confent of all civilifed nations. The fovereign who has recourfe to fuch execrable means, fhould be regarded as the enemy of the human race; and the common fafety of mankind calls on all nations to unite against him, and join their forces to punish him. His conduct particularly authorifes the enemy whom he has attacked by fuch odious means, to refufe him any quarter. Alexander declared that "he was determined to proceed to the ut"most extremities against Darius, and no longer to confider "him as a fair enemy, but as a poifoner and an affaffin."

The intereft and fafety of men in high command require, that, fo far from countenancing the introduction of such practices, they should use all poffible care to prevent it. It was wifely faid by Eumenes, that "he did not think any general wifhed to ob"tain a victory in fuch manner as fhould fet a pernicious ex"ample which might recoil ou himfelft." And it was on the fame principle that Alexander formed his judgment of Beffus, who had affaffinated Darius 1.

poisoned

The ufe of poifoned weapons may be excufed or defended $156. with a little more plaufibility. At lean there is no treachery in Whether the cafe, no clandeftine machination. But the practice is never- weapons theless prohibited by the law of nature, which does not allow us may be to multiply the evils of war beyond all bounds. You must of used in course strike your enemy in order to get the better of his efforts: war. but if he is once difabled, is it neceffary that he should inevitably die of his wounds? Befides, if you poifon your weapons, the enemy will follow your example; and thus, without gaining any advantage on your fide for the decifion of the conteft, you have only added to the cruelty and calamities of war. It is neceffity alone that can at all juftify nations in making war: they ought univerfally to abftain 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 civilifed nations have claffed among the laws of war the maxim which prohibits the poisoning of weapons §; and they are all warranted by their common fafety to reprefs and punish the first who should offer to break through that law.

157.

fprings

may be

A still more general unanimity prevails in condemning the practice of poifoning waters, wells, and fprings, becaufe (fay Whether fome authors) we may thereby deftroy innocent perfons,-we may destroy other people as well as our enemies. This poifoned. is indeed an additional reafon: but it is not the only nor even the true one; for we do not fcruple to fire on an enemy's

Quint. Curt. lib. iv. cap, 11, num. 18.

Nec Antigonum, nec quemquam ducum, fic velle vincere, ut ipfe in fe exemplum peffimum ftatuat. Juftin. lib xiv. cap. 1, num. 12.

Quem quidem [Beffum] cruci adfixum videre feftino, omnibus regibus gentibusque fidei, quam violavit, meritas pœnas foiventem. Q. Curt. lib. vi. ch. 3,

ກ.. 14.

§ Grotius, book iii. chap. 4, § 16,

wards an enemy.

fhip, although there be neutral paffengers on board. But though poifon 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 furrender *. This is a milder way than that of arms.

6158. I cannot conclude this fubject, of what we have a right to do Difpofitions against the perfour of the enemy, without speaking a few words to be preferved to- concerning the difpofitions we ought to preferve towards him. They may already be deduced from what I have hitherto faid, and especially in the first chapter of the fecond book. Let us never forget that our enemies are men. Though reduced to the difagreeable neceflity of profecuting our right by force of arms, let us not diveft ourselves of that charity which connects us with all mankind. Thus fhall we courageously defend our country's rights without violating thofe of human nature †. Let our va lour preferve itfelf from every ftain of cruelty, and the luftre of victory will not be tarnished by inhuman and brutal actions. Marius and Attila are now detefted; whereas we cannot forbear admiring and loving Cafar; his generofity and clemency almost tempt us to overlook the injuftice of his undertaking. Moderation and generofity redound more to the glory of a victor, than his courage; they are more certain marks of an exalted foul. Befides the honour which infallibly accompanies thofe virtues, humanity towards an enemy has been often attended with immediate and real advantages. Leopold, duke of Auftria, befieging 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 fwell of its waters, carried away the bridge together with thofe who were stationed on it,-the besieged haitened to the relief of thofe unfortunate men, and faved the greatest part of them. Leopold, relenting at this act of genero fity, raised the fiege and made peace with the city . The duke of Cumberland, after his victory at Dettingen §, appears to me ftill greater than in the heat of battle. As he was under the furgeon's hands, a French officer, much more dangerously

*Grotius, ibid. § 17.

