$152. Whether nity than to that of a timid circumfpection. Charles the Twelfth, being incumbered with his prifoners after the battle of Narva, only difarmed them and fet them at liberty: but his enemy, still impreffed with the apprehenfions which his warlike and formidable opponents had excited in his mind, fent into Siberia all the prifoners he took at Pultowa. The Swedish hero confided too much in his own generofity: the fagacious monarch of Russia united perhaps too great a degree of feverity with his prudence: but neceffity furnishes an apology for severity, or rather throws a veil over it altogether. When admiral Anfon took the rich Acapulco galleon near Manilla, he found that the prisoners outnumbered his whole fhip's company: he was therefore under a neceflity of confining them in the hold, where they fuffered cruel diftrefs. But, had he exposed himself to the risk of being carried away a prifoner, with his prize and his own fhip together, would the humanity of his conduct have justified the imprudence of it? Henry V. king of England, after his victory in the battle of Agincourt, was reduced, or thought himfelf reduced, to the cruel neceflity of facrificing the prisoners to his own fafety. "In "this univerfal route," fays Father Daniel, " a fresh misfortune "happened, which coft the lives of a great number of French. "A remainder of their van was retreating in fome order, and "many of the ftragglers rallied and joined it. The king of "England, obferving their motions from an eminence, fuppofed "it was their intention to return to the charge. At the fame "moment he received information of an attack being made on "his camp where the baggage was depofited. In fact, fome no"blemen of Picardy, having armed about fix hundred peasants, "had fallen upon the English camp. Thus circumstanced, that "prince, apprehenfive of fome difaftrous reverfe, dispatched his "aides-de-camp to the different divifions of the army, with or"ders for putting all the prifoners to the fword, left, in case of a "renewal of the battle, the care of guarding them fhould prove "an impediment to his foldiers, or the prifoners fhould efcape, "and join their countrymen. The order was immediately carried "into execution, and all the prifoners were put to the fwordt." Nothing fhort of the greatest neceffity can juftify fo terrible an execution; and the general whofe fituation requires it, is greatly to be pitied. Is it lawful to condemn prifoners of war to flavery? Yes, in prilo: ers of Cafes which give a right to kill them,-when they have rendered war may be themselves perfonally guilty of fome crime deferving of death. made flaves. The ancients ufed to tell their prifoners of war for flaves. They indeed thought they had a right to put them to death. In every circumftance, when I cannot innocently take away my prifoner's life, I have no right to make him a flave. If I fpare his life and condemn him to a state so contrary to the nature of * See Anfon's Voyage round the World. man, man, I still continue with him the ftate of war. He lies under no obligation to me: for, what is life without freedom? If any one counts life a favour when the grant of it is attended with chains, be it fo: let him accept the kindnefs, fubmit to the destiny which awaits him, and fulfil the duties annexed to it. But he must apply to fome other writer to teach him those duties: there have been authors enough who have amply treated of them. I fhall dwell no longer on the subject: and indeed that difgrace to humanity is happily banished from Europe. Prisoners of war, then, are detained, either to prevent their $153. Exchange returning to join the enemy again, or with a view to obtain from and ranfom their fovereign a juft fatisfaction, as the price of their liberty. of prifoners. There is no obligation to release those who are detained with the latter view, till after fatisfaction is obtained. As to the former, whoever makes a juft war, has a right, if he thinks proper, to detain his prisoners till the end of the war: and whenever he releases them, he may justly require a ranfom, either as a compenfation at the conclufion of a peace, or, if during the continuance of the war, for the purpose of at leaft weakening his enemy's finances at the fame time that he restores him a number of foldiers. The European nations, who are ever to be commended for their care in alleviating the evils of war, have, with regard to prifoners, introduced humane and falutary customs. They are exchanged or ranfomed, even during the war; and this point is generally fettled beforehand by cartel. However, if a nation finds a confiderable advantage in leaving her foldiers prisoners with the enemy during the war rather than exchanging them, the may certainly, unless bound by cartel, act in that refpect as is moft conducive to her intereft. Such would be the cafe of a ftate abounding in men, and at war with a nation more formida ble by the courage than the number of her foldiers. It would have ill fuited the interests of the czar Peter the Great, to restore his prifoners to the Swedes for an equal number of Ruffians. bound to procure But the ftate is bound to procure, at her own expenfe, the re§ 154. lease of her citizens and