IV. also to all whose occupations are not military. CHAP. Prisoners are not to be put to death, nor are towns to be refused terms of capitulation. He denies that the law of retaliation, or the necessity of striking terror, or the obstinate resistance of an enemy, dispense with the obligation of saving his life. Nothing but some personal crime can warrant the refusal of quarter or the death of a prisoner. Nor is it allowable to put hostages to death.* required as 136. All unnecessary devastation ought to be Moderation avoided, such as the destruction of trees, of houses, to spoil. especially ornamental and public buildings, and of every thing not serviceable in war, nor tending to prolong it, as pictures and statues. Temples and sepulchres are to be spared for the same or even stronger reasons. Though it is not the object of Grotius to lay down any political maxims, he cannot refrain in this place from pointing out several considerations of expediency, which should induce us to restrain the licence of arms within the limits of natural law. There is no right by nature to more booty, strictly speaking, than is sufficient for our indemnity, wherein are included the expenses of the war. And the property of innocent persons, being subjects of our enemies, is only liable in failure of those who are primarily aggressors.‡ 137. The persons of prisoners are only liable, in And as to strict moral justice, so far as is required for satis- prisoners. faction of our injury. The slavery into which they may be reduced ought not to extend farther than an obligation of perpetual servitude in return for CHAP. IV. Also in con quest. maintenance. The power over slaves by the law of nature is far short of what the arbitrary law of nations permits, and does not give a right of exacting too severe labour, or of inflicting punishment beyond desert. The peculium, or private acquisitions of a slave by economy or donation, ought to be reckoned his property. Slaves, however, captured in a just war, though one in which they have had no concern, are not warranted in conscience to escape and recover their liberty. But the children of such slaves are not in servitude by the law of nature, except so far as they have been obliged to their master for subsistence in infancy. With respect to prisoners, the better course is to let them redeem themselves by a ransom, which ought to be moderate.* 138. The acquisition of that sovereignty which was enjoyed by a conquered people, or by their rulers, is not only legitimate, so far as is warranted by the punishment they have deserved, or by the value of our own loss, but also so far as the necessity of securing ourselves extends. This last is what it is often unsafe to remit out of clemency. It is a part of moderation in victory to incorporate the conquered with our own citizens on equal terms, or to leave their independence on reasonable precautions for our own security. If this cannot be wholly conceded, their civil laws and municipal magistracies may be preserved, and, above all, the free exercise of their religion. The interests of conquerors are as much consulted, generally, as * C. 14. their reputation, by such lenient use of their CHAP. advantages.* IV. stitution to 139. It is consonant to natural justice that we And in reshould restore to the original owners all of which right owners. they have been despoiled in an unjust war, when it falls into our hands by a lawful conquest, without regard to the usual limits of postliminium. Thus, if an ambitious state comes to be stripped of its usurpations, this should be not for the benefit of the conqueror but of the ancient possessors. Length of time, however, will raise the presumption of abandonment. Nothing should be taken in war from neutral states, except through necessity and with compensation. The most ordinary case is that of the passage of troops. The neutral is bound to strict impartiality in a war of doubtful justice.‡ But it seems to be the opinion of Grotius, that by the law of nature, every one, even a private man, may act in favour of the innocent party as far as the rights of war extend, except that he cannot appropriate to himself the possessions of the enemy; that right being one founded on indemnification. But civil and military laws have generally restrained this to such as obey the express order of their government. § 140. The licence of war is restrained either by the laws of nature and nations, which have been already discussed, or by particular engagement. The obligation of promises extends to enemies, who are still parts of the great society of mankind. Faith is to be kept even with tyrants, rob+ C. 16. § C. 19. C. 15. C. 17. Promises to and pirates. enemies IV. CHAP. bers, and pirates. He here again adverts to the case of a promise made under an unjust compulsion; and possibly his reasoning on the general principle is not quite put in the most satisfactory manner. It would now be argued that the violation of engagements towards the worst of mankind, who must be supposed to have some means of self-defence, on account of which we propose to treat with them, would produce a desperation among men in similar circumstances injurious to society. Or it might be urged, that men do not lose by their crimes a right to the performance of all engagements, especially when they have fulfilled their own share in them, but only of such as involve a positive injustice towards the other party. In this place he repeats his former doctrine, that the most invalid promise may be rendered binding by the addition of an oath. follows from the general rule, that a prince is bound by his engagements to rebel subjects; above all, if they have had the precaution to exact his oath. And thus a change in the constitution of a monarchy may legitimately take place, and it may become mixed instead of absolute by the irrevocable concession of the sovereign. The rule, that promises made under an unjust compulsion are not obligatory, has no application in a public and regular war.* Barbeyrac remarks on this, that if a conqueror, like Alexander, subdues an unoffending * C.19. §11. There seems, as has been intimated above, to be some inconsistency in the doctrine of Grotius with respect to the general It obligation of such promises, which he maintains in the second book; and now, as far as I collect his meaning, denies by implication. people with no specious pretext at all, he does not perceive why they should be more bound in conscience to keep the promises of obedience they may have been compelled to enter into, than if he had been an ordinary bandit. And this remark shows us, that the celebrated problem in casuistry, as to the obligation of compulsory promises, has far more important consequences than the payment of a petty sum to a robber. In two cases, however, Grotius holds that we are dispensed from keeping an engagement towards an enemy. One of these is, when it has been conditional, and the other party has not fulfilled his part of the convention. This is of course obvious, and can only be open to questions as to the precedence of the condition. The other case is where we retain what is due to us by way of compensation, notwithstanding our promise. This is permissible in certain instances.* CHAP. IV. concluded tent autho 141. The obligation of treaties of peace depends Treaties on their being concluded by the authority which, by compeaccording to the constitution of the state, is rity. sovereign for this purpose. Kings who do not possess a patrimonial sovereignty cannot alienate any part of their dominions without the consent of the nation or its representatives; they must even have the consent of the city or province which is thus to be transferred. In patrimonial kingdoms, the sovereign may alienate the whole, but not always a part, at pleasure. He seems however to admit an ultima+ |