+ The laws of juftice and equity are not to be less respected even in time of war. The following 1 quote as a remarkable inftance. Alcibiades, at the head of an Athenian army, was engaged in the ficge of Byzantium, then occupied by a Lacedæmonian gar ifon; and finding that he could not reduce the city by force, he gained over fome of the inhabitants, who put him in poffeffion of it. One of the perfons concerned in this tranfaction was Anaxilaus, a citizen of Byzantium, who, being afterwards brought to trial for it at Lacedæmon, pleaded, in his defence, that, in furrendering the city, he had not acted through ill-will to the Lacedæmo nians, or under the influence of a bribe, hut with a view to fave the women and children, whom he faw perishing with famine; for Clearchus, who commanded the garrifon, had given to the foldiers all the corn that was found in the city The Lacedæmonians, with a noble regard to juftice, and fuch as feldom prevails on fimilar occafions, acquitted the culprit,-obferving that he had not betrayed but faved the city, and particularly attending to the circumftance of his being a Byzantine, not a Lacedæmonian. Xenoph. Hift. Græc. lib. i. cap. 3. Watteville's Hift. of the Helvetic Confederacy, vol. i. p. 126. In the year 1743.

I

wounded

wounded than himself, being brought that way, the duke imme. diately ordered his furgeon to quit him, and affift that wounded enemy. If men in exalted stations did but conceive how great a degree of affection and refpect attends fuch actions, they would study to imitate them, even when not prompted to the practice by native elevation of fentiment At prefent the European nations generally carry on their wars with great moderation and generolity. Thefe difpofitions have given rise to several cuftoms which are highly commendable, and frequently carried to the extreme of politenefs. Sometimes refreshments are sent to the governor of a befieged town; and it is ufual to avoid firing on the king's or the general's quarters. We are fure to gain by this moderation when we have to do with a generous enemy; but we are not bound to observe it any farther than can be done without injuring the cause we defend; and it is clear that a prudent general will, in this refpect, regulate his conduct by the circumftances of the cafe, by an attention to the fafety of the army and of the ftate, 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 deftroy it, are the defenders to forbear firing on his quarters? Far from it: that is the very place to which, if possible, every fhot fhould be directed.

fon of a

Formerly, he who killed the king or general of the enemy was $159. commended, and greatly rewarded: the honours annexed to the Tenderness for the perSpolia opima are well known. Nothing was more natural: in former times, the belligerent nations had, almoft in every in- king who ftance, their fafety and very exittence at ftake; and the death of is in arms the leader often put an end to the war. In our days, a foldier against us would not dare to boast of having killed the enemy's king. Thus fovereigns tacitly agree to fecure their own perfons. It must be owned, that, in a war which is carried on with no great animofity, and where the fafety and existence of the ftate are not involved in the iffue, this regard for regal majelty is perfectly commendable, and even confonant to the reciprocal duties of nations. In fuch a war, to take away the life of the enemy's fovereign when it might be fpared, is perhaps doing that nation a greater degree of harm than is neceffary for bringing the contelt to a happy iffue. But it is not one of the laws of war that we should on every occafion spare the person of the hoftile king :

* Timur-bec made war on Jofeph Sofy, king of Carezem, and subdued his kingdom. During the courfe of the war, that great man proved himself to be poffefled of all that moderation and politeuefs which is thought peculiar to our modern warriors. Some melons being brought to him what he was befieging Joseph in the city of Efkifkus, he refolved to feed a part of them to his enemy, thinking it would be a breach of civility not to share thofe new fruits with that prince, when fo near him; and accordingly he ordered them to be put into a god bafon, and carried to him. The king of Carezem received this inftance of politeness in a brutal manner: he ordered the melons to be thrown into the foffé, and gave the bafon to the city gate-keeper. La Croix, Hift. of Timur-bec, book v. ch. 27.

we

we are not bound to obferve that moderation except where we have a fair opportunity of making him prifoner *.

§ 160. Principles of the right

my.

CHAP. IX.

Of the Right of IVar, with regard to Things belonging to the

A

Enemy.

