and at difcretion. If he perfifts, and is at length forced to furrender at difcretion, they may then treat both himself and his troops with all the feverity of the law of war. But that law can never extend so far as to give a right to take away the life of an enemy who lays down his arms (§ 140), unless he has been guilty of fome crime against the conqueror (§ 141). Resistance carried to extremity does not become punishable in a fubaltern, except on those occafions only when it is evidently fruitless. 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 furrender; and he may be threatened with death in cafe of his perfifting in a defence which is abfolutely fruitless, 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 oppofes: for if this governor maintains a cause that is evidently juft,-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 laft 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 defert edly 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, defertion 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. § 145. Women, Women, children, feeble old men, and fick perfons, come under the description of enemies (§§ 70, 72); and we have certain 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 fiege of St. Omer, and incenfed at the long refittance 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 hands) 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 still dearer to him, and that he was too well acquainted with the king's difpofition, to apprehend that he would disgrace himself by the perpetration of fo barbarous a deed, Hift. of Louis XI. book viii. § 146. Clergy, ters, &c. rights over them, inafmuch as they belong to the nation with whom we are at war, and as, between nation and nation, all rights and pretenfions affect the body of the fociety, together with all its members (Book II. §§ 81, 82, 344). But these are enemies who make no refiftance; and confequently we have no right to maltreat their perfons, or ufe any violence against them, much less to take away their lives (§ 140). This is fo plain a maxim of juftice and humanity, that at prefent every nation, in the leaft degree civilifed, acquiefces in it. If sometimes the furious and ungovernable foldier carries his brutality fo far as to violate female chastity, or to maffacre women, children, and old men, the officers lament thofe exceffes: they exert their ut moft efforts to put a stop to them; and a prudent and humane general even punishes them whenever he can. But if the women wish to be fpared altogether, they must confine themselves to the occupations peculiar to their own fex, and not meddle with those of men by taking up arms. Accordingly the military law of the Switzers, which forbids the foldier to maltreat women, formally excepts those females who have committed any acts of hoftility. The like may be faid of the public minifters of religion, of men of let- men of letters, and other perfons whofe mode of life is very remote from military affairs:-not that these people, nor even the minifters of the altar, are, neceffarily and by virtue of their functions, invested with any character of inviolability, or that the civil law can confer it on them with refpect to the enemy: but as they do not ufe force or violence to oppofe him, they do not give him a right to use it against them. Among the ancient Romans the priests carried arms: Julius Cæfar himself was fovereign pontiff: -and, among the chriftians, it has been no rare thing to fee prelates, bifhops, and cardinals, buckle on their armour, and take the command of armies. From the inftant of their doing fo, they subjected themselves to the common fate of military men. While dealing out their blows in the field of battle, they did not, it is to be prefumed, lay claim to inviolability. $147. Formerly, every one capable of carrying arms became a folPeasants, dier when his nation was at war, and efpecially when it was atand, in ge- tacked. Grotius however + produces inftances of feveral nations who do not and eminent commanders who fpared the peafantry in confidecarry arms. ration of the immediate usefulness of their labours §. At prefent neral, all war is carried on by regular troops: the people, the peasants, the citizens, take no part in it, and generally have nothing to fear from the fword of the enemy. Provided the inhabitants fubmit to him who is mafter of the country, pay the contributions im * See Simler, de Repub. Helvet. + Book iii. ch. 11. § II. Cyrus, Belifarius, &c. Cyrus propofed to the king of Affyria, that both parties fhould reciprocally fpare the cultivators of the foil, and make war only against thofe who appeared in arms-and the propofal was agreed to. Xenoph. Cyrop. lib. v. cap. 4. pofed, pofed, and refrain from all hoftilities, they live in as