foldiers who are prifoners of war, as foon The ftate is as fhe has the means of accomplishing it, and can do it without danger. It was only by acting in her fervice and fupporting her their re caufe, that they were involved in their prefent misfortune. For the leafe. fame reason, it is her duty to provide for their fupport during the time of their captivity. Formerly prifoners of war were obliged to redeem themselves: but then the ranfom of all thofe whom the officers or foldiers might take, was the perquifite of the individual captors. The modern custom is more agreeable to reason and juftice. If prifoners cannot be delivered during the course of the war, at least their liberty muft, if poffible, make an article in the treaty of peace. This is a care which the ftate owes to those who have expofed themfelves in her defence. It must, neverthelefs, be allowed, that a nation may, after the example of the Romans, and for the purpose of ftimulating her foldiers to the most vigorous refiftance, enact a law to prohibit prifoners of war from A a 3 ever $155. Whether an enemy may law fully be af faffinated or poison ed. ever being ransomed. When this is agreed to by the whole fociety, nobody can complain. But fuch a law is very fevere, and could fcarce fuit any but thofe ambitious heroes who were determined on facrificing every thing in order to make themselves mafters of the world. Since the prefent chapter treats of the rights which war gives us over the perfon of the enemy, this is the proper place to dif cufs a celebrated question on which authors have been much divided,—and that is, whether we may lawfully employ all forts of means to take away an enemy's life? whether we be justifiable in procuring his death by affaffination or poifon? Some writers have afferted, that, where we have a right to take away life, the manner is indifferent. A ftrange maxim! but happily exploded by the bare ideas of honour, confused and indefinite as they are. In civil fociety, I have a right to punish a flanderer, -to caufe my property to be restored by him who unjustly detains it but thall the manner be indifferent? Nations may do themselves juftice fword in hand, when otherwife refufed to them: fhall it be indifferent to human fociety that they employ odious means, capable of fpreading defolation over the whole face of the earth, and against which, the most juft and equitable of fovereigns, even though fupported by the majority of other princes, cannot guard himself?" But in order to difcufs this queftion on folid grounds, affaffination is by all means to be diftinguished from furprises, which are, doubtlefs, very allowable in war. Should a refolute foldier fteal into the enemy's camp by night,-fhould he penetrate to the general's tent, and ftab him,-in fuch conduct there is nothing contrary to the natural laws of war,-nothing even but what is perfectly commendable in a juft and neceffary war. Mutius Scævola has been praised by all the great men of antiquity; and Porfenna himself, whom he intended to kill, could not but commend his courage Pepin, father of Charlemagne, having croffed the Rhine with one of his guards, went and killed his enemy in his chamber t. If any one has abfolutely condemned fuch bold ftrokes, his cenfure only proceeded from a desire to flatter thofe among the great, who would wish to leave all the dangerous part of war to the foldiery and inferior officers. It is true indeed that the agents in fuch attempts are ufually punished with fome painful death. But that is because the prince or general who is thus attacked, exercifes his own rights in turn,-has an eye to his own fafety, and endeavours, by the dread of a cruel punishment, to deter his enemies from attacking him otherwise than by open force. He may proportion his feverity towards an enemy according as his own fafety requires. Indeed it would be more commendable on both fides to renounce every kind of hof See Livy, lib. ii. cap. 12.-Cicero, pro P. Sextio.-Valer. Max. lib. iii. cap. 3. -Plutarch, in Poplicol. † Grotius, lib. iii. cap. 4, § 18, n. 1. tility which lays the enemy under a.neceflity of employing cruel punishments in order to fecure himself against it. This might be made an established custom, a conventional law of war. The generous warriors of the prefent age diflike fuch attempts, and would never willingly undertake them, except on thofe extraordinary occafions when they become neceffary to the very fafety and being of their country. As to the fix hundred Lacedæmonians, who, under the conduct of Leonidas, broke into the enemy's camp, and made their way directly to the Perfian monarch's tent*, their expedition was juftifiable by the common rules of war, and did not authorise the king to treat them more rigorously than any other enemies. In order to defeat all fuch attempts, it is fufficient to keep a strict watch; and it would be unjust to have recourse to cruel punishments for that purpose: accordingly fuch punishments are referved for those only who gain admittance by ftealth, alone or in very fmall number, and efpecially if under cover of a disguise. 