State taking up arms in a juft caufe has a double right against her enemy,-1. a right to obtain poffeffion of her over things property with-held by the enemy; to which must be added the belonging expenfes incurred in the purfuit of that object, the charges of to the ene- the war, and the reparation of damages: for, were the obliged to bear those expenfes and loffes, fhe 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 fupporting his unjust violence (§ 138)—a right to deprive him of the means of resistance. Hence, as from their fource, originate all the rights which war gives us over things belonging to the enemy. I speak of ordinary cafes, and of what particularly relates to the enemy's property. On certain occafions, the right of punishing him produces new rights over the things which belong to him, as it also does over his perfon. These we fhall presently confider.

§ 161.

The right of feizing on them.

$162.

We have a right to deprive our enemy of his poffeflions, of every thing which may augment his ftrength and enable him to make war. This every one endeavours to accomplish in the manner most fuitable to him. Whenever we have an opportunity, we feize on the enemy's property, and convert it to our own ufe: and thus, befides diminishing the enemy's power, we augment our own, and obtain at least a partial indemnification or equivalent, either for what conftitutes the subject of the war, or for the expenfes and loffes incurred in its profecution :—in a word, we do ourselves juftice.

The right to fecurity often authorifes us to punish injustice or We from violence. It is an additional plea for depriving an enemy of

What is

taken

the enemy by way of penalty.

On this fubject, let us notice a trait of Charles XII. of Sweden, in which found reafon and the moft exalted courage are equally confpicuous. That prince being engaged in the fiege of Thorn in Poland, and frequently walking round the city, was easily diftinguished by the cannoneers, who regularly fired upon him as foon as they faw him make his appearance. The principal officers of his army, greatly alarmed at their fovereign's danger, wifhed to have information fent to the governor, that, if the practice was continued, no quarter fhould be granted either to him or to the garrifon. But the Swedish monarch would never permit fuch a ftep 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. Hiftoire du Nord, p. 26.

fome

fome part of his poffeffions. This manner of chaftising a nation is more humane than making the penalty to fall on the perfons of the citizens. With that view, things of value may be taken from her, fuch as rights, cities, provinces. But all wars do not afford just grounds for inflicting punishment. A nation that has with upright intentions fupported a bad cause, and observed moderation in the profecution of it, is entitled rather to compaffion than refentment from a generous conqueror: and in a doubtful cause we are to fuppofe that the enemy fincerely thinks himfelf in the right (Prelim. § 21; Book III. § 40). The only circumftance, therefore, which gives an enemy the right to punish his adverfaries, is their evident injuftice unfupported even by any plaufible pretext, or fome heinous outrage in their proceedings: and, on every occafion, he ought to confine the punishment to what his own fecurity and the fafety of nations require. As far as confiftent with prudence, it is glorious to obey the voice of clemency: that amiable virtue feldom fails of being more useful to the party who exerts it, than inflexible rigor. The clemency of Henry the Great was of fingular advantage in co-operating with his valour, when that good prince found himfelf compelled to conquer his own kingdom. Those who would have continued his enemies if only fubdued by arms, were won by his goodness, and became affectionate fubjects.

from him,

In fine, we feize on the enemy's property, his towns, his pro- $163. vinces, in order to bring him to reasonable conditions, and com- What is pel him to accept of an equitable and folid peace. Thus, much withheld more is taken from him than he owes, more than is claimed of in order to him but this is done with a defign of reftoring the furplus by a oblige him treaty of peace. The king of France was, in the last war, known to give just to declare that he aimed at nothing for himfelf: and by the treaty of Aix-la-Chapelle he actually restored all his conquests *.

:

fatisfaction.

$164.

As the towns and lands taken from the enemy are called conquefts, all movable property taken from him comes under the de- Booty. nomination of booty. This booty naturally belongs to the fovereign making war, no lefs than the conquefts; for he alone has fuch claims against the hoftile nation, as warrant him to seize on her property and convert it to his own ufe. His foldiers, and even his auxiliaries, are only inftruments which he employs in afferting his right. He maintains and pays them. Whatever they do is in his name, and for him. Thus there is no difficulty, even with regard to the auxiliaries. If they are not associates in the war, it is not carried on for their benefit; and they have no more right to the booty than to the conquefts. But the fovereign may grant the troops what share of the booty he pleases. At prefent most nations allow them whatever they can make on certain occafions when the general allows of plundering,-such

*The peace was become abfolutely neceffary to him; and he had, in return for his few conquefts, Louisbourg, with all its dependencies, which were of more importance to him. [Note by the former translator.]

as