perfect fafety as if they were friends: they even continue in poffeffion of what belongs to them: the country people come freely to the camp to fell their provifions, and are protected, as far as poffible, from the calamities of war. A laudable custom, truly worthy of thofe nations who value themselves on their humanity, and advantageous even to the enemy who acts with fuch moderation. By protecting the unarmed inhabitants, keeping the foldiery under ftrict difcipline, and preferving the country, a general procures an easy fubfiftence for his army, and avoids many evils and dangers. If he has any reason to miftruft the peafantry and the inhabitants of the towns, he has a right to difarm them, and to require hoftages from them: and those who wish to avoid the calamities of war, must submit to the laws which the enemy thinks proper to impofe on them. $148. The right of making But all those enemies thus fubdued or difarmed, whom the principles of humanity oblige him to fpare,-all those persons belonging to the oppofite party (even the women and children), he prifoners may lawfully fecure and make prifoners, either with a view to of war. prevent them from taking up arms again, or for the purpose of weakening the enemy (138), or, finally, in hopes that, by getting into his power fome woman or child for whom the fovereign has an affection, he may induce him to accede to equitable conditions of peace, for the fake of redeeming thofe valuable. pledges. At prefent, indeed, this laft-mentioned expedient is feldom put in practice by the polifhed nations of Europe: women and children are fuffered to enjoy perfect fecurity, and allowed permiffion to withdraw wherever they please. But this moderation, this politenefs, though undoubtedly commendable, is not in itself abfolutely obligatory; and if a general thinks fit to fuperfede it, he cannot be justly accused of violating the laws of war. He is at liberty to adopt fuch measures in this refpect as he thinks moft conducive to the fuccefs of his affairs. If, without reafon, and from mere caprice, he refufes to indulge women with this liberty, he will be taxed with harfhnefs and brutality,he will be cenfured for not conforming to a custom established by humanity: but he may have good reasons for difregarding, in this particular, the rules of politenefs, and even the fuggeftions of pity. If there are hopes of reducing by famine a strong place of which it is very important to gain poffeflion, the ufelefs mouths. are not permitted to come out. And in this there is nothing which is not authorised by the laws of war. Some great men, however, have, on occafions of this nature, carried their compaffion fo far as to poftpone their interefts to the motions of humanity. We have already mentioned in another place how Henry the Great acted during the fiege of Paris. To fuch a noble example let us add that of Titus at the fiege of Jerufalem at first he was inclined to drive back into the city great numbers of starving wretches, who came out of it: but he could not withstand the compaffion A a : of war not death. compaffion which fuch a fight raised in him; and he fuffered the sentiments of humanity and generofity to prevail over the maxims of war. As foon as your enemy has laid down his arms and surrendered $149. his perfon, you have no longer any right over his life (§ 140), A prifoner unless he should give you fuch right by fome new attempt, or had to be put to before committed against you a crime deferving death (§ 141). It was therefore a dreadful error of antiquity, a most unjust and favage claim, to affume a right of putting prifoners of war to death, and even by the hand of the executioner. More just and humane principles, however, have long fince been adopted. Charles 1. king of Naples, having defeated and taken prifoner Conradin his competitor, caufed him to be publicly beheaded at Naples. together with Frederic of Austria, his fellow-prifoner. This barbarity raised a univerfal horror; and Peter the Third, king of Arragon, reproached Charles with it as a deteftable crime, and till then unheard of among chriftian princes. The cafe, however, was that of a dangerous rival who contended with him for the throne. But fuppofing even the claims of that rival were unjust, Charles might have kept him in prifon till he had renounced them, and given fecurity for his future behaviour. $150. How pri foners of war are to be treated. Prifoners may be fecured; and, for this purpofe, they may be put into confinement, and even fettered if there be reafon to ap prehend that they will rife on their captors, or make their efcape. But they are not to be treated harshly, unless perfonally guilty of fome crime against him who has them in his power. In this cafe he is at liberty to punish them: otherwife he