1 I give, then, the name of affalination to a treacherous murder, whether the perpetrators of the deed be fubjects of the party whom we caufe to be affaflinated, or of our own fovereign,or that it be executed by the hand of any other emiffary, introducing himself as a fupplicant, a refugee, a deferter, or, in fine, as a ftranger; and fuch an attempt, I fay, is infamous and execrable, both in him who executes and in him who commands it. Why do we judge an act to be criminal, and contrary to the law of nature, but becaufe fuch act is pernicious to human fociety, and that the practice of it would be destructive to mankind? Now what could be more terrible than the custom of hiring a traitor to affaffinate our enemy? Befides, were fuch a liberty once introduced, the purest virtue, the friendship of the majority of the reigning fovereigns, would no longer be fufficient to enfure a prince's fafety. Had Titus lived in the time of the old man of the mountain,-though the happiness of mankind centred in him, though, punctual in the obfervance of peace and equity, he was refpected and adored by all potentates,-yet, the very first time that the prince of the Affaffins might have thought proper to quarrel with him, that univerfal affection would have proved infufficient to fave him; and mankind would have loft their "darling." Let it not here be replied that it is only in favour of the cause of juftice that fuch extraordinary measures are allowable for all parties, in their wars, maintain that they have justice on their fide. Whoever, by fetting the example, contributes to the introduction of fo deftructive a practice, declares himself the enemy of mankind, and deferves the execration of all ages t. The affaffination of William prince of Orange сар. xi. was *Juftin, lib. ii. + See the dialogue between Julius Cæfar and Cicero, in the Mélanges de Litté rature et Poélies. - Farrudge, fultan of Egypt, fent to Timur-bec an embaffador accompanied by two villains who were to affallinate that conqueror during the A 3 4 audience, was regarded with universal deteftation, though the Spaniards had declared that prince a rebel. And the fame nation denied, as an atrocious calumny, the charge of having had the least concern in that of Henry the Great, who was preparing for a war against them, which might have fhaken their monarchy to its very foun dations. In treacherously administering poison there is fomething still more odious than in assassination : it would be more difficult to guard against the confequences of fuch an attempt; and the practice would be more dreadful; accordingly it has been more generally detefted. Of this Grotius has accumulated many inftances. The confuls Caius Fabricius and Quintus Æmilius rejected with horror the propofal of Pyrrhus's physician who made an offer of poisoning his mafter: 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 infor "mation, but to avoid the obloquy to which your death would "expofe us +." And they juftly obferve in the fame letter, that, it is for the common intereft of all nations not to fet fuch ex amples. It was a maxim of the Roman fenate, that war was to be carried on with arms, and not with poison §. Even under Tiberius, the propofal of the prince of the Catti was rejected, who offered to deftroy Arminius if poifon were sent him for that purpose: and he received for anfwer, that " it was the practice of "the Romans to take vengeance on their enemies by open force, "and not by treachery and fecret machinations |;" Tiberius thus making it his glory to imitate the virtue of the ancient Roman commanders. This inftance is the more remarkable, as Arminius had treacherously cut off Varus, together with three Roman legions. The fenate, and even Tiberius himfelf, thought it unlawful to adopt the ufe of poifon, even against a perfidious enemy, and as a kind of retaliation or reprisals. Affaflination and poifoning are therefore contrary to the laws of war, and equally condemned by the law of nature, and the audience. This infamous plot being difcovered" It is not (faid Timur) the "maxim of kings to put embaffadors to death: but as to this wretch, who, under "the facred garb of religion, is a monster of perfidy and corruption, it would be a "crime to fuffer him and his accomplices to live." Purfuant, therefore, to that paffage of the Koran which fays that" treachery falls on the traitor's own head," he ordered him to be difpatched with the fame poignard with which he had intended to perpetrate the abominable deed. The body of the traitor was then committed to the flames, as an example to others. The two affaflins were only condemned to fuffer the amputation of their nofes and ears, Timur contenting himself with this punishment, and forbearing to put them to death, because he wifhed to fend them back with a letter to the fultan. Hift. of Timur-bec, book v. chap. 24. Book iii. chap. 4, § 15. † Ουδε γας ταυτα σῃ χαριτι μηνυομεν, αλλ' όπως μη το σον παθος ἡμῖν διαβολην ενεγκα, Plut. in Pyrr. Sed communis exempli et fidei ergo vifum eft, uti te falvum velimus; ut effet, quem armis vincere poffemus. Aul. Gell. Nod. Attic. lib. iii. cap. 8. § Armis bella, non venenis, geri debere. Valer. Maxim. lib. vi. ch. 5, num. 1. Non fraude, neque occultis, fed palam, et armatum, populuni Romanum hoftes fuos ulcifci. Tacit. Annal. lib. ii. cap. 88. confent |