. When we find gentler methods infufficient to conquer their resistance and bring them to terms, we have a right to put them to death. Under the name of enemies, as we have already fhewn, are to be comprehended, not only the first author of the war, but likewife all thofe who join him, and who fight in fupport of his caufe. § 140. Limits of this right. But the very manner in which the right to kill our enemies is, proved, points out the limits of that right. On an enemy's fubmitting and laying down his arms, we cannot with justice take away An enemy not to be killed after ceafing to refift. lar cafe, in which quarter fused. away his life. Thus, in a battle, quarter is to be given to those who lay down their arms; and, in a fiege, a garrison offering to capitulate are never to be refufed their lives. The humanity with which moft nation in Europe carry on their wars at prefent, cannot be too much commended. If fometimes in the heat of action the foldier refuses to give quarter, it is always contrary to the inclination of the officers, who eagerly interpose to fave the lives of such enemies as have laid down their arms*. § 141. There is, however, one cafe, in which we may refuse to spare A particu- the life of an enemy who furrenders, or to allow any capitulation to a town reduced to the laft extremity. It is when that enemy has been guilty of fome enormous breach of the law of may be re- nations, and particularly when he has violated the laws of war. This refufal of quarter is no natural confequence of the war, but a punishment for his crime,-a punishment which the injured party has a right to inflict. But in order that it be justly inflicted, it muft fall on the guilty. When we are at war with a favage nation, who obferve no rules, and never give quarter, we may punish them in the perfons of any of their people whom we take (these belonging to the number of the guilty), and endeavour, by this rigorous proceeding, to force them to refpect the laws of humanity. But wherever severity is not abfolutely neceffary, clemency becomes a duty. Corinth was utterly deftroyed for having violated the law of nations in the perfon of the Roman emballadors. That feverity, however, was reprobated by Cicero and other great men. He who has even the moft just cause to punish a fovereign with whom he is in enmity, will ever incur the reproach of cruelty, if he causes the punishment to fall on his innocent fubjects. There are other methods of chastifing the fovereign,-fuch as, depriving him of fome of his rights, taking from him towns and provinces. The evil which thence refults to the nation at large, is the confequence of that participation which cannot possibly be avoided by those who unite in political fociety. $142. This leads us to speak of a kind of retaliation fometimes pracReprifals. tifed in war, under the name of reprifals. If the hoftile general has, without any juft reason, caused fome prifoners to be hanged, we hang an equal number of his people, and of the fame rank,notifying to him that we will continue thus to retaliate, for the purpofe of obliging him to obferve the laws of war. It is a dreadful extremity thus to condemn a prifoner to atone, by a mi ferable death, for his general's crime and if we had previously From feveral paffages in Grotius's History of the Disturbances in the Low Countries, it appears that the war between the Dutch and Spaniards was carried on with unrelenting cruelty at fea, although the parties had agreed to observe the ufual rules of moderation on land.-Intelligence being received by the confede rate flates, that the Spaniards had, by the advice of Spinola, embarked at Lisbon a body of troops deftined for Flanders, they difpatched a fquadron to wait for them in the ftrait of Calais, with orders to drown without mercy every foldier that was taken: and the order was punctually executed.-Book xiv. p. 550. promised promised to spare the life of that prifoner, we cannot, without injustice, make him the fubject of our reprifals*. Nevertheless, as a prince or his general has a right to facrifice his enemies' lives to his own fafety and that of his men,-it appears, that, if he has to do with an inhuman enemy who frequently commits fuch enormities, he is authorised to refufe quarter to fome of the prisoners he takes, and to treat them as his people have been treated. But Scipio's generofity is rather to be imitated:-that great man, having reduced fome Spanish princes who had revolted against the Romans, declared to them that, on a breach of their faith, he would not call the innocent hoftages to an account, but themselves; and that he would not avenge it on an unarmed enemy, but on those who should be found in arms. Alexander the Great, having caufe of complaint rgainst Darius for fome mal-practices, fent him word, that if he continued to make war in fuch a manner, he would proceed to every extremity against him, and give him no quarter §. It is thus an enemy who violates the laws of war is, to be checked, and not by causing the penalty due to his crime to fall on innocent victims. § 143. a town can for an ob How could it be conceived in an enlightened age, that it is lawful to punish with death a governor who has defended his Whether a town to the last extremity, or who, in a weak place, has had the governor of courage to hold out against a royal army? In the last century, be punished this notion ftill prevailed; it was looked upon as one of the laws with death of war, and is not, even at prefent, totally exploded. What an inate deidea! to punish a brave man for having performed his duty! fence. Very different were the principles of Alexander the Great, when he gave orders for fparing fome Milefians, on account of their courage and fidelity. "As Phyton was led to execution by or"der of Dionyfius the tyrant for having obftinately defended "the town of Rhegium of which he was governor, he cried out "that he was unjustly condemned to die for having refused to be"tray the town, and that heaven would foon avenge his death." Diodorus Siculus terms this "an unjust punishment **." ***." is in vain to object, that an obftinate defence, especially in a weak place, against a royal army, only caufes a fruitless effufion of blood. Such a defence may fave the ftate, by delaying the enemy fome days longer; and befides, courage fupplies the de It In the French, we here find (apparently, very much out of place) a verbatim repetition of the long note which has already appeared in page 286. Lyfander, having captured the Athenian fleet, put the prifoners to death, on account of various cruelties practifed by the Athenians du ing the coufe of the war, but principally on account of the barbarous refolution which they were known to have adopted, of cutting off the right hand of every prifoner, in cafe