thould remember that they are men, and unfortunate +. A man of exalted foul no longer feels any emotions but thofe of compaffion towards a conquered enemy who has submitted to his arms. Let us in this particular bestow on the European nations the praife to which they are justly entitled. Prifoners of war are feldom ill treated among them. We extol the English and French, we feel our bofoms glow with love for them, when we hear the accounts of the treatment which prifoners of war, on both fides, have experienced from thofe generous nations. And what is more, by a custom which equally difplays the honour and humanity of the Europeans, an officer, taken prifoner in war, is released on his *Epift. Pet. Arrag apud Petr. de Vineis. In 1593, the council of the Netherlands, at the perfuafion of the count de Fuentes, relolved no longer to obferve towards the United Provinces that moderation which humanity renders f› neceffary in war. They gave orders for putting to death every man who should be made prisoner, and, under the fame penalty, prohibited the payment of any contributions to the enemy. But the complaints of the nobility and clergy, and, ftill more, the murmurs of the military, who faw themselves expofed to an infamous death in cafe of falling into the enemy's hands, obliged the Spaniards to re-eftablifh thofe indifpenfable ufages, which, in the words of Virgil [Æn. x. 532], are called belli commercia,-the ranfom or exchange of prifoners, and the payment of contributions to avert pillage and devaftation. The ranfon of each pioner was then fettled at a month's pay. Grotius, Hift. of Netherlands, book ii, parole, parole, and enjoys the comfort of paffing the time of his capti vity in his own country, in the midst of his family; and the party who have thus released him, reft as perfectly fure of him, as if they had him confined in irons. § 1518 Whether Formerly a question of an embarrassing nature might have been propofed. When we have fo great a number of prifoners prifoners, that we find it impoffible to feed them, or to keep them with who cannot fafety, have we a right to put them to death? or fhall we fend be kept or them back to the enemy, thus increasing his ftrength, and ex- put to death. fed, may be pofing ourselves to the hazard of being overpowered by him on a fubfequent occafion? At prefent the cafe is attended with no difficulty. Such prifoners are difmiffed on their parole,-bound by promise not to carry arms for a certain time or during the continuance of the war. And as every commander neceffarily has a power of agreeing to the conditions on which the enemy admits his furrender, the engagements entered into by him for faving his life or his liberty with that of his men, are valid, as being made within the limits of his powers ($ 19, &c.); and his fovereign cannot annul them. Of this many inftances occurred during the last war :-feveral Dutch garrifons fubmitted to the condition of not ferving against France or her allies, for one or two years: a body of French troops being invested in Lintz, were by capitulation fent back across the Rhine, under a restriction not to carry arms against the queen of Hungary for a stated time: and the fovereigns of those troops refpected the engagements formed by them. But conventions of this kind have their limits, which confift in not infringing the rights of the fovereign over his fubjects. Thus the enemy, in releafing prifoners, may impofe on them the condition of not carrying arms against him till the conclufion of the war; fince he might justly keep them in confinement till that period: but he cannot require that they fhall for ever renounce the liberty of fighting for their country; becaufe, on the termination of the war, he has no longer any reason for detaining them; and they, on their part, cannot enter into an engagement abfolutely inconfiftent with their character of citizens or fubjects. If their country abandons them, they become free in that refpect, and have in their turn a right to renounce their country. But if we have to do with a nation that is at once favage, perfidious, and formidable, fhall we fend her back a number of foldiers who will perhaps enable her to deftroy us?—When our own fafety is incompatible with that of an enemy-even of an enemy who has fubmitted,-the question admits not of a doubt. But to justify us in cooliy and deliberately putting to death a great number of prifoners, the following conditions are indifpenfably neceffary:-1. that no promise have been made to spare their lives; and, 2. that we be perfectly affured that our own fafety demands fuch a facrifice. If it is at all confiftent with prudence either to truft to their parole or to difregard their perfidy, a generous enemy will rather listen to the voice of huma A a 2 nity |