of victory declaring on their fide. He fpared Adeimantus alone, who had oppofed that infamous refolution. Xenoph. Hit. Græc lib. ii. cap. 1. Neque fe in obfides innovios, fed in ipfos, fi defecerint, fæviturum; nec ab inermi, fed ab armato hofte, pœnas expetiturum. Tit. Liv. lib. xxviii. Quint. Curt. lib. iv. capp. 1 & 11. Arrian. de Exped. Alexand hb. i cap. 20. ** Lib. xiv. cap. 113, quoted by Grotius, lib. iii, cap. 2, § 16, n. 5. fects fects of the fortifications*. The chevalier Bayard having thrown himself into Mezieres, defended it with his ufual intrepidity t and proved that a brave man is fometimes capable of faving a place which another would not think tenable. The hiftory of the famous fiege of Malta is another inftance how far men of spirit may defend themselves, when thoroughly determined. How many places have furrendered, which might ftill have arrested the enemy's progrefs for a confiderable time, obliged him to confume his strength and waste the remainder of the campaign, and even finally faved themfelves, by a better-fupported and more vigorous defence? In the laft war, whilft the strongeft places in the Netherlands opened their gates in a few days, the valiant general Leutrum was feen to defend Coni against the utmost efforts of two powerful armies,-to hold out, in fo indiffe rent a poft, forty days from the opening of the trenches,-and finally to fave the town, and, together with it, all Piémont. If it be urged, that, by threatening a commandant with death, you may fhorten a bloody fiege, fpare your troops, and make a valuable saving of time, my anfwer is, that a brave man will despise your menace, or, incenfed by fuch ignominious treatment, will fell his life as dearly as he can,-will bury himself under the ruins of his fort, and make you pay for your injuftice. But whatever advantage you might promife yourself from an unlawful proceeding, that will not warrant you in the use of it. The menace of an unjust punishment is unjust in itself: it is an infult and an injury. But, above all, it would be horrible and barbarous to put it in execution: and if you allow that the threatened coníequences must not be realifed, the threat is vain and ridiculous. Juft and honourable means may be employed to diffuade a governor from ineffectually perfevering to the laft extremity and fuch is the prefent practice of all prudent and humane generals. At a proper ftage of the bufinefs, they fummon a governor to furrender; they offer him honourable and advantageous terms of capitulation, accompanied by a threat, that, if he delays too long, he will only be admitted to furrender as a prifoner of war, The falle maxim which formerly prevailed on this subject, is noticed in the relation of the battle of Muffelburgh (De Thou, vol i. p. 287). "The general (the "duke of Somerfet), the regent of England, was on this occafion much admired "for his clemency, which induced him to fpare the lives of the befieged (the gar"rifon of a caftle in Scotland), notwithstanding that ancient maxim in war which "declares that a weak garrifon forfeit all claim to mercy on the part of the con"queror, when, with more courage than prudence, they obftinately persevere in "defending an ill-fortified place against a royal army, and when, refufing to ac"cept of reafonable conditions offered to them, they undertake to arrest the pro"grefs of a power which they are unable to refift."-Pursuant to that maxim, Cæfar anfwered the Aduatici that he would fpare their town, if they furrendered before the battering-ram touched their walls, and the duke of Alva ftrongly blamed Profper Colonna for having granted terms of capitulation to the garrison of a caftle, who had refufed to treat of a furrender until the cannon had been employed against them. See his life. and and at difcretion. If he perfifts, and is at length forced to fur- Refistance carried to extremity does not become punishable in a fubaltern, except on thofe occafions only when it is evidently fruitlefs. It is then obftinacy, and not firmness or valour :-true valour has always a reasonable object in view. Let us, for inftance, fuppofe that a ftate has entirely fubmitted to the conqueror's arms, except one fingle fortrefs,-that no fuccour is to be expected from without,-no neighbour, no ally, concerns himself about faving the remainder of that conquered state :-on fuch an occafion, the governor is to be made acquainted with the fituation of affairs, and fummoned to surrender; and he may be threatened with death in cafe of his perfifting in a defence which is abfolutely fruitlefs, and which can only tend to the effusion of human blood*. Should this make no impreffion on him, he deferves to fuffer the punishment with which he has been juftly threatened. I fuppofe the juftice of the war to be problematical, and that it is not an infupportable oppreffion which he oppoles for if this governor maintains a cause that is evidently just,-if he fights to fave his country from flavery,-his misfortune will be pitied; and every man of fpirit will applaud him for gallantly perfevering to the last extremity, and determining to die free. Fugitives and deferters, found by the victor among his ene- § 144% Fugitives mies, are guilty of a crime against him; and he has undoubt- and defertedly a right to put them to death. But they are not pro- ers. perly confidered as enemies: they are rather perfidious citizens, traitors to their country; and their enliftment with the enemy cannot obliterate that character, or exempt them from the punishment they have deferved. At prefent, however, desertion being unhappily too common, the number of the delinquents renders it in fome measure neceflary to fhew clemency; and, in capitulations, it is ufual to indulge the evacuating garrison with a certain number of covered waggons, in which they fave the deferters. Women, children, feeble old men, and fick perfons, come under the defcription of enemies (§§ 70, 72); and we have certain § 145. Women, children, the aged, * But it is not lawful to employ menaces of every kind in order to induce the and fick governor or commandant of a town to furrender. There are fome, against which Dature revolts with horror.-Louis the Eleventh, being engaged in the siege of St. Omer, and incenfed at the long refiftance he experienced, informed the governor, Philip, fon of Antony the Baftard of Burgundy, that, if he did not furrender the place, his father, (who was a prifoner in Louis's hand) should be put to death in his fight. Philip replied that he would feel the most poignant regret to lofe his father, but that his honour was ftill dearer to him, and that he was too well acquainted with the king's difpofition, to apprehend that he would difgrace himself by the perpetration of fo barbarous a deed. Hift. of Louis XI. book viii. |